IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D 2024

CORAM: SACKEY TORKORNOO (MRS.) CJ (PRESIDING)

AMADU JSC
PROF. MENSA-BONSU (MRS.) JSC
KULENDI JSC
ASIEDU JSC
CIVIL MOTION
NO. J5/72/2023
28TH FEBRUARY, 2024
THE REPUBLIC

VS.

THE HIGH COURT, ACCRA

(GENERAL JURISDICTION 11) ………. RESPONDENT

EX-PARTE: ANAS AREMEYAW ANAS ………. APPLICANT

KENNEDY OHENE AGYAPONG .……… INTERESTED PARTY

---------------------------------------------------------------------------------------
RULING
---------------------------------------------------------------------------------------

Page 1 of 98
ASIEDU JSC:
[1]. INTRODUCTION

My lords, the instant application seeks to invoke the supervisory jurisdiction of this court
under Article 132 of the Constitution, 1992, section 5 of the Courts Act, 1993 Act 459 and
rule 61 of the Supreme Court Rules, 1996, CI.16, for an “order of certiorari directed at
the High Court (General Jurisdiction 11), Accra, to bring into this honourable court for the
purpose of being quashed, the judgment of the High Court dated the 15th March 2023.
The application is premised on basically two main grounds:

(1). Absence of jurisdiction and, (2) Apparent or real likelihood of bias and impartiality on
the part of the judge.

The application is supported by a twenty-six-paragraph affidavit. It is also opposed by an

eighteen-paragraph affidavit filed by the Interested Party.

[2]. FACTS

The applicant in this matter issued a writ of summons against the Interested Party
(hereinafter referred to as the Defendant) in the High Court, Accra on the 20th November
2018 for:

(a). General damages for libel contained in the Defendant’s (Interested Party)
publications indorsed on the writ of summons.

(b). Aggravated damages arising from libel published by the Defendant of the Plaintiff in
the sum of Twenty-Five Million cedis (GH₵25,000,000.00).

(c). Costs

The Defendant entered appearance and filed a statement of defence. The case was heard
and the learned trial judge gave judgment on the 15th March 2023 wherein he dismissed
the claims of the Applicant against the Defendant. Then, on the 12th day of June 2023,
the Applicant filed the instant application against the Defendant herein for the reliefs
stated in the application.

Page 2 of 98
[3]. GROUNDS FOR THE APPLICATION:

As stated above, the applicant urges two main grounds for this application. These are:
(1). Absence of jurisdiction and (2). Apparent or real likelihood of bias and impartiality on
the part of the judge. These grounds will be examined one after the other.

[4]. ABSENCE OF JURISDICTION:

The Applicant, at paragraph 13 of the supporting affidavit referred to exhibit FAA.4 and
stated that the said exhibit is the court notes of 1st December 2021 in which Justice Gifty
Addo ordered the adoption of the proceedings. I have examined the said exhibit FAA.4
and it does not say what the applicant attributes to it. Exhibit FAA.4 is a court note dated
1st December 2021. It shows that on that date Justice Eric Baah JA. sat on the case. The
parties failed to appear in court that day but their lawyers were present in court. The
judge then brought to the attention of the lawyers that the Honourable Chief Justice had
directed him, per a letter dated the 27th October 2021 to continue the hearing of the case
to conclusion since the case was a part heard. The said letter from the Chief Justice is
exhibited as exhibit FAA 6. The applicant says at paragraph 18, 19 and 20 of his affidavit
in support that:

“18. The secret exchanges of letters between the interested party and the former
Chief Justice raise concerns about fairness and impartiality in the conduct of the
case brought by the applicant.

19. Notwithstanding the exchange of letters between the interested party and the
former Chief Justice which appears then to be unknown to Justice Eric Baah, for
which we differ, (sic) Justice Baah assumed conduct of the case and gave
judgment on the 15th March 2023 against the applicant. Attached hereto as exhibit
FAA 8 is a copy of the said judgment.

20. The delivery of the proceedings of 1st December 2021 by Justice Eric Baah and
the selection of Justice Eric Baah by the interested party and approval by Anin
Yeboah CJ (as he then was) without recourse to the applicant and the judgment

Page 3 of 98
 of 15th March 2023 wherein the judge descended into the boxing arena and
attached (sic) the person of the applicant lends credence to deep-seated bias held
by the judge against the applicant.”

To these depositions, the Defendant says in paragraphs 11 and 12 of his affidavit in

opposition that:

11. That I am advised by Counsel and I verily believe same to be true that when
a Judge is seised with jurisdiction to hear a matter and he is subsequently
transferred to another court, any of the parties may by a petition or application to
the Chief Justice make a request that, the Judge be allowed to conclude the case
if it is part heard which is nearing conclusion as it were in the instant case; in order
to have expeditious trial in the interest of justice.

12. That I am advised by Counsel and I verily believe same to be true that the
Chief Justice in exercising the power to allow the Judge to continue and conclude
same was within his administrative power and that the exercise of that power
cannot amount to the absence of jurisdiction on the part of the judge because
another party was not copied of the petition to that effect.

On the basis of the deposition on behalf of the applicant, it was submitted in the
statement of case filed on behalf of the applicant herein on the 12th June 2023 that: “In
the case of the suit in the High Court, the want of jurisdiction relates to the procedure by
which the trial Judge (Justice Eric Baah) came to take charge of the conduct of the case
in question and conclude same”. What procedure is being complained about in this
matter? By exhibit FAA 5, the lawyer for the Defendant on the 19th October 2021 wrote
to the Chief Justice as follows:

“PETITION FOR AN ORDER FOR JUSTICE ERIC BAAH, JA TO CONTINUE

AND COMPLETE PART-HEARD CASE INSTITULED: ANAS AREMEYAW
ANAS VSR HON. KENNEDY AGYAPONG (SUIT NO. GJ/892/2018)’’

Page 4 of 98
 We write as Solicitors for and on behalf of the Defendant, hereinafter referred to
as our client.

My Lord, the above suit which was instituted in 2018 remains unheard until the
arrival of the above named Judge. He began taking evidence on the case and has
so far heard the evidence of the Plaintiff and the Defendant. He has heard part of
the cross examination of the Defendant. He has observed the demeanor of the
parties and is abreast with the details of the case, including its nature and scope.

I am aware that a new Judge has been posted to the High Court, General
Jurisdiction Division 2. It will take some time for the record of proceedings to be
put together for the new Judge. She will need more time to study the record to
familiarize herself with it to enable her effectively continue it. She also does not
have the benefit of the demeanor of the witnesses so far.

Respectfully, it is my view that it will be quicker and more efficient for Justice Baah
to continue the case than the new Judge.

In the circumstances, respectfully and earnestly pray you to order the previous
Judge to continue the case.”

As a result of the above, the Chief Justice wrote exhibit FAA 6 dated the 27th October
2021 to Justice Eric Baah and directed him to continue the hearing of the case to finality.
Subsequently, the case was called on the 1st December 2021 and Justice Eric Baah
informed the lawyers, on that date, among others, as follows:

“I justice Eric Baah, JA, sitting with additional responsibility as a High Court Judge,
began the case before I was replaced by a substantive Judge at GJ2, I left the
case, which was then and still is a part-heard. I however, received a directive from
the Honourable Chief Justice dated 27/10/2021, by which I was directed to
continue the case to its conclusion”.

[5]. There is no evidence before this court that the applicant raised any objection to the
hearing of the case by Justice Eric Baah. Consequently, the Judge heard the case and

Page 5 of 98
gave judgment on the15th March 2023. The judgment went against the applicant who is
before this court complaining that the Judge had no jurisdiction to hear the case. I am
deeply surprised by this complaint. Article 140(1) of the Constitution 1992 confers
jurisdiction on the High Court to hear every civil and criminal case except the Constitution
says otherwise. Article 140 (1) states as follows:

“140. Jurisdiction of the High Court

(1) The High Court shall, subject to the provisions of this Constitution, have
jurisdiction in all matters and in particular, in civil and criminal matters and such
original, appellate and other jurisdiction as may be conferred on it by this
Constitution or any other law”.

Is the defamation suit filed by the applicant herein against the Defendant before the High
Court not a civil matter? And if it is a civil matter, how can it be reasonably argued that
the High Court or a Judge sitting at the High Court has no jurisdiction to entertain and
hear the case? Although Justice Baah was and still is a Justice of the Court of Appeal at
the time he heard and gave judgment in the matter, that in itself did not infringe any law
or take away his jurisdiction to hear the matter. Article 139(1) of the Constitution is very
clear on this. It states that:

“139. Composition of the High Court and qualifications of its Justices

(1) The High Court shall consist of

(a) the Chief Justice,

(b) not less than twenty Justices of the High Court, and

(c) such other Justices of the Superior Court of Judicature as the Chief Justice may,
by writing signed by him, request to sit as High Court Justices for any period.”

Therefore, if the Chief Justice, in writing signed by him, directed Justice Eric Baah to
continue and hear the case to the end, what wrong did the Chief Justice or for that matter
Justice Eric Baah commit to necessitate the instant application before this court?

Page 6 of 98
[6]. The applicant complains about “the procedure by which the trial Judge came to take
charge of the conduct of the case in question and concluded same”. The records before
this court show that it was Justice Eric Baah who commenced the hearing of the case and
heard the evidence of the Applicant and his witness(es) as well as the testimony of the
Defendant and even part of the cross examination of the Defendant before another Judge
was brought to the very court where the case was pending. The petition, exhibit FAA. 5
exhibited by the applicant herein, makes these facts clear. If a new Judge had been
brought to the court and one of the parties had found it fit to petition the Chief Justice
for the original Judge, Justice Eric Baah, to continue with the hearing of the case and the
Chief Justice had hearkened to the wisdom in the petition, how can it be said that the
procedure by which Justice Baah became charge of the case deprived him of jurisdiction?
Section 104 of the Courts Act, 1993, Act 459 (as amended) gives power to the Chief
Justice to do what he did. It provides that:

“104. Transfer of cases by the Chief Justice

(1) Subject to the Constitution, the Chief Justice may by order signed by the Chief
Justice transfer a case from a Judge, or Magistrate or Tribunal to any other Judge
or Magistrate, and from one Court to any other competent court at any time or
stage in the course of proceedings and either with or without an application from
any of the parties to the proceedings.

(2) The order may be general or special and shall state the nature and extent of
the transfer, and in a case of urgency the power of transfer may be exercised by
means of a telegraphic, telephonic or electronic communication from the Chief
Justice.

(3) A transfer of a case made by telegraph, telephone or electronic communication

and not confirmed immediately by order signed and sealed in a manner specified
by the Chief Justice or any other person authorised in that behalf by the Chief
Justice is not valid”.

Page 7 of 98
Section 104 of Act 459 received judicial interpretation in Republic vs. High Court,
Accra; Ex parte Yalley (Gyane & Attor Interested Parties) [2007-2008] SCGLR
512 where this court stated that:

“Read as a whole, the provision in section 104 (1)-(3) of the Courts Act, 1993, Act
459, as amended by the Courts (Amendment) Act, 2002, Act 620, s.7 and sched
applies to all matters pending in the courts, whether motions or applications,
whether standing on their own or arising or flowing from a substantive action. The
court would interpret the word ‘case’ appearing in section 104(1)-(3) broadly to
include contempt proceedings, which in reality are serious substantive quasi
criminal matters carrying custodial punishment. Subsection 2 of section 104
buttresses the point that the provisions are not intended to be limited to
substantive actions only. Subsection 2 makes reference to general or special
transfers and mandates the transferor to state the nature and extent of the
transfer. This supposes that a transfer need not cover an entire substantive case,
but parts or segments of it dealing with particular matters. Once any matter has
been placed before a Judge, in the absence of an order of transfer from the Chief
Justice or the High Court Judge or the Chairman of a Regional Tribunal under
section 104 of Act 459 as the case may be, it is only that Judge who has exclusive
jurisdiction to deal with the matter or any part thereof. Consequently, no Registrar
– and this extends to Magistrates and Circuit Judges – has power to transfer
matters pending before a Judge or court to another Judge or Court without the
express authorisation of the Chief Justice or the High Court Judge or Chairman of
the Regional Tribunal as the case may be, and in the manner specified under the
law i.e. section 104 and 106 of Act 459”

[7]. I will add that as far as an order of transfer of a case is made in accordance with
the provisions in section 104 of the Courts Act and signed by the Chief Justice or the High
Court Judge or Chairman of the Regional Tribunal, the said order of transfer cannot be
said to be wrong or unlawful and it can also not be said to deprive the Judge to whom
the matter is transferred of jurisdiction to deal with the matter as directed. On the

Page 8 of 98
contrary, a transfer made in accordance with the provisions in section 104 of Act 459,
gives jurisdiction to the Judge to whom the matter is transferred to sit on the matter and
deal with it in accordance with the laws of the land. After Justice Baah had, on the 1st of
December 2021, brought to the notice of the parties and their lawyers that he had been
directed by the Chief Justice to hear the case to the finish, why did the Applicant not raise
any objection to the hearing before the Judge? Why did he take part in the conduct of
the case before Justice Baah to the extent of his lawyers continuing with their cross
examination of the Defendant? If the judgment had gone in his favour and damages of
GH₵25,000,000.00, which he had asked for in his writ, had been awarded him, would he
have filed the instant application and prayed that the judgment be quashed by certiorari
because Justice Baah was bereft of jurisdiction? I do not think so. The instant application
is a camouflage. It has really been brought because the applicant is aggrieved by the
judgment which went against him and not because Justice Baah had no jurisdiction to
hear the case. That being the case, certiorari is not the way forward. A party who is
genuinely aggrieved by the judgment of a trial court, has his remedy in appeal and not
certiorari. In re Appenteng (Decd); Republic vs High Court, Accra (Commercial
Division); Ex parte Appenteng (Appentengs Interested Parties) [2010] SCGLR
327, this court saw through a similar application when it observed that:

“The well-established rule was that an applicant for an order of certiorari, being a
discretionary remedy, even on the ground of want or excess of jurisdiction, would
not obtain the order of certiorari ex debito justitiae, unless he could show that he
was unaware of the absence of jurisdiction to determine the matter.”

“We have no difficulty in holding that though certiorari is a discretionary remedy,

the omission of a party to raise objection to a proceeding in an appropriate forum
should disentitle the applicant to that remedy where the omission was wilful and
an abuse of the process of the court. Such is the case here. The fact that Tanko
Amadu J. (as he then was) was exceeding his authority after the effluxion of the
vacation period did not seem to have bothered the applicant until his ruling turned
out to be adverse to him. Were it to have been in his favour he would have

Page 9 of 98
 celebrated it …? In the instant case, the applicant did not take objection to the
continuance of the matter by Tanko Amadu J unlike the applicant in the case of
Republic vs. High Court (Fast Track Division) Accra; Ex parte Quaye (Yovonoo &
Others Interested Parties) [2005-2006] SCGLR 660… The applicant by that failure
is particeps delicti and it would be an abuse of the process to allow his application”

In a country where we continue to lament over the delay in the disposal of cases, the
attitude of this court should be to discourage applicants like the one before us from
bringing such applications before our courts. We cannot continue to entertain applications
such as the one before us and be justified in our lamentations over the slow pace or the
incessant delays in the disposal of cases before our law courts. That will surely defeat the
provisions in Order 1 rule 2 of the High Court (Civil Procedure) Rules, 2004, CI. 47 (as
amended) to the effect that:

“These Rules shall be interpreted and applied so as to achieve speedy and effective
justice, avoid delays and unnecessary expense, and ensure that as far as possible,
all matters in dispute between parties may be completely, effectively and finally
determined and multiplicity of proceedings concerning any of such matters
avoided”.

[8]. APPARENT OR REAL LIKELIHOOD OF BIAS:

The next ground upon which the applicant relies for the order of certiorari against the
judgment of the High Court is “apparent or real likelihood of bias and impartiality on the
part of the judge”. Under this head, the applicant has enumerated certain statements in
the judgment delivered by the trial judge and then has invited this court to hold that
those statements evince bias or real likelihood of bias held by the learned trial Judge
against the applicant herein. This calls for a critical examination of the judgment of the
learned trial Judge. The applicant first referred to page 64 of the judgment, exhibit FAA
8 herein where the learned Judge stated that:

“Corruption rating agencies have never been kind to Ghana in their ratings. As to
how Plaintiff and his teams select their subject persons is a matter shrouded in

Page 10 of 98
 secrecy. But how do they choose their subject persons out of the large number of
corrupt Ghanaians? As things stand, persons selected may just be the unlucky
ones, since some of those not selected may be worse than those selected”

This court has been told that the above statement shows that: ‘the Judge harboured a
longtime prejudice against the applicant’. I do not see what constitutes “bias or real
likelihood of bias or a longtime prejudice” against the applicant from this statement. The
above statement evokes genuine questions which almost every trial Judge is likely to ask
when trying the kind of case which was before the learned trial Judge. Is it not true that
corruption rating agencies have never been kind to our country? Is it not true that Ghana
has always been placed at uncomfortable positions by corruption rating agencies much
to our discomfiture? Has the trial Judge no power to comment, in his judgment, on
matters which are obvious given the facts of this case? I do not see anything which can
reasonably and correctly be described as constituting ‘longtime prejudice’ by the trial
Judge against the applicant in this matter as far as the above statement is concerned.

[9]. Again, in the unpaginated statement of case of the applicant, reference has been
made to a statement at page 64 of the judgment where the learned trial Judge stated
that:

“It should be understood that as officers caught by Plaintiff in his investigations

have lost their jobs, an entrapped President may be compelled to resign out of
shame or public pressure. That means the Plaintiff through his investigative antics
can cause the removal of a President, and thereby [upturn] the mandate given to
him at the elections. This is not investigative journalism. It is investigative
terrorism. It is exercise of indirect political power under the cloak of journalism”

These may, perhaps, be strong words but they do not, in my humble view, show that the
Judge operated under bias or dislike for the applicant. Where else can a judge express
his candid opinion on an issue in a case before him than in his judgment? The above
statement constitutes an inference which the learned trial Judge drew from his analysis
and examination of two exhibits which were tendered at the trial by the Defendant in the

Page 11 of 98
defamation case. These exhibits were labelled exhibit KOA3 and KOA4. In his judgment,
the learned trial Judge found that exhibit KOA3 was a video entitled “Fake Sheik” which
contained an interview between a Fake Sheik and an interviewer called “Black man”. In
the said video, the learned trial Judge found an allegation by the Fake Sheik that the
Applicant herein and his team members were sending bags loaded with thousands of
dollars to somewhere. The trial Judge found also that “the Fake Sheik mentioned the case
of Kwasi Nyantakyi, and the attempt to use him to get to the President to facilitate the
establishment of a branch of the Baraka Bank in Ghana. The trial Judge also found that
the Fake Sheik said that “they planned it very well”.

The trial Judge found exhibit KOA4 to be a video covering the applicant herein, one
Amakye, a Sheik, an Arabian and a Blackman. The trial Judge found that in the said video,
these persons conversed about their efforts to implicate the Ivorian Prime Minister. The
trial Judge found that the persons also talked about sharing some percentages with a
President and his family. The trial Judge then referred to the evidence of the Defendant
to the effect that the meeting in exhibit KOA4 was a plot to entrap the Prime Minister of
Ivory Coast and the President of Ghana. The trial Judge then expressed his findings where
he stated that “the conversations in exhibits KOA3 and KOA4 appear very much to confirm
that claim” That is to say, the conversation in exhibits KOA3 and KOA4 corroborates the
Defendant’s claim that the Applicant and his team really planned to entrap the Prime
Minister of Ivory Coast and the President of Ghana.

The learned trial Judge then analysed the evidence before him and stated, among others,
that:

“The president and the Prime Minister who Plaintiff and his team targeted are the
leaders of their nations. They embody the soul and spirit of their nations. They are
obliged to lead by example, so if they engage in corrupt acts, journalists like
Plaintiff and indeed any citizen is entitled to expose them. However, a pre-emptily,
unjustified attacks on their credibility, unprovoked by any credible suspicion of a
specific act of corruption engaged in or about to be engaged in by them, such as
drawing them into a trap so as to be caught in a contrived corruption set up, as
Page 12 of 98
 was alleged by the Defendant and backed by exhibit KOA4 was unwarranted and
devious.” The learned trial Judge then followed up with the statement which ended
with the expression “that is not investigative journalism. It is investigative
terrorism…”

Is the applicant saying that a trial Judge has no right to examine and analyse the evidence
placed before him and draw inferences and make findings of fact? In my opinion, the
statements referred to are the inferences and findings of fact which the learned trial
Judge dutifully made and for that matter they cannot reasonably be described as
constituting bias and be clothed with the garb of prejudice against the applicant. The
statements rather constitute findings of facts by the learned trial Judge. Thus, in
Agyenim-Boateng vrs Ofori & Yeboah [2010] SCGLR 861, this court reiterated the
principle that:

“It is the trial court that has the exclusive right to make primary findings of fact
which would constitute building blocks for the construction of the judgment of the
court where such findings of fact are supported by evidence on the record and are
based on the credibility of witnesses when the trial tribunal has had the opportunity
and advantage of seeing and observing their demeanour and has become satisfied
of the truthfulness of their testimonies touching on any particular matter in issue.

It is the duty of trial Judges to make specific findings of fact on each of the issues and
facts in contention before the Court. Findings of fact are not made by the bare and naked
repetition, either in summary form or by the wholesale repetition, on paper, of the
testimonies of the parties and their witnesses. Findings of fact are made by a critical
analysis and evaluation of the evidence given by the parties and their witnesses vis-à-vis
the claims and defences put forward by them and in each case with the correct application
of the rules of procedure and evidence as well as substantive law on each subject and
finally showing which of the competing evidence is to be believed or preferred against
the other with the reasons assigned for each preference. Findings of fact are normally
limited to the contentious issues or matters raised by the parties. A trial Court is normally
not expected to make findings of fact on matters which are not in dispute. Hence, if, for
Page 13 of 98
example, a particular allegation of fact has been admitted by the opposite party in his
pleadings, no issue is joined on the admitted fact and, generally speaking, no evidence
is expected to be received on the admitted fact. It is mostly the contentious allegations
of fact which seeks to prove or disprove the claims of the parties that the trial Judge is
expected, by law, to make findings on, in order to ascertain which of the competing
versions is more probable than the other. Once a trial Judge had made his findings and
then drawn conclusions on them, such findings cannot be adorned with garbs described
as bias and real likelihood of bias in order to secure the supervisory jurisdiction of this
court in the nature of certiorari against them with an invitation to this court to order a
fresh trial.

[10]. Further, counsel referred to page 65 of the record where the learned trial Judge
stated that:

“Defendant alleged that plaintiff has amassed wealth through corruption. Even if
that allegation is discarded, the question remains as to how plaintiff and his team
get those thousands if not millions of dollars. Plaintiff is a lawyer and journalist,
but these professions do not breed dollars from nowhere. If plaintiff is being
sponsored by internal or external entities, who are they? What are their motives
and objectives? Does it include tarnishing the images of Presidents and Prime
Ministers in our sub region? If the sponsors are external entities, do they approve
of the modus operandi of the plaintiff? Can a journalist from CNN or BBC out of
nothing, lay traps just to implicate the American president or the British Prime
Minister for the purpose of grabbing the headlines and instilling unwarranted fear
in the populace? Have they ever thought of sending plaintiff to their countries to
use same methods to catch people in racist acts, which is a social canker plaguing
those societies? In all honesty, the plot by plaintiff and his group in exhibit KOA4
has nothing to do with journalism. It was a scheme for grabbing power by the
back door and satisfying plaintiff’s insatiable taste for power, publicity, fame,
awards, and rewards.”

Page 14 of 98
The above statement quoted by counsel for the applicant, in his statement of case, was
preceded by the following statement made by the learned trial Judge in the judgment
sought to be quashed:

“That brings up the issue of money. In exhibit KOA3, the fake Sheik who was hired
to work for plaintiff, talked about the numerous bags of dollars sent to Dubai by
plaintiff and his team.”

Why counsel decided to leave out that portion of the judgment which immediately
precedes what he quoted is not difficult to understand. It shows clearly that the learned
trial Judge was not actuated by any bias or prejudice against the applicant. For, the
statements represent that trial Judge’s evaluation and analysis of KOA3 and KOA4 which
have been tendered and received in evidence. In those exhibits, the learned trial Judge
found as a fact that the applicant and his team had talked about the applicant carrying
monies “numerous bags of dollars sent to Dubai”. By this application, what the applicant
seeks to do, indirectly, is to gag trial Judges from making specific findings of fact from
the evidence placed before them, but that is a duty which is imposed upon every trial
Judge before he comes to his conclusion and, in my respectful view, the discharge of
such duty cannot lawfully be classified as amounting to bias or prejudice. How else are
trial Judges expected to perform the duties of their office than to assess, evaluate,
critically analyse, draw inferences and make findings of fact from the evidence adduced
by the parties to a trial. That is what is known as reasoned judgment in the common law
tradition. The fact that a party is not enthused by the assessment and evaluation of
evidence by a trial Judge and therefore decides to label such assessment as arising out
of bias or prejudice is no ground, in my humble opinion, to issue certiorari against the
judgment. If a party is not satisfied with the way and manner that a trial Judge had
evaluated the evidence, the remedy is not an application for certiorari. The way forward
is to lodge an appeal against the whole judgment so that the appellate court can have
the benefit of the whole record of proceedings which is not available in certiorari
applications.

Page 15 of 98
[11]. Counsel for the applicant also makes reference to page 56 of the judgment where
the learned Judge stated that:

“The mantra of plaintiff repeated ad nauseum in our ears, and of which I take
judicial notice is “Name, shame and prosecute.” Pursuant to that, plaintiff has
rushed to air audio-visuals on his investigations to the public, often at a fee (judicial
notice).”

Counsel says, in his statement of case, that the applicant never charged a fee and that
the applicant’s documentaries were never an issue before the trial Judge. If counsel
desires that the issues placed before the trial court be re-assessed or re-evaluated or
examined by an appellate court, then the best way forward is for the applicant to appeal
against the judgment in order that the record of proceedings can be placed before an
appellate court. In a certiorari application such as the instant, the record of proceedings
is not made available to the court and therefore the court becomes handicapped when it
has to re-assess the evidence. At any rate, a trial Judge is entitled, in his judgment, to
take judicial notice of matters which are of public knowledge as long as they remain
relevant to the case before him. And judicial notice may be taken whether or not the
parties raise issues about the factual matters of which the judicial notice is relevant. Thus,
section 9(1)-(3) of the Evidence Act, 1975, NRCD 323 provides that:

9. Judicial notice

(1) This section governs the taking of judicial notice of facts in issue or facts which
are relevant to facts in issue.

(2) Judicial notice can be taken only of facts which are

(a) so generally known within the territorial jurisdiction of the Court, or

(b) so capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned, that the facts are not subject to
reasonable dispute.

(3) Judicial notice may be taken whether requested or not.

Page 16 of 98
Only few Ghanaians might have forgotten what the trial Judge referred to in his judgment
as the mantra of the applicant. Consequently, the trial Judge could take judicial notice of
matters which are in the domain of the public and by so doing he cannot be lawfully
accused of having exercised open bias or prejudice against the applicant. The learned
trial Judge had found that the applicant had a video coverage of certain persons who had
indulged in criminality but the applicant had refused to premier or show those
documentaries to members of the public, as was characteristic of him, because he had
taken money from the persons involved in the documentaries which had muted his ability
to show those videos. The learned trial Judge therefore observed, among others, that:

“Had it not been for the efforts of the investigators of that piece and the
Defendant, Ghanaians and the world would never have become aware of that tape
and the culprits therein”. See pages 55 to 56 of exhibit FAA 8

[12]. It is important to stress that the learned trial Judge had made findings of fact in
respect of matters bordering on criminality against the applicant herein. A few examples
will suffice:

At page 58 of the judgment, exhibit FAA 8, the learned trial Judge stated that:

“In the court proceedings (exhibits KOA2/F-series), the case began with
Mohammed Hafiz Abdallah. Then an unnamed person was added. Later, the three
persons appearing as accused persons were: Mohammed Hafix Abdallah, Mubarak
Seidu and Prince Kingston Kwame.

Conspicuously missing was Baba Tunde, who plaintiff had captured on tape
confessing to the crime. Why was Baba Tunde left out? If he was left out by the
prosecution without the knowledge of plaintiff, did the plaintiff petition the
Attorney General for his inclusion, since he had his confession on tape?

The evidence before me amply proves that Baba Tunde was excluded from the
charges through the machinations of the plaintiff, after receiving a bribe of
$100,000.00 from Baba Tunde, and on grounds of their family relationship. For

Page 17 of 98
 the sake of emphasis, I will repeat the relevant aspect of the conversation between
the plaintiff and the prosecutor on Baba Tunde:

Prosecutor: Hmm they have really been working and are settling

everybody.

Anas: “…his demeanour, 1.9 million dollars from where? Who did they take it
from? Then he started telling me how the people came here and were working
with them. So, at that time they bought me with hundred thousand dollars because
he is somehow related to me. Somehow. I don’t know how…?

Prosecutor: Is it the two?

Anas: No, Baba Tunde. He now wanted to fight for himself.

If plaintiff says that Baba Tunde in fighting for himself bribed him with
$100,000.00, who else can say he didn’t? True to the scheme, Baba Tunde who
had confessed to a crime involving $1.9milliom on a tape in the possession of
plaintiff, was excluded from the charges. The video of his confession was never
shown to the public.”

Again, at page 62 of his judgment, the learned trial Judge found and held that:

“The case of Hafiz and Baba Tunde confirms the claim of Defendant that the
plaintiff is a blackmailer, an extortionist, corrupt and a criminal. On this point, Hafiz
said on television that plaintiff failed to show the video on them because he paid
him a bribe of $50,000.00. The evidence from plaintiff’s own mouth is that Baba
Tunde bought him with $100,000.00. Lo and behold! the tapes on the suspects
were never shown to the public by the plaintiff. I considered it established that
plaintiff blackmails people he desires to destroy, probably his enemies, or the
enemies of his friends or partners, or persons loaded with cash, whether legitimate
or illegitimate, as the suspects in the gold scam case, by catching them on tape.
The tape is then shown to them. The tape on those who pay up, are shelved, but

Page 18 of 98
 those who refuse or are not able to pay are help [sic] to the full glare of the public
for reputational damage.

Such conduct is legally and morally wrong. It is evil. Based on the evidence,
Defendant was justified in calling plaintiff evil, criminal, corrupt, blackmailer and
extortionist. Since the contents of exhibit KAO1 has been established to be true
and factual, all comments made by Defendant based in relation to it is both
justified and fair.”

At page 67 of the judgment, exhibit FAA 8, the learned trial Judge further, stated that:

“As already mentioned above, it is the burden of the judge as a trier of fact to
determine whether the words actually defamed the plaintiff, using the hypothetical
reader test. I have concluded aforehand; based on exhibits KAO1, KAO3 and KAO4,
that the plaintiff engaged in the crime of bribe taking and bribe giving. A person
who commits a crime is a criminal, simpliciter. However, since every word uttered
on a different occasion ought to be assessed for their defamatory effect, I will
assess the alleged words to determine if they succeeded in actually defaming the
plaintiff.

The facts and the evidence established the plaintiff as a self-confessed criminal,
so Defendant’s statement is factual and justified. Bribe taking is a dishonest,
fraudulent, cheating, extortionist, thieving, blackmailing, and a corrupt act;
besides being illegal. Plaintiff who has been established by the evidence as having
taken and given bribes could not have actually been defamed by those words.”

The above statements are just a few of the findings of fact made by the learned trial
Judge against the applicant herein. Most of the findings show that the applicant indulged
in criminality. In the real world, no crusader will be happy to see such findings of fact
remain in the law reports. Nonetheless, in the instant application for the remedy of
certiorari, by which such findings have been woven, crafted and presented as bias and
prejudice, is not the legally accepted mode of getting such findings off the law reports.
The way forward is an appeal so that the appellate court would have the benefit of the

Page 19 of 98
entire record and establish for itself whether or not the findings are justified in the face
of the evidence adduced before the trial court. In my humble opinion, the fact that a trial
Judge had used language, considered to be a bit strong by a party, is not a sufficient
ground to quash a judgment which the applicant had dressed up with allegations of bias
and prejudice against the trial Judge.

Strong languages have, where appropriate, been used by Judges to describe their
revulsion to conducts and behaviours exhibited by parties who had appeared before them
as the evidence in the case have revealed and that cannot, reasonably, be seen as a
show of bias and prejudice. In Schandorf vs. Zeini and Another [1976] 2 GLR 418,
Amissah JA. uttered the following words as a result of his observation of the conduct of
the appellants therein. He stated that:

“The appellants are rogues. They were found by the learned trial judge,
Koranteng-Addow. J., to have fabricated a case and to have suborned witnesses
to put that case to the court. They do not complain about that. Their grievance, in
the main, is that the judge failed to apply a rule founded on morality to protect
them from their opponent. Considering the source from which it comes, it is a bold
complaint to make to a court. Ironically, the cause for the application of the rule
they invoke, if indeed that rule is appropriate to their case, arises out of the sheer
candour of the respondent. Nothing could be more injurious to the administration
of justice than that a person should come before a court to bear false witness
deliberately. Our criminal laws through the offences of perjury and deceit of public
officer visit such behaviour with severe penalties. The appellants do not ask us to
do anything about their offence, though it be serious and was committed in the
face of the court in this very case. What they do ask us to do is to interfere with
the decision of the trial court, not on the merits, but on the ground that the
demands of public policy require that whatever the merits, the respondent, who
was plaintiff in the case, should not be helped by the courts.”

It is worthy of note that the first sentence uttered by Amissah JA. was that the “appellants
are rogues”. These words are quite strong and together with the whole paragraph shows
Page 20 of 98
how critical the Judge was; but that, per se, did not mean that Amissah JA. was either
bias or operated under prejudice and uttered those words out of any personal dislike or
hatred against the appellants in the case. It is not the duty of this court to prescribe the
kind of language that Judges should use in their judgments. We can urge moderation in
the use of language. However, the fact that a Judge had used language considered to be
strong cannot be interpreted to mean that the Judge was bias or prejudicial against a
party or had a personal dislike against the party so much so that we should issue certiorari
against the judgment. In Porter and Another v Magill [2002] 1 All ER 465, the
House of Lords laid down a different test for the determination of the existence of bias.
The court stated that:

“In determining whether there had been apparent bias on the part of a tribunal,
the court should no longer simply ask itself whether, having regard to all the
relevant circumstances, there was a real danger of bias. Rather, the test was
whether the relevant circumstances, as ascertained by the court, would lead a fair-
minded and informed observer to conclude that there was a real possibility that
the tribunal had been biased”

The Porter vs. Magill case, admittedly is of persuasive authority but cannot be lightly
discounted. As I have already pointed out, no crusader, in the person of the applicant will
be happy to have a Judge make those disparaging findings of fact against him but sitting
here on an application for certiorari, this court does not have the benefit of the record of
proceedings before us and so the court is handicapped in coming to a determination
whether or not the findings of fact made by the Judge are borne out of the evidence
adduced before the learned trial Judge. The least which this court can do is to allow the
judgment to stand because no bias or prejudice has been established at all by the
applicant. The process of appeal is the best way to re-evaluate the evidence.

[13]. It is not within the powers of this court, in the circumstances of the matter before
this court, an application for certiorari; for this court to question the basis for the findings
of fact made by the learned trial Judge. That power can only be correctly and properly
exercised in an appeal where the full record of proceedings and the whole evidence
Page 21 of 98
adduced by the parties are placed before this court. We cannot pretend, in an application
for certiorari, to have all the evidence which the trial Judge was possessed of and on the
basis of which he made his findings of fact. It is not the place of this court to question
the basis for any findings of fact that have been made by a trial Judge when the court
does not have the full record of proceedings. That has never been the position of the law.
In order to question or assess the correctness or otherwise of any findings of fact, this
court, as a matter of law, ought to be seised with the full record of proceedings. That is
the policy reason behind the law that where a party seeks to question findings of fact
made by a trial Judge, the process of appeal is the hallowed method to do so. In an
application for certiorari, findings of fact cannot be legally questioned since the full
proceedings is not available to the court.

[14]. Again, the impression must not be created that a trial Judge cannot make findings
of fact if evidence is placed before him of the commission of a crime in a civil matter.
Again, the impression must not be created as though a Judge is only mandated to make
findings of fact in respect of the commission of a crime only when he is sitting on a full-
blown criminal trial. The Evidence Act, 1975, NRCD 323 demands that any allegation of
the commission of a crime in civil matters must be proved to the same standard required
of the Prosecution in a criminal trial. If an allegation of the commission of a crime is made
in a civil case before a Judge and evidence of criminality is placed before the Judge and
the Judge evaluates the evidence and comes to the conclusion that the allegation of the
commission of a crime had been proved beyond reasonable doubt, the Judge is under a
legal obligation to make the necessary findings of fact in respect of the commission of
the crime. It is not only in criminal cases, that the commission of crimes can be proved
and the appropriate findings of fact made thereon. Section 13(1) of NRCD 323 states it
clearly:

“In a civil or criminal action, the burden of persuasion as to the commission by a

party of a crime which is directly in issue requires proof beyond a reasonable
doubt.”

Page 22 of 98
In Aryeh & Akakpo vs Ayaa Iddrisu [2010] SCGLR 891, section 13(1) of NRCD 323
was explained by this court that:

“The rule in section 13(1) of the Evidence Act, 1975, NRCD 323, emphasizes that
where in a civil case, crime is pleaded or alleged, the standard of proof change
from the civil one of the balance of probabilities to the criminal one of proof beyond
reasonable doubt.”

In the instant matter, the Defendant had alleged that the applicant is a thief, bribe
taker/receiver, a corrupt person and all sorts of attribution of criminality. It is because of
these allegations made against the applicant that he sued the Defendant for
defamation/libel. The Defendant had in his defence pleaded the defence of justification.
The learned trial Judge, at page 51 of his judgment rightly placed the burden of proving
these allegations of criminality and thus the defence of justification on the Defendant.
The Judge after examining the evidence before him, found as a fact that the applicant
confessed to receiving bribe. See pages 58 to 67 of the judgment, exhibit FAA 8. At page
59 of exhibit FAA 8, the trial Judge stated as follows:

“If plaintiff says that Baba Tunde in fighting for himself bribed him with
$100,000.00, who else can say he didn’t?” True to the scheme, Baba Tunde
who had confessed to a crime involving $1.9milliom on a tape in the possession of
plaintiff, was excluded from the charges. The video of his confession was never
shown to the public.

Bribery and corruption by and of public officers are a crime under section 239 (1)
and (2) of the Criminal Offences Act, 1960 (Act 29). Section 239 (1) and (2)
provides:

“(1) Every public officer or juror who commits corruption, or wilful oppression, or
extortion, in respect of the duties of his office, shall be guilty of a misdemeanour.

(2) Whoever corrupts any person in respect of any duties as a public officer or juror
shall be guilty of a misdemeanour.”

Page 23 of 98
At page 62 of the judgment, the Judge made a finding of fact. He stated that:

“I considered it established that plaintiff blackmails people he desires to destroy,

probably his enemies, or the enemies of his friends or partners, or persons loaded
with cash, whether legitimate or illegitimate, as the suspects in the gold scam
case, by catching them on tape. The tape is then shown to them. The tape on
those who pay up, are shelved, but those who refuse or are not able to pay are
help [sic] to the full glare of the public for reputational damage. Such conduct is
legally and morally wrong. It is evil. Based on the evidence, Defendant was
justified in calling plaintiff evil, criminal, corrupt, blackmailer and extortionist. Since
the contents of exhibit KAO1 has been established to be true and factual, all
comments made by Defendant based in relation to it is both justified and fair.”

The learned trial Judge then concluded at page 67 of exhibit FAA 8 that:

“I have concluded aforehand; based on exhibits KAO1, KAO3 and KAO4, that the
plaintiff engaged in the crime of bribe taking and bribe giving. A person who
commits a crime is a criminal, simpliciter. However, since every word uttered on a
different occasion ought to be assessed for their defamatory effect, I will assess
the alleged words to determine if they succeeded in actually defaming the plaintiff.

The facts and the evidence established the plaintiff as a self-confessed criminal,
so Defendant’s statement is factual and justified. Bribe taking is a dishonest,
fraudulent, cheating, extortionist, thieving, blackmailing, and a corrupt act;
besides being illegal. Plaintiff who has been established by the evidence as having
taken and given bribes could not have actually been defamed by those words”.

It is clear from the above that the learned trial Judge was speaking to the evidence placed
before him by the parties. He was making findings of fact and drawing inferences from
the evidence produced by the parties. The learned trial Judge was not speaking from
some extraneous matter or evidence and neither can it be reasonably supposed that he
was speaking from a bias point of view nor from some hatred or prejudice against the
applicant. Whether the findings made by the learned Judge have support from the

Page 24 of 98
evidence or not cannot be made by this court in the instant application for certiorari
where the record of evidence is not before this court and the fact that the applicant says
the Judge was bias is not borne out of the judgment. In the circumstances of this matter
and in the face of the absence of the evidence on record, this court cannot sincerely say
that the learned trial Judge was bias against the applicant.

[15]. In Republic v High Court (Financial Division), Accra; Ex parte Odonkor

(Executive Director of Economic and Organised Crime Office (EOCO), Bank of
Ghana & Ecobank Ghana Ltd Interested Parties) [2015-2016]1 SCGLR 312, this
court pointed out that:

“The grant of an order of certiorari is at the discretion of the court. Certiorari is a

special and residual remedy which is held in reserve and so, where there is an
equally effective alternative remedy, certiorari would be refused. See pages 318-
319 of the report.

Again, in Republic v High Court, Accra: Ex parte Rashid (Konadu Interested

Party) [2013-2014] 2SCGLR 1385 at 1394, it was pointed out that an applicant’s
conduct could disentitle the applicant to the discretionary remedy of certiorari and that
the existence of an alternative remedy is one of the factors that a court can rely on to
exercise its judgment against the grant of certiorari. In the instant matter, as already
pointed out, the alternative and the most potent remedy available to the applicant herein
is appeal and not certiorari. Let the applicant exploit that remedy.

Further, it was decided by this court in Republic v High Court, Ex parte Anyan
(Platinum Holdings-Interested Party) [2009] SCGLR 255, that the supervisory
jurisdiction of the court under article 132 of the 1992 Constitution is exercised only in the
manifestly plain, obvious and clear cases where there are patent and obvious errors of
law on the face of the record which error must go to the jurisdiction of the court so as to
make the decision of the court a nullity.

When a trial judge acts within his jurisdiction and pronounces on a matter, an error
committed by the judge which is not patent on the face of the record will not warrant

Page 25 of 98
certiorari to issue by way of remedy. Under the circumstances, the aggrieved party’s
remedy lies in an appeal.

In the case of Republic vs Court of Appeal, Accra; Ex parte Tsatsu Tsikata [2005-
2006] SCGLR 612, this court held that

(a). “the discretionary jurisdiction of the Supreme Court under article 132 of the 1992
Constitution should be exercised only in those manifestly plain and obvious cases where
there were patent errors of law on the face of the record, which either went to jurisdiction
or were so plain as to make the impugned decision a nullity. The error of law on which
the decision was founded, must therefore be fundamental, substantial, material, grave
or so serious as to go to the core or root of the matter complained of.”

b. “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 alleged must be fundamental, substantial,
material, grave or so serious as to go to the root of the matter. The error of law must be
one on which the decision depends. A minor, trifling, inconsequential or unimportant
error, or for that matter an 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 court’s supervisory intervention.”

[16]. CONCLUSION:

In conclusion, I am fully satisfied, after reading the judgment of Eric Baah JA, sitting as
an additional Judge at the High Court, from the beginning to the end, that there is nothing
in the said judgment, contrary to the assertion by the applicant herein, which shows that
the learned trial Judge was bias or exhibited any prejudice against the applicant in the
judgment delivered on the 15th March 2023. This court must guard against excessive
control of the High Court by the subtle invocation of our jurisdiction to do so through the
medium of our supervisory jurisdiction. For, the High Court, as we have it under our

Page 26 of 98
Constitutional arrangement, is neither an inferior or a lower court but is classified in
parallel terms as a superior court of judicature by the provisions of article 126(1)(a) of
the Constitution. The Supreme Court must therefore see through applications such as the
one currently under discussion by which almost every decision of the High Court is sought
to be challenged under the guise of lack of jurisdiction, non-observance of the rules of
natural justice, error of law on the face of the record and so forth.

It is the duty of this court to guard the jurisdiction of the High Court to hear all kinds of
civil and criminal cases unless the Constitution expressly forbids it. And where parties are
dissatisfied with decisions of the High Court, the remedy open to them is appeal as in this
case and not to pray this court to quash such judgments by resort to our supervisory
jurisdiction which appears to them to be a short-cut.

There is nothing on the face of the record to show that the High Court Judge did any of
the allegations attributed to him. I cannot conclude without referring to the re-statement
of the law by Date-Bah JSC, in the case of the Republic vs. High Court, Accra; Ex
parte Commission on Human Rights and Administrative Justice (Addo
Interested Party) [2003-2004] SCGLR 312 where the learned Justice stated 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, the
pleadings, if any, and the adjudication but not the evidence nor the reasons unless
the tribunal chose to incorporate them), the avenue for redress open to an
aggrieved party was an appeal, not judicial review. Therefore, certiorari 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
court’s jurisdiction, unless the court had acted ultra vires the Constitution or an
express statutory restriction validly imposed on it.

Page 27 of 98
 Policy requires that some errors of law by the High Court and the Court of Appeal
judges should only be appealable and not subject to judicial review. Otherwise
judicial review would supplant the system of appeals, which has been carefully laid
down in the 1992 Constitution and the Courts Act, 1993 (Act 459), as amended by
the Courts (Amendment) Act, 2002 (Act 620) … We believe there to be a sound
policy reason for keeping narrow the category of errors by the superior courts that
can be made subject to judicial review. We consider, therefore, that the post –
Anisminic cases in England dealing with inferior courts and administrative
authorities, should be treated with caution with regard to their relevance to judicial
review of decisions of the superior courts in Ghana…. Thus, in our view, errors of
law made by a superior court in Ghana should not ordinarily take the court outside
its jurisdiction, if it had jurisdiction at the start of the inquiry. This proposition of
law may be in conflict with Anisminic. This court is, however, not obliged to follow
the persuasive authority of Anisminic on this issue. Although the Supreme Court
has approved of Anisminic in broad terms, this approval has been given alongside
the more restrictive formulations that we have highlighted above… To the extent
that this re-statement of the law is inconsistent with any previous decision of the
Supreme Court, this court should be regarded as departing from its previous
decision or decisions concerned, pursuant to article 129(3) of the 1992
Constitution. Any previous decisions of other courts inconsistent with this re-
statement are overruled.

And I also adopt the re-statement of the law again by Date Bah JSC in Republic vs.
High Court (Commercial Division) Accra; Ex parte The Trust Bank Ltd.
(Ampomah Photo Lab Ltd. & Three Others Interested Parties) [2009] SCGLR
164 where after analysing the authorities, the learned Justice held at page 169 to 170
of the report that:

“The current law on when the prerogative writs will be available from the Supreme
Court to supervise the superior courts in respect of their errors of law was re-
stated and then fine-tuned in the cases of Republic vs. High Court, Accra; Ex parte

Page 28 of 98
 Commission on Human Rights and Administrative Justice (Addo Interested Party)
[2003-2004] 1 SCGLR 312 and Republic vs Court of Appeal, Accra Ex parte Tsatsu
Tsikata [2005-2006] SCGLR 612, respectively. In my view, the combined effect of
these two authorities results in a statement of law which is desirable and should
be re-affirmed. This court should endeavour not to backslide into excessive
supervisory intervention over the High Court in relation to its errors of law. Appeals
are better suited for resolving errors of law…The combined effect of these two
authorities, it seems to me, is that even where a High Court makes a non-
jurisdictional error which is patent on the face of the record, it will not be a ground
for the exercise of the supervisory jurisdiction of this court unless the error is
fundamental. Only fundamental non-jurisdictional error can found the exercise of
this court’s supervisory jurisdiction.”

I will therefore vote to dismiss the application for certiorari to issue against the judgment
of Eric Baah JA. delivered on the 15th March 2023.

S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)

PROF. H. J. A. N. MENSA-BONSU (MRS)

(JUSTICE OF THE SUPREME COURT)

Page 29 of 98
CONCURRING OPINION

SACKEY TORKORNOO CJ:

[1] Clearly, this is a case that has excited extraordinary depths of consideration of the
ambit of the supervisory jurisdiction of the Supreme Court, as can be seen from the
number of opinions expressed in this ruling. This is not surprising, since the application
yields up an extraordinary situation for consideration. We are being invited to quash a
69 page judgment on account of it being infected by bias ostensibly found within three
pages - pages 56, 64 and 65 of the judgment.

[2] I am particularly piqued and disturbed by this invitation not only because judgments
must necessarily be treated as sacrosanct, but also because the supervisory jurisdiction
of this court conferred in article 132 of the 1992 Constitution is mirrored by a parallel
jurisdiction conferred by article 141 of the 1992 Constitution on the high court, over
lower courts and inferior tribunals. It is therefore critical that this decision does not
open a Pandora box out of which will jump inordinate applications to the high court to
quash judgments that have been meticulously arrived at following trials that by
themselves, did not suffer any jurisdictional or non-jurisdictional errors fundamentally
bereft of legality, which are the accepted scope for the application of the remedy of
certiorari.

[3] I have read the expositions of my brothers Kulendi, Amadu and Asiedu JJSC and
defer to their rendition of the background and contexts of the suit. There is no need to
spell out the same details in my opinion. I need to set down my own evaluations
because they are premised on a position that I do not find articulated in all three
opinions. The conclusion of my evaluation is to refuse the application

Since the facts and legal contexts of the case have been sufficiently set out by my
brothers, I will delve straight into the evaluative part of this ruling.

Page 30 of 98
Jurisdictional Error

[4]I am satisfied that the jurisdictional issue raised by the Applicant is sufficiently
answered by the attention drawn to section 104 of the Court’s Act 1993 Act 459
in the opinions of all three of my brothers. With the letter issued by the Honorable Chief
Justice to the trial judge to adjudicate the suit, the submissions on alleged ex parte
communication with the Chief Justice totally misconceive the duty placed on the Chief
justice to exercise a wide breadth of discretion to ensure that cases are expeditiously
disposed off.

Apparent or real likelihood of bias and impartiality on the part of the Judge

[5] This salient ground for consideration calls for a determination of whether the
judgment is infected by bias, dislike and prejudice such as to render it a nullity that
must be quashed by certiorari. The Applicant urges through the affidavit supporting his
application that, ‘in large portions of his judgment, the Judge showed unequivocally to
any dispassionate observer that prior to sitting on the defamation suit, he harbored
firm-held disagreements and disapproval of the work of the applicant and developed
deep-seated dislike for the applicant’. He also urges that the Judge suffered from a real
likelihood of bias against the applicant and was therefore not impartial in his
consideration of the case.

[6] Significantly, the applicant does not submit that he detected this bias during the
hearing of the case or at any time before judgment. Neither does he submit that since
the judgment, it has come to his notice that the Judge had a relationship with a party
or the subject matter of the suit that would make him suffer from a real likelihood of
bias, as happened in the case of Re Pinochet [1999] All ER 577 cited to us. Thus
the entire evaluation before us is a determination of whether the judgment, specifically
the impugned portions thereof, reflected dislike of the applicant’s person which dislike
existed before the judgment, or prior disagreement with the applicant’s work, or prior
disapproval of the Applicant’s work, such that the Judge could not have delivered the
judgment with impartiality and freedom from bias. This is a novel call to distil the

Page 31 of 98
likelihood of bias and prejudice out of the language in a judgment, when there is no
extraneous evidence of inappropriate connection between the judge and a party, or the
subject matter of dispute,

[7] The applicant cited from authorities such as Republic v High Court, Kumasi; Ex
Parte Mobil Oil (Ghana) Ltd, Hagan (Interested Party) 2005-2006] SCGLR
312 in which this court identified the kernel of the quality of bias that must disqualify a
judge from adjudicating a case. This is whenever circumstances pointed to a real
likelihood of bias, by which was meant ‘an operative prejudice whether conscious or
unconscious in relation to a party or an issue before him. This would apply in particular
where the circumstances pointed to a situation where a decision might be affected by
pre-conceived views’.

[8] He also urged that the issue of the likelihood of bias becomes operative where it
can be established that the ‘judicial officer has in fact 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’ Amponsah v Minister of Defence
[1960] GLR 140

These are the established factors for identifying bias and prejudice, a situation distinctly
different from the circumstances of the grounds of the application before us. We can
however not balk from the novelty of the case at hand, because the categories of
factual contexts in disputes can never be closed.

Evaluation

[9] Prior to evaluating this possibility of pre-conceptions, prejudice, dislike and

disapproval being expressed in the judgment, it must be appreciated that the Applicant
and his work is well known to anyone who cares to listen to news in this country. An
expression of such knowledge cannot therefore be used to determine prejudice. And
indeed, the doctrine of necessity dictates that despite any work done by the Applicant,
whenever he is in litigation with anyone, that litigation will be conducted before the

Page 32 of 98
courts of the country. Such is the constitutional obligation and mandate placed on the
judiciary in article 124 of the 1992 Constitution.

[10] This is a case in which the foundation of the suit before the high court
necessitated a determination of whether a litany of expressions used by the Interested
Party concerning the Applicant were defamatory and meant and could only be
understood in their natural and ordinary meanings to mean the following:

i. The plaintiff is a self-confessed criminal

ii. The plaintiff is a murderer and he killed a former Member of Parliament,
Joseph Boakye Danquah Adu.
iii. The plaintiff is an abettor of the murder of several Chinese nationals
iv. The plaintiff is an evil and dishonest person
v. The plaintiff is a thief
vi. The plaintiff is suffering from mental derangement
vii. The plaintiff cheated his way through law school.
viii. The plaintiff promotes illegal mining
ix. The plaintiff is a fraudster
x. The plaintiff is an extortionist
xi. The plaintiff is a blackmailer
xii. The plaintiff is corrupt
xiii. The plaintiff corrupts public officials
xiv. The plaintiff engages in tax evasion
xv. The plaintiff engages in custom duty evasion
xvi. The plaintiff takes bribes to influence the outcome of his investigative
journalistic work.
xvii. The plaintiff impersonates as a lawyer
xviii. The plaintiff engages in criminal assault
xix. The plaintiff engages in threat of death
xx. The plaintiff engages in threat of harm
xxi. The plaintiff is a land guard.

Page 33 of 98
 xxii. The plaintiff engages in illegal land grabbing
xxiii. The plaintiff interferes with the administration of justice
xxiv. The plaintiff is odious and contemptible person
xxv. The plaintiff is a cheat
xxvi. The plaintiff molest children
xxvii. The plaintiff inordinately discredits foreign powers
xxviii. The plaintiff terrorizes people
xxix. The plaintiff engages in fraudulent acts and extortion with his father
xxx. The plaintiff engages in fraudulent acts and extortion with his lawyer
xxxi. The plaintiff is an email and messages hacker

[11] From page 5 of the record of the judgment before us, the defence of the
Interested Party was that the words were factual, true or his opinions of the Applicant,
and were intended to expose the malicious intentions of the Applicant in doing the work
of exposing corruption. Further, the words were not spoken deliberately to injure the
image and business reputation of the plaintiff. He claimed that since the words were
true, they could not have occasioned distress and embarrassment to the reputation of
the plaintiff. Further, the words were fair and justified.

[12] It must be appreciated from the settled law on the tort of defamation that truth
and justification are critical defences to a charge of defamation. The court’s clear duty
was therefore to determine as a matter of fact and law from the evidence brought to
court, whether or not the Interested Party established the truth in his impugned words
and or justification for using them. It must also be noted that these are accusations
that largely exist in the domain of offences in criminal law, and so must be proved
beyond reasonable doubt, as per the directions of the Evidence Act, 1975 NRCD 323
if a court is to find them to be truthful or justified.

[13]This evaluation is the inherent legal exercise undertaken in the adjudicatory

process that ended in the impugned judgment before us. Thus, to the extent that the
court remained within the walls of considering the subject of defamation regarding the
Page 34 of 98
thirty one expressions distilled as defamatory, he cannot be said to have gone out of
the core work he was called on to do in evaluating the facts, claims and law before him.
In Republic v High Court (Criminal Division1) Ex Parte Stephen Kwabena
Opuni, Attorney General (Interested Party) Civil Motion No J7/20/2021, this
necessity for appreciating the legality of the inherent duty discharged by a Judge,
despite whatever errors of law may be found in his decision, was emphasized in my
opinion delivered in the review application submitted to this court.

[14] As much as bias, likelihood of bias, and possibility of bias have no place in the
process of adjudication, and it is the duty of this court under article 132 if the 1992
Constitution to protect any one before the superior courts from the discolorative effect
of bias and partiality, the call to set aside a judgment given after a trial is no mean one.
To my mind, it stands at the very top of the extreme measures that a court may take to
keep the streams of justice pure. The court must hesitate to embark on this exercise
unless the said exercise is the only measure available for the discharge of the duty
conferred on this court in article 132, and this position must go for the high court in
the discharge of their duty under article 141.

And it is imperative to remember that in the discharge of the duty under article 132,
this court is not being called on to evaluate the correctness or otherwise of the
determinations of the court below. Our duty is to determine whether the judgment is so
infected with, and indicative of qualities of jurisdictional errors, or non-jurisdictional
errors that are fundamental enough to deprive the judgment of legality. See Republic
v Court of Appeal, Accra; Ex Parte Ghana Cable Ltd (Barclays Bank of Ghana
Interested Party) [2005-2006] SCGLR 107 cited by counsel for Respondent.

[15] It must also be pointed out that in the matter before us, the bias is supposed to
be gleaned from the language of the judgment. So the significant conundrum we have
to resolve is whether the words complained of could only have risen out of bias rather
than the inherent duty of the Judge to evaluate the issues before him within the context
of law and facts he was called on to consider. In order to do this, we must keep a close
view of the list of thirty one expressions that he had a duty to determine truth or
Page 35 of 98
justification for, from the evidence placed before him. The crudeness or elegance of the
language the judge could employ in the judgment from which the complaint is arising
must be considered in the light of the burden of evaluation he bore. That burden,
especially in a case of defamation, is discharged with evaluation of the words identified
as defamatory.

[16] The well settled position on the law of supervisory jurisdiction in the form of
certiorari, is that by its very nature, certiorari is granted only to quash a judicial decision
from the record of decisions because the decision constitutes or perpetrates an illegality
or nullity. The essential character of a certiorari application avoids examining the merits
of an impugned decision and focuses on whether the decision is void by reason of the
fundamental error appearing patently on the face of the record, or the decision is void
because of an absence or excess of jurisdiction in the public body that took the
impugned decision.

Reference is made to the articulation of these principles in the decisions of this court in
Republic v High Court, Accra: Ex Parte Commission on Human Rights and
Administrative Justice (Addo Interested Party) [2003 – 2004] 1 SC GLR 312;
Mansah & Others v Adutwumwaa & Others [2013 – 2014] 1 SCGLR 38;
Republic v. High Court, Kumasi, Ex-parte Bank of Ghana and Others, [Sefa
and Asiedu-Interested Parties] (No. 1) Republic v High Court, Kumasi, Ex-
parte Bank of Ghana and Others (Gyamfi and Others Interested Parties No.
1) Consolidated Suit [2013 – 2014] 1 SCGLR 477

[17]A classic statement of this position was rendered in the decision in Republic v
Court of Appeal; ex parte Tsatsu Tsikata [2005-2006] SCGLR 612 at 619 in
these words - ‘the supervisory jurisdiction (of the Supreme Court) under article 132 of
the 1992 Constitution, should be exercised only in those manifestly plain and obvious
cases where there were patent errors of law on the face of the record, which errors
either went 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 must be fundamental,

Page 36 of 98
substantial, material, grave or so serious as to go to the core or root of the matter. The
error of law must be one on which the decision depends’’

See also Republic v High Court Accra; Ex Parte Soku and Another [1996-97]
SCGLR 525 in which this court clarified that the nature of the error of law that can
invite the supervisory jurisdiction of this court must be ‘such an error as to make the
decision a nullity’.

[18] The remedy of certiorari is also discretionary. See Appenteng (Decd) In re

Republic v High Court, Accra; Ex parte Appenteng [2010] SCGLR 327. It is well
understood that a court of competent jurisdiction may decide questions before it rightly
or wrongly, and that the procedure for correcting wrong decisions lies in an appeal and
not by grant of certiorari to quash the decision. See Republic v Accra Circuit Court;
ex parte Appiah [1982-83] GLR 129 (at 143)

This is therefore the odyssey that this court must embark on in order to make the
difficult determination of whether to quash the judgment brought to us or to uphold its
validity.

[19] The Applicant is specifically complaining about the words and context of the
judgment found on pages 56, 64 and 65 of the 69 page judgment.

Counsel for Applicant urges inter alia in his Statement of Case that ‘statements made by
the trial judge which any reasonable observer would understand that the judge
harbored a long time prejudice against the applicant.’ This was supported by words
found on page 64 to the effect that inasmuch as corruption rating agencies have never
been kind to Ghana in their ratings, it is a matter ‘shrouded in secrecy’ how the
Applicant chooses persons he investigates for corrupt acts. The Judge went on to say
that ‘As things stand, persons selected may just be the unlucky ones since some of
those not selected may be worse than those selected.’

Page 37 of 98
[20] I must respectfully decline to agree that this statement reveals ‘a long time
prejudice against the applicant’. As a reasonable reader of the judgment, these words
only reflect rumination on a point being considered by the court on that page, being the
exposition of corruption by diverse institutions in the global space, and nothing more
besides. And the said rumination is not out of place in the judgment at hand, because
the central issues considered included whether the defendant was being truthful and
was justified in calling the applicant corrupt for being selective in the choice of how he
made public the results of his investigation. The court had been called on to evaluate
specific acts that had been placed before the court. This comment was raised in the
middle of that evaluation.

[21] The second passage on page 64 attacked as reflecting bias describes the work of
applicant as ‘investigative antics’, and presents that these ‘antics’ can cause the removal
of a president. The judge goes on to describe this quality and context of the Applicant’s
work as ‘investigative terrorism’.

It must be noted that the twenty eighth alleged meaning of the Interested Party’s
words set out in the judgment reads:

xxviii. The plaintiff terrorizes people

Thus an evaluation of whether or not the Applicant’s work ‘terrorizes people’ and
constitutes ‘terrorism’, is not out of place within the judgment. As much as a finding on
terrorism required the evaluation that an act which is a criminal offence has been
proved, the Judge cannot be said to have imported a prejudicial evaluation of what the
applicant’s work stands for outside of the case at hand, or beyond the tall list of thirty
one summaries of meanings, which stood in issue before the Judge, when he evaluated
that there was justification for alleging terrorism in the Applicant’s work. As to whether
his evaluation was erroneous in law or against the weight of evidence, is itself a matter
of law. However, it must be appreciated that in an application for certiorari, this court
does not concern itself with the legal merits of the matter reviewed, and as the final
court, this court must be careful to keep away from a consideration of the quality of

Page 38 of 98
legal evaluation done in the judgment. Our current work must only concern itself with
the legality and validity of the proceedings themselves, and decision complained off.

[22] What must weigh heavily is the consideration whether the use of the words ‘antics’
and ‘investigative terrorism’ took the Judge out of the role of independent arbiter of the
cause of action in defamation, and the issue whether the words and expressions used
by the Interested Party were defamatory, especially in view of defendant’s position that
there was truth and justification in the words used. The defence of ‘truth and
justification’ compelled the trial court to evaluate whether the plaintiff does indeed
conduct his work in a manner that fits into that description of ‘terrorizing’. It therefore
behoves recognition that when the Judge arrived at the conclusion that the work
constituted ‘investigative terrorism’, he was well within his evaluative duty. The strong
words used in the judgment were premised on the strong words presented as
defamatory. See majority decision in Republic v High Court (Criminal Division1)
Ex Parte Stephen Kwabena Opuni, Attorney General (Interested Party) Civil
Motion No J7/20/2021

[23] The applicant further complains about an evaluation found on page 65 of the
judgment. The trial judge concluded the impugned paragraph with the words ‘in all
honesty, the plot by plaintiff and his group in exhibit KOA 4 has nothing to do with
journalism. It was a scheme for grabbing power by the back door and satisfying
plaintiff’s insatiable taste for power, publicity, fame, awards, and rewards’.

The evaluation that a party before a court is involved in a plot, that the plot was a back
door scheme for grabbing power, and that the person has an insatiable taste for
anything, including power, publicity, fame, awards, and rewards would at face value,
seem not to be an evaluation that a court can make. On face value, it sounds like a
personal opinion. However, it must be remembered that the duty thrust on the court
was to determine whether the evidence presented to him was reflective of the thirty
one expressions distilled out of the extensive oral publications of the Interested Party.
This was the dispute in issue that the court had to resolve. The court’s evaluation
therefore had to remain in the context of whether any of the list of thirty one
Page 39 of 98
expressions that the Interested Party had admitted to, were true or justified by the
opinions and expressions set out in the evidence and processes before the court. An
example is the 27th meaning listed which the Judge was called on to evaluate. It reads:

xxvii. The plaintiff inordinately discredits foreign powers

[24] How (un)related to a conclusion that there is an ‘insatiable’ desire for power is the
prior evaluation that the evidence reflects truth or justification for a position that the
Applicant does indeed take steps to discredit actors in governance of nations in a
manner that is capable of removing them from their positions? And as alleged, he has
done so on more than one occasion? This is an extremely uncomfortable context of
presentations, and yet, this is what this case is about. To my mind, this 27th expression
in the list, for example, placed a duty on the judge to determine whether the Applicant
had an ‘out of the ordinary’ disposition towards destabilizing governing institutions of
states.

[25] The context of evaluation by the Judge was grounded on investigations of persons
with positions of power in States, and the ability to influence positions of power from
the evidence that had been brought to court. My humble view is that as long as the
Judge’s evaluation can find context within the record of facts before him and the law of
defamation, he could not be said to have shown obvious dislike for, and prejudice
against the Applicant when he used the expression ‘insatiable taste’. Prejudice must
arise before and actuate the act complained of, and not just be inferred from the
quality of work done in the adjudicatory process. Whether there was proof or not of the
expressed ‘insatiable taste’ would require recourse to evaluation of the weight of
evidence, and that is the role of appellate judges.

[26] Last but not the least, the Applicant urges that the Judge’s alleged ‘judicial notice’
of fees charged for the Applicant’s showings was not backed by the records of the case.
That to my mind, can only be settled by a review of the records of the whole case. And
the records of the case are not before us.

Page 40 of 98
[27] In the four complaints dispersed over 69 pages therefore, I do not see any of the
impugned contexts to be out of place within the list of thirty one expressions plus
claims, defences, issues and evidence of defamation that the court had a duty to
consider. I think that the foundational test that must be employed in this novel call to
distil the likelihood of bias and prejudice out of the language in a judgment, when there
is no extraneous evidence of inappropriate connection between the Judge and a party,
or the subject matter of dispute, is whether the impugned inelegant or opinionated
evidence is out of place within the core duty that the court was called on to discharge.

[28] I would therefore say clearly that whether or not the Judge was in error by
evaluating that the Interested Person’s calling of the Applicant as a blackmailer,
criminal, etc, (as unsavory as they sound), is true and justified, will depend on the
quality of evidence that the Judge had before him to support those opinions, because
the very case being tried was essentially about these very unsavory descriptions, and
whether or not they were true or justified. Indeed, the very nature of cases of
defamation center on unsavory words.

Whether or not his evaluations constituted errors of law or were against the weight of
evidence before the court is a consideration not allowed to a court undertaking the
supervisory jurisdiction, and this is especially so, because this court in its supervisory
jurisdiction does not have the benefit of the evidence and record of proceedings that
the lower court was called on to consider.

Conclusion

[29]My conclusion is that the issue of the sustainability of the Judge’s words used to
describe the Applicant can only be a matter determinable by the appellate court. It is
not the place of this court to question the basis for any findings and conclusions that
have been reached by a trial Judge when the court does not have the full record of
proceedings. That has never been the position of the law. In order to question or
assess the correctness or otherwise of any findings of fact, statement of opinions, and
conclusions, this court, as a matter of law, ought to be seised with the full record of

Page 41 of 98
proceedings. That is the policy reason behind the law that where a party seeks to
question conclusions reached by a trial Judge, the process of appeal is the hallowed
method to do so. I would dismiss the application for certiorari as unsupported by the
material before us.

G. SACKEY TORKORNOO (MRS.)

(CHIEF JUSTICE)

DISSENTING OPINION
KULENDI JSC:

INTRODUCTION:

1. My Lords I may, perhaps reference Shakespeare, in the opening scene of Richard II

where he wrote as follows:
“The purest treasure mortal times afford is spotless reputation; that away,
men are but gilded loam, or painted clay ... Mine honour is my life. Both
grow in one. Take honour from me, and my life is done.” (I.i.177–9, 182–
3)

2. With these famous lines of Shakespeare echoing in my mind, coupled with my

reflections on the ends of justice, the imperatives of due process, the responsible use
of judicial power and the scope of this Court’s supervisory jurisdiction under Article
132 of the 1992 Constitution, I have read and tried to come to terms with the
reasoning and conclusions of my venerable and respected brother and sisters in the
majority but have found myself unable to agree with them and hence, this dissent. In
my respectful opinion, the plaint of the Applicant ought to have found favor in the
exercise of our supervisory jurisdiction.

Page 42 of 98
BACKGROUND:

3. This present legal banter is an escalation of the Applicant’s quest to salvage his
reputation, which he alleges, has been filched by the Interested Party. In these
proceedings, the Applicant invokes our supervisory jurisdiction pursuant to Article
132 of the Constitution and prays for an order of certiorari to quash the judgment
of the High Court, coram: His Lordship Eric Baah J.A dated 15th March, 2023 in Suit
No.: GJ/892/2018 entitled: Anas Aremeyaw Anas vrs. Kennedy Ohene Agyapong.

4. The contentions that led up to the instant application are that the Applicant, who is
described in the processes before us as “a lawyer and an internationally acclaimed
investigative journalist” of several years standing issued, a writ of summons and
accompanying statement of claim against the Interested Party for alleged libelous
publications which Applicant contends was defamatory of him.

5. The writ which was issued on or about the 18th day of June 2018 was originally
placed before the High Court (General Jurisdiction Court 2) Accra, Coram: His
Lordship Justice Daniel Mensah J, who was later transferred from the Court. His
Lordship Justice Eric Baah J.A. assumed trial of the case on relieving duties in the
said Court, adopted proceedings in the suit and continued the hearing of the case.
Even though a substantive judge was later assigned to High Court (General
Jurisdiction 2), a directive from the then Chief Justice Anin Yeboah CJ, authorized
His Lordship Justice Eric Baah J.A. to continue to hear the case to its conclusion.

6. The court notes of 1st December, 2021 references the directive in the following
words:
“I justice Eric Baah, J.A, siting with additional responsibility as a High Court
Judge, began the case before I was replaced by a substantive judge at GJ2, I
left this case, which was then and still is a part-heard. I however received a

Page 43 of 98
 directive from the Honourable Chief Justice dated 27/10/2021, by which I was
directed to continue the case to its conclusion. The directive appears to be
based on a petition to that effect by Counsel for defendant, on behalf of the
defendant. A copy of the petition is attached to the directive. It was expected
that the plaintiff or his counsel would be served a copy of the petition and the
directive. That appears not to have been the case. A photocopy of the directive
is on the docket of the court. Plaintiff's counsel may apply io the Registrar for
a copy of same. At the prayer of counsel for defendant, the suit is adjourned
to 2nd December, 2021, at 9:00 am prompt for continuation of cross
examination of defendant.”

7. The petition that occasioned the directive from the Chief Justice stated in part as
follows:
“ My Lord Chief Justice,

PETITION FOR AN ORDER FOR JUSTICE ERIC BAAH, JA TO CONTINUE AND

COMPLETE PART-HEARD CASE INTITLED: ANAS AREMEYAW ANAS VRS
HON. KENNEDY AGYAPONG (SUIT NO: GJ/892/2018)

We write as Solicitors for and on behalf of Defendant, hereinafter referred

to as our Client.

My Lord, the above suit which was instituted in 2018 remained unheard
until the arrival of the above-named Judge. He began taking evidence on
the case and has so far heard the evidence of the Plaintiff and the
Defendant. He-has heard part of the cross-examination of the defendant.
He has observed the demeanor of the parties and is abreast with the details
of the case, including its nature and scope. I am aware that a new Judge
has been posted to the High Court, General Jurisdiction Division 2. It will
take some time for the record of proceedings to be put together for the
new Judge. She will need further time to study the record to familiarize

Page 44 of 98
 herself with it to enable her to effectively continue it. She also does not
have the benefit of the demeanour of the witnesses so far.

Respectfully, it is my view that it will be quicker and more efficient for

Justice Baah to continue the case than the new Judge.

In the circumstance, I respectfully and earnestly pray you to order the

previous Judge to continue the case.

Thank you.

Yours sincerely”

8. Flowing from the above, it can be reasonably inferred that the directive to His
Lordship Eric Baah J.A. was to achieve speedy and effective justice, avoid delays
and unnecessary expense. Cross-examination had already begun before Eric Baah
J.A and it was prudent that he continued to hear the case to its finality. The trial
therefore resumed until the court delivered its judgment on 15th March, 2022.

9. The Applicant takes exception to the language adopted by the trial judge in the
judgment and has deposed in paragraphs 23, 24 and 25 of the affidavit in support
of the instant application as follows:

“23. Justice Eric Baah, in large portions of his judgment, showed

unequivocally to any dispassionate observer that prior to sitting on the
applicant's defamation suit he harboured firm-held disagreements and
disapproval of the work of the applicant and developed deep-seated dislike
for the applicant.

Page 45 of 98
 24. It is apparent on a casual reading of the judgment of Justice Eric Baah
that he suffered from a real likelihood of bias against the applicant and
therefore he was not impartial in his consideration of the case.

25. The judgment of a judge who suffered a real likelihood of bias in a case
ought to be quashed and the affected party given the opportunity for his
case to be impartially heard and determined.”

10. Aside from the above misgivings about the judgment of 15th March, 2023, it is also
contended by the Applicant that the trial judge lacked jurisdiction to hear the case
in the first place.

Applicant’s Case:

11. The Applicant has argued that it was wrong for the Interested Party to petition His
Lordship the Chief Justice for a directive to allow His Lordship Justice Eric Baah J.A.
to continue to hear the case without notice to him. The Applicant further raised an
issue about not being copied in the directive by His Lordship the Chief Justice
directing or authorizing His Lordship Justice Eric Baah J.A. to continue to hear the
case. It is also argued that by settled practice, His Lordship Eric Baah J.A., being a
relieving judge, was bereft of jurisdiction to hear a case that has been assigned to
a court in which he was not a substantive judge. What the Applicant appears to be
saying is that, once a substantive judge was appointed to the court, His Lordship
Eric Baah J.A. ceased to have jurisdiction to hear the case.

12. In addition to the above, the Applicant says that the trial judge embarked on a tirade
against the investigative methods of the Applicant, when the case was not about
the Applicant’s professional conduct and, that, it is apparent that at all material

Page 46 of 98
 times, His Lordship Justice Eric Baah J.A. harbored personal dislike, prejudice and
bias against Applicant.

Respondent’s Case:

13. The Respondent is opposed to the motion and has argued that any party to a suit
may petition the Chief Justice to make a request that the judge be allowed to
conclude hearing of a case for expeditious trial and in the interest of justice. He
argues further that the Chief Justice was within his administrative rights to give a
directive to a judge to continue hearing a case. The Respondent therefore submits
that the jurisdiction of the court is not invalidated merely because a party was not
put in copy of a petition and in any event, that section 104(1) of the Courts Act,
1993 (Act 459) permits the Chief Justice to suo moto or on application by a party
allow a judge to continue with a matter even after transfer to a different court in
the interest of justice.

14. The interested party has further argued that the plaints of the Applicant about the
pronouncements made in the judgment are better addressed through appeal and
not by the invocation of the supervisory jurisdiction of this Court. Since the Applicant
has filed two notices of appeal against the judgment, the recourse to this Court is a
mere forum shopping.

GROUNDS FOR APPLICATION

15. On the face of the motion paper, the instant application is premised on the grounds
of absence of jurisdiction and a breach of the rule of natural justice stemming from
the alleged existence of an apparent or real likelihood of bias.

Page 47 of 98
ISSUE OF ABSENCE OF JURISDICTION

16. We have carefully considered the plaint of the Applicant on the above issue and see
no merit in same. Applicant has argued that as a relieving judge, the trial judge
lacked jurisdiction to continue to hear the case once a substantive judge was
appointed to the Court which the case was originally assigned to.

17. The Chief Justice, as head of the judiciary, is clothed with the administrative
authority to direct that a specific case be handled by another judge or another court
of competent jurisdiction. This is evident in Section 104 of the Court’s Act, which
states as follows:

“Section 104- Power to Transfer by the Chief Justice.

(1)Subject to the provisions of the Constitution, the Chief Justice may

by order under his hand transfer a case at any stage of the
proceedings from any Judge or Magistrate to any other Judge or
Magistrate and from one court to another court of competent
jurisdiction at any time or stage of the proceedings and either with
or without an application from any of the parties to the
proceedings.[As amended by the Courts (Amendment) Act, 2002 (Act
620), sch. to s.7]”

18. The above aside, the constitutional and statutory provisions regulating the various
courts not only make the Chief Justice a member of all courts in Ghana, but further
prescribe that all courts shall be additionally composed of such other justices of the
Superior Courts as the Chief Justice may appoint. Consequently, the appointment of
Eric Baah J.A as additional High Court judge on relieving duties was lawful and so
was the directive to hear the case to its finality.

Page 48 of 98
19. The Applicant also takes issue with the refusal or neglect on the part of the lawyer
for the Interested party to notify him of the petition made to the Chief Justice to
maintain His Lordship Justice Eric Baah, as judge for the purposes of concluding the
hearing of the case and delivering judgment over same. The pith of this issue,
ostensibly, is that in failing to notify the Applicant of the said petition, he was
deprived of the opportunity to offer a contrasting view to the request made.

20. In my respectful view, the failure, neglect and/or refusal to notify the Applicant of
the petition is not best practice because to the extent that the Applicant was party
to the proceedings and will be affected by a decision on the trial, it is proper
administrative practice that the Applicant be notified as a matter of transparency
and due process, of any request and/or contingencies that would occasion the
exercise of an administrative discretion by the Chief Justice in respect of the trial.
This notwithstanding, we find untenable, the Applicant’s belated protest to the
manner in which the Interested Party’s petition for the retention of the trial judge
was handled.

21. Significantly, the Applicant, did not protest the failure to notify him timeously.
Besides, when the petition and the directive of the Chief Justice came to the
Applicant’s attention, he did not object to the directive by the Chief Justice. On the
contrary, the Applicant cooperated in the continuation of the hearing of the case.
Infact, the trial judge directed Applicant to apply for a copy of the directive and the
petition that occasioned the directive. If Applicant genuinely had opposition to the
trial judge’s continuation of the suit, he should have raised the objection timeously.

22. In a judgment of this court dated 4th May, 2022 in Civil Appeal No.: J4/73/2021
entitled: Kofi Amofa Kusi vrs. Afia Amankwah Adarkwah, we had cause to caution
litigants who default in taking objections only to spring last-minute surprises to
impugn decisions of a court, when we stated as follows:
Page 49 of 98
 “objections must be raised timeously and a litigant who neglects,
fails and/or refuses to raise objections timeously risks being held to
have forfeited the opportunity or the right to object”

23. From the processes before us, the trial judge had already taken evidence of the
Plaintiff’s case and had heard a substantial portion of the evidence of both parties.
He had observed the demeanor of the parties and was abreast with the details of
the case. It was thus prudent and a reasonable exercise of administrative discretion
to permit him to continue to hear the case to its conclusion. The Chief Justice, having
acted within his administrative powers in issuing the directive for the trial judge to
continue to hear the case to its finality, this cannot constitute a basis for the lack of
jurisdiction in the Court. I therefore find that this ground is bereft of any merit, and
same is accordingly dismissed.

ISSUE OF BIAS

24. The grounds upon which one may invoke our supervisory jurisdiction are settled and
they are as follows:
a. a breach of the principles of natural justice;
b. error of law apparent on the face of the record;
c. excess or want of jurisdiction; or
d. the Wenesbury principle of unreasonableness.

25. The application is premised primarily on an allegation of the breach of the rules of
natural justice. The principles of natural justice are two-fold. These are:
a. the right to be given a fair hearing, otherwise known as the audi
alteram partem rule; and

Page 50 of 98
 b. the rule against bias, otherwise known as nemo judex in causa sua.

26. In my view, the circumstances of this case implicate the second head of the rule of
natural justice. Accordingly, I shall proceed to delve into the intricacies of this ground
to ascertain whether the trial judge was actuated by bias in adjudicating the case
and for which reason we ought to quash the said judgment.

27. Bias, whenever operative, detracts from a judge’s judicial oath to be objective and
impartial in the discharge of his or her duties. It is often actuated by self-interest
and fueled by an operative prejudice, preconceived opinion, a predisposition or a
predetermination to decide the case in a particular manner without being open
minded.

28. Although originally a common law rule, the importance of the rule against bias finds
itself in our judicial oath by which judges are to “truly and faithfully perform the
functions of [their] office without fear or favour, affection or ill-will”. This rule is to
ensure public confidence in the impartiality of judges and the adjudicatory process.
This is because not only must justice be done, but it must manifestly and
undoubtedly, be seen to be done.

29. Accordingly, in Republic vrs. High Court, Kumasi; Ex Parte Mobil Oil (Ghana)
Ltd Hagan (Interested Party) [2005-2006] SCGLR 312, this Court stated
that:
“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 relation to a party or
an issue before him. That would apply in particular where the

Page 51 of 98
 circumstances pointed to a situation where a decision might be
affected by pre-conceived views.” (emphasis mine)

See also: Amadu V Mohammed [2007-2008] SCGLR 58 At 59; Nana

Yeboa-Kodie Asare II & 1 Or. V Nana Kwaku Addai & 7 Ors Unreported,
[Motion No.: J7/20/2014], Supreme Court, Dated 12/02/2015.

30. The law is that a judge is disqualified from adjudicating a case in which he has a
personal, proprietary or financial interest or in which he is predisposed or
predetermined or prejudiced to adjudicate the case in a manner that does not
accord with the sanctity of justice or where there exists a real likelihood of bias. In
such a case, this court will be within its powers to grant an order of prohibition or
injunction to prevent such a judge from adjudicating such matters or an order of
certiorari to quash a resultant decision or order arising therefrom.

31. I must hasten to emphasize that the hallowed office of the judge requires that the
judge’s individual conduct does not injure public confidence or trust in the integrity
of the judicial process. Consequently, where the judge, whether through his actions
or inactions, engenders a situation where reasonable members of the society would
have cause to doubt his objectivity, neutrality or evenhandedness in adjudicating a
case before him, the judge would cease to have jurisdiction to hear the said case.
See the case of Porter v. Magill [2002] AC 357

32. I should state here that this application presents us with a novel focus and direction
than that which is usually interrogated in the orthodox cases of bias. Unlike in those
cases, this is not the assertion that judicial bias was established during the hearing
or before the hearing. This is the case that judicial bias is alleged to have been

Page 52 of 98
 exposed in the language of the judgment and the employment of certain
expressions. Consequently, this case requires a more nuanced inquiry than the mere
deployment of cases relating to traditional judicial bias principles.

33. The rule against bias, be it actual or apparent, invokes a justiciable notion of fairness
and commands a certain judicial behavior, especially for judges if the elements of
integrity and objectivity are to be associated with the duty of judging. Parties submit
to court believing, as it has been the core objective of the court system, that the
whole process of the trial and final judgment would be enmeshed in conditions of
fairness, open-mindedness, objectivity and judicious application of the rules and
language. This judicial disposition is required at all levels and at all stages of the
proceedings.

34. Needless to say, judicial bias has long been held as a basic evil that impugns judicial
fairness. No one wants it, no country has ever registered any loud applause for its
effects and practitioners and the courts of Ghana would not chart a new path in
upholding and praising judicial bias. I take this view even if the acts that are
evidencing bias are done unconsciously. The character of the act at this stage is not
relevant. What is relevant is whether there is some evidence of bias on the part of
the trial judge as to engender the feeling in a litigant that the judicial proceedings
conducted before the said judge were not discharged with an open mind. It is this
reasonable feeling or the appearance of it that we should avoid and work to prevent.

35. I note from the outset that bias, whichever form it takes, may lead to results which
may reasonably be remediable by the invocation of the supervisory jurisdiction of
this Court. Therefore, where the bias affects the evaluation of evidence, the
conclusions drawn on the basis of such demonstrated bias, should not stand. Such
an exercise would be taken as having proceeded from either a pre-determined
position or being an inquiry which proceeded from a closed mind. A pre-determined
Page 53 of 98
 position ordained by a closed minded judge must not have the judicial blessing of
this Court. The simple justification, apart from the overall effect of judicial bias, is
that the conclusions reached in the judgment constitute a fundamental affront to
justice and as such, upsets the legal propriety of the judgment and for that reason
does not represent the accurate and legally faithful determination of the rights of
the parties therein.

36. It is thus expected, and reasonably so, that where a judge sits or presides over a
matter, a duty of judicial circumspection exists not to show any conduct or
expression of a view, especially in the language of the judge, that smacks of any
bias. In R v Inner West London Coroner, ex parte Dallaglio, [1994] 4 All ER
138, a coroner used expressions such as “mentally unwell” or “unhinged” to
describe relatives of a deceased. The coroner had sought the views of the deceased’s
family as to whether the inquests should be resumed. The coroner then refused to
resume the inquests or to remove himself and the family argued that his decision
was reached on the ground of apparent bias against them. The Court held that the
use of the expressions ‘unhinged’ and ‘mentally unwell’ indicated a real possibility
that he had unconsciously allowed himself to be influenced against the applicants
and other members of the action group by a feeling of hostility towards them and
that he had undervalued their case that the inquests should be resumed.

37. The language of the coroner in ex parte Dallaglio supra, was deemed fertile
ground to disturb his conclusions. The Court held:

“For a judicial officer to say publicly of someone that they are

unreliable because they are “'unhinged” shows, I have no doubt,
an appearance of bias: such a description is not merely injudicious
and insensitive but bound to be interpreted as a gratuitous insult...
As to the crucial second limb, I find myself in the last analysis
Page 54 of 98
 unable to discount the real possibility that the coroner
unconsciously allowed himself to be influenced against the
applicants and the other members of the action group by a feeling
of hostility towards them. There remains to my mind not a
probability but a not insubstantial possibility that he thought them
troublemakers and in the result unfairly undervalued their case for
a resumption” (pp.153))

38. Again, in a discharge of his or her judicial mandate, the exhibition of antagonism,
whether overt or subtle, on the part of a judge against a party, may rightly give rise
to justiciable allegations of bias. In the case of Locabail (UK) Ltd v. Bayfield
Properties [2000] Q.B. 451, the UK Court of Appeal held that personal
acquaintance with, or antagonism against, any individual involved in a case, would
give rise to a real danger of bias. The Court said:

“…a real danger of bias might well be thought to arise if there were
personal friendship or animosity between the judge and any
member of the public involved in the case; or if the judge were
closely acquainted with any member of the public involved in the
case, particularly if the credibility of that individual could be
significant in the decision of the case; or if, in a case where the
credibility of any individual were an issue to be decided by the
judge, he had in a previous case rejected the evidence of that
person in such outspoken terms as to throw doubt on his ability to
approach such person's evidence with an open mind on any later
occasion; or if on any question at issue in the proceedings
before him the judge had expressed views, particularly in
the course of the hearing, in such extreme and unbalanced
terms as to throw doubt on his ability to try the issue with
Page 55 of 98
 an objective judicial mind (see Vakauta v Kelly (1989) 167 CLR
568); or if, for any other reason, there were real ground for
doubting the ability of the judge to ignore extraneous
considerations, prejudices and predilections and bring an
objective judgment to bear on the issues before him.”
(emphasis added)

39. Similarly, the use of certain language or personal conduct of a judge might provide
a basis for the allegation of bias and might affect the legal integrity of the
conclusions drawn that ultimately form the basis of the judgment rendered. In the
Serafin v Malkiewicz & Ors, [2020] UKSC 23: the Supreme Court of UK was
confronted with the question whether rudeness, and/or "descending into the arena"
on the part of the judge can be sufficient to render a trial unfair. The material
allegation was to the effect that the trial judge had prejudged matters against the
claimant when he referred to him as a "liar" who had behaved "deplorably" and
threatened that he would say so in his judgment. Lord Wilson writing for the
unanimous Court stated as follows:

“Some of the excerpts, if taken alone, would not merit significant

criticism. Nor should we forget that the transcripts enable us to
read but neither to hear nor to see. But, when one considers
the barrage of hostility towards the claimant’s case, and
towards the claimant himself acting in person, fired by the
judge in immoderate, ill-tempered and at times offensive
language at many different points during the long hearing,
one is driven, with profound regret, to uphold the Court of
Appeal’s conclusion that he did not allow the claim to be properly
presented; that therefore he could not fairly appraise it; and, that,
in short, the trial was unfair”
Page 56 of 98
40. On this score, not only will it be inappropriate for offensive language to be employed
by a judge but also fair trial requires that a judge must attend to the issues before
him without attacks, whether direct or indirect, on a party, especially where the
basis of such scathing remarks are not sufficiently proven nor required as any
material part to validate his or her judgment.

41. I am of the firm opinion that, as a matter of principle, negative comments or insulting
words directed at parties or witnesses might be perceived, in appropriate cases, as
grounds of bias. In Vakauta v Kelly (1989) 167 CLR 568: during the course of
a dispute regarding a personal injury claim by a worker, the presiding judge made
a number of negative comments about the doctors who had written reports in favour
of the insurer. Amongst them, he referred to them as "the unholy trinity" and
that it was the usual doctors who "think you can do a full weeks work without
any arms or legs". The insurer's counsel requested that it be put on the record
that these comments were made but did not outright accuse the Judge of bias. In
the judgment, the judge again referred to one of the doctors negatively, writing the
report was "as negative as it always seems to be - and based as usual upon
his non-acceptance of the genuineness of any plaintiff's complaints of
pain"

42. As pertained to the second comment, made within the judgment, the Australian High
Court concluded that a reasonable lay person could think that this made the Judge
biased against certain witnesses, and thus there was an appearance of bias. The
court said as follows:

“The question is, therefore, not whether the learned trial judge had
preconceived views arising from his previous experience, but

Page 57 of 98
 whether his preconceptions were of such a kind or were so
expressed as to lead a reasonable person to apprehend that he
was unable to approach the resolution of the case in a fair and
even-handed manner without any inclination towards one side or
the other."

43. In my considered view, judges must be held to the highest standards of

impartiality. Fairness and impartiality must be both subjectively present and
objectively demonstrated to the informed and reasonable observer. Therefore,
the trial will be rendered unfair and amenable to being quashed, if, to the
informed and reasonable observer, the words or actions of the presiding judge
give rise to a reasonable apprehension of bias.

44. I am of the further opinion that judges must be particularly sensitive to the need
not only to be fair but also to appear to all reasonable observers to be fair. If
actual or apprehended bias arises from a judge’s words or conduct,
then the judge has forfeited his or her jurisdiction. The mere fact that the
judge appears to make proper findings of credibility on certain issues or comes
to the correct result cannot alleviate the effects of a reasonable apprehension of
bias arising from the judge’s other words or conduct. The harm occasioned by
bias may be remedied by an application, in the case of a lower court, to the High
Court; and in the case of a Superior Court, to this Court, for an order of
prohibition if the proceedings are still underway, or for a certiorari to quash a
decision already made. [see the case of R. v. S. (R.D.) [1997] 3 SCR 484]

45. To my mind, judicial bias can be metaphorically likened to the fruit from the
infamous poisonous tree, as it has the insidious tendency to contaminate an
otherwise sound judgment. Just as the fruit of a poisonous tree carries the inherent

Page 58 of 98
 toxicity of its roots, judicial bias, whether conscious or unconscious, stems from
underlying prejudices or predispositions. When bias infiltrates the judicial process, it
undermines the very foundation of justice by casting doubt on the integrity and
fairness of the proceedings. Like a poison spreading through a tree, bias can infect
every aspect of proceedings in a case, influencing decisions and outcomes in a
manner that deviates from the principles of objectivity and impartiality. Thus, even
a judgment that appears valid on the surface may be tainted by the presence of
bias, eroding trust in the legal system and compromising the pursuit of justice.

46. It is however to be noted that the apprehension of bias must be a reasonable one
held by reasonable and right-minded persons. The test is what would an informed
person, viewing the matter realistically and practically and having thought the matter
through, conclude? This test, as suggested in the Canadian case of R. v. S. (R.D.)
[1997] 3 SCR 484. contains a two-fold objective element: the person considering
the alleged bias must be reasonable and the apprehension of bias itself must also
be reasonable in the circumstances of the case.

47. In the instant case, we are not here confronted with any complaint that during trial
the judge made certain prejudicial comments as most of the persuasive authorities
alluded to. The harsh words or insulting comments impugned are found within the
very text of the judgment of the trial court. The Applicant herein alleges that the
judge’s bias is exposed in the language he adopted in the judgment itself. I have
therefore, had to read the said judgment thoroughly to inform ourselves of whether
the statements, pronouncements, language or tone adopted by the trial judge is one
from which an inference of prejudice, bias or dislike could be made.

48. Among the litany of judicially defamatory statements in the impugned judgment, the
judge, for example, stated as follows:

Page 59 of 98
 “That is not investigative journalism. It is investigative terrorism. It is the
exercise of indirect political power under the cloak of journalism. The
serious aspect is that political enemies of a president who could not stand
him at an election, may hire the plaintiff to entrap him to undermine his
presidency. Enemies of a state can also hire him just to destroy the
political hierarchy…

In all honesty, the plot by plaintiff and his group in exhibit KOA4 has nothing
to do with journalism. It was a scheme for grabbing power by the back door
and satisfying plaintiff’s insatiable taste for power, publicity, fame, awards,
and rewards….I considered it established that the plaintiff blackmails people
he desires to destroy, probably his enemies, or the enemies of his friends or
partners, or persons loaded with cash, whether legitimate or illegitimate, as
the suspects in the gold scam case, by catching them on tape. The tape is
then shown to them. The tape on those who pay up, are shelved, but those
who refuse or are not able to pay are held to the full glare of the public for
reputational damage. Such conduct is legally and morally wrong. It is evil.
Based on the evidence, defendant was justified in calling plaintiff evil, criminal,
corrupt, blackmailer and extortionist….”

49. Here, the trial judge asserts in express terms that the Plaintiff exercises indirect
political power under the cloak of journalism, engages in the execution of a scheme
for grabbing power by the back door in order to satisfy himself of his insatiable taste
for power, publicity, fame, awards, and rewards, and also engages in the blackmail
of his enemies. These are comments contained in the judgment of the court. Note
that these comments could not have been objected to by the plaintiff or his lawyer
because they were not made in open court whilst hearing was ongoing.

Page 60 of 98
50. But conjectures as they will truly remain, the comments constituted an expression
of preconceptions, which smacks of feelings of bias, prejudice and dislike towards
the plaintiff. There is no basis for the conclusion that plaintiff’s work amounted to
the exercise of indirect political power. There is also no basis for the court to come
to the conclusion that the specific objective of the plaintiff’s work was to grab
political power and satisfy himself of his insatiable taste for power, publicity, fame
and awards.

51. The court must have been jogging with the athletes of preconception when it
diagnosed without evidence that the plaintiff wants political power, fame, publicity
and awards. Where was the information on the account of which that conclusion
was drawn? What was the basis for that conclusion?

52. It is my opinion that any reasonable person seized with the facts of this case and
the language of the judge used against the plaintiff, could only come to the
conclusion that the judge was influenced by prejudice. The prejudice was operative
enough to the extent that the plaintiff’s averment that he is a journalist and a lawyer
did not sit well with the judge. In the claims of journalism and lawyering, the judge
has seen a politician, power grabber, and publicity, fame and award seeker. Without
a prejudice and preconceived world view, it is difficult to come to a determinate
conclusion that journalism and legal practice are indivisible from and interrelated
with politics, power grabbing, fame, publicity and award seeking.

53. In the case of Haines v. Liggett Group, Inc., 975 F.2d 81 (3d Cir. 1992), a
1992 decision that concerned a tort action claiming that the deceased's death had
been caused by smoking cigarettes produced by the defendant company, the United
States Court of Appeals for the Third Circuit removed the trial judge, Judge Sarokin,
from further presiding over the case, because he made the following statement in
an interim opinion:
Page 61 of 98
 “In the light of the current controversy surrounding breast implants,
one wonders when all industries will recognize their obligation to
voluntarily disclose risks from the use of their products. All too often in
the choice between the physical health of consumers and the financial
well-being of business, concealment is chosen over disclosure, sales
over safety, and money over morality. Who are these persons who
knowingly and secretly decide to put the buying public at risk solely for
the purpose of making profits and who believe that illness and death
of consumers is an appropriate cost of their own prosperity! As the
following facts disclose, despite some rising pretenders, the tobacco
industry may be the king of concealment and disinformation”.

54. Based on these comments, the court took the view that the trial judge was attending
to the facts with a closed mind or preconceived notions. In that event, it would not
be fair to allow him to proceed with the trial. Though this was contained in an interim
opinion, I am convinced that there is nothing wrong with disturbing a judgment
where such prejudiced views are canvassed. Especially in a case such as this, where
there was no opportunity for the Applicant to contest the preconceived opinions
expressed by the learned trial judge in the judgment, the subject matter of this
application.

55. I find it even more perplexing that a court exercising civil jurisdiction would find that
the Applicant is guilty of having taken bribes and being dishonest, fraudulent, a
cheat, an extortionist, a thief, a blackmailer and corrupt. Equally baffling is the trial
Court’s finding that a description of the Applicant as “a criminal, murderer,
extortionist, blackmailer, corrupt, landgrabber, tax evader, bribe taker, cheat,
interferer in the administration of justice, email hacker” among others are truthful

Page 62 of 98
 and factual. There can be no greater affront to the rights and honor of a litigant
who resorts to the sanctuary of justice to vindicate his rights than this pre-conceived,
biased, prejudiced and ill-motivated views which the trial judge held of the Applicant
even before he embarked on a trial of the case before him. Needless to say that the
trial judge was merely pretending to adjudicate even though he was already
harboring these opinions of the Applicant and animosities against him for his work,
methodologies and prominence.

56. I must hasten to emphasize that it matters not whether or not these statements
were made within jurisdiction, as even statements made within jurisdiction may
evince a latently held bias or prejudice harboured by a judge for or against a party.
Furthermore, as I have previously articulated, an allegation of bias, when proven,
contaminates even the most legally sound decisions and a judgment that would
otherwise have been valid, may very well be irreparably tainted by the nullifying
effect of proven judicial bias as in this case.

57. It is my considered view that the trial judge obviously threw every caution and
circumspection in judicial language and expression to the wind and even went
further to describe the Applicant’s work as “investigative terrorism” and not
investigative journalism. He also found that the Applicant’s work is “an exercise of
indirect political power under the cloak of journalism” and accused him of being
capable of being “hired by political enemies of a President who could not stand him
at an election to entrap him to undermine his Presidency” or “enemies of the state
to destroy a political hierarchy”. Upon a review of all processes before us in this
application, I am simply at a loss as to how the learned trial judge reached these
findings and conclusions as well as what standards to proof he applied and the legal
and procedural basis of the trial judge’s conclusions. The Applicant is, to say the
least, a victim of judicial defamation, a violation which in my view, is more grievous

Page 63 of 98
 that his complaint against the Interest Party which landed him before the trial judge
in the first place.

58. Specifically, I hasten to inquire, by what means and by which proceedings did the
trial court conduct an inquiry into allegations of crime and find the Applicant guilty
of same. By what standard of proof was the trial judge assessing these allegations
of crime in a civil trial. Was the Applicant charged before the Court, was his plea
taken for any criminal charges, were any of these crimes proven beyond reasonable
doubt? Was there any evidence of the Applicant having been convicted of murder,
stealing, terrorism, extortion, blackmail, tax evasion or corruption placed before the
trial judge to warrant and/or justify his arrival at these criminal findings in course of
a civil trial? If these criminal imputations to the Applicant by the trial judge do not
sufficiently evince a clear case of ill-will, hatred, disdain, disapproval and pre-
conceived malicious opinions, what manner of judicial expression would meet a
threshold of apparent or apprehended bias.

59. I note that the trial Court, in the course of its judgment, took judicial notice of the
works of the Applicant as follows:
“The mantra of plaintiff repeated ad nauseum in our ears, and of which I take
judicial notice is “Name, shame and prosecute … Pursuant to that, plaintiff has
rushed to air audio-visuals on his investigations to the public, often at a fee
(judicial notice). Judicial notice is further taken of the fact that in some of the
investigations aired to the public, the bribes collected involves thousands of
cedis and or goats, yam etc.-refer to the investigation on judges dubbed
“Ghana in the eyes of God, epic of injustice”, cited by plaintiff’s counsel.”

60. The judge’s statement then noted that persons exposed by the Applicant’s
investigations have lost their jobs. The judge further alluded to the fact that the

Page 64 of 98
 Applicant makes his money from corruption when he asked the following rhetorical
questions:
“Defendant alleged that plaintiff has amassed wealth through corruption.
Even if that allegation is discarded, the question remains as to how plaintiff
and his team get those thousands if not millions of dollars. Plaintiff is a
lawyer and journalist, but these professions do not breed dollars from
nowhere. If plaintiff is being sponsored by internal or external entities, who
are they? What are their motives and objectives?”

61. The trial court’s disdain for the investigative methods of the Applicant is further
exposed when he asked the following in his judgment:

“Can a journalist from CNN or BBC out of nothing, lay traps just to implicate
the American president or the British Prime Minister for the purpose of
grabbing the headlines and instilling unwarranted fear in the populace?
Have they ever thought of sending plaintiff to their countries to use same
methods to catch people in racist acts, which is a social canker plaguing
those societies?”

62. In my humble view, these queries of the Applicant’s work and modus operandi by
the trial judge are clearly exhibitory of the fact that his personal reservations,
disapproval and dislike for the Applicant and his modus operandi, had poisoned his
mind, blinded and disabled him from being an open minded and impartial adjudicator
of the matters before him.

Page 65 of 98
63. In a judgment of this Court dated 9th of March, 2022 in Suit No.: J5/17/2022
entitled Republic v. Court Of Appeal Ex Parte: James Gyakye Quayson with
, this court sounded the following caution to all Courts

“a court of law cannot act in aid of a party in our adversarial system of justice, by
fishing for [matters] or introducing documents to support a party’s case against
his adversary. That would be tantamount to an ‘unbiased umpire’ descending into
the arena of conflict.”

64. The above referenced statements of the trial Court are indicative of a deep-seated
personal dislike of the person and investigative methods of the Applicant. One would
ask, was the Applicant on trial for murder, terrorism or the host of other crimes that
were imputed to him by the Judge? Was the Court exercising a criminal jurisdiction
in the defamation suit?

65. What then would animate the Court to go on a tangent of taking such judicial notice
and making a finding of criminality against the Applicant. As indicated above, these
comments, statements, and language adopted by the judge betrays his bias against
the Applicant and therefore disabled the trial court from impartially adjudicating the
case with the open mindedness expected.

66. This is particularly so because, in my view, the facts of which the judge took judicial
notice, were clearly not relevant to the issues that arose for determination.
Accordingly, it was needless for the trial judge to embark on such a venture. The
only inescapable conclusion that can be reached from the conduct of the judge is
that the judge took judicial notice of those facts purely to deprecate the Applicant
in the manner he did, and not to assist the court to determine issues in dispute.

Page 66 of 98
67. It must be emphasized that in a civil suit which was conducted outside the
procedural and evidentiary rigidities of a criminal trial and criminal proceedings,
properly so called, a Court cannot arrive at definite findings of criminal culpability
against a person.

68. Short of sentencing the Applicant, the trial judge, who appears to have been
actuated by ill will, malice, dislike and complete disapproval of the Applicant’s
methods and investigative journalism, could not restrain himself from pronouncing
a conviction and condemning the Applicant as an outright criminal, extortionist and
blackmailer masquerading as a journalist.

69. This type of unrestrained intemperate judicial arbitrariness, motivated by obvious

personal dislike of a citizen, in the sanctuary of justice of all places, ought to be
deprecated, disapproved and rejected in the strongest of terms. The toxic, caustic
and unsavory descriptions of the Applicant by the trial judge is a classic example of
a violent abuse of judicial power, privilege and prerogative in the deployment of
language under the guise of a judgment.

70. It is therefore my considered opinion that the learned trial judge irreparably
contaminated an otherwise commendable enunciation of the law and principles of
defamation, and relevant case law/authorities, with the manifest contempt, hatred
and disdain in which he held the Applicant. This court cannot allow such an
unacceptable abuse of judicial power and recourse to violent and unjustified
language against a citizen who invokes the jurisdiction of the Court, to stand.

71. It is for these reasons that I would order the removal into this Court, for the purpose
of being quashed, the judgment of the High Court coram: His Lordship Justice Eric
Baah JA dated 15th March 2023 and would have quashed same and prohibited the

Page 67 of 98
 implicated trial Court judge and ordered a trial de novo before the High Court
differently constituted.

E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)

CONCURRING OPINION

AMADU JSC:

INTRODUCTION

( 1) My Lords, in view of the peculiar factual circumstances of this application, and for
a better appreciation of the context of this delivery, I find it relevant to quote the
famous English philosopher Thomas Hobbes in his book, ‘The Leviathan’, where he
sustained the caution against biased adjudication in the following words:
“Seeing every man is presumed to do all things in order to his own
benefit, no man is a fit arbitrator in his own cause; and if he were
never so fit; yet equity allowing to each party equal benefit, if one
be admitted to be judge, the other is to be admitted also. For the
same reason no man in any cause ought to be received as
arbitrator, to whom greater profit, or honour, or pleasure
apparently arise out of the victory of one party, than of the other:
for he hath taken, though an unavoidable bribe, yet a bribe; and
no man can be obliged to trust him.” [See Thomas Hobbes, ‘The

Page 68 of 98
 Leviathan’, (London 1651) (Oakesott M. ed, Macmillan Publishers,
1946, at 102)].”

( 2) The issues provoked for determination by this application are not novel to our
jurisprudence yet, the grounds for the application reveal a special situation, where the
Applicant, who was Plaintiff in Suit No. GJ/892/2018 in the High Court Accra, invoked
the supervisory jurisdiction of this court in respect of the outcome of a defamation
action commenced by writ of summons against the Interested Party herein (the
Defendant therein). There was no point in time during the trial proceedings that, the
Applicant had questioned or objected to the conduct of Learned Trial Judge on
grounds of bias neither did the Applicant complain at any time that, he was not heard
on any matter or issue which by our jurisprudence the Applicant was entitled to be
heard.

( 3) Ordinarily therefore, in the absence of any of these two situations which primarily
define the known rules of natural justice, to wit: audi alteram partem and nemo
judex in causa sua; the Applicant before us, cannot be heard to complain against
the adjudicator the Learned Trial Judge, on grounds of bias and seek redress by
recourse to the supervisory jurisdiction of this court.

( 4) However, the novelty of the more fundamental issue at least

in our jurisdiction, is seen from the resolution of the issue of bias based on the
trial court’s judgment. This is because the instant Applicant provokes our
determination of a core issue, of, whether per the judgment of the trial court, the
trial judge was biased against the Applicant, and thereby warranting that, we
nullify the judgment so given by quashing same. The determination of this issue,
in my view, is confined solely to the judgment that was delivered and nothing
more. It is thus a herculean burden, which the Applicant must surmount in order
to succeed in the instant application.

Page 69 of 98
( 5) Having said that, the filing of the application is conceivably
appropriate given that, the allegations of bias against the Learned Trial Judge, and
the deprivation of the opportunity to be heard on key issues in which the Learned
Trial Judge had made definitive pronouncements against the Applicant on matters
of criminality are embodied in the final judgment and not at any time during the
trial proceedings.

BACKGROUND TO THE APPLICATION

( 6) From the affidavit evidence, the Applicant claims to be an internationally renowned

investigative journalist. According to him, his work has been at great risk, but the
outcome has seen some culprits suffer punishment for their corrupt activities. The
Applicant deposes that there are persons, including the Interested Party who detest
his works and have vowed to bring him down. In pursuance of this negative agenda,
the Applicant alleges that, the Interested Party embarked on a series of sustained
public castigations against him, accusing Applicant of all manner of crimes including
murder, stealing, tax evasion and corruption, all of which received wide publications.

( 7) Aggrieved by the alleged defamatory publications, the Applicant, on the 20th day
of November 2018, commenced a defamation suit against the Interested Party for
various reliefs as endorsed on the originating writ. The suit was originally assigned to
Justice Daniel Mensah then at the General Jurisdiction 2 Division of the High Court.
The said judge, was subsequently transferred to the High Court, Tema. His Lordship
Justice Eric Baah JA, pursuant to a directive from the Chief Justice took over the
handling of the case from 11th of February, 2021 but only as a relieving judge. A
substantive judge for General Jurisdiction 2 was subsequently appointed in the person
of Justice Gifty Agyei Addo J. (as she then was). However, following a petition by the
Interested Party through his lawyers to the then Honourable Chief Justice, Justice Eric
Baah was assigned with the handling of the substantive matter, this time, while sitting
at the General Jurisdiction 11 Division of the High Court.

Page 70 of 98
( 8) After a full trial with the participation of all the parties, without any objection to
the court’s jurisdiction, the trial judge on the 15th day of March 2023, delivered
judgment against the Applicant and thus, dismissed the Applicant’s claims against the
Interested Party. Following the judgment, the Applicant launched two appeals against
same per notices of appeal dated 8th June 2023 and 12th June 2023. The later notice
of appeal filed, is actually anchored on as many as seventeen (17) grounds of appeal.

( 9) On the 12th day of June 2023, the Applicant invoked the supervisory jurisdiction of
this court for an order of certiorari directed at the High Court (General Jurisdiction
11), Accra presided over by Justice Eric Baah, JA (sitting as Additional High Court
Judge), to bring into this Court for the purposes of being quashed the judgment of
the High Court dated 15th March 2023. The Applicant anchors the application on the
absence of jurisdiction and an apparent or a real likelihood of bias and partiality on
the part of the trial judge.

( 10) On the first ground of absence of jurisdiction, the Applicant contends that,
the transfer of the suit by the then Chief Justice, following series of correspondence
between the Interested Party and the office of the Chief Justice without notice to him
was unfair and aroused lack of impartiality in the approach. The Applicant argues that,
by settled practice, a relieving judge would be bereft of jurisdiction to hear a case that
has been assigned to a court in which he is not the assigned substantive judge. Under
the second ground, the Applicant attacks the entirety of the judgment as according
to him, the trial judge left the legal principles in contention and embarked on a tirade
against the investigative method of the Applicant when the case was not about the
Applicant’s professional conduct as a journalist. For Applicant, it is apparent upon a
casual reading of the said judgment, that he suffered from a real likelihood or actual
bias against him and therefore the Trial Judge was not impartial in his consideration
of the case.

( 11) THE AFFIDAVIT IN OPPOSITION

Page 71 of 98
 Expectedly, the Interested Party opposed the grant of the application. Significantly
however, as if the other issues raised by the Applicant are unanswerable, the
Interested Party’s opposition was grounded only on the claim of absence of jurisdiction
by the trial judge and not at all on the issue of the judgment being tainted by a real
likelihood of bias and want of the opportunity for the Applicant to respond to the
crucial statements of criminal conduct made by the Trial Judge which the Applicant
contends influenced the outcome of the suit.

( 12) According to the Interested Party, the application is unmeritorious as it fails

to meet the threshold for invoking the supervisory jurisdiction of this Court. He
contends that, subsequent to the delivery of the judgment, the Applicant filed two
separate appeals of which Civil Form 2 had been issued in respect of both. The
Interested Party contends further that, there was no impropriety regarding the
petition to the Chief Justice for the trial judge to hear the substantive case and that
same was a normal practice in the advancement of expeditious trials. The Interested
Party thus asserts that, the power of the Chief Justice to transfer the suit was an
administrative function as the power is vested solely in the Chief Justice who duly
exercised same.
The Interested Party further asserts that in any case, if the Applicant was minded to
challenge the transfer order of the Chief Justice, same should have been raised earlier
in time. The Interested Party further contends that, even per the notices of appeal,
the issue of absence of jurisdiction is absent, and that the Applicant is basically, forum
shopping for relief.

( 13) THE LAW ON JUDICIAL REVIEW

Article 132 of the 1992 Constitution vests the Supreme Court with 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”. See also, Section 5
of the Courts Act, 1993 (Act 459).

Page 72 of 98
( 14) This court has settled in a plethora of cases that, our jurisdiction to review
decisions of courts lower than the Supreme Court must be specially informed by want
or excess of jurisdiction; error of law patent on the face of the record, which error is
not trivial, but fundamental and goes to the jurisdiction of the court; breach of the
rules of natural justice, as well as breach of the Wednesbury principles of illegality;
irrationality, unreasonableness and or procedural impropriety.

( 15) In REPUBLIC VS. HIGH COURT, KUMASI: EX-PARTE BANK OF

GHANA & ORS. (GYAMFI & OTHERS-INTERESTED PARTIES) [2013-2014] 1
SCGLR 477, Dotse JSC speaking on behalf of this Court pronounced as follows:
“It is well settled that certiorari was not concerned with the merits of
the decision; it was rather discretionary remedy which would be granted
on grounds of excess or want of jurisdiction and or some breach of rule
of natural justice; or to correct a clear error of law apparent on the face
of the record. The error of law must be so grave as to amount to the
wrong assumption of jurisdiction; and it must be so obvious as to make
the decision a nullity. Where the error of law or fact was not apparent
on the face of the record, the Applicant’s remedy would lie in an appeal.”

( 16) Earlier in time, this court held in REPUBLIC VS. COMMITTEE OF

INQUIRY INTO NUNGUA TRADITIONAL AFFAIRS [1996-97] SCGLR 401 that,
“. . . certiorari was a discretionary remedy which would lie to quash not
only the finding or decision of a lower court or inferior tribunal which
has acted ultra vires its powers or whose decision has been vitiated by
error on the face of the record or which has failed to observe the rules
of natural justice but also any other inferior tribunal including
administrative tribunals which had a duty to act judicially, and by
“judicial action” was meant an act done by a competent authority upon

Page 73 of 98
 consideration of facts and circumstances imposing liability and affecting
the rights of others.” See also REPUBLIC VS. HIGH COURT SEKONDI; EX-
PARTE AMPONG ALIAS ODENEHO AKRUFA KRUKOKO I (KYEREFO III &
OTHERS INTERESTED PARTIES), [2011] 2 SCGLR AT 722; REPUBLIC VS.
HIGH COURT (LAND DIVISION) ACCRA EX-PARTE-KENNEDY OHENE
AGYAPONG; (SUSAN BANDOH-INTERESTED PARTY) [2020] DLSC 985 AT
PAGE 27-28, PER KULENDI JSC.

( 17) It is settled that, judicial review is procedurally focused; and not concerned
with the merits of the decision or order made. Thus, in this delivery, I will not be
concerned with whether, on the substance of the impugned judgment, the trial court
was right in its conclusion or otherwise. This point is very crucial, and requires a
careful circumvention having regard to the fact that, the indicia to deciding whether
the judgment ought to be set aside is the very judgment. That determination cannot
therefore be done, without a consideration of and re-examination of appropriate
aspects of the judgment.

( 18) The point of departure however, is that, the re-evaluation will be pursued
with the sole aim of ascertaining whether there was a real likelihood of bias or of
actual bias on the part of the trial judge. Further, did the trial court deny the Applicant
the opportunity to be heard on crucial definitive pronouncements of a criminal nature
in the judgment proceedings? Furthermore, has a substantial miscarriage of justice
been occasioned against the Applicant by reason of the approach of the Learned Trial
Judge in the judgment before us?

( 19) EVALUATION

Page 74 of 98
 In my view, two principal issues arise for determination in this application as follows:
a. “Whether the trial judge was bereft of authority to adjudicate over
the substantive matter?
b. Whether the judgment of the trial court suffers from a real-
likelihood of bias or actual bias on the part of the trial judge and a
resultant infringement of the Applicant’s right to natural justice”.

From the affidavit evidence before me, I have no difficulty at all, in dismissing the
jurisdictional ground on which this application is anchored. The essence of the
Applicant’s complaint on that ground, simply lies in the deposition that the Applicant
was not put on notice regarding the Interested Party’s petition to the Chief Justice for
the suit to be transferred to Justice Eric Baah for determination. Counsel for the
Applicant himself concedes that, the power to transfer suits is solely at the discretion
of the Chief Justice and not party driven nor of lawyers (See; Section 104 of Act
459). Thus, even in the absence of any petition, the Chief Justice was vested with
statutory authority to effect a transfer. The important ingredient to be satisfied is,
whether, same was pursuant to the fiat of the Chief Justice in accordance with statute.
This, has not been argued by the Applicant to be absent.

( 20) Therefore, in dismissing the jurisdictional ground, I find and hold that, the
transfer of the suit by the Hon. Chief Justice to the trial court for determination by
Eric Baah JA. was pursuant to the authority vested in the Hon. Chief Justice under the
Court’s Act, 1993 (Act 459) and the 1992 Constitution and not merely on the
Interested Party’s petition qua petitioner. The claim of absence of notice of the
correspondence to the Applicant, is in my view of de minimis effect and could not
deprive the court of its jurisdiction to adjudicate over the matter. Be that as it may,
the Applicant, as aforesaid did not raise any objection against the trial judge in the
hearing and determination of the suit. The Applicant actually participated in the whole
trial and has raised the issue belatedly.

Page 75 of 98
( 21) It is conceded that while jurisdictional issues can be raised at any stage of
any judgment proceedings a party who participates in a trial till judgment in any cause
or matter and had been or ought to be aware of an irregularity which violates his right
to fair hearing must act expeditiously, lest, he be deemed to have waived the right to
complain. See the case of THE REPUBLIC VS. HIGH COURT (COMMERCIAL
DIVISION) EX-PARTE DR. KWABENA APPENTENG STEPHEN KWAKU
ASIEDU APPENTENG & OTHERS (INTERESTED PARTIES) in CM/J5/6/2010
dated 3rd February 2010 where this court in determining an application for certiorari
to quash the proceedings of a vacation trial judge who proceeded to deliver a ruling
after the period of the legal vacation without the warrant of the Hon. Chief Justice
held while relying on the statement of Wood C.J in REPUBLIC VS. HIGH COURT,
EX-PARTE YALLEY (GYANE & OTTOR INTERESTED PARTIES) [2007-2008]
SC GLR 512, as follows:-
“Indeed, if we must eliminate the specter of perceived judicial
manipulation and other negative acts or conduct that are alleged to be
stalking, as it were, our judicial corridors, then it is absolutely critical
that all the principal powers who drive the system, particularly,
judges, ought strictly to ensure compliance with the provisions in
Section 104 which are clearly intended to inject order, transparency,
accountability and sanity into the entire justice system. We find that
the provisions in Section 104 are intended to promote credibility,
general efficiency and should be allowed to function as such.”

“Against a background such as this, we have no difficulty in holding

that though certiorari is a discretionary remedy, the omission of a party
to raise objection to a proceeding in an appropriate forum should
disentitle the Applicant to that remedy where the omission was wilful
and an abuse of the process of the court. Such is the case here. The

Page 76 of 98
 fact that Tanko Amadu, J. was exceeding his authority after the
effluxion of the vacation period did not seem to have bothered the
Applicant until his ruling turned out to be adverse to him. Were it to
have been in his favour he would have celebrated it”.

Accordingly, this ground of the application is in my view spineless and I dismiss

same.

( 22) WHETHER THE JUDGMENT OF THE TRIAL COURT SUFFERS FROM

A REAL LIKELIHOOD OF BIAS ON THE PART OF THE TRIAL JUDGE
RESULTING IN THE INFRINGEMENT OF THE APPLICANT’S RIGHT TO
NATURAL JUSTICE.
In determining this issue, I have cautioned myself on the ingredients necessary for
the exercise of the supervisory jurisdiction of this court. This is because, the
jurisdiction is not concerned with the merits of the matter. This involves a
determination of whether, there have been some procedural lapses, which ought to
have been complied with, but same were ignored, with the consequence that the
default erodes an order or judgment of efficacy into a resultant nullity.

( 23) The crucial ground which invigorates this issue, is a breach of the nemo
judex in causa sua rule of natural justice. The traditional consideration of this
principle has been anchored on a demonstration that, the adjudicator had a
pecuniary/financial interest in the res litiga; or proprietary a relational interest in the
matter; or a pre-determined mind on an issue before the court. Often times most of
these factors come to play before the final judgment is delivered. In such situations,
the adjudicator is expected to recuse himself, for justice to be seen to be done. In
exceptional situations however, the determining factor(s) may be unraveled after the
delivery of the judgment.

Page 77 of 98
( 24) In the instant application, the nature of the bias this court is confronted
with, is one, which arose from the content of the judgment which the Applicant alleges
included exhaustive statements of criminality against him extraneous to the
proceedings which cumulatively have deprived the judgment the sanctity of
impartiality required of a trial judge. It is significant however to place on record that,
the Applicant has not contended that, the trial judge had a pecuniary or relational
interest in the subject of the suit or with the Interested Party. The Applicant has also
not alleged that, the trial judge pre-determined the matter. All that the Applicant
alleges is that, a casual reading of the judgment reveals that, the trial judge had
personal deep seated issues with the Applicant’s investigative methods, and as a
result, veered off the settled principle of impartial adjudication and marred the
judgment in a manner inconsistent with due process. On this ground, the Applicant
has urged this court to exercise its supervisory power to quash the judgment.

( 25) While I find this complaint to be so fundamental to have warranted much

articulation by the Applicant, in his affidavit in support, the Applicant rather devoted
much of his attention on the fanciful jurisdictional issue. The relevant depositions on
the issue of bias from the affidavit in support can be found at paragraphs 22-25 which
I hereby reproduce as follows:
“22. True to the fears of the Applicant, when Justice
Eric Baah delivered his judgment, he left the legal principles in
contention and embarked on a tirade against the investigation
method of the Applicant when the case was not about the
Applicant’s professional conduct.
23. Justice Eric Baah, in large portions of his judgment,
showed unequivocally to any dispassionate observer that prior to
sitting on the applicant’s defamation suit he harboured firm -held
disagreements and disapproval of the work of the Applicant and
developed deep -seated dislike for the Applicant.
24. It is apparent on a casual reading of the judgment

Page 78 of 98
 of Justice Eric Baah that he suffered from a real likelihood of bias
against the applicant and therefore he was not impartial in his
consideration of the case.
25. The judgment of a judge who suffered a real
likelihood of bias in a case ought to be quashed and the affected
party given the opportunity for his case to be impartially heard and
determined.”

( 26) In the statement of case in support of the application, the portions of the
judgment of the Learned Trial Judge which, the Applicant alleges occasioned a real
likelihood of bias are as follows:
Page 64, the Learned Trial Judge delivered as follows:-

“Corruption rating agencies have never been kind to Ghana in their

ratings. As to how Plaintiff and his team select their subject persons is a
matter shrouded in secrecy. But how do they choose their subjects
persons out of the large number of corrupt Ghanaians? As things stand,
persons selected may just be the unlucky ones, since some of those not
selected may be worse than those selected”.

( 27) On the same page, the Learned Trial Judge stated thus:
“It should be understood that as officers caught by Plaintiff in his
investigations have lost their jobs, an entrapped president may be
compelled to resign out of shame or public pressure. That means,
the Plaintiff through his investigative antics can cause the removal
of a president, and thereby [upurn] the mandate given to him at
the elections. This is not investigative journalism. It is
investigative terrorism. It is exercise of indirect political power
under the clock of journalism.”

Page 79 of 98
( 28) Then at page 65 of the judgment, the Learned Trial Judge stated as
follows:-
“Defendant alleged that Plaintiff has amassed wealth through
corruption. Even if that allegation is discarded, the question remains as
to how Plaintiff and his team get those thousands if not millions of
dollars. Plaintiff is a lawyer and journalist, but these professions do not
breed dollars from nowhere. If Plaintiff is being sponsored by internal or
external entities, who are they? What are their motives and objectives?
Does it include tarnishing the images of Presidents and Prime Ministers
in our sub region? If the sponsors are external entities, do they approve
of the modus operandi of the Plaintiff? Can a journalist from CNN or BBC
out of nothings, lay traps just to implicate the American President or the
British Prime Minister for the purpose of grabbing the headlines and
instilling unwarranted fear in the populace? Have they ever thought of
sending Plaintiff to their countries to use same methods to catch people
in racist acts, which is a social canker plaguing those societies? In all
honesty, the plot by Plaintiff and his group in Exhibit KOA.4 has nothing
to do with journalism. It was a scheme for grabbing power by the back
door and satisfying Plaintiff’s insatiable taste of power, publicity, fame,
awards and rewards.

( 29) Finally, the Applicant refers to page 56 of the judgment where the Learned
Trial Judge said:
“The mantra of Plaintiff repeated ad nauseum in our ears, and of
which I take judicial notice is “name, shame and prosecute”.
Pursuant to that, plaintiff has rushed to air audio-visuals on his
investigation to the public, often at a fee.”

Page 80 of 98
 The Applicant denies this last reference at page 56 and asserts that, while it was never
an issue for determination, he has never charged any fee for public viewing of his
work.

( 30) Are the above statements, merely obiter, which if discarded will not impact
the reasoning informing the dismissal of the suit? In answering this crucial question,
I am persuaded by the observation made by Lord Thankerton in the English case of
FRANKLIN VS. MINISTER OF TOWN AND COUNTRY PLANNING (1948) A.C
where it was held at page 87 that:
“I could wish that the use of the word “bias” should be confined to its
proper sphere. Its proper significance, in my opinion, is to denote a
departure from the standard of even-handed justice which the law
requires from those who occupy judicial office or those who are
commonly regarded as holding a quasi-judicial office, such as an
arbitrator. The reason for this clearly is that, having to adjudicate
between two or more parties, he must come to his adjudication with an
independent mind, without any inclination or bias towards one side or
other in the dispute.”

( 31) With all due respect to the Learned Trial Judge, it is in my view obvious
that, he was actually actuated by his self-conceived notion of the Applicant’s supposed
improper investigative methods and thus, discarded the core issues before him. In
fact, the judgment as rendered, was indubitably informed by these personal dislikes
against the Applicant and not based on the law and evidence placed before the
Learned Trial Judge. From a reading of the judgment, it is obvious that, the Learned
Trial Judge, deliberately set up the delivery to assist the course of the Interested
Party.

( 32) Having said that however, I must express my admiration for the Learned
Trial Judge’s elaborate and erudite evaluation of the law on defamation. While I

Page 81 of 98
 expected that, based on the law so propounded, the Learned Trial Judge would apply
same to the facts and evidence, the Learned Trial Judge unfortunately did not just
descend into the arena of conflict, but, pursued a line of what in my view is an
improper reliance on extraneous matters against the Applicant which were not
relevant in the determination of the suit but which associate the Applicant with
criminality. This was at a stage of the proceedings where the Applicant was not and
could not have been heard on those matters.

( 33) In the impugned delivery before us, the Learned Trial Judge stated that,
the Applicant was involved in his work just to enrich himself. The trial judge further
stated that, several Ghanaians were corrupt yet the Applicant targets only a few.
Furthermore, he described the Applicant as a person engaged in investigative
terrorism and not journalism and that, the Applicant possessed huge sums in dollars
for being just a journalist and lawyer when those professions do not produce such
resources. It is difficult to appreciate how the trial judge arrived at such definitive
uncomplimentary statements about the Applicant without a prejudicial disposition
since there was no evidence to support same, especially at that stage of the
proceedings when the Applicant had no opportunity to respond to those statements
even if he had been tried for a criminal offence.

( 34) To any fair-minded person concerned with the reading of the judgment of
the Trial Court, these conclusive statements which associate the Applicant with a
criminal enterprise are not only injudicious but capricious as they are not the result of
due process. The use of such language without hearing the subject for his response
should not be available to any adjudicator. Otherwise, they will certainly be
demonstrative of animosity, dislike, hatred and/or ill will, none of which is judicious.
Not having given the Applicant the opportunity to be heard on them, and there being
no evidence in support of those prejudicial conclusive statements of criminality against
the Applicant, the situation reveals a pattern of premeditation to unjustifiably attack
the Applicant. This prejudicial state of mind regrettably found expression in the forum

Page 82 of 98
 of adjudication in arriving at a decision on the Applicant’s case. Such injudicious
disposition by the Learned Trial Judge is not only inconsistent with the judicial oath,
but is frowned upon by the 1992 Constitution on the requirement of fair hearing. The
manner in which it is prevalent in the judgment misdirected the focus of the Learned
Trial Judge on the cardinal principle of impartiality in his delivery, however well
intended he might have been.

( 35) In all jurisdictions and Ghana is no exception, judges occupy a sensitive and
peculiar role in society. As persons who are part of the larger society, judges are also
consumers of information about persons and institutions which constitute the society
and which by the judges’ special calling they are to regulate. In the process of
adjudication therefore, judges must not adjudicate on the basis of their own personal
views or perceptions, nor of public opinion about the parties, lawyers and witnesses
before them, except as provided by the law of evidence. Such extra-judicial
information whether positive or negative may always be available but must not be
expressed on the face of a judgment though it may constitute the inarticulate premise
on which a decision may turn provided the evidence and the law adduced supports
such premise.

( 36) Except as aforesaid therefore, once such prejudicial matters are expressed
in a judgment not having been received through the due process of reception of
evidence, the entire delivery becomes susceptible to quashing orders or other
impeaching orders when jurisdiction is properly invoked. Therefore, the constitutional
immunity enshrined in Article 127 of the 1992 Constitution to protect judges in the
exercise of judicial power should not be taken for granted and construed as a shield
to attack parties, lawyers and or witnesses before them without due process or any
other sufficient justification.

Page 83 of 98
( 37) My Lords, as judges, our duty in adjudicating is simply guided by the issues
set for trial or those consequential issues necessary for the final and effectual
determination of any dispute. While obiter statements are permissible, our core duty
is to apply the law and evidence to the facts of a particular case before us. Where
personal biases becloud a judicious approach to adjudication, the outcome cannot be
accepted as the reasoning informing the conclusion arrived at, since it will not be
based on the evidence placed before the court. It is such judicial conduct that, this
court must fearlessly and unhesitatingly, but authoritatively deprecate irrespective of
the composition of any coram. This is because, as Judges, we remain servants of the
polity; and the power to adjudicate actually emanates from the people. Therefore,
any arrogated judicial power, guided in its approach by prejudice and absence of due
process must not be countenanced.

( 38) In JONES VS. NATIONAL COAL BOARD [1957]2 Q.B.55 a statement

by Lord Denning, one of the most celebrated jurists of the common law jurisdiction
is worth reproducing in extenso for its relevance about the conduct of judges and the
application under consideration. Lord Denning said inter alia as follows:-
“No one can doubt that the judge, in intervening as he did, was actuated
by the best motives. He was anxious to understand the details of this
complicated case, and asked questions to get them clear in his mind. He
was anxious that the witnesses should not be harassed unduly in cross-
examination, and intervened to protect them when he thought
necessary. He was anxious to investigate all the various criticisms that
had been made against the Board, and to see whether they were well
founded or not. Hence, he took them up himself with the witnesses from
time to time. He was anxious that the case should not be dragged on too
long, and intimated clearly when he thought that a point had been
sufficiently explored. All those are worthy motives on which judges daily

Page 84 of 98
 intervene in the conduct of cases, and have done for centuries. . .
Nevertheless, we are quite clear that the interventions, taken together,
were far more than they should have been. In the system of trial, which
have been evolved in this country, the judge sits to hear and determine
the issues raised by the parties, not to conduct an investigation or
examination on behalf of society at large, as happens, we believe, in
some foreign countries. Even in England, however, a judge is not a mere
umpire to answer the question, ‘How’s that? His object above all, is to
find out the truth, and to do justice according to law and the daily pursuit
of it the advocate plays an honourable and necessary role. Was it not
Lord Eldon LC who said in a notable passage that “truth is best
discovered by powerful statements on both sides of the question’’: See
Ex-Parte Lloyd. And Lord Greene MR who explained that, justice is best
done by a judge who holds the balance between the contending parties
without himself taking part in their disputations? If a judge, said Lord
Greene, should himself conduct the examination of witnesses, “he, so to
speak descends into the arena and is liable to have his vision clouded by
the dust of conflict”.

( 39) Some English case law will provide a useful persuasive effect in determining
the instant application. In the case of IN R. VS. GRIMSBY BOROUGH QUARTER
SESSIONS. EX-PARTE FULLER [1956] 1 Q.B. 36, the Applicant had been
convicted by a Court of summary jurisdiction on a charge of being found in enclosed
premises for an unlawful purpose, and he appealed to quarter sessions against his
conviction. During the cross examination of the applicant at the hearing of the appeal,
the clerk of the peace, acting in the interests of the accused, handed to the recorder
a police report and drew the recorder's attention to a passage which, might provide
the answer to a matter being put to the applicant in cross-examination. On the same
page of the police report, immediately below the passage in question, was set out a

Page 85 of 98
list of the Applicant's previous convictions. The Applicant's character had not been put
in issue. The recorder read the passage to which his attention had been drawn,
marked it and kept the document.

he appeal having been dismissed; the Applicant applied for an order of certiorari to
quash the order dismissing the appeal. At page 41 Lord Goddard L.C.J., delivering the
judgment of the Court, said:
"It is not for every irregularity in the course of a hearing either in petty
or quarter sessions that a certiorari would be granted. In our opinion we
ought to apply the same rule as in a case where bias on the part of a
justice adjudicating is alleged, which was fully considered by this court
in the recent case of REG, VS. CAMBORNE JUSTICES EX-PARTE PEARCE.
(1955 1 Q.B. 41; I.1954.J 2 ALL I.R. 850.) where in the result a certiorari
was refused. It was there held that there must be a real likelihood of
bias and so here we would say a real likelihood of prejudice. We
emphasize it is likelihood, not certainty. We applied the judgment of
Blackburn J. in REG, VS. RAND, ((1866) L.R.L Q.B. 230, 23L) and also
adopted the words of Lord O'Brien L.C.J. IN REX VS. QUEEN'S COUNTY
JUSTICES ([1908] 2 I.R. 285, 294•'): "By 'bias’ I understand a real
likelihood of an operative prejudice, whether conscious or unconscious,"
and this, in our opinion, amply justifies us in applying the same test in
the present case as would be applied where a motion is brought on the
ground of bias”.

fter considering the comments of the Magistrate very carefully, Hutchison J. came to
the conclusion that, the circumstances were not such as to establish judicial bias but,
proceeded to consider whether there was nevertheless a failure of natural justice and
accordingly a ground for the order of certiorari had arisen. This is because of a view
prematurely formed by the Magistrate adverse to the third party. At p.953 he said-
"The question, as I see it, is whether the matters to which I have last

Page 86 of 98
 referred ... taking them cumulatively, show a real likelihood that the
Learned Magistrate prejudged the case so that the opportunity of the third
party to present its case was no fair opportunity at all. The "burden of proof
resting on the third party I have earlier stated as being one of establishing
a "real likelihood that the Learned Magistrate prejudged the case." He then
came to the conclusion that, the cumulative effect of the comments was sufficient to
show that the Magistrate prejudged the case, and the third party did not have a fair
opportunity to present its case. Accordingly, certiorari was issued on that ground.

( 42) The procedure of judicial review by which legal proceedings which are
otherwise considered regular but still suffer perdition on grounds of the real
likelihood of, or actual bias is not novel in common law jurisdictions. In our
jurisdiction, the procedure which, is mutually exclusive to the appellate process is
provided in Article 132 of the 1992 Constitution and Section 5 of the Courts Act,
1993 (Act 459) (as amended) under which the instant Applicant invoked the
supervisory jurisdiction of this court.

( 43) Thus, in the English case of R. VS. BOW STREET METROPOLITAN

STIPENDIARY MAGISTRATE & ORS., EX-PARTE PINOCHET UGARTE
(NO.2) [2000] 1 AC 119, the accused, former Head of State of Chile faced
extradition for alleged crimes against humanity. In the first judgment, a panel of
five judges of the House of Lords held that Pinochet was not entitled to immunity
from prosecution. Subsequently, however, there were revelations that a member
of the panel of justices had links with Amnesty International an organization
targeting individuals involved in crimes against humanity. This development
resulted in an appearance of bias on the part of the said law lord. The decision,
was therefore overturned due to the apparent perceived bias on the part of Lord
Hoffman, a member of the first panel.

Page 87 of 98
( 44) Therefore, the cardinal principle that a judge must be impartial is accepted
in the jurisprudence of any civilised country and the common law jurisdictions are
no exception. There is therefore no ground for holding that in this respect,
Ghanaian law differs from the law of England or for hesitating to follow the English
decisions though of persuasive effect. One relevant decision was in the case of
REGINA VS. CAMBORNE JUSTICES [1955]1QB.41. I would adopt the
following passage from page 51 of the judgment as setting out the law as equally
applicable in our jurisdiction;
“In the judgment of this court the right test is that presented 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. This court in
further of opinion that a real likelihood of bias must be made to
appear not only from the materials in fact ascertained by the party
complaining, but from such further facts as he might readily have
ascertained and easily verified in the course of his inquires”.

( 45) In respect of the above requirement, a number of the English authorities

provide the relevant and appropriate persuasive guidance. In the case of
METROPOLITAN PROPERTIES CO. (F.G.C) LTD. VS. LENNON [1969] 1
Q.B.577 at 598 Lord Denning MR. (as he then was) referred to the case of
REG. VS. BARNSLEY LICENSING JUSTICES, EX-PARTE BARNSLEY AND
DISTRICT LICENSED VICTUALLERS’ ASSOCIATION [1960, 2 Q.B.167 at
187] as follows:- “. . . DELVIN J. appears to have limited that principle
considerably, but I would stand by it. It brings home this point: In
considering whether there was a real likelihood or bias the court does
not look at the mind of the judge or chairman of the tribunal, or whoever
it may be, who sits in a judicial capacity. It does not look to see if there

Page 88 of 98
 was a real likelihood that he would, or did, in fact favour one side at the
expense of the other. The court looks at the impression which would be
given to other people. Even if he was as impartial as could be,
nevertheless if right minded persons would think that, in the
circumstances, there was a real likelihood of bias on his part, then he
should not sit. And if he does sit, his decision cannot stand”: See REG.
VS. HUGGINS [1895, 1 Q.B.563] AND REX. VS. SUNDERLAND JUSTICES
[1901, 2 K.B. 357 AT 373 C.A] PER VANGHAM WILLIAMS L.J. Nevertheless
there must appear to be a real likelihood of bias. Neither surmise nor conjecture
is enough: See REG. VS. CUMBORNE JUSTICES, EX-PARTE PEARCE [1955],
1 Q.B.41 AND REG. VS. NAILSWORTH LICENSING JUSTICES EX-PARTE
BIND [1953, 2 A11, E.R. 652 D.C.]; “There must be circumstances from
which a reasonable man would think it likely or probable that the justice,
or chairman, as the case may be, would or did, favour one side unfairly
at the expense of the other. The court will not inquire whether he did,
in fact, favour one side unfairly. Suffice it that reasonable people might
think he did. The reason is plain enough. Justice must be rooted in
confidence: and confidence is destroyed when right-minded people go
away thinking: The judge was biased”.

( 46) In the instant case, with all due deference to the Learned Trial Judge, his
conclusive definitive pronouncements on matters extraneous to the proceedings
and the portrayal of the Applicant as a person with a pretence of journalism which
can be likened to such high crime as terrorism is language which in my view, gives
reasonable cause for the suspicion of animosity and a real likelihood of bias against
the Applicant by any right-minded person.

( 47) It is against the likelihood of such lapses or fundamental breaches of

procedure resulting in a miscarriage of justice that, the power of judicial review
has been vested in this court. I am thus in agreement with the Applicant that, any

Page 89 of 98
 reasonable person concerned with a reading of the judgment of the trial court, will
notice that, the delivery is regrettably replete with unwarranted attacks on the
Applicant by the Learned Trial Judge over extraneous matters of criminality and/or
reprehensible conduct while exercising adjudicatory authority. In that disposition
of apparent bias, it was lost on the Learned Trial Judge that, the Applicant was
not on trial for a criminal offence nor was the Applicant given the opportunity to
be heard on those matters of criminality.

( 48) With all due respect to the Learned Trial Judge, his approach is in my view
an improper exercise of judicial power and same ought not to be allowed to stand.
The apparent real likelihood of bias is so manifest that, it infested a rather sound
and profound exposition of the law on defamation. Consequently, rather than
prescribe a recourse to the appellate process which is mutually exclusive to the
instant procedure elected by the Applicant, I am inclined to granting the
application, as it will be too simplistic to suggest that, even though the supervisory
jurisdiction of this court has been properly invoked, the Applicant be denied relief
in order that his remedy is pursued by way of an appeal.

( 49) In the case of REPUBLIC VS. HIGH COURT, KUMASI; EX-PARTE

BANK OF GHANA AND OTHERS (SEFA AND ASIEDU–INTERESTED
PARTIES) (NO.1), REPUBLIC VS. HIGH COURT, KUMASI; EX-PARTE
BANK OF GHANA AND OTHERS (GYAMFI AND OTHERS –INTERESTED
PARTIES) (NO.1) (CONSOLIDATED) this court in a benign advance while
articulating on the scope of the supervisory jurisdiction unanimously and succinctly
held as follows:-
“The supervisory jurisdiction of the Supreme Court under Article 132 of
the 1992 Constitution was not limited to the issuing of the traditional
conventional writs of certiorari, mandamus, prohibitions etc. under

Page 90 of 98
Articles 132 and 161. The Supreme Court would, in appropriate
circumstances, give directions in cases such as the instant one, to ensure
the prevalence of justice, equity and fairness. The Supreme Court,
indeed, had wide powers in exercising its supervisory jurisdiction, that
was particularly so in view of its previous decision that so long as the
separate requirements of an appeal and of an application for the
exercise of the supervisory jurisdiction had been complied with, a party
should be able to avail himself or herself with either avenue for redress
at the same time. Consequently, despite the fact that the instant
application for certiorari would be dismissed as being untenable, the
court on the principle of ensuring fairness and justice, would grant a stay
of execution of all processes aimed at executing the default judgments
of the High Court, Kumasi until the final determination of the appeal
currently pending before the Court of Appeal. See cases like BRITISH
AIRWAYS VS. ATTORNEY-GENERAL [1996-97] SCGLR 547, REPUBLIC
VS. HIGH COURT, (FAST TRACK DIVISION) ACCRA, EX-PARTE
ELECTORAL COMMISSION, [2005-2008] SCGLR 514, AND REPUBLIC VS.
HIGH COURT, CAPECOAST, EX-PARTE GHANA COCOA BOARD (APOTOI
III- INTERESTED PARTY) [2009] SCGLR 603 cited.”

N BLACK VS, BLACK [1951J N.Z.L.R. 723, COOKE J. held at pages 726-727,
as follows:- "The injunction that is contained in the maxim audi alteram
partem is an ancient principle of the common law ... and anything done
contrary to that principle is contrary to natural justice. It is plain that for
a tribunal to give a party to a proceeding the opportunity to be heard
only after that tribunal had already expressed the view that his evidence
would not be believed would be to treat that principle as a dead letter.
It is equally plain that for a tribunal to give such a party the opportunity
to be heard only after the tribunal had already expressed the view that
the decision in the proceeding should be adverse to him would also be

Page 91 of 98
 to treat that principle as a dead letter. In either of those cases, there
would be a departure from natural justice.”
“… It is now well established that certiorari is available to quash a
conviction regardless of the fact that an appeal is available to the person
seeking the issue of the writ and furthermore if there has been a
miscarriage of justice it is the appropriate remedy.

urther, in the case of IN VS. NORTH EX-PARTE OSKEY 43 T.L.R. 60 ATKIN

L.J., at P.66, affirmed in a statement approved by MacGregor J. in WOODLEY
VS. TOODLEV AND MELDRUM [1928] N.Z.I.H. 4O5, 472, that where there
has been a breach of a fundamental principle of justice the fact that there is a
remedy of appeal is no answer to a writ of prohibition or certiorari. It was
elucidated therein as follows:-
“… A recent affirmation of the above principle can be found in MC
CARTHY VS. GRANT [1959] N.Z.L.R. 1014. It is clear then that if
there had been a breach of the rules of natural justice in this case
then the exercise by the Applicant of his right of appeal would not
have debarred him from obtaining a writ of certiorari which, in the
light of the earlier discussion it is submitted with very great
respect was refused by Sherlund J. without consideration of all the
principles of law involved.”

( 52) Against the background of the common law position as demonstrated

above, it is my view that any proposition that the instant Applicant’s remedy lies
in an appeal would be tantamount to inviting this court to abandon its hallowed
supervisory authority which is a constitutional prescription in preference for the
appellate process of the Court of Appeal. While it is conceded that, the favourable
exercise of this court’s supervisory jurisdiction is discretionary and may conceivably
be refused even when an application is not necessarily unmeritorious, on the facts

Page 92 of 98
 and issues provoked by the instant case, this court ought to be inclined to granting
the application. In my considered view, doing so will not only expeditiously remedy
the manifest injustice visited on the Applicant by the Trial Court, but will guide
judges in demonstrating conduct which is consistent with the judicial oaths we
have all solemnly sworn to uphold.

( 53) In this jurisdiction, this court has settled in a number of cases that, in order
to succeed on an allegation of bias against a judge, the Applicant must
demonstrate, not just a mere or suspicion of bias or actual bias, but a real
likelihood of bias. What amounts to a real likelihood of bias, is not monolithic in
response. Each case must be decided per its peculiar facts. Thus in REPUBLIC
VS. HIGH COURT (CRIMINAL DIVISOIN 1), ACCRA EX-PARTE STEPHEN
KWABENA OPUNI, CIVIL/MOTION NO.J5/58/2021 DATED 28TH JULY
2021, my revered brother, Pwamang JSC observed as follows:
“Bias takes different forms as there are many factors that may
cause a decision-maker not to be impartial. She may have a
pecuniary interest in the subject matter of the enquiry, or she may
be related to one party or a witness by a family or friendship, or
may have dislike for one party or her witness, or may simply have
a prejudiced opinion of the issue to be decided. …. “See also
BILSON VS. APALOO [1980] GLR 15, per Anin JSC. In REPUBLIC VS.
HIGH COURT, DENU; EX-PARTE AGBESI AWUSU II (NO.1)
(NYONYO AGBOADA SRI INTERESTED PARTY) [2003-2004] 2
SCGLR 864 the Supreme Court held that: “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.

Page 93 of 98
( 54) In EX-PARTE BRAIMAH [1969] CC 33 Annan J. (as he then was)
outlined the principles for determining bias of a judge as follows:
(1) In order to succeed, the Applicant must show the
existence of a real likelihood of bias or interest on the part of the
Respondent.

(2) Mere suspicion of bias is not sufficient.

(3) In the absence of proof of pecuniary or proprietary

interest, the Applicant has to show that the Respondent’s interest
in the proceedings (sought to be quashed) is so real and
substantial and of such a nature as to give rise to a real likelihood
of bias.
(4) The test of bias is objective, and it is the view that
a right-minded person would take if he accepted the matters of
fact put forward by the Applicant.

(5) The burden of proof lies on the Applicant and such

burden must be discharged by cogent and credible evidence,
preferably that of independent witnesses.

(6) Wrong adjudication on issues of law by a

committee such as the Constitutional Committee is not evidence
of such bias or interest as would make its decision voidable.
In the instant application, I am satisfied that, the judgment before us, being sought
to be quashed, fails to be accorded the quality of a judgment devoid of a real
likelihood of bias. The delivery in my view, was not informed by an independent
and unbiased mind required of an adjudicator.

Page 94 of 98
( 55) In our jurisprudence, the requirement of fair hearing must involve a fair
trial, and a fair trial of a case consists of the whole hearing including the judgment
proceedings. For, it is a cardinal principle of natural justice that, a tribunal, unless
otherwise empowered so to do must base its findings and conclusion on the
evidence of some probative value adduced, and never on the personal perceptions
of the tribunal especially where a party to the proceedings is not confronted with
such significant matters which form the basis of those findings. Where such a
situation is prevalent as in the instant case, the justice of the matter which the
tribunal is by law enjoined to dispense is naturally compromised.

( 56) What is the response of the Interested Party to the ground of the application
that the Learned Trial Judge was actuated by a real likelihood of bias and in so
doing deprived the Applicant the opportunity to be heard before subjecting him to
the determination of matters of a criminal nature?
It must be emphasized that, the failure of the Interested Party to contest the
application on this ground will not result in a default situation with the potential
result that, the application ought to automatically succeed on that ground. The
situation places a responsibility on this court to examine the said ground with the
view to arriving at a conclusion on whether or not it is meritorious. This
determination will have to be done on the basis of the settled principles of law
pronounced by this court and of other common law jurisdictions which are of
persuasive effect.

( 57) In this context therefore, on the strength of the judicial authorities already
referred to, any conclusion that the instant application ought to fail either because,
granting same will result in expanding the scope of the supervisory jurisdiction or
that, a resort to the appellate process suffices to avail the Applicant a remedy is
with all due respect, not only inaccurate, but inconsistent with settled judicial
authorities. It must be emphasised that, in the exercise of this special supervisory

Page 95 of 98
 jurisdiction vested in this court by the constitution though discretionary, there
should be no reason for apprehension, judicial indulgence, nor conservatism.
Neither should a refusal to exercise supervisory power be influenced by any
considerations of permissiveness, nor preservation of a status quo which is
inconsistent with the peculiar facts of the instant application and the applicable
relevant law.

( 58) Thus, granted for the sake of argument that, there is no available judicial
precedent to assist in determining the issues arising from these peculiar
undisputed facts, or that the matter falls within the class of cases which on the
facts are penumbra, a refusal to grant the application on ground of the need to
narrow access to, or check an abuse of the supervisory jurisdiction or for want of
available judicial precedent on the facts of this application are untenable. As
succinctly cautioned by an eminent jurist of this court, Adade JSC in the case of
MERCHANT BANK (GHANA) LTD. VS. GHANA PRIMEWOOD PRODUCT
LTD. [1989-90] 2GLR page 568 “Precedents are merely to help us think
about cases before us, they cannot do the thinking for us. We are in
danger of submitting our thinking to be done for us, and this is because
the impression is being created that, every case must have a precedent
by which it should be decided, so that rather than do some original
thinking about the case, we first try to look at the deciding precedent,
and then proceed to push our case into the straight jacket of that
precedent.” See also the statement of Lord Denning in the case of PARKER VS.
PARKER [1954]1 AII E.R 22, cautioning on the reliance on precedent in the
adjudication process.

( 59) In my statement in concurring with the majority opinion in the case of

OGYEEDOM OBRANU KWESI ATTA VI VS. GHANA
TELECOMMUNICATIONS CO. LTD. & LANDS COMMISSION, Civil Motion

Page 96 of 98
 No. J8/37/2021 dated 31st March 2021, I instructively observed as follows:-
“The absence of any precedent is no reason why the (an) application
ought to be refused. As the highest and final court of the land, it is not
every legal issue that we can resolve on the basis of judicial precedent.
Judicial decisions are made to resolve particular disputes. A decision
derives its quality of justice, soundness and profoundness from the
peculiar surrounding circumstance(s) of the dispute it is presumed to
adjudicate, within the context of the relevant applicable law. In my
considered view, the rules and accepted principles of law established by
this court cannot be considered in the abstract without proper attention
to, and consideration given to the facts of each case. The facts as in the
instant application are peculiarly material and fundamental and must
assume a crucial role in the process of our decision.”

( 60) In resting this delivery, I arrive at one conclusion. It is that, the Applicant,
had in the impugned judgment been subjected to a pre-judicial determination of
unsubstantiated criminal conduct. Those conclusions of criminality against the
Applicant, were arrived at without giving the Applicant the opportunity to be heard
on them, as required by the due process of law in our criminal jurisprudence.
Consequently, a cardinal principle of natural justice has been infringed in the
process of that adjudication. This situation, clearly motivated by the apparent bias,
which emerged on the part of the Learned Trial Judge in his adjudication of the
case, cumulatively justify and authorise the exercise of this court’s supervisory
power. In the result, this application must succeed.

( 61) Let the judgment of the High court, subject matter of the application, be
brought up to this court for the purposes of being quashed and the same is hereby
accordingly quashed. I will abide all the consequential orders contained in the
opinion of my esteemed brother, Kulendi JSC.

Page 97 of 98
 I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)

COUNSEL
ODEI KROW ESQ. FOR THE APPLICANT.

RAPHAEL AGYAPONG ESQ. FOR THE INTERESTED PARTY.

Page 98 of 98