Division: IN THE COURT OF APPEAL
Date: 25TH JUNE, 1959.
Before: VAN LARE J. A. AS C.J., GRANVILLE SHARP J. A. AND ACOLATSE J.
ARGUMENT OF DR. DANQUAH
Dr. Danquah for plaintiff (Kwami). The learned Land Judge, being already seised of the facts in the matter of Alata Quarter Stool Land, its extent and claims to further extension, was not competent to try the case. He was counsel in four court cases representing the Alata Quarter Stool, or parties who claimed from the Alata Quarter. The Judge’s foreknowledge of the facts could not be said to be not “something reasonably likely to bias or influence” his mind. His judgment was therefore voidable, and should be set aside. It is essential that in matters which come before the Courts, justice should not only be done, but should seem to be done. The failure of the learned Judge to follow this principle nullifies his judgment.
Ollennu J. was Counsel in the “R.E. Acquisition” before Jackson J., and in the Danquah v. Ofei case before van Lare J. (As he then was). The issues to be tried in the present case were whether the defendant was estopped by the judgments against the Osu Alata Stool delivered by Jackson J., and by van Lare J., both of which were confirmed by the West African Court of Appeal. Ollennu J. was Counsel for the grantee of the Osu Alata Stool. He thus had a foreknowledge such as disqualified Coussey J. from hearing the Abbey case (12 W.A.C.A. 156, last three paragraphs on p. 158, in particular the remark of Field J. cited from R. v. Mayor & JJ. of Deal, ex parte Curling (45 L.T. 439), “The interest or bias which disqualifies is an interest or bias in the particular case, something reasonably likely to bias or influence their minds in the particular case”.)
The learned trial-Judge was biased in the legal sense because he was aware of the judgment in Danquah v. Ofei, which declared that the piece of land along the Cantonments Road, Accra was not Osu Alata Land. He must be deemed to have been aware that Osu Alata Stool always claimed land north of the Basel Mission as Osu Alata outskirts land. Also in the early case (i.e. “R.E.”), the land north of the Basel Mission was not Osu Alata Quarter land. He must be deemed to be aware that Alata Quarter Land extended only to 80’ – 100’. He must also be deemed to have been aware that van Lare J. held that any land not contiguous to Alata Quartey is not Alata Quarter Land, but Osu Stool Land. Finally the trial-Judge was also aware that these matters, raised and contended in the actions before Jackson J. and van Lare J., were the same as those to be decided in the present action.
The trial-Judge”s foreknowledge of these facts could not but create a frame of mind which may reasonably be held to be a bias, though the word is not used in any derogatory sense, nor is it suggested that he did anything improper. On the authority of Abbey v. Lamptey etc., he should not have adjudicated in this matter. Ollennu J. as Counsel had been concerned with consistently supporting one view of the rights of the Osu and Alata Stools – it was unfair for him to try this case.
The Court calls on Apaloo to argue the question of bias.
ARGUMENT OF APALOO
Apaloo for defendant (Quaynor). This is the first time that any suggestion has been made that the trial-Judge had foreknowledge of the facts. Every case depends on its own facts, and the facts in this case are simple. The plaintiff is “owner” of land by reason of an oral grant made to him in 1933, confirmed by deed in 1957. Defendant says that his predecessor (his father) had this land in 1897, has been in possession ever since and has built on a portion of the land. Those were the only facts which the judge was called upon to decide. It was also the case that some members of the Alata Quarter had also built on that area upon a grant from the Alata Stool. Can it be suggested that the trial-Judge had any foreknowledge of the facts in this particular case?
What the Judge did have a foreknowledge of was the law to be applied, that is to say the law as decided in the “R.E. Case” by Jackson J., and by van Lare J., in Danquah v. Ofei. It is suggested that the Judge in the instant case attacked, or appeared to attack, the law in those two cases decided by Jackson J., and van Lare J. The observations made by the trial-Judge on the “R.E.” and Mabel Danquah cases were not relevant to the issues to be decided in this case, and I cannot associate myself with some of those observations. They proceeded, no doubt, from excess of enthusiasm.
As far as the instant case is concerned, the law applicable was decided in two cases which came before the West African Court of Appeal. These were,
(1) Aryee v. Adofeley (13 W.A.C.A. 161) and
(2) “R.E.” Acquisition Case (14 W.A.C.A. 492) which lays down principles as to the extent of outskirt land.
The difference between the present case and the cases decided by Jackson J. and van Lare J. is this: In the present case the land in dispute is contiguous to, and an outskirt land of, a quarter; whereas in the other cases the dispute concerned land far away from Quarter Land.
In Abbey v. Lamptey it would appear that Coussey J. had acted as Counsel in a previous case for one of the parties (Lamiokor Lamptey) concerning the same subject-matter as was involved in the consolidated cases which he later tried as a
Judge. I agree that in that case bias in the Judge could be reasonably inferred, for he had foreknowledge in the particular case. There is nothing here to indicate that the Judge was aware of the facts in this particular case as Coussey J. was in the case of Abbey v. Lamptey. The issue in the present case was “whether the plaintiff is entitled to declaration of title to the land.
ARGUMENTS OF DR. DANQUAH
Dr. Danquah: We are not going into the merits at this stage. We say that the learned trial-Judge should not have tried this case because he had been in two previous cases in which he knew a lot about the root of title which was in dispute in the instant case. It is agreed that the trial-Judge was guilty of excess of enthusiasm. That is not a good thing for the public. It is not suggested in any way that the trial-Judge was in fact biased, but it is reasonable to suggest that this position was something likely to bias or influence him. Practical difficulties might arise in the necessary rearrangements ofjudicial lists of business, but such difficulties are of little importance when weighed against the public interest.
COURT
By Court: We desire to hear Dr. Danquah in respect of other grounds of appeal on which he may wish to address us.
Dr. Danquah: On a re-reading, the evidence of Omaboe would appear to provide evidence for the Judge’s finding of fact that the land in dispute is contiguous to Alata Quarter. It is at least difficult to say that the Judge was wrong in so finding. On the merits of the case I cannot very well argue, though the Court may see fit to regard with reserve the evidence of Omaboe. By reason of the trial-Judge’s excess of zeal, and in view of the fact that he appears to have criticised W.A.C.A. judgments, the case ought to go back with a direction that it be re-heard before another Judge.
Cites R. v. Essex Justices, ex parte Perkins ([1927] 2 K.B. 475).
Cottle v. Cottle (1939) 2 All E.R. 535)
Afford v. Pettit ((1949) 113 J.P. 433)
R. v. Huggins ([1895] 1 Q.B. 563)
Without going into the merits, the plaintiff – appellant relies on the question of bias.
COURT
By Court: Apaloo not called on to argue the merits, but only further on bias.
ARGUMENTS OF APALOO
Apaloo: Refers to Abbey v. Lamptey (“interest or bias which disqualifies is an interest or bias in the particular case.”) There was no interest or bias in this particular case which Ollennu J. tried. The land in dispute was close to Osu; the subject-matter was different from the subject-matter of the cases in which Ollennu J. had appeared as Counsel. In all the cases cited by Dr. Danquah, the parties were concerned with bias in the particular case before them. The foreknowledge which Ollennu J. had was no more than knowledge of the law which ought to be applied. There is nothing from which to infer that Ollennu J. had foreknowledge of facts as between Alata Quarter and Osu Stool. He had never been Counsel to either of the Stools, but to other parties. Not only are the parties different in the instant case, but the subject-matter is different also. The bias must be in the particular case. If Dr. Danquah’s argument is accepted, a lot of trouble would result. Further, if local knowledge is to be taken as bias, it would be contrary to what appears in the Headnote in Cottle v. Cottle, cited by Dr. Danquah. And in the Cottle case, the question of possibility of bias was brought to the notice of the justices at the commencement of the case.
ARGUMENTS OF DR. DANQUAH
Dr. Danquah: We do not say Ollennu J. acted dishonestly; we are only relying on a bias in law.
[p.273] of [1959] GLR 269
JUDGMENT OF VAN LARE AG. C. J.
In this case the plaintiff – appellant, relying upon the oral grant to him of a certain piece of land by the Osu Stool in 1933 (confirmed by a Deed of Conveyance in 1957), sued the defendant – respondent for a declaration of title, damages for trespass and an injunction in respect of the said land. The defendant – respondent also laid claim to the land. He relied on a grant to his father, whom he had succeeded according to Osu native customary law. This grant was of a larger area, of which the disputed land forms part, and it had been made by the elders of Osu Alata Quarter in 1897.
There was evidence, which the trial-judge accepted, that after the grant to him the respondent’s late father remained in undisturbed possession till his death in 1933, and also that the respondent’s brothers have built on another portion of the larger area granted to their late father. These were questions of fact which do not appear to have been in dispute, but the respondent challenged the right of the Osu Mantse to grant the disputed land at all to the appellant, and pleaded that the purported grant and conveyance passed no title to the appellant.
On the authorities, it is clear that the Osu Mantse is the proper authority to grant Osu Stool lands; that is to say, land which is not a Quarter Stool land nor a Quarter “outskirt” land. This has been understood and followed by the courts since the judgment of Jackson J., delivered in the Land Court, Accra, in an Acquisition Enquiry under the Public Lands Ordinance on the 24th July, 1951, now popularly known and referred to as the “R.E. Acquisition Case.” An appeal against that decision was dismissed by the West African Court of Appeal (see 14 W.A.C.A. 492). It is also a well established principle of law that the head and elders of a Quarter Stool in Osu constitute the proper authority to grant a Quarter land. On the other hand, where unalienated “outskirt” land is in the charge of the head and elders of a Quarter, the final decision whether or not to make a grant of such land rests in the Osu Mantse. But, although the Osu Mantse may reject the advice of such head and elders of a Quarter, he cannot himself make a valid grant without prior consultation with them (Aryee v. Adefoley, 13 W.A.C.A. 161).
In the instant case, the learned trial-Judge found as a fact, not only upon the evidence led before him in Court but also from a visit to the area by the Court, that the land which is the subject-matter in this case is a developed area, is contiguous to Alata Quarter and forms part of that Quarter. He found himself able to deal with the case on that footing. Even if the learned Judge had found the disputed land to be
[p.274] of [1959] GLR 269
“outskirt” land, as far as it is not an unalienated land the Osu Mantse has no authority to deal with it. And even if it were “outskirt” land in charge of the head and elders of Alata Quarter, unalienated or undeveloped, the Osu Mantse could not make a valid grant (as he purported to do in this case) without prior consultation with the head and elders of that Quarter. In the result, the appellant’s reliance on a grant so made by the Osu Mantse cannot avail him, and he must therefore in any event fail to establish his title. The trial-Judge therefore properly found against the appellant.
If the learned Judge had merely applied the law as above stated to the facts as found by him, it would not be necessary for this Court to add anything to what has been said. The Judge, however, went farther, apparently in excess of zeal. In a lengthy judgment he went on to consider the effect of two previous decided cases, cited before him on behalf of the appellant, whereas those two cases were not in pari materia with the one before him. The Judge himself had appeared in both cases as Counsel for a party claiming title upon a grant by the Alata Quarter Stool, in respect of entirely different plots of land in each suit, at varying distances from the Alata Quarter, and remote from it. One of those two cases was the “R.E. Acquisition case” (supra). The other was Danquah v. Ofei which came before me (as then Judge of the Land Court, Accra) and was determined by me on the 2nd September, 1955, the judgment being upheld by the West African Court of Appeal (see 2 W.A.L.R. 185). The land in question in the latter case was adjudicated to be Osu Stool land, as against a claim based upon a purported grant by the head and elders of Alata Quarter.
In my view it was unnecessary for the learned Judge in the instant case to appear to make any criticism of the decisions, or the ratio decidendi, in either of those two cases. All that the learned Judge need have said, on the argument that he was bound by the decisions in them and that the respondent was estopped by those decisions, was that reasons given by a Judge for reaching conclusions on questions of fact do not become part of the law citable as a precedent, for such decisions are nothing more than applications of good sense to the facts, and not rulings on a point of law. For such a proposition he would have had the support of the recent decision by the House of Lords in the case of Qualcast (Wolverhampton) Ltd. v: Hynes ((1959) 2 All E.R. 38).
By doing what he did, the Judge laid himself open to criticism, which before us took the form of an allegation of legal bias against him. Dr. Danquah for the appellant, who in the end abandoned his
[p.275] of [1959] GLR 269
grounds of appeal as to the merits of the case, concentrated with all seriousness upon the grounds following:-
(a) the learned Land Judge being already seised of the facts in the matter of Alata Quarter Stool Land, its extent and claims to further extension, was not competent to try the case. Learned trial-Judge was Counsel in four Court cases representing the Alata Quarter Stool or parties who claim from the Alata Quarter;
(b) the learned trial-Judge’s foreknowledge of the facts could not be said to be not “something reasonably likely to bias or influence” his mind and his judgment was therefore voidable and must be set aside;
(c) it is essential that in matters which come before the Courts justice should not only be done but should appear to have been done. The failure of the learned Land Judge to follow this principle nullifies his judgment.
Dr. Danquah has argued with great restraint, though with characteristic force. He is anxious not be understood to mean that the trial-Judge acted dishonestly, or was in anyway in fact biased. His point was mainly that it is not necessary in alleging legal bias as a ground of appeal to attempt to establish actual bias; it is enough (in Dr. Danquah”s contention) to establish only a bare possibility, or a mere suspicion, of bias. He contended that if there appears to be anything on which ordinary right-thinking people might reasonably conclude that the decision appealed from might well have been biased, the onus on the appellant is discharged, as in such circumstances justice would not manifestly seem to have been done.
The opinion which I have formed on the authorities is that, in order successfully to impugn the decision of a judge or justices a real likelihood of bias must be established. In my view, it would not be enough to show only a bare possibility, or a mere suspicion of bias. There must be substantial grounds on which ordinary right-thinking persons could reasonably conclude that the judge or justices might well have had a bias in reaching his or their conclusions in the particular case. In the words of Lord Thankerton,
“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
[p.276] of [1959] GLR 269
adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute” (Franklin v. Minister of Town and Country Planning, ([1948] A.C. 87).
Dr. Danquah based his arguments mainly on the local case of Abbey v. Lamptey etc., and Oblitey v. Lamptey etc. (12 W.A.C.A. 156), where it was held that Coussey J. (as he then was) was not competent to try the suits (which had been consolidated) because he had foreknowledge of the facts. Verity C.J. (Nigeria), delivering the judgment of the West African Court of Appeal, said as follows at page 158:
“It has long been held that it is essential that in matters which come before the Courts justice should not only be done but should appear to have been done, and it is for that reason that it is well established that no case should be tried nor any proceedings be heard before any person exercising judicial functions who has any interest or bias in relation to those proceedings. Where the interest is of a pecuniary nature it has been held that the law raises a conclusive presumption of bias (R. v. Sunderland JJ). In R. v. Mayor & JJ. of Deal, ex parte Curling, Field J. said “No doubt it is a general principle of our law that magistrates or persons in a judicial position ought to be quite clear of any interest in a case brought before them” and added “the interest or bias which disqualified is an interest or bias in the particular case, something reasonably likely to bias or influence their minds in the particular case”.
It has been represented to us without challenge that Coussey J. was aware of the facts of the particular case; that he acted as Counsel in a previous case for one of the parties, that is to say Lamiokor Lamptey, in a suit where the subject-matter was the same as the one involved in the consolidated cases which he himself later tried as a judge. It was for those reasons that, at an earlier stage of the proceedings in the court of first instance, an order was made by the Chief Justice that the cases were expressly to be tried by another Judge, “and not Coussey J. as Mr. Justice Coussey is already aware of the facts” in the particular case. The case, however, found its way into Mr. Justice Coussey’s List and he tried it. There is no doubt that, since he had been Counsel retained by one of the parties at one time in a suit involving the same subject-matter, it was impossible to say that a real ground did not exist for right-thinking persons reasonably to conclude that the judge might well have a bias in favour of his erstwhile client. The decision of the Court on appeal was that
[p.277] of [1959] GLR 269
it could not be said that his foreknowledge of the facts of the particular case was not “something reasonably likely to bias or influence” his mind in the decision to which he came.
In the instant case, however, Ollennu J. had never appeared for any of the parties, nor for the Alata Stool as such; but the strongest point in this connection is that he cannot be said to have been aware of the facts in this particular case. The subject-matter in the instant case is different from that in each of the two cases in which he appeared as Counsel at one time, and it is therefore impossible to say that Abbey v. Lamptey etc., is on all fours with the present case.
The foreknowledge of which Ollennu J. was possessed for the trial of the case before him was that of the native customary law applicable to Osu lands generally. On a study of his judgment one cannot but admire the learned Judge’s vast knowledge of local conditions, and the history of the people of Osu and of Osu lands. I refer with approval to the editorial note on Cottle v. Cottle ((1939) 2 All E. R. 535), which is as follows:
“It is said to be one of the features of the administration of justice by local justices that they receive some help in their work from their knowledge of local conditions and of the history of the people who come before them, and that this can form no foundation for a suggestion of bias.
I am unable to hold that Ollennu J. had any foreknowledge of the facts in this particular case which could be said to be something reasonably likely to bias or influence his mind, and I am therefore unable to declare the judgment he delivered void. I would therefore dismiss the appeal. I would wish to say, however, that I do so on the merits of the case, and for the reasons indicated earlier in this judgment, and I would not wish to be understood as agreeing with the obiter dicta in which the learned Judge unfortunately indulged when criticising the judgments which came under review by him.
JUDGMENT OF GRANVILLE SHARP J.A.
I agree.
JUDGMENT OF ACOLATSE J.
I also agree.
