REPUBLIC vs. CONSTITUTIONAL COMMITTEE CHAIRMAN; EX PARTE BARIMAH II AND ANOTHER [1968] GLR 1050

CASES REFERRED TO

(1) Metropolitan Properties Co. (F.G.C.) v. Lannon; R. v. London Rent Assessment Panel Committee;

Ex parte Metropolitan Properties Co. (F.G.C.) [1969] 1 Q.B. 577; [1968] 3 W.L.R. 694; sub nom.

Metropolitan Properties Co. (F.G.C.) v. Lannon [1968] 3 All E.R.304; 19 P. & C.R. 858; sub nom.

R. v. London Rent Assessment Panel Committee; Ex parte Metropolitan Properties Co. (F. G. C.)

112 S.J. 585; sub nom. R. v. London Rent Assessment Committee; Ex parte Metropolitan Properties Co. (F.G.C.); Metropolitan Properties Co. (F.G.C.) v. Kitzinger [1968] R.V.R. 490, C.A.

(2) Amponsah v. Minister of Defence [1960] G.L.R. 140, C.A.

(3) Abbey v. Lamptey (1947) 12 W.A.C.A. 156.

[p.1052] of [1968] GLR 1050

NATURE OF PROCEEDINGS

APPLICATION for orders of certiorari and prohibition to quash certain rulings and orders of a constitutional committee inquiring into destoolment charges. The facts are sufficiently stated in the ruling.

COUNSEL

A. Appiah-Menkah for the applicant.

K. A. Sakyi for the respondent.

JUDGMENT OF ANNAN J.

The applicant in these consolidated motions for orders of certiorari and prohibition is the Adansihene Nana Kwantwi Barimah II and the respondent is Dr. de Graft Johnson who is the chairman of a constitutional committee now inquiring into destoolment charges preferred against the Adansihene by two complainants, Nana Techie Mensah II, Kyidomhene of Fomena and Nana Asiedu Bonkuo, Nifahene of Fomena. The committee was set up under the Chieftaincy Act, 1961 (Act 81).

The orders or rulings of the committee sought to be quashed are set down in the motion as:

“(1) The order or ruling dated 2 October 1968 to the effect that the complainants herein have the customary capacity and the statutory capacity by themselves alone to prefer destoolment charges against the Adansihene.

(2) The order or ruling dated 3 October 1968 to the effect that because the National Liberation Council (N.L.C.) per the Chieftaincy Secretariat had appointed Dr. de Graft Johnson to be the chairman his position as such no matter his bias and interest in the matter could not be challenged by the respondent.

(3) The order or ruling of the commission that the issue as to the capacity of the complainants was not res judicata.

(4) The order dated 13 September 1968 calling upon the Counsel for the respondent to reply to the submission of the complainants’ counsel in the application for injunction when the counsel for the respondent was not present through no fault of his and the chairman had refused to read over the said submission to the counsel.”

The applicant relied on the grounds of bias and interest on the part of the chairman as well as that of “complete disregard of the fundamental conditions of the administration of justice.” The applicant supports his applications with a detailed affidavit setting out the matters of fact on which he relies to establish his case and he also relied on affidavits by the Gyasehene of Fomena and the Akwamuhene of Fomena. The respondent’s case is also set out at

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length in his affidavit and he is supported by an affidavit of one of the complainants, the Kyidomhene of Fomena.

The applicant alleged that the respondent’s wife, Afua Brafowaah, is related to the first complainant, Nana Techie Mensah, Kyidomhene of Fomena and to the queenmother of Adansi, Adani Pomaa. It is not disputed that Adani Pomaa preferred destoolment charges against the Adansihene in 1963 and that the Kyidomhene and Nifahene, the complainants, joined her to prefer supplementary charges in those proceedings against the Adansihene. The Effah Boakye Commission was set up to go into that matter and that commission found that the destoolment charges of 19 August 1963 and the supplementary ones dated 11 October 1963 were null and void and were capriciously preferred without the proper consultations between the complainant and the proper elders who represent the various wings of the Adansi community. The two complainants were parties to the supplementary charges and presumably were brought in to buttress the standing of the queenmother.

The applicant alleged that the respondent had been intimately involved in the dispute relating to his destoolment charges and that he had made efforts to settle the matter and had issued threats against the applicant’s faction to persuade them to settle. The applicant further contends that an examination of the decisions and conduct of the respondent as chairman of the committee shows that he is interested in the dispute and is biased against the applicant.

To succeed in these applications the applicant must show the existence of a real likelihood of bias or interest on the part of the chairman and it is clear that a mere suspicion of bias, however reasonable that might appear, is not sufficient. Since the applicant does not seek to establish that the respondent has a pecuniary or proprietary interest in the matter in dispute he cannot succeed without satisfying the court that the respondent’s interest in the proceedings is so real and substantial and of such a nature as to give rise to a real likelihood of bias. The test of bias, in this respect 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, and the basic rule of fair and impartial administration of justice requires that justice should not only be done but should manifestly and undoubtedly be seen to be done. Bias in this respect may be actual or merely anticipated. Where no case of actual bias is made out, the court has to consider the impression that the conduct complained of might reasonably give to the ordinary right minded person. If such a person would conclude that in the circumstances of the case there was a real likelihood of bias in a person exercising judicial functions, that person should not sit, and if he did, his decision was

[p.1054] of [1968] GLR 1050 voidable: see Metropolitan Properties Co. (F.G.C.) v. Lannon; R. v. London Rent Assessment Panel Committee; Ex parte Metropolitan Properties Co. (F.G.C.) Ltd. [1969] 1 Q.B. 577, C.A.

The main issue of fact to consider is the matter of the relationship of the wife of the respondent to the first complainant and the queenmother. The applicant in his affidavit has set out the antecedents of Afua Boafowaah and if his averments are correct the fact of close relationship would have been established. That matter however is not admitted by the respondent who claims that the mother of Afua Boafowaah is not of Adansi being an Akim and she does not by Akan customary law belong to the clan of her father. With regard to this issue, there is no satisfactory evidence to enable me to settle that issue in the light of the conflicting affidavits of both parties. One would be inclined to doubt whether the Adansihene is in a better position to prove the family history of Afua Boafowaah than the woman’s husband, and there is nothing to lend independent support to the averments of the applicant in this regard. Since the matter of relationship is denied, the burden on the applicant to prove that matter must be discharged by cogent and credible evidence, preferably that of independent witnesses, shown to be in such a position as would lend credence and weight to averments made by them as to the family connections of Afua Boafowaah. I do not regard the Adansihene as being in that position or as such an independent witness. I find therefore that the issue of relationship of Afua Boafowaah to the queenmother or the complainants must be decided in favour of the respondent as the evidence put before me is not of sufficient weight to discharge the burden of proof on the applicant. Although the relationship is not proved, there is however clear evidence that the respondent’s wife is closely connected with Fomena. She lives there, owns property there and was connected with a previous Adansihene, Nana Kwabena Fori. Indeed it was Nana Kwabena Fori who gave Afua Boafowaah to the respondent to marry. Again the respondent admits that he has taken domestic issues affecting his wife to some elders of Fomena to settle. Clearly Afua Boafowaah has been shown to have her roots in Fomena, even if she does not hail from that area. The respondent has said in his affidavit that to the best of his knowledge his wife has no interest in Adansi constitutional affairs and this averment stands without challenge. Clearly Afua Boafowaah herself has not been shown to have any interest in the subject- matter of the dispute and there is no cogent evidence to show that she is substantially connected with either the queenmother or the complainants. In these circumstances there is no good ground to support a finding that the respondent is biased or likely to be biased by virtue of the fact that he is married

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to Afua Boafowaah. If it is not proved that she herself is interested in the dispute or that she is closely connected to others who are, then I am in no position to find on this count, that there is any real likelihood of bias on the part of the respondent.

I turn now to consider the matter of the respondent’s own interest in the dispute. It is said that the respondent himself is intimately involved in Adansi constitutional affairs. There is some evidence that he has foreknowledge of the subject-matter of the dispute; that he had made attempts in the past to settle it and that he issued threats to the applicant’s group to compel them to settle. It is said that he has associated with the queenmother and the complainants intimately and has spent some time in their company. Certainly if these various matters were held by me to be established, the applicant would have made a strong case of interest. Where it is shown that a person vested with power to adjudicate on an issue has foreknowledge of the very issues of fact to be determined by him or that he has shown a clear inclination to support one version of the issues, that fact would be sufficient to disqualify him from sitting either alone or with others to adjudicate on the matter. As was said by Korsah C.J. in Amponsah v. Minister of Defence [1960] G.L.R. 140 at p. 141, C.A.:

“‘To justify an allegation of interest or bias against a judicial officer it must be established that he in fact has 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 towards one side or the other in the dispute.” See also Abbey v. Lamptey (1947) 12 W.A.C.A. 156 at p. 158.

The first observation to make is that none of the allegations of personal bias or foreknowledge has been admitted by the respondent who has sworn to the contrary. These allegations have been made by the applicant himself and two chiefs who appear from their affidavits to be on his side in the constitutional dispute. All three deponents are obviously parties interested in the dispute itself. The issue of fact for determination then is whether I am in any position to prefer the averments in support of the applicant’s case against those of the respondent. In my view, at it’s highest, the case of the applicant disputed as it is on the facts and without independent support, is not shown to be preferable to that of the respondent and does not tilt the scales in his favour, and I find that I am in no position to accept the averments relied upon by him in his affidavits and those of his witnesses. I come to the conclusion therefore that these allegations have not been proved.

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Finally there is the evidence relating to matters occurring in the course of the proceedings of the committee. The argument is that the orders of the respondent in themselves afford evidence of bias. These decisions are those now sought to be quashed, as to res judicata, the locus standi of the complainants, the decisions of the respondent as to his competence to sit on the committee and the decision to bring forward the date of the further hearing. Again it is said that the conduct of the proceedings of the committee shows bias in the respondent.

With regard to the decisions themselves, there may well be a case of error of law made out as to res judicata and the locus standi of the complainants. The view may well be taken with, I think, a large measure of justification, that neither the Nifahene nor the Kyidomhene has the customary capacity by himself and without the support of the elders of Fomena or Adansi to prefer charges against the Adansihene. Again it does appear from the finding of the Effah Boakye Commission that their decision on the preliminary issue before them is a decision as to the capacity not only of the queenmother but also of all the three complainants before that commission, and that the decision means that none of them individually or collectively can prefer destoolment charges against the Adansihene. Indeed if I had to give my own view of the matter I would set them out as above. But then I do not think that the issue whether or not the decision of the committee as to res judicata or customary capacity is right or wrong, affects the issues of actual or likely bias or interest in the present applications. I am of the view that a wrong adjudication on issues of law by a committee such as this one, is not evidence of such bias or interest as would make its decisions voidable. This is so whether the chairman of the committee is a legally qualified person or not and it does not matter that the decisions are contrary to matters of law brought to the notice of the committee. The best qualified of lawyers have been known to make elementary errors of law and the decisions of the appellate courts bear testimony to this fact. I think it would be completely unjustifiable to find interest or bias proved because of a wrong adjudication on a matter of law.

With regard to the conduct of the proceedings of the committee, I find that the decision of the chairman to bring forward the hearing date and to hear counsel for one party in the absence of counsel for the other party was not justifiable. The matter had been adjourned to a definite date and counsel was entitled as of right to an adjournment if he was not in a position to go on on the earlier date. I do not however see any indication of bias on the part of the respondent in this incident, or in the other matters alleged in this respect. With

[p.1057] of [1968] GLR 1050 regard to the newspaper report of what the respondent had said, the less said about that matter the better and it is sufficient to say that such reports of proceedings before a judicial or quasi judicial body cannot seriously be relied upon as evidence of the content of a decision or pronouncement of that body.

In the result I am bound to hold that the charges of bias and interest have not been made out. With regard to the matter of breach of natural justice there has been no decision on the application for injunction and it will, I think be sufficient for me to order that that motion be heard afresh since counsel for the respondent had not had sufficient notice of the motion and the arguments and papers put forward in support of it.

There is one final matter which deserves consideration and that is the fact, not in dispute, that Mr. S. D. Opoku Afari was first appointed as chairman of the committee and was later replaced by the respondent. No reasons have been put before me for the decision to substitute the respondent for Mr. Opoku Afari and of course none need be given either to the applicants or the complainants. That was an executive decision entirely within the discretion of the relevant department of state and I cannot see any valid objection to that course of action. I feel bound however to say that taking into consideration the cumulative effect of some of the matters put before me, namely, the circumstances in which the respondent was appointed, the fact that his wife has her roots in Fomena, my view that the decisions of the committee as to the issues of res judicata and locus standi are wrong in law, the conduct of the respondent in respect of the motion for injunction, the respondent’s previous intimacy with a former occupant of the Adansi Stool and his involvement with the late Krontihene of Fomena, Kwame Abu and his own admission that he was so connected with some unnamed elders of Fomena that he could take his purely domestic issues to them for settlement, taking all these matters into consideration and although I find them not sufficient to satisfy the accepted standard of a real likelihood of bias I am satisfied in my own mind that these are matters which do raise a reasonable suspicion of bias on the part of the chairman of the committee. That feeling however does not satisfy the legal standard and I am therefore compelled to dismiss both applications.

DECISION

Application dismissed.

L. F. A.