REPUBLIC vs. NUMAPAU AND OTHERS; EX PARTE AMEYAW II [1997-1998] 2 GLR 368

CASES REFERRED TO

(1) Attorney-General v Sallah, Supreme Court, 17 April 1970; digested in (1970) CC 54; (1970)2 G & G 487, SC.

(2) R v Altrincham Justices; Ex parte Pennington DC [1957] 1 QB 549.

(3) Sallah v Attorney-General, Supreme Court, 20 April 1970,; digested in (1970) CC 55; (1970) 2 G & G 493, SC.

(4) Tuffour v Attorney-General [1980] GLR 637, SC.

(5) New Patriotic Parrty v Attorney-General [1997-98] 1 GLR 378, SC; sub nom New Patriotic Partrty v Attorney-General (Ciba Case) [1996-97] SC GLR 729.

(6) Ghana Bar Asssociation v Attorney-General [1995-96] 1 GLR 598, SC.

(7) Kuenyehia v Archer [1993-941]2 GLR 525, SC.

(8) R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256; 93 LJKB 129; 68 SJ 3. (9) R v Sunderland Justices [1901] 2 KB 357; 70 LJKB 946; 85 LT 183, CA.

(10) Frome United Breweries Co v Bath Justices [1926] AC 586; 42 TLR 571; 24 LGR 261, HL. (11) R v Essex Justices; Ex parte Perkins [1927] 2 KB 475; 96 LJKB 530; 137 LT 455. (12) Judges (The) v Attorney-General of Saskachewan (1937) 53 TLR 464.

(13) Northern Securities Co v United States, 193 US 197.

(14) Atkins v US, 556 F2d 1028 (1997).

[p.371] of [1997-1998] 2 GLR 368 (15) Johnson v Darr, 272 SW 1098 (1925).

(16) Franklin v Minister of Town & Country Planning [1948] AC 87; [1947] 2 All ER 289; 63 TLR 446, HL.

(17) Asare v The Republic (No 2) [1968] GLR 50, CA.

(18) Medienhia v Nyabi [1963] 1 GLR 359, SC.

(19) Bilson v Apaloo [1981] GLR 24, SC.

(20) Amponsah v Minister of Defence [1960] GLR 140, CA.

(21) Federal Republic of Nigeria v Chief Abiola [1995] 1 WASC 1, SC.

PRELIMINARY OBJECTION by the applicant, the sixteenth respondent in a pending contempt of court motion, challenging the competence of two of the judges empanelled by the Chief Justice to hear a motion he had filed objecting to the same two judges sitting on the contempt of court application before the court. The facts are sufficiently set out in the judgment of Acquah JSC.

Kwami Tetteh (with him Anthony Forson Jnr) for the sixteenth respondent-applicant. Nana Adjei Ampofo for the first to twelvethtwelfth respondents.

Miss Gertrude Aikins for the thirteenth to fifteenth respondents.

Charles Agbanu for the applicant-respondent.

Charles Hayfron-Benjamin JSC. Learned counsel for the sixteenth respondent has filed a motion before this court, seeking to have two members of this panel excuse themselves from sitting and adjudicating on a contempt of court application presently pending before this court. However, on the motion coming up for hearing, learned counsel, observing that the panel of judges to hear the motion included the two members whom either counsel or his client objected to were present on the panel, peremptorily submitted “that since the present application seeks to remove Hayfron-Benjamin and Ampiah JJSC from this panel, justice would not be seen to have been done for the self-same judges to sit on the application and pronounce on the propriety of their pre sence on the panel.” The reason assigned for this submission was that Hayfron-Benjamin JSC was the sixteenth respondent’s lawyer (a matter on which I will reserve my comment). Counsel further contended that the objection to my sitting on this case was for “the protection of my client.” Counsel referred to the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (LI 613), r 5 (3). It is to be observed that in his submission, apart from the sub-

[p.372] of [1997-1998] 2 GLR 368 mission that the application seeks to remove Ampiah JSC, there was no specific charge against his lordship.

If I understand counsel correctly, what he seeks to do is for this panel to decide whether this panel can decide the issue of the correct composition of the panel to determine his objection. Tautological though such a rendering of the submission may be, it seems to me that learned counsel’s invitation is for this panel to decide either that it would decline jurisdiction in the matter or that in their view the two justices to whom the objection is taken would excuse themselves to enable another panel of this court, differently composed, to determine the merits of his objection.

The Supreme Court case of Attorney General v Sallah (1970) 2 G&G 487 is often cited as authority for the proposition that when such an objection is raised the court ought to be differently constituted for the resolution of the objection. It is however a matter for debate whether the judges of whom the objections had been taken declined to sit on the motion or whether the new panel to hear the motion was chosen by the Chief Justice in the exercise of his undoubted constitutional powers. I would incline to the latter stand, for in the ruling of Amissah JA is stated thus:

“It would be wholly wrong for a party to be allowed to raise objection to a judge based on allegations without foundation. It would equally be wrong if he were to be allowed to exagge rate in order to give a better appearance to his objection than it would otherwise have. Because to yield to that would mean to give power to a party to choose, by a process of elimination through objections, his own judge for his own cause. And that would be fatal to the cause of justice.”

Then again the learned judge wrote:

“We do not think the courts should be reduced to the position in which parties before them may assume the competence of judges to decide in their favour but by their incompetence to decide against them.”

Then also the learned judge wrote:

“We can see some obvious but serious objections to treating judges of the Superior Courts in this respect in the same way as licensing justices in England whose competence is challenged on appeal or on certiorari proceedings”

[p.373] of [1997-1998] 2 GLR 368

These and other dicta in the Sallah case (supra), fortify me in my conclusion that useful though that case is, it is no authority for the proposition which requires objections to superior court judges should be taken and decided by other judges.

The Effiduase stool affairs have been pending in this and other courts over the years and in this court there is hardly a judge who has not dealt with some aspects of that case. Even in connection with this application, a third member of the present panel is men tioned as having dealt twice with some aspects of the case in the lower courts to the detriment of the sixteenth respondent. This court in at least one presentation before us inferentially recognised the applicant to the contempt application as the Omanhene of Effiduase. If the sixteenth respondent were thus allowed to take his objections piecemeal, the situation would be, as Amissah JA wrote in the Sallah case (supra), “to give power to a party, to choose, by a process of elimination through objections, his own judge for his own cause.”

The membership of the Supreme Court is limited by the Consti tution, 1992. The qualifications of its members include approval by Parliament. The quorum for the dispatch of competent (not interlocutory) business is five members thereof. This court is therefore in many instances a court of necessity and must in terms of the oaths of its members render justice to all without fear or favour, goodwill or ill-will. As Amissah JA put it in the Sallah case (supra):

“[But] it is another thing to say that it is good law for the proposition that family relationship of whatever degree is sufficient to disqualify in all cases, for that will make it impossible to administer justice in many cases in our society with its extended family system.”

It therefore behoves the judges of this court themselves to determine what kind of relationships-barring self-disqualification on the grounds of the existence of proprietary or pecuniary interest in pending litigation—–will morally predispose them to disqualify themselves from hearing and determining any pending litigation. The test for so doing was adequately stated in the English case of R v Altrincham Justices; Ex parte Pennington DC [1975] 1 QB at 555 where Bnridge J wrote:

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“I would draw a clear distinction between a formal and perhaps nominal connection between a person adjudicating and a prosecutor, which by itself would not be a disqualifying factor, and a connection between the person adjudicating and the victim of the offence alleged against the defendant.”

In the Ex parte Pennington DC case (supra), Shaw J concluded:

“. . . whenever a question of this kind does arise it would be prudent for the justice concerned to apply a meticulous rather than a casual test to the situation. By so doing he or she would not only serve to maintain standards of the judicial function as a whole but would also preserve the reputation for impartiality of the bench where he or she might sit.”

I am in entire agreement with this statement of the learned judge. I also agree that when so presented with similar objection, as is in this case, the judge must “apply a meticulous rather than a casual test.” In my respectful opinion, it would be wrong for a judge to run away from the judgment seat on the merest allegation of bias or other disqualifying ground. His clear duty is to conduct a meti culous investigation of the allegation, and if proved bow out toc preserve the reputation for impartiality of the bench on which hce sits.

For the present, I would overrule the objection. The same panel shall proceed to hear the objection in respect of the two members of this panel.

JUDGMENT OF Ampiah JSC.

I associate myself with the opinion of my brother Charles Hayfron-Benjamin in overruling the preliminary objection.

Kpegah JSC. On 31 October 1997, one Nana Adu Ameyaw II brought an application for contempt against some members of thce National House of Chiefs and one Nana Osei Worae II (hereinafteir referred to as the applicant.) When the contempt proceedings camce up for determination, the applicant raised an objection to twco members of the panel in a viva voce application. The grounds olf the objection are not, in my considered opinion, relevant for this ruling. The court directed that the objection be formulated and a motion brought for the purpose. Speaking for myself, I supported this approach of a formal motion because if allegations are going to be made against these two judges, natural justice demands that

[p.375] of [1997-1998] 2 GLR 368 they be given the opportunity to possibly react to the allegations in the form of an affidavit.

When this motion was filed, the two judges, namely Charles Hayfron-Benjamin and Ampiah JJSC, were cited as respondents and actually served in that capacity and proof of service filed in the original docket. In selecting the panel to sit on this motion, His Lordship, the Chief Justice selected the two judges also as mem hbers of the five-member panel to hear the application seeking to disqualify them. The applicant thereupon raised a preliminary objection to the court’s jurisdiction, in that the court was impro perly constituted as the panel included the very judges the motion seeks to disqualify and who are in every aspect of the word “parties” to the matter before the court.

I must emphasise that the merits of the allegation of the likelihood of bias made against the judges are at this stage unimpor tant and very irrelevant. The only issue, in my humble view, which this court is presently called upon to decide is whether it is proper for Charles Hayfron-Benjamin and Ampiah JJSC to sit on a motion which seeks to disqualify them and cites them as respondents.

It is a cardinal principle which underpins our administration of justice, and indeed that of all the common law countries, that a person is not allowed to be a judge in his own cause. This is often expressed in the Latin maxim nemo judex in causa sua. This is a principle of natural justice and it is so basic that its deliberate violation is now regarded as a misconduct which would render a judge or magistrate unfit to hold judicial office. At this stage, I would like to quote from perhaps the most authoritative book on the point, de Smith’s Judicial Review of Administrative Action (4th ed) authored by J M Evans. This is what the learned author says at p 248:

“Natural Justice is said to demand not only that those whose interests may be directly affected by an act or decision should be given prior notice and an adequate opportunity to be heard, but also that the tribunal should be disinterested and impar tial. In classical Roman Law the judge who made a suit his own was liable in quasi-delict to the party damnified. In English law the judge who violates the maxim nemo judex in causa sua does not incur civil liability, but prohibition may issue to restrain him from acting., and his adijudication may be [p.376] of [1997-1998] 2 GLR 368 impeached on appeal or by means of an application for certiorari to quash or for such other remedy as may be appro- priate . . . Today deliberate misconduct of this character might well be regarded as rendering a judge or magistrate unfit to hold judicial office.”

(The emphasis is mine.) The emphasis is on the word “deliberate” which, in my view, excludes any waiver on the part of the person affected.

I must confess that I have had very anxious moments and sleeplness nights over this case for several reasons. One of these is, should this court dismiss the objection by the wave of the hand, the Ghana Supreme Court can be quoted in any common law country as holding that a judge who can properly be said to be a respondent in a matter, can sit even though the court is not siftting as court of necessity, or there would be no failure of justice if he does not sit. My consternation and bewilderment are more pronounced because of the fact that this is not the first time this court has been confronted with a problem of this nature and there was no departure from accepted practice in our jurisdiction. There are therefore very healthy precedents to follow which depict our judicial culture which is in tune with the culture of other common law jurisdictions.

The first of these is the celebrated case of Sallah v The Attorney-General, Supreme Court, 20 April 1970, unreported; digested in (1970) CC 55 where the Court of Appeal, sitting as the Supreme Court, was confronted with a similar situation when objection was raised against two of the judges on grounds of likelihood of bias. The original panel hearing the case was Siriboe, Sowah, Anin and Archer JJA (as they then were), with Apaloo JA (as he then was ) presiding. The objection was taken against Justice F K Apaloo on grounds of his alleged close friendship with the plaintiff. In respect of Justice Sowah, the allegation was that his brother-in-law was in a similar situation like the plaintiff, the implication being that the success of the plaintiff would inure to the benefit of his brother-in-law. The second ground alleged against Justice Sowah was that he allegedly mentioned the plight of his brother-in-law to a minister of state. The two judges who were cited in that motion were removed from the original panel and their places taken by Justices Amissah and Annie Jiagge.

[p.377] of [1997-1998] 2 GLR 368

The case of Tuffour v The Attorney-General [1980] GLR 637 is another example. This case involved the determination of the status of the incumbent Chief Justice under the Constitution, 1979. The Chief Justice, Justice F K Apaloo, assigned the case to a panel of which he was not a member. When objection was taken to the capacity of the plaintiff because he had no interest in the matter and that Justice Apaloo himself should have brought the action, the court ruled that the plaintiff need not have any interest and that he had community of interest with the Constitution in view of certain constitutional provisions. In criticizing this view as the wrong reason being given for a correct decision, I, in my dissenting judgment in the case of New Patriotic Party v The Attorney-General (CIBA Case) [1996-97] SCGLR 729 said at 780:

“The Court of Appeal might have been faced with the dilemma of non-suiting an obviously honest plaintiff whose third party claim, as a matter of substantive constitutional law, appeared most likely to prevail. The court, in view of its own finding, could have imported the concept of public interest litigation to give the plaintiff capacity to bring the action. In the alternative, it could have employed the principle in Bar row v Jackson (346 US 249) and Criswold v Connecticut (381 US 479) line of cases to the effect that the right holder himself was not in a morally and legally decent position to institute an action to vindicate his rights in a court of which he was a member and titular head. It would have been awkward for the Chief Justice himself to issue a writ and select a panel to adju dicate on the case. The principles of nemo debet esse judex in propria causa, or nemo potest esse simulactor et judex -—a man cannot sue before himself or his deputy, would have been seriously compromised.”

The next case would like to refer to is the case of Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC. The plaintiffs challenged the appointment of Justice I K Abban as the Chief Justice on grounds that he was not a man of “proven inmtergrityintegrity.” He appointed a panel and excluded himself. The panel of judges who heard that case were Edward Wiredu, Bamford- Addo, Charles Hayfron-Benjamin, Kpegah and Adjabeng JJSC. And when there was an interlocutory decision in respect of which a motion was filed for a review, Aikins and Ampiah JJSC were

[p.378] of [1997-1998] 2 GLR 368 added to the original panel to determine the review application. The plaintiffs promptly brought a motion to disqualify Ampiah JSC from sitting with the review panel on ground of his relation- ship with Justice Abban. A different panel was constituted to de- termine the application and this excluded Ampiah JSC. The coram for the motion was: Edward Wiredu, Bamford-Addo, Hayfron- Benjamin, Kpegah and Adjabeng JJSC. Moreover, Ampiah JSC swore an affidavit to refute the allegations leveledlevelled against him by the plaintiffs.

The last case I would like to refer to is the case of Kuenyehia v Archer [1993-94] 2 GLR 525, SC. The Chief Justice, Justice Archer, excluded himself from the panel. The case was put before the coram: Adade, Francois, Amua-Sekyi, Aikins, Edward Wiredu, Bamford-Addo and Charles Hayfron-Benjamin JJSC.

These very healthy precedents I have referred to, must have been out of respect for a basic principle of natural justice that a person is not allowed to be a judge in his own cause; and certainly in obedience to or in recognition of the dictum of Hewart CJ that “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”: see R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256. As I have already pointed out, the two judges have been cited as respondents, served with the motion paper and supporting affidavit with the proof of service being filed in the case docket. This effectively makes them parties to the motion.

In the case of R v Sunderland Justices [1901] 2 KB 357 at 364, Sir A L Smith MR said: “It appears to me that, in cases where the decision of justices is impeached on the ground of a bias such as is suggested in the present case, the decision must really turn on the questioiin of facts whether there was or was not under the circumstances a real likelihood that there would be a bias on the part of the justices alleged to have been so biased. If there is such a lik- elihood, then it is clearly in accordance with natural justice and common sense that the justices likely to be so biased should be incapacitated from sitting.”

(The emphasis is mine.) My comprehension of the above is that whether there is a real likelihood of bias on the part of an adjudi- cator or not is a question of fact depending on the circumstances

[p.379] of [1997-1998] 2 GLR 368 of the case. This test was applied by that great legal mind, Lord Atkinson in the case of Frome United Breweries Co v Bath Justices [1926] AC 586. I have said that what commends the above dictum to me is the statement that the decision whether there is or is not bias must really turn on the issue of fact, depending on the circumstances of a particular case. If the test enunciated in R v Sunderland (supra) is to be scrupulously applied, then there must be some affidavit from the two judges who for all practical purposes are, in my humble view, respondents in this motion. I pause to ask: how can they then sit on the motion?

The question therefore is whether a reasonable man can suppose that this court, presently constituted, will be seen to be impartial in the determination of the issue of disqualification or otherwise of the two judges when they are also members of the panel? Thus, it is very important that justice should be so administered as to satisfy reasonable persons that the tribunal is impartial and unbiased: see R v Essex Justice, Ex parte Perkins [1927] 2 KB 475. The courts have thçerefore consistently held that any decision from the bench should be quashed if a particular judge has a pecuniary or proprietary interest in the subject-matter because the law presumes bias in such circumstance8s. This also applies where the interest of the judge is neither pecuniary nor a proprietary one, but only a real likelihood of bias. So that if a judge sits on a matter in which he is named as a defendant or respondent, I think the law should presume, if not actual bias, at least a real likelihood of bias.

It is appreciated that when a judge is otherwise disqualified, he may be required to sit if there is no competent tribunal to deal with the matter, or no quorum can be formed without him. In such a situation the doctrine of necessity is applied to avoid failure of justice. Whether a court is siftting as a court of necessity or not depends solely on whether there will be failure of justice if the judge alleged to have bias or real likelihood of bias does not sit, or whether a quorum cannot be formed without him. Such an extreme situation is illustrated in the case of The Judges v The Attorney-General of Saskatchewan (1937) 53 TLR 464. This was a case in which the judges of Saskatchewan were held competent, as a matter of necessity, to pronounce upon the constitutionality of a law making them liable to pay income tax on their salaries. In the instant case, it cannot legitimately be argued that there would be failure of justice unless the two judges sit on the motion which

[p.380] of [1997-1998] 2 GLR 368 seeks to disqualify them because there are other judges available who can enable a quorum to be formed.

In some common law jurisdictions, sensitivity to the rule of nemo judex in causa sua can be extreme. This is demonstrated by what happened in the State of Texas. In 1925, a case involving an association called the “Woodmen of the World” came before the Supreme Court of Texas. All the judges of the court were mem bers of the said association. The problem was nicely solved by thce appointment of an ad hoc court of three women.

In the ruling on the objection to two of the judges in the SallaIh case (supra), the court per Amissah JA expressed an importanit concern in these words:

“It would be wholly wrong for a party to be allowed to raise objections to a judge based on allegations without foundation. It would equally be wrong if he were allowed to exaggerate in order to give a better appearance to his objection than it would otherwise have. Because to yield to that would mean to give the power to a parrty to chose by a process of elimination through objections, his own judge for his own cause. And that it would be fatal to the cause of justice.”

(The emphasis is mine.) I very much appreciate these concerns,; that is, allowing a party to choose his own judges, or allowing a party to engage in forum shopping. But I do not think these dangers must weigh or influence our decision at this stage. This is because we are now dealing with a situation where the law must presume a real likelihood of bias since the two judges have been cited in the motion and are respondents and yet have been empaneledempanelled to adjudicate on the said motion. I think the admonition of Hewart CJ in Ex parte McCarthy (supra) is more relevant here. These are his words of caution: “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.” The decision of this court, sadly I must say, is that the two judges are competent to adjudicate on a motion which seeks to disqualify them from hearing a matter although a quorum can conveniently be formed without them. The question then is, what will be the perception of the reasonable man of our decision that Charles Hayfron -Benjamin and Ampiah JJSC are competent to sit on the main case,; especially when they will attend conference with us’? Certainly, theire will be the suspicion that there had been, in the words of

[p.381] of [1997-1998] 2 GLR 368

Hewart CJ, “an improper interference with the course of justice.” Although this court is the final court of the land, we must realise and admit that we are not unfettered, so as to become undeterred by any consideration in the exercise of, what I may say, is our undoubted jurisdiction. There must be the recognition and admission by us that certain basic principles of the common law can operate to inhibit what we can do since the common law, by article 1 l1(l1) (e) of the Constitution, 1992, is part of the laws of Ghana.

The judiciary in every society derives its strength and ultimately its respect from the perception of the society it serves. And it is an intergralintegral part of our jurisprudence and that of other common law countries that nobody is to be allowed to be a judge in his own cause. Speaking for myself, I shudder at the thought that one day this court will be quoted in another common law country as having decided the contrary. I am glad that I am not part of that decision. My dissent is dictated by law and is in accord with common sense. Holmes J in the case of Northern Securities Co v United States, 193 US 197, said: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and disturbs the judgment. These immediate interests exercise a sort of hydraulic pressure which makes what previously was clear seem doubtful, and before which even settled principles of law will bend.”

Considering all the circumstances of this case, I will uphold the preliminary objection that the two judges are not competent to sit on the motion which seeks to disqualify them because they cannot be judges in their own cause.

Acquah JSC. This is my ruling in respect of an oral objection challenging the propriety of two of our very honourable colleagues to be on the panel of judges for motion No CM8/98 which seeks to disqualify the very two judges on the panel hearing contempt application. The brief facts are as follows:

One Nana Adu Ameyaw II, who describes himself as Effiduasehene, filed a motion for contempt numbered SCM 70/9, against the President of the National House of Chiefs and fifteen others.

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The contempt is in respect of certain conduct of the respondents in connection with the Effiduase chieftaincy dispute which conduct is alleged to be in utter disrespect to both the High Court and the Supreme Court.

His Lordship the Chief Justice appointed for the determination of this contempt application a panel made up Charles Hayfron -Benjamin JSC (Presiding), Ampiah, Kpegah, Acquah and Atuguba JJSC. At the hearing of the application, the sixteenth respondent, one Nana Osei Worae II, also claiming to be Effiduasehene, objec ted to Ampiah JSC and later Charles Hayfron-Benjamin JSC or the panel. And on the direction of the court, a subsequently for mulated his objection in a written motion numbered CM 8/98 headed: Motion on Notice for Removal of Hayfron-Benjamin ancd Ampiah JJSC from Panel. His motion paper was supported by an affidavit and a number of exhibits.

The allegation against Justice Ampiah, as deposed to in thce supporting affidavit, is that he had dealt with an aspect of thce Effiduase chieftaincy dispute when he was a High Court judge irn Kumasi, and that his lordship in that case granted an injunctiorn and made certain findings of facts which are likely to colour his judicial vision to the prejudice of the sixteenth respondent in thce pending contempt application. Against Justice Charles Hayfron -Benjamin, it is alleged that his chambers in Kumasi where hce practiced law before being elevated to the Supreme Court, at all material times acted as his sixteenth respondent’s solicitors, ancd that one Mr K K Pobee in that chambers in particular activel)y engaged in court attendance. Further, the sixteenth respondent alsco had several consultations with Justice Charles Hayfron-Benjamirn himself, then a lawyer, on the Effiduase chieftaincy matter. Conse quently, the sixteenth respondent is of the view that his lordshirp would consciously or unconsciously utilise confidential informa tion parted to him at these various consultations to his, sixteentih respondent’s, prejudice in the pending contempt application.

Now, for the hearing of this motion, CM 8/98, seeking tco remove Charles Hayfron-Benjamin and Ampiah JJSC from the panel sitting on the contempt motion, his Lordship, the Chie: f Justice assigned the same panel dealing with the contempt applica tion. In other words, their lordships Charles Hayfron-Benjamirn (presiding) Ampiah, Kpegah, Acquah and Atuguba, were empanel led to hear this CM 8/98.

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When this motion CM 8/98 came up for hearing, Mr Kwame Tetteh, counsel for the sixteenth respondent-applicant, quickly got up to his feet and orally objected to the presence of Charles Hayfron-Benjamin and Ampiah JJSC on the panel. He contended that to permit the two judges to sit on the motion CM 8/98 which seeks to disqualify the very two judges from the contempt application (SCM 70/97), would amount to permitting the said judges to be judges in their own cause. And this is clearly in violation of the maxim nemo judex in causa sua. Counsel for the other parties in the contempt application on the other hand, argued that the two judges are competent to sit on motion, CM 8/98. This ruling is in respect of this oral objection to the propriety of the two judges sitting on the motion CM 8/98. This ruling does not and has nothing to do with the determination of the validity or otherwise of the allegations levelled against the two judges. As to whether those allegations are valid and weighty enough to disqualify them from sitting on the contempt application falls to be determined when motion number CM 8/9 8 is considered on its merit. For the meantime, the issue for resolution in this ruling is whether the two judges can sit with others on motion CM 8/98. Unless this distinction is appreciated, one would easily slip and allow the merits of the allegation levelled against the judges to improperly influence him in the determination of this ruling. Any such approach would be a misconception of the issue for determination in this ruling.

Now, it is trite knowledge that one of the occasions in which the maxim nemo judex in causa sua can be displaced is where the doctrine of necessity applies—–that is, a judge is not disqualified from trying a case because of personal interest in the matter at issue if there is no other justice available. For in such a situation natural justice must give way to necessity, otherwise there will be failure of justice. The oft-quoted authority on this is Atkins v United States, 556 F 2d 1028 (1977), concerning judicial salaries. The US Court of Claims held that although the judges had direct pecuniary interest in the result, they would hear the case under the doctrine of necessity. But there is also the equally well-known case of Johnson v Darr, 272 SW 1098 (1925) which gave full meaning and effect to the maxim nemo judex in causa sua. By that case, the entire membership of the Texas State Supreme Court excused themselves from hearing a case involving a Masonic-style orgamnisation called “Woodmen of the World.” The Governor

[p.384] of [1997-1998] 2 GLR 368 appointed a special court of three women, presumably in the confident expectation that such an organisation would decline to admit females to membership. In the instant case, the doctrine of necessity has not been raised as a defence, and does not indeed apply. We therefore have to resort to general principles and the nature of the application to resolve the issue at stake.

It can certainly not be laid down as a general proposition that whenever an objection is raised against a judge either sitting alone or on a panel of judges, the judge in question should take part or not take part in the determination of the objection. In my view the answer would depend largely on the way the objection is present ed. If, for example, a party appears before a judge sitting alone, and orally objects to the judge sitting on his case on grounds that the judge is alleged to be a schoolmate of the other party, the party objecting naturally expects, by the manner in which he presented his objection, to hear the judge’s personal reaction to his allega tion. He does not expect the judge to retire for another judge to take over the case before the judge replies from the bar. The objector expects the judge’s determination to his objection, and if he is not satisfied, may appeal against it. But if the objector had filed a formal motion supported by affidavit at that court, different consideration would apply. The judge cannot hear that motion against himself. He has to bring the application to the notice of the Chief Justice for same to be put before another judge. The reason is obvious. The motion is against him personally, and whether he swears an affidavit in opposition or not, he cannot be a judge and opposer at the same time in the same application, This is the precious quality of justice epitomised in the maxim nemo judexin causa sua.

In the instant case the objection to Charles Hayfron-Benjamrin and Ampiah JJSC, has formally been presented in a written motion supported by affidavits and exhibits. The motion is directed to be served and has indeed been served on the parties to the contempt application and each of the two judges. Naturally, the two judges are expected to react in an affidavit to the allegation levelled against them. If not, the allegations contained in the supporting affidavit would stand unchallenged. And unless the application can be disposed of on some legal ground, a court of law would have to accept the unchallenged and uncontradicted allegations in the sixteenth respondent-applicant’s affidavit. By the nature and contents of motion number CM 8/98, I am of the

[p.385] of [1997-1998] 2 GLR 368 firm view that my two honourable judges are indeed the substantive respondents to that motion, with the parties to the contempt application being interested parties. And as respondents, the said judges can certainly not sit in judgment on that very motion. The situation here is indeed not one of having an interest in the matter, in which case, the doctrine of necessity may in certain circumstances be invoked (which circumstances of course do not arise.) The situation here is one where by the nature of the application and the fact that they had indeed been served with the motion papers and its supporting documents, the two judges are properly respondents and therefore parties to the motion. And in such situation, as opposed to having interest in the matter, the doctrine of necessity does not apply. For, if one takes action against a Supreme Court judge, and at the time he filed his writ, the court is at its bare minimum, that judge-defendant cannot be empanelled to sit on that case. The case has to lie at the registry till further appointments are made to the Supreme Court. The doctrine of necessity does not apply to a situation where the judge is a party to the suit. Thus in a circumstance as in the instant case, where by the nature of the application, the judge is in reality a party to that application, no doctrine of necessity can aid the said judge to sit on his case. A classic example like the instant, is the well-known case of Attorney-General v Sallah (1970) 2 G & G 487 wherein by the formal motion filed against Justices Apaloo and Sowah, the said juustices swore individual affidavits refuting the allegations levelled against them. The panel was also reconstituted with Justices Amissah and Jiagge taking over the places of the two ”"“accused” judges when it came to the determination of the motion against them. In that objection, Justices Apaloo and Sowah were, to all intents and purposes, the real respondents to that application and were therefore not empa nelled to sit on that application.

I concede that we judges are there to decide cases and not to excuse ourselves whenever a litigant doubts without cause, the judicial qualities of those assigned to sit in judgment. And litigants should certainly not be encouraged to treat judges like members of a jury whom they can challenge off the case. But at the same time we judges must appreciate that the noble virtues of our vocation enjoin us to comport ourselves in such a way as to be above suspi cion, and thereby instillinstil, in the public, confidence in the adminis tration of justice. We are thus to ensure that it is not merely of

[p.386] of [1997-1998] 2 GLR 368 some importance but is of fundamental importance that in the performance of our judicial duties, justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Therefore, whenever the public has reasonable cause to be suspicious of our fidelity, we must know that we are in danger of losing their confidence. Thus, in the instant case, whatever noble intentions my two honourable colleagues may have and bring to bear in the determination of CM8/98, the public would certainly not accept that justice would seem to be done by their presence on the panel. And the public’s suspicion is certainly supported by law and commonsense. It is for the above reasons that I uphold Mr Kwame Tetteh’s oral objection seeking to disqualify my two colleagues from sitting on motion No CM 8/98.

Atuguba JSC. On 31 October 1997 the applicant-respondent, Nana Adu Ameyaw II, filed Motion No 70/97 before this court for attachment of sixteen persons, of which the respondent-applicant is the sixteenth respondent, for contempt. After some protraction, the said sixteenth respondent-applicant, Nana Osei Worae II (hereinafter called the applicant) filed Motion No 8/98, dated the 9 February 1998 seeking to remove from the panel of judges to hear the said contempt application, Ampiah and Charles Hayfron -Benjamin JJSC. The grounds relied on are that Ampiah JSC had previously, while a justice of the High Court, in a case before him wherein applicant was one of the defendants, condemned his installation and insertion of his name in the register of chiefs. In the case of Charles Hayfron-Benjamin JSC the charge is that he had acted in respect of the proceedings culminating in the present application, as the applicant’s counsel and may consciously or unconsciously make use of confidential information that may have been or was actually imparted to him in breach of a solicitor/client relationship to his detriment. In each case he is apprehensive that justice may not be done to him by their participation in the contempt application.

It is obvious that these complaints are grounded on the well- known common law principle that nemo judex in causa sua or in re sua. The import of this rule was vividly expressed by Lord Thankerton in Franklin v Minister of Town & Country Planning, [1948] AC 87 at 103 when he said: “I would wish that the use of the word ‘bias’ should be confined to its proper sphere. Its proper significance, in my

[p.387] of [1997-1998] 2 GLR 368 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 of bias towards one side or other in the dispute.”

But this rule, in all its beauty, can, in the nature of things human, be open to abuse. Accordingly, and as was masterly put by Amissah JA when delivering the ruling of the Court of Appeal, sitting as the Supreme Court, in Attorney-General v Sallah (1970)

2 G&G 487 at 488:

“It would be wholly wrong for a party to be allowed to raise objections to a judge based on allegations without foundation. It would equally be wrong if he were allowed to exaggerate in order to give a better appearance to his objection than it would otherwise have. Because to yield to that would mean to give the power to a party to choose, by a process of elimination through objections, his own judge for his own cause. And that would be fatal to the cause of justice.”

Because of such danger in choosing one’s own judge, the Criminal Procedure Code, 1960 (Act 30) except as to three thereof, requires objections to jurors to be for a stated cause: see sections 250-252. When the applicant’s motion to exclude from the panel the said two justices came up for hearing on 25 February 1998, he raised, through his counsel Mr Kwame Tetteh, a further objection that the said two justices should not sit to hear and rule on his said objection against them. He contended that justice would not be seen to be done in such a situation. He further contended that where a formal, as opposed to a summary objection. is raised against a judge, such judge could not sit on the objection so raised. He relied on Asare v The Republic [1968] GLR 50 which, for my part, does not establish the proposition for which he contends.

In my view, the further objection that the said two justices should not hear the objection to their participation in the hearing of the motion to exclude them from the panel for the contempt application against the applicant is subject to the usual rules of

[p.388] of [1997-1998] 2 GLR 368 natural justice relating to bias, the broad principles of which I have earlier set out, supra. I do not also think that the filing of a formal motion gives the objection taken any enhanced status. It certainly does not operate to make the two justices concerned parties to his motion, notwithstanding the fact of its service on each of them. They have not been joined in anyway to the applications before this court, see Medienhia v Nyabi [1963] 1 GLR 359, SC. Nor could they, contrary to the principle of judicial immunity from suits, have been so validly joined: see Bilson v Apaloo [1981] GLR 24 at 47, SC.

In Attorney-General v Sallah (supra) however, objections were taken, by motion filed, to the membership of Apaloo and Sowah JJA (as they then were) of the panel in that case on the alleged grounds that Apaloo JA was a close personal friend of the respon dent and that “the relationship between them is so intimate that it will be difficult, if not impossible for” him to decide the case impartially. The relationship was described as “close personal”, “intimate” and “bosom” friendship. On the part of Sowah JA (as he then was) the allegation was that his sister complained to him in tears that her husband was affected by a dismissal exercise by the then government (which was the type for which the respondent was suing the government), and that Sowah JA (as he then was) should help reinstate her husband; and that Sowah JA (as he then was)mentioned it to a high minister of state. A reconstituted panel which excluded the two cited justices heard and overruled the objections.

It is not clear how the remedy of reconstitution of the panel was obtained in that case. But, taking a cue from that case, I am pre pared to hold that where grave charges of bias are raised against a judge (or other judicial officer), such as were involved in the Sallah case (supra) and which require factual resolution, it should be open to the complaining party to apply to the court or the Chief Justice that the panel be reconstituted to exclude the judge or judges concerned from sitting to determine such objections. In such a situation the judge concerned will have to resolve issues of credibility of witnesses on matters that touch and concern him in such a personal particular that the judge concerned, though not a party in the formal sense to the issues for determination, is in all reality, particeps litis and ought not to sit and determine the said issues. Right -minded men will in such circumstances feel that

[p.389] of [1997-1998] 2 GLR 368 there is a real likelihood of bias on the part of the judge if he sits to determine the said issues.

But that is not the situation in the present case. The grounds of objection relied on are hardly in dispute. The real task in this pre sent objection is to apply the impersonal legal test as to when an adjudicator can be disqualified from sitting on a case on the grounds of bias, to the facts which are known and hardly require ascertainment: see Bilson v Apaloo [19811] GLR 24 SC. In such a situation, the beaten track is that the adjudicator objected to can sit on the panel to determine the objection. Thus in Asare v The Republic [1968] GLR 50, CA, Apaloo J A (as he then was) sat on the panel which heard and determined the objection against his membership thereof. The objection taken against him on behalf of the second appellant, Henry Kwadwo Djaba, was that in two passages in the Report of the Commission of Inquitry into the Kwame Nkrumah Properties, popularly known as the “Apaloo Commission” after its chairman, Apaloo JA (as he then was), it was stated that: “(i) Djaba was himself, as is well known, recently convicted of a gigantic fraud;” and (ii) “it is not difficult to discern from the attitude which he put up that he expected the ex- President to intervene to stop the prosecution which resulted in his conviction.” It was therefore contended that those words were likely to convey to the ordinary man the impression that the learned judge had already formed the opinion that the conviction of the second appellant was right; therefore with his participation in adjudicating upon the appeal, justice would not be seen manifestly to have been done. The objection was overruled.

In Amponsah v Minister of Defence [1960] GLR 140, CA, which was applied in the Asare case (supra) the panel was not reconstituted to hear an objection against one of its members to the effect that he had determined the same legal issue in a similar case. In the famous Nigerian case of Federal Republic of Nigeria v Chief Abiola (1995) 1 WASC 1 at 108, an objection was raised to the membership of the panel of the Supreme Court of Bello CJ and Uwais JSC, which was to hear motions incidentally brought before that court by Abiola to which the Nigerian State also filed counter-motions, in an appeal to that court from the grant of bail and the stay of the same by the Court of Appeal. The objection was that the said Chief Justice of Nigeria and eight other Justices of the Nigeria Supreme Court, including Uwais JSC aforesaid, had sued the Weekend Concord for N5 million each for publishing

[p.390] of [1997-1998] 2 GLR 368 certain alleged serious libels, imputing gross improprieties and corruption against them. The suits were still pending at an Ikeja High Court. It was therefore sought, by a formal motion filed, to exclude the two said justices and the others who so sued the respondent from any panel constituted to hear the applications or the appeal before the said Supreme Court. The respondent claimed that he was the virtual owner of the Concord Press of Nigenria Limited which published the Weekend Concord and therefore the ordinary man, notwithstanding legal niceties about corporate personality, would view the suit as one against the respondent as the real defendant and therefore justice could not be done to him if the plaintiff-justices sat on his case. The objection was heard and upheld by the Supreme Court, with indeed Bello CJ and Uwais JSC giving full reasons for the ruling in favour of Chief Abiola. The facts here were also not in controversy.

I am of the view that the present objection fits into this latter series of cases I have referred to and that no reasonable man, apprised of such a beaten track whereby objections as to bias were heard, in such circumstances as in the present objection, by a panel including the justices objected to, would hold the view that justice would not, as a real likelihood, be done or be seen to be done, if Charles Hayfron-Benjamin and Ampiah JJSC heard, in consimili casu, the applicant’s objections to their membership of the panel to determine the motion seeking to exclude them from membership of the panel constituted to hear the substantive contempt case herein.

I would however make the further qualification to what I have just stated that where objections are based on facts which are not only in dispute but flagrantly indicate a real likelihood of bias on the part of the objected adjudicator, it will be an unnecessary risk and a travesty of justice to say that such an adjudicator can none theless sit and rule on the objections against him. That scenanrio ipsa loquitur and clamours for a reconstitution of the panel con cerned.

Again, that is not the position in the present objection. For all the forgoing reasons I would also overrule this objection.

Preliminary objection overruled

SA