THE REPUBLIC vs. HIGH COURT CRIMINAL COURT 4 ACCRA EXPARTE SOLOMON ASAMOAH & ANOR

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: DZAMEFE JSC SITTING AS A SINGLE JUDGE

CIVIL MOTION

NO. J8/284/2026

31ST AUGUST, 2026

THE REPUBLIC

VRS

HIGH COURT (CRIMINAL COURT 4) .…….. RESPONDENT/RESPONDENT

ACCRA

EX PARTE: SOLOMON ASAMOAH ………… APPLICANT/APPLICANT

THE ATTORNEY-GENERAL ………… INTERESTED PARTY

RULING

DZAMEFE JSC:

FACTS

The facts of this case are that the two accused persons, Solomom Asamoah and Prof Christopher Ameyaw-Akumfi, were arraigned before the High Court of Justice (Criminal Court 4) Before Her Ladyship Justice Audrey Kocuve Tay.

The accused persons were arraigned before the court on 13th May, 2026 and 26th May, 2025 respectively on a total of six (6) counts. Each accused person pleaded not to the charges and the matter proceeded to trial. The Charges against the accuse persons are as follows;

Count One

Conspiracy to commit a crime, to wit – wilfully causing financial loss to the Republic, contrary to Sections 23(1) and 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29). [Against both Accused Persons)

Count Two

Wilfully causing financial loss to the Republic, contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29). [Against the 1st Accused Person]

Count Three

Wilfully causing financial loss to the Republic, contrary to Section 179A (3) (a) of the Criminal Offences Act, 1960 (Act 29). [Against the 2nd Accused Person]

Count Four

Conspiracy to commit a crime, to wit – intentional dissipation of public funds, contrary to Section 23(1) of the Criminal Offences Act, 1960 (Act 29), and Section 1(1) of the Public Property Protection Decree, 1977 (SMCD 140). [Against both Accused Persons]

Count Five

Intentional dissipation of public funds, contrary to Section 1(1) of the Public Property Protection Decree, 1977 (SMCD 140). [Against the 1st Accused Person]

Count Six

Intentional dissipation of public funds, contrary to Section 1(1) of the Public Property Protection Decree, 1977 (SMCD 140). [Against the 2nd Accused Person]

On the 10th of June, 2026, the accused filed a Submission of no case after the prosecution ended their case. On 2nd July, 2026, the trial High Court Judge delivered the ruling dismissing same and ordered the accused persons to file their defence within 21 days. On 20th July, 2026, the 1st accused filed a Notice of Interlocutory Appeal against the said ruling and on 21st July, 2026 filed for stay of proceedings before the High Court. On 30th July, 2026 the High Court (Criminal Court 4) presided over by Justice Audrey Kocuvie Tay dismissed the application for Stay of Proceedings pending the determination of the interlocutory appeal and thereupon ordered that the 1st accused file his written statement if so minded within 21 days and fixed a case management conference for 24th August, 2026.

The Applicant also averred that on that same day the trial High Court Judge without cause revoked the variation of his ‘bail” conditions.

On 21st August 2026, the Applicant filed in this Court an application to invoke its supervisory jurisdiction for orders of certiorari a prohibition in respect of the ruling of the High Court dated 2nd July, 2026 and the order of the said Court dated 30th July, 2026.

The substance of the application as gleaned from his affidavit in support, is that the trial High Court exceeded its jurisdiction upon the submission of no case to answer, acted in breach of the rules of Natural Justice, and has conducted the proceedings in circumstances giving rise to the reasonable apprehension that he will not receive a fair and impartial hearing of this defence before the said Judge. That the principal relief he seeks is an order of prohibition restraining the said judge from further hearing, continuing with or determining the said suit.

On 21st August, 2026, the Applicant filed this instant application before this court for order of interlocutory injunction and suspension of order of the said High Court.

The two main grounds for the application for interlocutory injunction and suspension of orders are as follows:

An order of interlocutory injunction restraining Her Ladyship Audrey Kocuvie Tay from proceeding to hear, continue with or determine any part of the case of suit No. CR/0448/2025, The Republic Vrs Solomon Asamoah & Prof. Christopher Ameyaw-Akumfi, currently before the High Court (Criminal Court 4) Accra, pending the hearing and determination of the Applicant/ Applicant’s application for Orders of Certiorari and Prohibition filed herein.

An order suspending the operation and enforcement of the High Court’s order of 30th July, 2026 directing the Applicant/Applicant to file his witness Statement within twenty-one (21) days and fixing a case management conference for 24th August 2026, pending the hearing and determination of the said application upon the grounds set forth in the accompanying affidavit and for any further order(s) as this court may deem fit.

The Attorney General, the 1st Interested party acting for itself and the 2nd Interested party on 26th August 2026 filed an amended Statement of case in response to the applicant’s Statement of case in support of his application for interlocutory injunction.

Submissions

Counsel for the Applicant in moving the motion said this court’s jurisdiction to entertain the application is not in dispute. It is rather a question of whether the application raises any serious questions to be determined in the substantive application for Certiorari and Prohibition and whether it is not frivolous and vexatious. Counsel said the substantive application raises issues among others as to whether a trial court, upon a submission of no case in a criminal trial, make “definite findings” in its ruling.

Counsel referred to some of the alleged “definite findings” of the court. Counsel submits that these findings by the trial court shows an apparent pre-judgment of the outcome of the full trial.

Counsel also raised the issue of the trial court propio motu revoking the varied bail conditions of the Applicant without hearing the accused on the revocation. In so doing the court reinstated bail conditions imposed on 13th May, 2025 which had been subsequently varied on 30th July, 2026. Counsel submitted that granted the variation of bail conditions of 9th February, 2026 were premised on “ongoing trial’ then the 30th July, 2025 bail conditions which were varied on 9th February, 2026 were not premised on ”ongoing trial” and were to be in place until the final determination of the case.

It is the Applicant’s case that since there was no application to the contrary and also that the Prosecution did not oppose the said bail condition imposed on 30th July 2025, the court ought to have reinstated the bail conditions of 30th July, 2025 since it was not going to afford the Applicant a hearing on why the bail conditions of 13th May, 2025 which are more oppressive were to be reinstated by the court.

Counsel submits that these actions of the trial High Court infringed on the right of the Applicant to a fair and impartial hearing is what resulted in the filing of the substantive application for certiorari and prohibition in respect of which the instant application is before this court.

It is the case of the Applicant that if this application is not granted he will have no choice but to face the court which has given him grounds to believe that it has already determined that has caused financial loss to the state and had dissipated state funds without due authorization .Counsel said that Applicant will also have expended considerable resources in opening his defence which in case of victory will be unrecoverable from the State. Counsel submit further that they are only seeking a temporary suspension of the trial court’s orders so that the apex court can deal with the substantive applications before its outcome is defeated should this injunction application be refused. The Applicant counters that this application is not meant to defy nor refuse to comply with the orders of the trial court and the grant will neither cause any undue harm to the public interest but rather will ensure that substantial justice is done. In the event that the application is refused, the Applicant can promptly comply with the trial courts orders within a few weeks in October 2026.

RESPONSE

The Attorney General vehemently opposed the application describing it as misconceived. The Attorney General submits that the variation of the bail bond was granted subject to “when trial was ongoing”. He referred the court to the High Court proceedings of 9th February, 2026. He said the variation only applies when trial is “ongoing” hence the court on 30th July, 2026, the last day of the term time varied same accordingly. He said what the judge did was just to remind the parties of the terms of the bail bond. It is his submission that the courts order of variation had nothing to do with the substantive matter of the trial.

On the submission of no case application by the accused persons, The Attorney General said it is unfortunate because according to him the remedy when a party disagrees with a finding of a judge who was within his jurisdiction is an appeal and not certiorari. He said there are a lot of cases in this court making it clear that when judge acts within jurisdiction the remedy for grievance of that decision is by way of appeal. It is his contention that assuming the trial judge erred in her ruling on the submission of no case, the remedy is an appeal. That error does not go to jurisdiction so an appeal will be the appropriate remedy.

The Attorney General submits further that no irreparable damage will occasion the accused if he opened his defence. There is nothing injurious to an accused filing his defence or disclosing his defence and that cannot be an irreparable damage.

The Attorney General contends that on the balance of convenience, Article 19 (1) of the 1992 constitution commands the Republic to enforce the accused persons right to fair trial and a key element of fair trial is speedy and fair trial. He submits that should the court agree with the Applicant to hold on the trial until all these ancillary matters are sorted out then criminal trials cannot comply with Article 19(1) of the 1992 constitution.

The Attorney General said an injunction is an equitable remedy and discretionary and he who comes to equity must come with clean hands. He said the accused on two occasions refused to comply with the High court’s orders without justification and therefore not entitled to the court’s equitable remedy. It is his view that the judiciary cannot endorse disrespectful conduct and the Applicant is not entitled to the equitable remedy of injunction and so the application be dismissed.

ANALYSIS AND FINDINGS

In considering an application for injunction, like the instant case, the court has the duty to consider the following factors;

Whether the application is not frivolous. That is to say, whether the Applicant has demonstrated that a legal or equitable right existed that ought to be protected by the court. In other words the Applicant must establish that there is a serious question to be tried.

The Applicant is also under an obligation to establish that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted by the court.

The Applicant also has to establish that the balance of convenience is in favour of granting him or her the interlocutory injunction. The balance of conveniences means the court must weigh the disadvantages of granting the relief against the disadvantages of not granting same.

Finally, where the relief sought relates to a public law matter as in the instant case, the court must take into consideration the ‘Public good” unless it is so necessary so to do.

See –

WELFORD QUARCOO VS ATTORNEY GENERAL [2012] SCGLR 259 AT 260

REDCO VS MONTERO [1984/16] 1GLR 710

CRYSTAL CITY LTD VS GOTTFRIED [2011] 29 GMJ 94

VANDERPUYE VRS NARTEY [1984/6] GLR 429

An interlocutory injunction order is a temporary measure taken by the court to preserve the status quo pending the final determination of the suit. It is made at a stage in the proceedings when the court has not had the opportunity to hear and assess the evidence of the parties. The governing principle applicable to applications for interlocutory injunctions is whether on the face of the affidavits there is the need to preserve the status quo in order to avoid irreparable damage to the applicant, provided his case is not frivolous or vexatious.

The granting or refusal of an interlocutory injunction is at the discretion of the court but that discretion has to be exercised judiciously. The fundamental principle in applications for interlocutory injunction is whether the applicant has a legal right at law or in equity which the court is to protect by maintaining the status quo until the final determination of the action on its merits. This could only be determined by considering the pleadings and affidavit- evidence before the court.

See – Owusu vrs. Owusu-Ansah & Anor [2007/8] SCGLR 870.

Interlocutory injunctions are discretionary remedies that a court may grant if it thinks it is just or convenient so to do and same may be granted unconditionally or upon such terms and conditions as the court shall think just. As a matter of fact the law is settled that in granting interlocutory injunctions, the court takes into consideration not only the existence of a legal or equitable right of the applicant, but whether on the balance of convenience, the Applicant would suffer irreparable injury or greater harm which could not be adequately compensated for in damages as stated earlier in this ruling. Indeed, this position of the law involves an examination of the relative strength of the parties cases.

See – Nana Bonsie & 3 Ors vs. Mr. Agyenim Boateng & 3 Ors [2012] 52 GMJ 206.

In the instant application before me, has the applicant established that he has a serious question to be tried by the apex court and not frivolous and vexatious? Has he also established that he has a legal or equitable right which ought to be protected by this court and therefore deserve the grant so as to maintain the status quo until the final determination of the two applications of certiorari and prohibition before the apex court? As gleaned from the applicant’s own affidavit in support of the application, his application to the apex court for the orders of certiorari and prohibition arose out of his dissatisfaction with the High Court’s ruling on his submission of no case after the end of the Prosecution’s case on 2nd July, 2026.

The High Court in its ruling referred above delivered itself thus;

57. “The court has carefully considered the evidence adduced by the Prosecution. At this stage, the court is not required to determine the guilt or innocence of the accused persons. The question is whether the Prosecution has adduced sufficient evidence to establish a prima facie case on each of the counts charged. The court finds that the Prosecution has adduced evidence on all the essential elements of the offences charged. The evidence, if accepted, is capable of establishing that the accused persons caused the payments of US$2,000,000.00 of public funds without the requisite authorization that this has resulted in a financial loss to the state, and that they acted with the requisite intent. The evidence is also sufficient to establish a prima facie case of conspiracy. The inconsistencies in the evidence and the competing interpretations of the documentary evidence are matters to be resolved after the entire trial that is, after the accused persons have had the opportunity to open their defense. They do not provide a basis for upholding the submissions of no case at this stage.

58. The court finds that the accused persons have a case to answer on all counts. The submission of no case are hereby dismissed.

59. The accused persons are hereby called upon to open their defense on all six counts – (Pages 23-24 of the ruling)”.

The Applicant dissatisfied with this ruling filed for an order of Certiorari before this court to quash same.

An order of Certiorari would be made where the order sought to be quashed has been made inter alia;

Without jurisdiction either because the court that made the order has exceeded its jurisdiction or lacks jurisdiction or when there is error of law apparent on the record that makes the decision a nullity. A court having jurisdiction may lose jurisdiction if its decision was made in bad faith, if it has failed in the course of the enquiry to comply with the requirements of the rules of Natural Justice. Certiorari will not lie to quash errors of law which had not been patent on the face of the record and which had been made by a superior court judge who was properly seised with the case before him or her. In that regard an error of law made by the High Court will not be regarded as taking the judge outside the jurisdiction unless the court acted ultra vires the constitution or an express statutory restriction variedly imposed on it.

In other words the law as we understand it is that Certiorari will only lie to quash the decision of a court on the ground of error on the face of the record if such error goes to jurisdiction or is so obvious as to make the decision a nullity. By jurisdiction is meant, of course, the power or authority of the court or judge to give a decision on the issue before it, and in this regard, the correctness or otherwise of the decision is irrelevant for, if there is no jurisdiction, the decision will be quashed although it be right. Where jurisdiction is not an issue the only ground on which the court can interfere is the unreasonableness of the decision which must be patent. (Wednesbury Principles). Where the trial court had jurisdiction the avenue opened to the aggrieved party was appeal and 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.

See –

The Republic vrs High Court, Accra Ex-parte: Sallorm (2011) 1SCGLR

574

The Republic vrs High Court, Accra Ex-parte: Laryea [1981/90] 2 GLR 99

The Republic vrs High Court Ex-parte CHRAJ (Addo Interested party)

[2003/4] 1SCGLR 312.

The Republic vrs High Court Ex- parte Appiah & Ors [2002] SCGLR 389.

In the instant application before me, was the trial High court seised with jurisdiction to hear the matter and the jurisdiction to deliver a ruling on the submission of no case filed by the Applicant herein. The answer is obvious, the trial High Court judge had the jurisdiction so to do. There is nothing before me to indicate the contrary. I do not also see any error nor the unreasonable of the ruling which must be patent on the face of the record before me. Based on the plethora of decided cases on this issue, I am of the conviction that in the absence of any such factors listed above, an error in a decision made by the court seised with jurisdiction must definitely not be a judicial review of certiorari but an appeal.

We have been cautioned on several occasions not to stray into merits of the substantive case when you have an interim application pending before you. I am therefore restrained from commenting on the merits of the application for Certiorari filed by the Applicant. See Ransford France vrs Electoral Commission & Attorney General unreported civil motion J8/84/2012 – per Ansah JSC.

I am however constrained, by the authorities referred to above, to hold that the option opened to the Applicant herein, based on his own affidavit evidence was an appeal and not certiorari. I do not think the applicant has any chances of success for his application as it is misconceived. I do not see any serious question to be tried by this court because the application is frivolous. The applicant has not demonstrated any legal or equitable right of his that need to be protected by this court in this application.

The next issue is whether the Applicant will suffer any irreparable damage should this application be refused and if so whether he can be adequately compensated by damages. From the evidence before me I do see not fathom any irreparable damage that can be caused the Applicant if he filed his witness statement /defence as directed by the trial court. I was not convinced by the Counsel for the applicant on the ground of expenses and waste of resources. I hold that the applicant will not suffer any irreparable damages which cannot be remedied by the award of damages should he succeed on his substantive application before this court.

On “Balance of convenience” as stated earlier, it is the duty of the court to weigh the cases of both parties and assess the party that will suffer more inconvenience if the application is granted or refused. The court weighs which side will suffer more harm, loss or inconvenience. The courts grant the order only if the harm to the applicant for refusing it is greater than the harm to the

Respondent for allowing it. In the instant case, a criminal trial, should the court grant the application then it stops the whole proceedings which may defeat the aim of fair a speedy trial of criminal cases. I said ‘may’ because it can be granted in exceptional circumstances. However, should it be granted by this court then a precedent is set for all accused persons in criminal proceedings to stop and delay the trial at any point when they feel aggrieved or dissatisfied with any ruling, decision or order of the trial courts. In the instant application, I am of the view that greater hardship, harm or inconvenience will be caused the State if this application is granted than its refusal will cause the applicant and I hold so. Since all criminal proceedings are in the name of the Republic, it is very desirable that they are expeditiously dealt with for the citizens to know the outcomes as early as possible for very obvious reasons since the public is repulsive to crime.

VARIATION OF BAIL CONDITION

It is the Applicant’s case that the trial High Court Judge without cause revoked the variation of his bail conditions. Counsel contends whether an order revoking a subsisting variation of bail, made by the Court proprio motu upon no application, upon no evidence of breach, upon a reason unchanged since the violation was granted and without hearing the accused is a nullity. Whether the record as a whole give rise to a reasonable apprehension of bias such that Prohibition ought to issue.

The Attorney General in response submits that variation of bail terms is a discretionary power vested in the trial Judge based on the circumstances of the case. According to Counsel on 9th February, 2026 following the close of the Prosecution’s case and the break in court attendance, the trial judge in her own wisdom varied the bail terms to the original term granted by the trial court on 13th May, 2025. It is their case that there is nothing preventing the trial judge in exercising that discretion particularly in this case where the Applicant has not been denied bail by the variation order. Counsel submits that the fact that this revocation of subsisting variation of the previous bail terms was done without any application, does not amount to any form of bias by the judge for which she should be prohibited from continuing with the hearing of the case. Neither does it warrant her being restrained from continuing with the hearing of the case until the substantive application is heard as this instant application is demanding.

From the submissions before this court, it was revealed that the trial High Court Judge granted bail on terms of the accused reporting three times weekly to the investigator when the case was not “ongoing” and then to report once weekly when the case is “ongoing”. In effect, the accused reported once weekly but on the last day of sitting for the term, the trial High Court by way of reminder reverted the bail terms to the ‘’ non ongoing terms’’. That is for the accused to report three times weekly to the investigator. The Attorney General submits that this was not the first time the Court introduced these conditions, but was just a reminder that the term was over, and sitting would not go on so the accused should revert to the ‘’ non – ongoing “terms.

I do not find any issues with the trial judge announcing this. Infact she was just reminding the parties of the bail conditions as already existing. I do not see how this will give rise to any reasonable apprehension of bias such that the trial Judge be prohibited from hearing the case.

Bias is an issue of fact and there are a legion of authorities that state that mere suspicion of bias is not enough to establish same but the real likelihood of bias.

The term ‘bias‘ has been defined in the Black’s Law Dictionary, 6th Edition at page 162 as inclination, bent, prepossession, pre-conceived opinion, a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly opened to conviction. It is the condition of mind which sways judgment and renders the Judge unable to exercise his functions impartially in particular case. As used in law regarding disqualification of judge, refers to mental attitude or disposition of the judge toward a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.

I do not think the applicant has led any cogent evidence in his affidavit to establish the alleged bias by the trial judge. I do not think reminding the parties about a term of bail conditions already existing to the knowledge of all the parties was sufficient ground to allege bias against the judge. A mere suspicion of bias, or an allegation of bias alone is not enough to establish the bias of a trial judge. The law demands evidence of real likelihood of bias. I do not think the trial judge reminding the parties of bail condition that will apply when the case was not “ongoing” which was already agreed earlier in the trial met that threshold of bias or suspicion of bias against the trial judge to warrant her being stopped from hearing the case. That contention of the applicant is hereby dismissed.

Based on these analysis and the authorities cited, I do not find any merit in this application before me. It is therefore dismissed in its entirety. The case should take its normal course.

(SGD.) S. DZAMEFE

(JUSTICE OF THE SUPREME COURT)

COUNSEL

VICTORIA BARTH ESQ. FOR THE APPLICANT/APPLICANT WITH DAVID YEBOAH ESQ.

DR. JUSTICE SREM-SAI (DEPUTY ATTORNEY GENERAL) FOR THE 1ST INTERESTED PARTY WITH SEFAKOR BATSE (CHIEF STATE ATTORNEY), SARAH FAFA KPODO (CHIEF STATE ATTORNEY) AND GRACE DELALI TALI (ASSISTANT STATE ATTORNEY).