Court Rise with Martin Kpebu: Episode 5

Hello and welcome to another episode of Court Rise with me Martin Kpebu.  Today, I’m here with Lawyer Fokuo Benyin.

It’s good that we have divergent opinions. Yes, those help our democracy to grow. We will discuss the Supreme Court judgment concerning Anas Aremeyaw Anas. This judgment has caused a lot of furore, lots of discussions, and lots of debates.

So, in this particular episode, we would look at basically what the decision is about, try to explain certain terms and procedures that perhaps have not been done elsewhere, and then we would also look at a constructive criticism or critique of the judgment.

Alright, so for starters, let’s see what the whole case is about. Now you would remember that sometime in March 2023, the decision, that’s the substantive decision in the case between Anas Aremeyaw Anas and Kennedy Agyapong was given.

What was the case? Anas had sued Kennedy Agyapong for defamation. Anas had a case that Kennedy Agyapong had called him a thief, a liar, a corrupt person. so many allegations, right? So, Anas sought, what do you call it, sought to have his rights vindicated by the court.

You would remember also that it was popularly called the 25 million cedi Anas’ lawsuit, right? Now, fast forward, at the end of the trial, the trial judge did not award a compensation for Anas. In simple terms, Anas lost.

Why? Because among others, for the judge, there were a number of things that Anas didn’t explain. Key among them was the fact that there was a tape in which Anas himself had confessed to receiving some money from Babatunde. That’s a hundred thousand dollars (US$ 100,000.00).

It is said that because of that money that Anas received, that is how come Babatunde eventually was not prosecuted alongside other persons for some crimes. Yes, quite apart from that, the judge also took issue with Anas’ methodology. Yes, as to how Anas chooses to investigate certain persons and not other people.

It’s also instructive to mention that there was also the matter of the financiers. Yes, financiers of the Anas projects, if I may call it so, the investigations. The judge went at length to express some disquiet about how the financiers would finance Anas to undertake his investigations in Ghana and other places in the sub-region and not go to the UK or US to do the same. He had mentioned that there are issues in those countries as well, especially talking about racism, etc.

So, he wondered why we’ve have big cankers in those advanced countries, yet the financiers were not interested in having Anas go to those countries and seek to investigate those issues. As I said, we cannot be very exhaustive about everything that happened in the High Court. This whole programme cannot even discuss everything that happened in the High Court.

This is just to refresh your memories about a few salient points so that it would serve as good background for us to launch today’s main thesis or main point. Now, with this, Anas then filed an application in the Supreme Court.

He filed an application to have the judgment set aside. Yes, that’s a simple term, but in law you hear lawyers say quash. Quash, in simple terms means set aside the judgment, cancel the judgment.

Now, why did he go straight to the Supreme Court? The basis is that sometimes when a judge in the High Court deals with a matter and makes a very big mistake, a litigant is allowed to file straight in the Supreme Court to set the judgment aside. Yes, once again, you know, the style I use.  I try to explain the terms very simply. In the process, I may not succeed in explaining very well, but at least it’s more than sufficient.

 

Yes, it’s a better thing to try to explain simply than to attempt to use the technical terms. So just hold on to this concept that you can jump straight from the High Court to the Supreme Court if you can show that the judge has committed a very big mistake, big blunder, such that as soon as you even look at a document or the judgment, that blunder hits you in the face, that blunder stares you. Thus, it’s so bad that there is no need to wait and go through an appeal process, that’s go to the Court of Appeal, which will take a longer period of time.

Yes, so that’s a simple explanation of going for the supervisory jurisdiction. That’s my simple explanation, but for those who want a bit of technical learning, usually if you’re going to the Supreme Court for a supervisory jurisdiction, they’ll tell you that the main thing is that there has to be an error patent on the face of the record. Now you see that this is technical.

By the time we finish explaining the face of the record it’ll be too much time gone. So please let’s go on with it, with the simple explanation. Now apart from just saying an error patent on the face of the record, there are sub-divisions of that error patent on the face of the record.

They’ll tell you things like if there’s a breach of natural justice, that’s to say if the High Court went into the matter by listening to only one side and not the other. Apart from that also when there is Wednesbury unreasonableness. When we say unreasonableness, simply put, the High Court took certain factors into consideration, certain issues into consideration, and left out others. That unreasonableness has these subsets- Irrationality, illegality. So, it’s just simple.

Now you would also hear that one of the grounds for granting the supervisory jurisdiction, in this case, certiorari, would be that the High Court went beyond its jurisdiction, lack of jurisdiction. So, the court didn’t have jurisdiction to deal with the matter. When you say jurisdiction, simply put, authority, mandate, or power to deal with that matter.

So, these are the main grounds on which the Supreme Court can stand and then cancel a High Court decision because of these various errors. I think I’ve mentioned four. There’s a fifth one we can look at.

So, in this particular case, when Anas brought his case to the Supreme Court, he was basically looking at the real likelihood of bias. The bias in this case he’s talking about is that in the judgment, the judge went beyond the case that was put before him. Apart from that, he also mentioned that there was no jurisdiction because at a point in time there was Justice Mensah, Daniel Mensah, who was dealing with the matter. Daniel Mensah is the Nana Domaahene, the famous Nana Domaahene.

We love him to bits, at least this is one citizen who, despite the fact that he’s a chief and a High Court judge, he has lived up to expectation that he voices his concerns about poor governance. Nana, well done.

So, Nana Domaahene was initially dealing with the matter, and then he happened to have been transferred. And then Justice Eric Baah, was brought in.

He also dealt with the matter up to a point, and a substantive judge was brought to the court. Now, the meaning is that Justice Eric Baah is a Court of Appeal judge, so this matter that was in the High Court wasn’t in his court. It happened that because Nana Domaahene was transferred, then Justice Eric Baah was brought in to hold the fort for a while.

Subsequently, a substantive judge was brought in. I think it’s Justice Gifty Addo. So, the chief justice having brought in a substantive judge, the question was that, or let’s even say normally, that a new judge is to continue because that is a judge replacing Nana Domaahene permanently. So, it’s for that judge to continue. But in this case, it happened that Kennedy Agyapong, through his lawyers, wrote to Chief Justice, Anin-Yeboah to ask that Justice Eric Baah should continue in the case.

Their mistake was that they didn’t notify Anas and his lawyers, and so when Chief Justice Anin-Yeboah took the decision, Anas and his lawyers did not have an opportunity to make an input as to whether they think Justice Eric Baah should continue or not. So, for not notifying them, Anas is now making a case that, based on it, the High Court’s judgment should be cancelled. So, these are the two grounds.

In summary, let me restate that Anas’ case is that the judge showed a lot of bias in the judgment (through his comments). We are coming to that. And then secondly, that the manner in which Justice Eric Baah was allowed to continue the case, that’s to preside over the case, was wrong, or was a breach of the law, because in making that appointment, Anas was not consulted. These are the grounds.

So next part of our episode, we’re saying that what happened in the Supreme Court?  What was the decision? The court looked at these two grounds and came to a decision. The decision was by a majority one, that’s to say, out of the five judges, three (3) of them ruled that Anas had no case on the two grounds that I’ve just explained, and two (2) of the judges thought that Anas had a case. The majority were made up of Justice Asiedu, Professor Henrrieta Mensah-Bonsu, and Chief Justice Sackey Torkornoo. Then the minority who thought that Anas has a case are Justices Yoni Kulendi and Issifu Omoro Amadu Tanko.

Alright, so we’ll come into the details of the various decisions, the various opinions. But to summarise, the majority were led by Justice Samuel A Asiedu, because he wrote the lead opinion. In summary, his case is that, or let’s say his opinion is that, not enough grounds were made in order to set aside the judgment by certiorari. Let’s get it. This is a technical point here.

They’re saying that the method used is wrong. That is to say that Anas should go on appeal, because when it is an appeal, everything that happened in the High Court will be laid before the Court of Appeal, so that the Court of Appeal will be seized with all of those and come to a decision. But if you look at the method Anas used, and which usually lawyers would use, and if you succeed you are lucky, if not, well, sorry.

When you come for the supervisory jurisdiction, it’s not everything that happened in the High Court that is placed before the Supreme Court. No. You know, all the documents, the evidence that is given, no, they don’t.

Of course, usually a lawyer can bring as many as possible to support his case, but from practice, you would never succeed in bringing everything that happened in the High Court to the Supreme Court for this supervisory jurisdiction exercise. So that’s why the Supreme Court said that, for them, they don’t have enough evidence before them to be able to go into an analysis to justify or to hold whether Anas was really a victim of the real likelihood of bias or not. So that is a proof of it.

Then number two, on the matter of Anas not getting an opportunity to make an input into the decision to allow Justice Eric Baah to continue or not, the court held that he had come too late. That’s to say he slept on his right. And when it comes to this second point, actually all the five justices were unanimous in it, saying that, yes, Anas and his lawyers had slept on their right. They should have raised that objection when they got notice that Justice Eric Baah was to continue the case. That, was years ago. So, once they didn’t raise that objection at that time, and they allowed Justice Eric Baah to continue, finish, and deliver the judgment, it was too late to raise the case. So that’s the basis on which Anas lost.

When it comes to the minority, that’s Justices Yoni Kulendi and Tanko, they say that, if you look at the judgment, there were lots of statements that the judge made, and those statements really showed that he harboured a lot of ill will and hatred for Anas. That’s just summarizing. And so for them, they would cancel the judgment.

But, you know, they are in the minority, so at the end of the day, the judgment wasn’t cancelled. Yes. A final comment on this. The majority made a point. I remember Justice Asiedu made a point that, yes, some of the words used by the judge were quite strong. But as he mentioned, the Supreme Court wasn’t the forum.

The Supreme Court wasn’t the forum for determining whether that would amount to the real likelihood of bias. Yes. So at least there is a recognition in the majority that some of the words used were quite strong. We’ll come into the details of the words now that we’re coming to the analysis.

So at this juncture, I would let Lawyer Fokuo Benyin come in with his perspective of the judgment. So, for the first time, I have a guest. Hopefully, this is not the last time you’ll be seeing him. We pray we’ll get to have him on the show more often so that we’ll have a diversity of opinion.

Lawyer Fokuo Benyin: Thank you very much, learned counsel. Thank you for the opportunity. I think you did a very fantastic job with explaining or giving the background of the case; breaking down the legalese that otherwise would have made it quite difficult and technical for lay persons to appreciate.

Now, just a few additions to what you said. Regarding the reasons the majority gave for dismissing the first ground of Anas’ application.You mentioned the fact that Anas slept on his right by failing to raise the issue about the jurisdiction early. Actually, that was one of two grounds upon which the majority and indeed the entire bench unanimously dismissed that ground of the application. I think the first ground was that the CJ or the Chief Justice had power or the jurisdiction to make administrative decisions concerning the transfer of cases.

And that even though it would have been good practice for the other party to be notified as to what went into the decision-making regarding the appointment of Justice Eric Baah to continue the case, the lack thereof did not necessarily invalidate the administrative decision that the CJ had taken. And so, therefore, you could not say that Justice Eric Baah acted without jurisdiction.

But even if he did, then the second point also comes in. That’s why do you wait until the last minute when judgment has been delivered and the trial judge had become functus officio for you to raise it? Then they ask the question, would you have challenged or protested the lack of jurisdiction if the judgment had gone in your favour?

But then now, delving straight into my submissions, I would want, for lack of time, you know, there were, there are about three different judgments, sorry, opinions, that were written apart from the two main leading ones by the leading majority ruling by Justice Asiedu and the main dissenting ruling by Justice Yoni Kulendi. There was also the concurring ruling of her ladyship, the Chief Justice Gertrude Sackey Torkornoo, and then the co-dissenting opinion by his Lordship Tanko Amadu.

 

Now, I would want to concentrate specifically on the leading majority decision and then the leading dissenting decision. That is to say, the opinions of Justice Asiedu and then the opinion of Justice Yoni Kulendi.

Now, concerning the first point, I think there is no need over flogging it since it was unanimous and you have done substantial justice to it. What appears to be the bone of contention really and truly in this matter had to do with the issue of bias. It is at this point that the bench had divergent views.

Now, the majority was of the firm opinion that the statements that Anas alleged to have evidenced the apparent bias or the real likelihood of bias indeed do not evince such bias.

His Lordship Justice Asiedu took great pains to reproduce these statements seriatim or let me just say produce them one by one and made a determination that first and foremost it is the duty of a judge to make findings of facts based on the evidence that have been presented on the record and that making judicial findings cannot be what we call or characterize as evincing bias. And that if you allow litigants who have lost a case to attack the judge based on making specific findings of facts that he has judicially made then you are more or less disabling the judge from doing his work.

His Lordship did concede that some of the words were too strong though. However, strong as they may be, they were borne by the evidence.

For example, his Lordship made reference to the fact that the trial High Court judge made findings to the effect that Anas had himself admitted to receiving a bribe in order to delete one person from the number of names that he had presented, he had made adverse findings or complaints against. And indeed, really and truly this person was not part of those that were prosecuted. So, his Lordship asked, assuming it was not Anas who took his name out and that it was the prosecution, once he found out, did he protest the fact that this person’s name was not included in those that were prosecuted? No, he did not.

Now, we all know Anas. In some instances, when we cast our minds back, he actually went at great pains to make sure that people who had been implicated in his exposes were actually made to face the law. So therefore, if in this particular instance he wasn’t, then what could have been the motivation? So, his Lordship, Justice Asiedu, was of the opinion that the trial judge found as a fact that Anas had admitted to receiving a bribe, which is a criminal offence. And it is on this basis that he did not find anything wrong with the trial High Court judge making findings of criminality in an otherwise civil matter.

Now, we go to Justice Yoni Kulendi’s dissenting judgment. His Lordship, Justice Yoni Kulendi, on the issue of bias made an attempt to establish the various legs under which the claim of bias falls within the limited grounds that a party could approach the Supreme Court for judicial review in the nature of a certiorari. You mentioned them that if there is an error of law that is patent on the face of the record, there is a breach of natural justice, natural justice which has sub themes which is a party not being heard or only one party being heard, and then a person being a judge in his own course.

Then there is the excess or want of jurisdiction which is the first head under which Anas was asking and which the court unanimously dismissed and then the Wednesbury principles which you elucidated. Now, according to Justice Yoni Kulendi, he identified that Anas’ second ground of bias came under the principle of natural justice.

 

And this is what his Lordship said. He said the application is, that would be at paragraph 25 of Justice Kulendi’s ruling:

“25.The application is premised primarily on an allegation of the breach of the rules of natural justice. The principles of natural justice are twofold. These are

1. the right to be given a fair hearing, otherwise known as the audi alteram partem rule, and
2. the rule against bias, otherwise known as nemo judex in causa sua.

He continues:

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

This is where, with the greatest of respects to his Lordship Kulendi, I disagree fundamentally with him. And the reason I disagree with him is that bias in the nature that Anas pleaded his application does not form part of the rules of natural justice. As we all know, and as his Lordship said, the natural justice is in twofold.

The one, the audi alteram partem, which said let both sides be heard. That is one. The second is to say that a party should not be a judge in his own cause.

It is not a rule of bias. It is just an aspect of bias that’s arising from the adjudicator having some form of personal or proprietary or some other form of interest in the subject matter. Here, was it ever alleged by Anas or anybody that his Lordship Justice Eric Baah had any personal or other interest in the subject matter? No. No such accusation was ever made. And so therefore, his Lordship’s attempts to rope in the bias that Anas had alleged under the rules of natural justice so as to make it fall within the grounds for which he could come to the Supreme Court for supervisory jurisdiction was with the greatest of respect to his Lordship, fundamentally erroneous.

Lawyer Martin Kpebu: So can I ask a brief question on the issue or it will disrupt you? You don’t think that he says that from the statement Justice Baah made, then it meant that he had already harboured those thoughts, those ill-willed, preconceived notions and dislike? So, meaning that Anas never got a hearing?

Lawyer Fokuo Benyin: No, that is not what it means. What he’s saying is that Anas is not alleging that he didn’t have a hearing. Anas never in his application and it has never even been suggested by either Justice Tanko or Justice Kulendi that Anas never got a hearing. Anas participated in the entire trial process. He had the opportunity to examine and cross-examine and everything.

Lawyer Martin Kpebu: Yes, but there are the authorities down there in the judgment that showed that because the judge didn’t come to the court with an open mind, he he had prejudged the case. That is the meaning of not getting a fair hearing.

Lawyer Fokuo Benyin: I would take all those authorities one by one to show you how they are either factually distinguishable or completely inapplicable to the present facts of this case. It was never alleged that Anas did not have the opportunity to present his case. Anas presented his case, participated throughout the trial; the entire trial process and then it was after the judge had delivered his judgment that he sought to allege what we call the bias. That bias does not suggest that the judge either knew or had a close personal relationship with Kennedy Agyapong or any substantial fact in issue so as to make him a judge in his own cause and so therefore his Lordship could not possibly have fixed Anas’ bias under the subset of natural justice and you would see that the rest of his Lordship’s ruling is actually premised on this. So, if this crumbles what it means is that everything else that his Lordship Kulendi built upon this particular principle also comes tumbling down.

Yesterday, I read a very illuminating opinion from one of our colleague lawyers called Francisca Boateng in which she makes a very interesting point. She says that in fact all the judges, both the majority and the minority actually missed a very important point. Which is that bias, real or apparent or real likelihood of bias is not something that you can pursue by way of certiorari. Then I’ll show I agree with her in the sense that when it come to prohibition, normally all the classic examples of cases of bias that have happened normally take place within the course of the trial or before. So that you go before the Supreme Court for judicial review in the nature of prohibition to prohibit the judge from continuing to hear the case.

So, prohibition is prospective whereas certiorari looks back to correct or quash a wrong that has been made, a judicial wrong that has been made now and his Lordship Kulendi I believe was very much aware of these facts and indeed in all the plethora of judicial authorities and precedents that he cited, majority of them being foreign decisions not a single one of them was the subject matter or even judicial review proceedings or a certiorari application. Almost all of them, in fact all of them bothered on appeal.

So, it means that you if you are alleging bias you have two options. One, to either make sure to ventilate your protests before the trial has concluded by way of a prohibition or if you wait until judgment has been given and the trial court has become functus officio, then you appeal and there is good reason for that which you touched on. The reason being that in an appeal, the appellate court has the full complement of the record comprising the party’s pleadings, their witness statements, their documentary evidence, their oral evidence and every other documentation that was filed in the process of the hearing. Whereas in a certiorari application which is merely commenced by originating motions, all the supervisory bench has is the motion paper, the affidavit in support which is supported by mostly documentary pieces of evidence right? And then your statement of case which is  the legal principles that you will rely upon. So the court in such an application is severely handicapped. That is why their Lordships in the majority were of the opinion that Anas would have been best suited to come by way of an appeal so that the appellate courts could rehear the matter. Because an appeal is fundamentally a rehearing of the trial. So they will rehear the matter and consider the record for what it is worth and see if any of the findings or facts were supported by the evidence on the record.

But before their Lordships at the Supreme Court they didn’t have any of this and so the majority believe that and I agree with them, that it was completely wrong for Anas to have come by way of a certiorari. Now, I believe his Lordship Yoni Kulendi was very much alive to this point that is why he tried very hard to find a basis that could justify his claim that Anas could come by way of certiorari. When you look at paragraph 44 of Justice Yoni Kulendi’s ruling and if I may, I can read. He says that

“44.I am of the further opinion that judges must be particularly sensitive to the need not  only to be fair but also appear to all reasonable observers to be fair”

and I jump to where he said

“The harm occasioned by bias may be remedied by an application, in the case of a lower court, to the High Court, and in the case of a Superior Court, to this court, for an order of prohibition if the proceedings are still underway, or for a certiorari to quash a decision already been made.

For this, his Lordship purports to and I stress on the word ‘purports’ to rely on the Canadian Supreme Court case of R v S which is the citation is (RD) [1993] 3 SCR 484. I took the pains to search for this supreme court decision and read and I say with a lot of regret and disappointment that the Supreme Court of Canada never said anything even remotely close to what his Lordship Yoni Kulendi attributes to them. This is what the Supreme Court of Canada said and I read:

“If actual or apprehended bias arises from a judge’s words or conduct then the judge has exceeded his or her jurisdiction. This excess of jurisdiction can be remedied by an application to the presiding judge for disqualification if the proceedings are still underway or by review of the judge’s decision. “

This is what the Supreme Court of Canada said and this is what his Lordship Yoni Kulendi purported to paraphrase in his own judgment that the Supreme Court of Canada said this excess of jurisdiction can be remedied by an application to the presiding judge which in the lower courts would be the High Court for disqualification if the proceedings are underway that is if the trial is still in progress for an order of prohibition that so the order of prohibition is what the Supreme Court of Canada called disqualification. That where the proceedings have terminated, you go by way of appellate review of the judge’s decision. However, his Lordship Yoni Kulendi said for a right to quash a decision already made. What is the meaning of appellate? What is an appellate proceedings? The word “appellate” is a derivative from the word “appeal” that is why I just said that an appellate court has the full complement of the of the record of proceedings before it. So the supreme court of Canada said once the proceedings have terminated, then you go by way of appeal so the supreme court. It never said you can go for a right to quash a decision that has already been made because of bias. So for this, I consider it to be the most profound judicial blunder or infraction that anyone can make. In fact a comparable misconduct in academia will be someone a postgraduate student actually devising a non-existent reference.

His Lordship purported to attribute to his brothers and sisters in Canada what they never said and this shows that his Lordship combed and combed and combed for an authority to back his position but he could not find any. I can take you to every single one of the decisions that his Lordship relied on. For example, you look at the ex parte Dallaglio that his Lordship relied on. That’s a United Kingdom Court of Appeal decision where his Lordship said that a coroner was removed because he had said the parties or the dead person’s relatives were mentally unwell and unhinged and therefore that made him unqualified. I will tell you how in this case the facts are distinguishable from the Anas Aremeyaw Anas case. This case is simply an incident where there was an accident in which about 50 people died and then a coroner was appointed to inquire into the causes of death. Before then a criminal investigation had been commissioned. So the coroner’s inquest was put on hold. Now the mother and some relatives of one of the dead people had gone on air and made some disparaging comments against the investigators which even affected the coroner. Now the coroner who is a judicial officer. perhaps got upset and decided to use these words “unhinged”. After the investigations had concluded, the coroner purported to find out if the inquest should proceed and proceeded to consider the minority views in the family and said that the inquest should be terminated. It was this that the appellate court decided that the coroner was biased and that he had allowed extraneous matters to affect his sense of judgment right. First and foremost this case is different from the Anas case. Therefore his Lordship’s comparison does not arise. In that this was an appeal. The Annas case was a supervisory application. Secondly the words that were used “mentally unwell” and “unhinged” did not arise anywhere from the record. However in this particular Anas case, there was actually evidence that had been um presented and were on record and based upon which his Lordship made appropriate findings of facts. For example his Lordship Asiedu said that Justice Eric Baah was justified in his findings. Thus Kennedy Agyapong in calling Anas a thief, an extortionist, a criminal whatever was because from the record Kennedy Agyapong had been able to prove beyond reasonable doubt that Anas had engaged in criminality by accepting bribes right. And so unlike the UK case- the ex parte Dallaglio, Justice Eric Baah’s comments were actually borne by the record.

Lawyer Martin Kpebu: Are you sure? There are quite a number of the statements by Justice Baah. You don’t see? So you go on but be mindful. Let me ask you a question. Like Justice Baah said people like that can be hired. They were quite some serious statements; a number of them. To repeat he said Anas can be hired by political enemies. Can you imagine? Yes and you’re playing with that? And where does that come from ?

Lawyer Fokuo Benyin: Let me show you where it comes. In fact Justice Asiedu did justice to it. He said Justice Baah said at page 12 of the judgment. His Lordship Justice Asiedu said that the trial judge found exhibits KOA4 to be a video covering the applicant herein (Anas), one Amakye, a sheikh, an Arabian and a black man. The trial judge (Justice Baah) found that in the said video these persons conversed about their efforts to implicate the Ivorian Prime Minister. The trial judge found that the persons also talked about sharing some percentages with a president and his family. The trial judge then referred to the evidence of the defendant to the effect that the meeting in exhibit KOA was a plot to entrap the Prime Minister of Ivory Coast and the President of Ghana right. Then he went on to say that these people embody their nations.

Lawyer Martin Kpebu: But is that a justification for saying that somebody like Anas can be hired so ascribing an ulterior motive? Has anybody brought any evidence before the court to say that you can hire Anas to go and cause such trouble?

Lawyer Fokuo Benyin: The video is saying that Anas targeted two political leaders of two respective countries. Because there is evidence that uh somebody had been implicated and he collected bribe and released that person and then he has also shown the capacity and the ability to go after political heads. And so assuming he had been able and mind you Anas has been able to disrupt the judicial  system in this country up to its hierarchy to the extent that a number of judges were removed.

Lawyer Kpebu: If you say disrupt, was there evidence or not uh-huh?

Lawyer Fokuo Benyin:  Disrupt, it’s okay. I wouldn’t use the word “disrupt” I would say he caused a massive shake-up. It was justifiable then. I wouldn’t sit here and say it wasn’t justifiable. What i’m saying is that I am trying to um stress on the capacity of Anas right. He has the ability and the capacity and the resources to go after the highest echelons of people be it in the executive be it in the what we call the judiciary, be it in the legislature. So if there is evidence that Anas as an anti-corruption crusader can implicate somebody, take money and then release that person, what it means then is that his immense resources and capacity can be geared towards the wrong motives. Anybody who wants to disrupt or take over power can hire him and the immense resources that he has to deploy it for their own ulterior motives and so this is a finding that the judge was justified in making. He was called to make a finding that and that’s a gun for hire. It was mind you, when you  were introducing the case, you yourself said that and that it went to court because Kennedy Agyapong had called  him certain names. This was one of them and mind you that this particular evidence exhibit KOA4 was introduced by Kennedy Agyapong. In fact KOA is the initials for “Kennedy Ohene Agyapong. So this was Kennedy Agyapong’s fourth exhibit to prove this particular fact in issue. So, this was a fact that was an issue that required the judge to make specific findings upon those facts. So, the judge did not simply go somewhere and pick those issues and inserted them in his judgment. Now I have so um I mentioned the ex-parte Dallaglio. There are other cases I think.  Just to tell you that all the cases  that his Lordship mentioned were appeal cases. Not a single one of them was a certiorari which more or less reinforces the point I have made and the point learned counsel Francisca Serwaah Boateng made that a certiorari application is not best suited for bias. If you allege bias after the cows had bolted then you go by way of appeal and not by way of certiorari.

The last point I would want to touch on is um the issue about whether or not you can make findings of criminality in a civil matter. Leaned,  yes I must say I am quite astounded by  what his Lordship Yoni Kulendi said. Where he I’m trying to look for the particular page um. His Lordship said but I hasten to inquire by what means and by which proceedings did the trial court conduct an inquiry into allegations of crime and find the applicant guilty of sin? By what standard of proof was the trial judge assessing these allegations of crime in a civil trial.

What his Lordship practically said was that it was completely wrong for the trial judge to make findings on criminal um conduct in a civil trial.

Lawyer Kpebu: We all know. My understanding of it is that he said that criminal standard had not been scaled.

Lawyer Benyin:  He was categorical that you cannot make criminal findings in a civil trial.

Lawyer Kpebu: My understanding of it is that they hadn’t made enough evidence. They hadn’t adduced enough evidence. No that is not what his Lordship sought to say.

Lawyer Benyin: What his Lordship said is clear that a judge cannot make findings that border on criminality in a civil trial but that is wrong. Learned, that is wrong.

Lawyer Kpebu: I’ve made a point that that’s not how I understood it. You see the point is that in civil matters where there is a need to make findings that border on criminality, yes the judge is entitled to make appropriate findings. However, the catch here is that, however, there is an enhanced standard of proof. So whereas in civil um in civil cases a party proves his/her case by the standard um ‘the balance of probabilities’, in criminal matters you prove ‘beyond reasonable doubt’. So, once you introduce criminality into a civil matter then the standard of proof transforms from or changes from the balance of probabilities to that beyond reasonable doubt.

Lawyer Kpebu Continues: Now let us find out if his Lordship Eric Baa was justified in making findings of criminality. What was the purpose for which Anas went to court? Anas went to court because Kennedy Agyapong had called him a criminal right?  So, he sought to vindicate his rights by way of a defamation action. Now Kennedy Agyapong’s um defences were that one, what he said was true and also based on justification and other defences. Then he sought to prove the truth of what he said right, by a series of evidence including KOA4. Okay so the issue here is not whether or not his Lordship Eric Baah was right in making findings of criminality but whether or not Kennedy Agyapong had been able to successfully scale the threshold of proof beyond reasonable doubt.

Lawyer Fokuo Benyin: His Lordship did say that Kennedy Agyapong had been able to prove beyond reasonable doubt in proving that Anas had in fact committed a crime. That is what his Lordship said. Whether you disagree or agree with him is another matter. If you disagree with him once again at the pain of sounding repetitious your proper way to go is by way of appeal.

Lawyer Kpebu: Without doubt yes you understand. Except also remember when it comes to Ghana remember that our peculiar circumstances are that the jurisdiction of the Supreme Court under article 132 is wider than the English equivalent. So, let’s not forget that. So anytime people say oh this particular thing especially the argument you made that you cannot use “bias” as grounds to come for supervisory jurisdiction noo. Remember and there are a number of cases that showed that the Supreme Court’s jurisdiction under article 132 is wider than the equivalent in England.

Lawyer Benyin:  Yes so what do you mean by it is wider?

Lawyer Kpebu: You would see British Airways v Attorney-General etc yeah. It’s not debatable at all. Yeah our supervisory jurisdiction is wider.

Lawyer Benyin:  How so? What makes it wider? Because the supervisory jurisdiction the established authorities have circumscribed the grounds upon which you can come.

Lawyer Kpebu: We can do uh another episode purely on it. Maybe for lawyers. But today because we are hard pressed we have about four more minutes that you can land so I can wrap up.

Lawyer Benyin: I was actually just about landing.  So the last thing  I said of course that’s on the findings of criminality in a civil a civil trial. Yes right his Lordship was not at all um wrong in  making findings of criminality in the civil trial and indeed the um majority actually tackled this matter. This is what his Lordship said. His lordship quoted section 13 one of the Evidence Decree (NRCD  323) which says that:

13.In a civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.

His Lordship then quoted the issue that the case of Ayah & Akakpo v Ayah Iddrisu [2010] SCGLR 89 one as that the rule in section 13(1) emphasizes that where in a civil case crime is pleaded or alleged, the standard of proof changes from the civil one of the balance of probabilities to the criminal one of proof beyond reasonable doubt.

Lawyer Kpebu: Absolutely that’s not in doubt.

Lawyer Benyin:  So wherein lies his Lordship Kulendi’s outrage that Justice Eric Baah proceeded to make findings of criminality against Anas in the civil trial. Wherein his outrage?

Lawyer Kpebu: That outrage, it lies in the fact that since the scale of the standard had not been scaled, thus it had not been met.

Lawyer Benyin: Now let me ask you on what basis did his Lordship Kulendi make that determination that the standard had not been met? Because mind you, his Lordship did not have the full complement of the record before him. What his Lordship had were some affidavit evidence, a motion paper, and statements of case right? He did not have the party’s pleadings, he did not have the evidence, he did not have the benefit sitting and watching the parties as they gave their oral testimonies. Justice Eric Baah did.

 

 

 

 

 

 

Lawyer Kpebu: Is that the same as saying he’s a gun for hire? Do you get it? So he can see certain things wrong and say, look, I will deal with it. I’m not supposed to say citizen of Ivory Coast.

OK, even if he’s not a citizen of Ghana, he can see something wrong anywhere. So the point I’m making is that he can see something wrong and say, look, I want to get justice for these people. I want to get the right thing done. So how do you then say that because he wants to fight such rot, he can be a gun for hire? You look at it. Don’t stretch it.

Lawyer Benyin: So, I’m not the one stretching it. He’s a gun for hire. Because there is evidence that somebody had been implicated, and he collected bribe and released that person. And then he has also shown the capacity and the ability to go after political heads. And so assuming he had been able, and mind you, Anas had been able to disrupt the judicial system in this country up to its hierarchy, to the extent that a number of judges were removed.

And so if it had been an appellate’s judgment in which he said that, then he would have been excused. But this is an application originated by someone. So, on what basis did his Lordship Kulendi make that determination that Kennedy Agyapong was unable to scale that threshold of proving reasonable doubt? Reading the judgment, it’s clear.

Lawyer Kpebu: He was just relying on the said confession by Amas. Yeah, that’s what the judge did. Yes, and that confession. That’s a said confession. Is that how you deal with a criminal matter? That’s debatable. Counsel, if there is a confession, do you still go ahead to conduct a trial? So you would have to determine whether it qualifies as a confession, the context of it, et cetera.Then number two, you see the gaping mistake. You see them saying it’s a bribe. It’s a bribe. Is Anas a public officer? That is where the finding collapses. You can’t accuse a private person of accepting a bribe. That is the point. Only public officers can take bribes. Yes, well, you mentioned corruption, bribery and corruption.

 

Lawyer Benyin: Nobody has mentioned bribery and corruption.

Lawyer Kpebu: That is what you read. And they say he’s corrupt. He said you are taking a bribe. Yes, and quoted sections 239, et cetera, of Act 29 (Criminal Ofences Act) which were misplaced.

 

Lawyer Benyin: Anas is not a public officer. Why is it misplaced?

Lawyer Kpebu: Section 239 of the Criminal Offenses Act is for public officers. Yet you say he’s taking a bribe. See a public officer. What public office is he exercising? So you see it. Yes, look at it again.You look at all the sections that are based on section 239 and all that.

Lawyer Benyin: Honestly, I think I disagree with you, but for the sake of time, I believe we can debate on this again.

 

Lawyer Benyin: Now, the last thing I would want to go on is the fact that if a party has the option of going by way of certiorari or some other means, if both are available to that party at the same time,  the Supreme Court could deny the party certiorari.

Lawyer Kpebu: Yes, that’s without doubt.

Lawyer Benyin: And that was one of the reasons why the majority decided to dismiss Anas’ application. And for this, I believe that the majority’s decision was a lot more well-reasoned and accorded with the law than the minority’s decision. Thank you very much.

 

Lawyer Kpebu: So I’ll try and wrap up because you’ve done over maybe 40 something minutes. Okay. So, I will be very brief so that our session will not be unduly long.

So let me see what Professor Kwaku Asare says on this matter. Yeah, I’m reading his comments.

He says:

I find Justice Kulendi’s opinion to be well-reasoned and written.

He makes a clear case that judges do not have a licence to defame parties before them in their opinions. He also makes a novel case that bias can be inferred from an opinion. I am in full agreement with him.

While I understand the CJ’s position that policy requires such matters as were raised by the writ to be resolved on appeal, I respectfully dissent because the opinion of the court below was so egregious that it required quashing by certiorari.

Therefore, I think the apex court missed an opportunity to make it crystal clear to all judges that they can’t use their opinions to make statements that are inconsistent with the impartial performance of the adjudicative duties of their judicial office.

Unfortunately, that missed opportunity will only embolden judges to use the bench to go after parties and groups that they dislike.

In turn, parties will be loath to seek justice if they fear judges hearing their cases will also attack their professionalism or other conducts, okay, unrelated.

Okay, no, no, I think I’m reading this wrong.

In turn, parties will be loathe to seek justice if they fear judges hearing their cases will attack their professionalism or other conduct unrelated to the proceedings.

Okay, great.

The opinion left undisturbed will do grave harm to public confidence in the judiciary at a time when it is important to restore it. The novelty of the issue and its implication call for other justices to chip in their perspectives. So I will urge the plaintiff to seek a review of the decision.If so, no member of the original panel should play a role in selecting the additional justices. While not an issue, I will go further to call for. How is that even possible? Yeah.

Lawyer Benyin: The CJ has an administrative duty, so how can you say this?

Lawyer Kpebu: I get the point.

Continuation of Prof Asare’s take.

While not an issue, I will go further to call for a repeal of section 104 of the Courts Act, which empowers the CJ to transfer a case at any stage of proceedings from any judge or magistrate to any other judge or magistrate and from one court to another court of competent jurisdiction at any time or stage of the proceedings and either with or without an application from any one of the parties to the proceedings.

In particular, I find the ex-parte communication from the interested party, [at’s Kennedy Agyapong], to the CJ, that was the basis of the transfer of the case to Judge Ban to be highly irregular and one that should not be countenanced by our judicial system.

Finally, case assignments and case transfers to judges should be a registrar’s function using a national and pre-announced process that is known to the Bar and the public. It must not come by the CJ or any other judge.

Okay, so these are the comments of Professor Asare.

 

Lawyer Kpebu: Now, I would briefly add, you know, today is good, we are listening to Lawyer Benin, so I would not talk much. But I’ll briefly add that where I see the problem is that the comments that the trial judge made that were not necessary for the adjudication of the matter were one too many. I think that would be very difficult not to fault. Yeah, the comments were too many, so listen to some of them. That’s, you know, we had earlier on referred to the fact that he said Anas is a gun for hire, he can be hired to cause any trouble, you know, which is something that should not be lightly said about a fellow citizen, right? You also, will hear the part that he said that so. Let’s read a few of this. We are just about finishing, let’s do that. Yeah, so this is what Justice Bah said at page 64.

I’m reading from the opinion of Justice Tanko. So he’s quoting Bah.

Justice Bah, who is a trial judge, says, corruption rating agencies have never been kind to Ghana in their ratings.As to how plaintiff, that is Anas and his team, select their subject persons is a matter shrouded in secrecy. But how do they choose their subject persons out of the large number of corrupt Ghanaians?  As things stand, persons selected may just be the unlucky ones, since some of those not selected may be worse than those selected.

 

Lawyer Kpebu: So these, respectfully, I think this goes a bit far. Is that for resolution? The methodology, how people are selected, is that a matter to be resolved in a defamation suit? You see why the justices and the minority thought that Justice Bah had gone a bit too far? Yeah, so look at another one.It says,

it should not, sorry,

It should be understood that as officers caught by plaintiff in his investigations have lost their jobs, an entrapped president may be compelled to resign out of shame or public pressure. That means the plaintiff, through his investigative antics, can cause the removal of a president and thereby the mandate given to him at elections. This is not investigative journalism.It is investigative terrorism. It is exercise of indirect political power under the cloak of journalism.

Yeah, apart from that, you can also go and look at another statement.

 

It says:

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

So you see, these are quite statements. They go a long way off the issues to be settled or the issues to be determined by the court. So, as I’ve said, at least we’ve read all these things. We may come back and do a part two of this so that the debates are good.

Yes, especially as I have two cases from America- State v Belcher (Connecticut Supreme Court) Florida, and other cases, where you would find that in the US, these debates to, I mean, when I say debates, that’s judgments that complain about certain terms and words used by judges have also occurred. So you’ll find that in the US court, the Supreme Court of one of the states made it clear that even a word as simple as ‘super predator’ should not be used in a judgment. You know, we were used to the word ‘predators.’ Yeah, but when you add ‘super’, the court came to a conclusion that the decision of the judge could not stand because he had used the word ‘super predator’.

And when they went into it, they found that the basis of that term itself was false. So that is to say that the judge had used false information in deciding a case before him.

Lawyer Benyin: This decision, was it by an appellate bench or it was a judicial review bench?

Lawyer Kpebu: Yeah, so it was an appellate bench, I would say. So always remember, counsel, I’ll remind you every time that the jurisdiction of the Supreme Court under article 132 is wider. So always also remember that the court didn’t take issue with this particular application on the grounds that this particular ground is unknown to our law. You see? Yes, the court didn’t say that this is unknown. They rather said that, listen, based on the evidence, we are not in a position, we don’t have everything before us to be able to judge. That was their way of saying that you came by the wrong forum.

You should have gone by way of appeal or by certiorari right. You can say so, but it’s not the same as saying never mount an application. So the one I want us to understand that there is no such finding that you can’t mount an application on grounds of the bias.

 

Do you get it? Aha, so that will be very clear. Counsel, did you find such a holding? That no, when you are raising bias in a final judgment, you can never come by way of supervisory jurisdiction. If you don’t, then it means that once again, for us in Ghana, that is our law.

 

Lawyer Benyin: No, jurisdiction cannot be presumed. It must always be comferred. And so it is rather the one propounded.

This is the end of our show. Thanks for your attention. I look forward to coming to you with another episode. END.

PS: After the recording, I found an English High Court decision which confirms that a party can file for judicial review (certiorari etc) if that person finds bias in the comments made by a judge in his judgment- The King (the Competition and Markets Authority) and The Competition Appeal Tribunal v Sika Ltd and Master Builder Solution UK Ltd (Hight Court, 27/04/2024, Unreported Case No AC 2023-LON -003735)  at paragraph 65.

 

 

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