A: Introduction

There are many procedures, processes and concepts that guide the administration of justice in most countries. The sources of these elements may be found in constitutions, statutes, legislative instruments and rules of procedure. Some may also come about by way of convention and usage. The main aim of these elements is to assure a speedy, fair, cost-effective and transparent justice delivery system. One such element is the ‘additional judge’ concept. This is the practice where a judge of a Superior Court, say the Court of Appeal or Supreme Court, sits and tries a case at a lower trial court, for example, the High Court. Such a judge from the Court of Appeal or Supreme Court will be described as an ‘additional High Court judge’. This article discusses the additional judge concept and its antecedents.  The discussion will also touch on how additional judges have been used in the trial of some cases in the 4th Republic. Furthermore, the Supreme Court’s recent 3-2 majority decision in the Opuni case setting aside the 3-year old proceedings at the High Court presided over by a Supreme Court Justice sitting as an additional judge will be analyzed. Finally, the article will look at the issue of whether the additional judge concept has outlived its usefulness in Ghana’s constitutional democracy.

B: The ‘additional judge’ concept and its antecedents

The concept of additional judge is not defined in the 1992 Constitution but it appears to be captured in article 139 (1) (c). The article permits a Chief Justice to write and request any Superior Court Justice to sit as a High Court judge for a given time[1]. It bears noting that, the 1960 Constitution had no such provision. The 1968 Proposed Constitution also had no such provision in the proposed article 112 that dealt with the composition of the High Court. Curiously, when the 1969 Constitution came into being, article 112 (1) contained a sub clause (c) that introduced a provision empowering a Chief Justice to request other Superior Court Judges in writing to sit as High Court Judges. The concept was repeated in article 124 of the 1979 Constitution. The reason for introducing and maintaining the concept is not easily discernible. But to hazard an opinion, it appears the intention was to make other Superior Court judges available to sit on cases at the High Court whenever the High Courts were overstretched. That probably explains why in both the 1969 and 1979 Constitutions, the appointment of such a Superior Court judge to sit at the High Court was to be “for the determination of a particular cause or matter”. No such limitation is set for additional High Court judges under the 1992 Constitution, thereby giving Chief Justices wide room to operate.[2] The additional judge concept has found further expression in the Courts Act[3].

Most of our laws and constitutional provisions in Ghana have their roots in English Common Law, and therefore, they are similar in content. But in the United Kingdom, there is no special dispensation given to a Lord Chief Justice to appoint Justices of the Court of Appeal and the Supreme Court of England and Wales to sit as additional High Court judges. The High Court of England and Wales consists of: the Lord Chief Justice; the President of the Queen’s Bench Division; the President of the Family Division; the Chancellor of the High Court; the Senior Presiding Judge; the Vice-President of the Queen’s Bench Division; and the High Court judges themselves.[4] No provision is made for the Chief Justice of the United Kingdom to request judges of the Court of Appeal and the Supreme Court to sit as High Court judges.

C: Some cases handled by additional judges in the 4th Republic

There have been several cases in the 4th Republic where Chief Justices have requested judges of the Court of Appeal and Supreme Court to sit as additional High Court judges. Examples of such cases are Effasco Limited v Scanship (Gh) Limited,[5] Abadwum Stool & Ors v Akrokerri Stool,[6] Sarpong v Google Ghana & Another,[7] Republic v Mallam Yusuf Issa and Tsikata v The Republic.[8] There are some cases that are currently ongoing before additional High Court judges. These include Republic v William Baah & 13 Others (Denkyira Obuasi [Major Mahama’s murder] case) being tried before a Supreme Court Judge; The Republic v William Ato Essien & Others (Capital Bank case) ongoing before a Court of Appeal judge and The Republic v Ernest Thompson & Others (SSNIT OBS case) currently pending before a Court of Appeal judge.

Over the years, some of the cases handled by additional judges have been concluded without much incident. But others have been met with stiff challenges from some parties. One such case where the additional judge’s jurisdiction was challenged at the Supreme Court is Ex parte Daniel.[9] In Ex parte Daniel, the applicant sought an order to disqualify the late Mr. Justice D. K. Afreh, Justice of the Supreme Court, from sitting as an additional High Court judge. The applicant argued that Afreh, JSC could not continue to sit as an additional High Court judge in the suit known as Speedline Stevedoring Co. Ltd. V. S. M. Kotei & Another which was then pending before His Lordship for hearing at the Fast Track High Court, Accra. According to the applicant, Afreh, JSC was not competent to sit in the High Court because he had passed the age of 65, the prescribed maximum age for High Court Judges. The applicant also argued that, having attained the age of 70 years on 25th March, 2003, Afreh, JSC could not continue to sit in any Court except for a six-month period to complete cases which had been commenced before him under article 145(2) of the Constitution. At 70, he attained the mandatory retirement age as a Justice of the Supreme Court and, therefore, could not continue as an Additional Judge of the High Court, the applicant argued further. The Supreme Court held that, the application was without merit and allowed Afreh, JSC to continue to hear the case. 

D: The Supreme Court decision in Ex parte Opuni[10]

By far, Ex parte Opuni is the case – involving an additional High Court judge - that has received the most attention in recent times. A brief outline of the facts will suffice. In March, 2018, the applicant and two others were charged with 27 counts of offences including defrauding by false pretences, wilfully causing financial loss to the state, money laundering, corruption by a public officer and breach of the Public Procurement Act. The charges were in relation to the procurement and supply of fertilizer to COCOBOD. When the case was ripe for hearing, the then Chief Justice requested a Supreme Court judge to sit on the case as an additional High Court judge under article 139 (1) (c) of the Constitution, 1992. The accused persons pleaded not guilty to all the charges. When the prosecution closed its case, the applicant (the 1st accused in the case) made a submission of no case to answer.

The additional High Court judge dismissed the submission of no case in a ruling dated 7th May, 2021 on grounds, among others, that the prosecution had given enough evidence to warrant the applicant to open his defence. The applicant, therefore, applied to the Supreme Court under its supervisory jurisdiction for two reliefs. The first relief sought by the applicant was an order of certiorari to quash the portions of the ruling where the judge had on his own rejected some documents that had been tendered in evidence by the defence through some prosecution witnesses without any objection. The second relief was an order of prohibition to prevent the additional High Court judge from continuing to sit on the case at the High Court on grounds of real likelihood of bias.

The Supreme Court ruled in favour of the applicant and granted his prayer for both reliefs. The impugned portions of the ruling of the Supreme Court judge sitting as an additional High Court judge were quashed. The Supreme Court also ruled that the Supreme Court judge sitting as an additional High Court judge should not continue to sit on the case. It was ordered that the case should be started afresh at the High Court before a different judge.[11]

By all accounts, the decision is a welcome development. If for nothing at all, it has brought to an end the persistent disquiet the accused persons had regarding the additional High Court judge. As it turned out, the accused persons did not take kindly to certain statements allegedly made by the additional judge High Court judge in open court, such as his desire to finish with the case quickly to allow him concentrate on his duties at the Supreme Court. In the circumstances, it would have been impossible for anyone to convince the accused persons that they would get a fair trial. That is why it is refreshing that the Supreme Court has come in to save the day.[12]

Quite unavoidably, the additional High Court judge, who is also a traditional chief, once had to welcome the President of the Republic to a durbar in his traditional area. In his welcome address, His Lordship praised the President for his good deeds. Any average person who happens to watch weekend Television in Ghana knows that chiefs at durbars mostly prove themselves polite hosts by heaping effusive compliments on their guests. This is more so when those guests happen to be politicians. That’s a given. But when the additional High Court judge in the Opuni case decided to follow the well-beaten path, the defence team had him for lunch. Even as they masticated him into fine shreds, My Lord sat tight and continued to hear the case. He simply refused to recuse himself. In the meantime, the accused persons’ petition to the Chief Justice to remove the additional judge was gathering dust. So, statements made by the additional High Court judge, whether in court or outside the courtroom, ticked the accused persons off badly. Who was going to save His Lordship, the additional High Court judge, from himself? Thank goodness the Supreme Court came to the rescue and, in all likelihood, His Lordship is now relieved from his travail and heavy-laden trial court duty.

Hopefully, this decision will put a stop to the habitual picking of additional High Court judges to sit on cases perceived to be ‘political’. Some of those judges see their invitation to descend the ladder and enjoy some time in the trial courts as a welcome adventure. Additionally, it gives some judges a false sense of special attribution over their peers, having been selected by a Chief Justice to the exclusion of all others. That, perhaps, explains why some will fight tooth and nail to sit on such cases even when real issues are raised about their assumption of jurisdiction. 

E: Has the additional judge concept outlived its usefulness?

There is one school of thought that asserts that, the additional judge concept is an indispensable necessity in our constitutional democracy. Its importance is said to be manifested in the prominence the concept has enjoyed under all Constitutions of Ghana since 1969.  There is yet another school of thought that maintains that the additional judge concept does more harm than good in the current judicial system. The adherents to this school reason that, whenever an additional judge is appointed to sit on a case (instead of a regular High Court judge), it raises suspicion in the minds of accused persons and allegations of political motivation become rife. Typical examples in recent times are the Tsatsu, Opuni and Baah cases. In the Baah case (Denkyira Obuasi [Major Mahama’s murder] case), for instance, apart from the fact that a Supreme Court judge is sitting on it as an additional High Court judge, the proceedings have been transferred to Accra when the alleged murder occurred in the Central Region. The Supreme Court Judge stationed in Accra could not reasonably be requested to go and sit at a High Court in the Central Region for such a lengthy criminal trial. But the fact remains that,  there are High Court judges in the Central Region who are competent enough to handle such a case instead of ‘worrying’ a seasoned Supreme Court Justice to sit on a case on trial.

Another reason why some suggest that the additional judge concept has outlived its usefulness is that, it breeds avoidable animosity towards the Bench. Judges, by their training and experience are presumed to be fair in all cases. But whenever in a particular case regular High Court judges are ignored and so-called additional High Court judges are selected from the Court of Appeal or the Supreme Court, most defendants and accused persons in such cases become apprehensive and antagonistic. For instance, in Ex parte Opuni, when the hearing started, the defence team reportedly applied to the judge to recuse himself on grounds that he was biased and his comments in court suggested that he had pre-determined the case even before the accused persons mounted the box to give evidence. The judge dismissed the application and continued to sit on the case. The accused persons appealed to the Court of Appeal. The Court of Appeal dismissed their application for stay of proceedings pending the interlocutory appeal. In the meantime, the accused persons petitioned the Chief Justice to remove the additional High Court judge. When the additional judge eventually ruled to dismiss the applicant’s submission of no case, that dismissal triggered the application to the Supreme Court for certiorari and prohibition. And finally, the applicant got the Supreme Court to put the brakes on the additional High Court judge’s continuous sitting on the case.

Furthermore, it is said that the use of additional High Court judges make administrative supervision difficult. For instance, for ease of administrative procedures, each region in Ghana has a Supervising High Court judge. Most often, it is the most senior of all the High Court judges in the particular region who may be appointed as such. Now, if a Supreme Court judge is appointed as an additional High Court judge to sit on a case at the High Court in a region, does the Supreme Court judge come under the administrative supervision of the Supervising High Court judge in the region? At least, for the duration of the hearing of the case? That appears to be the case. But in reality, it will be difficult for a Supervising High Court judge to supervise and rein in a Supreme Court judge who is sitting as an additional High Court judge within her jurisdiction.

Additionally, the additional judge concept is believed to have lost its lustre because it causes delays and its attendant costs to the parties involved, especially the defence team. Remember, most of these cases are criminal proceedings and are handled by lawyers from the Attorney-General’s Department on behalf of the Republic. They file their processes in court free of charge. The lawyers are government employees and they are paid by the State. But accused persons enjoy no such perks and free legal representation. They pay their lawyers’ fees and other incidental costs. A case in point is the Opuni case where the Supreme Court ordered the Supreme Court judge who sat as additional High Court judge on the case to step aside. The Court further ordered that the whole trial held before the additional High Court judge for three years must be set aside.  The trial is to start afresh. One can only imagine how much the botched 3-year old proceedings cost the applicant in terms of his time, legal fees and costs and emotional capital. All of that has been wasted.

Yet another reason why many do not admire the additional judge concept is that, it has the tendency to cause tension among judges of the Superior Courts. This may arise in situations where an additional judge’s ruling or judgment is overturned by colleagues on appeal or by judicial review. A typical case in point is the Opuni case. One can only hope that there will be no love lost between the additional High Court judge and his colleagues on the Supreme Court bench who ruled to cut short his exploits as an additional High Court judge. Indeed, the situation would have been most embarrassing if the lot had fallen on the Court of Appeal bench to wrench ‘Mi Lord’ from his perch at the beautiful Court Complex.

Furthermore, it appears the additional judge concept potentially clashes with article 139 (3) of the 1992 Constitution. This article provides that the High Court shall have divisions, and each division shall have a number of Justices as determined by the Chief Justice. Now, if the Chief Justice appoints a judge of the Court of Appeal or Supreme Court to sit on a case in the Criminal Division of the High Court, will that judge be counted as one of the judges of that Criminal Division? If the answer is no, then what jurisdiction will that judge be exercising in that division? Perhaps, it is to avoid some of these tensions and inconsistencies that in England, the Lord Chief Justice is not given additional power to choose other judges from the Court of Appeal and the Supreme Court to sit as High Court judges.[13]

F: A leaf from Nigeria’s book

Just last year, the Supreme Court of Nigeria gave a landmark decision in the case of Ude Jones Udeogu & Others v Federal Republic of Nigeria.[14] In that case, a newly appointed Justice of the Court of Appeal returned to the High Court to complete a part-heard criminal case. This was done under an Act which gave the newly appointed judge the power to hear and complete criminal cases that were pending before him as a High Court judge prior to his elevation[15]. The issue before the Supreme Court was “on what constitutional authority does either the National Assembly or the President of the Court of Appeal stand to grant this ‘dispensation’ to the Honourable, M. B. Idris, JCA to continue to act as a Judge of the Federal High Court after he had ceased to be a judge of the Federal High Court upon his elevation to the Court of Appeal?” The Supreme Court declared that the provision in the Act that permitted the Justice of the Court of Appeal to go back and sit as a High Court judge to hear the part-heard criminal case was illegal and unconstitutional. The Supreme Court, therefore, ordered the said section of the Act to be struck out. The High Court trial had lasted twelve years. The prosecution had called about 19 witnesses. Yet, the Supreme Court ordered a retrial.

This is a refreshing judgment by all standards and notions of fairness. Now, if a newly-appointed appellate judge cannot go back to the trial court and complete a part-heard criminal case, then it is an even worse situation we have in Ghana where Justices of the Court of Appeal and Supreme Court are requested to sit on fresh criminal cases at the High Court as additional High Court judges. Meanwhile, there are tons of competent High Court judges available to do the work. On the use of additional judges, Ghana could definitely pick a leaf out of Nigeria’s book in the Udeogu case and put a stop to the practice.[16]

G: Conclusion

We need to take a second look at the additional judge concept and how it has been utilized in our judicial system in this Fourth Republic. There are many cases that have been perceived to have political undertones but have been ably handled by substantive High Court judges. In order to avoid many of the problems that attend the additional judge phenomenon, it is suggested that substantive High Court judges must be assigned to handle all trials within their jurisdiction. That way, we reinforce our trust in their ability to deliver and they will, in turn, prove equal to the task. The judges appointed to the various Superior Courts must be allowed to handle cases within their assigned jurisdictions on the hierarchy of courts. It will reduce the tendency to request judges to descend to the trial High Courts to sit and try cases, which may be overturned on appeal or quashed by judicial review by their juniors or colleagues. The attendant potential embarrassment, tension and animosity between Superior Court judges would be avoided. That will also give true meaning to the expression that justice must not only be done but must be clearly and manifestly seen to be done.

**Photo – The photo shows the Adinkra symbol called “mmra krado”. In the Twi language, “mmra” means law and “krado” is padlock.  “Mmra krado” symbolizes law and order and the authority of the court

Footnote

1. [1] Article 139 (1) (c) of the 1992 4^th Republican Constitution provides as follows: “The High Court shall consist of - …  such other Justice of the Superior Court of Judicature as the Chief Justice may, by writing signed by him, request to sit as High Court Justice for any period.”
2. [2] Curiously, the expression - “for the determination of a particular cause or matter… for any specified period” - is used in the 1992 Constitution only in relation to Superior Court judges who a Chief Justice may request to sit on a case at the Court of Appeal; See article 136 (1) (c) . It is interesting to observe that, though this provision exists in the Constitution, hardly ever do we see High Court judges requested to sit as “additional Court of Appeal judges”. Article 128 of the 1992 Constitution does not provide for other Superior Court judges to sit as “additional Supreme Court judges” at all. This state of affairs appears to have been dictated by history. In the 1987 Supreme Court case of Bisi v Tabiri @ Asare (1987-88) 1 GLR 360, three Justices of the Court of Appeal were invited to sit in the Supreme Court with two very experienced Justices of the Supreme Court. By a 3-2 majority decision, the three Justices of the Court of Appeal (Osei-Hwere, Wuaku and Amuah-Sekyi, JJ.A.) overruled the decision of the two Justices of the Supreme Court (Taylor and Francois, JJS.C.) This caused so much embarrassment to the Supreme Court.
3. [3] See section 14 (1) of the Courts Act, 1993 (Act 459) as amended.
4. [4] https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/judges/high-court-judges/
5. [5] Civil Appeal No. 4/2000 dated 21st February, 2001, SC (unreported). Benin, J.A. (as he then was) sat as an additional judge of the High Court.
6. [6] Civil Appeal No J4/28/2016 dated 31^st May, 2017, SC (unreported). In 2000, the Chief Justice requested Justice J. A. Osei as an Additional High Court judge to sit and complete all cases and proceedings pending eight months after the coming into force of the Stool Lands Boundaries Settlement (Repeal) Act, 2000 (Act 587). The request was made under article 139(1) (c) of the 1992 Constitution.
7. [7] Civil Appeal No. J4/50/2017 dated 21^st March, 2018, SC (unreported)  
8. [8] Julius Ansah, JA (as he then was) sat on the Mallam Yusuf Issa case as an additional High Court judge. Criminal Appeal No. J3/3/2010 dated 19^th January, 2011, SC. Henrietta Abban, JA (now retired) sat as an additional High Court judge at the trial before the Fast Track High Court in the Tsikata case.
9. [9] Republic v Fast Track Court, Accra; Ex parte Daniel Suit No. CM/46/2003 Opinion of the SC dated 11^th June, 2003 (unreported). The continuous sitting of Afreh, JSC as an additional High Court Judge when he was due to retire as a Justice of the Supreme Court was raised in this case before the Supreme Court.
10. [10] The full citation is Republic v High Court (Criminal Division 1); Ex parte Stephen Kwabena Opuni (Attorney-General Interested Party)
11. [11] The Supreme Court’s decision was given on 28^th July, 2021 in a 3-2 majority decision. The majority comprised of Pwamang, Dordzie (Mrs.) and Amadu, JJS.C and the dissenters were Dotse and Lovelace-Johnson (Ms.), JJS.C.  Ruling to grant the order of certiorari, the majority opinion refused to rely on its own previous decision in Ekow Russell v The Republic [2017-2020] SCGLR 469 on the admissibility of hearsay evidence. The majority also found that the additional High Court judge had exhibited a real likelihood of bias against the applicant as demonstrated by portions of the former’s ruling thus: Page 54 of the ruling. “All these were perpetuated to facilitate the 2nd and 3rd accused’s business and defraud COCOBOD. Indeed these acts were all perpetuated to facilitate and intentionally, voluntarily to aid the 2nd and 3rd accused to perpetuate fraud on COCOBOD by supplying a different product from what was tested and approved.” “…However, the 1st accused although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused to defraud COCOBOD.” Page 55 of the ruling. “The 1st accused made things easier for the 2nd and 3rd accused to succeed in their enterprise of defrauding.” Page 59 of the ruling. “The 1st accused a scientist with all his knowledge and skill had the benefit of an original Lithovit Foliar Fertilizer submitted, tested and approved by him yet knowingly he agreed and caused the state to lose millions of Cedis in foreign exchange by paying these monies to the 2nd and 3rd accused persons.  The 1st accused thus caused financial loss through this action”. The majority cited with approval the Supreme Court’s recent decision in Republic v High Court (Land Division) Accra, Ex parte Kennedy Ohene Agyepong CMJ5/62/2020, unreported ruling dated 20th October, 2020 the court expressed concern about the apparent bias of a High Court Judge and issued an order of prohibition against the Judge’s continued hearing of a case of contempt against the applicant therein.
12. [12]The Supreme Court reasoned that “what the law against bias is concerned about is whether a reasonable person, listening to these pronouncements and considering all the circumstances would consider that any evidence to be given by the applicant in this case will be capable of creating a reasonable doubt to this judge’s mind. It is not possible to know whether the judge would actually be prevented by these comments from according the right weight to any evidence the applicant has to offer so the law does not require the applicant to prove that. The test is an objective one based on the principle that not only must justice be done but it must be seen to be done. As the authorities say, bias is so insidious that the judge himself may not even be aware that he has a bias in the matter under consideration.”
13. [13] See note 3 above.
14. [14] Unreported Appeal No SC. 662C/2019 and the judgment is dated 8^th May, 2020            
15. [15] Section 396 (7) of Administration of Criminal Justice Act, 2015 provided as follows: “Notwithstanding the provision of any other law to the contrary, a Judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time: Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.”
16. [16] Many people in Nigeria did not agree with the Supreme Court’s decision and roundly criticized it. They took the view that the decision was a clog on the fight against financial crimes in the country.