Did the Supreme Court miss something in Ex parte Anas?
A few lucky ones who were able to scale the security barricade to catch a glimpse of history unfolding on that momentous March day say the President ‘forgot’ to ask his hosts to demonstrate, at least, how a case was filed electronically.

A: Introduction:

The Supreme Court has given its ruling in the case of Ex parte Anas in a 3-2 majority decision. As one could well expect of any legal encounter involving Anas Aremeyaw Anas and Kennedy Agyapong, the case has received maximum press coverage and discussion on social media. The two protagonists are well-known individuals who enjoy much popularity among citizens. The discussion has centered mainly on which decision was fair and sound – the majority or the dissenting opinion.

 

In this article, I discuss an angle that has agitated my mind for some time now. That is whether, first, the Supreme Court was right in entertaining the certiorari application that was brought on grounds of bias or real likelihood of bias. Is bias or real likelihood of bias not a candidate for prohibition orders or, better still, appeal if the charge was raised only after the case had been concluded? The second issue is whether, in dealing with the application for certiorari, the Supreme Court was within its rights to go into the merits of the trial High Court’s judgment. Please, come along.

 

B: The momentous month of March

The month of March is generally known as ‘Ghana month’ because it is the month in which our Motherland got her independence. But this instant March could as well be Christened ‘Judiciary month.’ Say, it is in this month that we heard that the Supreme Court had thrown out an application filed by the General Legal Council against a lawyer. But the General Legal Council, an inferior public body headed by the Chief Justice - where else in this world does this anachronism exist? – has decided to issue a directive which has the effect of overriding, undermining and bastardizing the Supreme Court’s decision.

 

It is also in this month that the Chief Justice has announced, through the sitting-Court of Appeal Judge-cum-Judicial-Secretary[1] that some selected courts are to be working on a shift-basis from morning to evening, starting on 25th March, 2024.[2] Never mind that nowhere in the announcement is it stated that the Ghana Bar Association or the litigating public made any input before the decision was made. Never mind that if a Judge cannot manually deal with cases satisfactorily from 8:30 a.m./9:00 a.m. to 1:30 a.m./2:00 p.m. – take motions, prepare rulings, conduct trials, write judgment - then extending the sitting time to 6:30 p.m. can only make a bad situation worse.

 

And never mind that our US$97 million e-justice system was duly launched on 20th March, 2019 by the President of the Republic and the Honourable Chief Justice, with appropriate pomp, pageantry and panache.[3] A few lucky ones who were able to scale the security barricade to catch a glimpse of history unfolding on that momentous March day say the President ‘forgot’ to ask his hosts to demonstrate, at least, how a case was filed electronically. May be that explains why today being exactly 5 years when Ghana’s e-justice was launched, not a single case has been filed and served electronically.[4] Even the few sporadic emails we used to receive under the so-called e-justice ‘dispensation’ as lawyers, informing us of hearing dates (sometimes a day after the hearing had actually taken place, no kidding!) stopped coming only after a few months. So, où est e-Justice? E-Justice ya’a mu tu![5] Welcome, shifting court-ivation!!

 

In this same month of March, Kenya has announced that, with effect from 12th March, 2024, its ‘e-filing’ system (their version of our e-justice) had taken hold countrywide. According to reports,[6] the e-filing system provides a data tracking dashboard and cause list portal for virtual case monitoring. According to Chief Justice Koome of Kenya, “[o]ne of the most compelling features of this dashboard is its ability to detect and analyse case adjournments, pinpointing the reasons behind them and enabling comparisons across different courts… With real-time monitoring capabilities, the Chief Justice, Deputy Chief Justice, and Heads of Court can now oversee the progress and performance of all court stations across the country.”

 

So, when Accra lawyers are struggling to beat Accra-Madina traffic to reach Adentan High Court for a 6 p.m. court session, their counterparts in Nairobi will be dealing with their court cases from the comfort of their law firms and offices. Talk about a tale of two legal systems working to attract business into their respective jurisdictions under the African Continental Free Trade Area Agreement (AfCFTA).

 

By the way, still in this merry month of March, solicitor’s practicing license and chambers license fees have also been rumoured to be likely to be increased by the General Legal Council by insane amounts. Unfortunately, it us unclear if there is a Bediatuo Asante or Asante Bediatuo to write to warn the Secretary to the General Legal Council to ‘cease and desist’ from any efforts to ‘transmit’ the proposed new fees to the general membership of the Bar. By all accounts, most lawyers have indicated their willingness to pay the new atrocious license fees BUT only on two conditions: First, the GBA must provide full accounts of ALL monies collected as lawyers,’ pupils’ and chambers’ license fees into “GBA/GLC” designated accounts from 2012 to date. Secondly, the GBA and the General Legal Council must provide official documents showing that they have jointly and severally satisfied all the queries raised in the Auditor-General’s Report for 2020.[7] Once the GBA and GLC jump these two easy ropes, we will certainly, willingly and smilingly consider paying the new rumoured rates. Until then, they should be content with the two hundred and fifty per head ‘unaccountable imprest.’ And most importantly, they should kindly let us be.

 

In this magnificent month of March, LGBTQ Bill is still-born because a Mr. Sky and a Dr. Odoi are in the Supreme Court and the President’s Executive Secretary has issued an ex parte-suo motu ‘cease and desist’ interlocutory injunction against “transmission” of the LGBTQ Bill by the Clerk of Parliament to the President for his assent and the Clerk of Parliament’s boss, the Speaker, has issued a legalese-laden formal statement against the transmission injunction and my learned friend and Honourable MP, Dafeamekpor has filed a suit (plus or minus a motion for injunction) at the Supreme Court against the vetting of the President’s new ministers and … what a marvelous month of March!

 

C: The close call decision in Ex parte Anas[8]

The recent 3-2 majority decision in Republic v High Court, Accra (General Jurisdiction 11); ex parte Anas Aremeyaw Anas (Kennedy Agyapong Interested Party)[9] has generated much debate. And expectedly so. Anas’ GH₵25 million defamation suit at the High Court, his loss in a judgment dated 15th March, 2023, an appeal lodged at the Court of Appeal, as well as the application invoking the Supreme Court’s supervisory jurisdiction that ended in the decision under reference, enjoyed much discussion in the press and on social media. The application was for an order of certiorari to quash the High Court’s judgment that is also the subject of appeal proceedings currently pending before the Court of Appeal.[10]

 

D: The reliefs sought in Ex parte Anas

In his application, the applicant in Ex parte Anas sought an order of certiorari to quash the High Court’s decision on two grounds. These were (a) absence of jurisdiction; and (b) apparent or real likelihood of bias and partiality of the trial High Court judge. The ‘absence of jurisdiction’ ground was based on the fact that, the trial High Court judge was authorized by the Chief Justice in writing in October, 2021 to hear the case based on a request made by the interested party (Kennedy Agyapong) through his lawyer to the Chief Justice without the applicant’s knowledge, and without the applicant being put in copy of the Chief Justice’s letter, too. It was the trial High Court judge who announced in court that he had been so appointed by the Chief Justice. But the applicant raised no objection to the trial judge’s appointment and the latter heard the case to the end and gave judgment in March, 2023.

 

In the Supreme Court’s ruling, the court unanimously dismissed the ‘absence of jurisdiction’ ground. All the four Justices who penned their opinions spoke with one voice that the Chief Justice had authority under the law to transfer cases.[11] Thus, the trial High Court Judge acted within jurisdiction when he conducted the trial. Therefore, certiorari could not issue to quash his judgment.[12]

 

Now, the applicant’s second ground – ‘apparent or real likelihood of bias’ - was based on certain statements that the trial Judge made in his judgment of 15th March, 2023 that allegedly showed that he was biased or harboured  a real likelihood of bias against the applicant. It was in dealing with this issue that the Supreme Court bench split into the 3 majority and 2 dissenting panels. The majority panel anatomized the full details of the judgment. They found no bias or real likelihood of bias against the trial Judge and thus, dismissed the application.[13] The minority[14] also examined the judgment in full. They held that the trial Judge was biased against the applicant and ordered that certiorari be issued to quash his judgment.

 

E: Is certiorari the appropriate remedy for a claim based on bias or real likelihood of bias?

Both sides of the divide – majority and dissenting – spilt a lot of precious ink in addressing the applicant’s only one ground left for invoking the Supreme Court’s supervisory jurisdiction after the ‘absence of jurisdiction’ ground was unanimously dismissed. The one ground left for determination was a prayer for certiorari order based on the trial Judge’s alleged bias against the applicant. But are allegations of bias against a Judge or adjudicating body not amenable to prohibition orders or appeal instead of certiorari? It is submitted that allegations of bias made in the course of proceedings are amenable to prohibition orders. If the allegations are made after the judgment and the grounds for the allegation are said to be in the judgment itself, then appeal is the appropriate remedy, not certiorari.

 

What is certiorari? Certiorari is an order that a court grants to quash orders, decisions and convictions made by lower courts, tribunals or administrative bodies. It will be granted to quash a decision of a court that has been made without jurisdiction or in excess of jurisdiction or where there is an error of law apparent on the face of the record that makes the decision a nullity. In Republic v Central Regional House of Chiefs & Others; ex parte Gyan IX (Andoh X-Interested Party),[15] the Supreme Court held that, judicial review lies to correct errors of law and that the remedy of certiorari is available to correct or quash: (i) jurisdictional error arising from want of jurisdiction; (ii) jurisdictional error arising from excess of jurisdiction; (iii) jurisdictional error patent on the face of the record; and (iv) breach of the rules of natural justice. Thus, it can be seen that bias or real likelihood of bias simpliciter is not one of the grounds for seeking an order of certiorari.

 

What is prohibition? Prohibition, on the other hand, is an order given by a court to prevent an inferior court, tribunal or body from exercising jurisdiction it has wrongly assumed or from exceeding its powers, or by exhibiting bias or real likelihood of bias. It must be noted that, the major difference between certiorari and prohibition is that, certiorari looks to remedy past errors whiles prohibition looks to the future to prevent what will be done from being done.[16]

 

What is surprising about Ex parte Anas is the fact that the Supreme Court fell for the applicant’s prayer for certiorari on grounds of bias or real likelihood of bias. Instead of dismissing the application in limine and pointing the applicant in the direction of the Court of Appeal, both the majority and dissenters expended so much time, energy and industry to deal with an application mounted on a misconceived ground. The simple question the Supreme Court should have asked itself was this: Who goes crying bias and praying for certiorari after their intended target has finished the job and become functus officio? Appeal will be such a party’s rescue point.[17]

 

It is common knowledge that allegations of bias against judges are confronted through applications for prohibition orders. There are numerous decided cases in that regard.[18] The belated attempt by the applicant to raise the issue of bias by the certiorari application after judgment had been given probably seemed legitimate but the approach was bound to be confounding. Admittedly, any person in the applicant’s circumstances would not take the trial Judge’s decision lightly. They will pursue it further along the judicial ladder. But in doing so, the party must always keep an eye on the proper procedure to follow. Once the applicant’s allegations of bias were rooted in the final judgment of the trial court, appeal was the proper avenue for the applicant to ventilate his cause.

 

F: Was the Supreme Court justified in going into the merits of the trial Judge’s decision in an application for certiorari?

Apart from the fact that the Supreme Court fell wrongly for the application for certiorari brought on grounds of bias which is better suited to applications for prohibition orders, the Supreme Court also committed a mortal sin against its own supervisory jurisdiction when it decided to brush through the merits of the trial Judge’s decision with a fine-tooth comb in search of bias or the real likelihood of same. For instance, Asiedu, JSC, in dealing with the charge of bias, declared in his majority opinion thus: “This calls for a critical examination of the judgment of the learned trial judge.”

 

Gertrude Sackey Torkonoo, CJ also opined: “This is a novel call to distill the likelihood of bias and prejudice out of the language in a judgment, when there is no extraneous evidence of inappropriate connection between the judge and a party, or the subject matter in dispute.” This is what Kulendi, JSC also posited before making his excurses into the bowel of the trial court’s judgment: “The Applicant herein alleges that the judge’s bias is exposed in the language he adopted in the judgment itself. I have therefore, had to read the said judgment thoroughly to inform ourselves of whether the statements, pronouncements, language or tone adopted by the trial judge is one from which an inference of prejudice, bias or dislike could be made.” Amadu, JSC also made the following declaration before setting his judicial teeth into the meat of the trial court’s judgment: “The determination of this issue, in my view, is confined solely to the judgment that was delivered and nothing more.”

 

With all due deference to Her Ladyship and their Lordships, no matter what epithets one employs to describe the application before the court – such as, novel, unorthodox, novelty and so forth – the fact still remains that the application was one invoking the court’s limited supervisory jurisdiction, and not an appeal. If a court exercising its limited supervisory jurisdiction is at liberty to undertake a “critical examination” of a judgment or “distill the likelihood of bias and prejudice out of the language in a judgment” or “read the said judgment thoroughly” or give a ruling “confined solely to the judgment,” what will an appellate court do?

 

Now, it is almost a legal cliché that applications invoking the Supreme Court’s supervisory jurisdiction[19] for orders such as certiorari as in Ex parte Anas are not concerned with the merits of the case. Certiorari, just like prohibition, is granted to correct breaches of due process, not the merits of a case.[20] Therefore, when dealing with an application for an order of certiorari to issue, the court is confined to the ‘process’ that led to a decision being made one way or the other, but not the ‘decision’ itself.

 

As the Supreme Court rightly notes,[21] primary findings of fact is for the trial court. Once the trial court makes its findings, it has to explain the basis for so doing. It is at that point that litigants may be irked to a poisonous degree by unpalatable words that may be used to describe them, their actions, their witnesses and even their evidence given in court. But in the scheme of legal processes and procedure, any litigant who is dissatisfied with a court’s primary findings on the evidence and the evaluation of the evidence (which constitutes the merits of the case) can appeal against the decision.[22]

 

Since appeal is by way of rehearing, the appellate court will have the opportunity to evaluate the evidence tendered at the trial against the judgment given, and make up its own mind about the case. In King v Gyan,[23] the Supreme Court held that an appeal, at whatever stage, is by way of rehearing as every appellate court has a duty to examine the record of proceedings by scrutinizing pieces of evidence on record to ascertain whether the judgment is supported by the evidence. In that respect, the appellate court can draw its own inferences from the established facts and in arriving at its judgment, the appellate court can affirm the trial court’s judgment or vary it.

 

In the light of the foregoing, the Supreme Court’s decision in Ex parte Anas might present a difficult situation for the Court of Appeal panel that is yet to give its decision in the yet-to-be-heard appeal that is pending before that court. Seeing how the Supreme Court has dissected the trial court’s decision in its search for the beloved Ms. Bias or her counterpart, Ms. Real Likelihood of Bias, one wonders what task is left for the Court of Appeal. And as if that is not perplexing enough, the Supreme Court’s decision is not unanimous. A further question worth asking is this: If one of the parties before the Court of Appeal decides to appeal further to the Supreme Court, will the five Justices who sat on Ex parte Anas be qualified to sit on the appeal?

 

G: Need for judges to use appropriate language in their judgments

This brings us to the use of strong language in evaluating the primary findings of fact in a case. If it is said that the court is not contaminated by foul language, then perhaps it could also be said that the court is not allergic to strong language. Sometimes, reading judgments and rulings with stinging words, one cannot help but empathize with the party at the receiving end, though the judge's evaluation of the evidence may be sound. In fact, the courts have had occasion to remind judges to be circumspect in their use of language, lest they attract condemnation on grounds of bias.[24]

 

In Effia Stool v Fijai Stool[25] for instance, the appellant, just like the applicant in Ex parte Anas, complained about the tribunal's use of what could be termed as acerbic language in describing the appellant's documentary evidence tendered at the hearing. In the Effia Stool case, the trial Stool Lands Boundaries Settlement Commissioner had described the exhibits tendered by the Effia Stool as “nothing more than a pile or heap of waste paper in a bin.” The Supreme Court deprecated the use of such offensive language by judges and adjudicators when writing judgments and rulings. The appellant in the Effia Stool case attacked the judgment on appeal, not by invoking the supervisory jurisdiction of the Supreme Court. Needless to say, the appellant lost the appeal. Same goes for Serafin v Malkiewicz & Others[26] and Locabail (UK) Ltd v Bayfield Properties[27] where allegations of bias exhibited in judgments were heard on appeal.

 

In Ex parte Anas, the dissenting Justices, especially Kulendi, JSC, spared no effort in taking the trial Judge to the cleaners for his choice of words in delivering the judgment. Kulendi, JSC deprecated the trial Judge’s use of sound-bite-worthy phrases such as “investigative terrorism.” In the process, His Lordship also coined and used words on the trial Judge - such as “judicial terrorism” - similar to (if not worse than) those he had criticized the trial Judge for using in his judgment.[28]

 

H: Conclusion

In my own experience at the Bar, I have encountered several instances where trial judges have sat quietly through trial proceedings. They adjourn when need be and generally make sure each party is well accommodated. The case goes on without any banter or rude interjections (as some judges are wont to make). So, on the day of judgment, all parties come hoping for the best. The judge starts reading the judgment and boy! their appreciation and analysis of the minutiae details confound even Counsel themselves. Of course, the vanquished move on to file appeal and keep their fingers crossed.

 

In Ex parte Anas, it is not surprising that the Supreme Court unanimously dismissed the ‘absence of jurisdiction’ ground. But the court put its foot wrong when it decided to delve into the merits of the trial court’s judgment in an application brought to invoke the court’s limited supervisory jurisdiction. That was the job of an appellate court, not one exercising supervisory duties. In the light of the decision in Ex parte Anas, the Court of Appeal panel that will handle the appeal have their work neatly cut out for them.




Footnotes

[1] Again, where else does this happen, if not Ghana in its 4th Republic? The Supreme Court registrar is also said to be a Circuit Court Judge: Short-cut route for administrative staff to retire under Article 71? This craze must stop

[2] 8:30 a.m. to 1:30 p.m. and 2:00 p.m. to 6:30 p.m.

[3] Source: https://www.graphic.com.gh/news/general-news/e-justice-launched-prez-demands-speedy-trials.html (accessed on 19th March, 2024)

[4] Perhaps, since My Lady, Sofia I, has confessed she’s now ungagged and can admirably advocate for pensioners under daylight financial robbery attack, she will equally do well to account for the life of her pet project, e-justice

[5] On a lighter note, I duly acknowledge Kulendi, JSC’s ‘copyright’ in the expression “ya’a mu tu,” lest His Lordship slaps me with a copyright infringement suit

[6] Source: https://www.citizen.digital/news/printing-of-pleadings-and-court-documents-to-stop-in-july-n338260 (accessed on 19th March, 2024)

[7] “Report of the Auditor-General on the Public Accounts of Ghana: Public Boards, Corporations and other Statutory Institutions for the period ended 31st December, 2020” p. 340-350. For the author’s earlier discussion of this issue, see: https://fsboateng.com/general-legal-council-versus-social-media-weeping-over-fake-news/ (accessed on 19th March, 2024)

[8] The full citation of the case is Republic v High Court, Accra (General Jurisdiction 11); ex parte Anas Aremeyaw Anas (Kennedy Agyapong Interested Party) Civil Motion No. J5/72/2023 ruling dated 28th February, 2024, SC

[9] Civil Motion No. J5/72/2023 ruling dated 28th February, 2024, SC (Coram: Gertrude Sackey Torkornoo, CJ, Prof. Henrietta Mensa-Bonsu and Asiedu, JJSC (concurring); Amadu & Kulendi, JJSC (dissenting)

[10] The applicant could pursue both the appeal at the Court of Appeal and the certiorari application at the Supreme Court simultaneously on the authority of cases such as: Republic v High Court (Land Division), Accra; ex parte East Dadekotopon Development Trust (Adjei, Anas & Quaye Interested Parties) Civil Motion No. J5/46/2020 ruling dated 22nd July, 2020, SC; Republic v High Court Accra; Ex parte Komley Adams [2012] 1SCGLR 111; Ahinakwa II (substituted by) Ayikai v Okaidja III & Others [2011] 1 SCGLR 205 and Republic v High Court, Cape Coast; ex parte Ghana Cocoa Board (Apotoi III Interested Party) [2009] SCGLR 603. Perhaps the decision in Ex parte Anas exalts parties to take a second look at the Apotoi principle (stating that certiorari and appeal are not mutually exclusive). As we have seen in this case, the certiorari application - which mostly is heard earlier in time - may portend ill for the pending appeal. Sometimes, it may be worthwhile to wait on the appeal process, though it can be painfully slow. But appeal is the avenue through which a party can take a trial court's decision and dissect it such that even a laboratory rat may applaud his expertise

 

[11] Under section 104 of the Courts Act, 1993 (Act 459) (as amended). See the opinions of Gertrude Sackey Torkornoo, CJ, Amadu, Kulendi & Asiedu, JJSC

[12] If the applicant in Ex parte Anas felt that the trial Judge’s taking over the conduct of the case based on the Chief Justice’s directive was evidence of ‘absence of jurisdiction,’ then the applicant’s remedy lay in obtaining a prohibition order against the Judge to prevent him from sitting on the case. In other words, once the applicant smelt ‘bias’ in the ex parte directive issued by the Chief Justice without even the courtesy of putting the applicant and his lawyer in copy, the applicant ought to have acted timeously by applying for an order of prohibition to prevent the trial Judge from sitting on the case. Having failed to apply for a prohibition order against the trial Judge, and after allowing the Judge to hear the case on the merits to its final conclusion, it ought to have dawned on the applicant that attacking the decision on jurisdictional grounds by certiorari after judgment had been pronounced was going to be a tall order

[13] See the opinions of Gertrude Sackey Torkornoo, CJ and Asiedu, JSC

[14] See the opinions of Amadu and Kulendi, JJSC

[15] [2013-2014] 2 SCGLR 845

[16] See: Republic v High Court, Accra; ex parte Ghana Medical Association (Chris Arcmann-Akummey Interested Party) [2012] 2 GLR 768; dictum of Bamford-Addo, JSC in Republic v High Court, Accra; ex parte Industrialization Fund for Developing Countries & Another [2003-2004] 1 SCGLR 348

[17] See: Effia Stool v Fijai Stool [2001-2002] SCGLR 893

[18] Republic v High Court (Land Division) Accra, ex parte Agyapong (Bandoh Interested Party) Civil Motion No. J5/62/2020 ruling dated 20th October, 2020, SC; Republic v High Court, Accra (Commercial Division); ex parte Environ Solutions & Others (Dannex Limited & Others Interested Parties) [2019-2020] 1 SCLRG 1. See also: Yeboa-Kodie Asare II (Yonsohene & Benkumhene of Jamasi) & Another (No. 1) v Addai (Yonso Bedomasi-Bretuo Abusuapanin & Others (No. 1) [2015-2016] 2 SCGLR 1198; Republic v High Court, Accra; ex parte Kotey (Boadu Interested Party) [2015-2016] 2 SCGLR 1267; Republic v High Court, Kumasi; ex parte Mobil Oil (Ghana) Ltd (Hagan Interested Party) [2005-2006] SCGLR 312; Republic v High Court, Ho Ex parte Awusu ( No. 2) ( Nyonyo Agdoada( Sri III) Interested Party) [ 2003-2004] SCGLR 907 

[19] Under article 132 of the Constitution, 1992; section 5 of the Courts Act, 1993 (Act 459) and Rule 61 of C.I. 16

[20] Republic v High Court, Kumasi, ex parte Bank of Ghana & Others (Sefa & Asiedu Interested Parties) (No. 1); Republic v High Court, Kumasi, ex parte Bank of Ghana, & Others (Gyamfi & Others Interested Parties) (No. 1) (Consolidated) [2013-2014] 1 SCGLR 477 by Dotse, JSC: “[i]t is well settled that certiorari was not concerned with the merits of the decision; it was rather a discretionary remedy which would be granted on grounds of excess or want of jurisdiction and/or some breach of the rules of natural justice; or to correct a clear error of law apparent on the face of the record.” But see Dotse, JSC’s valedictory decision in Republic v High Court, Tema; ex parte Dorgbadzi & Another (Tetteh & Another Interested Parties) Civil Motion No. J5/08/2023 ruling dated 6th June, 2023, SC (Coram: Dotse, Avril Lovelace-Johnson, Amadu, Henrietta Mensa-Bonsu and Kulendi, JJSC) where he put aside his own learning in Ex parte Bank of Ghana and delved into the merits of the case. In fact, full hearing sessions were held 3 times to ‘gather evidence’ before giving the ruling in the simple application for certiorari that was before the court. It is interesting to observe that Amadu, Prof. Henrietta Mensa-Bonsu and Kulendi, JJSC were part of the panel in Ex parte Dorgbadzi. Indeed, Kulendi, JSC’s scathing opinion about the trial Judge in Ex parte Anas does nothing but to remind one of Dotse, JSC’s against the trial Judge in Ex parte Dorgbadzi. For the author’s critique of the decision in Ex parte Dorgbadzi, see: https://fsboateng.com/the-two-faces-of-natural-justice-ex-parte-dorgbadzi-in-retrospect/ (accessed on 19th March, 2024)

[21] See: especially opinions of Gertrude Sackey Torkornoo, CJ and Asiedu, JSC

[22] In fact, Gertrude Sackey Torkornoo, CJ made this same point poignantly in her conclusion of her opinion in Ex parte Anas as follows: “My conclusion is that the issue of the sustainability of the Judge’s words used to describe the Applicant can only be a matter determinable by the appellate court. It is not the place of this court to question the basis for any findings and conclusions that have been reached by a trial Judge when the court does not have a full record of proceedings. That has never been the position of the law. In order to question or assess correctness or otherwise of any findings of fact, statement of opinions, and conclusions, this court, as a matter of law, ought to be seized with the full record of proceedings. That is the policy reason behind the law where the party seeks to question conclusions reached by a trial Judge, the process of appeal is the hallowed method to do so.” Unfortunately, before delivering herself so eloquently on the law in her concluding statement as quoted above, Gertrude Sackey Torkornoo, CJ had fallen into the same trap as the other panel members and delved into the merits of the trial court’s judgment before dismissing the application for certiorari

[23] [2017-2020] 1 SCGLR 912 at 918. See also: Gregory v Tandoh & Hanson [2010] SCGLR 971; Obeng v Assemblies of God Church, Ghana [2010] SCGLR 300; Awuku Sao v Ghana Supply Co. Ltd. [2009] SCGLR 710;

Tuakwa v Bosom [2001-2002] SCGLR 61; Koglex Ltd. (No. 2) v Field (No. 2) [2000] SCGLR 175; Achoro & Another v Akanfela & Another [1996-1997] SCGLR 209; Praka v Ketewa [1964] GLR 423, SC

[24] Effia Stool v Fijai Stool [2001-2002] SCGLR 893, by Joyce Bamford-Addo, JSC

[25] [2001-2002] SCGLR 893

[26] [2020] UKSC 23

[27] [2000] QB 452

[28] This reminds one of Azu Crabbe, CJ’s enduring words in Harlley v Ejura Farms [1977] 2 GLR 179 at 189: “In my opinion, it lies ill in the mouth … to complain about breach of practice rules … A wrongdoer whilst persisting in his own evil deeds cannot seek the law’s assistance against another wrongdoer. To him the court shall say Procul O! Procul este profani.”


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