ADZAKU vs. GALENKU [1973]DLHC2250

Date	1973-11-19
Suit No.
Citation No.	[1973]DLHC2250

SARKODEE J.

F. T. C. AMORIN FOR THE APPELLANT.

E. D. K. ADJABENG FOR THE RESPONDENT.

[1973]DLHC2250
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">ADZAKU <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">GALENKU <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 1 GLR 198<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
19 NOVEMBER 1973.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

F. T. C.
AMORIN FOR THE APPELLANT.<o:p></o:p>

E. D. K.
ADJABENG FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>This is
an appeal from the judgment of his worship F. P. K. Avadetsi, Esquire, District
Magistrate Grade II, Kpandu. The judgment was delivered on 4 March 1971.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case so far as they are relevant to this appeal are that the Kpandu
District Court Grade II by a judgment dated 10 April 1970 ordered one Kwaku
Adegbe the defendant in that case to provide drinks and other items for the
“redemption of the plaintiff’s life from the fetish called Golokoe.” Kwaku Adegbe
had sworn the fetish on the plaintiff because the latter had given false
evidence against him. After the judgment, the plaintiff in the present case and
Adegbe went to the defendant, who was the priest of the Golokoe fetish. The
priest outlined certain conditions which the plaintiff should fulfil before he
performed the ritual. The plaintiff failed to perform his part of the bargain
and so the defendant did not abate the possible effects of the fetish. The
plaintiff said as a result he was put in perpetual fear of death. He therefore
brought an action against the defendant claiming ¢50.00 “as special damages for
wilful refusal to set him [plaintiff] free from the wicked hands of the
[defendant’s] Golokoe fetish and for torturing him [the plaintiff] mentally”
and an order to compel the defendant to perform the necessary rites. The
magistrate found the defendant liable and awarded against him ¢50.00 damages
plus costs of ¢20.50 and a further order that the defendant should perform the
necessary fetish redemption customary rites within a week from the date of the
judgment. The defendant appealed.<o:p></o:p><o:p>&nbsp;</o:p>On
appeal, the only ground argued on his behalf was that the whole trial was a
nullity on the ground that the magistrate was biased and that the judgment was
perverse and contrary to the rules of natural justice. During the trial of the
suit the plaintiff called his only witness Kwaku Adegbe, the man who had sworn
the fetish. It was suggested to this witness in cross-examination that he had spoken
to the presiding magistrate about the case that morning. He denied the
allegation. Counsel then requested the magistrate to refer the case to another
magistrate for a determination whether the allegation was true or not. The
magistrate examined the facts leading to the allegation and refused the
application. He recorded his ruling to be delivered on 6 July but on 4 July,
the defendant filed an affidavit setting out his complaint and prayed for the
change of magistrate. As a result of this, the magistrate wrote what he called
a supplementary order by which he referred the matter to his lordship the Chief
Justice. He then adjourned the hearing “indefinitely pending the receipt of
direction from his lordship.”<o:p></o:p><o:p>&nbsp;</o:p>I have
set out the sequence of events leading to the allegation of bias in some detail
because I think it is important that such an allegation when made must be
substantiated particularly, when the allegations of facts are challenged as in
the instant case. They ought therefore to be proved to have foundation. That is
to say, in order to disqualify the magistrate and to invalidate his decision
the allegation must be supported by evidence. To hold otherwise will be to
enable a party by objections to choose his own judge; a situation which will
drive a wedge into the fabric of our whole judicial system.<o:p></o:p><o:p>&nbsp;</o:p>A mere
suspicion of bias is not enough. The law on disqualification on the ground of
bias recognises not only actual bias but also a likelihood of bias, and that
interest, other than the interest of a direct pecuniary or proprietary nature,
which gives rise to a real likelihood of bias will disqualify a magistrate. In
R. v. Camborne Justices; Ex parte Pearce [1955] 1 Q.B. 41, D.C. Slade J. read
the judgment of the court which judgment reviewed earlier cases on bias;
starting with R. v</main>