THE REPUBLIC vs. THE DISTRICT COURT B SEKONDI EXPARTE CHRISNAB SERVICES [2019]DLHC7061

Date	2019-05-07
Suit No.	SUIT NO. E12/48/19
Citation No.	[2019]DLHC7061

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

STEPHEN KWESI KESSE ESQ: FOR THE APPLICANT

RESPONDENT UNREPRESENTED.

[2019]DLHC7061
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>THE DISTRICT COURT B SEKONDI<o:p></o:p>EXPARTE CHRISNAB SERVICES<o:p></o:p><o:p>&nbsp;</o:p>[HIGH
COURT, SEKONDI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. E12/48/19&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; DATE:
7TH MAY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>STEPHEN
KWESI KESSE ESQ: FOR THE APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RESPONDENT UNREPRESENTED.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>The applicant invokes the judicial
review jurisdiction of this court for an order in the nature of prohibition. It
wants the Magistrate of the respondent court prohibited from further hearing
the suit in which it is the defendant titled; “ANTHONY DAWSON VRS CHRISNAB SERVICES”.<o:p></o:p>In the affidavit supporting the
application, it is deposed that the said suit brought against the applicant by
the interested party came up for hearing on the 6th September 2018.
On that day though the interested party’s lawyer was not in court, trial
proceeded and the applicant’s lawyer did some substantial work. At a point
during cross examination, applicant’s lawyer prayed for an adjournment to
continue on another date. The trial Magistrate declined the request for
adjournment. This resulted in “acrimonious exchanges and hostilities” between
the applicant’s lawyer and the Magistrate in open court in which event the
Magistrate adjourned the matter subject to the award of costs of 300GHC against
applicant.<o:p></o:p>On account of the hostilities between
the lawyer and the Magistrate, according to the depositions, the applicant
filed a motion on 25th September 2018 requesting the trial
Magistrate to recuse herself from further trying the matter on grounds of
likelihood of bias. The said application was resisted by the interested party
not on the basis that any such hostilities took place but that same was not a
ground in law for recusal. In any event the trial Magistrate declined to recuse
herself on grounds that there were no such hostilities, a fact not denied by
the interested party. <o:p></o:p>Dissatisfied with the ruling, the
applicant sought a review. The review application came on for hearing on 18th
February 2019. The trial Magistrate heard the application and dismissed
samebefore the applicant’s lawyer would arrive in court. and The applicant’s
representative was in court but was not given the opportunity to move the
motion.<o:p></o:p>On the totality of these facts
alluded to, the applicant says there is the likelihood of bias against her and
the trial Magistrate ought to be prohibited from further trying the case.<o:p></o:p>It is often said that, that judges
must be fair is axiomatic, guaranteeing that fairness is what is the stubborn
and persistent headache.<o:p></o:p>The question of bias or the
likelihood of bias appears in varied forms. Deane J in the case of WEBB VRS THE
QUEEN (1994) CLR 342 at 352 identifies four separate but often overlapping
sources of bias as the interest of the judge in the case; his or her conduct;
his or her association; and extraneous information in connection with the
particular case. Whatever the source of the bias or the likelihood of it, it is
to be recognized that an allegation of it is a sensitive issue. It draws into
question the fitness of the particular judge to carry out his or her
fundamental position which is fair and impartial resolution of judicial
proceedings. It is fearfully said that whenever an allegation of bias or
reasonable apprehension of bias is made, the adjudicatory integrity not only of
the individual judge but of the entire administration of justice is called to
question. <o:p></o:p>A court must therefore consider such
an issue very carefully before reaching a finding. It thus appears to be a
universal approach that a charge of bias or real likelihood of bias be cogently
proved by the person alleging same.The point is well expressed by SARKODIE J in
ADZAKU VRS GALENKU (1974)1 GLR 198 at page 200 thus;<o:p></o:p>“In
order to disqualify the magistrate and to invalidate his decision, the
allegation must be supported by evidence. To hold otherwise will enable a party
by objections to choose his own judge: a situation which will drive a wedge
into the fabric of our judicial system.”<o:p></o:p>In assessing whether the party
making the allegation has discharged the onus, the test under our law according
to precedents has been the real likelihood of bias test adopted by the Court of
Appeal sitting as the Supreme Court in the ever well known ATTORNEY GENERAL VRS
SALLAH decision (1970) CC 54. The court per AMISSAH JA noted that the law
recognizes not only actual bias as a disqualifying factor but a likelihood of
bias as well. It further emphasized that whether there was a real likelihood of
bias depended on the circumstances; that is to say the decision must really
turn on a question of fact whether there is or is not under the circumstances a
real likelihood of bias.<o:p></o:p>Similarly, in REPUBLIC VRS HIGH,
DENU; EX PARTE AGBESI AWUSU II (NO.2) (2003-2004)2 SCGLR 864 the Supreme Court
held thus:<o:p></o:p>“A
charge of bias or real likelihood of bias must be satisfactorily proved on a
balance of probabilities by the person alleging same. Whether there existed a
real likelihood of bias or apparent bias was an issue of fact determinable on a
case by case basis.”<o:p></o:p>The allegation in this case stems mainly
from an alleged conduct of the trial Magistrate in the course of the trial of
the matter before her. She is said to have engaged in exchanges described as
hostilities with the applicant’s lawyer.<o:p></o:p>On record, the application was duly
served on the Registrar of the district court and the interested party. Neither
of them filed processes to contest the matter. That however, by no means
relieve the applicant of its obligation to prove the charge on a balance of
probabilities. The applicant has invoked the supervisory jurisdiction of this
court, a jurisdiction which is a creature of the constitution under article 141,
for a judicial remedy. The remedy is to prohibit a Magistrate from exercising
her judicial authority. I believe this is not a jurisdiction to be exercised
lightly and the remedy is not o</main>