DANIEL OFORI vs. ECOBANK GHANA LIMITED SECURITIES AND EXCHANGE COMMISSION GHANA STOCK EXCHANGE [2022]DLSC11716

DANIEL OFORI vs. ECOBANK GHANA LIMITED SECURITIES AND EXCHANGE COMMISSION GHANA... [2022]DLSC11716

Date	2022-05-19
Suit No.	CIVIL MOTION NO. J8/87/2022
Citation No.	[2022]DLSC11716

YEBOAH CJ (PRESIDING)

BAFFOE-BONNIE JSC

PWAMANG JSC

OWUSU (MS.) JSC

AMADU JSC

TSATSU TSIKATA ESQ. WITH HIM THADDEUS SORY ESQ. FOR THE APPLICANT.

KIZITO BEYUO ESQ. WITH HIM MINA OSEI OWUSU ESQ. FOR THE RESPONDENT.

[2022]DLSC11716
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													<main id="main" class="content" style="min-height: 60rem" >DANIEL OFORI<o:p></o:p>(PLAINTIFF/APPELLANT/APPELLANT/RESPONDENT/APPLICANT)<o:p></o:p>vs.<o:p></o:p>ECOBANK GHANA LIMITED SECURITIES AND
EXCHANGE COMMISSION GHANA STOCK EXCHANGE<o:p></o:p>(DEFENDANT/RESPONDENT/RESPONDENT/APPLICANT/RESPONDENT)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:115%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL MOTION NO. J8/87/2022&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: 19TH MAY, 2022<o:p></o:p>

</div>COUNSEL <o:p></o:p>TSATSU TSIKATA ESQ. WITH HIM THADDEUS SORY ESQ. FOR THE APPLICANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" style="margin-bottom:0cm;margin-bottom:.0001pt;
mso-add-space:auto;text-align:justify;line-height:115%;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">KIZITO BEYUO ESQ. WITH HIM MINA OSEI OWUSU ESQ.
FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM<o:p></o:p>YEBOAH CJ
(PRESIDING), BAFFOE-BONNIE JSC, PWAMANG JSC, OWUSU (MS.) JSC, AMADU JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;YEBOAH CJ:-<o:p></o:p>Before us, my Lords, is an application for review
of our decision in this case dated 13th July, 2021. The review application
was filed by the Defendant/Applicant/Respondent, to be referred to as “the
Defendant” pursuant to time extended by the Court. Upon service on the
Plaintiff/Respondent/Applicant, to be referred to as “the Plaintiff” he filed
an affidavit in opposition. When the review application was listed for hearing,
the Plaintiff raised an objection to the inclusion of our respected sister,
Torkornoo JSC, as a member of the panel to hear the application, on the grounds
that she dealt with an aspect of the case when she was a High Court Judge. The
objection could not be summarily resolved and an order was made for the
Plaintiff to file a formal application in that regard. The application was
filed on 7th February 2022, setting out the grounds for the
objection, key among which is that;<o:p></o:p>&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;“The constitutional hierarchy of
courts in Ghana, as elsewhere, does not allow a judge who sat as a judge of
first instance in a case where she adjudicated on certain facts, to adjudicate
again on the same set of facts when later sitting as a judge in a court higher
in the hierarchy. Her ladyship Justice Gertrude Torkornoo, while a High Court
Judge, sat on a case: Databank Brokerage Limited Vs. 1.Danotel Limited 2. Mr.
Daniel Ofori, Suit No. BFS/411/11 and made a determination of some of the
issues which would be coming up for consideration in the current review
application.”<o:p></o:p>&nbsp;The pending review application stemmed from High
Court Suit No. BFS; 545/08 in respect of company shares that the Plaintiff sold
to one William Oppong-Bio through the Defendant herein. A dispute arose
concerning the transaction hence the suit, which was finally decided by the
Supreme Court on 25th July, 2018 in favour of the Plaintiff. In the
review application, the Defendant is praying us to reopen the case and receive
evidence alleging the Plaintiff did not disclose certain facts to the Supreme
Court when the appeal came on for hearing. Databank Brokerage Ltd acted as the
brokers of the Plaintiff in the shares transaction and they also had some
differences with the Plaintiff that arose out of the transaction leading to the
Suit No. BFS/411/11 that was heard and determined by our sister.<o:p></o:p>&nbsp;The Defendant upon service of this application
seeking to disqualify Torkornoo, JSC, filed an affidavit in opposition
asserting that the cases are different and no prejudice could arise.<o:p></o:p>The settled practice in our jurisdiction is, that,
if a judge was involved in proceedings concerning a matter at a lower level of
the Judiciary and the matter comes up subsequently when the judge has moved up
the hierarchy of courts, he would recuse himself from the subsequent case on grounds
that the earlier association with the case may lead to prejudice. The issue is
simple where a judge conducted hearing of a substantive cause or matter and the
same cause or matter goes up on appeal or for review. However, where the
judge’s association with the case at the lower level was collateral or
concerned interlocutory matters only, then it is not a straight forward issue
and the nature and extent of the association of the judge to the matter needs
to be examined. The instant application is premised on an earlier association
that was collateral, in that the judge being sought to be disqualified, did not
hear the substantive case or give a substantive judgment in Suit No. BFS;
545/08.<o:p></o:p>Nevertheless, the apprehension of the Plaintiff is
that in the proceedings in the High Court before our sister in which the
matters in the case came up, she delved into the facts and the law involved in
the shares transaction and that those same matters arise for consideration in
the instant application. The Plaintiff’s case is that, the degree of her
association was such that she formed opinions at that at lower level that she
is likely to defend on this occasion and not afford her an impartial hearing.
But the Defendant contents that the review application is not to reopen the
substantive decision that was given in the case so there can be no prejudice on
the part of the judge.<o:p></o:p>&nbsp;</main>