2021
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana review decision addresses the Attorney-General’s bid to overturn an ordinary bench ruling of 28 July 2021 that had granted Stephen Kwabena Opuni certiorari and prohibition against a High Court trial presided over by Justice C. J. Honyenuga (JSC) sitting as an additional High Court judge. In that criminal matter concerning COCOBOD, the High Court, while dismissing a submission of no case to answer, sua sponte expunged eighteen defence exhibits admitted without objection, yet retained prosecution exhibits. The ordinary bench (3–2) deemed that exclusion contrary to statute and prohibited the judge for apparent bias. On review, the majority opinion by Gertrude Torkornoo (JSC), joined by Dotse (Presiding), Prof. KoteY, and Lovelace-Johnson, held that the ordinary bench overstepped supervisory jurisdiction, conflating appellate analysis with certiorari standards, and misapplied hearsay law scope. Emphasizing Article 129(3) stare decisis and the narrow remit of Article 132 supervisory power, the majority found exceptional circumstances and miscarriage of justice, restored the High Court’s exclusion of the eighteen exhibits, and directed that the accused open their defence before the court currently assigned. Dissenting opinions by Amadu, Pwamang, and Dordzie argued breaches of natural justice and fair trial and would have dismissed the review.
MAJORITY OPINION
TORKORNOO (MRS.) JSC:-
BACKGROUND TO THE CURRENT APPLICATION FOR REVIEW OF THE
SUPREME COURT’S DECISION OF 28TH JULY 2021
The parties to this application first came before the Supreme Court when the Accused
persons in Suit No CC No. CR/158/2018 in the High Court and the
Applicants/Respondents in this court,(hereinafter referred to as Respondents) invoked
the supervisory jurisdiction of the Supreme Court pursuant to Article 132 of the 1992
Constitution and Rule 61 of the Supreme Court Procedure Rules 1996 CI 16.
The Respondents sought an order of certiorari and prohibition against the high
court(Criminal Division) coram Honyenuga JSC (sitting as an additional high court
judge) on four grounds. That application will hereafter be referred to as ‘the first
application’.
It was the case of the Respondents in the first application that in dismissing a
submission that the prosecution had failed to make out a case for the accused persons
to answer before the high court, the court had ‘committed a grievous error of law
apparent on the face of the record when contrary to the express provisions of section 6
of the Evidence Act 1975 (NRCD 323), the judge suomotu rejected eighteen exhibits
after earlier admitting same without any objection from the court or the interested
party’. The State(hereafter referred to as Applicants), was the interested party in the
first application.
The second ground was that, the court had committed a grievous error of law apparent
on the face of the record when after earlier admitting the eighteen exhibits, the learned
judge suomotu rejected those exhibits’ in his ruling without giving the Accused persons
an opportunity to be heard before the rejection of the exhibits as required under the
rules of natural justice
The third ground sought an order prohibiting the trial judge from continuing with the
trial of the Respondents on account of real likelihood of bias, because in his decision on
the submission of no case to answer, the trial judge had made ‘final findings of facts
and therefore predetermined and prejudged the case’ before hearing the accused
persons.
In their fourth ground seeking the prohibition order, the Respondents alleged that there
was a real likelihood of bias on the part of the trial judge because he had exhibited
patent bias against the interest of the Respondents when he rejected the eighteen
exhibits, but retained three other series of exhibits that were obtained in ide