CJ HAULED BEFORE COURT

By Felix Engsalige Nyaaba

The Chief Justice, Her Ladyship Mrs. Georgina Theodora Wood, has been  dragged before an  Accra Fast Track High Court  for  breaching the 1992 Constitution and interfering with judicial process by reversing a High Court decision on the contempt case  between two disputing faction of the Anlo traditional area in the Volta  Region.

The application was filed on March 8, 2012, on behalf of the applicants, Mr. Patrick Agboda, the Awoamefia of the Anlo Traditional area and 10 others by Lithur Brew & Co Law Firm in Accra.

The other applicants are, Togbui  Addo VIII, Togbui Agbesi Awusu II, Togbui Gbodzor III, Togbui Honi , Nyigblanua Eha II, Dan Abodakpi, the Ghana High Commissioner to Malaysia,  Francis Segbedzi, Ben Sakpau   , Agbotadua Kumassah  and  Philip Kumassah.

Before the suit against the Chief Justice, the applicants were facing contempt of court case at the Accra Fast Trach Court brought by Lieutenant Colonel Courage Togobo (Rtd), a principal member of the Fuiga Agbeve family of the Anloga and Adika Drafor Royal gates of the Adzovia clan of the Anlo traditional area.

However, during the hearing of the contempt case, lawyers for the applicants in the instance application raised preliminary objection that the case be send back to the Ho High Court where the original case that led to the contempt was pending.

The Court presided over by Mr. Justice Ofori-Atta, on October 31, 2011 upheld the objections of the Respondents in that suit that, the Accra High Court had no jurisdiction to hear and determine the contempt proceedings.

According to Justice Ofori Atta, the Ho High Court in the Volta Region was the convenient forum for the contempt considering the interest and convenience of the parties and their witnesses.

But to the utmost surprise to the applicants herein, the Chief Justices with the infringement of Article 296 of the 1992 Constitution under the hand of the Fast Track High Court Registrar ordered and directed that the case be transferred from one Fast Track High Court in Accra to another one, also in Accra.

Following that directives by the Chief Justices, the applicants through their legal counsel, Mr. Tony Lithur  filed a motion on notice for order in the nature of judicial review to reverse the Chief Justices  unprecedented  judicial   administrative  order and to quash the directive to place the contempt suit before another High Court in Accra.

The applicants are therefore  seeking the court among others  for a  declaration that the Respondent’s, Her Ladyship Justice Georgina Wood  powers under Sections 104 and 105 of the Court’s Act, 1993 (Act 459) and Order 3 Rule 2 of C.I. 47 are subject to Articles 132, 137(1) and 296 of the Constitution 1992;

 It further wants a declaration that by reversing the ruling of the Fast Track High Court, dated October 31, 2011, and by the use of administrative powers or fiat under section 105 of the Courts Act, 1993 (Act 459), after a judicial determination by the said ruling on the issue of venue, the Chief Justices had thereby usurped the judicial powers of the Superior Courts of Judicature in breach of Articles 132 and 137(1) 0f the Constitution, 1992.

It also wants an order quashing the directives and Orders issued by the Respondent, the Chief Justices through the Judicial Secretary, dated the 10^th day of November, 2011.

In an accompanying affidavit deposed off by Francis Segbedzi, the 8^th respondent in the contempt suit that, Lt. Col. Courage Togobo (Retired), the Interested Party herein sued the applicants herein for contempt in the Fast Track High Court, Accra.

That, the Interested Party alleged that as a principal member of the Fuiga Agbeve Family of the Adzovia Clan of the Anlo Traditional Area, one of the king-makers of the Awoamefia, had filed a Petition at the Judicial Committee of the Volta Regional House of Chiefs, challenging the eligibility of the applicants for enstooling one Patrick Agboda as the Awoamefia of Anlo Traditional Area.

According to the applicants in their affidavit, some delays occurred in the hearing of the Petition and during that period, attempts were made to install Patrick Agboda who is also applicant in the instance motion as the Awoamefia.

But the Petitioners then caused to be filed an application for contempt at the High Court, Ho, in the Volta Region against the applicants herein.

That in spite of the pendency of the application for contempt, further attempts were made to install 1^st Applicant herein as the Awoamefia and another application for injunction was then filed at the High Court Ho to arrest the installation.

It said, the injunction application was not successfully serve on the applicants herein and as a result the installation process therefore went ahead without the contempt applicant being duly served, which later resulted in the institution of the contempt proceedings at the Accra Fast Track High Court against the eleven applicants in the instance suit.

According to the applicants, before the application for contempt could be heard, preliminary objections were raised to the hearing of the contempt suit in Accra contrary to the court rules on jurisdiction.

The legal counsel objection were that without exception, all the events based on which the contempt was instituted occurred in the Ho High Court and  the Petition against the eligibility of Patrick Agboda as the Awomefia  was  also commenced before the Judicial Committee of the Volta Regional House of Chiefs.

It further stated that, the application for injunction which was the immediate basis for the application for contempt was also initiated in the High Court, Ho, in the Volta Region, and

that most of the Respondents to the  contempt proceedings as well as the witnesses that may be required in proof or rebuttal of the allegations, lived and worked in the Volta Region.

The applicants through their legal counsel argued that with respect, the most convenient forum for the contempt application was the Volta Region and that there was no conceivable reason why the contempt suit was instituted in Accra in the Greater Accra Region.

However, in a ruling dated October 31, 2011, the Presiding Judge, His Lordship Mr. Justice Ofori-Attah, upheld the objections of the Respondents, with the reason that Accra had no jurisdiction to hear and determine the contempt proceedings.

The applicants therefore said, even though the provisions of the Constitution, the Chief Justice may by order signed by the Chief Justice transfer a case from a Judge or Magistrate or Tribunal to any other Judge or Magistrate and from one court to any other competent court at any time or stage in the course of proceedings, the exercise by the Chief Justice of her powers of transfer may be limited depending on the situations under Sections 104 and 105 of Act 459.

It further argued that,  the power to order  the transfer vested  in  the Respondent qua Chief Justice,  are  been conferred on her as the administrative head of the judicial arm of government and that the  Applicants do not seek to challenge the existence of that power.

The exercise by Respondent of those powers, whether under Section 104 or 105 of Act 459 or under Order 3 Rule 2 of C.I. 47, are administrative in nature, vested in her to be used in the proper management of the judicial arm of government.

 In that sense, its exercise is not in the nature of judicial determination and, therefore, cannot be described as the exercise of judicial power.

The applicants said, in refusing to transfer the suit in accordance with the ruling of  Justices Ofori-Attah, the  Respondent did  breached  the 1992 Constitution and that the court must review it own decision and quashed the directive of the Chief Justice.

The right to be heard in a dispute that involves two or more parties is a fundamental ingredient of the adversarial system of justice and when parties exercise their rights in that regard in arguing their respective cases before a court of competent jurisdiction, and a ruling is delivered, they expect the outcome to be sacred unless set aside on an appeal or any other judicial mechanism provided under the laws of the country.

That applicants contended that, the Constitution is the highest legal instrument and is the highest source of law and that other statutory instruments are subordinate to the Constitution and the powers the CJ may have under Act 459 and C.I. 47 cannot override constitutional provisions that provide for modes of reversing judicial decisions taken by courts of competent jurisdiction.

It however, noted that in reversing the judicial decision of a court of competent jurisdiction in the manner in which the Chief Justice did, she had, in her administrative capacity, transformed herself into a Court of Appeal or Supreme Court over the ruling of the High Court and that her conduct cannot be said to be the intent behind Sections 104 and 105 of Act 459 or indeed Order 3 Rule 2 of C.I. 47.

It therefore concluded that the Chief Justice by her orders reversed the “judgment”, delivered by a court of competent jurisdiction; she had by administrative fiat, usurped the role of duly constituted appellate courts in favour of one disputing party and has thereby breached the 1992 Constitution and interfered with judicial process.