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BUDU II v. CAESAR AND OTHERS


  • appeal
  • 1961-03-17
  • SUPREME COURT
  • GLR 176-177
  • Print

KORSAH, C.J., VAN LARE AND SARKODEE-ADDO, JJ.S.C.


Summary

Contempt of court?-Provocative behaviour of counsel?-Duty of trial judge?-Whether trial judge biased.

Headnotes

During the trial of this case in the High Court, Accra, counsel for the plaintiff (the appellant herein) alleged that the learned judge was disqualified from hearing the case on the grounds of legal bias, in that before his elevation to the bench he had written a letter as solicitor for the fourth defendant, Ocansey, to the clerk of mid-Volta Local Council, Senchi, in connection with the tolls in respect of the land which the fourth defendant claimed in this suit. After listening to counsel, the learned judge ordered the trial to proceed. Thereafter the behaviour of counsel became so provocative that the learned judge devoted a considerable portion of his judgment to describing it, and stated that he felt as if counsel were holding a pistol to his head. In allowing the appeal (although not on the merits):

Judgement

APPEAL from the judgment of Ollennu, J. in the High Court, Accra, on the 26th November, 1959, reported at [1959] G.L.R. 410.

JUDGMENT OF KORSAH, C.J.

During the trial of this case in the Land Court, counsel for plaintiff intimated that the learned judge presiding at the trial, had, prior to his elevation to the High Court Bench,

"written a letter as solicitor for the fourth defendant, Ocansey, to the Clerk of mid-Volta Local Council, Senchi, in connection with the tolls in respect of the land which the fourth defendant claims in this suit."

Counsel, however, further stated that he was not objecting to the learned judge hearing the case.

Later, at the close of the evidence of plaintiff's fifth witness, counsel repeated the above statement, and specially mentioned a letter dated the 8th October, 1941, as the letter to which he had previously referred, and added that because of that letter his client objected to the learned judge hearing the case. The letter which was admitted in evidence and marked exhibit LC reads thus:

"Dear Sir,

C. Tetteh Cuonooh .. Plaintiff

versus

Nana Kofi Budu .. Defendant

R.M. Asare .. Claimant

I have the honour to apply for withdrawal of the sum of six pounds nine shillings and six pence (6 9s. 6d) being costs deposited in the above case."

The learned judge overruled the objection on the ground, with which we agree, that writing such a letter on behalf of a person who was not a party in that case could not in any way disqualify him from hearing this case, though that person is now a party in the proceedings before him. He rightly, therefore, ordered the case to proceed.

For these reasons we allow the appeal and order a re-trial.

In the course of the evidence of the sixth witness for the plaintiff, counsel again protested against the learned judge hearing the case, because the letter (exhibit LC) refers to an interpleader suit which formed part of the plaintiff's case and that exhibit LC shows that the learned judge had foreknowledge of the facts which are reasonably likely to influence or bias his mind. After listening to a long dissertation by counsel the learned judge rightly ordered that the case should proceed.

In our view there is nothing on record, which by any stretch of imagination can be deemed to be sufficient to disqualify the learned judge on grounds of legal bias from presiding at the hearing of this case. But it would appear that by this time counsel's behaviour in court had become provocative to such an extent that it caused the learned judge to devote a considerable portion of his judgment to describing this provocative and hostile attitude to the bench, and to make the learned judge feel, as he described it in the judgment, that,

"The tone in which counsel made these statements, [as described in his judgment] and his attitude generally left no room for doubt; they were the tone and attitude of a person holding a pistol to my head, and, as it were, saying: You'd better be careful how you deal with my client, if you don't I'll break you."

The learned judge went on and stated that from a certain stage of the trial,

"counsel assumed an attitude of contempt for the court and that he answered almost every remark from the bench with a sarcastic observation or with a sarcastic question to witness in the box".

We are of the opinion that whenever a judge finds himself in such circumstances that counsel holds a pistol to his head or is guilty of contempt of court during the proceedings before him, it will be safer for the judge to take appropriate action immediately in order to avoid the possibility of any suggestion that there had not been a fair trial rather than to proceed with the hearing in such a tense atmosphere.

While we are clearly of the opinion that, although the trial judge had no interest whatsoever in the suit as to constitute a legal bias which would disqualify him from hearing the case, in the circumstances it is impossible for us to say that there has been a fair trial, in view of the accepted principle that justice must not only be done, but must manifestly be seen to have been done.

Decision

<P>Appeal allowed; order for re-trial.</P>

Plaintiff / Appellant

de Graft Johnson

Defendant / Respondent

E.N.P. Sowah for the second and their respondents. N. Olaga for the fourth respondent.

Referals

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