[ 1974] 

GHANA LAW REPORT

HIGH COURT, HO

19 NOVEMBER 1973

 
SARKODEE  J.

Judges—Bias—Objection to Panel—Based on allegation that plaintiff's witness had had previous audience
about case with trial magistrate—No evidence in support of allegation—Subsequent complaint that trial
magistrate had exhibited violent temper in the course of trial and said many unpleasant things about
defendant—Whether trial magistrate in the circumstances biased—Proper test in determining bias.

Practice and procedure—Witness—Examination—Part to be taken by trial judge or magistrate—Extent.

HEADNOTES

In an action for, inter alia, damages, the defendant in cross-examination, suggested to the plaintiff's witness
that he, the witness, had previously spoken to the trial magistrate about the case. This allegation was
denied by the witness. The defendant did not call any admissible evidence on the issue but applied to the
trial magistrate to stop hearing the case and refer it to another magistrate for hearing as to the truth or
otherwise of the allegation. After reviewing the evidence, the trial magistrate concluded that there was no
foundation in the allegation and therefore dismissed the application. The defendant was subsequently found
liable.

On appeal, the defendant contended that the whole trial was a nullity and unsatisfactory because (a) on the
basis of the allegation, and from the facts the trial magistrate had exhibited violent temper in the course of
the trial, and had said many unpleasant things about him, the trial magistrate was biased and (b) he had
taken an undue part in the examination of the plaintiff's witness and had also cross-examined the defendant
extensively.

Held, dismissing the appeal:

(1) to disqualify the trial magistrate and to invalidate his decision, the allegation of bias must be supported
by evidence. A mere or reasonable suspicion of bias was not enough; the law recognised not only actual
bias but that interest, other than interest of a direct pecuniary or proprietary nature, which gave rise to a real
likelihood of bias. Without more, the conduct of the trial magistrate could not support the charge of bias and
since there was no foundation in the allegation of bias, the trial magistrate was right in dismissing the
application. Dicta of Lord O'Brien C.J. in R. v. Justices of County Cork [1910] 2 I.R. 271; of Slade J. in R. v.
Camborne Justices; Ex parte Pearce [1955] 1 Q.B. 41 at p. 51, D.C. and of Devlin L.J. (as he then was) in
R. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2
Q.B. 167 at p. 187, D.C. and Attorney-General v. Sallah, Court of Appeal sitting as the Supreme Court, 17
April 1970, unreported; digested in (1970) C.C. 54 applied. Dictum of Lord Esher M.R. in Eckers1ey v.
Mersey Docks and Harbour Board [1894] 2 Q.B. 667 at pp. 670-671, C.A. cited. Cottle v. Cottle [1939] 2 All
ER. 535, D.C. distinguished.
[p.199]

(2) The part which a trial judge or magistrate ought to take whilst witnesses gave evidence, must rest with
his discretion. However, a judge must not so conduct himself as to cause inconvenience to counsel by his
undue participation in the examination of witnesses. Examination of the record of proceedings in the instant
case did not indicate that the trial magistrate took sides nor pressed any witnesses in a way which could be
considered undesirable. Yuill v. Yuill [1945] P. 15, C.A. and Jones v. National Coal Board [1957] 2 Q.B. 55,
C.A. cited.

CASES REFERRED TO

(1) R. v. Camborne Justices; Ex parte Pearce [1955] 1 Q.B. 41; [1954] 3 W.L.R. 415; [1954] 2 All E.R. 850;
118 J.P. 488; 98 S.J. 577, D.C.

(2)  R. v. Rand (1866) L.R. 1 Q.B. 230; 7 B. & S. 297; 35 L.J.M.C. 157; 30 J.P. 293.

(3) Cottle v. Cottle [1939] 2 All E.R. 535; 83 S.J. 501, D.C.

(4) Eckersley v. Mersey Docks and Harbour Board [1894] 2 Q.B.667; 71 L.T. 308; 9 R. 827, C.A.

(5) R. v. Justices of County Cork [1910] 2 I.R. 271.

(6) R. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960]
2 Q.B. 167; [1960] 3 W.L.R. 305; [1960] 2 All E.R. 703; 124 J.P. 359; 104 S.J. 583; 58 L.G.R. 285, C.A.

(7) Attorney-General v. Sallah, Supreme Court, 17 April 1970, unreported; digested in (1970) C.C. 54.

(8)  Budu II v. Caesar [1961] G.L.R. 176, S.C. Jones v. National Coal Board [1957] 2 Q.B. 55; [1957] 2
W.L.R. 760; [1957] 2 All E.R. 155; 101 S.J. 319, C.A.

(10) Yuill v. Yuill [1945] P. 15; [1945] 1 All E.R. 183; 144  J.P. 1; 172 L.T. 114; 61 T.L.R. 176; 89 S.J. 106,
C.A.

(11)  R. v. Bateman (1946) 174 L.T. 336; 110 J.P. 133; 90 S.J.  224; 44 L.G.R. 121; 31 Cr.App.R. 106,
C.C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of a district magistrate grade II, wherein the appellant, a fetish priest, was found
liable in an action for, inter alia, damages. The facts are sufficiently set out in the judgment.

COUNSEL

F. T. C. Amorin for the appellant.

E. D. K. Adjabeng for the respondent.

This is an appeal from the judgment of his worship F. P. K. Avadetsi, Esquire, District Magistrate Grade II,
Kpandu. The judgment was delivered on 4 March 1971.

The facts of the case so far as they are relevant to this appeal are that the Kpandu District Court Grade II
by a judgment dated 10 April 1970 ordered one Kwaku Adegbe the defendant in that case to provide drinks
and other items for the "redemption of the plaintiff's life from the fetish called Golokoe." Kwaku Adegbe had
sworn the fetish on [p.200] the plaintiff because the latter had given false evidence against him. After the
judgment, the plaintiff in the present case and Adegbe went to the defendant, who was the priest of the
Golokoe fetish. The priest outlined certain conditions which the plaintiff should fulfil before he performed the
ritual. The plaintiff failed to perform his part of the bargain and so the defendant did not abate the possible
effects of the fetish. The plaintiff said as a result he was put in perpetual fear of death. He therefore brought
an action against the defendant claiming ¢50.00 "as special damages for wilful refusal to set him [plaintiff]
free from the wicked hands of the [defendant's] Golokoe fetish and for torturing him [the plaintiff] mentally"
and an order to compel the defendant to perform the necessary rites. The magistrate found the defendant
liable and awarded against him ¢50.00 damages plus costs of ¢20.50 and a further order that the defendant
should perform the necessary fetish redemption customary rites within a week from the date of the
judgment. The defendant appealed.

On appeal, the only ground argued on his behalf was that the whole trial was a nullity on the ground that the
magistrate was biased and that the judgment was perverse and contrary to the rules of natural justice.
During the trial of the suit the plaintiff called his only witness Kwaku Adegbe, the man who had sworn the
fetish. It was suggested to this witness in cross-examination that he had spoken to the presiding magistrate
about the case that morning. He denied the allegation. Counsel then requested the magistrate to refer the
case to another magistrate for a determination whether the allegation was true or not. The magistrate
examined the facts leading to the allegation and refused the application. He recorded his ruling to be
delivered on 6 July but on 4 July, the defendant filed an affidavit setting out his complaint and prayed for the
change of magistrate. As a result of this, the magistrate wrote what he called a supplementary order by
which he referred the matter to his lordship the Chief Justice. He then adjourned the hearing "indefinitely
pending the receipt of direction from his lordship."

I have set out the sequence of events leading to the allegation of bias in some detail because I think it is
important that such an allegation when made must be substantiated particularly, when the allegations of
facts are challenged as in the instant case. They ought therefore to be proved to have foundation. That is to
say, in order to disqualify the magistrate and to invalidate his decision the allegation must be supported by
evidence. To hold otherwise will be to enable a party by objections to choose his own judge; a situation
which will drive a wedge into the fabric of our whole judicial system.

A mere suspicion of bias is not enough. The law on disqualification on the ground of bias recognises not
only actual bias but also a likelihood of bias, and that interest, other than the interest of a direct pecuniary or
proprietary nature, which gives rise to a real likelihood of bias will disqualify a magistrate. In R. v. Camborne
Justices; Ex parte Pearce [1955] 1 Q.B. 41, D.C. Slade J. read the judgment of the court [p.201] which
judgment reviewed earlier cases on bias; starting with R. v. Rand (1866) L.R. 1 Q.B. 230 and ending with
Cottle v. Cottle [1939] 2 All E.R. 535, D.C. he said at p. 51:

"In the judgment of this court the right test is that prescribed by Blackburn J., namely, that to disqualify a
person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary
or proprietary) in the subject matter of the proceeding, a real likelihood of bias must be shown."

The test therefore is not one of a reasonable suspicion of bias as was the view held in earlier cases, a
notable example being, Eckersley v. Mersey Docks and Harbour Board [1894] 2 Q.B. 667 at pp. 670-671,
C.A. in which Lord Esher M.R. said:

"When the proposition sought to be established on behalf of the plaintiffs is examined, it comes to this, that
the disputes ought not to be referred to the engineer because he might be suspected of being biased,
although in truth he would not be biased. It is an attempt to apply the doctrine which is applied to judges,
not merely of the Superior Courts, but to all judges - that, not only must they be not biased, but that, even
though it be demonstrated that they would not be biased, they ought not to act as judges in a matter where
the circumstances are such that people - not necessarily reasonable people, but many people - would
suspect them of being biased."

In the view of Lord O'Brien C.J. in the Irish case of R. v. Justices of County Cork [1910] 2 I.R. 271 Lord
Esher's dicta (supra) was too wide for he said:

"That, in my opinion, goes too far. It makes the mere suspicions of unreasonable persons a test of bias. I
think that the judgment was not a considered one, and that Lord Esher made use of some loose
expressions. We decline, on a consideration of the cases, to go so far as that very eminent judge. There
must, in the words of Blackburn J., be 'a real likelihood' of bias: Reg. v. Rand (1866 L.R. 1 Q.B. 230, p.
233). In Rex (De Vesci) v. Justices of Queens Co., ((1908) 2 I.R. 285, 294) I expressed myself as follows:
'By "bias" I understand a real likelihood of an operative prejudice, whether conscious or unconscious. There
must, in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of bias. I do not
think that the mere vague suspicions of whimsical, capricious and unreasonable people should be the
standard to regulate our action here. It might be a different matter if suspicion rested on reasonable
grounds - was reasonably generated - but certainly mere flimsy, elusive, morbid suspicions should not be
permitted to form a ground of decision'."

[p.202]

The English Court of Appeal in 1960 set the seal to the real likelihood test for Devlin L.J. (as he then was) in
R. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2
Q.B. 167 at p. 187, C.A. said:

"Is there, in those circumstances, a real likelihood of bias? I am not quite sure what test Salmon J. applied.
If he applied the test based on the principle that justice must not only be done but manifestly be seen to be
done, I think he came to the right conclusion on that test. I cannot imagine anything more unsatisfactory
from the public point of view than applications of this sort being dealt with by a bench which was so
composed, and, indeed, it is conceded that steps will have to be taken to rectify the position. But, in my
judgment, it is not the test. We have not to inquire what impression might be left on the minds of the present
applicants or on the minds of the public generally. We have to satisfy ourselves that there was a real
likelihood of bias - not merely satisfy ourselves that that was the sort of impression that might reasonably
get abroad."

In Ghana, the Court of Appeal sitting as the Supreme Court adopted the real likelihood of bias test in
Attorney-General v. Sallah, Supreme Court, 17 April 1970, unreported; digested in (1970) C.C. 54 and
emphasized that whether there was a real likelihood of bias depends 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.

In this appeal Kwaku Adegbe was alleged to have seen the magistrate in the precinct of the court before
the court started sitting. He was cross-examined on this but he denied the allegation. He and others were
already seated in the court room before the magistrate arrived from Kpandu to Kpeve where the court sat
that day. I do not think he could have left the other people, including the parties to the suit and gone out to
see the magistrate. It will be helpful here to refer to paragraphs (9) to (13) of exhibit A, the affidavit sworn to
and filed by the defendant:

"(9) That as soon as my counsel arrived in court, on the 25th day of June 1970, the magistrate said in open
court that I am a liar and have lied to him (counsel).

(10) That prior to counsel's arrival I had been informed by Kwaku Adegbe through C. E. K. Cudjoe that he,
Kwaku Adegbe, had had audience with the magistrate that morning concerning the case.

(11) That my counsel cross-examined Kwaku Adegbe who was a witness for the plaintiff on those matters
which he denied of course.

[p.203]

(12) That the magistrate shouted at the top of his voice in open court that it was all lies.

(13) That my counsel submitted to the court that we could not continue the case before him in view of his
attitude to me from the beginning of the case to the allegation touching on Kwaku Adegbe."

It is apparent that there is no admissible evidence upon which to base the allegation of bias. C. E. K.
Cudjoe himself did not swear to an affidavit and he was not called. He was the defendant's son and, from
the circumstances, was in court that day. Even if he had sworn to one I doubt whether he could have made
any positive assertion that Kwaku Adegbe had audience with the magistrate that morning or at any time. It
will be noted that this matter was raised after the plaintiff and his witness had given evidence and had been
cross-examined by counsel for the defendant. The plaintiff then re-examined his witness and the court also
asked him some questions. In effect but for the intervention of counsel at that stage that would have been
the end of the plaintiff's case; what was left was for the magistrate formally to record that fact.

Counsel cited Budu II v. Caesar [1961] G.L.R. 176, S.C. and submitted that as a very serious allegation had
been made against the magistrate it was proper for him to have stopped hearing the case. When the point
was urged, the magistrate on 18 June 1970, adjourned the case and read a considered ruling on 6 July in
which after he had reviewed the evidence before him, he concluded that there was no foundation in the
allegation and therefore he dismissed the application.

Meanwhile the defendant filed exhibit A which made it necessary for the magistrate to write what he called
"a supplementary" to his order, and referred the matter to his lordship the Chief Justice for his directions. He
then adjourned the case "indefinitely pending the receipt of the directions from his lordship." Subsequently,
a letter from the Judicial Secretary's office directed that the defendant should have made application for the
change of magistrate to the High Court, Ho. No application was filed in the High Court to stop the
proceedings and have the magistrate's ruling tested or then to have the case transferred or both.
I do not think the magistrate should have stopped hearing the case on an allegation which had no
foundation. The allegation must be based on reasonable grounds and must he reasonably generated: see
R. v. Justices of County Cork (supra). I am not saying that the allegation itself must be proved to be true but
that there must be sufficient evidence upon which the party complaining might rely to form the impression
that the magistrate could not give him unbiased hearing. I am not unmindful that the parties in this suit are
simple village people who apparently strongly believe in the power of their fetish and will therefore rely on
mere allegation to feel that they would not have [p.204] justice done. But even in their case the allegation
must have some basis and should not be a mere suspicion.

This case can therefore be distinguished from Cottle v. Cottle [1939] 2 All E.R. 535, D.C. That was a case
before justices in which the husband alleged desertion. It appeared that the chairman of the bench was a
friend of the wife's mother. The husband took objection to the case being tried by a court presided over by
the chairman but the chairman overruled the objection and the trial proceeded. The husband cross-
examined the wife. It was proved that the wife had said that she would obtain a summons to be set down
for hearing when this particular justice was presiding and that he would "put him [the husband] through it." It
was held that it was not necessary to show that the justice was in fact biased, and there was here sufficient
evidence upon which the husband might reasonably have the impression that this Justice could not give
this case an unbiased hearing.

It is interesting to note that the chairman in overruling the objection said as reported in Cottle v. Cottle
(supra) at p. 537 that:

"I do not uphold the objection. I took an oath when I was appointed a magistrate to do justice, and I have
always endeavoured to. I do not know anything about this case, and I did not consult your wife about it. I
knew about the previous case, but I did not know about this case until the Monday morning when your wife
came to ask for a summons. I do not see any justification at all for my vacating the chair. I think it is a
frivolous objection."

The chairman it seems found himself in a difficult situation because local justices in the United Kingdom are
often assisted in their work by their knowledge of local conditions and the history of the local people who
come before them. Indeed this is a very important feature in the administration of justice by local justices.
But this is not the case in point. Mr. Cottle, the husband in this case knew of the relationship between the
chairman and his wife's mother. This was not denied. The husband alleged that his wife's acquaintance with
the justice was such that he would be inclined in her favour. There was clearly sufficient evidence and the
husband had good cause to have misgivings. The allegation against the trial magistrate in this appeal was
without foundation. We cannot put something on nothing and expect it to stay; it will fall.

Another argument in support of the contention that the trial was unsatisfactory was to the effect that the
magistrate took an undue part in the examination of the plaintiff's only witness and that he cross-examined
the defendant deeply. The part which a judge or magistrate for that matter ought to take while witnesses are
giving evidence, must rest with his discretion: see Jones v. National Coal Board [1957] 2 Q.B. 55, C.A.
applying Yuill v. Yuill [1945] P. 15, C.A. However, a judge [p.205] must not so conduct himself as to cause
inconvenience to counsel by his undue participation in the examination of witnesses. I have looked at the
record very closely and I see no trace from the answers recorded that the magistrate took sides nor am I
able to conclude that he pressed any witnesses in a way which could be considered undesirable. The
answers were merely repetitions of the witnesses' evidence-in-chief which indicate that the magistrate was
trying to ascertain the truth. Further, and rightly too, the magistrate examined the witnesses after they had
given evidence-in-chief and had been cross-examined, and re-examined. The examination by the
magistrate of the plaintiff's witness went to clarify the point as to where he was when the magistrate arrived
at the court from Kpandu. Likewise the examination of the defendant and his witness established the
reasons for the defendant's failure to purge the plaintiff of the fetish; evidence which the witnesses had
given earlier and which touched upon the drinks and the money to be provided. It will be noted that both the
defendant and his witness were examined by the magistrate after they had been cross-examined. It seems
what the magistrate did cannot be faulted. He put questions with the view to bringing out answers to
questions which had not been sufficiently answered. He did not descend into the arena, so to speak. He did
not take an active part in the conduct of the case.

It was further alleged that the magistrate exhibited violent temper in the course of the trial and said many
unpleasant things about the defendant. This without more cannot support a charge of bias. There is no
mention in the affidavit as to which words were used. I cannot accept the defendant's opinion in this respect
also that they were alleged to have been uttered in the absence of counsel. However, it is unfortunate the
magistrate described the witness for the defendant as a liar when he formed the opinion that he was not
trying to assist the court. Also in his judgment the magistrate had cause to say that fetish priests in the
district were fraudulent. This is not supported by the evidence. In this regard I will adopt what Humphrey J.
said in R. v. Bateman (1946) 31 Cr.App.R. 106 at p. 111, C.A.:

"Judges are entitled, if they form the opinion that a witness is not trying to help the Court, to do what
counsel cannot do, and say: 'You behave yourself and tell me the truth.' It is sometimes very useful to be
able to say that. Sometimes it pulls a witness together and makes him say what is the truth, but, of course,
it must not be done until the witness has given some indication that he or she is not trying to tell the truth."

It must not, however, be forgotten, by those who preside at trials that witnesses whether called by the
prosecution or the defence in criminal cases or by either of the parties in a civil suit are entitled to be treated
with courtesy and politeness.

[p.206]

I do not in any case think that these lapses on the part of the magistrate caused any injustice to the
defendant. I therefore hold that this appeal fails and is dismissed accordingly.

DECISION

Appeal dismissed.

S. Y. B.-B.