Samson Lardy Anyenini

In 2015 the judiciary in Ghana was brought to its knees to purging it of corrupt elements. The country was hit with a massive scandal as 180 officials were caught on camera taking bribes and extorting money from litigants. 34 were judges and Chief Justice Georgina Wood was swift in sanctioning the culprits according to law, particularly for breaching their code against ex parte communication with litigants.

The man who had been celebrated for risking his life to name, shame and help the State jail greedy nation-wreckers at our boarders, ports, orphanages, hospitals etc, Anas Aremeyaw Anas, was behind the camera. He would soon become public enemy to the powerful and their followers when he beamed his cameras on corrupt football ‘gods’ and politicians.

On 20th November 2018, he sought refuge in the High Court over a period of sustained vilification - his person and methods of undercover journalism were under severe attack. The MP for Assin Central and failed NPP flagbearer aspirant, Kennedy Agyapong, would blow the cover of a member of the TigerEye investigative team on his television network. Ahmed Hussein Saule was murdered shortly after. Anas Aremeyaw Anas gathered and placed before the High Court presided over by Justice Eric Baah as many as 28 statements labelling him a fraudster, thief, blackmailer, promoter of illegal mining, murderer of an MP (J.B. Danquah-Adu), abettor of the murder of several Chinese and many other felonies.

But on the 15th of March 2023, not only did the judge deny him the 25 million cedis compensation he sought, he pronounced him guilty of all those crimes, stopping short of throwing the man he ‘convicted’ of doing investigative terrorism into jail. Many joined Anas in deprecating the judgment as a travesty, which he appealed and also mounted a certiorari application at the Supreme Court to quash it.

On the 28th of February, Chief Justice, Justice Gertrude Sackey Torkornoo and Henrietta Mensa-Bonsu backed Samuel Asiedu in dismissing his application. The long wait for the judgment expected on 4th March ended yesterday.  

In the 97-page 3:2 majority decision, they hold that Justice Eric Baah did no wrong in his use of “strong words” or “crudeness of his language” because he was simply assessing and evaluating facts and evidence before him, and that that’s exactly the core job of a judge. Anas is accused of indirectly seeking to gag the judge by accusing him of bias or prejudice, hate and personal dislike.

The three insist that the appropriate method to question the analysis, inferences, findings and conclusions of the judge is by an appeal and not resort to the supervisory jurisdiction of the Supreme Court for the discretionary remedy of certiorari to quash the judgment, moreso when this process does not allow them to go into the record of the trial.

The first of the two grounds for the certiorari application, being that the judge lacked jurisdiction was roundly and unanimously dismissed by all five judges. They argued that the fact that Eric Baah (Justice of Appeal) who did the case, as a relieving Judge, would be re-assigned by Chief Justice Anin-Yeboah to continue the case at the request of Mr. Agyapong, at a time that court had gotten a substantive judge, does not invalidate the judgment, and in any case, Anas did not object but participated fully to the end. They advise that if he had any such complaint, he should have raised it while the trial was ongoing. If Anas had won, will he be complaining of injustice, Justice Aseidu quizzes.

The minority (dissent) led by Justice Emmanuel Yonny Kulendi violently disagreed. He and Justice Issifu Omoro Tanko Amadu after referencing the judicial oath and reciting cases that caution judges against what the High Court judge did, cited a plethora of cases that support granting Anas’ certiorari on the grounds of lack of fairness, bias or prejudice.

The two praised him for beautifully outlining the law on defamation, but condemned him for failing to apply it and rather acting injudiciously, capriciously, demonstrating hate for Anas and his methods of journalism and literally convicting him of crimes in a civil suit without due process, without evidence and without the opportunity of being heard.

It is an explosive dissent. But I share only a couple of the paragraphs of what will definitely dominate discussions in legal circles and in the public in the coming weeks.

Justice Kulendi:

“I find it even more perplexing that a court exercising civil jurisdiction would find that the Applicant [Anas] is guilty of having taken bribes and being dishonest, fraudulent, a cheat, an extortionist, a thief, a blackmailer and corrupt. Equally baffling is the trial court's finding that a description of the Applicant as "a criminal, murderer, extortionist, blackmailer, corrupt, landgrabber, tax evader, bribe taker, cheat, interferer in the administration of justice, email hacker" among others are truthful and factual.

There can be no greater affront to the rights and honour of a litigant who resorts to the sanctuary of justice to vindicate his rights than this pre-conceived, biased, prejudiced and ill-motivated views which the trial judge held of the Applicant even before he embarked on a trial of the case before him.

Needless to say that the trial judge was merely pretending to adjudicate even though he was already harboring these opinions of the Applicant and animosities against him for his work, methodologies, and prominence...The Applicant is, to say the least, a victim of judicial defamation, a violation which, in my view, is more grievous than his complaint against the Interested Party [Kennedy Agyapong] which landed him before the trial judge in the first place.

...his personal reservations, disapproval and dislike for the Applicant and his modus operandi had poisoned his mind, blinded and disabled him from being an open-minded and impartial adjudicator of the matters before him...One would ask, was the Applicant on trial for murder, terrorism or the host of other crimes that were imputed to him by the judge? Was the court exercising a criminal jurisdiction in a defamation suit?...

Short of sentencing the Applicant, the trial judge, who appears to have been actuated by ill-will, malice, dislike, and complete disapproval of the Applicant's methods and investigative journalism, could not restrain himself from pronouncing a conviction and condemning the Applicant as an outright criminal, extortionist and blackmailer, masquerading as a journalist.

This type of unrestrained intemperate judicial arbitrariness, motivated by obvious personal dislike of a citizen, in the sanctuary of justice of all places, ought to be deprecated, disapproved and rejected in the strongest of terms.

The toxic, caustic and unsavoury description of the Applicant by the trial judge is a classic example of a violent abuse of judicial power, privilege and prerogative in the deployment of language under the guise of a judgment.”

Justice Tanko:

“With all due respect to the Learned Trial Judge, it is in my view obvious that, he was actually actuated by his self-conceived notion of the Applicant's supposed improper investigative methods and thus discarded the core issues before him. In fact, the judgement, as rendered, was indubitably informed by these personal dislikes against the Applicant and not based on the law and evidence placed before the Learned Trial Judge.

From a reading of the judgment, it is obvious that the Learned Trial Judge, deliberately set up the delivery to assist the cause of the Interested Party…

I must express my admiration for the Learned Trial Judge's elaborate and erudite evaluation of the law on defamation. While I expected that based on the law so propounded, the Learned Trial Judge would apply same to the facts and evidence, the Learned Trial Judge unfortunately did not just descend into the arena of conflict but, pursued a line of what in my view is an improper reliance on extraneous matters against the Applicant which were not relevant in the determination of the suit but associate the Applicant with criminality. This was at a stage of the proceedings where the Applicant was not and could not have been heard on those matters…

[T]he constitutional immunity enshrined in Article 127 of the 1992 Constitution to protect judges in the exercise of judicial power should not be taken for granted and construed as a shield to attack parties, lawyers and or witnesses before them without due process or any other sufficient justification”.

Long live Ghana judiciary! Get the Judgment and enjoy the read. That’s My Take.

Samson Lardy ANYENINI

March 16, 2024

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DISCLAIMER: The Views, Comments, Opinions, Contributions and Statements made by Readers and Contributors on this platform do not necessarily represent the views or policy of Multimedia Group Limited.