Is it justifiable for a Judge to hear a contempt matter of which he has an interest?
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“Little things count most as they form the foundation of great things” – Benjamin T. Antiedu, Esq (Author Reading the Law)
INTRODUCTION
The first time I heard of contempt of court was 2013 during the hearing of the Election Petition where some political parties’ activists and an editor were cited for contempt for bastardizing the courts. In fact, the 2013 election petition, aside it being history, was very educative hearing. Same happened in the case of Abu Ramadan, Evans Nimako vs. Electoral Commission of Ghana where three radio panelists on a Montie FM political show found themselves on the wrong side of the law over comments the Supreme Court deemed contemptuous.
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Last year September 2020, Mr. Kennedy Ohene Agyapong, the Honorable Member of Parliament for Assin Central Constituency was cited for contempt due to his comments allegedly made in connection with a land matter in which Susan Bandoh and Christopher Akuetteh Kotei had sued him (Kennedy Agyapong), Ibrahim Jaja, Nana Yaw Duodu a.k.a Sledge and the Inspector General of Police.
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While the case was still at the Land Division of the High Court (Land Court 12), the MP allegedly scandalized the court by describing the sitting judge as “stupid” on a program aired on NET2 TV and Oman FM on September 2, last year.
One of the issues raised by the lawyers of Kennedy Agyapong (contemnor) was that the learned trial judge His Lordship Amos Wuntah Wuni J.’s use of the phrase ‘severely punished’ in the contempt summons and his conduct and disposition in the course of the proceedings before him amounts to bias, prejudice, and in bad faith which will disable the learned trial judge from being able to exercise his discretion fairly.
One key question that may arise in contempt cases is whether it is appropriate for a judge to hear a contempt matter of which he was attacked. And that is the major issue for discussion in this article. Before I delve into the gravamen of this issue, I will like to briefly discuss the concept of contempt of court.
The Black’s Law Dictionary defines contempt as a “conduct that defies the authority or dignity of a court or legislation”. The law of contempt is essentially concerned with interference with the administration of justice.
A person may be held in contempt for many different reasons. Some of the most common reasons include:
(i) Failure to obey an order of the court (as long as that order was lawful). An example is an injunction order.
(ii) Showing disrespect to the Judge or Magistrate in the courtroom, including violent behavior.
(iii) Disrupting the court’s proceedings with noise or other “acting up”.
(iiii) Publishing matters which may prejudice the right to a fair trial (“trial by media”), or criticisms of courts or judges which may undermine public confidence in the judicial system (“scandalizing the court”).
There are other forms and purpose of contempt and is expressed in the case of Republic v. Mensa-Bonsu by Bamford Addo JSC (as she then was):
“This is the reason why the courts are given the power to commit for contempt, that is to punish any acts which tend to interfere with the proper administration of justice, or which ‘scandalizes’ the courts, by eroding public confidence in them or by weakening and impairing their authority”
The rationale for contempt proceedings is the need to vindicate the dignity of the court as an institution, and thereby protect it from disparagement and ensure due administration of justice. And as stated by Kulendi JSC “The sacred role of the judiciary cannot be sacrificed on the altar of ridicule, scorn, opprobrium or impudence of any individual to the disadvantage of society at large”.
The rationale of contempt therefore is not to bolster the power, dignity and ego of the judges as an individual.
Generally, contempt may be classified as a civil contempt or criminal contempt. By definition, civil contempt is disobedience of a court order. An example is refusal of a party to comply with the order of the Court for payment of money. On the other hand, criminal contempt involves conduct that interferes with or obstructs justice delivery.
Examples of criminal contempt include threatening, or insulting a Judge or Magistrate.
With criminal contempt, the act constituting the contemptuous conduct has been completed and the contempt cannot be “purged”. The punishment is imposed to vindicate the authority of the court. (Emmanuel Kwabena Quansah “Ghana Legal System”).
There are two forms of contempt: contempt in facie curiae: and contempt ex facie curiae. Contempt in facie curiae is committed inside the court during Court proceedings. The other form of contempt is contempt ex curiae; this contempt is that which has been committed outside the court. The cases of Republic v. Liberty Press Ltd & 28 Others and Republic v. Kwabena Mensa-Bonsu & 2 Others both cases are examples of ex facie curiae.
In proving contempt, the prosecution must prove the same standard as in all criminal offences (Elikplim Agbemava v. Attorney-General). The essential elements of contempt are stated in the case of Republic v.Sito I Ex-parte Fordjour. They are:
(i) There must be a judgment or order requiring the contemnor to do or abstain from doing something;
(ii) It must be shown that the contemnor knows what precisely he is expected to do or abstain from doing; and
(iii) It must be shown that he failed to comply with the terms of the judgment or order and that the disobedience is willful.
ANALYSIS
In the suo motu of the court
It is trite law that, in Ghana, only the Superior Courts have the power to punish for contempt of court as stated in article 126(2) of the 1992 Constitution “The Superior Courts shall be superior courts of record and shall have power to commit for contempt to themselves and all such powers as were vested in a court of record immediately before the coming into force of this constitution”. The Superior Courts can, suo motu, commence contempt proceedings.
This position was affirmed in the recent case of Republic v High Court (Land Division), Accra; Ex – Parte Kennedy Ohene Agyapong (Susan Bandoh as Interested party) (unreported) where the learned Supreme Court, Kulendi, JSC stated in paragraph 12 that;
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“It must however be noted that the Superior Courts when dealing with summons for contempt suo motu pursuant to article 126 of the Constitution, have a wider latitude and cannot be held to the terms of a subordinate statute such as the Criminal and Other Offences Procedure Act, 1960 (Act 30)”.
The law in relation to article 126 (2) as stated supra mandate the judges to adjudicate any contempt proceedings and possibly punish the contemnor(s) if found guilty whether the comment or action was against the Judge in question or the court either in facie or ex facie curiae.
Considering the principles of nemo judex in causa sua. According to the Lectric Law Library’s Lexicon, “Any mental condition that would prevent a judge or juror from being fair and impartial is called bias”. This reminds me of the other leg of natural justice nemo judex in causa sua which literally means “no one should be a judge in his own cause or case”.
In the famous case of R v. Sussex Justices, ex parte McCarthy Lord Hewart CJ’s classical and celebrated statement that “it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’’ is very relevant when discussing the principle of nemo judex in casua sua. A fuller version of this maxim is Nemo debet esse judex in propria causa sua, quia non potest case judex et pars, which means “nobody is to be judge in his own cause because he cannot simultaneously be judge and party.”
Other variants of this maxim include “ne quis in sua causa judicet vel sibi jus dicat” and “nemo potest esse simul actor et judex.” With minor differences in emphasis, the common object of these maxims is to express disapproval of any blurring of the dividing line between “a judge” and “a party”. The reason for these maxims is the recognition of the incompatibility of the judicial function with any personal involvement of a member of the Bench in a case before the court. This principle is intended to ensure fairness in adjudication and eliminate bias in favor of one party against the other.
This maxim has been at the heart of the administration of justice for centuries to the extent that the rule denies the Head of State the right to sit in her own courts to administer justice. The credibility of the Judiciary cannot be discussed without reference to it. The power of the trial court to commit for contempt is not retained for the personal aggrandizement of the Judge or whoever mans the court. This endorsed what Thomas Hobbes said in one of his publications “[S]eeing every man is presumed to do all things in order to his own benefit, no man is a fit arbitrator in his own cause; and if he were never so fit; yet equity allowing to each party equal benefit, if one be admitted to be judge, the other is to be admitted also”. Anyone who allows any judicial decision to be influenced by partiality or prejudice violates one of the most fundamental principles underlying the administration of justice. Where such prejudice or partiality is shown, the contemnor will have irresistible grounds for objecting to the trial by that judge (if objection is made before the hearing) or for applying for judgment to be set aside.
The credibility of the judiciary is paramount to every democratic state. Any case where a judge is shown to have an interest in the outcome of the matter which he has to decide gives rise to automatic disqualification, e.g., where a judge is shown to have an interest in the outcome of the case. In R v Rand (1866) Blackburn J said: “There is no doubt that any direct pecuniary interest, however small, is subject to enquiry, and does disqualify a person acting as a judge in the matter.”
Also, in the case of R v Camborne Justices ex parte Pearce Slade J said: “It is, of course, clear that any direct pecuniary or proprietary interest in the subject matter of a proceeding, however small, operates as an automatic disqualification.”
The basic rule is not in doubt. Nor is the rationale of the rule; that if a judge has a personal interest in the outcome of an issue which he is to resolve, he is improperly acting as judge in his own cause; and that such a proceeding would, without more, undermine public confidence in the integrity of the administration of justice. This second rule of natural justice or fair hearing, also known as the rule against interest and bias, is a bedrock principle of natural justice and constitutionalism and it is meant to prohibit any person who has a real or apparent interest or bias in a matter from sitting as judge in that matter. In this circumstance, an interest that will operate to disqualify a judge is one that makes him desire that the matter should go in favour of a particular side or that will occasion a miscarriage of justice. Therefore, this maxim requires that a judge must not be an interested party in a matter or be in a position whereby there is a substantial likelihood of bias on his part.
In City of London v. Wood, Holt J made this point very clear when he stated that: “it is against all laws, that the same person should be party and judge in the same cause, for the party is he that is to complain to the judge, and the judge is to hear the party; the party endeavours to have his will, the judge determines against [or for] the will of the party, and has authority to force him to obey his sentence: and can any man act against his own will, or enforce himself to obey. To say that he may be judge and party… it is manifest contradiction… it is impossible that one should be judge and party, for the judge is to determine between party and party, or between the government and the party”.
In Temporal Authority Luther King Jr. only reminds his readers that God has reserved judgment to himself. He implies that they ought, therefore, to refrain from acting as judges on their own behalf. By comparison, in his treatise on the soldier’s vocation, the reformer states explicitly and emphatically, “No man ought to judge his own case [Niemand sol sein selbs richter sein].”
In the case of Republic v High Court (Land Division), Accra; Ex – Parte Kennedy Ohene Agyapong (Susan Bandoh as Interested party) (unreported), the judges observed that, the trial judge conduct of the proceedings were quite confrontational.
Kulendi JSC after observing the proceedings from the trial Judge emphatically stated “The conduct of the trial judge leaves much to be speculated about his disposition to dealing with the Applicant impartially. Among others, he refused an oral application for adjournment to abide the outcome of an application before this Court seeking to quash the proceedings before him and to prohibit him from continuing the trial”.
From the above analysis, can it be said that the principles of natural justice, particularly the principle of Nemo Judex in Causa Sua has been religiously observed if a judge who has been attacked is allowed to determine his own case? Without any modicum of doubt, a judge who has been attacked personally become a complainant and there is real likelihood of bias to show from his side.
One prominent legal practitioner Isaac M. Larbi commenting under the case of Republic v High Court (Land Division), Accra; Ex – Parte Kennedy Ohene Agyapong (Susan Bandoh as Interested party) (unreported) once said “… although Superior Court Judge could punish for contempt in facie curiae the same judge should not be the judge in the contempt charge. Any allegations of a person committing contempt in facie curiae should be tried before a different constituted court for justice to be done…”
Kulendi JSC has finally settled on this issue that “In any event, we observe that, when the circumstances that give rise to contempt proceedings are such that, a judge becomes personally interested in the matter, or that a judge’s personality is attacked or that scandalous or insulting language has been used against a particular judge, and, where the contempt is committed ex facie curiae, that particular judge, where the circumstances permit, should not adjudicate on the matter. [emphasis mine].
CONCLUSION
The foregoing represents the author’s opinion that the court in their suo motu can commit a contemnor for contempt if found guilty. It is the candid view of the author however, that, where a judge is shown to have an interest in the outcome of the matter which he has to decide, for interest of justice, such a judge should recuse himself and allow different a judge to adjudicate on the contempt matter for justice to openly manifest without it being questionable.
The writer on this note appeal to the Attorney General and Ministry of Justice to consider initiating the process for the enactment of a Bill (Contempt of Court) to bring clarity and certainty of the law on contempt of court in Ghana in other to strengthen the regime and protect the dignity of the Judiciary. It is further prayed that the law would prohibit a Judge before whom contempt is committed from hearing that contempt case.
REFERENCES
Dennis, 2019: Law Supreme Court Legal Nuggets.
Fred Obikyere: Legal Resources Book (pages 357-360).
Justice S.A. Brobbey: Enforcement of Judgments and Orders
Benjamin T. Antiedu, 2019: Reading the Law
Emmanuel Kwabena Quansah, 2011: The Ghana Legal System.
Sabir Shah, August 12, 2017: How the World Views Contempt of Court Law
Kingsley Chukwudi Igbokwe: Knitting Contempt of Law to the Administration of Justice in Nigeria: no Longer at ease
Muhammad Syahmi Mohd Karim: The Contempt Power: A Sword or a Shield? – A study of the Law and Practice.
Okwor, Kenneth Ononeze Dominic: Nemo Judex in causa sua: a case for the reevaluation of the composition and disciplinary powers of the national judicial council
By Goodnuff Appiah Larbi
The Writer is a Law (LLB) Student and Legal Researcher, at the time of writing this Article was awarded the Student Author of the year 2020 under the auspices of National Students’ Award.
The author can be reached via Email: [email protected] or Tel: 0549657873 / 0591040426
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