Unmasking the Scope of Jurisdiction of a Court and Avoiding Judicial Journalism – A Look at Anas A. Anas v Kennedy Agyapong

Photo by Artem Beliaikin on Unsplash

1.Introduction:

On the 15^th of March 2023, Justice Eric Baah JA, sitting as an additional High Court Judge delivered a judgment in a matter titled Anas Aremeyaw Anas v Kennedy Ohene Agyapong.[1] The Plaintiff in that suit had commenced an action against the Defendant for publishing words which the Plaintiff contended to be defamatory or libellous. The Defendant justified his actions on the basis that the words published were fair comments considering the information which the Defendant had at his disposal and further that the words published were also true. In dismissing the claim by the Plaintiff, the learned Judge held as follows “It should be understood that as officers caught by plaintiff in his investigations have lost their jobs, an entrapped president may be compelled to resign out of shame or public pressure. That means, the plaintiff through his investigative antics can cause the removal of a president, and thereby upend the mandate given to him at the elections. That is not investigative journalism. It is investigative terrorism. It is exercise of indirect political power under the cloak of journalism. The serious aspect is that political enemies of a president who could not stand him at an election, may hire the plaintiff to entrap him to undermine his presidency. Enemies of a state can also hire him just to destroy the political hierarchy.”

The learned trial Judge further found that “The facts and the evidence established the Plaintiff as a self-confessed criminal, so defendant’s statement is factual and justified. Bribe taking is a dishonest, fraudulent, cheating, extortionist, thieving, blackmailing and a corrupt act; besides being illegal. Plaintiff who has been established by the evidence as having taken and given bribes could not have actually been defamed by those words.”

The learned judge concluded thus “I considered it established that plaintiff blackmails people he desires to destroy, probably his enemies, or the enemies of his friends or partners, or persons loaded with cash, whether legitimate or illegitimate, as the suspects in the gold scam case, by catching them on tape. The tape is then shown to them. The tape on those who pay up, are shelved, but those who refuse or are not able to pay are held to the full glare of the public for reputational damage.

Such conduct is legally and morally wrong. It is evil. Based on the evidence, defendant was justified in calling plaintiff evil, criminal, corrupt, blackmailer and extortionist.”

The judgment by the court generated a lot of buzz in media and legal circles not only because of the personalities involved but also the words used by the Judge, as quoted above.

The Plaintiff, not satisfied with the conclusions held by the judge mounted a certiorari application to have the judgment struck out on the basis that the judge did not have the jurisdiction to hear the matter and further that the words used by the judge demonstrated bias and impartiality on the part of the judge against the Plaintiff.

The Supreme Court, in a 3-2 decision, dismissed the application for certiorari. In his lead judgment for the majority, the learned Asiedu JSC held in respect of the ground of bias as follows “These may, perhaps, be strong words but they do not, in my humble view, show that the Judge operated under bias or dislike for the applicant. Where else can a judge express his candid opinion on an issue in a case before him than in his judgment? The above statement constitutes an inference which the learned trial Judge drew from his analysis and examination of two exhibits which were tendered at the trial by the Defendant in the defamation case.”

This article is borne out of the author’s interrogation of the issues raised in the certiorari application in relation to the allegations of bias or prejudice by the trial Judge against the Plaintiff; based on the words used by the judge in his judgment. In analyzing the issue, the Author will discuss the legal regime of the scope of jurisdiction of a trial judge in dealing with facts and evidence presented before him/her. In other words, can the judge, in dealing with a matter, arrive at factual conclusions and make pronouncements on same, even if those issues were not part of the issues set down for determination in the matter.

2. Scope of Jurisdiction of Court in Adjudicating a Matter.

The jurisdiction of a court is the foundation of the exercise of judicial authority by the court. In the case of Attoh-Quarshie v Okpote[2], it was held at page 65 that jurisdiction is conferred on a court by statute or derived inherently.  The adjudicative process by a court is not one which is undertaken whimsically. The process must be in accordance with rules and procedure set down within the legal system. Sophia Akuffo JSC (as she was then) held in Tuakwa v. Bosom[3] that “The adjudication process is nothing if it is not a process guided by law.”

2.1 How then is the adjudicative process or machinery of the judiciary invoked and set in motion?

Where a Plaintiff commences an action, it is the Plaintiff’s action which invokes the jurisdiction of the court. In the case of Akati v. Nartey[4], it was held that “The jurisdiction of a court to hear any particular matter was ordinarily determined by the plaintiff’s claim and not the defendant’s defence.”  In other words, the judge’s jurisdiction to entertain the action is based on the claims filed by the Plaintiff and not the defence mounted by the Defendant.

After close of pleadings, the court is required to set down the issues for determination prior to the commencement of the trial. It is the pleadings filed which determine the issues which ought to be set down for determination and based on which judgment can be delivered. In the case of Ghana Industrial Holding Company v Hanna Assi[5] it was held that “As a general principle, a court could not base its judgement on a case that was not open to a party on the pleadings.”

The setting down of the issues for determination will give notice to the parties of the issues which the judge will resolve in the trial. In the case of Armah v Hydrofoam Estates[6], it was held that “At the summons for directions the trial judge is required to identify the core issue/s for trial. He does this with the aid of the lawyers but he/she takes sole responsibility for whatever decision he/she takes. The judge is required to examine the pleadings carefully and to determine what issue/s will completely determine the case before him/her.”

The issues which will be set down by the trial judge will also give notice to the parties of the kind of evidence to be adduced at the trial in aid of resolving these issues. In the case of Akua Nsowah &Ors  v Toayiri Bamba & Ors[7]  it was held that “In such a case, the trial judge should limit the evidence tendered at the trial to the single issue in order not to prejudice its determination of the issue being tried”.

Where a judge sets down issues beyond what the parties had agreed as the issues for determination, the judge cannot arrive at conclusions of those issues unless the parties have been given opportunity to respond to those issues or the evidence already adduced at the trial relate to those issues unilaterally set down by the trial judge. In Wolley v Fatal[8], it was held that: “Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out but emanates at the trial from either the pleadings or the evidence, the Court cannot refuse to address it on the grounds that it is not included in the agreed issues.”

Further in Gavor v Bank Of Ghana[9] , it was held that “It should be noted that all the above issues set down by the trial High Court Judge were clearly different from what the Parties themselves had put forward from their pleadings and which the learned judge himself adopted as issues for determination. This procedure is clearly contrary to settled practice in our adversarial system of justice.”

From these authorities, it is submitted that after the court has set down the issues for determination at the close of pleadings, the evidence which would be admissible at the trial, would have to be evidence relevant to the resolution of the issues already set down for determination. In Nyamaah v Amponsah[10] it was held that “Therefore the trial court is to ensure that the issue it sets down for determination would aid in making justifiable decisions on the reliefs sought.”

Once these evidences are admitted by the court, the court ought to apply the evidence to the facts of the case to arrive at conclusions. Twum JSC held in Akotia Oworsika III v Nikoi Olai Amontia IV[11] that “The judicial function imposes a duty on a court or other adjudicating body to find the facts and then apply the law.”

Ollenu JSC held in Ababio II & Anor v Akro & Co[12] “The duty of the courts is to decide a case upon the evidence before it..” Akuffo-Addo CJ later held in Ashitey v Dodoo[13] that: “A successful investigation would necessarily involve a process of fact finding. One of the primary functions of a judge hearing a case at first instance is fact finding. A decision by a judge requires first, the sifting of the evidence bearing on the controversy, no matter how difficult the exercise may be in order to find out where truth lies between the conflicting versions pleaded before him.”

From these authorities, there is no controversy in the assertion that the jurisdiction of a trial judge is to receive evidence in aid of the issues set down for determination by the court and then apply the relevant laws to the facts and evidence adduced, to arrive at a conclusion, relevant to the issues before the court. Where a court, in exercise of its adjudicative functions, depart from these procedure and processes, the judgment stands the risk of being declared irregular or void as was held in the case of Nyamaah v Amponsah.[14]

A judge, who is thus seised with jurisdiction in a matter cannot go on a frolic of his/her own and make pronouncements on issues which were not the issues set down for determination by the Judge. At best, any such pronouncement will be deemed to be obiter and not binding on the parties or any other person who will seek to rely on that judgment. In the case of Adisa Boya v Zenabu Mohamad[15], Gbadegbe JSC held that when a Judge expresses an opinion or views on matters which were not set down as part of the issues for determination, those opinions/views or pronouncements were obiter and not binding.

Having set out the scope and ambit of the exercise of the adjudicative processes by a judge seised with jurisdiction in a matter, we will now proceed to discuss whether the pronouncements by the trial Judge in the Anas A. Anas v Kennedy Agyapong case, can be properly situated within the scope of the issues that were before the trial judge.

3.The Issues for Determination in the Suit

From a reading of the judgment, the judge stated that at the close of pleadings, the issues set down for determination related to:

1. Whether or not the words published by the Defendant had the meaning ascribed to them by the Plaintiff in his pleadings;
2. Whether or not the words published by the Defendant were defamatory;
3. Whether or not the Defendant was justified in publishing those words.

The Judge found that the Defendant in his pleadings had not denied publishing those words. In the words of the judge “The words are without doubt, of a category that would sully or reduce the reputation of any citizen. Knowing well the harm that his words could cause, defendant never in his pleadings or evidence disputed that the words had defamatory meaning. He sought to justify them. I hold that the plaintiff surmounted the first test by proving that the words complained of were uttered by defendant and that they were capable of defamatory meanings.”

From the judge’s own findings, from the pleadings, issues (i) and (ii) had been determined in favor of the Plaintiff. The judge’s duty was now to determine whether the defamatory words were justified based on the videos submitted by the Defendant.

The author is of the opinion that the learned trial judge correctly set out the law on justification as a defence to an action in libel or defamation. Indeed, on the claim by the Plaintiff that the publication of him being a “land grabber” by the Defendant had defamed him was, in the opinion of the author, properly dismissed by the trial judge.  The trial judge held in respect of that issue as follows “The allegation of land grabbing could equally not actually succeed in defaming the plaintiff. The defendant referred the court the decision of the Supreme Court in Republic v the High Court, Land Division(7) Accra, ex parte: The Registered Trustees of the East Dadekotopon Development Trust, Adolph Tetteh Adjei, Anas Aremeyaw Anas, Holy Quaye (Civil Motion No: J5/46/2020, 22^nd July 2020. This judgment being case law, is freely available on this Service’s, and most online law portals.

In that case, the Supreme Court by an order of certiorari, quashed a decision of the High Court, which had favoured the plaintiff herein and his grantor. The basis of the Supreme Court’s decision was that, plaintiff’ side did not effect service on a relevant party, and further, the High Court decision was based on a decision that had already been set aside by the Court of Appeal. The statement of the defendant was substantially factual, and therefore justified. It could not have succeeded in actually defaming the plaintiff.”

Next, we will discuss whether the trial judge properly applied the law in respect of the other allegations of extortion, blackmailing, corruption et al.

4.Findings of Criminality by a Judge Exercising Civil Jurisdiction

In this case, the basis of the defence of justification by the Defendant is that based on a video tape in his possession, the Plaintiff is evil, criminal, corrupt, blackmailer and an extortionist.

At this stage, the question for determination is whether or not a judge exercising civil jurisdiction, can make conclusions of fact which bothers on criminality?

Now, it is common knowledge that it is only a court of competent jurisdiction which can find someone guilty of a crime. Article 19 of the 1992 constitution provides for the legal regime in dealing with allegations of crime. Chief among the provisions of Article 19 is the golden thread that a person accused of a crime is presumed innocent until found guilty by a court of competent jurisdiction.  In this case, the defence of justification is grounded of the fact that in the opinion of the Defendant and based on the video recording he had in his possession, the Plaintiff is evil, criminal, corrupt, blackmailer and an extortionist. These words used by the Defendant in justifying the publication of defamatory words invariably makes the Defendant, the master of the determination of the guilt or otherwise of the Plaintiff. In other words, by the Defendant’s justification, the Defendant, by mere fact that he has such a video recording in his possession, has assumed the role of a court of competent jurisdiction in finding the Plaintiff guilty of the allegations levelled against him without recourse to the provisions of Article 19 of the 1992 constitution.

Did the court, exercising civil jurisdiction, had the jurisdiction, to make findings of crime as justification for the publication of the defamatory statements by the Defendant?

As had been discussed above, the jurisdiction of a court in admitting evidence in a matter before it is determined by the issues set down for determination after close of pleadings. In this Anas case, the issues set down for determination did not include whether the Plaintiff was a criminal, evil, immoral, corrupt, extortionist, et al.

In the case of Alhaji Mumuni v Akua Serwaa Nyamekye & Ors[16] it was held by the Supreme Court that “In my view as the tribunal which made the order was exercising a criminal jurisdiction, it lacked the legal authority to have made an order, which is only available in civil proceedings.”

From this authority, it is submitted that a judge exercising civil jurisdiction cannot make pronouncements which bothers on criminality, subject to the well-known exception of fraud.  It is only a court, exercising criminal jurisdiction which can come to the conclusion that an accused person is guilty of a crime. That accused person must be charged with the offence by the Attorney General’s Department and all the other procedures set out in the 1992 constitution and the criminal procedure code must be adhered to. A Defendant, who has been sued for a civil claim of defamation, cannot in an attempt to justify the defamatory publications, convert the civil court into a one exercising criminal jurisdiction. This will offend the ratio in the case of Akati v Nartey (supra). Unfortunately, and with all due respect to the trial judge, this is exactly what seemed to have taken place in this case, at least in respect of the findings of criminality against the Plaintiff, on the basis of the allegations made by the Defendant in his defence.  We therefore humbly submit that the trial judge erred when he made those pronouncements against the Plaintiff which has been reproduced above.

5.Was Certiorari the Remedy Available to the Plaintiff

As stated earlier, dissatisfied with the pronouncements by the trial judge, the Plaintiff mounted an application for certiorari at the Supreme Court on among others, the grounds that the trial judge exhibited bias and impartiality by virtue of the nature of the pronouncements made. By a 3-2 majority decision, the application for certiorari was dismissed.

In the judgment, the learned trial judge only made pronouncements which bothered on the criminality of the Plaintiff. The learned judge did not make any orders which normally attends persons who have been found guilty of a crime. One can only conclude that the judge knew that he did not have any such jurisdiction to make orders which are attendant with conclusions of guilt in a criminal trial. The pronouncements by the learned trial judge which bordered on criminality can thus be treated, at best, as an obiter; having no bearing on the issues before the trial court.

In the opinion of the author, the learned trial judge thus only committed an error of law in the exercise of his jurisdiction in dealing with the defence of justification filed by the Defendant.

An error of law can subject a decision of a court to be quashed by a superior court,  whiles exercising its supervisory jurisdiction by way of certiorari, if that error of law is apparent on the face of the record. The phrase “apparent on the face of the record” was aptly explained in the case of Republic v High Court, Accra; Ex Party Commission on Human Rights and Administrative Justice [17] where it was held that “Where the High Court has made a non-jurisdiction error of law, which was not patent on the face of the record (and by record was meant the document which initiated the proceedings, the pleadings, if any and the adjudication but not the evidence nor the reasons unless the tribunal chose to incorporate them, the avenue for redress open to an aggrieved party was an appeal, not judicial review. Therefore, certiorari would not lie to quash errors of law which were not patent on the face of the record and which had been made by a superior court judge who was properly seised of the matter before him or her. In that regard, an error of law made by the high court or court of appeal would not be regarded as taking the judge outside the court’s jurisdiction unless the court had acted ultra vires the constitution or an express statutory restriction validly imposed on it.”

The Supreme Court affirmed this decision in the case of Republic v High Court (Commercial Division) Accra: Exparte The Trust Bank Ltd (Ampomah Photo Lab Ltd)[18] where it was held that “The combined effect of these two authorities, it seems to me is that even where a High Court make a non-jurisdictional error which is patent on the face of the record, it will not be a ground for the exercise of the supervisory jurisdiction of this court unless the error is fundamental. Only fundamental non-jurisdictional error can found the exercise of this court’s supervisory jurisdiction.”

The author is of the opinion that even though the learned trial judge committed an error of law, that error of law could not ascertained on the face of the judgment unless the evidence adduced at the trial (i.e. record of proceedings) is brought up to the higher court. Besides, the judge had the jurisdiction to entertain the defamation suit and hence his “misapplication” of the law on the defence of justification in defamation claims cannot take the judge outside his jurisdiction. The error can be said to be one committed within jurisdiction.

Where an error of law is committed within jurisdiction and the error is not so plain on the record as to deny the court its jurisdiction, the remedy available to an aggrieved party is to appeal against the said decision. In the case of Republic v High Court, General Jurisdiction, Ex parte Attorney-General; Exton Cubic Interested Party[19] judgment delivered on 31^st July 2019 Marful-Sau JSC held that “As we have earlier observed in this ruling, the trial High Court had jurisdiction to entertain the application by the interested party and the law, as we have stated is clear that when a superior court, such as the High Court commits non-jurisdictional error the remedy for an aggrieved party is to appeal, however, where there is clear error of law patent on the record, which is fundamental rendering the decision a nullity, then that decision is amenable to certiorari to be quashed.”

The author is thus of the opinion that the remedy available to the Plaintiff from the judgment, particularly the pronouncements bordering on criminality of the Plaintiff, is to appeal against that decision, if he is so minded to.

6. Conclusion

In Ghana, the media is a very powerful institution. Indeed, Sir Sam Jonah KBE admonished the media recently in the following words “Your role as the fourth estate is a cornerstone of our democracy, and your duty to hold power to account has never been more critical. The influence you wield is powerful, with the ability to frame political discourse and influence public opinion, making it imperative that this power is exercised with utmost responsibility and ethical rigor.”[20] It is based on this expected role of the media to speak the truth at all times that perhaps the framers of the 1992 constitution provided in Article 162 of the 1992 constitution that there shall be no censorship of the media. Journalists are therefore required or expected to say anything and everything as long as what they say is the truth.

But a judge is not a journalist. The judge’s duty is not to say the truth. The judge’s duty is to apply the law to the facts and evidence adduced before it in the quest to find justice. As held in the Hanna Assi case,[21] “A court was entitled to apply the law to the facts of the case even if the parties are unaware of it.”[22]. That is why Judges, irrespective of their personal opinions on a matter before him/her, must exercise this judicial function without any bias to the persons involved or the prejudice to the subject matter in issue. Judges, should surely, avoid pronouncements which, will seemingly suggest, a bias to the subject matter of the dispute or prejudice to the parties before it; otherwise, there may soon not be a difference between a Judge and a journalist. This is so, even if what the Judge says is the truth but as long as that truth is not supported by the evidence adduced at the trial and is not within the scope of the issues for determination before the judge, the judge ought to be “censored”. After all, justice must be dispensed in accordance with only three (3) yard sticks vis: statue, case law or our well-defined practice.”[23]

 

[1] Suit number GT/892/2018

[2] [1972] 2GLR 59

[3] [2001-2002] SCGL 61 @ 64

[4] [1980] GLR 218-233

[5] [2007-2008] SCGLR 458

[6] [2013-2014]2SCGLR 1560

[7] (CIVIL APPEAL NO: J4/11/2016)

[8] [2013-2014] 2SCGLR 1076

[9] [2013-2014] 2SCGLR 1086,

[10] [2009] SCGLR 361

[11] [2006] 1MLRG 61 @ 96

[12] [1963] 1GLR 195 @ 200):

[13] Judgment delivered on 15^th August 1969

[14] Supra

[15] CIVIL APPEAL NO. J4/44/2017

[16] Cvil Appeal Number (Suit No: J4/1/15) (unreported)

[17] [2003-2004] 1SCGLR 312

[18] [2009] SCGLR 164 @169-170

[19] Civil Motion No: J5/40/2018)

[20] Speech delivered by Sir Sam Jonah at the launch of the 75^th Anniversary of the Ghana Journalist Association titled “75 tears of Excellence in Journalism: Past, Present And The Future.”

[21] Supra

[22] See also Twum JSC in Akotia Oworsika III V Nikoi Olai Amontia IV (2006) 1MLRG 61 @ 96): “The judicial function imposes a duty on a court or other adjudicating body to find the facts and then apply the law.”

 

[23] Taylor J (as he was then) in Bonsu V Bonsu (1971) 2 GLR 241 @ 260