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Opinions of Tuesday, 15 November 2016

Columnist: Banzana, Kofi

Chancellor Kohl versus Attorney General in Supreme Court

By Kofi Banzana

A former law student of the University of London, Mr. Chancellor Oppong Kyekyeku Kohl has filed a motion on notice at Ghana's apex Court - The Supreme Court - to have a smuggled document expunged from the record of appeal before the Court of Appeal.

Mr. Kohl, a plaintiff/Appellant/respondent in a suit against the Attorney General last Monday November 7, 2016 filed the motion and the Supreme Court is billed to hear the matter on November 17, 2016 and expunge the said smuggled from the records accordingly.

The petitioner's concern borders on alleged smuggling of written response of the defendant into the record of proceedings before the Court of Appeal through the back door belatedly two days before judgment was to be given.

Before this action, Mr. Kohl had petitioned the Chief Justice and the Judicial Service to caution the Registrar of the Court of Appeal
to avoid the traps of legalizing illegality in the performance of his duty.

In a petition dated September 14, 2016, Mr. Chancellor Oppong Kyekyeku Kohl, the petitioner appealed to the Judicial Service through its Secretary and copied to the Chief Justice calling on them {CJ and Judicial Service} to ensure that the said written response by the defendant through the back door, is expunged from the record of proceedings for dispassionate resolution of the issue.

He said he had to pay a whooping sum of GHc5,410.00 {duly receipted} for the compilation of record of proceedings from the Court of Appeal to the Supreme Court just as he paid for the compilation of records of proceedings from the High Court to the Court of Appeal.

According to him, he has a genuine case against the defendant (Attorney General) hence his financial commitment to pursue the issue to its logical conclusion.

Mr. Kohl, a former law student of the University of London reminded the Registrar of the Court of Appeal that by trying to incorporate the said defendant's written response of which the panel of judges was not aware during the trial of the case, he {the Registrar} was trying to legalize illegality which he would not allow because it would be cheating and unfair.

"As a registrar, you are expected not to enmesh yourself in such illegalities and demanded to know why the content of the defendant's written response and defendant's motion for extension of time, which were not granted, should be part of the record of proceedings when the matter is set for hearing at the Supreme Court", he said.

He also drew the attention of the Court of Appeal to a written submission that there had been an admission of the commission of the torts against him in the earlier suit by the agents {Mr. Osafo Maafo and Isaac Osei, then Minister of Finance and Ghana's Envoy to UK respectively per their counsel Godfred Yeboah Dame of Akufo-Addo Chambers} of the defendant by smuggling their defence into court proceedings unawares.

"Once a copy of the said written response by the defendant was not served on him, it is regarded as alien document and a foreign matter.

In another petition dated August 22, 2016 to the Registrar and copied to the Registrar of the Supreme Court and the Attorney General as a follow up to an earlier one of August 8, 2016 to the Court of Appeal Registrar, the plaintiff indicated that the defendant failed to file his written response but judgment was entered in his favour.

He is strengthened by an order of a Court of Appeal Judge, Justice Saeed Kwaku Gyan, sitting as a single judge, who cautioned the Registrar not to list cases whose process for hearing had not been served on plaintiff at a time the case had already been adjourned for judgment to be delivered.

By the order of Justice Gyan the said judgment in defendants' favour is a nullity since both the application for extension of time and written response filed two days before the judgment were not served on the plaintiff.

He was compelled to go to the Supreme Court to have the said smuggled document expunged from the record of appeal following the seeming apathy and unwillingness of the Chief Justice, the Judicial Secretary and the Registrar of the Court of Appeal to respond or act on Kohl's letters.

The plaintiff went to an Accra High Court to seek an order for the payment of 254,000.00 pounds by the Government of Ghana to the plaintiff as the total compensation allegedly paid by the British authorities to the Ghana High Commission in London in November, 2003 for onward transmission to him but Government of Ghana refused to pay in spite of persistent demand.

The plaintiff also sought the delivery of a First Class University of London LLB degree certificate which the University of London claimed to have delivered to the Ghana High Commission to be given to the plaintiff.

The said compensation was as a result of Mr. Kohl's victory at Snaresbrook Crown Court in London on March 25, 2003 when the University of London which he was an internal student could not dispute the fact that all the last answers of the five papers that he wrote in the final year were not credited to his marks and the court ordered for his LLB certificate to be released to him. But the court gave judgment against Mr. Kohl on March 25, 2014.

When Mr. Kohl was ordered in the earlier suit to re-issue his writ and he complied, Mr. Osafo Maafo, instead of filing his defence at the High Court only filed a motion on notice on November 15, 2010 saying the action against him was frivolous and vexatious as it was against Article 88 {5} of 1992 Constitution and Act 555 of State proceedings Act 1998 that because they were working for the government, the Attorney General should have been sued, virulently argued by Counsel Dame after informing the Court that Hon. Isaac Osei had withdrawn his filed defence when it became clearer that Hon. Isaac Osei had failed in his attempt to seek defence in estoppel res judicata as he was oblivious {unaware} of the fact that the Court of Appeal in its judgment in the earlier suit stated that because personal service of the writ on both Hon. Isaac Osei and Osafo Maafo was not effected on them, Mr. Kohl "could re-issue the Writ by adopting the right procedure cognizable by the rules".

Isaac Osei took that stance when Mr. Kohl attached a copy of the judgment in the earlier suit to his reply to Isaac Osei's defence.

Not satisfied and believing that the High Court showed a high dose of bias Mr. Kohl went to the Court of Appeal and filed his written submissions but the defendant failed to file response which was an indication that the defendant had no case yet judgment was given in favour of the defendant.

During the trial, Justice C. J. Honunyega declined jurisdiction in open court in the Court of Appeal to sit as one of the panel members and the docket was sent back to the Chief Justice's Office for reconstitution of members and he was accordingly replaced by Justice Aduama Osei {JA}.

This was because Justice C. J. Honunyega in his ruling dated April 19, 2011 sitting as a High Court judge after confirming the admission of the torts against Mr. Kohl from Counsel Godfred Yeboah Dame made a ruling in that same case that "the torts against Mr. Kohl were committed by Hon. Isaac Osei and Mr. Osafo Maafo in their capacities as High Commissioner and Minister of State respectively and thereafter , the Attorney General should have been made the defendant" resulting in the Attorney General's present position as the defendant in the suit.

During the trial the counsel for the Attorney General was present representing the State Institutions and the confirmation occurred under the nose of Counsel Juliana Addo Yobo and this largely explains why she could not file any written response or reply to plaintiff/Appellant's written submission.

The Counsel for defendant had shielded Isaac Osei and Mr. Osafo Maafo because if she had filed a written submission during the trial, they probably would have been invited for questioning because of the earlier admission of the commission of torts against him per their Counsel Godfred Yeboah Dame before the same court hence she waited for the trial to be over and rather surreptitiously filed the written submission when the Court of Appeal had adjourned for judgment.

Mr. Kohl lodged a complaint with the Judicial Service Complaint Unit for defendant not responding to his written submission but judgment was entered against him and finally sought review under Rule 34 of C. I. 19 of Court of Appeal but other panel of judges ruled that being their colleagues Appeal Judges, who delivered the judgment, they could not reverse it and ordered for that review to be made at the Supreme Court.

It is for this reason that the plaintiff applied for a review of the judgment of the Court of Appeal of January 28, 2016 since the defendant /respondent could not file its response.

He consequently lodged a complaint with the Judicial Service against the three member panel of judges namely Justice Mariama Owusu {Presiding} Justice Aduama Osei and Justice Amadu Tanko for misapplication of the law and rules of the Court.

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