For some strange reasons Tiger Eye chose to test the constitutional requirement of due process whereby superior court judges whom complaints have been brought against are held in camera.
What ever the ulterior motives, tig ... read full comment
For some strange reasons Tiger Eye chose to test the constitutional requirement of due process whereby superior court judges whom complaints have been brought against are held in camera.
What ever the ulterior motives, tiger eye chose to circumvent the process by going public, by so doing there was a clear abuse of the process by the complainant the tiger eye by making public a matter that the constitution states specifically that it must be held in camera.
By making the matter public,there was a clear violation of the defendant's right to fair trial and natural justice will require that the subsequent proceedings should ran into difficulties even though the President and the CJ followed due process.
However abuse of the process by the complainants the Tiger Eye which should ordinarily inure to the benefit of the defendants was overlooked by the SC because other than the constitutional violation,in their opinion, they thought there was a supportable case against the defendants in the public interest and therefore the sc exercised their discretion accordingly.
'Unfair and wrong' is for the court to determine on the individual facts of each case. The concept of a fair trial involves fairness to the prosecution and to the public as well as to the defendants, in this case not withstanding the violation of the procedure by the complainant,the SC ruled against the defendants.
The reference to the constitution Re article 146 clause 8 only refers to procedure which by the acts of the complainant could have opened a scope for judicial discretion in favor of the defendants if they should follow the rules of natural justice under the constitution but in this case they decided otherwise.
After all abuse of the process is a strong ground in all likelihood for the case be stayed as an abuse of process.
LONTO-BOY 8 years ago
Okonko Palm, I think your commentary is a brilliant analysis of the intent and purpose of Tiger Eye deliberately showing the undercover expose to the public. I couldn't agree more with everything you wrote here. Very intellig ... read full comment
Okonko Palm, I think your commentary is a brilliant analysis of the intent and purpose of Tiger Eye deliberately showing the undercover expose to the public. I couldn't agree more with everything you wrote here. Very intelligent.
Kofi Ata, Cambridge, UK 8 years ago
LONTO-BOY, Okonko Palm's brilliant analysis completely misses the legal issues Prof Stephen K Asare raised in the article. He made the same points in his comment on Asare's earlier post on this subject last week.
Raising ... read full comment
LONTO-BOY, Okonko Palm's brilliant analysis completely misses the legal issues Prof Stephen K Asare raised in the article. He made the same points in his comment on Asare's earlier post on this subject last week.
Raising a petition under Article 146(3) has nothing to do with fair trial. Indeed, if that is the case then most trials will be unfair as publicity is given to the cases before trial, including even murder cases. Of course, those trials are not in camera. In does not bar media publicity unless specifically ordered. It simply means a hearing in closed doors or in private. Tiger Eye never reported the proceedings of the hearings
The point Prof Asare is pointing out which I agree with him (and in fact, explained the same to a friend who thinks I know the law better than him) is that, Article 146(8) does not kick in until the Chief Justice has established a prima facie case. It is purely about the hearing of the case by the committee that the Chief Justices sets up. It has nothing to do with the actions of the petitioner.
Of course, fair trial requires some discretion, especially in jury trials. However, the public interest in this matter was such that it was right and appropriate for the public to know. Moreover, the Committee had already seen the video and the justices involved had not disputed that they were the ones captured on the video.
Finally and for me the most important legal doctrine on this matter are the legal principles of “Commodum ex injuria sua non habere debet” (a wrongdoer should not be enabled by law to take any advantage from his own wrongdoing) and or “Ex turpi causa non oritur actio” (from a dishonourable cause an action does not arise). Legal doctrines which state that a plaintiff will be unable to pursue legal remedy if it arises in connection with his/her own illegal act. No court will lend its aid to a person who founds his/her cause of action upon an illegal act of the reasonable limits allowed by lawful self-defence.
For the above reasons, the Supreme Court should have dismissed injustice Dery's petition. In the same way, the High Court should dismissed his suit against Tiger Eye. This is because the original action of taking bribes by a judge was an illegal act. Injustice Dery and others should not be able to sue because their defence is what is called illegal defence.
The Supreme Court made a monumental constitutional and legal error that should not be allowed to remain on the statute books but who will seek a review in Ghana?
Okonko Palm 8 years ago
If you look at our Constitution, it says that if you want to impeach a High Court or Superior Court Judge, there is a process that must be followed.
In Article 146, the Constitution says that there should be a Committee s ... read full comment
If you look at our Constitution, it says that if you want to impeach a High Court or Superior Court Judge, there is a process that must be followed.
In Article 146, the Constitution says that there should be a Committee set up by the Chief Justice to inquire into the matter. The Constitution States that the proceedings must be held in-camera.
There has been a ruling by the sc presided over by Justice Bah that the filing of a petition is part of Article 146(8) proceedings therefore the camera rules start from when the petition is made so that is the interpretation of the rules unless it is changed.
The process may as well lead to prosecution and the defendants may be prejudiced more so there must be a reason why the constitution say certain cases are excluded from the public.
For example when it is against any law for the time being in force eg the constitution.And where the Court expressly prohibits on the ground of public policy.
Note that unfair and prejudicial news comment on pending trials can jeopardize a case. Due process therefore requires that the accused receive a trial by an impartial jury free from outside influences.
Perhaps the Tiger Eye group are deliberately making it difficult to prosecute their case when it comes to that.
Kofi Ata, Cambridge, UK 8 years ago
Okonko-Palm, the retired SCJ Date-Bah's ruling you referred to is one of the per curiam judgments in Ghana that still remains on the statute books. The petition to the President could be done in public at the presidency (if a ... read full comment
Okonko-Palm, the retired SCJ Date-Bah's ruling you referred to is one of the per curiam judgments in Ghana that still remains on the statute books. The petition to the President could be done in public at the presidency (if at the time of the presentation the media happen to be there and take photos of the petitioner presenting his or her petition). The Ghana@50 judgement is another per curiam decision of the judiciary in Ghana.
At best, the in camera requirement (Article 146(8) could kick in from when the Chief Justice receives the referral from the President but not prior to. This is because, the rationale is to avoid embarrassing situations or cross examination of the accused justice or judge. It is also to enable the judge to be able to perform his or her duties in future if s/he were found not guilty. The public knowing about the contents of allegations would not prevent such embarrassing situations at the hearing.
Again, "in camera" does not necessarily places a blanket media embargo on the matter unless it is so directed by the appropriate authority.
We should also remember that this process is not a real court trial but more or less judicial inquisitorial process because membership of the committee could include non-judges.
Okonko Palm, I note that you do not respond to my argument on the illegal defence. Is that an admission that the courts should not enable the bribe taking judges to benefit from their illegal acts?
Okonko Palm 8 years ago
The SC as a court of both equity and law will give relief only after taken into consideration the application of both legal remedies ie the law and equity.Equitable relief is however not available except when plaintiff's leg ... read full comment
The SC as a court of both equity and law will give relief only after taken into consideration the application of both legal remedies ie the law and equity.Equitable relief is however not available except when plaintiff's legal remedies are inadequate.
The maxims of jurisprudence are intended not to qualify any provisions of the legal Code, but to aid in their just application.In effect the judges took into consideration the maxims of equity that the offender shall not benefit from the illegal act so that can not be used as a defense.
The constitution and the rules and procedure of the court should however prevail otherwise there would be chaos in the administration of the court system.The fact that you have public opinion behind you does not mean the power to abuse the process.If you do so you jeopardize your case.
For some strange reasons Tiger Eye chose to test the constitutional requirement of due process whereby superior court judges whom complaints have been brought against are held in camera.
What ever the ulterior motives, tig ...
read full comment
Okonko Palm, I think your commentary is a brilliant analysis of the intent and purpose of Tiger Eye deliberately showing the undercover expose to the public. I couldn't agree more with everything you wrote here. Very intellig ...
read full comment
LONTO-BOY, Okonko Palm's brilliant analysis completely misses the legal issues Prof Stephen K Asare raised in the article. He made the same points in his comment on Asare's earlier post on this subject last week.
Raising ...
read full comment
If you look at our Constitution, it says that if you want to impeach a High Court or Superior Court Judge, there is a process that must be followed.
In Article 146, the Constitution says that there should be a Committee s ...
read full comment
Okonko-Palm, the retired SCJ Date-Bah's ruling you referred to is one of the per curiam judgments in Ghana that still remains on the statute books. The petition to the President could be done in public at the presidency (if a ...
read full comment
The SC as a court of both equity and law will give relief only after taken into consideration the application of both legal remedies ie the law and equity.Equitable relief is however not available except when plaintiff's leg ...
read full comment