I doff off my hat for you, Thaddeus Sory, Esq . You are the pride of the Ghana Bar .The fundamental question that confronted the Court of Appeal in The Republic V Stephen Kwabena Opuni and Two Others, Criminal Appeal Case No. H2/25/2023 dated 3/07/2023 as correctly identified by Dr. E. Owusu Dapaah J.A. who delivered a concurring opinion was “Whether a record of proceedings of a criminal trial commenced when a trial court was differently constituted can be adopted by the court when a new judge is “assigned to preside over the trial.” The new trial judge had ruled that he would hear the case de novo. He gave two main reasons for so holding, namely, (1) the interest of justice and (2) the need or necessity for him to watch the demeanour of witnesses to enable him properly assess the credibility of the witnesses.
Before proceeding to examine in detail the judgments of the Court of Appeal, I deem it appropriate to give a brief background of the case. The first accused/respondent who used to be the Chief Executive Officer of COCOBOD (a public company in Ghana ) has been charged together with two others on various counts, including abetment of defrauding by false pretences and wilfully causing financial loss to the state to the tune of GHc217,000,000.00. The trial judge was Honyenuga J. A. (a judge of the Court of Appeal, sitting as an additional High Court Judge) who later got elevated to the Supreme Court of Ghana in the course of the trial. So he now became Honyenuga JSC. The trial of the accused persons commenced in 2018.
At the close of the prosecution’s case, Honyenuga JSC, pursuant to section 173 of the Criminal and Other Offences (Procedure) Act, 1960, Act 30, ruled that the prosecution had made a prima facie case against the accused persons/respondents in respect of most of the charges preferred against them and so the accused persons were ordered to open their defence. The first accused/respondent consequently opened his defence. When the seventh witness for the first accused/respondent was still in the witness box to be further cross-examined, the presiding judge, Honyenuga JSC attained the retiring age of 70 years. The Chief Justice however permitted Honyenuga JSC to continue in office for another six months to enable him to complete the trial. The conduct of the Chief Justice in that regard was unsuccessfully challenged by the accused persons per their lawyers at the Supreme Court.
Before then, the accused persons through their lawyers had filed a series of applications to quash numerous rulings of the judge and to prohibit him from hearing the case on grounds of bias but all the applications proved futile. Honyenuga JSC could not complete the trial in spite of the six additional months granted him. Consequently, the Chief Justice transferred the case to K. A. Gyimah J to handle it according to law.
The Attorney-General then made an oral application for Gyimah J to adopt the proceedings so far held in the case for continuation. The lawyers for the accused/respondents vehemently opposed the Attorney General’s oral application. On 04/04/2023, Gyimah J gave a ruling in which he dismissed the oral application of the Attorney General. In effect, the judge decided to hear the case de novo.
The state appealed against the ruling of Gyimah J at the Court of Appeal. A panel of the Court of Appeal comprising P. Bright Mensah, Jennifer Abena Dadzie and Dr. E. Owusu-Dapaa J J J A, on 31/07/2023, unanimously reversed the decision of Gyimah J. The Court of Appeal then ordered that the trial High Court which had again been differently constituted, adopt the proceedings and continue the trial from where Honyenuga JSC left off.
As already stated above, the fundamental question that confronted the Court of Appeal as rightly identified by Dr. E. Owusu-Dapaa J. A. was whether a record of proceedings of a criminal trial commenced when a trial court was differently constituted can be adopted by the court when a new judge is assigned to preside over the trial. Put differently, can a new judge who inherits a criminal case for which evidence has already been partly taken, adopt the proceedings and continue the hearing therefrom? The Court of Appeal excoriated Gyimah J for declining the invitation by the Attorney-General to adopt the proceedings. P. Bright Mensah J. A. who delivered the lead opinion, described the decision of Gyimah J as “uninformed”. Was the decision of Gyimah J really legally uninformed? The author will examine the reasoning of the Court of Appeal to see whether it is sound ,coherent, logical and satisfactory. To a lawyer, the grounds upon which decisions are based are important than the decision itself ; see Rockson Vrs. Armah: a Case of Caveat Emptor, Caveat Venditor or Neither? [1978] VOL. XVUGLJ 168, by the erudite J. E. A. Mills, who later became President of Ghana.
At common law, the settled practice in criminal proceedings is that when a new judge inherits a criminal case, he automatically starts the case de novo , no matter the stage of the proceedings or trial. The rationale is that, in a criminal trial, the judge is required to examine the totality of the evidence on the record, including assessing the credibility of witnesses based on their demeanour before reaching his decision. The judge must thoroughly evaluate all the material pieces of evidence on the record to satisfy himself that his decision is reasonable, having regard to the totality of the evidence.
The Supreme Court of Ghana in 1993 reaffirmed the common law position that a partly heard criminal case could only be heard de novo when a new judge took over the trial; see Republic Vrs. Adu-Boahene and Another [1992-93] 2 G B R 452. The Supreme Court in Republic Vrs. Adu-Boahene and Another (Supra), speaking through Amu- Sekyi JSC had the following definitive words regarding trials de novo in criminal cases: “A case is partly heard when a hearing on the merits had begun, that is, when the court or judge, has started to enquire in to the substance of the cause or matter brought before him. In criminal matters, such steps as taking the plea of an accused person, listening to and recording the facts alleged against him and which the prosecution intend to prove at the trial, do not constitute a hearing of a complaint.
The hearing begins, and the case becomes partly heard only when the prosecution begins to adduce evidence to prove the charge. Before then the case can be transferred to another court or judge for hearing, but once the hearing starts, this can only be done if the trial is aborted and a fresh hearing ordered”.
The words of the Supreme Court per Amua-Sekyi JSC are thus loud, clear and authoritative in reaffirming the settled common law practice that a partly heard case in a criminal matter can only be heard de novo when the court is differently constituted. The lawyers of the accused/respondents could not bring to the attention of the Court of Appeal the holding of Amua-Sekyi JSC in the above case. Be that as it may, I am at a loss as to why the Court of Appeal did not advert their minds to the decision in Republic Vrs. Adu-Boahene and Another. (Supra).
It has often been said that the law is in the bosom of the judge and so if counsel for the accused/respondents could not bring the above-mentioned authority to the attention of the Court of Appeal judges, the judges were duty bound to look for it and apply. If the judges of the Court of Appeal had been extremely diligent, they would have adverted their minds to this very important authority.
The decision by Gyimah J to start the trial de novo therefore has legal basis. His decision is anchored on binding case law and therefore well informed. The description of the decision of Gyimah J by P. Bright Mensah J .A . as “uninformed” was completely unwarranted by any rule of law. Gyimah J’s ruling could not be reasonably faulted.
It must be borne in mind that common law , per article 11 (e) of the Constitution, 1992, has been elevated to a constitutional pedestal; see “A Still Borne Piece of Law, and Rightly so Declared in the Case of Origin 8, by Thaddeus Sory, Esq (Dennis Law, G legal material portal) who is one of the most distinguished and highly revered lawyers Ghana has ever produced. The Supreme Court has even authoritatively pronounced in Republic Vrs. High Court, Accra, Ex-parte Magna International Transport Ltd [Ghana Telecommunications Co. Ltd. Interested party) [2017-2018] 2 S C G L R 1024 that where a practice of the courts is well settled, it cannot be upset by statute except by the use of express language.
In the case under review, P. Bright Mensah J. A. acknowledges that the practice at common law in criminal trials is that when a judge inherits a part-heard case, he must try it de novo. P. Bright Mensah J .A . declared, “Indeed, the time has come and the golden opportunity has dawned on us in the instant case to set aside the technical infirmities in the so-called common law practice that a criminal case has to be started de novo at all cost regardless of the length of time the case has been on the trial court’s cause list and the number of witnesses that have testified in the case”.
So clearly, it cannot be doubted based on the authorities that the common law rule or practice is that a part-heard criminal case must be started de novo when the court is differently constituted. This being the position of the common law which has constitutional blessings by virtue of article 11 (e) of the Constitution, 1992, the decision of Gyimah J to start the trial de novo in Republic Vrs. Stephen Opuni and Two Others (supra) cannot be described as uninformed. It is rather the judgments of the Court of Appeal that are susceptible to attack since they do not conform to the rule of the common law.
Gyimah J was only sticking to fidelity of the law and rightly so. Any attempt to explode the common law rule must be based on sound jurisprudence. It is communis opinio among lawyers that three foundational pillars of the courts in administering justice are the application of statutes, case law and the well-known practice of the courts; see Harley Vrs. Ejura Farms (GH) Ltd [1977] 2 G L R 179 per the distinguished and highly revered jurist, Taylor J as he then was. Counsel for the second and third Respondents drew the attention of the Court of Appeal to the above foundational pillars. P. Bright Mensah J .A . was however of the opinion that the above words of Taylor J as he then was, were only a dictum and therefore did not have a binding effect. It seems to me that the learned judge of the Court of Appeal had glossed over the third foundational pillar in administering justice. A settled practice of the courts is not a mere practice but a practice which has constitutional gravitas by virtue of article 11 (e) of the Constitution, 1992. It is submitted that the Court of Appeal should have treated the words of Taylor J in Hardley Vrs. Ejura Farms (Supra) with the greatest respect, by applying it to the peculiar circumstances of the case before them, not only for the reason that the common law is part of the laws of Ghana as envisaged in article 11 (e) of the Constitution, 1992, but also because the said words of Taylor J as he then was, have been endorsed time without number by the Supreme Court.
At this stage, I will examine the reasoning of Gyimah J which informed him to decline the invitation by the Attorney General to adopt the proceedings. Gyimah J gave two main reasons for declining the invitation by the Attorney General to adopt the proceedings. His first reason is contained in the following passage of his ruling. “ I appreciate the fact that this case has travelled for quite some time and a lot of witnesses have been called and discharged but it is my candid opinion that it will be in the interest of justice and in the interest of all the parties for this court to start on a clean slate, free from all the shackles of allegations of unfairness and counter allegations of intentional delays that has bedeviled this case over its duration and that has resulted in the filing of numerous applications before this court, differently constituted and also before the Supreme Court”. Any lawyer of average intelligence, upon reading the above passage in quotation, will come to the inescapable conclusion that the learned trial judge’s reason as contained in the passage, for starting the trial de novo is that it was in the interest of justice to do so. No more, no less. I have read the above passage with both literary lenses and legal lenses and appreciated it on those lines and I can even state that an average Senior High School student who is asked to the reason the trial judge gave for starting the trial de novo, is bound to state that the trial judge wanted to try the case de novo in the interest of justice. The Attorney-General however cunningly misled the Court of Appeal by making an issue out of the red herring contained in the above passage. The following is the red-herring issue that the Attorney-General formulated as one of his grounds of appeal, which ground was ground Two as follows: “The learned trial judge exercised his discretion wrongly in arriving at a conclusion that, he will be saddled with the same suspicions and allegations of unfairness levelled against the current state of the proceedings which have already been dealt with by the Supreme Court”.
Even a casual reading of the passage above would show that it is composed of a single sentence. This sentence is what grammarians call “a complex sentence”. It has one independent clause and several subordinate clauses. However, when the passage or sentence is properly read and construed, the only reasonable inescapable conclusion is that the trial judge has given one reason for wanting to start the trial de novo and this reason borders on interest of justice. Unfortunately, the Attorney General cunningly formulated a ground of appeal from the red herrings that were also contained in the passage. Sadly and regrettably, the Court of Appeal fell in to the trap of the learned Attorney-General, Godfred Yeboah Dame, and relied on the red herrings to come to a conclusion that Gyimah J took irrelevant factors in to consideration. As it were, the ground of appeal that the learned Attorney-General formulated out of the red herrings formed the super structure or the substance of the appeal. Since the Court of Appeal found favour in this ground, the appeal invariably succeeded and Gyimah J’s decision was reversed. It is submitted that Gyimah J could have avoided the red-herring portion and simply stated that it was in the interest of justice for him to try the case de novo. With great deference, Gyimah J’s complex sentence above was completely inelegant. Be that as it may, if the Court of Appeal had carefully read the record of proceedings and scrutinised the numerous exhibits held before Honyenuga JSC, it would have agreed with Gyimah J that it was in the interest of justice that the trial be conducted de novo. It seems to me that Gyimah J, being an experienced High Court Judge, was afraid of being accused by the learned Attorney-General of bias towards the Accused/respondents if he (Gyimah J) had opined in his ruling that if the trial was not held de novo, the case of the accused/respondents would be seriously prejudiced. A critical evaluation and analysis of the evidence on the record, including the numerous rulings of Honyenuga JSC by the new trial judge was bound to lead to a conclusion that if the trial was not held de novo, the case of the accused/respondents would be seriously prejudiced and this situation would obviously not be in the interest of justice. Gyimah J was clearly walking on a tight rope, for if he had articulated that the case of the defence would be seriously prejudiced if the case was not tried de novo, the Attorney-General could have made a legal mountain out of a molehill on it and would have certainly filed an application to prohibit Gyimah J from hearing the case on ground of prejudicial statement. It seems to me that Gyimah J applied wisdom and experience in his ruling by not descending in to the arena of conflict. The statement of the renowned American jurist, Oliver Wendell Holmes that the life of the law has been that of experience and not logic is well known among lawyers and judges and there is no need for citation.
I will now demonstrate the soundness and unassailability of Gyimah J’s reasoning that it was in the interest of justice that the trial of the accused/respondents be done de novo. From the outset, I will state without any fear of contradiction that the Court of Appeal woefully failed in its bounden duty to critically analyse the entire record so as to come to a conclusion on whether or not it was in the interest of justice for the trial to start de novo. A careful review and analysis of the proceedings held before Honyenuga JSC, including the numerous rulings of the retired judge would reveal that Honyenuga JSC
expunged crucial exhibits that were tendered in evidence by the first accused/respondent through a prosecution’s witness without objection. These exhibits are so crucial that when admitted in evidence, they will cause the superstructure of the prosecution’s case to crumble. A righteous rastaman who is highly and rightly dissatisfied with selective justice, will say that these exhibits will cause Babylon walls to crumble if they are in evidence. In simple English, these exhibits will make the prosecution’s case collapse like a pack of cards if they are in evidence . Curiously and strangely, Honyenuga JSC did not expunge the similar exhibits that were also tendered by the prosecution which exhibits he heavily relied on to rule that the prosecution had made a prima facie case against the accused/respondents. Clearly, Honyenuga JSC had approbated and reprobated and these double standards have palpably caused monumental injustice to the case of the accused/respondents. The ruling in which Honyenuga JSC expunged the crucial exhibits which were favourable to the accused/respondents was given in Republic Vrs. Stephen Kwabena Opuni and Two Others, dated 7th May, 2021. In that ruling, Honyenuga JSC expunged Exhibits 58, 59, 60, 61,62,63, 64, 65, 66, 67, 68, 69 70,71, 72, 73, 74 and 75 which were tendered in evidence by the first accused/respondent through the prosecution’s witness 7 (Pw7) who was the police investigator. These exhibits were tendered in evidence without objection by the learned Attorney-General. Honyenuga JSC expunged these exhibits from the record suo motu on the completely erroneous holding that they offended the hearsay rule encapsulated in section 117 of the Evidence Act 1975, Act 323. Meanwhile, Honyenuga JSC did not expunge the similar exhibits tendered in evidence by the prosecution through PW7 which exhibits were not only material but conclusive to his ruling that the prosecution had made a prima facie case against the accused/respondents to warrant that they should open their defence. This incongruous double standards exhibited by Honyenugah J S C is completely subversive of article 19 of the Constitution, 1992 that deals with fair trial. The ruling by Honyenuga JSC, expunging the said exhibits was completely erroneous and sinned against section 117 (c) of the Evidence Act, 1975, Act 323 and the settled Supreme Court authority of Edward Nasser Vrs. Mcvroom [1996-97] SCGLR 468 .In Edward Nasser Vrs. Mcvroom (Supra), the distinguished and revered Acquah J S C as he then was, had the following to say: “Hearsay evidence is made admissible by section 117 (c) by agreement of the parties. Thus parties may by agreement waive the rules against admissibility of hearsay and so make admissible any such evidence. And the agreement may be express or by implication. So that where a party fails to object to the admission of hearsay evidence, he may be deemed to have consented to its admission”. Edward Nasser Vrs. Mcvroom (supra) is a Supreme Court decision and therefore its ratio was binding on Honyenuga JSC who was sitting as an additional High Court judge. Section 117 (c) of Act323 is even clearer than the strongest light that hearsay evidence is admissible by the agreement of the parties. Honyenugah JSC therefore had no discretion to expunge the said exhibits, given the undisputed fact that the parties agreed on their admission. To the extent that Honyenuga’s ruling sins against section 117 (c) of Act 323 and the authority of Edward Nasser Vrs. Mcvroom (supra) , his ruling is, with the utmost respect, per incuriam.
Though the first accused/respondent succeeded in quashing the erroneous ruling of Honyenuga JSC at the ordinary bench of the Supreme Court by a majority decision per the erudite and highly respected Pwamang JSC in Civil Motion No. J S/58/2021 dated 28th July, 2021, sadly and regrettably, a review panel of the Supreme Court reversed the ordinary bench well reasoned and ground-breaking judgement. However, it is significant that the review panel of the Supreme Court could not fault Pwamang JSC’s brilliant analysis of the hearsay rule. Pwamang ’s JSC’s erudite and unassailable analysis of the hearsay rule in the said ordinary bench decision stands as the correct position of the law ; see Republic v High Court (Criminal Division) ,Accra ; Exparte Stephen Kwabena Opuni (Applicant/Respondent) , Attorney-General (Interested Party/Applicant) [2021]174 G.M.J. 338 .
Undoubtedly and as shown from the foregoing analysis, Honyenuga JSC’s erroneous and selective expungement of the exhibits tendered by the first accused/respondent has decimated the justice of the case to the detriment of the accused/respondents. Any careful reading of the expunged exhibits vis a vis the exhibits tendered by the prosecution would show that the expunged exhibits, especially, Exhibits 58, 59, 60, 74 and 75 provide absolute defence to the allegations and charges levelled against the accused/respondents. The expunged exhibits are fatal to the prosecution’s case; see Ex-parte Stephen Kwabena Opuni, Civil Motion No. J S/58/2021 dated 28th July, 2021 per the erudite Pwamang JSC who has a lucid mind.
The second reason which the new trial judge gave for declining the learned Attorney- General’s invitation to adopt the proceedings is that if he adopted the proceedings, he would be at a disadvantage in so far as watching the demeanour of the witnesses who had already given evidence is concerned. It is submitted that this reason is rooted in statute law. Section 80 of the Evidence Act, 1975, Act 323 of Ghana provides that “(1) Except as otherwise provided by this Decree, the court or jury may in determining the credibility of a witness consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial.
2) Matters which may be relevant to the determination of the credibility of the witness include but not limited to the following:
(a) the demeanour of the witness,”.
By virtue of article 11(1) (b) of the Constitution, 1992, enactments made by or under the authority of parliament established by the Constitution form part of the laws of Ghana. As a matter of law, an enactment ranks second in the order of the laws of Ghana, second only to the Constitution, 1992 ; see article 11 of the Constitution, 1992. Since the enactment of Act 323, the courts of Ghana have on numerous occasions resorted to the demeanour of witnesses to assess their credibility. In criminal cases, a court is obligated to come to a decision having regard to the totality of the evidence on the record, including the demeanour of witnesses. Gyimah J’s reasoning that he needed to have the benefit of watching the demeanour of witnesses so as to properly assess their credibility cannot therefore be reasonably faulted.
The importance of assessing the credibility of witnesses based on their demeanour should therefore not be downplayed especially when there is statutory blessing to that effect. As recently as 2021, Ackaah-Boafo J as he then was, reputed and revered for his encyclopedic and brilliant judgements, in Chinbuah and Another v Attorney General, Suit No. GJ/378/206 dated 21/07/2021, made recourse to the demeanour of witnesses in assessing their credibility . The relevant words of Ackaah-Boafo J as he then was, in that case are as follows: “After observing the demeanour of the doctors and hearing their cold words captured in the proceedings and reproduced supra, I have serous doubts and question the professional decision made by Dr. Roddy Barnor” .
Prof. Justice Kludze, in Michael Darko Dodoo and Another Vrs. (1) Louis Ayitey Okine and Five Others, Civil Appeal No. 4/2002 dated 28/01/2004, had the following to say about the demeanour of witnesses: “A trial judge has the advantage of listening to the entire evidence and watching their action and demeanour of the parties and their witnesses”. Prof. Justice Kludze also noted in the same case that a witness could hesitate in his answers to the extent that his demeanour could “cast a doubt on his credibility”.
In the earlier case of S S Honterstroom Vrs. Sagaporack [1927] A C 37; 136 L T 33, Lord Summer said “not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge”. Therefore, on both case law and statute law, the importance of assessing the credibility of witnesses by watching their demeanours cannot be downplayed. P. Bright Mensah J. A. who wrote the lead opinion which is a subject matter of scrutiny in this article, was of the opinion that watching the demeanour of a witness was an integral part of the assessment of the witness’s credibility except that there were other factors that could also be employed under the law to assess the credibility of witnesses.
In the words of the learned judge: “Having regard to this provision of the law (Section 80 (2) of Act 323), it is critical to note, watching the demeanour of a witness to assess his credibility is only an integral part of the assessment process”.
His Lordship then did the opposite. What paradoxical reasoning! Having opined that watching the demeanour of a witness is an integral part of assessing the witness’s credibility, His Lordship, nevertheless, said that “the lower court erred in law when it placed much more reliance on watching the demeanour as though that was the only criterion applied in assessing the credibility of a witness”. With the greatest respect to P. Bright Mensah J.A., nowhere in Gyimah J’s ruling did the learned judge state or give an impression that he was placing more premium on the demeanour of witnesses. Gyimah J only cited section 80 (2) (a) of Act 323 which is on the demeanour of a witness as one of the bases for his decision.
The learned High Court judge did not discuss all the eight matters or factors listed under section 80 (2) of Act 323. It was not necessary for the learned High Court judge to further multiply the reasons for his decision. He was certainly satisfied that the two legal points, namely, the interest of justice and the demeanour of witnesses, had sufficiently grounded his decision. What Gyimah J did was tantamount to paying fidelity to the law by applying the provision in Act 323 pertaining to the demeanour of a witness. Gyimah J’s second reason for declining to adopt the criminal proceedings is therefore grounded on hard positive law and cannot be assailed with scanty legal reasoning. The judicial oath of a judge enjoins him to pay fidelity to the law.
Bright Mensah J. A. next identifies what he believes to be “another weakness in placing premium on watching the demeanour of a witness”. By analogy, P. Bright Mensah J.A. opines that “most criminal cases, particularly those tried in the High Court , end up on appeal to the Court of Appeal. For purposes of hearing and determining an appeal, the Court of Appeal is vested with all the powers, authority and jurisdiction as vested in the court from which the appeal is brought; see Article 137 (3) of the 1992 Constitution and rule 31 of the Court of Appeal Rules, 1997 (C I 19)”.
His Lordship continued, “In hearing appeal, because the appellate courts are bound by only the records of appeal, the courts do not require or insist on seeing the witnesses who testified in the trial before making a determination in the appeal except in cases where a fresh evidence is being offered on appeal. Yet the appellate Courts do justice in criminal appeals placed before them.” With the greatest respect, this line of reasoning is not jurisprudence. That is not a matter of inferential conclusion or deductive reasoning. The duty of a trial court is completely different from that of an appellate court. A trial court in a criminal matter is bound by law to hear and take evidence from witnesses and to ensure that witnesses are cross-examined by the opponents (if the opponents choose to cross-examine the witnesses). The trial court is also bound by law to watch the demeanour of witnesses. An appellate court cannot ask the witnesses who have already given evidence at the trial court and cross-examined upon that and then discharged, to give evidence again at the appellate court and be cross-examined again for the purpose of the appellate court watching the demeanour of the witnesses first hand. This will be absurd if it were so. As P. Bright Mensah J.A. rightly said on page 30 of his judgment, “the appellate courts are bound by only the records of appeal”.
For a reason difficult to appreciate, Dr. E. Owusu – Dapaa J.A. who gave a concurring opinion in the case under review, chose to attack and make nonsense of the provision in the Evidence Act, 1975, Act 323 which provision gives statutory blessings to assess the credibility of a witness based on his demeanour. Dr. E. Owusu-Dapaa J. A. saw no value in demeanour as a factor for assessing the credibility of a witness. The learned judge opines on page 58 of the judgment that “Demeamour as an indicator for assessment of credibility of witness is increasingly discredited and demonstrated to be unreliable factor in most cases”.
His Lordship then cited two South African decided cases, namely, S V Kelly, 1980 S A 301 (A) 308 and President of the Republic of South Africa Vrs. South African Rugby Football Union 2000 I S A 339 (cc) to support his rather unconvincing argument that demeanour findings are unreliable. With respect to His Lordship, this line of reasoning subverts our legal order. This is because section 80 (2) (a) of the Evidence Act, 1975, Act 323 expressly provides for the resort to the demeanour of a witness as a way of assessing his credibility. Dr. E. Owusu – Dapaa J . A. should have deferred to the superior thinking of the erudite Atuguba JSC in Republic Vrs. High Court(Fast Track Division) Accra; Ex-parte Ghana National Lottery Authority [ 2009 }SCGLR 390 where the respected Supreme Court judge said “It is communis opinio among lawyers that judges are servants of the legislature.” Since Act 323 is the product of the legislature, Dr. E. Owusu –Dapaa JSC had no discretion to refuse to apply the statutory provision requiring a court to assess the credibility of a witness based on his demeanour. The law is what it is and not what it ought to be. Positivism is part of our jurisprudence. It must also be noted that foreign decided cases are only persuasive and do not bind the courts in Ghana; see Dennis Dominic Adjei, Modern Approach to the Law of Interpretation in Ghana, Revised Edition, Accra, 2015 ,page 389 .The South African decided cases that his Lordship relied heavily on to subvert section 80 (2) (a) of Act 323 are not binding on the courts in Ghana.
His Lordship, Dr. E. Owusu –Dapaa J.A. also cited two foreign articles to further demonstrate what he describes as the “increasing scepticism regarding demeanour in the assessment of credibility “ of witnesses. These foreign articles are “Credence, character and the Rules of Evidence; seeing through the Liar’s Tale” 1993 Duke, L J 982-784 by prof. H R U Viler and “Who can catch a Liar?” 1991 American Psychologist 913 by Ekman and O’ Sullivan. It seems to me that His Lordship, Dr. E. Owusu –Dapaa has a misguided voracious foreign appetite. It is trite law that articles are secondary sources of law and have no binding effect. They only have persuasive value .
A court has no power to subordinate binding statutes to persuasive authorities. However, in fairness to His Lordship, he did refer to two local cases. The first one being the Supreme Court case of Agyeman (Substituted) by Banahene and Others Vrs. Anane [2013-2014] I S C G L R 241. It is common knowledge that this Supreme Court case is restricted to only civil cases.
The Supreme Court never said anywhere in that case that proceedings in a part-heard criminal case can be adopted by a new judge when the court is differently constituted. In any case, if Dr. E. Owusu-Dapaa J.A. had read the Banahene case closely, he would have realized that section 80 (2) (a) of Act 323 did not come up for discussion. The Supreme Court judges never adverted their minds to section 80 (2) (a) of Act 323 in the Banahene case. The Banahene case is therefore not an authority for the proposition that a court has discretion to adopt proceedings in a part-heard criminal case when the court is differently constituted.
The second local decided case that His Lordship, Dr. E. Owusu–Dapaa J. A. relied on to attack the demeanour of a witness as a factor for assessment of credibility is the Court of Appeal case of Dua Vrs. Torkwa [1993-1994] I G L R 217. With the greatest respect, I am of the firm conviction that His Lordship, Dr. E. Owusu-Dapaa J. A. did not read the judgments in Dua Vrs. Torkwa (supra) before applying that case to the facts and circumstances of the case before him. His Lordship’s failure or cavalier attitude in not reading the judgements before relying on that decision to subvert or inflict violence on section 80 (2) of Act 323 is sad and execrable . In Dua v Torkwa (supra), Brobbey J .A. as he then was, delivered the lead opinion. Omari-Sasu J as he then was , delivered a concurring opinion. Section 80 (2) (a) of the Evidence Act, 1975, Act 323 never came up for discussion.
Neither Brobbey J.A. nor Omari-Sasu J downplayed the importance of the demeanour of a witness in the assessment of his credibility. Even a casual reading of the two opinions would have made Dr. E. Owusu-Dapaa J. A. realize that neither Brobbey J. A. nor Omari-Sasu J made an attempt to discredit the demeanour of a witness in assessing his credibility. The court per Brobbey J. A. rather emphatically and unmistakably re-emphasized the importance of a witness’s demeanour in assessing his credibility. The decision in Dua Vrs. Torkwa (supra) rather supports the case of the accused/respondents that recourse to the demeanour of a witness is critical in assessing his credibility. The following are the emphatic and clear words of Brobbey J. A. in that case regarding the demeanour of a witness:
“Since the conclusion of the trial judge that the plaintiff had established a pledge was not based on his assessment of the credibility of the parties and witnesses or on his observation of their demeanour in the witness box but on his evaluation of the evidence on record which was equally available to the Court of Appeal, the Court (Court of Appeal) was entitled to evaluate the evidence and come to its own conclusion even though it would not make any finding of fact” ; see holding (3) of the decision. Brobbey J. A. had clearly faulted the trial judge in that case for not basing his conclusion on the demeanour of the parties and their witnesses. It is respectfully submitted that judges should always endeavor to read cases closely before applying them to cases before them in order not to bring embarrassment, disgrace and dishonor to the bench. The case of Dua Vrs. Torkwa (supra) was cited by the Attorney-General, Godfred Yeboah Dame, to support his argument that Gyimah J unnecessarily and unduly placed reliance on the demeanour of witnesses in reaching his decision. The Attorney-General obviously knew or ought to have known that the authority of Dua Vrs. Torkwa did not support his contention yet he cited it in an attempt to mislead the court. Unfortunately, Dr. E. Owusu-Dapaa J.A. allowed himself to be misled by the learned Attorney-General. It is humbly submitted that even if Dr. E. Owusu-Dapaa J.A. had casually read Dua Vrs. Torkwa(supra), he would have realized that that case rather supported the argument of the lawyers of the accused/respondents. The failure of the learned Court of Appeal judge to read Dua Vrs. Torkwa (supra) before misapplying it to the facts before him could be a result of judicial laziness. If he had read it but nevertheless relied on it to reach his erroneous conclusion, then, to borrow the words of Hayfrond Benjamin J as he then was, in Shalabi v Attorney General [1972] 1GLR 259, this smacks of “catastrophic incompetence” on the part of the learned judge of the Court of Appeal.
It is interesting that Dr. E. Owusu- Dapaa J.A. at pages 40 and 41 of his concurring opinion, cautioned the lawyers of the accused/respondents against citing irrelevant cases yet His Lordship relied on a completely irrelevant and inapplicable case to demonstrate the “irrelevance” of demeanour in assessing the credibility of a witness. The following were the cautionary words His Lordship had for the lawyers of the Accused/Respondents: “Decisional law or case law should not be cited by legal practitioners unless the relevant cases have been digested. Lack of diligence in deploying judicial decisions to buttress arguments has been commented upon by Dotse JSC in The Republic Vrs. High Court (Criminal Division) Accra, Ex-parte Stephen Kwabena Opuni (Civil Motion No. JS/87/2022 delivered on 24/ /2023 (unreported) “. Clearly, His Lordship, Dr. Ernest Owusu-Dapaa J.A. has not lived up to his own standards when he relied on Dua Vrs. Torkwa without diligence. It is submitted, with the greatest respect, that by relying on irrelevant foreign decided cases and irrelevant foreign articles as well as inapplicable local decided cases, Dr E. Owusu-Dapaa J.A. had not reasoned logically and coherently. His reasoning is heavily flawed though his conclusion may be ‘desirable’.
It is also important to point out the prejudicial manner in which P. Bright Mensah J. A. commenced his legal analysis of the main issue that confronted the Court. His Lordship began his legal analysis with the following statement. “To begin with, I do roundly disagree with the submissions of learned counsel for the 1st respondent contained in his written address filed with this court on 27/06/2023 as well as the written submissions filed on 29/06/2023 by learned Counsel for the 2nd and 3rd respondents that this court has no discretion in this matter to order adoption of the proceedings in a criminal partly-heard case for continuation”. This statement was legally undesirable at the commencement of His Lordship’s analysis. Since the issue confronting the court was whether or not the court had power to adopt the proceedings in the partly-heard criminal case, P. Bright Mensah J. A. seriously prejudged the question and invariably disabled himself from embarking on the relevant analysis. In other words, by hastily and uncritically assuming that the court had the discretion to adopt the proceedings in the partly-heard criminal case, His Lordship begged the question and prevented himself from making an impartial and fair evaluation of the arguments addresses to the court. His premise being hasty and uninformed, his logical conclusion from that premise is susceptible and vulnerable to attack.
His Lordship then proceeded to cite irrelevant case law to support his argument that the court had discretion to adopt the proceedings in the partly-heard criminal case . The first irrelevant case that His Lordship cited was R V. High Court, (Criminal Division) Accra, Exparte Francis Arthur (the Attorney General Interested Partly), C. M. J/5/29/2016. In that case the Chief Justice, in transferring a case to a new judge, by an administrative fiat, directed that the proceedings in the case be adopted for continuation. Clearly, what the Chief Justice did was an administrative act. An administrate act or directive is not law.
No rule of law or principle of law warranted that the proceedings in that partly-heard criminal case be adopted. P Bright Mensah J.A. therefore erred by citing Exparte Francis Authur (Supra) as authority for the novel proposition that a court has discretion to adopt partly-heard criminal proceedings. The second irrelevant case that His Lordship cited was R V Justice Osei Kofi (case No. S T 13/12/2022. In that case, the Chief Justice also by an administrative directive, directed the presiding judge to either adopt the proceedings or hear the matter de novo. Again, let me reiterate at the risk of sounding repetitive that what the Chief Justice did in the above case was only an administrative act. It is submitted that the directives of the Chief Justice in the above two cases sin against the holding in Republic Vrs. Adu Boahene and Another (supra) which holding is authoritative that a court differently constituted has no power to adopt criminal proceedings in a partly-heard criminal case.
It is interesting to note that these two authorities that His Lordship cited are High Court decisions and therefore do not bind the Court of Appeal. These two cases do not even have rationes decidendi. Administrative directives do not have rationes decidendi. It is also instructive to note that Mr. Akufo Addo who is the current president of Ghana (lame-duck president) is the appointor of P.Bright Mensah, Jennifer Abena Dadzie and Dr E. Owusu-Dapaa JJJA . He warned the three Court of Appeal judges at their swearing-in ceremony at the presidency/Jubilee House( now Julorbi House, according to Democracy Hub protesters in Accra on 22nd September 2023) that “It is unacceptable for superior court judges to cite lower court cases as the basis for their decisions”. Perhaps Mr. Akufo Addo’s admonition was misconceived. His Lordship, P. Bright Mensah J. A. next embarked on a rather lengthy review of several decided cases bordering on how a judge should exercise discretion. This lengthy review was totally unnecessary as far as the resolution of the issue confronting the court was concerned. The reason is that none of the cases His Lordship reviewed stands for a principle that a court differently constituted has power or discretion to adopt partly-heard criminal proceedings. The irrelevant cases His Lordship reviewed are as follows:
Sapor Vrs. Wigatap [2007-2008] S C G L R 676, James Kodwo Koomson Vrs. Kwame Esuom Wiredu Koomson [2022] J E L R 109894, Prince William Fagoe Vrs. Albert [2009] DL SC 271, R Vrs. Registrar of High Court; Exparte Attorney General [1982-83] G L R 407 and Nartey Tokoli Vrs. Vako No.3 [1989-1990] 2 GLR 530.
Thereafter, His Lordship, P. Bright Mensah J. A. erroneously opined that “I have stated from the outset that there is no fetter on the discretion of a trial court to either adopt or not to adopt proceedings for continuation in criminal trials”.
This erroneous statement is, with great respect, per incuriam. It runs counter to the holding of the Supreme Court in the Republic V Adu Boahene and Another (supra) per Amua-Sekyi JSC that a court differently constituted has no power or discretion to adopt criminal proceedings in a partly-heard case . The learned Court of Appeal judge then reached his decision based on the following statement (which is widely believed to be the ratio of His Lordship’s decision): ’’ Having regard to the peculiar circumstances of this case, and guided by Article 296 of the 1992 constitution and the principles so espoused by case law particularly, Agyemang ( substituted by Banahene and Others V Anane (supra) and Sappor V Wigatap (supra), I am persuaded by statements of law to uphold the erudite submissions of the learned Attorney General that the lower court misdirected itself when it took into account some irrelevant matters and thus came to the wrong conclusion that has occasioned a gross miscarriage of justice in the case. The decision of the lower court stands to be reversed “.
From a legal point of view, His Lordship has grounded his decision on a lame reasoning. First, the reasoning is lame because the courts in Agyemang (substituted) by Banahene and Others V Anane (supra) and Suppor V Wigatap (supra) never held that a court differently constituted has the power or discretion to adopt proceedings of a partly – heard criminal case.
Secondly, these two decided cases are civil cases whereas the instant case before the learned Court of Appeal judge was a criminal one. The approach that a court uses to assess evidence in a criminal case is completely different from how a court assesses evidence in a civil case; see Asante (No 1) V The Republic (No.1) (2017 – 2020) I SCGLR at page 143 per the indomitable Pwamang JSC. The distinction is legally significant.
The standard of proof in criminal cases is proof beyond reasonable doubt whereas the standard of proof in civil cases is proof on the balance of probabilities.
Third, it was misleading for His Lordship to describe the submissions of the learned Attorney-General, Mr. Godfred Yeboah Dame as erudite. If His Lordship had closely read the legal submissions of the Attorney-General, he would have realised that the Attorney-General had cleverly cited a number of inapplicable authorities to support his arguments. For example, the Attorney General deliberately and cleverly cited the case of Dua V Torkwa (supra) to mislead the court and unfortunately, Dr. Ernest Owusu–Dapaah J.A. allowed himself to be misled into applying that case to reach a wrong conclusion that recourse to the demeanour of a witness in assessing his credibility was deprecated.
Since the submissions of the learned attorney general contained cleverly misleading statements of law, they could not be described as erudite. Regulation 83(1) (d) of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020, provides that a lawyer who conducts proceedings in court shall not make a submission which is deliberately misleading.
It is clearly a misconduct to deliberately mislead a court. The Attorney-General does not have legal immunity to mislead the court. The conduct of the Attorney General in misleading the court may be the subject of another article elsewhere. This article deals with the reasoning of the judges of the Court of Appeal in the case under review.
To conclude, it is submitted, with respect, that the judgments delivered by their Lordships in the Republic V Stephen Kwabena Opuni and Two others, Criminal Appeal case No. H2 /25/023 dated 3rd July, 2023, are unsatisfactory. The reasoning of Dr. E. Owusu–Dapaa J.A is flawed because he ignored the express provision in Act 323 and relevant case law in Ghana and rather relied on irrelevant and inapplicable foreign articles and foreign decided cases to reach his conclusion or decision. It is not only regrettable that His Lordship, Dr. E. Owusu – Dapaa J.A allowed himself to be misled by the Attorney-General, Godfred Yeboah Dame, to apply Dua V Torkwa (supra), but it is also execrable.
His Lordship, Dr. P. Bright Mensah J.A also relied on irrelevant authorities to reach his decision. I have already demonstrated this earlier in this article. His Lordship, for a reason difficult to appreciate, ignored the legally significant difference between how evidence is evaluated or assessed in criminal cases and how evidence is assessed in civil cases.
It is also regrettable that His Lordship failed to understand or appreciate the fact that if the case was not heard de novo, the accused/respondents would suffer serious prejudice. This serious prejudice arises from the conduct of Honyenuga JSC in erroneously and lamely expunging crucial exhibits (discussed above) from the record, which exhibits if not expunged, would be fatal to the prosecution’s case.
The prejudicial nature of the proceedings against the accused/respondents can also be seen in the fact that the expunged exhibits can never be tendered in evidence again even if the accused/respondents call the makers of the said exhibits to testify for them. The reason is that, after expunging the said exhibits which are crucial to the defence, Honyenuga JSC marked them “Rejected “. The law is settled that a document or exhibit that is marked “Rejected” can not be tendered in evidence again in the case .Their Lordships have no reasonable legal basis to fault the reasoning and decision of Gyimah J to try the case de novo. It is submitted, with respect, that the judgements of P. Bright Mensah and Dr E. Owusu-Dapaa JJA are not sound, coherent, logical and satisfactory.
It is the considered view of this author that the common law rule requiring a trial de novo in all criminal cases no matter the stage of the proceedings whenever a court is differently constituted, needs to be exploded. This rule has the potential to stultify criminal proceedings. Judges trying criminal cases can resign, go on transfer, retire or die . If any of these events occurs, the common law rule requires that the new judge who takes over the trial, starts it afresh no matter the stage of the proceedings. A criminal trial can therefore go on in perpetuity. Justice delayed in such a situation is surely justice denied.
Also, this common law rule can produce unreasonable results. Again, this rule has the potential to bring about a failure of justice. However, any attempt to explode this common law rule must be based on sound legal reasoning and not artificial scholarship. As the accused persons are likely to appeal against the judgement in the case under review, it is humbly suggested that the Supreme Court explodes this longstanding common law rule. However , the Supreme Court should order a trial de novo of this case because of the serious prejudice the accused/ respondents will suffer if the case is not tried de novo. The prejudicial nature of the proceedings (against the accused/respondents) totally outweighs the advantages of adopting the proceedings for continuation. The rules of fair trial and justice require that the trial of the accused/respondents be conducted de novo .
