ADZAKU v.

GALENKU [1974] 1 GLR 198-206

HIGH COURT, HO

19 NOVEMBER 1973

SARKODEE J.

Judges—Bias—Objection to Panel—Based on allegation that plaintiff's witness had had previous

audience about case with trial magistrate—No evidence in support of allegation—Subsequent complaint
that trial magistrate had exhibited violent temper in the course of trial and said many unpleasant things
about defendant—Whether trial magistrate in the circumstances biased—Proper test in determining
bias.

Practice and procedure—Witness—Examination—Part to be taken by trial judge or magistrate—Extent.

HEADNOTES

In an action for, inter alia, damages, the defendant in cross-examination, suggested to the plaintiff's
witness that he, the witness, had previously spoken to the trial magistrate about the case. This
allegation was denied by the witness. The defendant did not call any admissible evidence on the issue
but applied to the trial magistrate to stop hearing the case and refer it to another magistrate for hearing
as to the truth or otherwise of the allegation. After reviewing the evidence, the trial magistrate
concluded that there was no foundation in the allegation and therefore dismissed the application. The
defendant was subsequently found liable.

On appeal, the defendant contended that the whole trial was a nullity and unsatisfactory because (a) on
the basis of the allegation, and from the facts the trial magistrate had exhibited violent temper in the
course of the trial, and had said many unpleasant things about him, the trial magistrate was biased and
(b) he had taken an undue part in the examination of the plaintiff's witness and had also cross-examined
the defendant extensively.

Held, dismissing the appeal:

(1) to disqualify the trial magistrate and to invalidate his decision, the allegation of bias must be
supported by evidence. A mere or reasonable suspicion of bias was not enough; the law recognised not
only actual bias but that interest, other than interest of a direct pecuniary or proprietary nature, which
gave rise to a real likelihood of bias. Without more, the conduct of the trial magistrate could not support
the charge of bias and since there was no foundation in the allegation of bias, the trial magistrate was
right in dismissing the application. Dicta of Lord O'Brien C.J. in R. v. Justices of County Cork [1910] 2 I.R.
271; of Slade J. in R. v. Camborne Justices; Ex parte Pearce [1955] 1 Q.B. 41 at p. 51, D.C. and of Devlin
L.J. (as he then was) in R. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed
Victuallers' Association [1960] 2 Q.B. 167 at p. 187, D.C. and Attorney-General v. Sallah, Court of Appeal
sitting as the Supreme Court, 17 April 1970, unreported; digested in (1970) C.C. 54 applied. Dictum of
Lord Esher M.R. in Eckers1ey v. Mersey Docks and Harbour Board [1894] 2 Q.B. 667 at pp. 670-671, C.A.
cited. Cottle v. Cottle [1939] 2 All ER. 535, D.C. distinguished.

[p.199]

(2) The part which a trial judge or magistrate ought to take whilst witnesses gave evidence, must rest
with his discretion. However, a judge must not so conduct himself as to cause inconvenience to counsel
by his undue participation in the examination of witnesses. Examination of the record of proceedings in
the instant case did not indicate that the trial magistrate took sides nor pressed any witnesses in a way
which could be considered undesirable. Yuill v. Yuill [1945] P. 15, C.A. and Jones v. National Coal Board
[1957] 2 Q.B. 55, C.A. cited.

CASES REFERRED TO

(1) R. v. Camborne Justices; Ex parte Pearce [1955] 1 Q.B. 41; [1954] 3 W.L.R. 415; [1954] 2 All E.R. 850;
118 J.P. 488; 98 S.J. 577, D.C.

(2) R. v. Rand (1866) L.R. 1 Q.B. 230; 7 B. & S. 297; 35 L.J.M.C. 157; 30 J.P. 293.

(3) Cottle v. Cottle [1939] 2 All E.R. 535; 83 S.J. 501, D.C.

(4) Eckersley v. Mersey Docks and Harbour Board [1894] 2 Q.B.667; 71 L.T. 308; 9 R. 827, C.A.

(5) R. v. Justices of County Cork [1910] 2 I.R. 271.

(6) R. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association
[1960] 2 Q.B. 167; [1960] 3 W.L.R. 305; [1960] 2 All E.R. 703; 124 J.P. 359; 104 S.J. 583; 58 L.G.R. 285,
C.A.

(7) Attorney-General v. Sallah, Supreme Court, 17 April 1970, unreported; digested in (1970) C.C. 54.

(8) Budu II v. Caesar [1961] G.L.R. 176, S.C. Jones v. National Coal Board [1957] 2 Q.B. 55; [1957] 2
W.L.R. 760; [1957] 2 All E.R. 155; 101 S.J. 319, C.A.

(10) Yuill v. Yuill [1945] P. 15; [1945] 1 All E.R. 183; 144 J.P. 1; 172 L.T. 114; 61 T.L.R. 176; 89 S.J. 106,
C.A.

(11) R. v. Bateman (1946) 174 L.T. 336; 110 J.P. 133; 90 S.J. 224; 44 L.G.R. 121; 31 Cr.App.R. 106, C.C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of a district magistrate grade II, wherein the appellant, a fetish priest, was
found liable in an action for, inter alia, damages. The facts are sufficiently set out in the judgment.

COUNSEL

F. T. C. Amorin for the appellant.

E. D. K. Adjabeng for the respondent.

JUDGMENT OF SARKODEE J.

This is an appeal from the judgment of his worship F. P. K. Avadetsi, Esquire, District Magistrate Grade II,
Kpandu. The judgment was delivered on 4 March 1971.
The facts of the case so far as they are relevant to this appeal are that the Kpandu District Court Grade II
by a judgment dated 10 April 1970 ordered one Kwaku Adegbe the defendant in that case to provide
drinks and other items for the "redemption of the plaintiff's life from the fetish called Golokoe." Kwaku
Adegbe had sworn the fetish on [p.200] the plaintiff because the latter had given false evidence against
him. After the judgment, the plaintiff in the present case and Adegbe went to the defendant, who was
the priest of the Golokoe fetish. The priest outlined certain conditions which the plaintiff should fulfil
before he performed the ritual. The plaintiff failed to perform his part of the bargain and so the
defendant did not abate the possible effects of the fetish. The plaintiff said as a result he was put in
perpetual fear of death. He therefore brought an action against the defendant claiming ¢50.00 "as
special damages for wilful refusal to set him [plaintiff] free from the wicked hands of the [defendant's]
Golokoe fetish and for torturing him [the plaintiff] mentally" and an order to compel the defendant to
perform the necessary rites. The magistrate found the defendant liable and awarded against him ¢50.00
damages plus costs of ¢20.50 and a further order that the defendant should perform the necessary
fetish redemption customary rites within a week from the date of the judgment. The defendant
appealed.

On appeal, the only ground argued on his behalf was that the whole trial was a nullity on the ground
that the magistrate was biased and that the judgment was perverse and contrary to the rules of natural
justice. During the trial of the suit the plaintiff called his only witness Kwaku Adegbe, the man who had
sworn the fetish. It was suggested to this witness in cross-examination that he had spoken to the
presiding magistrate about the case that morning. He denied the allegation. Counsel then requested the
magistrate to refer the case to another magistrate for a determination whether the allegation was true
or not. The magistrate examined the facts leading to the allegation and refused the application. He
recorded his ruling to be delivered on 6 July but on 4 July, the defendant filed an affidavit setting out his
complaint and prayed for the change of magistrate. As a result of this, the magistrate wrote what he
called a supplementary order by which he referred the matter to his lordship the Chief Justice. He then
adjourned the hearing "indefinitely pending the receipt of direction from his lordship."

I have set out the sequence of events leading to the allegation of bias in some detail because I think it is
important that such an allegation when made must be substantiated particularly, when the allegations
of facts are challenged as in the instant case. They ought therefore to be proved to have foundation.
That is to say, in order to disqualify the magistrate and to invalidate his decision the allegation must be
supported by evidence. To hold otherwise will be to enable a party by objections to choose his own
judge; a situation which will drive a wedge into the fabric of our whole judicial system.

A mere suspicion of bias is not enough. The law on disqualification on the ground of bias recognises not
only actual bias but also a likelihood of bias, and that interest, other than the interest of a direct
pecuniary or proprietary nature, which gives rise to a real likelihood of bias will disqualify a magistrate.
In R. v. Camborne Justices; Ex parte Pearce [1955] 1 Q.B. 41, D.C. Slade J. read the judgment of the court
[p.201] which judgment reviewed earlier cases on bias; starting with R. v. Rand (1866) L.R. 1 Q.B. 230
and ending with Cottle v. Cottle [1939] 2 All E.R. 535, D.C. he said at p. 51:
"In the judgment of this court the right test is that prescribed by Blackburn J., namely, that to disqualify
a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than
pecuniary or proprietary) in the subject matter of the proceeding, a real likelihood of bias must be
shown."

The test therefore is not one of a reasonable suspicion of bias as was the view held in earlier cases, a
notable example being, Eckersley v. Mersey Docks and Harbour Board [1894] 2 Q.B. 667 at pp. 670-671,
C.A. in which Lord Esher M.R. said:

"When the proposition sought to be established on behalf of the plaintiffs is examined, it comes to this,
that the disputes ought not to be referred to the engineer because he might be suspected of being
biased, although in truth he would not be biased. It is an attempt to apply the doctrine which is applied
to judges, not merely of the Superior Courts, but to all judges - that, not only must they be not biased,
but that, even though it be demonstrated that they would not be biased, they ought not to act as judges
in a matter where the circumstances are such that people - not necessarily reasonable people, but many
people - would suspect them of being biased."

In the view of Lord O'Brien C.J. in the Irish case of R. v. Justices of County Cork [1910] 2 I.R. 271 Lord
Esher's dicta (supra) was too wide for he said:

"That, in my opinion, goes too far. It makes the mere suspicions of unreasonable persons a test of bias. I
think that the judgment was not a considered one, and that Lord Esher made use of some loose
expressions. We decline, on a consideration of the cases, to go so far as that very eminent judge. There
must, in the words of Blackburn J., be 'a real likelihood' of bias: Reg. v. Rand (1866 L.R. 1 Q.B. 230, p.
233). In Rex (De Vesci) v. Justices of Queens Co., ((1908) 2 I.R. 285, 294) I expressed myself as follows:
'By "bias" I understand a real likelihood of an operative prejudice, whether conscious or unconscious.
There must, in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of bias. I
do not think that the mere vague suspicions of whimsical, capricious and unreasonable people should be
the standard to regulate our action here. It might be a different matter if suspicion rested on reasonable
grounds - was reasonably generated - but certainly mere flimsy, elusive, morbid suspicions should not
be permitted to form a ground of decision'."

[p.202]
The English Court of Appeal in 1960 set the seal to the real likelihood test for Devlin L.J. (as he then was)
in R. v. Barnsley Licensing Justices; Ex parte Barnsley and District Licensed Victuallers' Association [1960]
2 Q.B. 167 at p. 187, C.A. said:

"Is there, in those circumstances, a real likelihood of bias? I am not quite sure what test Salmon J.
applied. If he applied the test based on the principle that justice must not only be done but manifestly
be seen to be done, I think he came to the right conclusion on that test. I cannot imagine anything more
unsatisfactory from the public point of view than applications of this sort being dealt with by a bench
which was so composed, and, indeed, it is conceded that steps will have to be taken to rectify the
position. But, in my judgment, it is not the test. We have not to inquire what impression might be left on
the minds of the present applicants or on the minds of the public generally. We have to satisfy ourselves
that there was a real likelihood of bias - not merely satisfy ourselves that that was the sort of impression
that might reasonably get abroad."

In Ghana, the Court of Appeal sitting as the Supreme Court adopted the real likelihood of bias test in
Attorney-General v. Sallah, Supreme Court, 17 April 1970, unreported; digested in (1970) C.C. 54 and
emphasized that whether there was a real likelihood of bias depends on the circumstances; that is to say
the decision must really turn on a question of fact whether there is or is not under the circumstances a
real likelihood of bias.

In this appeal Kwaku Adegbe was alleged to have seen the magistrate in the precinct of the court before
the court started sitting. He was cross-examined on this but he denied the allegation. He and others
were already seated in the court room before the magistrate arrived from Kpandu to Kpeve where the
court sat that day. I do not think he could have left the other people, including the parties to the suit
and gone out to see the magistrate. It will be helpful here to refer to paragraphs (9) to (13) of exhibit A,
the affidavit sworn to and filed by the defendant:

"(9) That as soon as my counsel arrived in court, on the 25th day of June 1970, the magistrate said in
open court that I am a liar and have lied to him (counsel).

(10) That prior to counsel's arrival I had been informed by Kwaku Adegbe through C. E. K. Cudjoe that
he, Kwaku Adegbe, had had audience with the magistrate that morning concerning the case.

(11) That my counsel cross-examined Kwaku Adegbe who was a witness for the plaintiff on those
matters which he denied of course.

[p.203]
(12) That the magistrate shouted at the top of his voice in open court that it was all lies.

(13) That my counsel submitted to the court that we could not continue the case before him in view of
his attitude to me from the beginning of the case to the allegation touching on Kwaku Adegbe."

It is apparent that there is no admissible evidence upon which to base the allegation of bias. C. E. K.
Cudjoe himself did not swear to an affidavit and he was not called. He was the defendant's son and,
from the circumstances, was in court that day. Even if he had sworn to one I doubt whether he could
have made any positive assertion that Kwaku Adegbe had audience with the magistrate that morning or
at any time. It will be noted that this matter was raised after the plaintiff and his witness had given
evidence and had been cross-examined by counsel for the defendant. The plaintiff then re-examined his
witness and the court also asked him some questions. In effect but for the intervention of counsel at
that stage that would have been the end of the plaintiff's case; what was left was for the magistrate
formally to record that fact.

Counsel cited Budu II v. Caesar [1961] G.L.R. 176, S.C. and submitted that as a very serious allegation had
been made against the magistrate it was proper for him to have stopped hearing the case. When the
point was urged, the magistrate on 18 June 1970, adjourned the case and read a considered ruling on 6
July in which after he had reviewed the evidence before him, he concluded that there was no
foundation in the allegation and therefore he dismissed the application.

Meanwhile the defendant filed exhibit A which made it necessary for the magistrate to write what he
called "a supplementary" to his order, and referred the matter to his lordship the Chief Justice for his
directions. He then adjourned the case "indefinitely pending the receipt of the directions from his
lordship." Subsequently, a letter from the Judicial Secretary's office directed that the defendant should
have made application for the change of magistrate to the High Court, Ho. No application was filed in
the High Court to stop the proceedings and have the magistrate's ruling tested or then to have the case
transferred or both.

I do not think the magistrate should have stopped hearing the case on an allegation which had no
foundation. The allegation must be based on reasonable grounds and must he reasonably generated:
see R. v. Justices of County Cork (supra). I am not saying that the allegation itself must be proved to be
true but that there must be sufficient evidence upon which the party complaining might rely to form the
impression that the magistrate could not give him unbiased hearing. I am not unmindful that the parties
in this suit are simple village people who apparently strongly believe in the power of their fetish and will
therefore rely on mere allegation to feel that they would not have [p.204] justice done. But even in their
case the allegation must have some basis and should not be a mere suspicion.
This case can therefore be distinguished from Cottle v. Cottle [1939] 2 All E.R. 535, D.C. That was a case
before justices in which the husband alleged desertion. It appeared that the chairman of the bench was
a friend of the wife's mother. The husband took objection to the case being tried by a court presided
over by the chairman but the chairman overruled the objection and the trial proceeded. The husband
cross-examined the wife. It was proved that the wife had said that she would obtain a summons to be
set down for hearing when this particular justice was presiding and that he would "put him [the
husband] through it." It was held that it was not necessary to show that the justice was in fact biased,
and there was here sufficient evidence upon which the husband might reasonably have the impression
that this Justice could not give this case an unbiased hearing.

It is interesting to note that the chairman in overruling the objection said as reported in Cottle v. Cottle
(supra) at p. 537 that:

"I do not uphold the objection. I took an oath when I was appointed a magistrate to do justice, and I
have always endeavoured to. I do not know anything about this case, and I did not consult your wife
about it. I knew about the previous case, but I did not know about this case until the Monday morning
when your wife came to ask for a summons. I do not see any justification at all for my vacating the chair.
I think it is a frivolous objection."

The chairman it seems found himself in a difficult situation because local justices in the United Kingdom
are often assisted in their work by their knowledge of local conditions and the history of the local people
who come before them. Indeed this is a very important feature in the administration of justice by local
justices. But this is not the case in point. Mr. Cottle, the husband in this case knew of the relationship
between the chairman and his wife's mother. This was not denied. The husband alleged that his wife's
acquaintance with the justice was such that he would be inclined in her favour. There was clearly
sufficient evidence and the husband had good cause to have misgivings. The allegation against the trial
magistrate in this appeal was without foundation. We cannot put something on nothing and expect it to
stay; it will fall.

Another argument in support of the contention that the trial was unsatisfactory was to the effect that
the magistrate took an undue part in the examination of the plaintiff's only witness and that he cross-
examined the defendant deeply. The part which a judge or magistrate for that matter ought to take
while witnesses are giving evidence, must rest with his discretion: see Jones v. National Coal Board
[1957] 2 Q.B. 55, C.A. applying Yuill v. Yuill [1945] P. 15, C.A. However, a judge [p.205] must not so
conduct himself as to cause inconvenience to counsel by his undue participation in the examination of
witnesses. I have looked at the record very closely and I see no trace from the answers recorded that
the magistrate took sides nor am I able to conclude that he pressed any witnesses in a way which could
be considered undesirable. The answers were merely repetitions of the witnesses' evidence-in-chief
which indicate that the magistrate was trying to ascertain the truth. Further, and rightly too, the
magistrate examined the witnesses after they had given evidence-in-chief and had been cross-
examined, and re-examined. The examination by the magistrate of the plaintiff's witness went to clarify
the point as to where he was when the magistrate arrived at the court from Kpandu. Likewise the
examination of the defendant and his witness established the reasons for the defendant's failure to
purge the plaintiff of the fetish; evidence which the witnesses had given earlier and which touched upon
the drinks and the money to be provided. It will be noted that both the defendant and his witness were
examined by the magistrate after they had been cross-examined. It seems what the magistrate did
cannot be faulted. He put questions with the view to bringing out answers to questions which had not
been sufficiently answered. He did not descend into the arena, so to speak. He did not take an active
part in the conduct of the case.

It was further alleged that the magistrate exhibited violent temper in the course of the trial and said
many unpleasant things about the defendant. This without more cannot support a charge of bias. There
is no mention in the affidavit as to which words were used. I cannot accept the defendant's opinion in
this respect also that they were alleged to have been uttered in the absence of counsel. However, it is
unfortunate the magistrate described the witness for the defendant as a liar when he formed the
opinion that he was not trying to assist the court. Also in his judgment the magistrate had cause to say
that fetish priests in the district were fraudulent. This is not supported by the evidence. In this regard I
will adopt what Humphrey J. said in R. v. Bateman (1946) 31 Cr.App.R. 106 at p. 111, C.A.:

"Judges are entitled, if they form the opinion that a witness is not trying to help the Court, to do what
counsel cannot do, and say: 'You behave yourself and tell me the truth.' It is sometimes very useful to be
able to say that. Sometimes it pulls a witness together and makes him say what is the truth, but, of
course, it must not be done until the witness has given some indication that he or she is not trying to tell
the truth."

It must not, however, be forgotten, by those who preside at trials that witnesses whether called by the
prosecution or the defence in criminal cases or by either of the parties in a civil suit are entitled to be
treated with courtesy and politeness.

[p.206]

I do not in any case think that these lapses on the part of the magistrate caused any injustice to the
defendant. I therefore hold that this appeal fails and is dismissed accordingly.

DECISION
Appeal dismissed.

S. Y. B.-B.