The Supreme Court has stated that it dismissed an application by investigator Anas Aremeyaw Anas because his claim that a High Court judge was biased towards him lacked legal support.
Anas had filed a certiorari application at the apex court seeking to nullify a High Court’s decision that dismissed his defamation suit against Member of Parliament for Assin Central, Kennedy Ohene Agyapong.
The defamation suit was based on public statements made and a broadcast by the MP, accusing Anas of being evil and blackmailing people in the name of investigative journalism.
Anas’ grounds for the certiorari application challenging the judgment were that the trial judge, Justice Eric Baah, a Justice of the Court of Appeal sitting as a High Court judge, had no jurisdiction to hear the suit and that the judge was biased towards him.
On February 25 this year, the Supreme Court, in a 3-2 majority decision, dismissed the application and reserved the full reasoning in the judgment, which was later filed at the court’s registry, making it public.
Chief Justice Gertrude Sackey Torkornoo, Justices Henrietta Mensa-Bonsu, and Samuel Asiedu were on the majority side, while Justices Issifu Omoro Tanko Amadu and Emmanuel Yonny Kulendi dissented.
In the High Court judgment dated March 15 last year, Justice Baah held that although the words spoken by Mr. Agyapong against Anas were capable of defamation, they were factual and therefore could not be considered defamatory as the defence of justification exonerated the MP.
Justice Baah then made certain findings based on his analysis of the evidence before him and held that the MP was justified in calling Anas “evil, blackmailer, an extortionist, criminal, and corrupt.”
Furthermore, the judge described Anas’s work as “investigative terrorism” and not “investigative journalism.”
“It should be understood that as officers caught by plaintiff in his investigations have lost their jobs, an entrapped President may be compelled to resign out of shame or public pressure.”
“That means the plaintiff, through his investigative antics can cause the removal of a President, and thereby the mandate given to him at the election. This is not investigative journalism.
“It is investigative terrorism. It is an exercise of indirect political power under the cloak of journalism,” Justice Baah held in the judgment.
The above statement by Justice Baah was one of the statements in the judgment, Anas relied on to support his assertion that the judge had a real likelihood of bias towards him.
In its decision, the Supreme Court, as authored by Justice Asiedu, dismissed the ground of bias. The court held that Justice Baah’s strong words did not indicate bias or a dislike towards Anas. Instead, the statement was deemed an analysis of the evidence presented in the trial court, which is a judge’s duty when adjudicating a matter.
The court noted that Justice Baah’s statement was not made in isolation, as there was video evidence before the trial court. This evidence allegedly showed Anas, along with one Amakye and a Sheikh, plotting to entrap the Prime Minister of Ivory Coast and the President of Ghana.
“Is the applicant (Anas) saying that a trial judge has no right to examine and analyse the evidence placed before him and draw inferences and make findings of fact?
“In my opinion, the statements referred to are the inferences and findings of facts which the learned trial judge dutifully made and for that matter they cannot reasonably be described as constituting bias and be clothed with the garb of prejudice against the applicant,” the apex court held.
In a concurring opinion supporting the majority decision, the Chief Justice stated that Justice Baah’s statements were his findings and inferences based on his evaluation of the evidence presented to him.
The Chief Justice further explained that whether or not Justice Baah’s evaluation of the evidence was erroneous would require a re-evaluation of the evidence, which was not possible in the current judicial review application brought by Anas. Such a re-evaluation, the Chief Justice noted, should be done on appeal.
“My conclusion is that the issue of the sustainability of the judge’s words used to describe the applicant can only be a matter determinable by the appellate court.
It is not the place of this court to question the basis for any findings and conclusions that have been reached by a trial judge when the court does not have the full records of proceedings,” Justice Torkornoo held.
In his dissenting opinion, Justice Kulendi argued that Justice Baah’s words indicated a clear prejudice against Anas. He questioned why the court, which was hearing a civil matter of defamation, ended up making criminal findings against Anas.
“I find it even more perplexing that a court exercising civil jurisdiction would find that the applicant is guilty of having taken bribes, and being dishonest, fraudulent, a cheat, an extortionist, a thief, a blackmailer and corrupt,” Justice Kulendi held.
Justice Amadu disagreed with the majority’s view that Anas’s remedy was an appeal rather than a judicial review application. He argued that this interpretation would diminish the supervisory jurisdiction of the Supreme Court as prescribed by the Constitution.