The integrity of the Special Prosecutor’s applications for Certiorari and stay of proceedings in the Cecilia Abena Dapaah cases

Even at the height of incompetence and inexperience, no Special Prosecutor (unless he was intent on grievous mischief in abuse of the court process) who had petitioned the Chief Justice to remove a justice of the High Court from hearing all cases from the OSP before that High Court will seek the supervisory relief of certiorari without asking for the accompanying relief of prohibition to restrain the judge and the court in the same application.

The reason is simple. The Supreme Court, sitting en banc as a court of at least five justices, has the power in a supervisory application before it to grant an order of prohibition restraining the particular High Court and the Judge from hearing all the cases the OSP had petitioned the Chief Justice for her one-person administrative relief.

The Chief Justice exercises administrative discretion when she considers petitions; she does not have the powers of a court and would be interfering with cases pending before the Supreme Court by purporting to decide on the petition which has been mooted by the pending application for certiorari.

But on 18 October 2023 when one of the notorious cases of the Special Prosecutor against Cecilia Abena Dapaah and/or her husband was called in the High Court (Financial & Economic Crime Division 2), Accra, the court was informed by the Office of the Special Prosecutor’s (OSP) Director of Prosecutions that the Special Prosecutor had filed a certiorari application at the Supreme Court challenging the decision of the High Court, Accra, to abridge the time for the hearing of his motion seeking confirmation of seizure and freezing of

the assets and bank accounts of the former Minister of Sanitation and Water Resources, Cecilia Abena Dapaah.

Consequently, the issue of whether the Special Prosecutor had withdrawn his petition to the Chief Justice by resorting to invoking the supervisory jurisdiction of the Supreme Court arose. The High Court eventually resolved the question of the pendency of the OSP’s petition to the Chief Justice after consultation with the lawyers in the case in chambers and returned to announce in open court to the public the results of the consultation. The Daily Graphic

Online reports of what took place are as follows:

“Justice Twum subsequently called the parties in the case into his chambers, and when they returned he indicated that the court had been informed that the OSP’s petition to the Chief Justice has not been officially withdrawn, and given that he was further adjourning the case indefinitely to await a direction from the Chief Justice.”

An application for a stay of proceedings in the High Court filed after the application for certiorari had been filed in the Supreme Court was adjourned to 25 October 2023 which is the return date for the application for stay of proceedings.

Dr. Isidore Tuffour, the Director for Prosecution who appeared for the Special Prosecutor had originally agreed that the petition had been withdrawn only for him to receive instruction from the Special Prosecutor to change his mind and to announce to the court that it had not been officially withdrawn.

The public whose taxes pay the Special Prosecutor, his retinue of a police dispatch rider, a motorcade, cortege of bodyguards, and security officers is left with the unmistakable impression that the application invoking the supervisory jurisdiction of the Supreme Court which, from the voluntary choice of the Special Prosecutor, did not include the supervisory relief of prohibition still enables the Chief Justice to administratively prohibit the court and the judge from sitting on all those cases even when the Supreme Court dismisses the certiorari application.

This is a clear lack of candor, transparency, and accountability to the public and the taxpayer who foots the bills for the luxuries of this particular Special Prosecutor.

I have already narrated the drama and what the media termed the confusion of whether the petition had been withdrawn that took place with the announcement by the Special Prosecutor in the court on 18 October 2023 of having filed an application for certiorari in the Supreme Court with an application for stay in the High Court to stay its proceedings pending the determination of the case in the Supreme Court.

The lawyers of the Respondents were not given prior notice or arrangement made to serve the Respondent with the application for certiorari before they appeared in court as should have been the case by an honest applicant not wishing to shortchange and take an unethical and immoral advantage of the adversary to

abuse the court process.

On 12 October 2023, when, the Special Prosecutor, Kissi Agyebeng purported to have petitioned the Chief Justice, I wrote an article the same night which was published in the media the next day, 13 October 2023, in which I concluded as follows:

“One thing is certain, Justice will eventually prevail. In the interim, I bet my last pesewa that should the Chief Justice decline the OSP’s petition, Kissi Agyebeng will formally repeat his petition as an objection before the court again for the simple purpose of postponing the decision or judgment days. This will enable him to frustrate the administration of justice by holding on to the property and bank accounts of the Respondents he administratively seized and froze again on 5 September 2023 for as long as he unlawfully can....”

The fact that Kissi Agyebeng instead of invoking the supervisory jurisdiction of the Supreme Court on 12 October 2023 for both certiorari and prohibition to quash the decision of the High Court and prohibit the judge from further hearing the cases chose to petition the Chief Justice on the 12 October 2023 to remove the judge and waited for five clear days until 17 October 2023 to file an application in the Supreme Court invoking only its supervisory jurisdiction for certiorari, vindicates the conclusions I made in my article under reference.

The return date for hearing the Special Prosecutor’s substantive motion was 18 October 2023. The order of the High Court, dated 11 October 2023, abridged the time for hearing that application by bringing the hearing date forward to the next day, 12 October 2023. This order of the court was aborted by the OSP’s petition, leading the court on 12 October 2023 to adjourn the hearing to the original date taken by the Special Prosecutor for the hearing i.e. 18

October 2023.

On 17 October 2023, the Special Prosecutor this time round applied to the

Supreme Court for only the supervisory relief of certiorari and compelled the High Court to adjourn the cases indefinitely. One does not need to be acquainted with the slightest knowledge of the law to see through the motives and purpose of the Special Prosecutor.

The conduct of the Special Prosecutor is a very serious abuse of the process of the courts. Certiorari is a discretionary relief that the Supreme Court may grant against decisions of any other superior court for error of law on the face of the record which includes breaches of the rule of natural justice and its concomitant requirement against partiality and real likelihood of bias in the adjudicators of cases. The Supreme Court in the case of the Republic versus High

Court, Commercial Division, Accra, Civil Motion No. J5/43/2008 (unreported) repeated what it had stated ad nauseum citing several of its own decisions that:

“The law is settled that the supervisory jurisdiction of the court under article 132 of the Constitution is exercised only in those manifestly plain obvious and clear cases where there are patent and obvious errors of law on the face of the record which error must go to the jurisdiction of the court to make the decision of the court a nullity.”

The order of the High Court dated 11 October 2023 became unenforceable upon the petition submitted to the Chief Justice on 12 October 2023. On 18 October 2023, which was the date for the original hearing of the substantive application, any rights that could be enforced under the ruling of 11 October 2023 had become moot. It was for this reason that the Supreme Court quoted in the previous paragraph stated that: “It is trite law that an application for stay of execution cannot be based on a judgment that is not executable.”

The Applicant’s main ground for certiorari is that the OSP’s supplementary affidavit which it annexed to its motion for leave to file the supplementary affidavit was unsigned and unsworn by him, without the annexed exhibits and unfiled. But the lawyer representing the OSP told the court that: “We have indeed filed our supplementary affidavit. We filed an application for

leave to file a supplementary affidavit in support of our substantive application and we have exhibited this to our affidavit in opposition.”

The fact is that once the application for leave to file the supplementary affidavit was signed, sworn, and filed verifying the annexed supplementary affidavit, the court and the Respondent were entitled to assume that the Applicant had complied with the law by annexing all his intended exhibits to or accompanying the supplementary affidavit stated as annexed to the application for leave. The supplementary affidavit and the annexed exhibits need not be

signed, sworn, and filed for the court with the consent of the Respondent to admit it in evidence for expeditious hearing, and to dispense with any further formal processes again.

The Supreme Court has waived formal signing, swearing, and filing of supplementary affidavits which have been annexed to applications for leave, and admitted them in evidence with the consent of the parties to expedite the hearing of cases in my experience of practice before the Supreme Court. The Applicant who even refused or failed to inform the court that his application for leave was incomplete by not annexing all the exhibits to his supplementary

affidavit annexed to the application for leave to have enabled the court to dismiss the application for leave before making the order for abridgment of time is now complaining of his own wrongdoing.

Consequently, the records of the proceeding and the ruling of 11 October 2023 do not bear out the fact that no exhibits accompanied the supplementary affidavit annexed to the application for leave by the Applicant OSP to become a patent error of law on the face of the record for purposes of an application for certiorari.

The Special Prosecutor knew or ought to have known this as a professional lawyer, particularly as certiorari is a discretionary remedy and that the High Court acted within its jurisdiction. The Special Prosecutor also knew or ought to have known that bringing the certiorari application to the Supreme Court would cause a further delay in the hearing of his substantive application for confirmation of seizure and freezing orders.

In the interim, he would have possession of the subject matter of his substantive application before the High Court even when the case in the Supreme Court is not determined in favour of the OSP.

The Special Prosecutor is thus using taxpayer money in this enterprise even if his applications in the High Court and the Supreme Court are later found to be an abuse of the process of the court and unconstitutional. The citizen who is the unfortunate victim has to meet all the expenses from personal resources. This explains why the ethics governing investigators and prosecutors in criminal justice administration and Article 296 of the 1992 Constitution enjoins any person or authority vested with discretionary power in the Constitution or any

other law to exercise that quasi-judicial discretion fairly, with candor, and not arbitrarily.

It was for these reasons that I could not believe that any efficient law enforcement institution would apply to the Supreme Court for the supervisory order of certiorari after petitioning the Chief Justice to remove a presiding superior court judge from all its cases without asking in the same application for an order of prohibition to prohibit the judge from continuing to hear

its cases as petitioned. The Chief Justice should be asking herself how she could be determining a petition that is in substance and forming an application for an order of prohibition when the petitioner has subsequently applied to the Supreme Court for the supervisory relief of certiorari and deliberately failed or refused to ask for an order of prohibition against the judge if he had valid grounds in law to have petitioned her.

The public should also be asking the same question of the Special Prosecutor whether he indeed had legal grounds for the administrative petition to the Chief Justice to remove the judge from all his cases when he is running away from a final determination of that same issue by the Supreme Court sitting en banc in its judicial capacity by choosing not to ask that court for the supervisory order of prohibition.

I have with great difficulty come by and read the certified true copy of the ruling in the Special Prosecutor v 1. Cecilia Abena Dapaah and Another, Suit No. FT/0074/2023, High Court (Financial & Economic Crime Division 2), Accra, 11 October 2023 (unreported).

While citizens await the determination of the application for certiorari the public must know the decision contained in the ruling of the High Court. This is important because surrogates of the Special Prosecutor who are lawyers sat on their Saturday media program of one of the media houses and repeated the contents of a media press statement issued by the Special Prosecutor on 12 October 2023 to make insinuations of prejudice and bias against the court and the judge. I am accordingly quoting hereunder the core four-

paragraph decision of the High Court dated 11 October 2023 in its entirety as follows:

Decision of this court:

Having considered the affidavits of both parties and the submissions of counsel thereon, it is the considered view of this court that this application should be granted with a slight modification.

The reasons are that the Applicants have been able to demonstrate that the longer this application lingers on, the greater the hardships that will be occasioned to them. From the records, the financial resources of the Applicants were seized and frozen by the Respondents on the 5th day of September 2023. It took five clear days (11 September 2023) for Respondent to file the substantive application in the registry of this court, which is within the time allowed by Act 959, and from the records, the return date was fixed for 18 October 2023

for hearing, almost one month after filing of the application, which in the view of this court was rather longer than usual, and this court considers this as inimical to the welfare and status of the Applicant.

This court has taken note that the Respondent intends to file a supplementary affidavit in support and indeed exhibited a copy of the same to their affidavit in opposition to the motion for abridgment of time (Exhibit “OSP1”). The Applicant has been gracious enough to indicate that they do not intend to oppose the said application and will forgo service of the proposed motion on notice for leave to file a supplementary affidavit in support.

This court is satisfied that a copy of the proposed supplementary affidavit in support is on the record and already in evidence, and copies have been made available to all the parties concerned, particularly, the Respondents. In the circumstances, this court, in the interest of fairness, justice, and expeditious hearing of the substantive application and pursuant to Order 1 rule 2 of C.I. 47, hereby adopts the Supplementary Affidavits’ motion for abridgment of time for the substantive motion to be heard expeditiously in line with the grant of the abridgment of time.

On the totality of the evidence adduced at this hearing and on the reasons assigned above, this court hereby grants the Applicants' prayers with a slight modification. The substantive motion is hereby scheduled to be heard on Thursday, October 12, 2023, in the forenoon. All parties to the substantive application are to take note and comply accordingly.”

As citizens and the taxpayers who fund the public purse, we are entitled to know the performance of the public servants, and officers, including the justices of the superior courts we pay to be keepers of our rights and freedoms from unconstitutional infringements under the 1992 Constitution. We are entitled to decide for ourselves whether the above decision of the High Court contains any error of law on the face of the record or demonstrable prejudice and bias to the interest of the Republic, represented in this case by the Special Prosecutor,

while we await the determination of the certiorari application by the Supreme Court.

Here is the food for thought on the petition as we await the decision of the Supreme Court. In the case of the Republic v High Court (Financial Division3) Accra, Ex Parte Ms. Arch Adowoa Company Ltd (1. Auditor-General 2. The Attorney-General Interested Parties) Civil Motion No. J5/32/2019 the Supreme Court after refusing an application for certiorari also refused to grant an order for prohibition sought by the applicants and stated the law on prohibition as follows:

“We however do not find any reason to grant the order of Prohibition against the learned trial Judge. There are clear legal grounds upon which a court or Judge might be prohibited from determining a suit. To disqualify a Judge the ground of the objection had to be supported by cogent and convincing evidence. A mere or reasonable suspicion of bias was not enough. The law recognized not only actual bias but also that interest other than direct pecuniary or proprietary nature which gave rise to a real likelihood of bias. The fact of the trial Judge serially giving Rulings against the Applicant by itself does not qualify to disqualify the Judge based on real likelihood of bias which is the standard test in this jurisdiction.”

The decision of the Supreme Court will help us evaluate the cumulative misconduct and breaches of the 1992 Constitution by the Special Prosecutor. Constitutional activists have a duty and responsibility to hold public office holders to account for consistent abuse of power under the 1992 Constitution.