Supreme Court stops Justice Senyo Dzamefe
The Supreme Court yesterday, ruled that Justice Senyo Dzamefe, who was recently elevated to the Appeal Court, lacks the jurisdiction to adjudicate a case in which three soldiers are standing trial for the murder of the former Northern Regional Chairman of the Convention People's Party (CPP), Alhaji Issa Mohammed, also known as Issa Mobila, at the Fast Track Court (FTC).
According to the court, presided over by Justice (Prof.) Date-Bah, Justice Dzamefe was instructed by the Chief Justice, upon his elevation from the High Court to the Appeal Court, to continue with the case before him, and not to commence the case afresh.
The court, which had Justices Sophia Adinyira, Anim Yeboah, B.T. Ayittey and Sule Gbadegbe as additional panel members, quashed the proceedings of December 7, 2010, in which Justice Dzamefe presided over in the said case, and thereby granted an order of certiorari sought by counsel for two of the accused persons standing trial for murder at the FTC.
Mr. Thaddeus Sory, counsel for Cpl. Appiah Yaw and Private Modzaka Eric, filed an application before the Supreme Court, seeking an order to prohibit Justice Dzamefe from further proceeding to hear the case before the FTC, an order of certiorari, to quash orders made by Justice Dzamefe in the proceedings of December 7, 2010, and an order staying proceedings in the case, in so far as Justice Dzamefe presides over the same case, pending the determination of the case before the Supreme Court.
The Principal State Attorney, Mr. Anthony Rexford Wiredu, conceded before the court that the trial judge was instructed to continue with the case in question, and not to start the trial afresh.
The applicants, who are facing two counts of conspiracy and murder, argued that Justice Dzamefe lacked jurisdiction to hear and make any orders in the suit, and that the order made by the said judge on December 7, 2010, was unconstitutional, null, and void.
Additionally, the applicants noted that Justice Senyo Dzamefe had shown an interest in the case, and given a decision to have perpetual jurisdiction over the case, without regard to the 1992 Constitution that disqualifies him from continuously presiding over the case.
The applicants, in their affidavit, indicated that Justice Dzamefe had acted and demonstrated in various ways, exhibiting his interest in the case rather than being an independent arbiter, adding that there was a real likelihood of bias on the part of the judge.
Cpl. Appiah Yaw and Private Modzaka Eric were on March 17, 2010 arraigned before the FTC, Accra, and indicted on two counts of conspiracy and murder, to be tried by a-seven-member jury.
In the course of the trial at the FTC, the Presiding Judge, Justice Dzamefe, was elevated and sworn-in to sit as a Justice of the Court of Appeal.
According to the applicants, by virtue of the 1992 Constitution, with the elevation of Justice Dzamefe, he would have been 'barred from further presiding over the suit, including all other matters pending before the High Court, but that the Chief Justice of the Republic of Ghana had, in the exercise of her Constitutional powers, permitted him to complete all cases partly heard by him, before proceeding to assume full duties on the bench of the Court of Appeal, unless subsequently, specially assigned to execute specific duties in another court by the Chief Justice.'
The applicants further noted that in May 2010, one of the jurors took ill in the course of the trial, which led to about two months of delay, until the prosecution insisted that the sick juror be replaced, to avoid any further delay of the trial.
The presiding judge, therefore, granted the request of the prosecution, for the replacement of the sick juror, which further led to the swearing-in of another juror, and a subsequent re-swearing of the entire jury, paving the way for the case to start anew, in consonance with the rules regulating trial by indictment.
It was the case of the applicants that the sick juror was replaced on July 27, 2010, and the case adjourned to July 28, 2010 for continuation, adding that on that date, 28/07/10, their counsel took an objection to the effect that since the trial had to start anew, the Presiding Judge did not have the mandate of the Chief Justice to hear fresh cases pending before the High Court, especially, when the substantive Justice of the High Court could then appropriately, assume jurisdiction and proceed to try the case, and there would be no delay at all.
On the objection raised by the counsel for the applicant at the trial court, against the continuous adjudication of the case by Justice Dzamefe, the latter confirmed he was referring the matter to the Chief Justice for direction, a decision which the applicants believed was odd, because the presiding was expected to confirm whether he had the Chief Justice's mandate to hear the case, which by the rules of criminal procedure, was to start afresh.
On November 26, 2010, during hearing of the case, the Presiding Judge invited counsel from bother parties to approach, where he informed counsel that the replaced juror had recovered, and took the view that the juror could be brought back for the trial to continue, as a partly heard case, to which Mr. Sory objected, the applicants claimed.
It was the view of the applicant that it had became mandatory for the Presiding Justice to deliver a ruling on the objection earlier raised by their counsel that had resulted in the Chief Justice directing that a decision be taken on the objection raised.
The applicants also stated that on December 7, 2010, when a ruling was expected to be given by the trial judge on the objection raised by their counsel, the trial judge, who had then been elevated to the Court of Appeal, reviewed his suggestion of November 26, 2010, and informed the parties to file a motion for an order that the replaced juror be brought back, which was opposed by their counsel.
The applicant further, was of the view that the presiding judge had no power to make orders in a case pending before the High Court, when he was not appointed by the Chief Justice to try a case in the High Court.
On December 8, 2010, the prosecution, in compliance with the Presiding Justice's order of December 7, 2010, filed a motion requesting the 'Court for an order directing that the' suit 'should continue, and not commence anew,' instead of first requesting for the replaced juror be brought back, the applicants noted.
The applicants further noted that Justice Dzamefe clearly displayed his bias, when he proceeded to question why they were still in military custody, when they had been ordered by the Tamale High Court, where they initially stood trial, to be placed in prison custody, and went ahead to order that he was confirming the earlier order that they should be placed in prison custody.