High Court position on judicial review application by Chief Justice a dangerously untenable position? Or evidence of coming dark clouds?

⁸On 31 July 2025, the last day of the 2024/2025 legal year, the High Court dismissed an application for judicial review of the proceedings of the Justice Pwamang chaired article 146 Committee. It was filed by the Chief Justice (CJ) of the Republic, Justice Gertrude Araba Esaaba Sackey Torkornoo on 9 June 2025, seeking nine reliefs from the court. The two premises for dismissing the application were that:

Four of the reliefs sought by the Chief Justice were currently pending before the Supreme Court and to that end, the Chief Justice’s action constitutes an abuse of court processes and same must be strike out.

Three of the reliefs alleged violations of the rights of the Chief Justice before the Article 146 Committee. The High Court said it had no jurisdiction to entertain the same since it is an in-camera hearing, and that the High Court cannot be called upon to interpret Article 146 (8) of the 1992 Constitution.

Both of these positions call for concern by watching citizens. And this is why.

A review of previous cases that involved the removal from office of Justices of the Superior Courts of Judicature from 2014 to 2019 provides evidence that during the pendency of proceedings before Article 146 committees, the High Court heard actions instituted by the affected judges and made pronouncements on the cases. Other actions were also referred to the Supreme Court by the High Court for interpretation of relevant constitutional provisions, and the Supreme Court interpreted the provisions for application by the High Court.

Among these cases is (1) Justice Fred Kwasi Awuah versus The Chief Justice and Attorney General, which was finally determined by a 7-member Supreme Court panel on 19 December 2019. The panel included Justices Anin Yeboah (presiding), Baffoe-Bonnie, Alfred Benin, Gabriel Pwamang, Samuel Marful-Sau, Agnes Dordzie, and Professor Ashie Kortey.

Other notable cases include (2) Justice Kwame Ansu-Gyeabour (rtd) versus the Chief Justice and the Attorney General, (3) His Lordship Justice Paul Uuter Dery, His Lordship Justice Gilbert Ayisi Addo versus the Judicial Council, the Chief Justice, and the Attorney General. (4) Justice Mustapha Habib Logoh, Justice Paul Uuter Dery, Justice Gilbert Ayisi Addo versus Tiger Eye Pi, the Chief Justice, and the Attorney General, (5) Justice Frank Kwadwo Amoah plaintiff versus the Attorney General, and (6) Justice Edward Boateng Versus the Judicial Secretary, the Judicial Service, and the Attorney-General, are determined cases worthy of note.

A reading of the decisions in these cases reveals that on grounds of issues the Judges took with Article 146 proceedings, and while the Article 146 Committee hearings were pending, the affected judges invoked the supervisory jurisdiction of the High Court through applications for judicial review to correct legal anomalies, and their cases were heard by the High Court up to the Supreme Court. Some of the actions were also started by writs that travelled up on appeal. None of the cases filed by the embattled judges were rejected because the committee hearings were in-camera hearings, thereby barring the High Court from hearing the same, bearing in mind that it is the High Court that has supervisory jurisdiction over an administrative and quasi judicial tribunal such as an article 146 Committee, under article 141 of the 1992 Constitution

It should also be noted that the fact that one court has jurisdiction over an aspect of a case does not stop another court with jurisdiction on another aspect of the same case from doing its work. If there are reliefs seeking interpretation of constitutional provisions before the Supreme Court, how can that constitute an abuse of the Supreme Court’s work if an application for judicial review of proceedings is taken to the High Cour?. Such has been the precedent in the courts of the country, and the recent decision of the High Court is a sharp departure from the long-held positions that we know, and the various jurisdictions created by the 1992 Constitution and the Courts Act.

The CJ’s action was filed against seven respondents. They are, first, the Article 146 committee set up to hear petitions against the Chief Justice; second, Justice Gabriel Scott Pwamang (chairman of the committee), Justice Samuel Kwame Adibu-Asiedu, Daniel Yao Domelovo, Major Flora Bazwaanura Dalugo, Professor James Safah Dzisah (members of the committee), and lastly, the Attorney General of the Republic.

Among the reliefs the Chief Justice was seeking were first, “a declaration that the proceedings of 15 May 2025 held by the Respondents in connection with the petitions for removal of the Chief Justice were a nullity as they violated the right of the Applicant (CJ) to be heard and to be represented by counsel pursuant to article 282 of the 1992 Constitution;

Second, “a declaration that to the extent that the Registry of the Respondent has failed to provide to the parties authenticated copies of the Petitions and Answers of the parties to establish the authenticated Petitions and Answers for the inquiry that the Respondent was set up to conduct, the Respondent is proceeding in arbitrary, capricious and unreasonable manner that violate Articles 23 and 296 of the Constitution and all proceedings conducted by the Respondent are therefore rendered void and a nullity.

Third, “an order of Prohibition, prohibiting the Respondents from undertaking any proceedings, without the Registry of the Respondent providing copies of the Petitions and Answers referred to the Respondents by the President to the Parties to establish the authenticated copies of the Petitions and Answers.

Fourth, “a declaration that the proceedings of the Respondents including the proceedings held on 15, 22, 23, 26 and 30 May 2025 were held in breach of Articles 23, 146, 280, 295 of the 1992 Constitution, and Order 2 Rule 2, Order 2 Rule 7, Order 7 rule 3 (1), Order 32, Order 34 Rule 2 (2) of the High Court (Civil Procedure) Rules 2004 CI 47 and are therefore void and a nullity.

Fifth, “a declaration that the proceedings of the Respondent, to the extent that it is being conducted as adversarial litigation without authenticated Petitions and Answers filed in the Registry of the Respondent, or issues settled by the Respondent, constitute a violation of the spirit and letter of Order 2 Rule 2, Order 2 Rule 7, Order 7 rule 3 (1), Order 32, Order 34 Rule 2 (2) High Court (Civil Procedure) Rules 2004 CI 47 and article 23 and 296 of the 1992 Constitution and are therefore null and void.

Sixth, “a declaration that the proceedings of the Respondent, to the extent that it is being conducted as adversarial litigation instead of a full, faithful and impartial inquiry into authenticated Petitions and Responses issued from the Registry of the Respondent, constitute a violation of Article 23, article 296, Article 146 (3), 146(7), 280 (1) and article 295 of the Constitution and are therefore a nullity and void.

Seventh, “a declaration that the Respondents are not adequately and lawfully constituted under article 156 (1) and thereby all proceedings undertaken or made before the Respondents are wrongful, illegal, unconstitutional, and void.

Eighth, “an order bringing up into this court for the purpose of quashing and accordingly quashing, all the proceedings undertaken before the Respondents, and lastly, “any other order as to this Court will seem fit.”

The Chief Justice’s action also provided four grounds for the application she filed. One was that the Respondents are not properly and legally constituted under Article 156 to conduct the quasi-judicial proceedings required of an Article 146 Committee.”

Two, “that the Respondents violated the “Audi Alteram Partem” rule of natural justice and article 282 of the 1992 Constitution on 15 May 2025, and further acted arbitrarily, unreasonably, and capriciously in violation of article 23 and article 296 of the 1992 Constitution, leading to the conduct of void proceedings on that date.”

Three, that the Respondents have, ‘by failing to provide to the parties the Petition, Answer, and Prima Facie determination that are to form the basis for the enquiry, violated all constitutional requirements for the conduct of a full, impartial enquiry into their alleged terms of reference, thereby rendering the proceedings they are conducting null and void.”

Four, “that the Respondents have, by choosing to regulate the proceedings affecting the Applicant as adversarial litigation between the parties and subject to the High Court (Civil Procedure) Rules 2004, CI 47, without first serving on the parties, authenticated pleadings that are to form the basis for the adversarial litigation, have violated all requirements for the conduct of adversarial litigation, thereby rendering the proceedings they are conducting null and void.”

The high court in its ruling pointed out that reliefs two, four, seven, as well as grounds one, three, and four are matters that have either been dealt (but have they? One only needs to examine the application for injunction that came before the Supreme Court to see the distinctions between the reliefs sought there, and the reliefs sought by certiorari that came to the high court); or are currently pending before the Supreme Court and to that end, the Chief Justice’s action constitutes an abuse of court processes and same must be strike out.

On the reliefs alleging violations of the rights of the Chief Justice before the Article 146 Committee, the High Court said it had no jurisdiction to entertain the same since it is an in-camera hearing, and that the High Court cannot be called upon to interpret Article 146 (8) of the 1992 Constitution. But the Constitution provides for the High court to refer issues of constitutional interpretation to the Supreme Court.

Again, divorce cases, juvenile cases and several other matters are constantly heard in camera. How does a court with supervisory jurisdiction lose its jurisdiction because a case is being heard in camera? What will happen to proceedings before a family tribunal that goes wrong, if the high court loses its supervisory jurisdiction because the adoption or maintenance case is being heard in camera?

Justice Fred Kwasi Awuah, while he was before an Article 146 Committee set up by the Chief Justice to probe a petition against him, filed an action claiming that the Chief Justice cannot suspend a Justice of the superior court who appears before an impeachment committee set up under Article 146 for the removal of the judge from office.

The Supreme Court, among others, held that “the decision to petition the President against the plaintiff (Justice Kwasi Awuah) was taken by the Judicial Council. The Chief Justice is the Chairperson of the Judicial Council, by Article 153(a) of the Constitution.

“Thus, the petition submitted by the Chief Justice on behalf of the Judicial Council was in her capacity as Chairperson of the Council; it was not a personal act. Then the setting up of the impeachment committee is also mandated by Article 146(4) of the Constitution.

“It was also not a personal act. The decision to suspend the plaintiff was taken by the President under Article 146(10)(b); the Chief Justice carried out the decision as directed by the President. In none of these actions could the Chief Justice be said to have done anything that suggests personal interest.

“The Chief Justice was not the plaintiff’s accuser, and was not said to have any interest in the accusation beyond following due process in investigating it. There is thus no merit in this issue, and we find no merit in any of the matters set down. Consequently, none of the reliefs sought can be granted by the court. As a result, the action entirely fails,” the Supreme Court judgment read in part.

The position taken by the High Court in the case of the Chief Justice versus the Article 146 Committee and six others at a time when the Chief Justice is before a committee probing petitions for the removal of the Chief Justice is not only troubling, but also a dangerous precedent that must cause fear on what could happen to other Judges and Commissioners who may have to contend with broken procedures in other 146 Committee hearings after this.

Justice Akamba’s lead opinion in the case of Justice Mustapha Habib Logoh, Justice Paul Uuter Dery, Justice Gilbert Ayisi Addo versus Tiger Eye Pi, the Chief Justice, and the Attorney General he stated as follows;

“In so concluding, it is apparent that the Plaintiffs are looking to the form of the document rather than its intent. Such a position is obviously contrary to the legal maxim that holds that “the intention of the person is the soul of the instrument” (Animus hominis est anima scripti). Also, that “words are indications of the intention” (Verba sunt indices animi).”

Is the recent High Court decision in the application by the sitting Chief Justice of the Republic indications of obvious intentions? Are the intentions the soul of the instrument written here? The answers to these questions are critical for the future jurisprudence and direction of the democracy of Mother Ghana.