Opinion: ‘CJ $5m bribery allegation: Meritorious or counterintuitive?’ by Kwaku Agyeman-Budu

In the past few days, a member of the legal profession in response to a petition filed against him by a former client of his to the Disciplinary Committee of the General Legal Council, has ostensibly sought to implicate His Lordship the Chief Justice of the Republic of Ghana, Justice Kwasi Anin-Yeboah, in a Five Million Dollar ($5,000,000.00) bribery scandal.

It goes without saying that allegations of impropriety, bribery and/or corruption levelled against any public official must prima facie be taken seriously and thoroughly scrutinized and even investigated, regardless of the way and manner in which it is made.

Thus, when such an allegation is made against the Chief Justice of Ghana and is subsequently serialized on social and all other media platforms, it is imperative that the public discourse on the matter be guided by verifiable facts, devoid of political coloration.

As a matter of fact, our duty to the public as legal professionals includes providing public education and shaping the discourse on matters of national importance, especially those “adjudicated” upon in the infamous “court of public opinion”, that have a bearing on the law, the legal profession and the justice system generally.

This is what I seek to do after having perused the relevant court documents on the matter, all of which are available to the general public.

In order to fully appreciate the context within which the bribery allegation was made against His Lordship the Chief Justice, it is imperative that we understand the events that preceded it (i.e. the facts and other proceedings) in a chronological manner:

1. Ogyeedom Obranu Kwesi Atta VI v. Ghana Telecommunication Co. Ltd. & Lands Commission, is the ongoing case in question that has led to the allegation of bribery levelled against His Lordship the Chief Justice.
2. Ghana Telecommunication Co. Ltd., which is now Vodafone Ghana Ltd. (the first Defendant in this case), was originally granted the title to a piece of land situated at Gomoa Afransi in the Central Region by the Lands Commission (the second Defendant).
3. The Plaintiff, Ogyeedom Obranu Kwesi Atta VI issued a writ of summons against the two Defendants in the High Court, Swedru, for among other reliefs, the following:
4. a) A declaration of title to land;
5. b) An order for recovery of possession; and
6. c) Special damages for trespass and unlawful possession.
7. It was the Plaintiff’s assertion that the State had arbitrarily occupied a portion of his ancestral land without due process and the payment of compensation as required by the laws of Ghana; and that the land has subsequently been given to Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.).
8. The Lands Commission in its defence indicated that they had acquired the land on behalf of the State, originally for the purposes of Satellite Communication Research, and admitted granting a lease to Ghana Telecommunication Co. Ltd. because it was their belief that the land, which is the subject matter of the dispute, formed part of lands vested in the Government of Ghana by virtue of the Stool Lands (Efutu and Gomoa Ajumako) Instrument, 1961 (E.I. 206).
9. It was therefore the contention of Lands Commission that the allegation of the lack of due process in the acquisition of the land, the subject matter of the dispute, was false, and that compensation had also been duly paid to the Plaintiff’s predecessor in title, one Nana Obranu Gura II (the Plaintiff’s grandfather).
10. Whilst the case was ongoing, the Lands Commission however subsequently indicated that it had come to the realization that the land in dispute was not actually lands vested in the Government of Ghana, but was outside the scope of lands covered by E.I. 206, and that they were also unable to trace the evidence of the payment of compensation to the Plaintiff’s predecessor in title.
11. On the basis of these admissions by the Lands Commission, the High Court in Swedru granted judgment in favour of the Plaintiff, Ogyeedom Obranu Kwesi Atta VI, to the tune of about Sixteen Million United States Dollars ($16 million).
12. Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.), being dissatisfied with the judgment of the High Court in favour of the Plaintiff, appealed the decision in the Court of Appeal.
13. Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) also sought a stay of execution of the judgment of the High Court, and was granted a conditional stay of execution, by which they were required to pay about Four Million United States Dollars ($4 million) out of the judgment debt of Sixteen Million United States Dollars ($16 million).
14. Believing that this amount was onerous, Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) repeated their application for stay of execution, but the Court of Appeal dismissed the application.
15. On 11th June 2019, the Court of Appeal dismissed the appeal entirely, and affirmed the decision of the High Court.
16. Still dissatisfied with the outcome of the appeal, Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) filed another appeal, this time in the Supreme Court.
17. During the pendency of the appeal and upon the apparent discovery of new/fresh evidence, Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) subsequently applied to the Supreme Court for leave to adduce fresh evidence in the Appeal to demonstrate that the land, which is the subject matter of the dispute, was actually acquired by the Government of Ghana by Executive Instrument 86 (E.I. 86) of 7th June, 1969 pursuant to the State Lands Act of 1962 (Act 125), and that the Government of Ghana had as far back as 6th October 1969 paid compensation for the acquisition of the land to the Plaintiff’s predecessor in title, Nana Obranu Gura II (the Plaintiff’s grandfather).
18. Whilst this application for the adduction of fresh evidence was pending, Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) filed another application for stay of execution of the judgment, this time in the Supreme Court, on the back of the dismissal of their application for stay of execution by the Court of Appeal.
19. At this point, the President of the ordinary bench of the Supreme Court hearing this case, His Lordship Justice V.J.M. Dotse, wrote a memo to His Lordship the Chief Justice informing him of the case before the panel, that was likely to occasion a departure from a settled position of the law by the Supreme Court i.e. the granting of stay of executions.
20. It was further indicated that due to the fact that it was a very settled position of the law, any disturbance or departure from this ought not to be determined by an ordinary bench of five (5) Justices, but rather by an enhanced panel of seven (7) Justices, constituted by His Lordship the Chief Justice pursuant to his discretionary powers, so that the issue may be dealt with comprehensively in order to enrich our jurisprudence.
21. His Lordship the Chief Justice thus enhanced the panel from five (5) to seven (7), and included himself and thus presided.
22. For the avoidance of doubt, it is critical to note that until this point, His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah, was not part of the part of the Supreme Court panel adjudicating the matter.
23. That notwithstanding, by virtue of his position as Chief Justice, he presided over the panel in the hearing of the repeat application for stay of execution.
24. Thus, with the Chief Justice presiding, the Supreme Court granted Ghana Telecommunication Co. Ltd. (Vodafone Ghana’s) repeat application for stay of execution of the High Court Judgment, which had been affirmed by the Court of Appeal, thus departing from a settled position of the law.
25. As a result of the fact that the reliefs sought in the application for stay of execution included any other order or orders that the court may deem meet, a consequential order was then made by the Supreme Court presided over by the Chief Justice, that having regard to the application for stay of execution that had been granted and on the totality of the circumstances of the appeal, the Plaintiff should refund the part payment of the judgment debt that he had received from Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) i.e. Four Million United States Dollars ($4 million) into the Registry of the court (Kindly refer to point 10, above).
26. The application for the adduction of fresh evidence was also argued before the Supreme Court (also presided over by the Chief Justice), and the Supreme Court once again granted the application in favour of Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) (Refer to point 14, above).
27. It is important to also note that, the Plaintiff wrote a petition to the Chief Justice that he and Justice V.J.M. Dotse had essentially evinced prejudice in the case by prejudging some of the issues that the court had to consider, by reason of comments they had both made and thus should both recuse themselves.
28. This petition was dismissed as being unmeritorious.
29. The Plaintiff, then subsequently brought an application before the court also seeking leave to adduce fresh evidence to basically counter the fresh evidence which Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) had been granted leave to lead (Refer to point 23, above).
30. The basis of the Plaintiff’s application was that he wanted an opportunity to authenticate the signature of Nana Obranu Gura II (his grandfather and predecessor in title), by subjecting the evidence of Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) to forensic analysis i.e. whether the signatures on the alleged compensation receipts were authentic or were forgeries.
31. The majority of the court (4-1) granted the application in favour of the Plaintiff (Ogyeedom Obranu Kwesi Atta VI), thereby also giving him an opportunity to lead fresh evidence; and interestingly, it was only the Chief Justice who dissented.
32. For purposes of clarity and context, it is prudent to reproduce in part, the rationale for the Chief Justice’s dissenting opinion below:

“The Supreme Court, as the last appellate court, sparingly grants leave for adduction of fresh evidence on a second appeal. I think we must do so when the evidence raises serious issues of facts which the appellant has discovered. In the opinion of the majority, my respected brother has referred to the leading cases on this subject and it would be sheer pedantry for me to repeat same. I agree with his analysis of the law which is not in doubt at all. My concern is that this court in allowing the Respondent in this appeal, who has repeatedly been adjudged victorious based on the evidence he provided is seeking to adduce fresh evidence on second appeal. I think the rule under which the application was brought is intended purposely to assist an appellant who was unable to unearth very crucial evidence which could have been worthy of belief and probably decisive of the matter.

To allow a Respondent to a second appeal to adduce fresh evidence on the basis that the prospective exhibits to be relied on by the Appellant seeking to adduce fresh evidence are not authentic should not be a ground for the application. Adduction of fresh evidence entails evidence-in-chief and cross-examination of the party by the other counsel in the appeal. Counsel for the other side will certainly be allowed to also rebut the evidence as the normal trial court does. Justice demands parity of treatment and the Respondent in this appeal certainly will have the opportunity to challenge any evidence which may not be authentic. It would, however, be tantamount to reopening of the whole case on a second appeal to allow a party who on the strength of the evidence adduced at the trial court and affirmed at the Court of Appeal to call fresh evidence as if he was unable to prove his case.

An appeal is an application to an appellate court to ascertain whether the judgment of the lower court was in error. This explains why the Court of Appeal hear appeals by way of re-hearing and subject the whole evidence led to review to ascertain whether justice was done by the lower court in appropriate cases. The power conferred on appellate courts in adduction of fresh evidence is limited as appellate courts are bound by the record of proceedings from the lower court. If care is not taken, appellate courts will be opening the floodgates for such applications by Respondents to appeals pending for determination.

It is for the above reasons that I thought it prudent to dissent in this ruling.”

These are the facts and chronology of events that have led to the allegation of bribery made against His Lordship the Chief Justice of Ghana, Justice Kwasi Anin-Yeboah.

From the foregoing, we should be able to objectively make some reasonable inferences and deductions, as well as point out some incontrovertible facts, as follows:

1. a) Upon reviewing the pending applications by Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) (Kindly refer to points 14 & 15, above) i.e. the application for the adduction of fresh evidence on appeal and the repeat application for stay of execution, the Supreme Court panel was likely of the opinion that, on the basis of the evidence that had been made available to them (Executive Instrument 86 (E.I. 86) of 7th June, 1969 made pursuant to the State Lands Act of 1962 (Act 125), and the transactional documents indicating the payment of compensation for the acquisition of the land to the Plaintiff’s predecessor in title, Nana Obranu Gura II), if same were to be formally admitted into evidence and not rebutted, it was likely that the judgment of the High Court which had been affirmed on appeal by the Court of Appeal would be reversed by the Supreme Court.
2. b) Most importantly, it stands to reason that as a result of the real likelihood of the reversal of the judgment on the basis of the fresh evidence, if admitted and not rebutted, it was also highly possible that the repeat application for stay of execution of the judgment would be granted as a matter of course, contrary to the laid down principles of the court itself.
3. c) It was on the basis of this i.e. the likelihood of a change in the position of the law in relation to the grant of stay of executions that His Lordship Justice V.J.M. Dotse wrote the memo to the Chief Justice requesting an enhanced panel. This much is clear.
4. d) It is clear therefore that His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah, was not a member of the Supreme Court panel that was tasked with determining this case between Ogyeedom Obranu Kwesi Atta VI and Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) and the Lands Commission in the first instance.
5. e) It is also clear that His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah, on the basis of the memo from His Lordship Justice V.J.M. Dotse, empaneled himself as part of an enhanced panel of seven (7) Justices of the Supreme Court to determine a specific issue in relation to applications for stay of execution (Kindly refer to points 16 & 17, above).
6. f) It is further clear that His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah, presided over the panel that granted the application for stay of execution in favour of Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.), thus changing the position of the law on stay of executions in Ghana.
7. g) It is also important to note that His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah, presided over the Supreme Court panel that made a consequential order that the Plaintiff (Ogyeedom Obranu Kwesi Atta VI) pay into court, an amount of about Four Million United States Dollars ($4 million) which was part payment of the judgment debt that he (Ogyeedom Obranu Kwesi Atta VI) had received from Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.), pending the determination of the case.
8. h) Furthermore, it is abundantly clear that His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah, also presided over the panel that granted Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd’s.) application for the adduction of fresh evidence i.e. Executive Instrument 86 (E.I. 86) of 7th June, 1969 made pursuant to the State Lands Act of 1962 (Act 125), and the transactional documents indicating the payment of compensation for the acquisition of the land to the Plaintiff’s predecessor in title, Nana Obranu Gura II.
9. i) Finally, it is very clear and unmistakable that His Lordship the Chief Justice, Justice Kwasi Anin-Yeboah was however the only member of the Supreme Court panel that dissented in the ruling granting the Plaintiff, Ogyeedom Obranu Kwesi Atta VI, leave to adduce fresh evidence to contradict the fresh evidence that Ghana Telecommunication Co. Ltd. (Vodafone Ghana Ltd.) had been granted leave to adduce (Kindly refer to points 28 & 29, above).

Now that we have been able to make three (3) reasonable inferences and deductions i.e. points a, b and c, above, as well stating six (6) fundamental and incontrovertible facts i.e. points d, e, f, g, h and i, above, the question that we need to ask ourselves is this:

In the face of these, is the $5 million allegation levelled against the Chief Justice of Ghana plausible?

My humble opinion is that the allegation of bribery levelled against the Chief Justice of the Republic of Ghana, Justice Kwasi Anin-Yeboah, seems to be wholly counterintuitive, especially when viewed through the prism of the following facts, which are derived from both the bribery allegation and the facts of the case:

1. The Chief Justice of Ghana who has allegedly demanded an amount of $5 million from Ogyeedom as quid pro quo for the successful outcome of his case (out of which $500,000.00 has allegedly been paid to him) ordered a stay of execution of the judgment.
2. The Chief Justice of Ghana who has allegedly demanded an amount of $5 million from Ogyeedom as quid pro quo for the successful outcome of his case (out of which $500,000.00 has allegedly been paid to him), also made a consequential order that money (about $4 million) that Ogyeedom had already received should be paid into court by Ogyeedom pending the determination of the case.
3. Finally, the Chief Justice of Ghana who has allegedly demanded an amount of $5 million from Ogyeedom as quid pro quo for the successful outcome of his case (out of which $500,000.00 has allegedly been paid to him), was the only Justice of the Supreme Court on the panel that ruled against Ogyeedom on his application to adduce fresh evidence, without which the judgment granted to him by the High Court and affirmed by the Court of Appeal will likely be reversed by the Supreme Court.

As earlier indicated, any allegation of impropriety, bribery and/or corruption made against any public official including the Chief Justice of the Republic of Ghana must be taken seriously and thoroughly investigated by the appropriate authorities (and we await the official findings and conclusion on this matter).

But that notwithstanding, it is also imperative that the public discourse on the matter in the “court of public opinion” be guided by verifiable facts, devoid of political coloration, as has been set out in extenso in this piece (all of which may be verified from the records of this case at the Registry of the Supreme Court and available to the general public).

In conclusion, having regard to the events that preceded this allegation especially the proceedings thus far in the case of Ogyeedom Obranu Kwesi Atta VI v. Ghana Telecommunication Co. Ltd. & Lands Commission, the allegation of bribery against the Chief Justice of the Republic of Ghana does not seem to be a logical or meritorious one, as it is counterintuitive!