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ATTORNEY–GENERAL
vs.
SALLAH
[SUPREME COURT, ACCRA]
DATE: 17TH APRIL, 1970
COUNSEL:
N.Y.B. ADADE, ATTORNEY-GENERAL (WITH HIM DR. S.K. ASANTE, SOLICITOR-
GENERAL AND E.E. MENSAH, STATE ATTORNEY) FOR THE APPELLANT.
JOE REINDORF (WITH HIM J. B. QUASHIE-IDUN, E.K. AKYEA-DJAMSON AND
JAMES QUASHIE-IDUN) FOR THE RESPONDENT.
CORAM:
AMISSAH, SIRIBOE, JIAGGE, ANIN AND ACHAER JJ.A.

RULING

On 21 February 1970 certain office-holders received notification from the Presidential

Commission, acting in pursuance of the Constitution, 1969, Sched. I, s.9 (1), that their
services were no longer required. The respondent, formerly a manager of the G.N.T.C.,
was one such office-holder affected by the said section 9(1). He brought an action before
the Supreme Court for a declaration that on a proper interpretation of section 9(1) his
office fell outside the purview of the offices contemplated by the section and therefore
the Government was wrong in terminating his employment. The Attorney-General, as
the legal representative of the Government, was made the defendant to the action. It was
heard by a bench composed of Apaloo, Siriboe, Sowah, Anin and Archer JJ.A. on 16, 17
and 18 March. The court then adjourned to advise itself of its judgment [see 1970 C.C.48,
SC.]. On 24 March the Attorney-General filed the instant motion of notice asking that
Apaloo and Sowah JJ.A. be disqualified from sitting and taking part in the hearing of that
case. The objection against Apaloo and Sowah JJ.A. was based on close personal
friendship with respondent (which was variously described in affidavits filed in support
of the motion as “bosom” or intimate). It was alleged that the relationship between them
was so intimate that it would be difficult, if not impossible, for him to decide the case
impartially. In the case of Sowah J.A. it was alleged that he had more than a judicial
interest in the case in that after the action of the Presidential Commission, the half-sister
of Sowah J.A. a Mrs. Jonas approached him in tears and asked him to help her husband,
whose employment had been similarly terminated, to be re-instated and further that
Sowah J.A. had mentioned this request of his half-sister to the Minister of External
Affairs, Mr. Victor Owusu. It came out in the cross examination of the Attorney-General
by Mr. Quashie-Idum that as a result of information he received personally, in or around

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the court and in his office, and through the Solicitor-General, about the relationship
between Apaloo J.A. and the respondent and Sowah J.A. and Mrs. Jonas, the Attorney-
General contacted Azu Crabbe, Ag. C.J. The Acting Chief Justice said he would take a
cue from Asare v The State (no.2) (1968) C.C. 63, C.A. and re-constitute the court but some
days later he informed the Attorney-General that if his informants were willing to come
forward to substantiate their allegation, the Attorney-General could take up the matter
in open court; hence this application.

The Attorney-General under cross-examination admitted that he knew Sallah and

easily identified him on the first day Sallah’s case went to court. Siriboe J.A. explained
that he also knew Sallah.

Three witnesses gave evidence in support of the application. The first, Alhaji
Yakubu, was a one-time journalist of the dissolved Ghana Young Pioneers and now a
journalist with the Ghana News Agency. The second, Fatayi Briamah, also a Moslem, was
formally with the same Young Pioneers but now claims to be a transport owner in Accra.
They both testified that on 7 February 1970 they went to see off the pilgrims to Mecca and
on their return from the Airport at about 10 p.m. they went to dine to at the Hotel
Continental where they saw Apaloo J.A., the respondent and two other ladies dining
together at one table. They both said the plane departed at about 1 a.m. The third witness
was one Fleischer who had worked under the respondent both at the Kingsway Stores in
Kumasi and the G.N.T.C. in Accra. His evidence was that while working under the
respondent Apaloo J.A. and his wife used to visit the respondent at the Kingsway Stores
both in Kumasi and Accra and although he did not understand the language used in their
conversations, he alleged that they used to talk in very familiar tones. He stated further
that the respondent used to reserve goods for them.

Two witness were called to rebut the evidence in support of the application. One
of the witnesses, the duty officer of the Ghana Airways for the night of 7 February 1970,
stated inter alia in his evidence that the Haj flight to Mecca departed on schedule at 10
p.m. The second witness was a manager of the Hotel Continental restaurant who
deposed as to the closing time of the restaurant and the nature of the meals served that
night at the time when Alhaji Yakubu and his Moslem colleagues Fatayi Braimah
allegedly took their dinner.

The respondent, who admitted that he knew Apaloo J.A. in 1949 in London, stated
that Apaloo J.A. was his friend (but not an intimate or a bosom one) in whose house he
had attended two parties in 1965 and1966 respectively. He also admitted that Apaloo

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J.A. and Mrs. Apaloo used to visit him at the Kingsway Stores in Kumasi and the G.N.T.C.
in Accra and since he used to reserve goods for customers, he might have reserved some
for Apaloo J.A. He alleged further that he used to pay visits (which he described as
“social calls”) to Apaloo J.A. while he was in private practice but since he became a judge
in 1960 he had visited him only twice in 1965 and1966 and he now had no idea of where
the judge lived. He stated in his evidence also that he new Lassey J.A. very well and
described him as “good a friend as Justice Apaloo.” He declared also that he knew very
well Siriboe J.A. (who sat on both application and the substantive suit), the Attorney-
General and Mr. Victor Owusu, Minister of External Affairs. Mr. Victor Owusu
confirmed the respondent’s allegation about his relationship with him (Victor Owusu) in
an affidavit.

The course of this application was interrupted by preliminary objections and

arguments about procedure which involved, inter alia, the propriety of empanelling
entirely new judges to hear this application, giving viva voce evidence in support of the
application and the case for the respondent and the standard of proof required in such
applications.

Held, Siriboe J.A. dissenting: (1) the evidence showed that the Haj flight actually
departed on schedule at 10 p.m. an not 1 a.m. as alleged by the first two witnesses
for the applicant. Further, there were only two dinners for four people that
evening at the Hotel Continental restaurant, one of whom was paid for by a
resident of the hotel and the second through a charge account by a name which
was neither Apaloo nor Sallah. The order for the charge account contained pork
which no Moslem, not to mention an Alhaji or one who had just seen off a
pilgrimage to Mecca, would touch. The evidence of those two witnesses must
therefore be ejected as an “infamous invention.”
(2) In objections like the instant one, evidence is not often required because the
facts, which are often true, are uncontroverted. But where the facts are
controverted as in the instant application, they must be proved. The standard of
proof required should at least reach that required in civil cases.
(3) Although the evidence of Fleischer and the respondent afforded the court
some indication of the degree of friendship between Apaloo J.A. and the
respondent it did not establish that they were “intimate” or “bosom” friends. Mr.
Victor Owusu’s deposition showed that there was only a casual reference by
Sowah J.A. to the plight of Mr. Jonas in a conversation at a sporting club. The
evidence of the applicant was not sufficient to disqualify the judges from sitting

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on the case.
Per Siriboe J.A. dissenting: The effect of the evidence led in favour of the
applicant was that it confirmed the relationship between the respondent and
Apaloo J.A. and the case against Sowah J.A. sufficiently to ground an allegation of
bias for which the two judges could be disqualified from sitting in the substantive
case.
(4) The proper test to apply in applications like the instant one is “real likelihood
of bias.” But every allegation of bias must be looked at within the context of the
particular case in which it is made. What may lead to a real likelihood of bias in
one type of case may not have the same tendency in another. The original case
raised an issue involving the interpretation of the Constitution which had affected
the entire public service including the judiciary. It was not an ordinary litigation
involving two private citizens, one of whom was known to the judge and the other
not. Although Apaloo J.A. knew the respondent and was ordinarily friendly with
him, it would be wrong to assert that their relationship might influence the judge
in the performance of such a duty as the interpretation of the Constitution. If the
contention was upheld that if another person adversely affected who was
unknown to Apaloo J.A. was substituted for the respondent his judgment would
be different, that contention would involved an investigation into whether any of
the 568 persons affected was in any way friendly with or related to all the judges
asked to sit in court to interpret section 9(1). In view of the smallness of the
Ghanaian community in which every one of any consequence practically knows
every other such person, and the nature of our family set-up, the logical
consequence of such a contention would probably be that no judge would be
competent to sit on a case involving section 9(1). Dicta of Slade L.J. in R. v
Camborne Justices; ex p. Pearce [1955] 1 Q.B. 41 and of Dening L.J. in R. v Barnsely
Justices [1960] 2 Q.B. 167 approved and applied; Eckersley v Hersey Docks an Harbour
Board [1894] 2 Q.B. 667 at p. 670; R. v Justices of Country Cork [1910] 2 I.R. 271 and R.
v Sussex Justices; ex parte McCarthy [1924] 1.K.B. 256 at p. 259 considered; R. v Essex
Justices; ex parte Perkins [1927] 2 K.B. 475 at 490; Frome United Breweries Co. v Bath
Justices [1926] A.C. 586 at pp. 590-591; R. v Sunderland Justices [1901] 2 K.B. 357
and Cottle v Cottle [1939] 2 All E. R. 535 cited.
Per Siriboe J.A.: The test to be applied to this objection is what a reasonable litigant
would think if he gets to hear of matters such as have been alleged in this
application, such as the intimate relationship between his opponent and the judge
presiding over his case. A reasonable litigant would unhesitatingly form the

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impression that his case will not be given an unbiased hearing. This would
particularly to be so in our society where most litigants frown upon a mere
conversation between their own counsel and that of their opponents. Cottle v
Cottle (supra) applied.
Application dismissed.

Per Amissah J.A.: “Upon consideration, we reject this story as an infamous

invention. It is a matter for concern that on an issue as grave as this and in a case of such
importance when the reputation of a judge of the superior courts of the land is, in the
conditions of the country, bound to suffer in some measure, whatever lawyers might say
about the harmless nature of objections on the ground of bias, by a mere allegation
however baseless it is, no prior attempt seems to have been made to check this story
before it was given currency. It is even more disquieting when it is realized that the
allegation was made through one who has the whole investigating machinery of the State
at his disposal. Especially as the story was apparently first volunteered after objection
had already been raised to the propriety of the particular judge concerned continuing to
hear this important constitutional case.

When we dismiss, as we do, the story of these two dishonest and vicious rogues,
we are left on this point with the evidence of Fleischer, and the admission of the
respondent himself that he knew Justice Apaloo whose house he used to visit
occasionally before he became a judge, which was in July 1960, and that since Justice
Apaloo became a judge he, the respondent, had been to his house at Christmas 1965 and
in 1966 when Justice Apaloo threw a party on the release of a detained relative. Finally
there was the opinion volunteered by Mr. Victor Owusu, a Minister of State, that from
his knowledge of both Justice Apaloo and the respondent he would describe their
relationship as that of very close and intimate friends. We are bound to give the most
serious consideration and to pay respect to the opinion of a Minister, but we would have
wished for some factual statement of the basis of his opinion to enable us evaluate for
ourselves the degree of friendship in order to determine if it would give rise to that
likelihood of bias which the law should avoid. For the degree of relationship itself is in
dispute and evidence on it has occupied several days of this court’s time. Unfortunately
we had no such facts from the Minister.

Turning to Fleischer, it would be a sad day when we have to conclude that in the
conditions of this country because a stores manager reserves some commodity for a
customer, because that customer looks for and converses with the manager when he
comes to the store and in a language which the observer does not understand, because

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that customer calls that manager by his first name, they must be close intimate
friends. Fleischer’s evidence, however, and that of the respondent himself affords us an
indication of the degree of friendship between Justice Apaloo and the respondent. To say
that on the evidence the two are intimate friends or bosom friends is an abuse of language.
The question is whether the degree shown is such as to disqualify the judge from sitting
on the case before the court.

The original affidavit in support of the motion alleged on information and belief
that Justice Sowah had more than a judicial interest in the matter. In that, Justice Sowah
is a brother in-law of one Mr. Jonas, formally of the Lands Secretariat, who also affected
by the construction put by Government on section 9(1). According to the deponent ‘it is
reported’ that after the exercise Mrs. Jonas in tears went to see her brother, Justice Sowah,
and asked for his help to have her husband reinstated, and that Justice Sowah did in fact
mention this to a member of the Government. We appointed out that this was not
evidence but hearsay and that where the evidence was available there was no reason why
in a matter of this gravity, we should be treated on this as well on other allegations to
hearsay. To remedy this defect the substance of this story was subsequently repeated in
an affidavit by the Attorney General who again was relying on what had been told him
by ‘a prominent Minister of the Government.’ On the third day of the hearing of this
application the affidavit of Mr. Owusu earlier was produced…[In Mr. Victor Owusu’s
affidavit] there was no mention of the conditions in which the sister was when she came;
neither was there mention of Justice Sowah approaching the Minister with a view to
having Mr. Jonas reinstated…On the fact of Mr. Owusu‘s deposition, the case cannot be
put above a casual reference to Mr Jona’s plight made by Justice Sowah in conversation
in a sporting club with Mr. Owusu. That the direct evidence on the point falls so
markedly short of the hearsay gloss put on it must serve as a warning of the danger in
relying upon hearsay as a means of proof…

We have thought it necessary to go in some detail not the facts alleged as a basis
of this objection because we think it of importance that such allegations when made must
substance in them. It would be wholly wrong for a party to be allowed to raise objections
to a judge based on allegations without foundation. It would equally be wrong if he were
to be allowed to exaggerate in order to give a better appearance to his objection than it
would otherwise have. Because to yield to that would mean to give the power to a party
to choose, by a process of elimination through objections, his own judge for his own
cause. And that would be fatal to the cause of justice. In the course of this motion, the
learned Attorney-General had argued that when allegations are made in support of an
objection of this nature, a much lower standard of proof is required than that of proof

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beyond reasonable doubt as in criminal cases or proof on a balance of probabilities as in

civil cases. We reject that contention. The Attorney-General, in the first place was unable
to tell us what that standard should be: Should it be mere allegation without proof or
should the allegation be judged by some standard, and if the latter, what is that standard?
It is true that often on these objections, no evidence is required. But that is because the
facts alleged are not controverted. And the facts are uncontroverted only because they
are true and not open to challenge. But it is not unknown for such facts to be challenged
and when so challenged, as they are in this instance, they ought to be proved. We do not
think that in that case there is any justification for lowering the standard of proof. If that
is done the courts would be laying themselves open to the danger we spoke of before,
namely, of giving the party the right to choose his own judge. We do not think that the
courts should be reduced to the position in which parties before them may assume the
competence of judges to decide in their favour but their incompetence to decide against
them. And that is why the allegations of fact when challenged must be proved. And we
think that proof should reach at least that standard which is required in civil cases…

…We are of the view that the ‘real likelihood of bias’ is the proper test to apply in
these cases and we adopt that test. And indeed the Attorney-General eventually
conceded that this should be the test. What then are the circumstances in this case? The
substantive matter before the court is not some ordinary litigation between two private
citizens, one of whom is known to the judge and the other not. Or that one of the parties
is related to the judge and the other not. It is a constitutional issue between the
Government of the country, to which all judges of the realm owe allegiance and from
which they derive their appointment on the one hand and a citizen. The issue is not one
in which the credibility of one side as against the other is relevant. The operative facts are
not in dispute. It is substantially and without question one of a pure interpretation of the
Constitution which we all judges have sworn to uphold. Government has put a certain
interpretation on a provision in the Constitution and on that basis exercised its powers.
On that interpretation all public officers, judges, civil servants, police and military
personnel - public officers of every kind were affected. It is true that the exercise of the
power on the basis of the interpretation which Government favoured adversely affected
affected 568 persons. But can it be said that because of the smallness of the number of
those adversely affected in comparison with the whole public services whose
appointments, according to Government, fell for review under the article of the
constitution, that the matter in issue should therefore be made comparable to some
private litigation in which bias might be created from the fact that one of the litigants is
personally known or related to the judge and the other not, and therefore there was the
likelihood that the judge might make the cause of this friend or relation his?

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…We have been told in this application that one of the judges hearing the case,
namely, Justice Apaloo, is a close and intimate friend or a bosom friend of the plaintiff,
Sallah. The evidence adduced does not support this allegation of intimacy. We have no
doubt that the judge knows the plaintiff and is ordinarily friendly with him. It is said that
their relationship might influence the judge in the performance of a duty of such gravity
as the interpretation of this Constitution from which we all derive our protection. On this
basis is it the claim that if another person equally adversely affected, but a total stranger
to the judge, were to have been plaintiff, Justice Apaloo’s interpretation of the
Constitution of the land might well be different? If that is not the contention, then where
is the case of bias? And if, on the other hand, that is the claim put forward would this
not involve an inquisition into whether any of the 568 persons affected is in any way
friendly or related to all the judges, asked to sit on the court to interpret this provision?
And would it not then be proper in this exercise to consider friendships and family
relationships amongst the judges and members of the Government? Would this not be a
countervailing factor? Ghana is, in a manner of speaking, a small community where
everyone of any consequence practically knows every other such person. This
phenomenon is even more marked amongst public servants of a certain seniority. And
our family system is such, that if the argument put forward by Government in this
application is carried to its logical conclusion there would probably be no judge
competent to sit on article 9 of the Transitional Provisions. This point is brought into
sharper focus by justice Sowah’s case. The evidence from Mr. Owusu is that Justice Sowah
merely spoke to him of his (Justice Sowah’s) brother-in–law, who is no a party to the
action before the court and not shown to be contemplating any action on lines similar to
Sallah’s or even to be disputing the Government’s interpretation of the Constitution. The
learned Attorney-General at first contended that the relationship spoken of would not by
itself have been sufficient to disqualify Justice Sowah; he ought to be shown to have taken
a step to implement the request of his sister. That was the decisive factor in determining
that there was a real likelihood of bias. And, according to the Attorney-General there was
evidence that Justice Sowah did so. When it was pointed out that the evidence did not
justify such an interpretation, Justice Sowah’s case was put on another leg, namely, that
as Jonas would benefit without taking any action at all from the decision in Sallah’s case,
then Jonas has an interest in the case, and presumably Jonas’s interest becomes the
interest of his brother-in-law, the judge.

How many people in Ghana are to benefit from the decision whichever way it
goes, in this case? And is every judge who knows every such person to be disqualified?
In a way, this is a case in which one can safely say that every single Ghanaian has an
interest. For we all have an interest in the proper interpretation of the Constitution for

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our country. The Constitution so recently promulgated has been a subject of keen public
debate. The judges upon whom it conferred the solemn and onerous duty of saying what
the Constitution-makers have provided for are now called upon to interpret a provision.
It is suggested that personal relations of the sort indicated in this application presents a
real likelihood of their saying that the Constitution means something other than it in fact
does. We are not persuaded by that argument.

If it is the case of the learned Attorney-General as seems to be suggested by the

affidavit of Mr. Mensah ‘that talk and gossip of the relationships’ described ‘are assuming
scandalous proportions, and appear to be undermining public confidence in the
independence and impartiality of the judiciary,’ we have already indicated our opinion
that in a matter of this nature idle talk and gossip cannot be the measure of the
dependence or independence of the judiciary. But further, in a society where it is
generally recognized by all right-thinking people that rumour-mongering ought to be
stamped out, and ought to be stamped out rigorously, the least the judiciary can do is to
refuse to be deflected from what they believe to be their duty by whatever goes by the
description of ‘talk and gossip’...

…There is one more point we wish to turn to. A large part of the affidavit of the
Attorney-General dealt with discussions he had in chambers with the Acting Chief
Justice. And it seems that this application was delayed because the Acting Chief Justice
had given an assurance that he would at the time and upon the information passed on to
him by the Attorney-General re-constitute the court to re-hear the case and at a later date
he told the Attorney–General that he had changed his mind and he invited the Attorney-
General to move the court publicly on the matter if his informants were prepared to come
forward to substantiate their allegations. We are not here ruling on whether the Acting
Chief Justice did say these things or not. But even if he said so, we find it difficult to see
how he could have re-constituted a court which had already finished with the hearing of
a case, bar the delivery of its judgment without giving some public and convincing
explanation of the necessity and the right of his doing so. And when all is said and done,
it s a matter for regret that this objection which could have been disposed of quickly and
without embarrassment took the course described by the Attorney-General...”

Per Siriboe J.A.: “After considering the various affidavits and the oral testimonies
given by both sides, I hold the same view [with the Attorney-General that the cumulative
effect of the evidence confirmed the relationship between Apaloo J.A. and the
respondent], that on the plaintiff’s own showing and the uncontroverted affidavit of Mr.
Victor Owusu, there is sufficient evidence before the court in support of the applicant’s

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assertion of close personal friendship between the plaintiff and the learned judge
(Apaloo).

I regret I can make no exception in respect of Mr. Justice Sowah too, since what
has been said both orally and in the affidavits supporting the objection taken against him,
stood uncontroverted in anyway. It will be recalled that he is alleged to have mentioned
to Mr. Victor Owusu, what his Mr. Justice Sowah’s sister told him concerning her
husband Mr. Jonas… The question which arises then is, whether or not all this would be
sufficient in law to constitute a ground of basis, for disqualifying the two judges from
participating in the hearing and determination of the substantive case between the
parties. For the applicant, the answer to the question posed, is Yes! and No! for the
respondent…

…As I understand the submissions of the learned Attorney-General, the objection

taken is not to be viewed from the judge’s angle, but from the litigant’s who has raised
the objection.

What would a reasonable litigant think if he gets to hear of matters such as have
been alleged in this motion, for example that there is intimate relationship between his
opponent and the judge presiding over their cases? There is no doubt that he will, without
the slightest hesitation, form the impression that his case would not be given an unbiased
hearing. This is particularly so, in our society, where most litigants frown upon mere
conversation between counsel retained by them and others for the opposite side. It is in
this light that I have considered the motion before us, notwithstanding the fact that the
defendant in the case is the Governments of the country, for after all, Governments are
formed by or composed of human beings…

…There is this bit I must add, and that is, it follows from the conclusion I have
reached in this motion that I consider myself unable to continue with the original panel
selected to hear the substantive case, not unmindful of the stage it has no for reached.”

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