Justice Torkonoo to Tsikata: “I eat in your home, should I recuse myself as well?”

A justice of the Supreme Court, her ladyship, Justice Gertrude Torkonoo, took a swipe at lawyer Tsatsu Tsikata at the Supreme Court when he raised a preliminary objection demanding that Justice Clemence Hoyenugah, one of five Justices hearing the case brought by the Attorney General seeking to quash the decision of the Ho High Court recuse himself.

The Ho High Court earlier granted an interim injunction against the gazetting of the 2020 Hohoe Parliamentary election

Tsikata wanted Justice Clemence Hoyenugah to recuse himself from the panel because the said judge has a close, personal and intimate relationship with the member of Parliament-elect for the Hohoe Constituency.

Justice Torkonoo quizzed lawyer Tsatsu Tsikata whether or not she should also recuse herself from the case on the premise that she is friends with Tsikata and his family and has had several meals in his home over the years.

“I have had several meals in your house include kenkey and fish, so should I also recuse myself on the basis that I am friends with your family” Justice Getrude Torkonoo asked in open Court.

In his response, Tsikata simply said Justice Torkonoo’s example does not in any way relate to the facts he has presented to the Court praying that Justice Clemence Hoyenugah ought to recuse himself from hearing the substantive case before the Court.

Recusal of Panel Member

Before the Supreme Court invited the Deputy Attorney General for his oral arguments in the main case before the Court, lawyer for the interested parties, Tsatsu Tsikata, raised a preliminary objection against the inclusion of Justice Clemence Hoyenuga on the five-member Supreme Court panel duly constituted by the Chief Justice, Anin Yeboah, to adjudicate the matter.

The grounds for his objection is that Justice Clemence Hoyenugah has a long standing relationship with the Member-of-Parliament-elect for the Hohoe Constituency, John Peter Amewu and that his continued stay on the panel will result in a real likelihood of bias on the part of the Supreme Court judge for the benefit of the Energy Minister and Hohoe MP-elect.

Objection of AG

Godfred Yeboah Dame, the Deputy Attorney General in his opposition to the objection of Tsatsu Tsikata, told the court that the application was “totally baseless and without merit.”

He indicated further that Tsikata in his objection did not provide any evidence whatsoever and that the application was speculative and meant to delay the process of adjudicating the substantive case before the court.

The ruling of the Supreme Court on Objection

The five-member panel which also included Justice Samuel Marful-Sau, Justice Gertrude Torkornoo, Justice Clemence Hoyenugah and Justice Amadu Tanko, when it reconstituted after rising for about 30 minutes to consider the objection, dismissed the preliminary objection of Tsatsu Tsikata.

The court ruled that John Peter Amewu is not a party to the instant application even though he may be remotely affected by the decision of the court. To this end, whatever relationship that may exist between Justice Clemence Hoyenugah and John Peter Amewu “does not arise for consideration whatsoever.”

“There being no merit in the instant application therein, same is hereby dismissed,” Justice Yaw Appaw ruled.

The AG case as filed

The Attorney General on 29 of December 2020, filed a motion on notice at the Supreme Court praying the court to quash the decision of the Ho High Court that granted an interim injunction in an ex parte application by five applicants seeking to stop the Electoral Commission (EC) from gazetting the parliamentary results of the Hohoe Constituency in the 7th December 2020 Presidential and Parliamentary Elections.

Reliefs sought

The motion entitled “The Republic versus High Court, Ho, Ex parte, Attorney General (Applicant), Prof. Margaret Kweku, Simon Alan Opoku-Minta, John Kwame Obompeh, Godfred Koku Fofie, Felix Quarshie (Interested Parties)”, among others, is seeking an order of certiorari directed at the High Court, Ho, Volta Region, with Justice George Buadi presiding, to “bring into this Court for the purpose of being quashed the orders of the court dated 23 December, 2020 in Suit No. E12/40/2021 entitled “In the matter of an application under Article 33 of the Constitution, 1992 and order 67 of the High Court (Civil Procedure) Rules, 2004 (C.I.47) and the Inherent Jurisdiction of the High Court between Professor Margaret Kweku, Simon Alan Opoku-Mintah, John Kwame Obompeh, Godfried Koku Fofie, Felix Quarshie and the Electoral Commission, Wisdom Kofi Akpakli, John Peter Amewu and The Attorney-General”

Additionally, the Attorney General is also seeking an order prohibiting the High Court, Ho, Volta Region from further hearing or conducting proceedings in the said case.

It is the contention of the Attorney General that the orders of the Ho High Court dated 23rd December, 2020, constituted a “patent error on the face of the record to the extent that they purported to confer on the applicants (interested parties herein), non-existent voting rights in respect of the Hohoe Constituency in the Volta Region.”

The argument of the Attorney General

According to the Statement of Case filed by the Attorney General on behalf of the Member of Parliament-elect for the Hohoe Constituency, the facts of the case make it abundantly clear that the pursuit of the action filed by the interested parties at the High Court, Ho, is an attempt to enforce a non-existent right.

“The interested parties have already been told by this Honoruable Court that, to the extent that C. I. 95 places their traditional areas of Santrokofi, Akpafu, Likpe and Lolobi in the Hohoe Constituency, same is unconstitutional. CI 95 ought to be amended in order to place the said traditional areas in the Oti Region. They ceased to be part of the Hohoe Constituency in Volta Region immediately the Oti Region was created and they were put thereunder.

The alleged failure of the Electoral Commission to amend CI 95 to give effect to the boundaries of the new regions, does not mean that the interested parties together with the residents of the 4 areas, can continue to assert voting rights in the Hohoe Constituency. To do so will be inconsistent with Article 47(2) which prohibits a constituency from straddling two regions, and will create further constitutional chaos,” the Statement of Case noted.

“It is thus beyond doubt that the action at the High Court, Ho, is a palpable abuse of the process. The wrongful assumption of jurisdiction by Justice Buadi, was a serious error apparent on the face of the record. This court ought to exercise its supervisory jurisdiction to prevent a situation where the interested parties will, through the backdoor, surreptitiously seek to assert the right to vote in a manner which is constitutionally frowned upon.

The interested parties’ case is borne out of mischief and an attempt to judicially sanction an unconstitutionality. It is merely a vile attempt to upset the hard won electoral victory of the winner of the parliamentary election in Hohoe Constituency through an unjustified invocation of the court’s human rights jurisdiction,” the Attorney General further stated in his argument.

Background
On the 7 December, 2020, presidential and parliamentary elections were held throughout Ghana for the election of a President and Members of Ghana’s Parliament in 275 constituencies existing in the country.

The parliamentary election in the Hohoe Constituency in the Volta Region resulted in the due declaration by the Electoral Commission of John Peter Amewu (standing on the ticket of the New Patriotic Party) as the winner, having obtained 26,952 (55.18%) of the popular votes.

Subsequently, the results of the parliamentary elections nationwide were duly gazetted by the Electoral Commission on Tuesday, 22 December 2020.

However, on 23 December 2020, the interested parties mentioned above, led by the losing parliamentary candidate of the National Democratic Congress (NDC) in the Hohoe Constituency, invoked the jurisdiction of the High Court, Ho, under Article 33, claiming a violation of their human rights in the conduct of the Parliamentary Election in the Hohoe Constituency.