BENJAMIN Y. OSEI VS AG (H1/83/23) [2023] GHACA 137 (22 June 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA-AD 2023 CORAM: S. DZAMEFE JA (PRESIDING) E. ANKAMAH JA C. ARCHER JA SUIT NO: H1/83/2023 DATE: 22ND JUNE, 2023 BENJAMIN YAW OSEI … PLAINTIFF/APPELLANT VRS. THE ATTORNEY-GENERAL … DEFENDANT/RESPONDENT JUDGMENT E. ANKAMAH JA 1 The antecedents to this appeal are very captivating and the same will be highlighted in order to appreciate the final decision of this Court. For purposes of simplification, the Plaintiff/Appellant shall simply be referred to as “the Appellant” and the Defendant/Respondent shall simply be referred to as the “Respondent”. The Appellant was a Circuit Court judge until he was formally removed from office by Her Ladyship the Chief Justice in a letter dated 7th December, 2015. This was a result of a Disciplinary Committee inquiry by the Judicial Service to ascertain allegations of bribery and misconduct levelled against the Appellant in a petition by Tigereye P.I. represented by Anas Aremeyaw Anas. According to the Appellant on 4th September, 2015, he received a query letter titled ‘Allegation of Bribery’ from the Judicial Secretary requesting the Appellant to answer to those allegations against him by Tigereye P.I. during his tenure as a Circuit Court judge. These allegations were that the Appellant as a Circuit Court judge presiding over the criminal case of Republic Vrs Kwaku Boakye was given an amount of Ghc500 and Ghc400 on various occasions in his chambers and at his private residence in Kumasi to influence him to acquit and discharge the Accused person, i.e., Kwaku Boakye. It was also alleged that the Appellant did indeed acquit and discharge the accused person as agreed upon. The query letter contained an invitation for the Appellant to appear before a fact-finding Committee established by the Judicial Service to inquire into those allegations. While the Appellant was yet to respond to the query letter, he received another letter from the Judicial Secretary dated 4th September, 2015 with the heading “SUSPENSION FROM DUTY” in which the Appellant was suspended from duty. In the said letter of suspension, 2 it was stated that the decision was arrived at after “Management has considered your response, and finds it necessary to do so”. It is to be reiterated that the Appellant by then had not submitted any response to the query letter he received on 4th September, 2015. In a response letter dated 8th September, 2015, the Appellant denied the issues in the query letter. In the Appellant’s response, he stated that the Accused person was convicted of stealing and sentenced to prison custody for one year. He submitted to the Disciplinary Committee copies of the charge sheet, the judgment and the commitment warrant in Republic Vrs. Kwaku Boakye to confirm the conviction and sentencing. Eventually, the Appellant appeared before the Disciplinary Committee for the inquiry to be conducted. Ultimately, the findings of the Disciplinary Committee culminated in the removal of the Appellant as a Circuit Court judge by the Chief Justice on 7th December, 2015 without receiving any accrued benefits. The Appellant was displeased with his removal from office and sought to challenge the entire work and decision of the Disciplinary Committee of the Judicial Service and that of the Chief Justice respectively, by commencing an action in the High Court for the following reliefs: a. A declaration that the removal of Plaintiff from office as a Circuit Court Judge was wrongful as there was no evidence per the audiovisual compact disc or at all that established the allegation that he was given an amount of GH& 500.00 and on another occasion GHc400.00 in the matter of the Republic Vrs Kwaku Boakye in his chambers and at his residence, Kumasi respectively to influence him to find the accused not guilty. b. A further declaration that the Plaintiff's removal from office on the allegation that he acquitted and discharged Kwaku Boakye (Accused) based on bribery is wrongful as he on 3 the contrary convicted and sentenced the accused Kwaku Boakye to one year imprisonment with hard labour and further ordered the GHc360.00 realized from the sale of the stolen Palm fruits by the accused to be restored to the Complainants by the Registry of the court. c. A further declaration again that the rules of natural justice was breached when the Plaintiff was removed from office on the basis of a finding of ex-parte discussion when he was never charged with any such offence. d. Another declaration that the 2nd Defendant never received any petition from the said Tigereye P.I. which at all material time of its alleged reception of an investigation report did not exist in law as a person and therefore the claim of 2nd Defendant receiving an investigation report in the letter dated 4™ September, 2015 is false. e. A declaration that the removal of the Plaintiff based upon the Disciplinary Committee's report of the 2nd Defendant is wrongful as no such report existed at the time of the removal of the Plaintiff and or was bereft of any justifiable evidence that the Plaintiff was given an amount of GHc500.00 and GHc400.00 on separate occasions respectively in the case of the Republic Vrs Kwaku Boakye. f. A declaration further that the 1 Defendant had no right to remove the Plaintiff from office as a Circuit Court Judge without benefit as same is not supported by any law and hence wrongful. g. Another declaration that the Plaintiff was entitled to a copy of the said investigation report of Tigereye P.I assuming without admitting that the alleged entity existed at law and the conduct of the Ist and 2nd Defendants in not providing the Plaintiff with a copy of the said Report breached the rules of natural justice. h. A declaration that the rules of natural justice to fair hearing was breached in relation to Plaintiff when he was suspended on that selfsame 4th September, 2015 when he the Plaintiff had not yet received or responded to the allegations of bribery contained in another 4 separate letter of 4th September, 2015 whilst the 2nd Defendant claimed that the suspension was on the basis of the Plaintiff's response. i. i. An order of court reversing Plaintiff's removal from office. j. An order of court upon the 1st and 2nd Defendants to reinstate the Plaint to office as a Circuit Court Judge. k. A further order of court upon the 1st and 2nd Defendants to pay Plaintiff all his benefits or entitlement in full that he had forfeited as a result of his removal. l. Any other order(s) the court may deem fit. The Respondent with the leave of the trial Court filed a statement of defence which essentially denied the Appellant’s claims, however, there was an admission on the claim that the Disciplinary Committee received the charge sheet, judgment and committal warrant in Republic Vrs. Kwaku Boakye. The action proceeded to trial and the judge found against the Appellant and dismissed all his reliefs. The High Court judge after considering the evidence presented at trial essentially made the following findings which have been paraphrased: 1. The Appellant received money from the Petitioner in his private residence, expressed his gratitude and promised to collaborate with Petitioner and assist him if he approached him again 2. The Disciplinary Committee failed to make a finding of fact on the outcome of Republic Vrs. Kwaku Boakye despite the fact that the Accused was convicted and sentenced. 3. It was inconsequential that despite receiving the monies from the Petitioner, the Appellant actually convicted and sentenced the Accused. 5 4. The Appellant engaged in ex-parte communication contrary to the code of conduct of Judges and Magistrates 5. There were no violations of the principle of natural justice in the invitation, the proceedings and the conduct of the investigation carried out by the Disciplinary Committee of the Judicial Council It was a result of the dissatisfaction with the final judgment of the High Court dated 25th day of June, 2022, that the Appellant invoked the jurisdiction of this Court by a Notice of Appeal dated 21st July, 2022, on the following grounds: i. The finding of the trial High Court Judge that the Defendant/Respondent proved issues 1,2, & 3 of the issues for trial is not supported by the admission of the Defendant in Paragraphs 5 to 8 of the statement of defence or any evidence on record. ii. The finding of the trial High Court Judge that the plaintiff/Appellant was unable to prove issues 4, 6, 8, 9 & 10 on a scale of preponderance of probabilities was wrong, perverse and unjustified. iii. The trial High Court Judge erred in law when he failed to consider the breaches of natural justice apparent in the face of the record. iv. The judgement of the trial High Court is against the weight of evidence. v. The trial judge erred in law by finding that there had been ex parte communication without establishing which case was in issue and whether or not the said case was pending at the material time the said ex parte communication had taken place. vi. Further ground(s) of appeal will be filed upon receipt of the Record of Proceedings Although, the Appellants indicated that further grounds will be filed upon receipt of the full records, none was filed. 6 A cursory revision of the duty of this Court in exercising its appellate jurisdiction emphasizes that an appeal is by way of rehearing and rehearing means having a look at and taking into consideration all the relevant evidence on record. The appellate court, so far as appeals are concerned, is virtually in the same position as if the rehearing were the original hearing and may review the whole case and not merely the points as to which the appeal was brought. Tuakwa v Bosom [2001-2002] SCGLR 61 The authorities are replete in describing the powers of an appellate Court of first instance. An appellate court is required to review the whole evidence on the record of appeal and come to its own conclusion whether the findings both of law and facts by the court below were properly made. Where the appellate court concludes that the findings of fact by the court below are not supported by the evidence on the record or where the findings are perverse, then it may set those findings aside. Another ground on which an appellate court will set aside findings and conclusions arrived at by a lower court is where the findings and conclusions are based on a wrong proposition of law. See the cases of Achoro and anor V. Akanfela [1996-97] SCGLR 209 and Koglex ltd (NO.2) V. Field [2000] SCGLR 175. The first ground of appeal shall be considered by this Court. The Appellant posits that the High Court judge erred by holding that the Respondent proved issues 1,2 and 3 although the same was “not supported by the admission of the Defendant in Paragraphs 5 to 8 of the statement of defence or any evidence on record.” Issues 1, 2 and 3 which were set down by the Court below were as follows: 1. Whether the Plaintiff was given an amount of Ghc500.00 in his chambers and Ghc400 in his private residence in the matter of the Republic v Kwaku Boakye? 7 2. Whether the Plaintiff was influenced by the alleged amount of Ghc500.00 and Ghc400.00 to find the Accused not guilty? 3. Whether the Plaintiff acquitted and discharged the accused Counsel for the Appellant contends that Exhibit 1 which was the letter by the Judicial Secretary containing allegations by Tigereye P.I. against the Appellant alleged that in the case of Republic Vrs. Kwaku Boakye the Appellant acquitted and discharged the Kwaku Boakye due to an influence of bribery. In other words, after the Appellant had allegedly received sums of monies from the Petitioner (Anas Aremeyaw Anas) there was an agreement between them for the Appellant to acquit and discharge the Accused person (Kwaku Boakye) and the Appellant did in fact comply. However, the contrary was done by the Appellant. There was no such acquittal and discharge as alleged in Exhibit 1 and the Appellant provided certified copies of the charge sheet, the judgment and the committal warrant affecting the Accused person in Republic Vrs. Kwaku Boakye to the Disciplinary Committee of the Judicial Service (see Exhibits C, D & E on pages 85 – 92 of ROA). This claim was admitted by the Respondent hence the Appellant, therefore, submitted that the High Court judge committed an error by holding that issue (3) was proved by the Respondent to the effect that the Accused was discharged. On the other hand, the Respondent contends that the judge was right to have considered issues 1, 2 and 3 together as they related to allegations of misconduct, specifically, taking money in the form of bribe as a presiding judge. The Respondent's admissions in the Statement of Defense as Counsel for the Respondent stated were “mere facts of the lawful steps taken by the Respondent leading up to the dismissal of the Appellant and are not themselves the substance of the matter under litigation” 8 This Court has considered the respective submissions of the respective Counsel on this ground of appeal. The Appellant pleaded in paragraphs 5 to 9 of his Statement of Claim as follows: 5. The Plaintiff avers that he received a letter dated 4th September, 2015 headed “Allegation of Bribery” in which it was stated that the service has received an investigation report from an alleged entity called Tigereye P.I on an allegation of bribery against him the Plaintiff. 6. According to the Plaintiff, the letter dated 4th September, 2015 further stated therein that the Plaintiff was given an amount of Ghc500.00 and on another occasion Ghc400.00 in the matter of the Republic vrs. Kwaku Boakye in his chambers and at his private residence, Kumasi respectively to influence him the plaintiff to find the Accused not guilty. 7. The said letter further stated that the Plaintiff acquitted and discharged the accused as agreed upon. 8. The Plaintiff says that in responding to the allegation that he acquitted and discharged the accused, he provided the Disciplinary Committee with the charge sheet, the judgment and the commitment warrant all of which proved that the accused was convicted and sentenced to a year term of imprisonment. 9. The Plaintiff says that he appeared before the Disciplinary Committee of the 2nd Defendant subsequent upon which he received a letter dated 7th December, 2015 from the 1st Defendant informing him of his removal from office as a Circuit Court Judge without benefits with effect from 7th December, 2015. The Respondent with the leave of the trial Court filed a Statement of Defence and responded to paragraphs 5 to 8 of the Statement of Claim as follows: 9 5. Save that the Appellant received a letter from the Judicial Service dated 4th September, 2016 which letter informed him that the Judicial Service had received "an investigative report from tigereyepi on allegation of bribery" against him paragraph 5 of the Appellant's Statement of Claim is denied. 6. The Respondent admits paragraph 6 of the Appellant's Statement of Claim. 7. Save that the said letter stated, "the report state that you acquitted and discharged the accused person as agreed upon" paragraph 7 of the Appellant's Statement of Claim is denied. 8. The Respondent admits paragraphs 8 and 9 of the Appellant's Statement of Claim. The admissions by the Respondent in paragraphs 5 to 8 of the Statement of Defence were unambiguous. They confirmed the existence of matters leading to the Disciplinary Committee proceedings and the documents submitted by the Appellant in response. The Respondent also unequivocally admitted that documents presented by the Appellant proved that the accused was convicted and discharged. The law is that “where a party makes an averment and that averment is not denied no issue is joined and no evidence need be led on that averment” see Hammond v. Amuah (1991) 1GLR 89. Similarly, when a party has given evidence of a material fact and is not cross-examined upon it, he needs not call further evidence of that fact: see Fori v. Ayirebi [1966] G.L.R. 627, S.C. From the pleadings, no issue was joined on the conviction and sentencing of the accused in Republic Vrs. Kwaku Boakye and it is surprising for the trial judge to set this down as an issue and even make a finding which is contrary to the Respondent’s own admission. In our opinion, the judge by holding that the Respondent had proved issues 1, 2 and 3 of the triable issues suggests that first, the Appellant did receive Ghc500 and Ghc400 in his 10 chambers and residence respectively concerning Republic Vrs. Kwaku Boakye, a case pending before him and these monies received influenced the decision of the Appellant as a judge into acquitting and discharging the accused person. However, the evidence presented by the Appellant which is the charge sheet, judgment and committal warrant all show that the accused was convicted and sentenced to one (1) year in prison and none of this evidence was subjected to any cross-examination by the Respondent. If the object of the alleged bribery was to influence the Appellant to secure an acquittal and discharge then certainly that was not the case based on the evidence. Moreover, the Disciplinary Committee failed to make a finding on the outcome of Republic Vrs. Kwaku Boakye, which was necessary to confirm the allegations of influencing the Appellant through bribery as contained in the query letter, Exhibit 1. The trial judge correctly identified this flaw but strangely concluded that it was inconsequential, he stated at page 242 of the ROA: “Even though the Disciplinary Committee of the Defendant that investigated the Plaintiff failed to make a finding of fact on the outcome of Kwaku Boakye’s case and the fact that Kwaku Boakye had rather been convicted by the Plaintiff, some pieces of facts were established by the defendant that makes the claim of not having been influenced inconsequential” Clearly, the trial judge misdirected himself on the conclusions after he found that the accused person was convicted and sentenced. This fact simply answers issue 3, which was, “whether the Plaintiff acquitted and discharged the accuse?”, in the negative. Moreover, it stands to reason that if the accused person was convicted and sentenced then the Appellant could not be said to have been influenced to find the accused not guilty. Accordingly, this deduction also answers issue 2 which was, “whether the Plaintiff was 11 influenced by the alleged amount of Ghc500.00 and Ghc400.00 to find the Accused not guilty?” in the negative. Therefore, it is the opinion of this Court that the Respondent did not need to prove issues 2 and 3 by its own admissions and the fact the evidence confirms the Appellant’s claim. Did the Appellant receive Ghc500 and Ghc400 in his chambers and his private residence in the matter of Republic v Kwaku Boakye? This was the major allegation against the Appellant which was determined by the Disciplinary Committee of the Judicial Service. In order to resolve the above, this Court shall consider grounds (ii), (iii) and (v) together as it would answer the question posed above. These grounds (ii), (iii) & (v) impeach the holding of the trial Court that the Disciplinary Committee’s hearing was fair and consistent with the rules of natural justice resulting in its finding that the Appellant received a bribe to influence a pending case and also engaged in an ex-parte communication contrary to the code ethics of Judges and Magistrates. Did the Disciplinary Committee of the judicial service conduct its proceedings based on the principles of natural justice with an emphasis on fair hearing? It is trite law that an administrative body or tribunal must observe the rules of natural justice in its proceeding which may lead to the dismissal of an employee, see the unreported judgement of the Court of Appeal in Ghana Institute of Public Administration v Yekson Emmanuel Kugblenu; Civil Appeal No: H1/147/2017 dated 8th March, 2018. The right to a fair hearing is a basic and sacrosanct principle enshrined in the Constitution of Ghana, 1992. In the case of Kanda v. Government of Malaya [1962] AC 322, it was held that: 12 “An accused person's right to be heard is a real right which must carry with it the right to know the case made against them, including the evidence and statements affecting them, and the right to a fair opportunity to correct or contradict them” Article 23 of the 1992 Constitution provides that: “Administrative bodies and administrative officers shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the rights to seek redress before a court or other tribunal.” The above article is the letter and spirit by which administrative bodies exercise their authority when dealing with the rights of persons who will be affected by decisions taken by the administrative body. Where the administrative body fails to discharge this Constitutional fiat, persons aggrieved may seek redress in the Law Courts. This was eloquently asseverated in the case of AWUNI V. WAEC [2003-2004] SCGLR 471 at 489, wherein Justice Sophia Akuffo JSC (as she then was) said: “…by this article, the right to administrative justice is given constitutional force, the objective being the assurance to all persons the due observance and application of the principles of natural justice which foster due process and the stated qualities, in the performance of administrative activities that affect them. In my view, the scope of Article 23 is such that, there is no distinction between the acts done in the exercise of ordinary administrative functions and quasi-judicial administrative functions. Where a body or officer has an administrative function 13 to perform, the activity must be conducted with, and reflect the qualities of fairness, reasonableness and legal compliance.” (Emphasis). The Respondent contended that there was no breach of the rules of natural justice and that the entire proceedings by the Disciplinary Committee were consistent and in accord with the law. First, the Respondent’s witness testified that the Appellant was served with a query letter and he duly responded in three separate letters dated 8th September 2015, 11th September, 2015 and 15th September, 2015. These responses were referred to the Disciplinary Committee for further investigation. It is the case of the Respondent that during the proceedings, the Appellant always appeared with his Counsel and both watched the video recording submitted by Anas Aremeyaw Anas (the Petitioner) being the basis of the petition against the Appellant. An opportunity was given to the Appellant to give his evidence and call a witness to testify for him at the proceedings which he did. The Appellant exercised his right to face his accuser and therefore cross-examined the Petitioner, Anas Aremeyaw Anas at the Disciplinary Committee’s proceedings. Regarding the issue of ex-parte communication, Learned Counsel for the Respondent contends that the Appellant and his Counsel were informed of the allegation of ex-parte communication on 11th September, 2015 when the Disciplinary Committee first sat to hear the matter. It was, however, adjourned to 24th November 2015 so as to enable the Appellant to prepare his defence on that allegation. Respondent’s Counsel, therefore, submitted that it “it was a fallacy and an attempt to throw dust into the eyes of this Honourable Court that he [the Appellant] was condemned on ex parte communication without notice or hearing contrary to the principles of natural justice and that the time was inadequate for him to bring a proper defence”. 14 At the end of the proceedings, the Disciplinary Committee evaluated the evidence gathered and concluded that the Appellant had ‘accepted money from the Petitioner and had also engaged in ex-parte communication in a matter pending before him in his court”. The Appellant disputed the above contention of the Respondent. According to the Appellant, although he appeared before the Disciplinary Committee, the conduct of the proceedings was inherently unfair. He contends that he was not given a copy of the very petition by Tigereye P.I. based on an investigative report against him. The two videos he was shown were edited. He was even given a compact disc (C.D.) about the first video recording he was shown but the said video on that C.D. had no audio at all. The first video recording showed to the Appellant was taken in his judge’s chambers but what transpired there as alleged by the Petitioner was vehemently disputed by the Appellant. Secondly, another video recording was shown to the Appellant but this time it was secretly recorded at his private residence in Kumasi. The 2nd video was dated 2007 according to the Appellant but in that year the Appellant was a district magistrate in Tumu in the Upper West Region. The actual events that happened in the chambers of the Appellant were corroborated by the then Registrar of the Circuit Court, Juaben at the Disciplinary Committee’s hearing. At the trial court, the events that occurred in the residence of the Appellant were corroborated by PW 1. On the ex-parte communication, the Appellant contends that it was a charge that was levelled against him during the hearing but was not contained in the query letter, Exhibit 1. He submitted that the Disciplinary Committee did not specify which matter was pending before the Appellant based on which the ex-parte communication happened and any such suit was speculative. Therefore, the very nature of the proceedings was not 15 reflective of Articles 23 and 296 of the Constitution which mandate administrative bodies to be fair and reasonable while eschewing biases and caprice. It is not in dispute that the Appellant was invited to the Disciplinary Committee on allegations of bribery. It is also not in dispute that the Appellant appeared before the Committee on two occasions with his counsel to give his evidence and call on another witness to testify for him. During the proceedings of the Disciplinary Committee, the Appellant interrogated the Petitioner under cross-examination. Moreover, although Exhibit 1 did not contain an allegation against the Appellant of engaging in ex-parte communication in a matter before him, he was informed during the course of the proceedings and afforded a reasonable time to respond. However, what is in dispute is whether the proceedings conducted by the Disciplinary Committee reflect the qualities of fairness, reasonableness and legal compliance as held in the Awuni case. The primary protestation of the Appellant is the two videos the Disciplinary Committee relied on in the proceedings. Unfortunately, these videos were not tendered in evidence by the Respondent who had them. An attempt was made by the Respondent to tender the videos together with the proceedings and report of the Disciplinary Committee in evidence but these were objected to by the Appellant on the grounds that they were not authenticated and neither were the videos tendered into evidence before the disciplinary committee. Indeed, the Respondent withdrew these pieces of evidence but subsequently tendered authenticated copies of the record of proceedings and the final report see the objections raised by the Appellant on page 154 of the RoA and the ruling of the trial Court on page 16 176. The trial court agreed with the objection raised but permitted the Respondent to refile the authenticated versions except that the Respondent did not include the video, obviously because it was not tendered in the evidence before the Committee neither could the Respondent have the videos authenticated for them to be used in the trial. In law, where a party claims to have a document but fails to tender it, the inference is that no such document existed or if it existed at all, it does not contain the assertion made by the party. See the cases of Bousiako Co. Ltd v. Cocoa Marketing Board (1982- 83) 2 GLR 824 at page 839 and Korley v. Bruce [1962] 1 GLR 7 at page 10 per Ollenu J (as he then was). These videos did exist and the Appellant did confirm that he watched the videos when he appeared before the Disciplinary Committee but he disputed the claim that he collected bribes of Ghc500 and Ghc400 to influence him in a matter pending before him as purportedly captured in the video. The Appellant’s version of events in his chamber was corroborated by the Registrar without any challenge from the Disciplinary Committee. The Respondent even admitted that the video they watched at the Disciplinary Committee was inaudible which confirms the claim of the Appellant. Under cross- examination, this transpired (see page 102 of RoA): Q: Now the video of the plaintiff in his chambers was shown on 11th September 2015? A: That is so. Q: Now that video had no audio on it? A: Yes, my lord 17 It was the Respondent who carried the burden of evidence to put the videos in evidence before the trial judge but failed to do s. The maker of the video was also not called as a witness. Accordingly, it is the opinion of this Court that in the absence of the video and the witness who made it, to prove the case of the Respondent that the Appellant was seen taking bribes to influence a decision, the conclusion reached by the trial judge, is not supported by the evidence on the balance of probabilities. The issue of the allegation that the Appellant was engaged in an ex-parte communication is also doubtful. What is the attitude of the Courts concerning ex-parte communication? In the unreported unanimous judgment of the Supreme Court, in C.A. J4/4/2019 dated 3rd April 2019 in a suit intituled, Atuguba and Associates – Plaintiff/Respondent/Appellant v. Scipion Capital (U.K) Ltd and Anor. –Defendant/Appellants/Respondents, the Supreme Court emphatically stated that such ex-parte communications are unethical in Ghana. This is what the Supreme Court, speaking through Amegatcher JSC stated on such unethical phenomenon: “The instruction from the respondent to the Appellant is to request the appellant to engage in an ex-parte communication with the Judge. We find this request unfortunate especially coming from a firm of Solicitors in the United Kingdom. We condemn the directive in no uncertain terms and reiterate that Ghana is not one of the countries where ex- parte communication with Judges is sanctioned or encouraged. The rules of judicial conduct in Ghana prohibit Judges from engaging in ex-parte communications.” It is abundantly clear that the phenomenon of parties or judges engaging in ex-parte communication is vehemently eschewed by the judicial system. Ex-parte 18 communications are based on matters pending before a judge and a party or his counsel or an agent engages the judge on the pending suit without notice to an adverse party. It is immaterial whether the communication by the party engaging the judge affected the outcome of the suit. This principle is a derivative of the legal axiom that justice must not only be done but must manifestly be seen to be done. In this instant appeal, the Respondent admitted he did not know which matter was pending before the Appellant on the claim that the Appellant engaged in ex-parte communication. Under cross-examination of the Respondent by the Appellant this is what transpired (see page 94 of the RoA): Q: what is the title of the case affected by this exparte communication? A: They did not mention the case Q: I am putting it to you that from your evidence, your claim of exparte communication was not in reference to Republic v Kwaku Boakye? A: Yes Further cross-examination of the Respondent showed that the judge did not even communicate in the video shown at the Disciplinary Committee. Q: Now the video of the plaintiff in his chambers was shown on 11th September 2015? A: That is so. Q: Now that video had no audio on it? A: Yes, my lord 19 Q: And it was based on that video and after watching that video that the Committee informed the plaintiff that he was to be investigated for engaging in exparte communication contrary to the code of ethics for Judges and Magistrates in addition to the petition for bribery A: yes Q: In fact, from that video the plaintiff could not be heard talking to anyone? A: Yes. The Appellant could not be held to have engaged in ex-parte communication in a matter which the Respondent admitted was not based on R v Kwaku Boakye. The precise matter relied on by Respondent was not disclosed to the Disciplinary Committee nor to the trial judge. Thus, it was erroneous for the trial judge to make a finding that the Appellant engaged in ex-parte communication thereby endorsing the findings by the Disciplinary Committee. We find that the Appellant engaged in no such ex-parte communication in the absence of the precise suit pending before him and based on a video which was inaudible. In conclusion, the findings by the trial judge are not supported by the evidence on record. On the whole, there is merit in the appeal and the same is hereby allowed. The judgment of the High Court dated 21st June, 2022 is hereby set aside. Accordingly, judgment is entered for the Appellant as per the reliefs endorsed on his writ of summons. JUSTICE E. ANKAMAH, JA (Justice of the Court of Appeal) 20 I agree JUSTICE S. DZAMEFE, JA (Justice of the Court of Appeal) I also agree JUSTICE C. ARCHER JA (Justice of the Court of Appeal) Counsel: Anastasia Edusei-Tawiah for Defendant/Respondent Joe Aboagye Debrah for Plaintiff/Appellant 21