The late Hon Justice George R.M. Francois

Justice Francois and the development of Ghana law

Dr Seth Y Bimpong-Buta Opinion Jun - 18 - 2015 , 03:43

On the occasion of the tenth anniversary of the passing away on June 21 2005 of the late Hon Mr Justice George R M Francois, I have the greatest honour and privilege to observe that even though, the late Justice Francois no longer physically sits on the Ghana Bench, his contribution to the development of Ghana Law continues, year in year out, even after his death.

Justice Francois is still remembered and quoted as a judicial authority by the immediate past and present Judges on the Ghana Supreme Court Bench in so many very significant ways!

Proof of fraud

First, on the issue of proof of fraud in civil litigation
The law is well-settled that: “Fraud vitiates everything, even judgment and order of the court.” As recently held by the Supreme Court on 23 January 2013, in the case of Osei-Ansong & Passion International School v Ghana Airport Co Ltd [2013-2014] 1 SCGLR 25, the settled law and practice of the courts was that the proper method of impeaching a judgment on the ground of fraud was by action in which the particulars of the fraud must be given and the allegation established by strict proof. In support of that holding, the Supreme Court cited, with approval (per Hon Sophia Adinyira JSC) the following pronouncement of Francois JSC in his dissenting opinion in the case of Dzotepe v Hahormene III [1987-88] 2 GLR 681 at 701:

“There is no denying the fact that a judgment obtained by fraud is in the eyes of the court no judgment, as it is not founded on the intrinsic merits of the case, but is born of an attempt to overreach the courts by deceit and falsehood… But the fact that the courts abhor fraud should not make them insensitive to the just claims of victorious parties. The judicial edifice was not constructed to lend a ready ear to every cry of fraud from suitors who had lost on the merits. If charges of fraud are not examined closely, the stratagem would subvert the very administration of justice and undermine the hallowed principle that a victorious party is entitled to the fruits of his judgment and should not be deprived of his victory without just cause…” (My emphasis).

In an earlier case of Gyimah & Brown v Ntiri (Williams-Claimant) [2005-2006] SCGLR 247 at 269, the Supreme Court found on the evidence that the defendant, who had sold the disputed property, a residential house, to the plaintiff-appellant in January 1995, had subsequently sold in September 1995 the same house to the claimant. The Supreme Court found that the description by the trial judge of the defendant as “a rouge” could not be faulted. Besides, counsel for the plaintiff had rightly accused the defendant, the seller of the disputed residential property, as “having perpetrated a fraud on his clients.” In so holding, the Supreme Court (per Hon Georgina Wood JSC (as she then was)) quoted in support, the pronouncement of Francois JSC in Fofie v Zanyo [1992] 2 GLR 475 at 492 that:
“ ‘Where judges are faced with glaring injustice and the perpetration of fraud, they are known to express themselves in the strongest language of condemnation.’ I would add that the defendant's conduct, in the words of Justice Harmann in Re: Shepherd; Public Trustees v Henderson [1948] 2 All ER 935, ‘stinks in the nostrils of the public.’” (My emphasis).

Administrative/judicial acts of House of Chiefs

Second, on the issue of what constitutes administrative acts as distinct from judicial acts of the National House of Chiefs.
In that regard, the Supreme Court in the case of In Re: Oguaa Paramount Stool [2005-3006] SCGLR 193 unanimously held that the duty of the National House of Chiefs in the registration process, pursuant to sections 48(2) and 50(2) of the Chieftaincy Act, 1971 (Act 370), namely, entering the names of chiefs in the register and recording such particulars was discretionary and administrative and not judicial. However, the Supreme Court made it clear that the exercise of that administrative act could be challenged under section 50(1) of Act 370, by an action in the appropriate court with a view to setting aside any wrongful registration. In support of that holding, the Supreme Court (per the Prof Ocran JSC) cited with approval, the pronouncement of Francois JA (as he then was) in the case of Ex parte Akyeamfour II [1982-83] GLR 10 at 15 and 16. In the words of Prof Ocran JSC in the said Oguaa Paramount Stool Case [2005-2006] SCGLR 193 at 211 - 212:

“Justice Francois’s position in Akyeamfour II is that there is an unflinching legal duty to register, except that the duty to do so is purely administrative and not judicial; and that because of that duty, the chief who is a victim of non-registration is given the legal right under section 50(7) to come to the Supreme Court to enforce registration.”

Continuing his judgment in the Oguaa Paramount Stool Case (as stated at pages 213 of the Report), Prof Ocran JSC said:
“In drawing a distinction between administrative and judicial acts in respect of the functions of the National House of Chiefs, Francois JA in the Akyeamfour case provides a policy justification that I fully share. He writes (as stated at page 16 of the Report):

Right of Appellate Court

Third, on the issue of the right of the appellate court to disturb the findings of fact made by the trial judges
In the case of Barkers-Woode v Nana Fitz [2007-2008] 2 SCGLR 879, the Supreme Court (per Hon Dr Date-Bah JSC), unanimously allowed the appeal by the plaintiff from the judgment of the Court of Appeal, which had set aside the findings of the trial High Court, namely, that the construction of the disputed house had not been completed by the defendant in accordance with the terms of the contract concluded by the parties on the ground (as stated in holding (1)) that:

“Where a trial judge makes findings of fact, which are supported by the evidence on record, it is not permissible for the Supreme Court or any other appellate court to interfere with the determination by the trial judge even if the Supreme Court [were] inclined to interpret the evidence differently. In the instant case, the Court of Appeal erred in reversing the finding of fact by the trial judge which was supported by the evidence on record, that the defendant had not completed the construction of the building in accordance with the contract. The Court of Appeal's analysis of the evidence, invaded the province of the trial judge and displaced him from his right to assess the credibility of witnesses who appeared before him; and to determine what weight to accord to the evidence of particular witnesses in the light of his assessment of their demeanour and conduct in court. The fact that a particular appellate court would prefer to give greater weight to other evidence on record, does not entitle the appellate court to reverse the trial judge’s primary finding of fact which is supportable on the evidence.”

In so holding, the Supreme Court (once again per Hon Dr Date-Bah JSC) quoted with approval the pronouncement of Francois JSC in the case of Zanyo v Fofie [1992] 2 GLR 475. In that case, Francois JSC (at 484-485) expounded the law as follows:
“The appellate court's criticism of the trial judge's performance in scathing language, was as unfortunate as it was unsound. Most of it was based on the difference in perception of the evidence, and regrettably on the law. Where a judge or trial court arrives at a conclusion based on the advantage of seeing and hearing witnesses at first hand, the appellate court should be very slow to form a contrary view. It is trite law that an appellate court, when reviewing the exercise of discretion by a lower court, should not interfere unless the court below had applied wrong principles in arriving at the result or taken into account matters which were irrelevant in law or had excluded matters which were crucially necessary for consideration, or had come to a conclusion which no court properly instructing itself on the law could have reached.” (My emphasis).

Fourth, on the issue relating to the role of the Supreme Court in interpreting the 1992 Constitution:

In Appiah-Ofori v Attorney-General [2010] SCGLR 484, the issues for determination by the Supreme Court constituted by nine Justices of the court were: (i) whether or not the retiring age of the Auditor-General was in pari material or simply comparable with that of a Justice of the Court of Appeal on attaining the age of seventy years under article 145(2) of the 1992 Constitution; (ii) whether or not there was a lacuna or a gap to be filled regarding the retiring age of the Auditor-General; and (iii) whether or not section 10(4) of the Audit Service Act, 2000 (Act 584), which required the Auditor-General to retire on attaining the age of sixty years was inconsistent with or contravened the letter and spirit of the 1992 Constitution. The Supreme Court by a six to three majority decision held, inter alia, that there was no gap to be filled regarding the age of the Auditor-General whose office under article 187(1) of the Constitution shall be a public office.” It was further held that even though the Auditor-General was a public officer, unlike the other appointees under article 70 whose retiring age had been explicitly provided for in the Constitution, the Auditor-General’s retiring age had not been so specified. The omission to do so could be accounted for because under article 199(1) of the Constitution, a public officer shall, except as provided in the Constitution, retire from the public service on attaining the age of sixty years. Since the Constitution had not otherwise provided for a different retiring age for the Auditor-General and since it was a public office as specified in article 187(1), the retiring age was covered by the provisions in article 199(1) as amended by section 6 of the Constitution of the Republic of Ghana (Amendment) Act, 1996 (Act 527). Consequently, section 10(4) of the Audit Service Act, 2000 (Act 584), which had retained the Auditor-General's retiring age at sixty years subject to extension contracts for a maximum of five years, was squarely in line with the history, spirit and true intendment of the 1992 Constitution and was wholly constitutional.

Both Hon Justices Atuguba and Vida Akoto-Bamfo JJSC in their opinion in support of the Supreme Court majority decision in the Appiah-Ofori Case [2010] SCGLR 484 at 515 and 574 respectively quoted in support of the majority decision in that case, the pronouncement of Hon Francois JSC in his opinion in support of the majority decision in New Patriotic Party v Attorney-General (The 31st December Case) [1993-94] 2 GLR 35 at 79, namely:

“A Constitution is the out-pouring of the soul of the nation and its precious life-blood is its spirit. Accordingly, in interpreting the Constitution, we fail in our duty if we ignore the spirit. Both the letter and the spirit of the Constitution are essential fulcra which provide the leverage in the task of interpretation.” (My emphasis).

Conclusion

We are grateful to the Almighty God for the privilege of making it possible to say, ten years after the passing away of the Hon Justice George Francois, that his judicial pronouncements have stood the test of time and are still quoted by their Lordships sitting on the Ghana Bench today. Hopefully, the above-stated judicial pronouncements of Justice Francois (and other judicial pronouncements not referred to for want of space), would continue to be relevant and help in resolving legal disputes which come before the courts for determination in the years to come.

In my respectful view, the legacy which the late Hon Justice George Francios (and other Justices like the late Hon Justice J N K Taylor of blessed memory), have left for the present and future generation of the Judges in Ghana is to painstakingly and without fear or favour, address the submissions of counsel for both parties, respectfully inviting their Lordships to delve into the law, with a view to laying down the relevant applicable law and striking down injustice to the parties in whatever form it rears its ugly head. And more importantly, to deliver authoritative judicial pronouncements which would stand the test of time in the supreme interest of all the parties appearing before the courts, so as to uphold in practical terms, the mandatory constitutional requirement of equality of all persons before the law.

Thank you.

Dr Seth Y Bimpong-Buta, FGA
Retired Director of the Ghana School of Law

Thursday 18 June 2015