[ 2011-04-12 ]

Alleged Mobilla killers before a new judge
The case of the two soldiers who have been accused
of murdering Alhaji Issa Mobilla, former Northern
Regional Chairman of Convention People's Party
(CPP), has now been put before a new judge, Mr
Justice Mustapha Habib Logo.

The case was, however, adjourned on Monday because
the accused persons were not brought to court and
the prosecutor, Ms Pennelope Mamattah, a Principal
State Attorney, was indisposed.

Mrs Evelyn Keelson, a Senior Attorney, who held Ms
Mamattah's brief, prayed for adjournment.

The case was therefore adjourned to May 13.

Mr Thaddeus Sory represented the accused persons.


The case has been put before Mr Justice Logo
following the March 16, 2011 ruling by the Supreme
Court (SC), which declared that Mr Justice Senyo
Dzamefe, a Court of Appeal judge, hearing the case
of the soldiers, had no jurisdiction to do so.

The court therefore quashed the trial judge's
orders made on December 7 last year and granted an
order of certiorari.

The soldiers, Corporal Yaw Appiah and Private Eric
Modzaka, went to the SC to also seek an order of
certiorari quashing the orders of the trial judge
on whether or not a juror who had been replaced
because he was indisposed should be allowed back
after he had recovered from an illness.

The two soldiers filed an order prohibiting Mr
Justice Senyo Dzamefe, a Court of Appeal judge,
from hearing their case.

The state, which was represented by Mr Rexford
Wiredu, opposed the action filed by the soldiers.

Mr Wiredu conceded before the SC that there was no
letter from the Chief Justice directing the trial
judge to hear the matter after his elevation to
the Court of Appeal.

The soldiers were further seeking an order to stay
proceeding in the case in so far as the trial
judge continued to preside.

Corporal Appiah and Private Modzaka, who have
denied the offences levelled against them, are on
remand.

Their accomplice, Private Seth Goka, is yet to be
arrested by the State.

In their grounds of Appeal, the two soldiers
contended that the trial judge lacked jurisdiction
to continue with the case and make any orders.

According to the soldiers the orders made by the
trial judge "were made without jurisdiction"
describing them as unconstitutional, null and
void.

The soldiers contended that the trial judge, by
virtue of his statement, conduct and orders had
demonstrated his interest in the case beyond
presiding as an independent arbiter.

In an affidavit in support of a motion invoking
the supervisory jurisdiction for orders of
certiorari and prohibition, the soldiers said on
March 17, 2010, they were put before the Fast
Track High Court presided over by Mr Justice
Dzamefe on two charges of conspiracy to murder and
murder.

According to them during the course of the trial,
Mr Justice Dzamefe was elevated to the Court of
Appeal.

Under the constitution, the trial judge was
"barred" from presiding over the case and other
matters pending at the High Court.

He could only preside after the CJ in the exercise
of her constitutional powers permitted him to
complete all cases partly heard by him before
assuming duties as a Court of Appeal Judge.

In addition, he could only do this unless the
trial judge had been assigned specially by the
Chief Justice to execute specific duties.

The soldiers said in May last year, during the
trial, one of its jurors was taken ill, thus
causing adjournments and the prosecution insisted
that the juror should be replaced.

The trial judge granted the prayer of the
prosecution although counsel of the defence
objected and stated that he (trial judge) should
refer the matter to the CJ for direction.

On November 26, 2010 they were served with hearing
notices to appear in court.

The trial judge after asking the defence and
prosecution to approach the bench informed them
that the replaced juror had recovered and he was
of the view that "the juror could be brought back
for the trial to continue as a partly heard case".
The defence counsel, however, objected.

The trial judge then adjourned the matter to
December 7, 2010 to rule on the objection of the
defence on his continuing to sit over the case as
he had been elevated to the Court of Appeal.

On the said date when they arrived at the court,
instead of delivering his ruling the judge rather
announced to the court that he required the
prosecution to file a motion in opposition to
enable him to rule on the question as to whether
or not the replaced juror should be brought back.


The prosecution complied with the trial judge's
request.

They contended that the trial judge had no power
to make orders in a case pending before the High
Court when he had not been appointed by the Chief
Justice to conduct the case.

The soldiers said the trial judge also displayed
"clear bias" when he went to question why they
were in military custody when he had ordered that
they should be sent to prison custody.

Source - GNA

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