The Supreme Court (SC) on Tuesday adjourned sine die the case in which two soldiers have filed an order prohibiting Mr Justice Senyo Dzamefe, a Court of Appeal judge, from hearing their case.
This was because Ms Penelope Mamattah, the substantive prosecutor in the case, is indisposed.
Chief State Attorney Merley Wood told the court that she would seek an adjournment for herself or Ms Mamattah to come to argue the case on behalf of the Attorney General.
The soldiers, Corporal Yaw Appiah and Private Eric Modzaka, have gone to the SC to also seek an order of certiorari quashing the orders of the trial judge made on December 7, last year, on whether or not a juror who had been replaced because he was indisposed should be allowed back after he had recovered.
They are further seeking an order to stay proceeding in the case in so far as the trial judge continues to preside.
Corporal Appiah and Private Modzaka and their accomplice, Private Seth Goka, have been charged with conspiracy to murder and murdering Alhaji Issa Mobilla, former Northern Regional Chairman of Convention People’s Party (CPP).
The State is yet to arrest Private Goka, an accomplice.
Appiah and Modzaka have denied the charges and the trial court has remanded them into prison custody.
In their grounds of Appeal, the two soldiers contend that the trial judge lacks 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 has 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, the soldiers said they were put before the Fast Track High Court presided over 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 can only preside after the Chief Justice (CJ) in the exercise of her constitutional powers permits him to complete all cases partly heard by him before assuming duties as Court of Appeal Judge.
In addition he can only do this unless the trial judge has been assigned specially by the Chief Justice to execute specific duties.
The soldiers said in May last year, during the course of 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) would 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 continuous sitting 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 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.