Ankomah-nimfah [2022] GHASC 18 (6 April 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2022

Coram

DOTSE JSC (PRESIDING) DORDZIE (MRS.) JSC AMEGATCHER JSC OWUSU (MS.) JSC TORKORNOO (MRS.) JSC PROF. MENSA-BONSU (MRS.) JSC KULENDI JSC WRIT NO. J1/11/2022

13TH APRIL, 2022

MICHAEL ANKOMAH-NIMFAH ……… PLAINTIFF/APPICANT

VRS

1. JAMES GYAKYE QUAYSON ………. 1ST DEFENDANT/RESPONDENT

2. THE ELECTORAL COMMISSION ………. 2ND DEFENDANT/RESPONDENT

3. THE ATTORNEY-GENERAL ………. 3RD DEFENDANT/RESPONDENT

Majority Opinion

KULENDI JSC:-

Introduction

This is an application for an order of interlocutory injunction pending the determination of a writ invoking this Court’s original jurisdiction. The Plaintiff/Applicant (hereinafter

called the “Applicant”) is seeking an order to restrain Mr. James Gyakye Q uayson, the 1st Defendant/Respondent (hereinafter called the “1 st Respondent”), from holding himself out as a Member of Parliament for the Assin North Constituency, presenting himself before and/or attending Parliament to conduct the business of Member of Parliament pending the final determination of Applicant’s suit.

Background

The application under consideration is anchored on a writ which the Applicant caused to be issued on the 24th of January, 2022, invoking the original jurisdiction of this Court for the following reliefs:

1. “A Declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana at the time of filing his nomination form between 5 th - 9th October 2020 to contest the 2020 Parliamentary elections for the Assin North Constituency the 1st Defendant was not qualified as a member of Parliament.

2. A Declaration that upon a true and proper interpretation of Article 94(2)(a) of the Constitution, 1992 of the Republic of Ghana the decision of the 2nd Defendant to permit the 1st Defendant to contest Parliamentary Elections in the Assin North Constituency when the 3rd Defendant owed allegiance to a country other than Ghan a is inconsistent with and violates Article 94(2) (a) of the Constitution of the Republic of Ghana 1992.

3. A Declaration that upon a true and proper interpretation of Article 94(2) (a) of the Constitution, 1992 of the Republic of Ghana the election of the 1 st Defendant as Member of Parliament for the Assin North Constituency was unconstitutional.

4. A Declaration that upon a true and proper interpretation of Article 94(2) (a) of the Constitution, 1992 of the Republic of Ghana the swearing in of 1st

defendant as member of parliament for the Assin North Constituency was unconstitutional, null and void and of no legal effect.

5. Any further Orders and / or Directions as the Court may deem fit to give effect or enable effect to be given to the Orders of the Court.”

The relevant antecedents to this application can be summarized from processes filed as follows: The 1st Respondent was elected Member of Parliament for the Assin North Constituency on December 7th, 2020. After the election of the 1 st Respondent, the Applicant on 30 th December, 2020, petitioned the High Court, Cape Coast and contended that at the time of the filing of Parliamentary Nomination Forms by the 1st Respondent, he held Canadian citizenship and was therefore in violation of Article 94[2][a] of the Constitution and other electoral laws. The Applicant sought various declaratory reliefs: an order annulling the elections; perpetual injunction restraining the 1st Respondent from holding himself out as Member of Parliament -Elect for the Assin North Const ituency; and an order directed at the 3rd Respondent to conduct fresh parliamentary elections in the Assin North Constituency. On 6 th January, 2021, the High Court, granted an interlocutory injunction restraining the 1st Respondent:

“from holding himself out as the Member of Parliament -Elect for the Assin North Constituency within the Central Region and further from presenting himself to be sworn in as Member of Parliament for Assin North Constituency as such until the final determinat ion of the substantive Petition filed against him by the Applicant.” [A copy of this ruling is attached to the Applicant’s affidavit in support of this application as Exhibit MAN 3]

Subsequently, on 28th July, 2021, the High Court gave judgment after tria l in favour of the Applicant and declared the election of the 1st Respondent as “null, void and of no legal effect whatsoever”. Further, the High Court granted an order of

perpetual injunction against the 1st Respondent from holding himself out as Member of Parliament for the Assin-North Constituency. Aggrieved by the judgment of the High Court, the 1 st Respondent appealed to the Court of Appeal, Cape Coast, seeking to set aside the judgment of the High Court. It is against this background that the Applicant commenced the present suit and has mounted this application deposing at paragraphs 7, 8 and 9 of his affidavit in support that:

“7. On 28/07/21, the High Court, Cape Coast, in its judgment upheld my petition challenging 1st defendant's election as Member of Parlia ment and inter alia injuncted 1 stdefendant from holding himself out as Member of Parliament Annexed herewith is the judgment of the high court, marked Exhibit "MAN2".

8. The issue of the constitutionality of Article 94(2) (a)of the Constitution,1992 has come up repeatedly in processes filed by 1st defendant in the pursuit of his appeal before the Court of Appeal, Cape Coast, and this has occasioned the filing of the instant Writ in the Supreme Court.

9. The 1st Defendant, however, is contemptuously holding himself out as Member of Parliament and carrying out his parliamentary duties as if no judgment has been pronounced in the Parliamentary Election Petition I filed against him and by reas on thereof, I am advised by Counsel and believe same to be true that, this situation ought not fester during the pendency of this suit.”

Significantly, the Applicant continues at paragraphs 10 and 11 of his affidavit in support as follows: “10. On 06/01/ 21, when the Members of Parliament were to be sworn in as such in the Chamber of Parliament, even though an order for interlocutory injunction restraining 1st defendant from holding himself out as Member of

Parliament for the Assin North Constituency, had been served on the Clerk of Parliament, and this was brought to the attention of the Clerk of Parliament by the Deputy Majority Leader, who admonished and/ or advised 1 st defendant to refrain from partaking in the proceedings in Parliament, the Minority Group of which 1 st defendant is part, resisted the advice, and was adamant that 1st defendant remains in the Chamber of Parliament. [Annexed herewith is the High Court's ruling on the grant of the order for interlocutory injunction, marked Exhibit"MAN3".]

11. This incident, which is a notorious fact, was played out on national television and cannot be lost on anyone, and also that,1 st defendant flagrantly and brazenly disobeyed and disregarded the orders of the high court, partook fully in the proceedings of that day, and continues to hold himself out as Member of Parliament for the Assin North Constituency.”

We must point out that with the exception of “Notice of Preliminary Legal Objection to Hearing of Motion of Interlocutory Injunction” and its accompany ing affidavit which was filed on 28th March, 2022 on behalf of the 1 st Respondent, no other process has been filed in answer to this application by the 1 st Respondent. This Court directed, in the interest of efficiency, expedition and effective case management, that the 1 st Respondent’s Counsel takes his legal objection together with any argument in opposition after the application had been moved by the Applicant’s Counsel.

Counsel for the Applicant submitted that on the basis of the motion, the supporting affidavit, and annexures thereto, the Applicant has established egregious breaches of the Constitution and various electoral laws of Ghana and further th at in the light of the judgment of the High Court and the reliefs sought in this suit, the continuing violation of the Constitution by the 1 st Respondent ought not be allowed “to fester” pending the final determination of this dispute. He further submitted in respect of the notice of intention to raise preliminary objection that this Court is vested with

jurisdiction under Article 129(4) of the Constitution to entertain the instant application for interlocutory injunction and therefore the legal objection t o the procedural propriety of the application is misconceived. Counsel for the 1 st Respondent on the other hand submitted that the instant application is procedurally incompetent, same having been made under Order 25 (1) and 19 (1) of the High Court Civil Procedure Rules, 2004 (C. I 47) in the absence of a prior order of this court, suo motu, permitting the recourse to C.I 47 under rule 5 of the Supreme Court Rules, 1996 [C.I.16]. He cited the cases of Koglex vrs. Attieh [2003-2004] 1 SCGLR 75 @ 85 and Ampofo vrs. Samanfi [2003/2004]2 SCGLR 1153 at pages 1155 to 1156 in aid of his submissions.

It was submitted on behalf of 2 nd Defendant/Respondent that the instant application is an abuse of process because the judgment of the High Court of 28 th July, 2021 has an injunction “embedded” in it and therefore the proper thing was for the applicant to enforce the judgment. In addition to delivering an affidavit in answer for and on behalf of the 3 rd Defendant/Respondent, its counsel contended that the preliminary objection by the 1st Respondent’s Counsel was grossly erroneous since the Supreme Court has settled procedure on the grant of injunctions in constitutional matters. Citing the case of Ekwam vrs Pianim (No. 1) [1996 -97] SCGLR 117 , he submitted that this Cou rt has long affirmed its jurisdiction to grant injunction in constitutional matters where the justice and convenience of a case so warrants and therefore that, it is superfluous for the Applicant to purport to invoke C.I. 47 and consequently, the superfluity does not make the application incompetent.

He also submitted that apart from settled practice, the jurisdiction of the Supreme Court to grant injunctive orders is anchored on article 129(4) of the Constitution. He further argued that where the status of a person who at the close of nomination had not renounced his citizenship to another country is in issue, as in this case, the sole factor for consideration in an application for interlocutory injunction is whether having regards to the facts and the judgment of the High Court, the case is one of

unconstitutional conduct. He concluded that where the justice of the case so warrants, an injunction is justified even if it will imply a multiplicity of orders, including an order of this Court which is exclusively vested with the protection of the Constitution under article 2(1) and the power to pronounce on any unconstitutionality. Counsel cited the cases of Yeboah vrs. Mensah {JH} [1998 - 99]SCGLR 49, NPP vrs NDC [2000] SCGLR 461, and Republic vrs High Court (General Jurisd iction) Accra; Ex -parte Dr. Zanetor Rawlings (Ashittey & National Democratic Congress, Interested Parties) (No.2) [2015] SCGLR 92 , and submitted that the time for reckoning qualification is the opening of nominations which implies that the 1 st Respondent was unqualified for election and thus unqualified to be in Parliament and ought to be restrained pending the final determination of this suit.

PRELIMINARY LEGAL ISSUE: In respect of the legal objection by Counsel for 1st Respondent, we note that the 1st Respondent’s Counsel neither cited any rule on the face of his “Notice of Preliminary Objection” nor made reference to any rule to justify the jurisdiction of this Court to entertain the “notice of preliminary objection”. We think that this is rightly so, because the rules of Court do not s upplant the established practice of the Court. The fact that the rules of this Court are silent on any procedure or practice would not affect this Court’s procedural jurisdiction over same. It is important to note that, " the Rules of Court cannot expressly cover every conceivable situation that arises”. [See the dictum of Atuguba JSC in Merchant Bank Ltd v. Similar Ways Ltd[2012] 1 SCGLR 440 @at page 446]

For these reasons, we deem the 1st Respondent’s “Notice Of Preliminary Objection” permissible even though his Counsel has neither indicated on the face of the motion paper nor urged, viva voce, the specific rule of procedure under which he has mounted his notice of objection.

Having entertained the 1st Respondent’s “notice of preliminary objection” because it is proper despite the absence of any applicable Supreme Court Rule backing same, since there is no such express rule, we now consider the merits of his plaint on the procedural competency of the application for injunction.

It is beyond dispute that this Court has jurisdiction to entertain injunction applications whenever its original jurisdiction is invoked. In Ekwam v. Pianim (No.1) [1996-97] SCGLR 117, this Court granted an injunction application to restrain a non -party, the NPP, from carrying out its National Delegates Congress, pending the determination of a writ invoking the Court’s original jurisdiction.

On the permissible procedure, the lack of express provisions in the Supreme Court Rules, has never been a bar to the exercise of this Court’s jurisdiction to entertain injunction applications mounted on the back of originating processes.

Atuguba JSC in Merchant Bank Ltd v. Similar Ways Ltd[20 12] 1 SCGLR 440 @ at page 446, in commenting on the In Re Yendi case stated thus: “Nonetheless the Rules of Court cannot cover every conceivable situation that may arise… there is no provision in the current Supreme Court Rules, 1996 (CI.16) offering him relief. In such a situation, as was held, it is reasonable to grant an injunction to protect his interests pending the determination of an appeal even though no express rule in CI.16 warrants such a course.” (emphasis supplied) Similarly, in Republic v Hi gh Court, Accra Ex parte Compu Ghana Ltd; Accra Mall Ltd (Interested Party): Suit No: J5/25/2019 this Court held that theSupreme Court may grant an interlocutory injunction where the original jurisdiction of the Court is invoked. We must emphasise that the Rules of Court, be they High Court Rules, Court of Appeal Rules, or the Supreme Court Rules do not confer substantive jurisdiction. They only provide rules and regulations for regulating practice and procedure in Court. They are

not to be accorded the sta tus of jurisdiction -conferring enactments. The 1st Respondent’s objection assumes that the Rules of Court, as cited by the Applicant, is the law that grounds this Court’s jurisdiction to entertain injunction Applications. This can be inferred from the 1st Respondent’s prayer that the Application be dismissed as incompetent solely on the ground that the Applicant cited the High Court Civil Procedure Rules in the absence of a prior order directing same.

In Suit No.: J8/131/2019 entitled Ogyeadom Obranu Kwesi Atta VI vrs. Ghana Telecommunications Co. Ltd & Another Civil Motion No. J8/131/2019 (2020- 04-28), this Court its ruling dated 28th April, 2020 held that: “It is also settled law that jurisdiction is conferred by the Constitution or substantive enactments and that rules of court contained in subsidiary legislation only regulate the exercise of existing jurisdiction but do not confer jurisdiction and so canno t take it away or diminish or enlarge it. In the case of Republic v High Court, Koforidua; Ex parte Ansah Otu [2009] SCGLR 141, the celebrated Anin Yeboah, JSC (as he then was) made the following profound statement of the law at page 152 of the report; “The jurisdiction to grant the interlocutory injunction is exercisable by both the Superior Court of Judicature and the Lower Courts in Ghana. Both the 1992 Constitution and the Courts Act, 1993 (Act 459), have conferred jurisdiction on the courts to grant t his equitable relief. It is a relief which the common law courts have always granted, in the exercise of their discretion, when the circumstances appear to be just and convenient. It is, however, granted to protect rights and in some cases prevent any in jury or damage in accordance with laid down legal principles which have developed as a result of case law over the years. In my opinion, the rules of court merely regulate the procedure for applying for judicial reliefs. It does not confer the jurisdictio n on the courts to grant injunctions. In my view, Order 25, r 9(1) and (2) of the High Court (Civil Procedure) Rules, 2004 (CI 47), which learned counsel

for the Applicants has forcefully pressed on this court, is not meant to impose any serious fetters on the discretion of the court in granting an interlocutory injunction, it being a discretionary relief. I think the circumstances of the case must be looked at in considering the grant or refusal of the application for interlocutory injunction. Even thoug h rule 9(1) and (2) of Order 25 requires of an applicant to give an undertaking, it is procedural and should not be interpreted to limit the jurisdiction imposed on the courts by the 1992 Constitution and the Courts Act, 1993 (Act 459).”