Assafuah v S (J1/18/2025) [2025] GHASC 140 (6 May 2025)

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IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD. 2025

Coram

BAFFOE-BONNIE AG. CJ (PRESIDING) AMADU JSC PROF. MENSA-BONSU JSC KULENDI JSC GAEWU JSC

6TH MAY, 2025

WRIT NO: J1/18/2025

VINCENT EKOW ASSAFUAH … PLAINTIFF/APPLICANT

VRS

THE ATTORNEY GENERAL … DEFENDANT/RESPONDENT

Ruling

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Majority Opinion

TANKO AMADU JSC:

Background

(1) By writ, issued on the 27 th day of March 2025 the Plaintiff/Applicant (hereinafter referred to as “the Plaintiff”) invoked the original jurisdiction of the Court against the Attorney -General, the Defendant/Respondent, (hereinafter referred to as “the Defendant”) seeking the following reliefs: (i) A declaration that upon a true and proper interpretation of Articles 146(1),(2),(4),(6) and (7), 23, 57(3) and 296 of the Constitution, the President is mandated to notify the Chief Justice about a petition for the removal of the Chief Justice and obtain his or her comments and responses to the content of such petition before referring the petition to the Council of State or commencing the consultation processes with the Council of State for the removal of the Chief Justice. (ii) A declaration that upon a true and proper interpretation of Articles 146(1), (2), (4), (6) and (7), 23 and 296 of the Constitution, a failure by the President to notify the Chief Justice and obtain his or her comments and responses to a petition for the removal of the Chief Justice before triggering the consultation process with the Council of State constitutes a violation of Article 146(6) as well as the constitutional protection of the security of tenure of the Chief Justice who is a Justice of the Super ior Court of Judicature stipulated in Article 146(1) of the Constitution.

(iii) A declaration that upon a true and proper interpretation of Articles 146(1), (2), (4), (6) and (7), 23, 57(3) and 296 of the Constitution, a failure by the President to Page 3 of 92

notify the Chief Justice and obtain his or her comments and responses to a petition for the removal of the Chief Justice before triggering the consultation process with the Council of State amounts to an unjustified interference with the independence of the Judiciary enshrined in Article 127(1) and (2) of the Constitution.

(iv) A declaration that the failure by the President to notify the Chief Justice and obtain her comments and responses to a petition for the removal of the Chief Justice before triggering the process for her removal, constitutes a violation of the fundamental right to a fair hearing contained in Articles 23 and 296 and renders the consultation processes for the removal of the Chief Justice initiated by the President null, void and of no effect;

(v) Any other order(s) as to this Honourable Court may seem meet.

(2) The Plaintiff immediately applied to the court for an order of interlocutory injunction praying the Court for an order to restrain the President and the Council of State from proceeding with the consultation processes for the removal of the Chief Justice under Article 146 of the 1992 Constitution until the final hearing and determination of the suit.

(3) On the 24 th of April 2025 while the injunction application filed was pending and yet to be heard, the Plaintiff filed a second application for an order of interlocutory Injunction.

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(4) In the affidavit in support of the second injunction application, it was deposed on behalf of the Plaintiff in paragraphs 4 to 6 of the affidavit that, although his first application for injunction sought to restrain the President of the Republic and the Council of State from proceeding with the process of consultation on the petitions for the removal of the Chief Justice, the consultation process nevertheless continued. This resulted in a determination that the petitions had made out prima facie cases against the Chief Justice requiring the setting up of a committee to investigate them. It is further alleged that, based on this determination, the President proceeded to suspend the Chief Justice on the advice of the Council of State.

(5) From the Plaintiff’s own depositions in the said paragraphs 4 to 6 of the second application, the Plaintiff’s first injunction application had become moot. Indeed, in the proceedings before the Court, the Plaintiff conceded the point that the first injunction application had been overtaken by events. The Plaintiff therefore, moved his second injunction application.

The Application

(6) In this application, the Plaintiff prays the court for two reliefs formulated as follows: i. “An order restraining any step or action from being taken as part of the processes for the removal of the Chief Justice under Article 146 or in any manner, and

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ii. An order suspending the operation of the warrant of suspension of the Chief Justice Issued by the President under Article 146(10) of the Constitution 1992 until the hearing and final determination of the instant action.”

(7) As deposed to in paragraph 7 of the affidavit in support of the application, the pith and substance of the Plaintiff’s suit before the Court on the back of which the Plaintiff invokes the discretion of the Court for injunctive relief: “…is that the consultations initiated by the President with the Council of State to determine whether a prima facie case is disclosed. In the three petitions against the Chief Justice, when the Chief Justice had not been notified of the petitions, was a flagrant violation of the Constitution and renders the whole process under Article 146 null, void and of no effect.”

(8) The clear import of the above deposition is that the Plaintiff takes the view that the President initiated consultations with the Council of State to determine whether a prima facie case is disclosed in the three petitions against the Chief Justice, without notifying the Chief Justice of the petitions. The veracity or otherwise of this position will be interrogated shortly in this ruling.

(9) In support of his case for injunction, it has been deposed in paragraphs 8 to 16 of the affidavit in support of the application that, the whole process for the removal of the Chief Justice is a contrived scheme plotted by the President and the National Democratic Congress [NDC] government to remove the Chief Justice from office. This scheme, the Plaintiff contends had been hatched even before the NDC government came into office. The deposition in paragraph 16 of the affidavit in support of the application is set out as follows:- Page 6 of 92

“That I am advised by Counsel and verily believe same to be true that, the Article 146 proceedings Initiated against the Chief Justice so far, are a ruse to give effect to the avowed determination of the current Government to unconstitutionally remove the Chief Justice from office.”

Merits of the Application

(10) It is now trite that in the area of public law, where this dispute belongs, one of the first principles that the Court considers in the exercise of its discretion with regard to injunction applications is that, the Applicant must show that there is a serio us question to be tried. See the case of WELFORD QUARCOO VS. ATTORNEY GENERAL AND ANOTHER [2012] 1 SCGLR 259 at page

260. The Welford Quarcoo case was applied by this Court in the subsequent cases of RANSFORD FRANCE (NO.1) VS. ELECTORAL COMMISSION & ATTORNEY -GENERAL [2012] 1 SCGLR 689 at page 692 AND NDEBUGRE (NO.1) VS. ATTORNEY - GENERAL, AKER ASA & CHEMU POWER CO LTD. (NO 1) [2013-2014] 2 SCGLR 1134.

(11) In Welford Quarcoo Vs. Attorney General and Another (supra), Dr. Date-Bah JSC as reported in page 260 of the report, articulated the position of the law as follows: “It has always been my understanding that the requirements for the grant of interlocutory injunctions are; first, that the Applicant must establish that there is a serious question to be tried; second, that he or she would suffer irreparable damage which cannot be remedied by the award of Page 7 of 92

damages, unless the interlocutory injunction is granted; and finally that the balance of convenience is in favor of granting him or her the interlocutory injunction. The balance of convenience of course means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief. Where th e relief sought relates as here, to a public law matter (emphasis mine) particular care must be taken not to halt action presumptively for the public good, unless there are very cogent reasons to do so, and provided also that any subsequent nullification o f the impugned act or omission cannot restore the status quo” [my emphasis].

(12) In Ransford France (No.1) Vs. Electoral Commission & Attorney-General (supra), Ansah JSC (of blessed memory) quoted the dictum of Dr. Date -Bah JSC above and concluded as reported in page 692 of the report that: “This is a good summary of the law on the grant of interlocutory injunction in an area of public law and I adopt it as my own.”

(13) In the light of the authorities cited, the first question that must be determined in this application is whether the Plaintiff has demonstrated from the affidavit in support of the application that, there is a serious question to be tried in this suit having regard to the allegations on which the application is founded.

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(14) To answer the question, I first interrogate the key fact on the back of which the application before the Court is made. As aforesaid, this is deposed to in paragraph 7 of the affidavit in support of the application which I reproduce as follows: “(7) That the thrust of the instant action is that the consultations initiated by the President with the Council of State to determine whether a prima facie case is disclosed in the three petitions against the Chief Justice, when the Chief Justice had not been notified of the petitions, was in flagrant violation of the Constitution and renders the whole process under Article 146 null, void and of no effect”.

(15) The Plaintiff thus contends in paragraph 7 of his affidavit in support of the application that, the upshot of his case is that, the President initiated consultations with the Council of State to determine whether a prima facie case is disclosed in the three petitions against the Chief Justice, without first notifying the Chief Justice of the petitions. This contention has been is premised on the provision in Article 146(6) of the 1992 Constitution which provides as follows: “146“(6) Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President , and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers.”

(16) It is noted that, the provision was interpreted by this Court in the case of Agyei Twum Vs. Attorney General & Akwetey [2005-2006] SCGLR

732. In that case, Dr. Date-Bah JSC held that the requirement that petitions for the removal of Justices Page 9 of 92

of the Superior Courts must first be filtered through the prima facie test clearly stated in Article 146(3) of the Constitution must be read into the provisions of Article 146(6) in respect of petitions for the removal of the Chief Justice as well, even though Article 146(6) does not so specify, such that, petitions for the removal of the Chief Justice, must also first surmount the prima facie test.

(17) Be that as it may, to support his case that the President initiated consultations with the Council of State to determine whether a prima facie case is disclosed in the three petitions against the Chief Justice, without first notifying the Chief Justice of the petitions, the Plaintiff relies on Exhibits “B” and “C” attached to his affidavit in support of the application.

(18) Indubitably, Exhibit “B” is a letter from the Office of the President dated 28th March 2025. In the first paragraph of this letter, the President informs the Chief Justice of his receipt of the petitions. In paragraph 2 of Exhibit “B”, it is conveyed as follows: “2. Following receipt of these petitions, on 24th of March 2025, His Excellency wrote to the Chairman of the Council of State forwarding the petitions and Informing Council that , In accordance with the consultation process required under Article 146(6), he Intends, as an Initial step, to send the petitions to you [the Chief Justice] for your preliminary comments or response.”

(19) Clearly therefore, Exhibit “B” admits of no ambiguity at all. Exhibit “B” actually assures the Chief Justice that her comments and responses to the petitions will be sought before the prima facie determination is made. The President therefore Page 10 of 92

caused to be categorically conveyed in Exhibit “B” that, his information to the Council of State on the petitions includes a direct communication to the Council of State that he “he intends, AS AN INITIAL STEP, to send the petitions to you [the Chief Justice] for your preliminary comments or response.”

(20) There is thus no need to waste any judicial time on the meaning of the word “initial”. It clearly and simply means that before any other thing is done in respect the petitions, the first thing the President has decided to do is to have the Chief Justice provide her comments and responses to the allegations contained in the petitions, before any consultations with the Council of State can proceed to determine the question of whether a prima facie case has been made by the petitions. It is therefore factually incorrect as the Plaintiff puts out that, the initial consultations between the President and the Council of State was to determine whether a prima facie case is disclosed in three petitions against the Chief Justice.

(21) In Exhibit “B”, it is clearly communicated to the Chief Justice that, her comments and responses were the first matter to be considered before the President and the Council of State will evaluate the petitions to determine whether the petitions had met the prima facie threshold. For this reason, it is also inaccurate that, the President initiated consultations with the Council of State to determine a prima facie case, without first notifying the Chief Justice of the petitions.

(22) It is also apparent from Exhibit “B” that, there is no question whatsoever that, the Chief Justice was not only to be notified of the petitions before the prima facie determination will be made but her comments and responses to the petitions were Page 11 of 92

to be first sought before such determination. Before doing so however, the President had acted in compliance with the provisions of Article 146(6) of the Constitution to first “inform” the Council of State, as clearly stated in Exhibit “B", after which the petitions will be referred to the Chief Justice for her comments and responses prior to the prima facie determination process.

(23) As conveyed in Exhibit “B”, the communication on behalf of the President states in paragraph 3 thereof thus: “3. On 27th March 2025, His Excellency received responses from the Chairman of the Council of State consenting to this request. Copies of these letters are also attached.”

(24) The initial communication with the Council of State therefore, was simply to inform the Council of State of the receipt of the pending petitions and no more. There is nothing in Exhibit “B” which directly or indirectly suggests that the President’s communication to the Council of State was the beginning of the prima facie determination process.

(25) As noted in Exhibit “B”, the reactions to the initial information from the Minister of Communications at the Presidency [Exhibit “C”] was needlessly and completely hysterical. The facts deposed to in paragraph 7 of the affidavit in support of the application before the Court which oxygenates this application, and the entire suit is undoubtedly asphyxiated by the clear words of Exhibit “B”.

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(26) I refer to the case of Owusu Vs. Addo [2015-2016] SCGLR 1479 which although dealt with an application for stay of execution, I find the principle laid down in that case by the Chief Justice at the time, Wood CJ, relevant and applicable to all applications. In that case, the Learned Chief Justice held that applications are predicated on the facts deposed to in the accompanying affidavits and annexures, if any. In like manner, challenges to such applications are by parity made through the factual depositions contained in opposing affidavits, including annexures if any. Consequently, a challenge to any of the material facts on either side of the legal divide, triggers the full panoply of the evidentiary rules related to the burden of proof. Thus, if a party challenges a material fact as deposed to and the party on whom the burden of persuasion lies, fails to discharge the legal burden, that fact may, properly be classified as an unproven fact and cannot ground a grant or refusal of the application as the case may be. See pages 1492-93 of the report.