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

Page 1 of 92 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 Page 2 of 92 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. Page 4 of 92 (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 Page 5 of 92 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. Page 8 of 92 (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”. Page 12 of 92 (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. (27) In the instant case, the crucial fact upon which the application is mounted has not only been denied, but has been demonstrated to be contradicted by the very proof [Exhibit “B”] on which the Plaintiff relies to make out his case. (28) As the key fact on which the application is based has been shown to be mere perception, there can be no serious question arising to be tried from this obviously inaccurate assertion which has been vehemently denied by the Defendant (Attorney-General) in paragraph 4 of the affidavit in opposition to the application. (29) Apart from the fact that the application is premised on facts which do not bear out the case for an injunctive relief, the Defendant (Attorney -General) opposed the application by an affidavit in opposition dated the 2nd of May 2025. The Defendant Page 13 of 92 (Attorney-General) referred to Exhibit “AG3” attached to the affidavit in opposition. This affidavit reveals that, the Chief Justice personally requested the President for her comments to the petitions, a request which the President had obliged per Exhibit “AG2” attached to the affidavit in opposition. (30) Having acknowledged these developments, it is difficult to appreciate how the Plaintiff seeks an interlocutory injunction to truncate a constitutional process by seeking a discretionary remedy on grounds which the party directly affected by the alleged default on the part of the President has on the evidence compromised or waived even if the facts on which the application is based were well founded. (31) It is on this point that the second principle in the Welford Quarcoo case becomes relevant and applicable. The second test is that the Applicant must demonstrate that, he will suffer irreparable damage which cannot be compensable by the award of damages, unless the interlocutory injunction is granted. In a reply to the Deputy Attorney-General’s submission to the effect that, the Plaintiff has failed to demonstrate the damage he will suffer if the application is not granted, Plaintiff’s Counsel replied that, that contention applies only to human rights matters. (32) In my view, the Plaintiff’s counsel’s argument does not sit well with the position explained by this court in the Welford Quarcoo case. The case makes it clear that the test applies to constitutional matters as in the instant case. It is also obvious from the Plaintiff’s counsel’s response to the submission made by the Deputy Attorney General that, the Plaintiff’s counsel did not find thi s point answerable Page 14 of 92 because the Plaintiff did not show what damage he will suffer if the application is refused. The application therefore demonstrably fails this second test as well. (33) Finally, I deal with the third test formulated in the Welford Quarcoo case. The point made for the Plaintiff is that, the alleged default by the President which has been shown to be factually incorrect, is one which potentially renders the entire process of the removal of the Chief Justice a nullity. It has been held in a plethora of cases that, where the grant of the final declaratory relief will nullify the act complained about, the grant of an order of interlocutory injunction is inappropriate regardless of the intermediate steps that may have been undertaken during the pendency of substantive proceedings. (34) In the case of Attorney-General Vs. Commission on Human Rights and Administrative Justice (No.2) [1998-99] SCGLR 894 this Court held that, where a constitutional body exceeds its powers and or exercises functions which it does not possess, such excess or exercise is ultra vires the Constitution and therefore null and void and may be so declared by a court of competent jurisdiction. Where such an act is declared null and void, the harm that the Plaintiff will be presumed to suffer if the application for injunctive relief is not granted, would be addressed by the grant of the declaratory relief. Granted therefore that, the Plaintiff had demonstrated in the instant case that, he will even suffer any kind of damage if the injunction is refused, the fact that the Plaintiff has sought declaratory reliefs in the substantive matter to nullify the very acts in respect of which he seeks the present injunctive relief, will militate against the grant of the interlocutory injunction and suspension reliefs sought. Page 15 of 92 (35) This point was articulated in the Welford Quarcoo case. At page 260 of the report, Dr. Date-Bah is quoted as follows: “Where the relief sought relates as here, to a public law matter 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 of the impugned act or omission cannot restore the status quo” [my emphasis]. (36) Finally, the Welford Quarcoo case requires the Court to consider the balance of convenience which means weighing the disadvantages of granting relief against the disadvantages of a refusal to grant. As already noted, the Welford Quarcoo case has provided guidance that, where the relief sought is in the realm of a public law remedy, there must be circumspection in halting further action presumptively for the public good, unless there are very cogent reasons to do so. (37) In the instant case, without prejudice to the eventual outcome of the substantive action therefore, the nullity effect of the alleged default by the President is one which this Court has held will be completely remedied because of the declaratory reliefs s ought by the Plaintiff which if successful will adequately address any unconstitutionality as alleged and a consequential return to the status quo prior to the petitions. Therefore, the instant case is no exception. I have earlier in this ruling demonstrated that, the factual basis of the application before the Court is flawed. The balance of convenience therefore does not favour the grant of the application. (38) I am not oblivious of the depositions made by the Plaintiff referring the Court to statements allegedly made earlier in time by members of government and even Page 16 of 92 the President himself about the need to reset the country including the judiciary. Whereas these statements may be verified to have been made, that per se does not mean that, for as long as this government remains in power, the conduct of the Chief Justice or for that matter any other judge or public officer remain insulated from question or due process under Article 146 of the Constitution or any other law only because of such previous comments. That proposition is clearly untenable. (39) Article 146 of the Constitution does not leave matters relating to the removal of the Chief Justice in the hands of the government of the day, nor the President to initiate. The Plaintiff does not allege let alone establish that, members of the present government provoked the petitions or are in fact, the petitioners. Granted that, members of government are the petitioners, Article 146 requires that the President consult with the Council of State and deal with any such petition by due process of law. (40) The Council of State which includes a former Chief Justice, and other eminent statesmen/women of this Country is a constitutionally implanted institutional check and safeguard which checks the President’s power to act willy nilly to prosecute statements o r comments made on campaign platforms prior to his election into office or thereafter. (41) There is also the requirement of a prima facie determination which the President cannot make by himself exclusively. The President is constitutionally required to make this determination in consultation with the Council of State. Even after the prima facie determination is made, that is not the end of the matter. The Page 17 of 92 Constitution requires that a Committee which includes two of the Chief Justice’s own peers be set up to enquire into the merits of the petition. (42) By these observations, I do not write off the Plaintiff’s political slant, and reliance on social media gossip. I find however that, to push the political button is too simplistic to juridically constitute the grounds for injunctive relief presumptively and prematurely. I therefore do not find any grounds which will justify the exercise of the Court’s discretion in granting any kind of injunction to restrain the President or for that matter the committee set up pursuant to the President’s power under Article 146 of the Constitution from performing its constitutional functions nor suspend the warrant issued under the hand of the President of the Republic to suspend the Chief Justice from office. (43) In this ruling, I have tried not to wade into the merits of the substantive suit which is grounded on the interpretation of the proper application of Article 146 of the Constitution. The law is that, in applications for injunction, care must be taken except in unavoidable circumstances not to determine aspects of the merits of a case prematurely. Although this principle is stated in the context of private civil matters, I see no reason why it should not apply in public law actions. (44) At this stage of the proceedings, I am unable to see any injury that has or would have occasioned the Chief Justice or the people of Ghana, since the alleged threatened injury on the rights of the Chief Justice has been fully mitigated by the actions of both the Chief Justice on the one hand and the President of the Republic on the other. To that extent, at this stage of the proceedings, and without prejudice to the merits or otherwise of the substantive reliefs sought, I do not think it will be a Page 18 of 92 proper exercise of judicial discretion to grant the first injunctive relief sought by the Plaintiff pending the final determination of the action. (45) With respect to the second relief, I do acknowledge the rich line of jurisprudence established by this court to allow for the suspension of an order, direction, ruling, or judgment when the ground rules of Court have not made provisions for the same. This was the avenue developed in situations where normally, a stay of execution is ordinarily not available against non-executable orders. (46) The established and settled legal position is that, in order to succeed in such applications for suspension orders, the test is a demonstration of very exceptional circumstances apart from the nugatory effect test. In Golden Beach Hotels (Gh) Limited Vs. Packplus Int. Ltd. [2012] SCGLR 452 at 459, Dr. Date Bah JSC articulated the position of the law inter alia as follows: “According to the argument we earlier advanced in this Ruling, the criterion for suspending an order of a court below should not be identical with the criterion summarised by Akufo Addo JSC in relation to applications for stay of execution, but would embod y an additional element or requirement. The precise nature of this additional element or requirement we would leave to subsequent cases to develop. However, subject to fine -tunning in the light of the facts of subsequent cases, we would propose that a possible test could be the nugatory effect, referred to in JOSEPH VS. JEBEILLE (supra) combined with the need for exceptional circumstances.” Page 19 of 92 (47) Reference is also made to the case of ANTONIO OLIMPIO SANTOS FELIX VS. GIOVANNI ANTONELLI AND BIGLEBB CONST. & CRUSHING LTD. Civil Motion No.JS/99/2017 dated 20 th July 2017 where Appau JSC following the statement of the attitude of this court made by Date Bah JSC in the Golden Beach Hotels Case also restated the position as follows: “The courts require more than the nugatory effect from a party who wants non-executable orders to be suspended pending appeal otherwise we would be wading into a semantic quagmire, which Date -Bah JSC in the Golden Beaches Hotel case described as a ‘morass of sophistry’. The criterion for the grant of applications of the nature before me, as clearly spelt out in the Golden Beach Hotels case (supra) is; will the appeal be rendered nugatory upon succeeding and if yes, are there any exceptional circumstances to necessitates the suspension of the decision complained of? The nugatory effect alone is not enough to ground an application for suspension of enforcement where an application for stay of execution is not the appropriate remedy.” (48) As I have already indicated in this ruling, the complaint that the Chief Justice’s comments have not been received to warrant the President and the Council of State to proceed with processes of her removal is not only inaccurate but no longer live, as the Chief Justice herself has submitted her comments, which was taken into account in determining whether a prima facie case had been made against her. It is following this constitutional step that, the President set up a committee to inquire into the allegations contained in the said petitions while also exercising the constitutional power vested in him pursuant to Articl e 146(10) of the 1992 Page 20 of 92 Constitution to suspend the Chief Justice from office pending the final determination of the Committee’s work. (49) In my view therefore, depositions made in support of the prayer for suspension and the oral arguments advanced in support thereof, are far from the requirements of the law in granting a suspension order. As already noted, most of the depositions contained in the Applicant’s affidavit are rather set out in politically conjectured language other than an invitation to judicially examine the facts within the context of the relevant applicable law. Consequently, depositions alleging political conspiracy have no place in jurisprudence. They belong to political rallies and platforms. Let it be expressed emphatically that, the Chief Justice has not been removed but suspended from office and therefore the office of the Chief Justice is not vacant. The substantive action before the court is also not an invitation for an interrogation of the lawfulness or otherwise of her suspension. (50) That substantive action, as variously stated only provokes a determination of the constitutionality of whether the consultative processes for her removal had commenced in the absence of her comments or responses first obtained. If there is therefore any irreparable constitutional default which renders the entire process a nullity, no Judge bound by the oath of office and the judicial oath must shy away from stating so in the fullness of time. In the circumstances of this application, I am not satisfied that, the threshold to warrant a suspension of the performance of the duties of the President under Article 146 of the 1992 Constitution, especially clause 10 thereof has been met. Page 21 of 92 (51) I need to emphasise as I said in the case of THE REPUBLIC VS. HIGH COURT, CAPE-COAST, EX -PARTE BRIGADIER GENERAL AUGUSTINE ASIEDU (APPLICANT), EBUSUAPANYIN OPPONG KYEKYEKU (INTERESTED PARTY) Civil Motion No.J5/54/2023 dated 27 th June 2023, “[We] dare say that a cardinal characteristic of the 1992 Constitution, is the vesting of sovereign power in the people of Ghana. It is the people of Ghana who have delegated their powers to others in public offices to administer same on their behalf but w ithin the framework of the laws of the land.” Therefore, under our constitutional dispensation, no person or entity, including the President of the Republic wields or exercises supreme authority immune from constitutional checks. As a country, we invested supremacy in the Constitution. What this simply means is that, every act, omission, conduct or inaction especially pertaining to the exercise of a public law function established by the Constitution must be consistent with the provisions of the Constitution for same to pass the test of validity. (52) The framers of our Constitution while vesting the executive with the power or authority and discretion to act in particular ways, also created necessary constitutional checks to ensure that, the same is not abused. This is central to the principle of separation of powers together with the checks and balances within the frame work of the rule of law. (53) There is good reason why the framers of the 1992 Constitution, vested particular persons, entities or institutions with the power, discretion or authority to exercise in particular situations. When the polity decides to promulgate in clear constitutional language that, the President of the Republic can exercise a particular Page 22 of 92 function under the Constitution, the prohibition of that exercise, or suspension thereof, must find recognition and justification under the very Constitution itself. In the case of the President, he wields the executive power of the state. That power must, however, be exercised in tune with constitutional tenets to advance the welfare of the people. (54) Recognising the danger to injunct or suspend a constitutional duty or power pendente lite , this court has stated the clearest legal position in a plethora of decisions that, the same must be sparingly exercised with extreme circumspection unless there is a clear demonstration that, the case of an Applicant is invariably most likely to succeed for a permanent order of injunction to be made in the substantive suit. That is, there must be extreme exceptional necessity, in the interest of the state and the public at large, as a result of a clear and manifest conduct of constitutional infraction to warrant the court to grant an interlocutory injunction against the exercise of a constitutional function by no mean a person than the President in the exercise of the powers vested in him by the constitution pending the determination of a substantive matte r. The Welford Quarcoo case makes this point loudly. (55) In a more direct statement, Ansah JSC (of blessed memory) speaking for this Court in the Ransford France case (supra) stated as reported in page 693 of the report that: “[A] public authority should not be restrained by interlocutory injunctions from exercising its statutory discretionary powers Page 23 of 92 unless the plaintiff shows there is a real prospect that he will succeed in his claim for a permanent injunction at the trial.” (56) This is also the effect of the case of REPUBLIC VS. HIGH COURT (FAST TRACK DIVISION) ACCRA; EX -PARTE GHANA LOTTO OPERATORS ASSOCIATION (NATIONAL LOTTERY AUTHORITY, INTERESTED PARTY) [2009] SCGLR, SC, 372, Atuguba JSC said at page 400 that: “It is not surprising therefore that it has been held by this court that when a body is entrusted with statutory discretion the courts should be careful not to clog its exercise with injunctions.” (57) Therefore the correct jurisprudence is that, the threshold to injunct the exercise of a constitutional or statutory function, duty, or discretion is not wishful thinking nor is it grounded on conjecturing political conspiracies. There must be sufficient demonstration that, the substantive action before the court is not friv olous, and must have been founded on a clear breach of the constitution or relevant statute. Of equal importance is that, the grant of the injunction pending final determination of the action will advance the public interest. (58) In the instant application, from my examination of the entire processes filed and the oral submissions of both counsel in the round, I am of the considered view that, this is not one of the exceptional situations where the court should be swayed to injunct or suspend the constitutional function of the President of the Republic Page 24 of 92 or any constitutional body or committee from the performance of their constitutional or other statutory functions. (59) Consequently, this application is in my view, devoid of any merit to justify a favourable consideration. It is accordingly dismissed. (SGD.) I. O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD.) P. BAFFOE-BONNIE (AG. CHIEF JUSTICE) Page 25 of 92 CONCURRING OPINION KULENDI , JSC: INTRODUCTION: “Fiat justitia ruat caelum” to wit, let justice be done, though the heavens fall. “I, having been appointed Justice of the Supreme Court, do in the name of the Almighty God swear, that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of the Republic of Ghana; and that I will truly and faithfully perform the functions of my office without fear or favour affection or ill -will; and that I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana, so help me God.” [ See Article 156 and the Second Schedule of the Constitution] The instant application confronts us with a rather peculiar situation, one that requires us to sit in judgment of a matter which directly pertains to our distinguished sister, the head of the judiciary and the primus inter pares of all Justices of this apex Court. Certainly, this rather difficult task requires that we, yet again, remind ourselves of our sacred oath of office and our constitutional duty to act without fear or favour, affection or ill -will. Page 26 of 92 Today, that solemn duty calls us to adjudicate over the propriety of a process affecting the fate of the Honourable Chief Justice, and yet, it is precisely in moments such as these, that justice must be most exacting, for we do not owe fidelity to persons or relationships but to the law. FACTS: 1. On the 25 th of March, 2025, in a document bearing the embossment of the Presidency of the Republic of Ghana, the following communique prepared under the hand of Hon. Felix Kwakye Ofosu, MP, Spokesperson to the President and Minister of Government Communications was published and widely circulated across all traditional and social media platforms: “President Mahama Consults with the Council of State on three (3) Petitions for the removal of the Chief Justice. President Mahama has received three (3) petitions from various persons seeking the removal of the Chief Justice. The President forwarded the three petitions to the Council of State to commence the consultation process mandated by Article 146 of the 1992 Constitution. Signed Felix Kwakye Ofosu, MP Spokesperson to the President Minister, Government Communications” 2. This singular yet epochal disclosure, thrust the entire country into a social and legal furore, dividing opinions about the constitutionality or otherwise of the President’s conduct. Predictably, these contentions and counter -contentons Page 27 of 92 crystallised into the institution of a suit by the Applicant, invoking the original jurisdiction of the Court, on the 27th of March, 2025, praying 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 obta in 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 re moval 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 Superi or 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 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 Page 28 of 92 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 fund amental 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. 3. Following immediately on the back of this writ, the Applicant filed an application for interlocutory injunction praying for an order to, “ restrain the President and the Council of State from proceeding with the consultation process for the removal of the Chief Justice under Article 146 or in any manner until the hearing and final determination of the instant action.” 4. In the Applicant’s view, the conduct of the President in commencing consultations with the Council of State, ostensibly towards reaching a determination, one way or the other, as to whether a prima facie case had been made out against the Chief Justice; without first granting her notice of the said petitions, and the right to react to the same; contravened the sacred principles of audi alteram partem , which according to the Applicant, were impliedly interwoven into every stage of the Article 146 process. Page 29 of 92 5. The Applicant further asserted that this conduct constituted a blatant violation of the constitutionally stipulated safeguards for protecting the security of tenure of the Chief Justice and an egregious frontal assault on the independence of the Judiciary. According to the Applicant, his position, requiring the prior notification of the Chief Justice of the existence of petitions for her removal, and further soliciting her responses before transmitting same to the Council of State, is vindicated by a conjun ctive reading of Articles 146(1), (2), (4), (6) and (7), 23 and 296. 6. In consequence, the Applicant contended that should the impugned processes under Article 146 proceed and be concluded before his substantive action was determined, same would irredeemably undermine the rule of law, the 1992 Constitution and the power of th e judiciary in discharging its function as the impartial arbiter of disputes. 7. Judicial notice must also be taken of the fact that on 27th March, 2025, the very day this suit was initiated, the Chief Justice, in a letter personally signed, addressed the President of the Republic, the Chairman of the Council of State, a member of the Council of State who is also a former Chief Justice, and the Council of State itself. In that communication, the Chief Justice expressly requested to be furnished with copies of the petitions seeking her removal, “ before the conclusion of consultations between the President and the Council of State under Article 146”. 8. The letter was also copied to the President of the Supreme Court, the President of the Association of Magistrates and Judges, and the President of the Ghana Bar Association. Page 30 of 92 9. On his part, the learned Attorney General, on the 7 th of April, 2025, filed an affidavit in opposition to the injunction application deposed to by one Reginald Nii Odoi, a State Attorney, wherein they averred that, sometime between February and March 2025, the President received three (3) petitions for the removal of the Chief Justice. This, according to the learned Attorney General actuated the communique from the offic e of the Presidency on the 25th of March, which has been reproduced in extenso above for its full force and effect. 10. Significantly however, the Attorney General averred that, on 28 th March, 2025 the President, through his executive secretary, wrote to the Chief Justice, formally informing her of the petitions for her removal and further requesting her to furnish him with her responses, to be considered by the Council of State in their assessment of whether or not a prima facie case had been made out against her. 11. On the substantive legal question, the Attorney General roundly rejected the Applicant’s contention and submitted that “ neither the Constitution nor case law (properly considered) requires the President to take a response from a Chief Justice before the determination of whether a petition for the Chief Justice's removal from office establishes a prima facie case.” In the alternative, the Attorney General submitted that assuming arguendo, that any such right existed, no law or precedent required that notice be given and the response of the Chief Justice be sought before the petitions were transmitted to the Council of State. 12. On the 8th of April, 2025, the Honourable Attorney General filed a further affidavit, supplemental to the earlier affidavit in opposition, wherein he informed the Court of the fact that the Chief Justice had, four days prior, being the 4th of April, 2025, at Page 31 of 92 or around 8:30 pm, presented her responses to the three (3) petitions for her removal. According to the learned Attorney General, these responses had accordingly been transmitted to the Council of State for their consideration pursuant to the subsisting consultation process. In proof of the above enumerated assertions, the Attorney General attached as ‘ Exhibit AG4’ series, copies of cover letters transmitting the Chief Justice’s responses to the Council of State. 13. Further, the Attorney General revealed, in paragraphs 6, 7 and 8 of the supplementary affidavit that on or about 18 th December, 2024, one Professor Stephen Kwaku Asare presented a petition to the then President His Excellency William Nana Addo Dankwa Akufo -Addo for the removal of Her Ladyship Getrude Asaaba Torkonoo as Chief Justice. According to the Attorney General, the then President had, consistent with the conduct of the incumbent President, first transmitted the petition to the Council of State to commence the consultation processes. Two days following this tra nsmission, notice of the petition was given to the Chief Justice and her responses sought. 14. According to the Attorney General, this conduct betrayed the argument of the Applicant that there existed a time honoured trend of practice, whereby the President requested the response of the Chief Justice before transmitting the petitions to the Council of State. 15. In rebuttal, the Applicant, on the 27 th of April, 2025, caused to be filed a supplementary affidavit in support of the injunction application. In this affidavit, the Applicant described the affidavits in opposition filed by the Attorney General as exposing an, avowed disposition … to trample on the substantive rights of the Chief Justice to a fair hearing, in pursuit of their preconceived resolve to interfere with judicial Page 32 of 92 independence in this country as enshrined in the Constitution , 1992, by unjustifiably removing the Chief Justice from office. 16. The Applicant asserted among others that the ex post facto delivery of the three (3) petitions to the Chief Justice and subsequent request for her responses were, “a complete afterthought and a mere formality”. The Applicant further submitted that the President acted in bad faith where, despite receiving a number of the petitions sometime in February, 2025, he only formally commenced the removal process in April, 2025, about six weeks after his receipt of same. According to the Applicant, these actions were stimulated by an expressed political intention by the President himself during his presidential campaign to ‘ appoint a Chief Justice who would not be political.’ 17. On these premises, the Applicant branded the extant removal process of the Chief Justice as, “a charade, a farce and merely choreographed to achieve the declared intention of the Government and associates of the current government to remove the Chief Justice at all costs.” 18. The Applicant additionally attached several publications from news platforms reporting on alleged statements from National Chairman and the Deputy General Secretary of the National Democratic Congress which re -echoed the above expressed intentions. 19. Subsequently, on the 24th of April, 2025, the Applicant filed another application for interlocutory injunction seeking the following orders: Page 33 of 92 i. An order restraining any step or action from being purportedly taken as part of the processes for the removal of the Chief Justice under Article 146 or in any manner until the hearing and final determination of the instant action. ii. An order suspending the operation of the warrant of suspension of the Chief Justice purportedly issued by the President under article 146(10) of the Constitution, 1992, until the hearing and final determination of the instant action. 20. The affidavit filed in support of this application was in pari materia with those urged in the affidavit in support of the earlier injunction application. 21. Significantly, the Applicant contended that despite service on the Attorney General of the earlier injunction application, the President, had nonetheless proceeded to release a press statement announcing that a prima facie case has been found against the Chief Justice and further announced the constitution of a five - member panel to inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office. Additionally, the said statement announced the suspension of the Chief Justice, pending the outcome of the committee’s proceedings. 22. The Applicant amongst others, re-emphasised his position that the entire removal process, which had commenced with the transmission of the petitions to the Council of State without notice to the Chief Justice constituted a flagrant violation Page 34 of 92 of the constitution and thus rendered every product of that impugned process, the fruit of the poisonous tree and was to that extent null, void and of no legal effect. 23. The Applicant further re-iterated what he perceived to be overt political influences and motivations that had coloured the instant removal process. In substantiation of this point, he adduced extracts of speeches from the incumbent President, (then candidate John Mahama) where the President expressed his desire for a, “ non- partisan” Judiciary. 24. In a rather concise affidavit in opposition filed on the 2 nd of May, 2025 to this second injunction application, the Attorney General reiterated his stance, endorsing the process for the removal of the Chief Justice as being constitutionally compliant and consistent with Article 146 and the prescriptions of case law. 25. By reason of the overlapping nature of the two applications, the Applicant, when the matter came up for hearing on the 6 th of May, 2025, opted to withdraw his initial injunction application dated the 27 th of March, 2025 and relied exclusively on this subsequent application filed on the 24th of April, 2025. ANALYSIS: 26. In a constitutional democracy such as ours, the framers of the 1992 Constitution, in keeping with the doctrine of separation of powers, divide authority, functions and roles among the Legislature, Executive, and Judiciary. Each branch is co-equal and opera tes within its constitutionally assigned sphere. The Constitution establishes the Executive (presidency), Legislature (parliament), and the Judiciary (Courts) as coordinate branches, each with a realm of autonomy. The Judiciary’s Page 35 of 92 role as guardian of the Constitution must therefore be balanced against the need to respect the autonomy and functions of the elected branches. 27. Flowing from the separation of powers doctrine is the principle of non - interference as a general rule, which implies that each co -equal branches of government should respect the “operational space” of the others. The Judiciary, in particular, is counselled to avoid intruding on the Executive’s and Legislature’s domains except where constitutionally necessary and justifiable. The Courts must be conscious of the vital limits on judicial authority and the constitution's design to leave certain matters to other branches of government. Similarly, the executive and legislature must also observe the constitutional limits of their authority. This means that the judiciary should not unnecessarily and/or without constitutional justification interfere in the functions and processes of other branches of government unless to do so is mandated by the Constitution. 28. Therefore, if the court finds that the function is being performed in contravention of the Constitution, then as empowered under articles 2(1) and 130(1) of the Constitution, this Court has the power to declare the said exercise null and void. 29. Consequently, it is crucial to underscore that labelling a matter as a “political question” is not a license for the Executive or Legislature to violate the clear terms of the Constitution. If a claimant can demonstrate that a political branch has exceeded or abused its constitutional powers, this Court will intervene to say so. 30. It is for these reasons that, in a judgment of this Court dated 9th March, 2022, in suit number J1/07/2022 entitled, Justice Abdulai v. Attorney -General, which judgment I had the privilege of authoring, notwithstanding the fact that matters like the internal management of Parliament are deemed as political questions, this Court nonetheless proceeded to determine the issue on an allegation of a specific Page 36 of 92 constitutional violation concerning the rules of quorum prescribed by the Constitution. 31. Even here however, this Court remained exclusively within the confines of its interpretative and enforcement mandate under Article 130 of the 1992 Constitution and intervened only to the extent of interpreting the constitutional prescription on Parliament ’s quorum and voting rules, but it did not dictate to Parliament how to schedule or conduct its business and debates. 32. Consequently, this Court, generally conscious of the doctrine of separation of powers, has been consistent in the recognition of its mandate under Article 295(8) of the Constitution, to inquire into whether any branch or authority in exercising its function or role is doing so in accordance with the Constitution. This is because, notwithstanding the express reflection of the doctrine of separation of powers Article 295(8) provides that: "(8) No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a Court from exercising jurisdiction in relation to any question whether that person or authority has performed these functions in accordance with this Constitution or the law." 33. It is an elementary principle of constitutional law that the Judiciary, particularly this Supreme Court, stands as a sentinel of constitutional fidelity, vested with an extraordinary mandate under Articles 2(1) and 130(1) of the 1992 Constitution to scrutinize and review the actions of its coordinate arms of government; the Page 37 of 92 Executive and the Legislature, ensuring that their deeds align with the venerable dictates of our Constitution. This solemn duty, in my considered opinion, places the judiciary at the heart of the democratic order and safeguards the sanctity of constitutionalism. 34. Similarly, I am of the opinion that this Court must always be conscious that while the Constitution entrusts it with the authority to review, sufficient restraint and caution must always be applied so as not to upset the delicate balance that exists between the three coordinate and co-equal arms of government. Therefore, in the discharge of our judicial mandate, the relationship of our three arms as being separate but interdependent must eternally nuance our judicial posturing to ensure that in our attempt to achieve constitutional adherence, we do not, in so doing, render either of the two arms inoperative, inefficacious or ineffective and thereby needlessly frustrate or obstruct the due exercise of their powers, functions and respective constitutional prerogatives. 35. Under constitutional law, there is a strong presumption of constitutionality or regularity in favour of official acts of the Executive and Legislature. Courts generally begin with the assumption that public bodies or officials discharge their constitutional duties lawfully and in good faith. This “presumption of regularity” is a deference doctrine that p laces the burden on a challenger to show otherwise. It means that judges do not lightly second -guess the stated reasons or actions by public bodies or officials, and will credit them with constitutional compliance unless clear evidence proves a violation. 36. In the specific case of the executive, the rationale for this presumption is two-fold. First, it acknowledges the constitutional role of the President as an elected official Page 38 of 92 entrusted with significant responsibilities, a trust that should not be casually called into question by the Judiciary. Second, it serves practical institutional needs: if courts had to scrutinize every executive action without this presumption, they would become entangled in constant oversight of the Executive, which would undermine the separation of powers and paralyse the executive branch. In my view, this could not have been the intendment of the framers of our Constitution in investing this Court with our mandates under Articles 2(1) and 130(1). 37. This presumption is captured under section 37(1) our Evidence Act, 1975 (NRCD 323) as follows: “It is presumed that an official duty has been regularly performed.” [See also the case of Ghana Ports & Harbours Authority & Captain Ziem vrs. Nova Complex [2007-08] 2 SCGLR 806 at 808] 38. In his essay entitled Federalist No. 78 titled "The Judicial Department," Alexander Hamilton noted that the judiciary has “no influence over either the sword or the purse; neither force nor will, but merely judgment, ” highlighting that the courts cannot govern or execute policy, as that is the realm of the Executive and Legislature. 39. The framers of our Constitution, obviously influenced by both British and American constitutional traditions, created a system where each arm of government is meant to be a watchdog over the others, but not a usurper. Consequently, in a constitutional demo cracy such as ours, the separation of powers implies that each branch should largely be free to operate within its own sphere without undue interference from the others in so far as they remain within their constitutional remits and except as warranted by lawful and prudent checks. Page 39 of 92 40. In the judgment of this Court dated 13th April 2022, in Suit No. J1/11/2022, titled Michael Ankomah-Nimfah v. James Gyakye Quayson , this Court affirmed its jurisdiction to entertain applications for interlocutory injunctive relief in matters such as the instant case, invoking its original jurisdiction under Articles 2(1) and 130(1) of the 1992 Constitution. We held in that case that : “It is beyond dispute that this Court has jurisdiction to entertain injunction applications whenever its original jurisdiction is invoked.” 41. This position is consistent with a long-standing judicial tradition. In an earlier case of Republic v. High Court, Koforidua; Ex parte Ansah Otu [2009] SCGLR 141 , Anin Yeboah JSC (as he then was) noted: “The jurisdiction to grant the interlocutory injunction is exercisable by both the Superior Court of Judicature and the Lower Courts in Ghana… 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 injury or damage in accordance with laid down legal principles which have developed as a result of case law over the years.” 42. In the milestone case of Welford Quarcoo v. The Attorney General and the Electoral Commission [2012] GHASC 38, Prof. Date-Bah JSC articulated the well- settled principles for granting interlocutory injunctions as follows: “The requirements… are: first, that the applicant must establish that there is a serious question to be tried; secondly, that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory Page 40 of 92 injunction is granted; and finally, that the balance of convenience is in favour of granting… the injunction.” 43. The venerable jurist then added a crucial caveat in matters involving public law: “Where the relief sought relates, as here, to a public law matter, 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 of the impugned act or omission cannot restore the status quo. Given the reliefs that the plaintiff is seeking in the substantive suit in this case, it is clear that if he succeeds in securing the declarations he has claimed, the impugned provisions of the Local Government Act, 1993 (Act 462) will be declared void and any actions made in pursuance of them nullified. Accordingly, no irreparable damage will have been caused the plaintiff during the period between the issue of the writ and the date of judgment. On the other hand, the Government’s programme for the creation of districts would suffer irreparable delay with a knock-on effect on the general elections scheduled for December, which delay cannot be remedied by monetary compensation, if the plaintiff should lose the substantive action.” 44. These cautionary principles are deeply rooted in the doctrine of separation of powers. Preemptive judicial injunctive interference with the constitutionally sanctioned functions of the Executive or Legislature can destabilize the delicate balance envisioned by the framers of our Constitution. 45. As emphasized in the Canadian Supreme Court case of Manitoba (A.G.) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 SCR 110 , Courts in