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Opinions of Sunday, 3 May 2020

Columnist: Wilberforce Asare

Sam George vs EC: High Court Judge sidestepped the law

What a pleasant surprised it was when I read a three-page ruling of the High Court in Tema, presided over by Justice John Eugene Nyante Nyadu, in suit number E10/15/2020 titled, “The Republic versus The Electoral Commission, (EC) (Respondent), Ex Parte Sam Nartey George (Applicant)”.

The immediate questions that run through my mind was what are the body of laws and the authorities on which the judge (Justice John Eugene Nyante Nyadu), relied to deliver his conclusive ruling in an” ex parte” application.

Let me first make some observations then I will proceed to register my concerns on what I consider an abuse of the legal process.

Preliminary Observations

Firstly, from the ruling of the Tema High Court, it was recorded that the Respondent (EC) was absent from Court. This is so because, the application was brought before the Court without notifying the EC, hence the expression (ex parte).

Secondly, I observed that the High Court judge in his conclusive ruling did not make reference to any authority to support his conclusions. It is a big surprise to see a High Court deliver a ruling that affects a constitutional body without citing a single authority.

Thirdly, the High Court seem to have granted an injunction on the Electoral Commission (EC), a constitutional body, as a result of an ex parte application without giving the EC an opportunity to be heard as required by the rules of natural justice.

The Ex Parte Application

Essentially the applicant, Sam Nartey George, a Member of Parliament, through his lawyers Godwin Dzah and Justice Srem Sai, in an application ex parte, instituted an action seeking to injunct the EC from holding an internal meeting with its staff at the Escape Hotel in Prampram. Their contention was that, should the EC go ahead with its planned meeting with its staff outside their office premises, they would be breaching paragraph (1) (a) (i) and (ii) of the Executive Instrument (EI) 64 of 2020, that imposed restrictions on meetings such as public gatherings, church services, etc in the country and that their meeting is also likely to cause the further spread of the novel Coronavirus, Covid-19 in Ghana.

The Tema High Court Ruling

The High Court in its ruling held that on the balance of convenience, “if the said gathering is not halted and ends up being a conduit for further spread of the Covid-19 virus and the applicant is infected, the resultant outcome may not be adequately compensated for by the award of damages.”
The court further ruled that, “in the circumstances, in view of the fact that the applicants rights under the Executive Instrument 64 of 2020 which is his right to survive the Covid-19 pandemic is threatened by the illegality the respondent is about to commit and for all the other reasons given including the pending application for Judicial Review, I am of the opinion that an injunction should issue.”

“The respondent and all persons claiming through the respondent are to refrain from holding the workshop or conference scheduled to take place at the Escape Hotel Prampram from the 24th of April, 2020. This order is effective from the 24th of April 2020 to the 27th of April 2020,” the court ruled.

Controversial Findings of the Court

It beats the imagination why a High Court Judge with all the authorities available in Ghanaian jurisprudence will proceed to determine a case without giving the other party a right to be heard, particularly, a constitutional body such as the Electoral Commission.

In the recent case of Kevor Mark-Oliver and another versus the National Identification Authority (1st Respondent) and the Attorney General (2nd Respondent), his lordship, Justice Anthony Oppong, a Court of Appeal Judge sitting with additional responsibility as a High Court Judge, explained that the action of the applicants seeking to injunct a body established by an Act of Parliament from carrying out its legal and legitimate duties because of the outbreak of the Covid-19 pandemic in Ghana is totally untenable.

“The contention of the applicants that the work of 1st Respondent (NIA) registering Ghanaians in the Eastern Region is contrary to the Presidential directives appears to look like a drunken giant walking with the limbs of a mosquito, he would certainly fall and that is exactly the view the court takes of the very basis of the applicants’ action,” Justice Anthony Oppong wrote in his judgment.

Justice Oppong for example quoted Justice of the Supreme Court, Julius Ansah JSC, in the case of France (No. 1) versus Electoral Commission and Attorney General [2012] 1 SCGLR, page 689, when he said,

“Thus the principle may be correctly stated that a public authority should not be restrained by interlocutory injunctions from exercising its statutory discretionary powers unless the Plaintiff shows that there is a real prospect that he would succeed in his claim for permanent injunction at the trial.”

To the extent that an entity established by an Act of Parliament according to the High Court, cannot be injuncted from carrying out its lawful duties, perhaps, Justice Nyante Nyadu, ought to have been guided by the recent decision of his senior if he was not even aware of all other authorities in the country’s judicial history such as the Justice Julius Ansah statement above.

Additionally the Imposition of Restrictions Act 2020 (Act 1012), did not in any way grant the High Court injunctive powers. The Act granted the Attorney General prosecution powers which if exercised, leads the court to impose fines, and or custodial sentences. The High Court with all due respect did not demonstrate the source of its power under Act 1012, when it granted the ex parte application of Sam Nartey George to injunct the Electoral Commission from carrying out its lawful duty.

Conclusion

It is the writer’s considered opinion that the Tema High Court Judge, Justice Nyante Nyadu, erred when he first injuncted the Electoral Commission from holding an internal meeting with its Commissioners, Directors, Regional Directors, Deputy Directors and some Senior Headquarters staff, to plan on how to execute their constitutional mandate in the upcoming general election on the 7th of December 2020.

The High Court Judge also carried out a gross miscarriage of justice when he delivered a conclusive ruling as a result of an ex parte application without giving the other party (EC), a fair hearing in fulfillment of the principle of Audi Alterem Partem, (Right to fair hearing).

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