Fast Track Court says no to first motion

Friday, January 1, 2009 (Second Lead Story)

THE Accra Fast Track High Court yesterday refused to hear an ex-parte application for interim injunction filed by the New Patriotic Party (NPP) and its Chairman, Mr Peter Mac Manu, against the Electoral Commission (EC) and its chairman.
The court, instead, indicated that looking at the nature of the case and the exigencies, it was prudent for the interested parties, namely, Prof John Evans Atta Mills, the presidential candidate of the National Democratic Congress (NDC), and the NDC to be served on notice with the pleadings to enable them to react appropriately.
He also reminded the plaintiffs that the EC was only a referee between the NPP and the NDC and for that matter it was important that the NDC was served on notice to respond to the issue raised.
Consequently, Mr Justice Edward Amoako Asante adjourned the hearing to Monday, January 5, 2009 and asked the applicants to serve the interested parties by 10 a.m. today to enable them to respond by 4 p.m on Sunday.
The applicants were represented by Mr Atta Akyea and Mrs Irene Addo. On the other side were Mr Samuel Cudjoe, who described himself as a friend of the court, Mr Tony Lithur, Mr Bram Larbi and Mr Fui Tsikata, among a host of other lawyers.
But the parties to the suit were not in court and the writ was to restrain the EC from going ahead to declare the final results of the presidential election without a re-run of the Volta Region election results.
Mr Justice Asante resumed his seat at exactly 11.45 a.m., paving the way for the day’s proceedings to start.
Tempers flared in court but the judge acted tactfully in handling the issue.
The nature of the writ was not made known and after Mr Atta Akyea had announced himself and had been asked by the court to proceed with his application, Mr Cudjoe told the court that as a friend of the court, he was of the view that its sitting was in breach of the Public Holiday Act, Act 601.
Before he could finish with his submission, the judge told him that the Chief Justice had issued a warrant to authorise the sitting, but Mr Cudjoe proceeded and indicated that it was only the President who, under Order 79 of the Rules of Court, could order the court to convene on a public holiday.
He said the Schedule of Act 601 had listed a number of days as public holidays, and they included January 1, on which any business, apart from those related to the essential services, was prohibited.
“On a public holiday, the Judicial Service cannot operate. It is an offence to sit on a public holiday,” he declared, adding that a breach of that suffered a penalty of 100 penalty units or three months imprisonment or both.
Mr Cudjoe said the only exception to the provision was when the President, by Executive Instrument, ordered the court to sit on a public holiday. Therefore, the warrant issued by the Chief Justice was wrong because she did not have the power to do that except an order from the President.
“The court will have to abide by the provision. Anybody who insists that the court sits is causing an offence,” he said.
Mr Akyea described the argument by Mr Cudjoe as unfortunate and a misrepresentation, since the President was not the head of the judiciary, although business activities in governmental institutions were covered by Act 601.
“It is Order 79 that guides this court and since counsel drew his own sword, he must die by it,” he said, and pointed out that the Chief Justice could set aside any day for the court to sit as the circumstances required.
He drew the analogy that even on a Sunday somebody had gone to the house of a judge to have judgement in his favour to prevent the taking away of a child from the jurisdiction.
According to Mr Akyea, the argument would undermine the Constitution of Ghana in which the judiciary was a separate body not answerable to the President or any authority.
He said the Court’s Act was clear that the Chief Justice could appoint any judge to sit on any day, including vacations, and, therefore, the court should exercise its jurisdiction accordingly and reject claims to appoint the President as the head of the judiciary.
“This court should not allow a crisis situation to be created because of the pleasure of a friend of the court. The objection has no basis in law because the court does not work for other essential services listed under Act 601,” he argued.
Mr Cudjoe rose and said when it came to the courts sitting during the vacation, the Chief Justice had the authority, yet she should abide by the law.
Mr Fui Tsikata also intervened to ask the court not to jeopardise the constitutional provisions by entertaining the matter in the first place because it did not have the power to make the order that it made.
”This is illegal and subverting the legal process,” he claimed.
The judge intervened in the ensuing exchanges but Mr Lithur challenged Mr Akyea over what he described as ethical issues of the law profession which would be taken up.
Mr Justice Asante ruled that having listened to the arguments, he was of teh view that yesterday was a public holiday and a vacation as well but siunce he had a warrant to go on with the case he would proceed and subsequently made teh orders.
He said
Supporters of the NDC who initially did not understand the import of the court’s action were angry but their leaders explained matters to them to calm them down.
Some of the comments they initially passed were: “When it was our time, we handed over to you peacefully. Now you don’t want to hand over peacefully”; “We cannot believe the Chief Justice can order a judge to sit on a public holiday”; “The whole world is watching you”; “Hand over power and preserve the remaining dignity you have, if any”, among many others.
That notwithstanding, they left the heavily guarded court premises calm and a bit cheerful.