FRIMPONG & 4 ORS VRS GYAN CUDJOE & 2 ORS (J8/18/2025) [2024] GHASC 63 (5 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2024 CORAM: KULENDI JSC SITTING AS A SINGLE JUDGE CIVIL MOTION NO: J8/18/2025 5TH DECEMBER, 2024 1. GYEDU FRIMPONG 2. AKUDIBILLA DANIEL 3. ENOCH NTIAKOH ….. APPLICANTS/ 4. ISAAC TWUM APPLICANTS 5. DORIS AIDOO VRS. 1. JOANA GYAN CUDJOE 2. THE NATIONAL DEMOCRATIC CONGRESS ….. INTERESTED 3. THE ELECTORAL COMMISSION PARTIES RULING KULENDI JSC. The Applicants have by an ex-parte motion filed on the 4th of December 2024, prayed this Honorable Court for the grant of an ex parte order of interim injunction. Significantly, this application is brought only (3) three days prior to the conduct of the all-important December 7th elections organised by the 3rd Interested Party, for the Page 1 of 16 purpose of electing individuals at the Presidential and Parliamentary levels, to steer the affairs of this nation, for the next four years. The Applicants are praying this Honourable Court for the grant of an ex parte order of interim injunction restraining the 3rd Interested Party, their agents, servants and assigns from organizing the Parliamentary Constituency elections in Amenfi Central Constituency in the Western region of the Republic of Ghana which would include the 1st Interested Party, Joana Gyan Cudjoe as the Parliamentary candidate for the Amenfi West Constituency representing the 2nd Interested Party, the National Democratic Congress. Having set out the request tabled by the Applicant to this Court, I consider it necessary to set out in full the material depositions of the Applicant which have animated the filing of the instant application in order to properly situate my analysis, findings and conclusions: “I, MAAME EFFUA BENTUM, ESQ, of House No. 5 Owula Mampong Okai Street, (Suhum Street) Kokomlemle, Accra, make oath and say as follows: 1. That I am the Deponent herein and a Lawyer at Amoakwa-Boadu & Osei- Mensah Law Consult, lawyers for the Applicants/Applicants herein. 2. That I have the consent and authority of the Applicants to depose to this Affidavit which unless otherwise stated are facts within my personal knowledge, information and belief which said facts have come to my knowledge in the course of my duties as Counsel for the Applicants. 3. That at the hearing of this application, Counsel shall seek leave of this Honorable Court to refer to all processes filed in this suit as if same were reproduced in this Affidavit in extenso and sworn to on oath. 4. That on the 2nd December 2024, Applicants caused their lawyers to file a Certiorari Application in the registry of this Honourable Court against the Page 2 of 16 High Court, Sekondi and serve same on the Interested Parties for a Ruling given by the High court Sekondi on the 11th of November 2024, to be brought up to this Honourable Supreme Court for same to be quashed. 5. That it is a known fact that the date for both the 2024 national Presidential and Parliamentary election is the 7th of December 2024. 6. That It has come to Applicants' attention that the 3rd interested party has issued a Notice of Poll in which the 1ST Interested Party is part of aspiring parliamentarians scheduled to be voted for on the 7th of December 2024. 7. That it is the case of the Applicants that if the 3rd Interested Party is allowed to organize the election as scheduled with the 1st Interested Party standing on the ticket of the 2nd Interested Party, the application before this Honourable Court as well as the matter in suit No would be rendered moot and any Ruling by this honourable Court would be rendered nugatory and of no effect. 8. That the gravamen of the suit before the High Court, Sekondi, is that the 1st Interested Party has forged party cards and used same during the process that culminated in her election as the Parliamentary candidate for the 2nd Interested Party. 9. That an Injunction was granted injuncting the 3rd Interested Party from issuing a Notice of Poll in which the 1st Interested Party would be part of aspiring parliamentarians scheduled to be voted for on the 7th of December 2024. 10. That on the 11th of November 2024, this injunction was revoked by the High Court, Sekondi, paving way for the 1st Interested Party to be added as a Parliamentary Candidate for the 2nd Interested Party. 11. That this declarative relief sought by the Applicants is still an issue which is yet to be determined by the Honourable High Court at Sekondi. 12. That on the 11th of November 2024, this Order of Injunction was revoked and dissolved, paving the way for the 1st Interested Party to stand as a Page 3 of 16 Parliamentary candidate even though the High Court had not determined the matter of forgery as prayed for in relief "b" on the face of the Writ of Summons. (Attached hereto and marked as Exhibit "MEB 5" is the Ruling of the High Court, Sekondi given on the 11th of November 2024). 13. That it is urgently necessary for this Honourable Court to immediately make an order of interim injunction restraining the 3rd Interested Party, hirelings, agents, workmen, relatives, howsoever described from going ahead with the Parliamentary elections in the Amenfi Central Constituency for a period of 10 days while the Applicant prepares to file a Motion on Notice for Interlocutory injunction. 14. That if the 3rd Interested Party is not restrained, they shall carry on with the elections and render all the applications and substantive matter before the courts moot and any ruling and judgment therefrom of no effect whatsoever. WHEREFORE I swear to this affidavit in support. A preliminary legal issue, which the Court had cause to draw the attention of Counsel for the Applicant’s to was the fact that whilst the instant interim injunction application was filed at 12:20pm on the 4th of December, 2024, it was filed without the required statement of case which was mandated by the applicable rules of Court, to be attached to any application for injunction. Curiously, the statement of case, which set out the Applicants legal arguments, complete with applicable legal authorities, was filed at 3:00pm, over two hours after the instant application had been lodged before this Honorable Court. When queried by the Court on this anomaly, Counsel argued, rather strangely, that in his estimation, having filed the Statement of case prior to the hearing of the injunction application, he had fulfilled the requirements of the law. Page 4 of 16 Order 25 Rule 1(3) of the High Court Civil Procedure Rules, 2004 (C.I. 47) provides as follows: “The applicant shall attach to the Motion paper and supporting affidavit, a statement of case setting out fully, arguments including all relevant legal authorities in support of the application” It is a settled learning that the use of the word ‘shall’, invoked a mandatory obligation on the part of the applicable duty bearer to comply with the prescription of law. This interpretative convention received statutory blessing under Section 42 of the Interpretation Act, 2009 (Act 792) which states that: “In an enactment the expression "may" shall be construed as per-missive and empowering, and the expression "shall" as imperative and mandatory” In my considered view, the only logical inference to be drawn from the the stipulation under Order 25 Rule 1(3) that the Applicant “attach” the statement of case to the motion paper and supporting affidavit is that, the said statement of case must be filed contemporaneously together with the said application, as is the case in respect of the filing of a Writ of Summons and Statement of Claim. Anything short of this, in my opinion, fails to meet the requirement of the law and is amenable to be set aside. Given the national interest and overarching political impact of the instant suit however, I take inspiration from the words of the venerable Atuguba JSC. in the case of Opoku and Others (No.2) v. Axes Co. Ltd (No.2) [2012] 2 SCGLR 1214, where the learned judge, speaking with characteristic clarity and intuition, opined as follows: Page 5 of 16 “For the avoidance of doubt however I would emphasise that Order 81 of C.I. 47 is truly a comprehensive insurance policy covering all procedural defects arising from the provisions of C.I. 47 except where the same also have a constitutional pedestal.” In the circumstances therefore, despite the irregularity in the filing of the application and the statement of case, I shall exercise a discretion of regularizing and admitting the said process having regard to the special circumstances of this case and given the substantial constitutional and public interest considerations implicated in this matter in order to proceed to consider the instant application on its merits. The settled and time honored practice has always been the fact that in instances where the Rules of the Supreme Court, do not expressly provide for any particular procedural matter, appropriate resort and recourse, with the necessary modifications, may be made either by a party or by this Court to the prescriptions of the High Court Civil Procedure Rules, 2004 (C.I. 47) which inarguably forms the most comprehensive and robust body of procedural rules regulating civil litigation in Ghana. Instructively, this position was reiterated in a judgment of this Court dated 13th April, 2022, with Suit No.: J1/11/2022 entitled Michael Ankomah-Nimfah v. James Gyakye Quayson & 2 ORS, which I had the privilege of authoring, as follows: “The High Court Civil Procedure rules only provide the procedure for the invocation of the jurisdiction of the Court. In the absence of any known procedure prescribed by the Supreme Court Rules, an Applicant who applies for interlocutory injunction and files his application in compliance with the procedure prescribed under the C.I. 47 cannot be said to be in error. This Court, being the Apex Court of the Land, is empowered to apply the rules and procedure of all courts where the justice of the case so demands.” Page 6 of 16 On this premise therefore, recourse shall be made to Order 25 Rule 1 (7, 8, 9, 10 and 11) of the High Court, Civil procedure rules, which provisions define the scope and application of interim injunction applications and orders. To ensure a precise and unadulterated rendition of the applicable rules, these provisions shall be set out in extenso: “Order 25 Rule 1 7. In case of urgency, a party may make an application ex-parte supported by an affidavit. 8. An application made ex-parte under subrule 3 shall not be granted unless the applicant gives sufficient reasons for making it ex-parte and specifies some irreparable damages or mischief which will be caused to the plaintiff if the plaintiff proceeds in the ordinary way. (emphasis mine) 9. Where an order is made pursuant to an application made ex-parte under subrule (3) it shall not remain in force for more than ten days. 10. If no application is made on notice to extend the order it shall lapse after the expiration of ten days from the making of the order unless the Court otherwise directs. 11. The Court may upon an application by any party affected set aside an order made ex-parte under sub rule (7) on such terms as it considers fit.” The kernel of the Applicants case before this Court, is, in my view, captured in paragraphs 7, 13 and 14 of his affidavit in support and can be summarised in the following statement, Page 7 of 16 “That unless the Electoral Commission is injuncted from conducting Parliamentary elections at the Amenfi Central constituency, the 1st Interested Party shall proceed to contest the elections and shall thereby render the certiorari application before the ordinary panel of this Court, and the substantive suit before the High Court, moot and render nugatory, any potential remedies, that the Applicants may be entitled, should they succeed in their certiorari application or in the substantive action before the High Court, Sekondi.” It must be emphasised that an injunction application by its very nature carries a restrictive and limiting effect, as it ordinarily restrains a party from the performance of actions that he or she ordinarily may have been entitled to undertake. It is for this reason that this discretion is exercised with great caution and restraint. The venerable jurist and author, S. Kwami Tetteh, in his magnum opus, Civil Procedure, A Practical Approach, at page 483, set out the jurisprudential contours along which the Court ought to exercise this special discretion as follows: “The main feature of an order of injunction is that it may issue only when it is just and convenient to do so, and in this regard, the court may grant an order to the Plaintiff although the relief of injunction is not claimed in the writ of summons. The court would therefore make an order for interlocutory injunction upon application whenever it becomes necessary in the course of the action, as where the Respondent to the application engages or proposes to engage in acts likely to cause irreparable injury to the applicant, such as causing damage, changing or concealing the subject matter in dispute or any other act that may tend to jeopardise the efficient administration of justice.” (emphasis mine) Unlike with most legal concepts and phenomenon, there is a certain ubiquitous acceptance of the view that for a party to merit the favorable exercise of the Court’s Page 8 of 16 discretion to grant an application, he must meet the threshold of proving the risk of some irredeemable damage or irreparable injury, which his case, the society at large, or even the administration of justice, stands to suffer, should the application not be met. The duty of judicial circumspection and restraint which is invoked in the consideration of such injunction applications, is even more compelling in circumstances such as these, where the injunction application is brought without notice to the other side, and therefore must be considered without the benefit of hearing the rebuttals or counter arguments of the affected parties. In the case of New Partriotic Party v. Electoral Commision & Anor (No 1) 1993 - 4 1 GBR 1- 153, Aikins JSC submitted as follows: “The governing principle for consideration of applications of this nature, that is, for an interim injunction, was aptly enunciated by the Court of Appeal in the case of Vanderpuye v. Nartey [1977] 1 GLR 423 at 432 when that court said: “The governing principle should be whether on the face of the affidavits there is need to preserve the status quo in order to avoid irreparable damage to the applicant and provided his claim is not frivolous or vexatious.” Consistent with these settled principles, it is my considered opinion that Order 25 Rule 1(8) of the C.I 47 prescribe the following threshold which a party ought to meet to warrant the intervention of a Court by way of an interim injunction: 1. Firstly, that having regard to the pleadings and affidavit, the basis on which the injunction is sought is not frivolous; a consideration variously termed as whether the Applicant has established a prima facie case. This is to say, whether having regard to the reliefs sought, the allegations per the Applicant’s pleadings and the contentions in Page 9 of 16 the Applicant’s affidavit in aid, the plaint of the Applicant if proven, amounts to a cause of action cognizable at law. A court therefore ought not give consideration to a prayer for an interlocutory or interim injunction where upon all the considerations aforesaid, the kernel of the Applicant’s action is manifestly frivolous, untenable and/or not precisely known to law. 2. Secondly, the Applicant must provide sufficient reasons for requesting the injunction ex-parte, detailing the exigent, urgent and compelling circumstances that make it impossible or impractical for the opposing party to be heard before determining the application; and secondly and more importantly; 3. Thirdly, the Applicant must specify the irreparable damage or mischief that he would be caused to his/her case, the society or the administration of justice, if the injunction is not granted. 4. Finally, that the balance of hardship and/or convenience preponderates towards the granting of the interim injunction. This threshold may be met upon proof of some threat of such clear and imminent harm, substantial enough to warrant immediate intervention by the court without prior notice to the party or parties that will affected by the order. In an attempt to justify a favourable exercise of this Court’s discretion, the Applicants have contended that their case before the High Court, Sekondi borders amongst others on grave and criminal allegations of forgery, which are yet to be determined by the Court and therefore, should the 1st Interested Party be allowed to contest the elections, this would irredeemably undermine their case as same would be rendered, moot. Additionally, the Applicants have urged on the Court the position that their certiorari application before this Court and their substantive suit before the High Court shall be Page 10 of 16 rendered moot and any potential reliefs nugatory, if the 1st Interested Party participates in the instant election. Jurisprudentially, an issue is described as having been rendered moot, when by reason of ensuing events, that issue has become irrelevant or no longer requires a resolution by the court. That issue, in colloquial legal parlance, would be deemed to have been “overtaken by events”. Conventionally, this typically occurs when circumstances have changed such that the court's decision would no longer have a practical impact on the parties involved. In the case of Mensah v. Attorney General [1997-98] 1 GLR 227 - 281 this Court concluded as follows: “In other words, a case is moot "when the issues presented are no longer, 'live' or the parties lack a legally cognizable interest in the outcome": see the US case of Powell v. McConnack, 395 US 486 at 496 (1969) per Chief Justice Warren delivering the opinion of the court.” In such instances, the Court may decline to hear it because judicial resources are generally reserved for cases where their decisions will have a tangible effect. The Courts, after all, will not make a decision which is, “brutum fulmen”. With due respect to Counsel for the Applicants, I find this argument most absurd. Firstly, elementary principles of law have categorically established that fraud (or in this case forgery) is so fundamental a vitiating factor that when established, has the tendency of annulling every act which traced its foundation from the said fraud. In consequence, the Applicant’s argument that their action alleging fraud and forgery on the part of the 1st Interested Party would be rendered moot by a participation in the election is clearly misplaced and I proceed to reject same. Page 11 of 16 This Court, in recent years has had cause to annul the election of Mr. James Gyakye Quayson, over two years into his purported election into the office of Member of Parliament for Assin North by reason of the fact that he was, at the time of the filing of his nomination forms, not qualified to be elected as Member of Parliament. Indeed, when questioned on the merits of his argument that his action before the High Court would be rendered moot, Counsel for the Applicants admitted that if his action before the High Court succeeded, the Court just as easily could annul the nomination and election of the 1st Interested Party on grounds of her proven forgery. It would seem that upon perceiving the frailty of this line of argument, Counsel for the Applicants jettisoned his initial claim of ‘mootness’ and sought to rather suggest that the coffers of the State would be subjected to undue financial strain, in the event of an eventual disqualification of the 1st Interested Party and the consequential need for fresh elections to be conducted in the Amenfi Central constituency, at the expense of the State. Significantly however, Counsel attached as Exhibit 2 series at page 2, a copy of a Notice of Polls published by the 3rd Interested Party which featured the photograph and details of the 1st Interested Party as a Parliamentary candidate in the election on the ticket of the 2nd Interested Party. I cannot be dead to judicial notice of the fact that, in three days to an election, it is a practical certainty that all logistical and administrative arrangements for the conduct of the election would already have been finalized. This includes the printing of ballot papers, the procurement and deployment of election materials, the training and assignment of polling staff, and the allocation of financial and human resources necessary to execute the electoral process. At this late stage, reversing these preparations would not only be administratively burdensome Page 12 of 16 but would also result in significant financial loss and inefficiencies for the 3rd Interested Party, Electoral Commission and for that matter, for the State. The assertion that allowing the election to proceed would impose undue financial strain on the State does not hold when weighed against the actual costs and disruptions of halting the process at this critical juncture. It would be far costlier to invalidate the preparations, delay the election, and potentially reinitiate the process than to allow the election to proceed as scheduled. Furthermore, if the election is conducted as planned and the Applicant ultimately succeeds in their case at the High Court, the only remedy might be a by-election for the affected constituency. While this might involve some additional costs, those costs are arguably less severe than the disruption, uncertainty, and logistical challenges that would arise from halting the election process at this advanced stage. Additionally, I cannot help but note that suspending the entire election in the Amenfi Central constituency just three days before its scheduled date would impose significant hardship not only on the other candidates but also on the electorate. For the candidates, months of campaigning, financial investments, and strategic planning would be rendered futile, leaving them in a state of uncertainty and forcing them to incur additional costs to re-engage their campaigns for a future election. Similarly, the people of Amenfi Central, who have a constitutional right to elect their representative within the prescribed timeline, would be deprived of this opportunity, leading to frustration and a sense of disenfranchisement. Such an interruption would create significant discontent among the constituents, who have been primed to participate in the democratic process on the scheduled date. This collective inconvenience and disruption far outweigh the mere continuation of the election as planned. Page 13 of 16 I am of the considered opinion that even if the Applicant is eventually disqualified, a by-election for the constituency would be less disruptive and would preserve the integrity and continuity of the electoral process without unnecessarily punishing the other candidates and/or voters. I am fortified in this position by the immortal words of Dr. Date Baah JSC, in the case of Welford Quarcoo v. The Attorney General and the Electoral Commission, [2012] GHASC 38 where the learned jurist said as follows: “It has always been my understanding that the requirements for the grant of an interlocutory injunction 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 injunction is granted; and finally that the balance of convenience is in favour 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 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 Page 14 of 16 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.” In the foregoing paragraphs, I rejected the Applicants’ contention that the participation of the 1st Interested Party in the imminent election would occasion irreparable damage to their case, whether before this Court or at the High Court, Sekondi and thereby render their action moot. Similarly, I find, after weighing the relative disadvantages to the parties and the nation as a whole that the balance of convenience/ hardship does not favor the grant of an injunction, let alone ex parte. Here, even if the Applicant succeeds in the substantive case and the 1st Interested Party is disqualified, the law provides mechanisms for addressing such a scenario, including the potential for a by-election. Thus, no irreparable harm whatsoever would be caused to the Applicant during the pendency of this case. Conversely, injuncting the entire electoral process at this advanced stage would cause profound and far-reaching inconvenience to the electoral calendar, candidates, and the electorate of Amenfi Central, not to mention the substantial costs incurred to the State as a whole. Such delays would irreparably disrupt the constitutional mandate of 3rd Interested Party to conduct timely elections and risk undermining public confidence in the integrity and efficiency of the electoral system and for that matter the democratic process. I find that this harm far outweighs any inconvenience the Applicants might face in pursuing their remedies in the pending suit and/or any consequential post-election causes of action. On the basis of the foregoing findings, I am of the considered opinion that the instant application lacks merit and same is accordingly dismissed. Page 15 of 16 (SGD.) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) COUNSEL KINGSLEY AMOAKWA-BOADU ESQ. FOR THE APPLICANTS/APPLICANTS Page 16 of 16