IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT OF GHANA ACCRA-AD 2016

Transcription

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT OF GHANA ACCRA-AD 2016 BETWEEN Suit No: 1. ABU RAMADAN H/NO TH ABEKA KWAME STREET ABEKA-LAPAZ, ACCRA 2. EVANS NIMAKO H/NO. AP174 APLAKU-ISRAEL BORTIANOR-ACCRA PLAINTIFFS AND 1. THE ELECTORAL COMMISSION SIXTH AVENUE RIDGE ACCRA DEFENDANTS 2. THE ATTORNEY GENERAL MINISTRY OF JUSTICE MINISTRIES, ACCRA MOTION ON NOTICE: APPLICATION FOR INTERLOCUTORY INJUNCTION. TAKE NOTICE that this Court shall be moved by Nana Bediatuo Asante, Esq, Counsel for and on behalf of the Plaintiffs/Applicants herein praying for the following: i. An order of interlocutory injunction to restrain the 1 st Defendant/Respondent whether by itself, its agents, assigns, privies,

2 servants and whomsoever of whatever description from conducting a limited or other voters registration exercise howsoever described in any manner whatsoever for the purpose of public elections and referenda in Ghana, pending the final determination of the substantive suit; ii. An injunctive order restraining the 1 st Defendant/Respondent whether by itself, its agents, assigns, privies, servants and whomsoever of whatever description from conducting any public election or referendum howsoever described pending the final determination of this suit. Upon the grounds contained in the accompanying affidavit and for any further or other(s) as to this Court may seem proper. Court to be moved on the. Day of February, 2016 at 9 o clock in the forenoon or so soon thereafter as counsel may be heard. DATED AT AMPEM CHAMBERS, 15 KADE AVENUE, KANDA ESTATES, ACCRA, THIS 23 RD DAY OF FEBRUARY, THE REGISTRAR SUPREME COURT ACCRA.. Nana Bediatuo Asante GAR 12985/16 AMPEM CHAMBERS PP /15 AND TO THE ABOVE-NAMED DEFENDANTS/RESPONDENTS.

3 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT OF GHANA ACCRA-AD 2016 SUIT NO: BETWEEN 3. ABU RAMADAN H/NO TH ABEKA KWAME STREET ABEKA-LAPAZ, ACCRA 4. EVANS NIMAKO H/NO AP174 APLAKU-ISRAEL BORTIANOR-ACCRA PLAINTIFFS AND 3. THE ELECTORAL COMMISSION SIXTH AVENUE RIDGE ACCRA 4. THE ATTORNEY GENERAL MINISTRY OF JUSTICE MINISTRIES, ACCRA. DEFENDANTS AFFIDAVIT IN SUPPORT OF MOTION FOR INTERLOCUTORY INJUNCTION I, Ofosua Amagyei, a private legal practitioner of No.15 Kade Avenue Kanda Estates, Accra, do hereby make oath and say as follows, that: 1. I am an associate at Ampem Chambers, an Accra-based law firm, who act as lawyers for the Plaintiffs herein.

4 2. I have the authority of the Plaintiffs/Applicants (hereinafter, Applicants ) to depose to the facts herein contained which unless otherwise stated are within my personal knowledge by virtue of received instructions or information and belief. 3. At the hearing of the instant Application, leave shall be sought from the Court to refer to all processes filed thus far in this suit as if same were incorporated by reference into this affidavit and duly sworn to upon oath, where amenable. 4. By issuing a Writ accompanied by a Statement of Case out of the registry of this honourable court, on 23 rd February 2016, Applicants commenced an action against the 1 st Defendant/Respondent (hereinafter 1 st Respondent ) seeking the following reliefs: a) A declaration that upon a true and proper interpretation of Article 45(a) of the Constitution of the Republic of Ghana, 1992 (hereinafter, the Constitution ) the mandate of the Electoral Commission of Ghana to compile the register of voters implies a duty to compile a reasonably accurate and credible register. b) A declaration that the current voters register which contains the names of persons who have not established qualification to be registered is not reasonably accurate or credible and therefore inconsistent with Article 45(a) of the Constitution thereby making same unconstitutional, null, void and of no effect. c) A declaration that the current voters register which contains the names of persons who are deceased is not reasonably accurate or credible and is therefore inconsistent with Article 45(a) of the Constitution thereby making same unconstitutional, null, void and of no effect.

5 d) An order setting aside the current voters register and compelling the Electoral Commission to compile a fresh voters register before the conduct of any new public election or referendum in Ghana; or, in the alternative, e) An order compelling the Electoral Commission to audit the current voters register through the validation of the registration of each person currently on the register i. To remove the names of unqualified persons and deceased persons and ii. To provide each validated registration with biometric evidence thereof and iii. To strike out the names of those persons who fail to validate their voter registration within the stipulated period. Before the conduct of any new registration exercise or public election or referendum in Ghana. 5. The 2 nd Defendant/Respondent is a constitutionally nominal defendant. 6. The 1 st Respondent intends to conduct a limited registration exercise for the period April 28 to May 8, 2016 to enable persons who have since the last registration exercise attained the age of eighteen and others who qualify but may not have yet registered to do so. (Attached hereto and marked Exhibit ABU 1 is a copy of the press announcement made by 1 st Respondent in connection with the registration exercise). 7. The 1 st Respondent also intends to conduct a by-election in the Abuakwa North Constituency of the Eastern Region which is necessitated by the death of the incumbent Member of Parliament.

6 8. Applicants Writ inter alia prays this Court to effectively restrain 1 st Respondent from conducting any new registration exercise or public election until the matters complained of in the substantive suit are addressed by this Court. 9. One of the ways in which a person may establish qualification to register to vote is by two registered voters guaranteeing that such a person qualifies under Article 42 of the Constitution of Ghana to register. 10. Applicants have alleged that the current voters register contains the names of persons who have not established qualification to register and whose registrations were founded on proof of qualification with the National Health Insurance Card (the NHIS Card ), the use of which this court has declared unconstitutional thereby rendering all such registrations null and void. 11. Respondents have admitted that there are registered voters who used the NHIS Card to register in 2012 with 2 nd Defendant/Respondent describing them as the majority of potential voters. (Attached hereto and marked Exhibit ABU 2 is a copy of the Statement of Case of 2 nd Defendant/Respondent dated and filed on July 18, 2014 in the case intituled, Abu Ramadan & Anor v The Electoral Commission & Anor, Suit Number J1/11/2014, Supreme Court, Accra. 12. Respondents contend that it would be unconstitutional and unlawful for a person whose registration as a voter is void to nonetheless guarantee the qualification of others to register during the impending limited registration exercise or to vote in any public election in Ghana. 13. Applicants will contend further that those whose registrations are void on account of their use of the NHIS Card to register cannot be distinguished from those whose registrations are valid and proper, yet such persons can guarantee the qualification of others to register and still vote in elections.

7 14. Applicants contend that the risk of unqualified yet nominally registered voters guaranteeing the qualification of others, who may or may not actually be qualified, to register and to improperly determine who governs the Republic by voting, in such circumstances is too high to entertain. 15. Given the pendency of the substantive suit and the unresolved issues motivating same, it would be improper and prejudicial for 1 st Respondent to conduct the announced limited registration exercise or, indeed, any registration exercise and if not restrained, the problems attendant to the current voters register will be compounded at additional cost to the Republic and its citizens. 16. Again, it would be prejudicial and contemptuous for 1 st Respondent to conduct any public election, including the Abuakwa North Constituency by-election, using the Current Voters Register and thereby allowing unqualified persons to participate in determining this country s future. 17. With respect, the intended limited voters registration exercise and byelections would interfere with the administration of justice and undermine the judicial process in view of the pendency of this suit. 18. It is obvious that in the present circumstances, a greater and perhaps irreparable harm will be caused to citizens of this country, including Applicants, if voters registration exercises and public elections are not conducted in accordance with the provisions of the Constitution of Ghana, the supreme law of the land. 19. Applicants contend that the issues raised in their Writ and Statement of Case present serious questions of law and fact that ought to be considered and resolved by this Court since they disclose a prima facie case and contend further that the present action is neither frivolous nor vexatious.

8 20. Applicants contend that having prayed this Court for an alternative relief causing 1 st Respondent to remove the names of unqualified persons from the current voters register, it would be highly prejudicial for 1 st Respondent to purport to augment same by allowing such unqualified persons to participate through the guarantee process. Applicants would add that the balance of convenience does not favour 1 st Respondent. 21. This Application has become necessary in the light of the foregoing because unless restrained 1 st Respondent threatens and intends to conduct a limited voter registration exercise form April 28 to May 8, 2016 and a byelection for Abuakwa North Constituency and it would be in the supreme interest of justice that the scales be held evenly between the parties to this action by the grant of the interlocutory injunctive orders prayed for, pending the final determination of the action. 22. Wherefore, in the circumstances, I swear to this affidavit in support of the instant application. Sworn at Accra this..day of February, Deponent BEFORE ME COMMISSIONER FOR OATHS. THE REGISTRAR

9 SUPREME COURT ACCRA. AND TO THE ABOVE-NAMED DEFENDANTS/RESPONDENTS.