IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - AD 2015 WRIT INVOKING THE ORIGINAL JURISDICTION OF THE SUPREME COURT

Transcription

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - AD 2015 WRIT INVOKING THE ORIGINAL JURISDICTION OF THE SUPREME COURT SUIT NO: J1/29/2015 BETWEEN HIS LORDSHIP JUSTICE PAUL UUTER DERY House No. B 11 Okpoi Gonno Spintex Road Accra PLAINTIFF V. 1. TIGER EYE PI 1 ST DEFENDANT 4 th Floor, Ampomah House Olusegun Obasanjo Highway Accra 2. THE HONOURABLE CHIEF JUSTICE 2 ND DEFENDANT OF THE REPUBLIC OF GHANA Supreme Court Building Accra 3. THE ATTORNEY GENERAL 3 RD DEFENDANT Attorney General s Department Ministries, Accra TO: 1. TIGER EYE P I 4 th Floor, Ampomah House Olusegun Obasanjo Highway Accra 2. THE CHIEF JUSTICE OF THE REPUBLIC OF GHANA Supreme Court Building Accra 3. THE ATTORNEY GENERAL Ministry Of Justice Ministries, Accra 1 P a g e

2 IN THE NAME OF THE REPUBLIC, you are hereby commanded within fourteen days after service on you of the Plaintiff s Statement of Case, inclusive of the day of service to file or cause to be filed for you, the Defendants Statement of Case in an action at the suit of: HIS LORDSHIP JUSTICE PAUL UUTER DERY. The nature of the reliefs sought are as follows: 1. A declaration that the 1 st Defendant s publication of its Petition to the President in the media contravened Article 146 (8) of the 1992 Constitution and therefore unconstitutional. 2. A declaration that the conduct of the 1 st Defendant acting through its Chief Executive Officer and Acting Editor of the Crusading Guide Newspaper, Anas Aremeyaw Anas in releasing the contents of the Petition, through publications in the Crusading Guide Newspaper, his personal Facebook page, public screening of the audio visual recordings in support of the Petition at the Accra International Conference Centre on the 22 nd of September, 2015, containing the evidence in support of the Petition, is in violation of Article 146(8) of the 1992 Constitution and therefore unconstitutional. 3. A declaration that the 2 nd Defendant acting through the Judicial Secretary s Press Release dated 11 th September, 2015, naming the Plaintiff as one of the twelve (12) High Court Judges involved in the Bribery Scandal is in contravention of Article 146 (8) of the 1992 Constitution and therefore unconstitutional. 4. A declaration that the Petition presented to the President by the 1 st Defendant is null and void on account of the 1 st Defendant s contravention of Article 146(8) of the 1992 Constitution. 5. A declaration that all proceedings however and whatsoever described arising out of the contents of the Petition be declared null and void. 6. A perpetual injunction against any adjudicating body however or whatsoever described from determining any issues arising out of the contents of the Petition. 2 P a g e

3 7. A perpetual injunction restraining the Defendants, their agents, assigns, servants, from any further publishing, printing, reporting, broadcasting, advertising, publicizing, distributing and disseminating the contents of the petition. 8. A perpetual injunction restraining the 2 nd Defendant, her agents, assigns, servants and successors from any further impeachment proceedings against the Plaintiff. 9. An order restraining any adjudicating body howsoever described from determining any issues arising out of the content of the said Petition filed by the 1 st Defendant during the pendency of the instant suit before the Supreme Court. 10. Any other orders that this Honourable Court may deem fit. The capacity in which the Plaintiff brings the action is as follows: The Plaintiff brings this action as a citizen of Ghana and a Justice of the Superior Court. The address for service of the Plaintiff is as follows: House No. B 11 Okpoi Gonno Spintex Road Accra The address for service of Counsel for the Plaintiff is as follows: No. 34 Tema Motorway, Spintex Road Next to Cemix Ghana Limited Accra The names and addresses of the persons affected by this Writ are as follows: 1. TIGER EYE PI 4 th Floor, Ampomah House Olusegun Obasanjo Highway Accra 2. THE CHIEF JUSTICE OF THE REPUBLIC OF GHANA Supreme Court Building Accra 3. THE ATTORNEY GENERAL, Ministry of Justice Ministries, Accra 3 P a g e

4 DATED AT ACCRA THIS 22 ND DAY OF SEPTEMBER, Nii Kpakpo Samoa Addo Solicitor for the Plaintiff Licence Number: GAR 09817/15 The Registrar Supreme Court Accra And for service on the above named Defendants: 1. TIGER EYE PI 4 th Floor, Ampomah House Olusegun Obasanjo Highway Accra 2. THE HONOURABLE CHIEF JUSTICE OF THE REPUBLIC OF GHANA Supreme Court Building Accra 3. THE ATTORNEY GENERAL Ministry of Justice Ministries, Accra 4 P a g e

5 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - AD 2015 WRIT INVOKING THE ORIGINAL JURISDICTION OF THE SUPREME COURT BETWEEN SUIT NO: J1/29/2015 HIS LORDSHIP JUSTICE PAUL UUTER DERY House No. B 11 Okpoi Gonno Spintex Road Accra PLAINTIFF V. 1. TIGER EYE PI 1 ST DEFENDANT 4 th Floor, Ampomah House Olusegun Obasanjo Highway Accra 2. THE HONOURABLE CHIEF JUSTICE 2 ND DEFENDANT OF THE REPUBLIC OF GHANA Supreme Court Building Accra 3. THE ATTORNEY GENERAL 3 RD DEFENDANT Attorney General s Department Ministries, Accra PLAINTIFF S STATEMENT OF CASE PURSUANT TO RULE 46 OF C.I INTRODUCTION 1.1 Respectfully, my Lords, the Plaintiff invokes the original jurisdiction of this Honourable Court pursuant to Articles 130(1)(a) and 2(1)(b) of 5 P a g e

6 the 1992 Constitution for the reliefs endorsed on the Writ of Summons as follows: a. A declaration that the 1st Defendant s publication of its Petition to the President in the media contravened Article 146 (8) of the 1992 Constitution and therefore unconstitutional. b. A declaration that the conduct of the 1st Defendant acting through its Chief Executive Officer and Acting Editor of the The New Crusading Guide Newspaper, Anas Aremeyaw Anas in releasing the contents of the Petition, through publications in The New Crusading Guide Newspaper, his personal Facebook page, public screening of the audio visual recordings in support of the Petition at the Accra International Conference Centre on the 22 nd of September, 2015, containing the evidence in support of the Petition, is in violation of Article 146(8) of the 1992 Constitution and therefore unconstitutional. c. A declaration that the 2 nd Defendant acting through the Judicial Secretary s Press Release dated 11th September, 2015, naming the Plaintiff as one of the twelve (12) High Court Judges involved in the Bribery Scandal is in contravention of Article 146 (8) of the 1992 Constitution and therefore unconstitutional. d. A declaration that the Petition presented to the President by the 1st Defendant is null and void on account of the 1st Defendant s contravention of Article 146(8) of the 1992 Constitution. 6 P a g e

7 e. A declaration that all proceedings however and whatsoever described arising out of the contents of the Petition be declared null and void. f. A perpetual injunction against any adjudicating body however or whatsoever described from determining any issues arising out of the contents of the Petition. g. A perpetual injunction restraining the Defendants, their agents, assigns, servants, from any further publishing, printing, reporting, broadcasting, advertising, publicizing, distributing and disseminating the contents of the petition. h. A perpetual injunction restraining the 2 nd Defendant, her agents, assigns, servants and successors from any further impeachment proceedings against the Plaintiff. i. An order restraining any adjudicating body howsoever described from determining any issues arising out of the content of the said Petition filed by the 1st Defendant during the pendency of the instant suit before the Supreme Court. j. Any other orders that this Honourable Court may deem fit. 1.2 The Plaintiff states that the 1 st Defendant s act of leaking the Petition to persons other than the President of Ghana is inconsistent with and is in contravention of Article 146(8) of the Constitution and is seeking a declaration to that effect. 1.3 The instant action raises important issues as to whether the leakage by the 1 st Defendant of the contents of the 1 st Defendant s Petition to the public is unconstitutional and whether the leakage of the contents of the 1 st Defendant s Petition to the public renders the 7 P a g e

8 proceedings for the removal of a Superior Court Judge as provided for under Article 146 of the 1992 Constitution null and void. 1.4 My Lords, the Plaintiff is seeking the enforcement of Article 146 (8) of the 1992 Constitution in the light of the 1 st Defendant s breach of the said provision. 1.5 My Lords, this Statement of Case will contain the following: i. Facts of Case. ii. Plaintiff s Capacity to bring the instant action. iii. iv. The circumstances under which the Plaintiff invokes the original jurisdiction of this Court. Jurisdiction of the Court to entertain the suit. v. 1 st Defendant s acts inconsistent with and in contravention of Article 146(8) of the 1992 Constitution. vi. 2 nd Defendant s acts inconsistent with and in contravention of Articles 146(8) and 296 of the 1992 Constitution. vii. Documents to be relied upon by Plaintiff. viii. List of Statutes and Decided cases relied upon by the Plaintiff. 2. FACTS OF CASE My Lords, respectfully, the facts of this case are as follows: 2.1 The Plaintiff, a citizen of Ghana and a Justice of the Superior Court, was formerly the presiding Judge of High Court 3, Fast Track Division, which is constituted to determine criminal and civil cases and was thereafter transferred to the High Court, Sekondi. 8 P a g e

9 2.2 The 1 st Defendant is a limited liability company registered under the laws of Ghana and carries out private investigations in Ghana for profit. 2.3 The 2 nd Defendant is the Chief Justice of the Republic of Ghana and the administrative head of the Judicial arm of Government. 2.4 The 3 rd Defendant is the principal legal advisor to the Government of Ghana and the person against whom all civil proceedings against the State and its organs shall be directed at. 2.5 Sometime in early September, 2015, the Plaintiff received a call from the Office of the 2 nd Defendant requesting him to report to the 2 nd Defendant s office on the 10 th of September, The Plaintiff consequently proceeded to the 2 nd Defendant s office whereat he was handed over a letter from the 2 nd Defendant dated 9 th September, 2015 titled Petition in Accordance with Article 146 of the 1992 Constitution on allegation of Bribery. (Please, find attached as Exhibit PUD 1 a Copy of the 2 nd Defendant s letter to the Plaintiff). 2.7 The Plaintiff duly perused the said letter dated 9 th September, 2015, and found that an allegation of bribery was levelled against him by the 1 st Defendant in respect of a case he presided over whiles sitting at the High Court 3, Fast Track Division, titled: The Republic v. Kwame Dzato. 2.8 The letter from the 2 nd Defendant stated that His Excellency, the President of Ghana has forwarded the 1 st Defendant s Petition to the 2 nd Defendant for her action as required under Article 146 of the 1992 Constitution of Ghana which petition was accompanied by audio visual recordings and the transcript of the alleged 9 P a g e

10 conversation between the Plaintiff and the 1 st Defendant which forms the basis and evidence of the bribery allegation levelled against the Plaintiff. (Please, find attached as Exhibit PUD 2, a Copy of the transcript attached to the 2 nd Defendant s letter to the Plaintiff). 2.9 The said audio visual recordings purportedly contain the evidence in support of the allegations of bribery levelled by the 1 st Defendant against the Plaintiff The 2 nd Defendant relying on the said audio visual recordings and the transcript of the alleged misconduct requested the Plaintiff to respond to the 1 st Defendant s allegations by the 14 th September, The 2 nd Defendant attached a copy of the transcript of the particulars of the alleged misconduct The Plaintiff avers that the 2 nd Defendant acting through the Judicial Secretary, Justice Alex B. Poku Acheampong in a statement to the media disclosed the identity of the Plaintiff and the other judges as being the persons against whom a Petition had been made by the 1 st Defendant on 11 th September, (Please, find attached as Exhibit PUD 3, a Copy of the said Press Release dated the 11 th September, 2015) Even before the Plaintiff could respond to the allegations levelled against him by the 1 st Defendant, the 1 st Defendant acting through its Chief Executive Officer, Anas Aremeyaw Anas, caused to be published on various media platforms, transcripts of the audio visual recordings he has unlawfully procured in support of his bribery allegations against the Plaintiff. (Please, find attached as Exhibit PUD 10 P a g e

11 4, a Copy of the transcripts published on Anas Aremeyaw Anas Facebook page) The 1 st Defendant in conjunction with the Media Foundation for West Africa (MFWA) and the following media houses: STARR FM in Accra, Ghana and Graphic Communications Ghana advertised that there will be a public screening of the said audio visual recordings at the Accra International Conference Centre on the 22 nd and 23 rd September, 2015 at 8pm. (Please, find attached as Exhibit PUD 5, copies of advertisements placed in the Graphic Newspaper and Starrfm for the public screening of the said audio visual recordings) On the 14 th of September, 2015, the Plaintiff caused a Writ of Summons and Statement of Claim to be issued from the Registry of the High Court Fast Track Division, Suit No. 228/2015, titled His Lordship Justice Paul Uuter Dery v. 1. Tiger Eye P1 2. The Chief Justice of the Republic of Ghana 3. The Attorney General claiming the reliefs endorsed thereon. (Please, find attached as Exhibit PUD 6, a copy of the said Suit) In the said Writ of Summons and Statement of Claim, the Plaintiff herein sought inter alia a perpetual injunction restraining Tigereyepi, its privies, assigns and whosoever from ever publishing or causing to be published the content of the said audio visual recordings through any media platform howsoever described including social media In the said Writ of Summons and Statement of Claim, the Plaintiff also sought inter alia a perpetual injunction restraining Tigereyepi, its privies, assigns, agents and whosoever from carrying out its intended public screening of the unlawfully and illegally acquired 11 P a g e

12 audio visual recordings at the Accra International Conference Centre on the 22 nd and 23 rd of September, 2015 as advertised The Plaintiff also filed an application for an order for Interlocutory Injunction restraining the 1 st Defendant herein, its privies, assigns and whosoever from continuing to leak and causing to be published, the contents of the said illegally and unlawfully procured audio visual recordings through any media platform howsoever described including social media. (Please, find attached as Exhibit PUD 7, a copy of the Application for Interlocutory Injunction) The Application for an order for Interlocutory Injunction was also seeking to restrain the 1 st Defendant, its privies, assigns and whosoever from carrying out its intended public screening of the unlawfully and illegally acquired audio visual recordings at the Accra International Conference Centre on the 22 nd and 23 rd of September, 2015, as advertised The Plaintiff also caused a Writ of Summons to be issued against the owners and managers of the Accra International Conference Centre prohibiting them from prejudicing his case by making their Accra International Conference Centre facility available to the 1 st Defendant and his privies and assigns to screen the said audio visual recordings. (Please, find attached as Exhibit PUD 8, a copy of the Writ of Summons and Statement of Claim) The news of the Plaintiff s Writ of Summons and Statement of Claim and the reliefs he is seeking before the High Court has been widely published in almost all newspapers and media platforms in Ghana and the world over including the 1 st Defendant s media partner Starr Fm in Accra, Ghana. (Please, find attached as Exhibit PUD 9, evidence of the publication of the Writ of Summons and Statement of Claim issued against the Accra International Conference Centre). 12 P a g e

13 2.22 The news of the Plaintiff s Interlocutory Injunction seeking to restrain the 1 st Defendant s intended screening of the said unlawfully procured audio visual recordings has also been publicly publicized in all leading newspapers and media platforms including the 1 st Defendant s media partner Starr Fm in Accra, Ghana. (Please, find attached as Exhibit PUD 10, evidence of the publication of the Application for Interlocutory Injunction against the 1 st Defendant herein) Notwithstanding the knowledge of the pending Writ of Summons and Statement of Claim as well as the application for Interlocutory Injunction, the 1 st Defendant herein continued to publish contents of the illegally procured audio visuals through newspapers, media houses and online websites blatantly disregarding, undermining and prejudicing the authority of the Court. (Please, find attached as Exhibit PUD 11, evidence of the publication of the contents of the Petition) The Plaintiff further caused his lawyers to write letters addressed to most of the leading media houses including The New Crusading Guide and Starr Fm notifying them of the pending Writ of Summons and Statement of Claim as well as the pending application for Interlocutory Injunction, receipt of which letters were acknowledged by The New Crusading Guide and Starr Fm. (Please, find attached as Exhibits PUD 12 and PUD 13, a copy each of the said letters) The letters from the Plaintiff s lawyers also notified The New Crusading Guide and Starr Fm that their actions of publishing the transcripts of the audio visual recordings on any media platforms and the intended public screening of the said audio visuals 13 P a g e

14 recordings will be prejudicial to the pending suit and same will be in contempt of court In spite of having knowledge of the effect of their actions on the pending case, the 1 st Defendant through its Chief Executive Officer, Anas Aremeyaw Anas continued to publish transcripts of the said illegally and unlawfully procured audio visual recordings in newspapers, his personal facebook pages and websites. (Please, find attached as Exhibit PUD 14, evidence of the publication of the contents of the Petition after the Plaintiff s letter to the The New Crusading Guide and other media houses) The New Crusading Guide newspaper published images from the said audio visual recordings in its Tuesday, 15 th September, 2015, edition. (Please, find attached as Exhibit PUD 15, a copy of the Tuesday, 15th September, 2015 edition of The New Crusading Guide newspaper) The New Crusading Guide newspaper continued to publish transcripts from the said audio visual recordings in its Wednesday, 16th September, 2015, Thursday, 17 th September, 2015, Friday, 18 th September, 2015, and Wednesday, 23 rd September, 2015 editions. (Please, find attached as Exhibit PUD 16, Exhibit PUD 17 and Exhibit PUD 18, copies of the, Thursday, 17 th September, 2015, Friday, 18 th September, 2015 and Wednesday, 23 rd September, 205 editions of The New Crusading Guide newspaper) The 1 st Defendant in concert with its media partners in the face of the pending action and interlocutory injunction, continued to advertise the public screening of the said illegally and unlawfully procured audio visual recordings for the 22 nd and 23 rd September, 2015 at the Accra International Conference Centre as evidenced in 14 P a g e Exhibits PUD 5 and PUD 6 attached to this Statement of Case

15 2.30 The Defendants also evinced a further intention of overreaching this Court by publishing the said audio visual recordings on international media platforms such as Aljazeera Television Network, and other social media platforms such as YouTube, Facebook and WhatsApp The substantive Editor-in-Chief of The New Crusading Guide evinced a clear intention to continually bring the administration of justice into disrepute when he stated in an interview with Joy Fm, an Accra based radio station on 17 th September, 2015 as follows: "Can anybody place an injunction on the sky? We are in the world of technology. Can any court stop people from seeing something in the sky? Can anybody injunct the international media when it is not emanating from the person you are litigating against? 2.32 Despite the pendency of Suit No. 228/2015, titled His Lordship Justice Paul Uuter Dery v. 1. Tiger Eye P1 2. The Chief Justice of the Republic of Ghana 3. The Attorney General, the 1 st Defendant, acting through its Chief Executive Officer Anas Aremeyaw Anas who is also a lawyer and the Acting Editor-in-Chief of the New Crusading Guide Newspaper, leaked and continued to leak various portions of the said audio visual recordings to the public through various media outlets including social media platforms. As evidenced in Exhibits PUD 16, 17 and 18 attached to this Statement of Case The 1 st Defendant also screened the contents of the said audio visual recordings at the Accra International Conference Centre (AICC) on the 22 nd and 23 rd of September, 2015, regardless of the pending Suit No. AP 228/2015 before the High Court and the instant suit. (Please, find attached as Exhibit PUD 19, the Daily Graphic publication of the evidence of the public screening of the audio 15 P a g e visual recordings at the Accra International Conference Centre).

16 2.34 My Lords, despite the pendency of the instant action, the 1 st Defendant advertised and screened the said audio visuals at the Global Cinemas, Old Weija Barrier on the 24 th September, 2015 at 12:00pm and 3:30pm and on the 25 th September, 2015 at 3:00pm and 6:30pm in total disregard for the sanctity and authority of this Honourable Court. (Please, find attached as Exhibit PUD 20, evidence of the advertisement of the public screening of the audio visual recordings at the Global Cinemas, Weija) Following from the continuous screening of the said audio visual recordings, the Plaintiff cited the 1 st Defendant s Chief Executive Officer, and Acting Editor-in-Chief of The New Crusading Guide Anas, Aremeyaw Anas, the Editor of the The New Crusading Guide, Samuel Frempong, Deputy Editor of the The New Crusading Guide Ernest Addo, the Chief Executive Officer of Starrfm Nathan Kwabena Anokye Adisi and Sulemana Braimah of the Media Foundation for West Africa for Committal for Contempt. (Please, find attached as Exhibit PUD 21, the Application for Committal for Contempt). 3. PLAINTIFF S CAPACITY TO BRING THE INSTANT ACTION 3.1 Respectfully, my Lords, the Plaintiff brings this action as a citizen of Ghana and a Justice of the Superior Court. 3.2 The Plaintiff was formerly the presiding Judge of High Court 3, Fast Track Division, which is constituted to determine criminal and civil cases and was thereafter transferred to the High Court, Sekondi. 3.3 In the case of New Patriotic Party v. Attorney General (CIBA Case) 1, the Supreme Court affirmed the principle in Article 2(1) of the 1992 Constitution that all persons whether natural or artificial have the 1 [ ] SCGLR P a g e

17 capacity to seek declarations under Article 2(1) of the 1992 Constitution for the enforcement of the Constitution. 3.4 This principle was reaffirmed in the case of Adjei Twum v. The Attorney General & Akwetey The Plaintiff herein is a citizen of Ghana and a Justice of the Superior Court, who seeks to enforce Article 146(8) of the 1992 Constitution and a declaration that the 1 st Defendant having contravened Article 146 (8), the 1 st Defendant s Petition should be declared null and void. 4. THE CIRCUMSTANCES UNDER WHICH THE PLAINTIFF INVOKES THE ORIGINAL JURISDICTION OF THIS COURT. 4.1 Respectfully, my Lords, the Plaintiff invokes the original and enforcement jurisdiction of this Honourable Court pursuant to Articles 130(1)(a) and 2(1)(b) of the 1992 Constitution. 4.2 Article 2(1)(b) of the 1992 Constitution provides that A person who alleges that any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect. 4.3 Article 130(1)(a) of the 1992 Constitution also provides that Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in all matters relating to the enforcement or interpretation of this Constitution. 2 [ ] SCGLR P a g e

18 4.4 These provisions, it is respectfully submitted mean that any citizen of Ghana may bring an action to the Supreme Court for a declaration that any person s actions are inconsistent and in contravention of the Constitution. 4.5 A citizen of Ghana who alleges that his rights have been violated or the provisions of the Constitution have been breached, may also bring an action in the Supreme Court for the enforcement or interpretation of the constitution. 4.6 The Supreme Court has, therefore, consistently insisted that for a party to invoke the original jurisdiction of the Supreme Court, the action must raise a real and genuine issue of interpretation or enforcement. 4.7 In the cases of Yiadom I v. Amaniampong 3 and Edusei v. Attorney- General 4, the Supreme Court held that Indeed the mere fact that a plaintiff has raised some incidental constitutional issue should not make his case a constitutional case within the meaning of Articles 2(1) and 130(1) of the Constitution. 4.8 In the case of Baafour Kwame Fante Aduamoah II & Ors v. Nana Gyakorang Adu Twum II 5 the Supreme Court held as follows: The plaintiff must show clearly that the question at issue can only be resolved by an interpretation of the constitution. There may be cases where some provision of the constitution could come into focus barely incidentally without having any direct impact on the dispute between the parties, with the result that the court is not obliged to interpret the Constitutional provision in order to determine the matter in controversy. 3 (1981) GLR 3 4 ( ) SCGLR 1 5 (unreported Suit No. 3/94 - judgment dated 9/2/2000), 18 P a g e

19 4.9 Thus, for any case to be considered a constitutional case, that case must raise issues of the interpretation and enforcement of the constitution which should determine the matters in controversy or dispute between the parties My Lords, it is our submission that the instant action raises important constitutional issues as to whether the leakage of the contents of the 1 st Defendant s Petition to the public is unconstitutional The instant action also raises an important constitutional issue of what will be the effect of a breach of Article 146 (8) of the 1992 Constitution by a Petitioner on a Petition for the removal of a Superior Court Judge under Article 146 of the 1992 Constitution My Lords, a determination of the legal effect of the conscious leakage of the 1 st Defendant s Petition to the public in contravention of Article 146(8) is germane to the resolution of the dispute between the parties My Lords, a determination of whether or not the 2 nd Defendant has also contravened Article 146(8) and Article 296 of the 1992 Constitution will also resolve all the matters in dispute between the parties It is also our submission that whether the leakage of the contents of the 1 st Defendant s Petition to the public renders the proceedings for the removal of a Superior Court Judge as provided for under Article 146 (8) of the 1992 Constitution null and void is a constitutional matter for which the Plaintiff can invoke the original jurisdiction of this Court It is also our submission that the instant action raises an important constitutional matter as to whether the 2 nd Defendant s publication of the names of the alleged indicted Judges of the Superior Court 19 P a g e including the Plaintiff to the media and the public is in

20 contravention of Article 296 of the 1992 Constitution for which the Plaintiff may invoke the original jurisdiction of this Court. 5. JURISDICTION OF THIS COURT TO ENTERTAIN THE SUIT. 5.1 The Plaintiff invokes the original and enforcement jurisdiction of the Supreme Court pursuant to Articles 130 (1)(a) and 2(1)(b) of the 1992 Constitution. 5.2 In the case of Amidu v. President Kufour 6, Acquah JSC (as he then was) said that:...where it is alleged before the Supreme Court that any organ of government or an institution is acting in violation of a provision of the constitution, the Supreme Court is in duty, bound by articles 2(1) and 130(1) to exercise jurisdiction, unless the Constitution has provided a specific remedy, like those of articles 33 and 99 for dealing with that particular violation. It follows therefore that no individual nor creature of the Constitution is exempted from the enforcement provision of article 2 thereof. No one is above the law. And no action of any individual or institution under the Constitution is immuned from judicial scrutiny if the constitutionality of such an action is challenged. 5.3 Also apposite is the statement of Edward Wiredu JSC (as he then was) in Ghana Bar Association v Attorney-General (Abban Case) 7, The court, as the repository watchdog of the Constitution, is enjoined to protect, defend and enforce its provisions and should not allow itself to be diverted to act as an independent arbiter of the Constitution. 6 [ ] SCGLR [ ]1 SCGLR 250 at P a g e

21 5.4 My Lords, it is the Plaintiff s case that the 1 st Defendant violated Article 146 (8) of the 1992 Constitution when it consciously and consistently leaked its Petition for the removal of the Plaintiff to other persons apart from the President. 5.5 The 1 st Defendant also violated Article 146(8) of the 1992 Constitution when it publicly screened the audio visual recordings on the 22 nd and 23 rd of September, 2015 at the Accra International Conference Centre, which transcripts are part of the 1 st Defendants Petition to the President. 5.6 My Lords, it is also submitted that the 2 nd Defendant violated Articles 146(8) and 296 of the 1992 Constitution by disclosing the names of the twelve (12) Superior Court Judges including the Plaintiff when the identity of the Superior Court Judges was part of the fact finding process and the process of determining a prima facie case. 5.7 It is further the Plaintiff s case that the 1 st and 2 nd Defendants have violated Article 146 (8) of the 1992 Constitution and should therefore not be exempted from the enforcement provision of Article 2 of the 1992 Constitution. Their actions should not be immuned from judicial scrutiny once the constitutionality of such actions have been challenged ST DEFENDANT S ACTS INCONSISTENT WITH AND IN CONTRAVENTION OF ARTICLE 146(8) OF THE 1992 CONSTITUTION. 6.1 The Plaintiff s case is that being a Justice of the Superior Court, any proceedings and documents in support of a Petition for his removal from office should be held in camera and are confidential and are not be published in the public. 21 P a g e

22 6.2 The Supreme Court held in the case of the National Democratic Congress v. Electoral Commission of Ghana 8 per Acting CJ Edward Wiredu (as he then was) at page 958 of the Report that Where an act or omission of any person is challenged under Article 2 of the 1992 Constitution, such act or omission must be shown to have taken place, and it must be shown that such act or omission falls foul of a specific provision of the constitution, or at the very least, the spirit of an actual provision. 6.3 The Plaintiff states that the 1 st Defendant s publication of the contents of its Petition to persons other than the President for the Plaintiff s removal from office is a clear violation of Article 146 (8) of the 1992 Constitution. 6.4 It is again our respectful submission that the 2 nd Defendant s Press Release to the media dated 11 th September, 2015, stating the names of all the Superior Court Judges in the Bribery Scandal is a violation of Article 146 (8) of the Constitution. 6.5 My Lords, Article 146(3) of the 1992 Constitution provides that: If the President receives a Petition for the removal of a Justice of the Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the Petition to the Chief Justice, who shall determine whether there is a prima facie case. 6.6 Article 146(8) of the 1992 Constitution also provides that: All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition was made is entitled 8 [ ] SCGLR P a g e

23 to be heard in his defence by himself or by a lawyer or other expert of his choice. 6.7 My Lords, these constitutional provisions it is submitted, mean that the Plaintiff being a Justice of the Superior Court, is subject to the administrative procedures set down in Article 146(3) of the 1992 Constitution and can only respond to allegations made in a Petition for his removal from office in private. 6.8 My Lords, the Supreme Court in the case of Agyei Twum v. Attorney General & Akwetey 9, interrogated the question of whether the contents of a petition to remove a Justice of the Superior Court by a petitioner could be published in the media by the petitioner during the pendency of the impeachment proceedings. 6.9 The Court also considered the question of whether such a publication by the petitioner will be in contravention of Article 146(8) of the 1992 Constitution The Court made the following reasoned findings and conclusions at page 785 of the Report by holding that: a. The constitutional requirement that the impeachment proceedings be held in camera would be defeated if the petitioner were allowed to publish his or her petition to anyone other than the President. b. That this was likely to lead to the petitioner s allegations being aired in public, while the judge s response can only be considered in private. c. That this would lead to grave adverse public relations consequences for the judiciary. 9 [ ] SCGLR, P a g e

24 d. That the institution of the Judiciary could be undermined without any justification. e. That a petitioner under article 146 may not disclose the contents of his or her petition to the media nor indeed to any person other than the President. He or she may reveal the fact that he or she has presented a petition to the President, but not its contents, if the purpose of the framers of article 146(8) of the 1992 Constitution is to be adhered to. f. That in order to remain true to the purpose of Article 146(8) of the 1992 Constitution, the confidentiality attaching to the impeachment proceedings should also extend to documents and other relevant materials employed or to be employed in the proceedings. g. That accordingly, a publication of the contents of a petition by the petitioner to persons other than the President constituted a breach of Article 146(8) of the 1992 Constitution My Lords, in the case of Ghana Bar Association v. Attorney General 10, Kpegah JSC as he then was, said: the good sense in the constitutional prescription that impeachment proceedings be held in camera, are very obvious and need not be recited here; suffice it to say that the judiciary, as an institution, thrives on the healthy estimation in which it is held by the people it serves. It is therefore not safe to impugn the integrity of a judge in public in case the allegation turns out to be unfounded; hence the constitutional provision that such proceedings be held in camera. 10 [ ] 1 GLR 598, P a g e

25 6.12 Clearly, my Lords, the position of the law with respect to impeachment proceedings involving Superior Court Judges, it is submitted, is that it be held in camera as publishing any such proceedings to anyone other than the President would defeat the intent of the framers of the Constitution My Lords, the 1 st Defendant herein petitioned the President of the Republic of Ghana for the removal of the Plaintiff on allegations of bribery pursuant to Article 146 of the 1992 Constitution In accordance with the said Article 146 (3) of the 1992 Constitution, the President referred the 1 st Defendant s Petition to the 2 nd Defendant to determine whether there is a prima facie case against the Plaintiff My Lords, the 1 st Defendant s Petition as referred to the 2 nd Defendant, excerpts of which was made available to the Plaintiff herein stated that His Excellency, the President of Ghana forwarded the 1 st Defendant s petition to the 2 nd Defendant for her action as required under Article 146 of the 1992 Constitution of Ghana which petition was accompanied by audio visual recordings My Lords, the 2 nd Defendant attached to her letter to the Plaintiff, excerpts of the Petition to the President and a transcript of the audio visual recordings, which is the alleged evidence in support of the Petition to the Plaintiff The 2 nd Defendant upon the request of the Plaintiff, also made available a copy of the said audio visual recordings to the Plaintiff to solicit the Plaintiff s response in a bid to ascertain whether or not a prima facie case has been found against the Plaintiff. 25 P a g e

26 6.18 My Lords, to the Plaintiff s shock and dismay and in a clear contravention of Article 146 (8) of the Constitution, the 1 st Defendant through its Chief Executive Officer, Anas Aremeyaw Anas and its media partners started advertising the public screening of the said audio visual recordings which was forwarded to the Plaintiff by the 2 nd Defendant as forming the basis and part of the 1 st Defendant s Petition to the President The Plaintiff in his bid to uphold the integrity of the Constitution, and the rule of law and to prevent a continuous breach of Article 146 (8) of the Constitution filed a law suit at the High Court, Suit No.: AP 228/2015, titled His Lordship Justice Paul Uuter Dery v. 1. Tiger Eye P1 2. The Chief Justice of the Republic of Ghana 3. The Attorney General on the 14 th of September, 2015, seeking to prevent the publication of the said audio visual recordings which is the basis of the 1 st Defendant s petition to the public My Lords, the fact of the Plaintiff s pending Writ of Summons and Statement of Case was highly publicised in all the media platforms including the Graphic newspaper s online platform, Starr Fm online, all media partners of the 1 st Defendant herein as evidenced in Exhibit PUD 8 attached to this Statement of Case My Lords, despite the pendency of the Plaintiff s Writ of Summons, filed on the 14 th of September, 2015, the 1 st Defendant herein in total disregard for the administration of justice, published the contents of the transcripts of the audio visual recordings attached to its Petition to the President in the 15 th, 16 th and 17 th, September, 2015 Editions of the The New Crusading Guide Newspaper in clear disregard for the very constitutional provision under which it s Petition to the President is premised upon. 26 P a g e

27 6.22 The Plaintiff was further compelled to file an application for interlocutory injunction against the 1 st Defendant again to bring to the 1 st Defendant s knowledge and attention its continuous disregard for the rule of law and to restrain it from any further publication of the contents of the Petition and the intended public screening of the audio visuals as evidenced in Exhibit PUD 6 attached to this Statement of Case My Lords, the 1 st Defendant s Chief Executive Officer Anas Aremeyaw Anas who is also the acting Editor-in-Chief of the The New Crusading Guide continued to disregard all the court processes filed against the 1 st Defendant herein and continued to advertise the public screening of the audio visual recordings and the serialisation of the transcripts of the said audio visual recordings in the The New Crusading Guide Newspaper as evidenced in Exhibit PUD 12 attached to this Statement of Case The Plaintiff caused his lawyers to write to some media houses including the The New Crusading Guide on the effect of their actions on the Plaintiff s pending suit in the High Court as evidenced in Exhibit PUD 11 and PUD 12 attached to this Statement of Case My Lords, even though The New Crusading Guide acknowledged receipt of the letter from the Plaintiff s lawyer, it disregarded the said letter and continued to serialise the contents of the said audio visual recordings as evidenced in Exhibit PUD 13 attached to this Statement of Case My Lords, the 1 st Defendant on a daily basis since it submitted its Petition to His Excellency the President, leaked and continued to leak various portions of the said audio visual recordings to the public through various media outlets including social media 27 P a g e

28 platforms as evidenced in Exhibit PUD 14 attached to this Statement of Case The Plaintiff then caused to be filed an application for contempt of court against the Acting Editor-in-Chief of the The New Crusading Guide Anas, Aremeyaw Anas, its Editor Samuel Frempong, Deputy Editor Ernest Addo, the Chief Executive Officer of Starrfm Nathan Kwabena Anokye Adisi and Sulemana Braimah of the Media Foundation for West Africa. (Please, find attached as Exhibit PUD 24, a copy of the Application for Committal for Contempt) My Lords, notwithstanding the pendency of the Application for the Committal for Contempt against the Chief Executive Officer of the 1 st Defendant Company who is also the Acting Editor-in-Chief of the The New Crusading Guide, the 1 st Defendant went ahead to publicly screen the said audio visual recordings on the 22 nd and 23 rd of September, The 1 st Defendant disregarded all of the Plaintiff s attempt to stop it from further contravening Article 146 of the Constitution with such impunity bringing the administration of justice into disrepute and undermining the Judiciary without any justification My Lords, the 1 st Defendant has succeeded in airing all of its allegations against the Plaintiff in public, whiles the Plaintiff s response can only be considered in private My Lords, the 1 st Defendant did not only reveal the fact that it has presented a petition to the President but has published and caused to be published the contents of its petition to the media and persons other than the President. 28 P a g e

29 6.32 My Lords, the 1 st Defendant herein has not only disclosed the fact that it has presented a petition to His Excellency the President of Ghana, it has disclosed the contents of the said petition to the media and other persons and has also gone as far as to disclose what it alleges to be the evidence upon which its petition is grounded My Lords, clearly, the Petition, the transcripts of the audio visual recordings and the audio visual recordings which are to be employed in the impeachment proceedings have been made available to the media and other unauthorised persons by the 1 st Defendant in clear breach of Article 146(8) of the 1992 Constitution My Lords, the 1 st Defendant s conduct is a clear violation of the law and an affront to the rule of law and justice My Lords, it is our submission that the constitutional requirement that the impeachment proceedings be held in camera has been defeated since the 1 st Defendant Petitioner has published contents of the Petition and its evidence in support of same to other persons other than the President My Lords, it is our further submission that the constitutional requirement that the impeachment proceedings be held in camera has been defeated by the 1 st Defendant, its assigns, privies and agents when they carried out the public screening of the alleged evidence contained in audio visual recordings at the Accra International Conference Centre on 22 nd and 23 rd of September, 2015 and at the Global Cinemas, Weija on the 24 th and 25 th of September, P a g e 6.37 My Lords, it also our submission that the 1 st Defendant s conduct has created grave adverse public relations consequences for the

30 judiciary which is being undermined by the 1 st Defendant without any justification The 1 st Defendant had knowledge of the pendency of actions before the court and yet the 1 st Defendant went ahead to publish contents of the said Petition in various media platforms in the face of all the legal interventions to prevent same and protect the integrity of the Constitution Clearly, my Lords, the 1 st Defendant was more interested in contravening the provisions of the Constitution of the land than upholding same The 1 st Defendant was only concerned in prejudging his Petition in the public, a conduct calculated to bring the authority and administration of the law into disrespect, disregard and to interfere with the course of justice The 1 st Defendant s conduct is in bad faith, is malicious and is prejudicial to the determination of any impeachment proceedings against the Plaintiff ND DEFENDANT S ACTS INCONSISTENT WITH AND IN CONTRAVENTION OF ARTICLES 146(8) AND 296 OF THE 1992 CONSTITUTION. 7.1 My Lords, it is our submission that the 2 nd Defendant s act of releasing the names of the twelve (12) Superior Court Judges to the media and the general public is in contravention of Article 146 (8) of the 1992 Constitution. 7.2 It is also our submission that the 2 nd Defendant s act of releasing the names of the twelve (12) Superior Court Judges to the media is an unfair exercise of the 2 nd Defendant s discretionary powers under 30 P a g e Article 296 of the 1992 Constitution.

31 7.3 Respectfully, my Lords, the Supreme Court held in the case of Agyei Twum v. Attorney General & Akwetey 11 When the Chief Justice empanels a bench, he acts as an administrator and not as a judge. Accordingly, a principle of natural justice tailored to the requirements of proceedings cannot be relevant to that exercise. Rather, what is relevant is the Chief Justice s implied duty to be fair and candid in the exercise of his discretionary power, as laid down in Article 296 of the Constitution. 7.4 The Plaintiff s case is that the identity of the Superior Court Judges against whom the Petition has been brought is one of the crucial facts to be established by the 2 nd Defendant in determining a prima facie case against the Superior Court Judges as provided for under Article 146 (3) of the 1992 Constitution, which provision is part of the impeachment proceedings which should be held in camera as provided for under Article 146 (8) of the 1992 Constitution. 7.5 The finding of a prima facie case against the Superior Court Judges being an administrative or quasi-judicial function, the 2 nd Defendant is bound by the provisions of Article 296 of the 1992 Constitution. 7.6 The Plaintiff avers that the 2 nd Defendant acting through the Judicial Secretary, Justice Alex B. Poku Acheampong in a statement to the media disclosed the identity of the Plaintiff and the other judges as being the persons against whom a Petition had been made by the 1 st Defendant on 11 th September, The Plaintiff avers that his identity and that of the other judges against whom the Petition has been filed by the 1 st Defendant is a material fact that must be ascertained by the 2 nd Defendant in 11 Supra 31 P a g e

32 arriving at a decision as to whether or not a prima facie case has been made out against the Plaintiff. 7.8 The Plaintiff avers that 2 nd Defendant s duty of making findings of fact as to whether or not a prima facie case has been made out against the Plaintiff is a quasi-judicial function and a fact finding duty. 7.9 The Plaintiff further contends that the disclosure of his identity and the identity of the other judges against whom the 1 st Defendant filed the Petition discloses an unfair bias and prejudices his right to a fair hearing and is not in accordance with the due process of law The Plaintiff avers that the 2 nd Defendant in the performance of her administrative functions and in the exercise of her discretionary powers under Article 146 of the 1992 Constitution, is bound by the provisions of Article 296 of the said 1992 Constitution Article 296 of the 1992 Constitution provides that: Where in this Constitution or in any other law discretionary power is vested in any person or authority a. that discretionary power shall be deemed to imply a duty to be fair and candid; b. the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and c. where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the 32 P a g e

33 provisions of this Constitution or that other law to govern the exercise of the discretionary power In the case of Samuel Okudjeto Ablakwa (No. 2) v. Attorney General & Obetesebi Lamptey (No. 2) 12 and the case of Awuni v. WAEC 13, the Supreme Court stated the conditions or requirements which are to be satisfied by the complainant alleging that Artcicle 296 of the 1992 Constitution has been contravened. These conditions are that: a. the decision or action was not fair and candid; and b. the decision or action was not in accordance with due process These provisions crystalize the conditions or requirements to be satisfied by anyone attacking discretionary power vested in administrative or public officers which are brought under the 1992 Constitution Thus for a complainant to succeed in an action brought under Article 296 of the Constitution, it is essential to establish the following: a. Whether the known or established procedures or processes for taking the action or making the decision were duly complied with? b. Whether the decision or action conform to the audi alteram partem rule or any other law relevant to that particular decision or action? 7.15 In our humble view, the 2 nd Defendant exercised her discretion unfairly by releasing the names of the Plaintiff and the other Judges against whom the 1 st Defendant has filed a petition to the media. 12 [2012] 2 SCGLR [ ] SCGLR P a g e