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Practice and procedure -
Injunction - Interim - Action in
Supreme Court to restrain
holding of local government
elections - Application for
interim injunction - Supreme
Court on vacation - Need to
preserve status quo - Principles
for grant of application.
In their writ of summons against
the Electoral Commission the
plaintiffs sought a declaration
that the holding of the
elections to the office of
District Chief Executive in each
district between 18 August 1993
and 30 August 1993 as directed
by the Commission was in
contravention of the 1992
Constitution, articles 242, 243
and 246. The plaintiff filed an
application pursuant to article
134 of the 1992 Constitution
praying for interim injunction
to restrain the Commission from
holding the elections pending
the hearing and determination of
the substantive action. The
application was heard under Rule
60 of the Supreme Court Rules
1970 (CI 13) and article 134 of
the 1992 Constitution by a
single justice of the Supreme
Court during the vacation.
Held
- (1) Since the Supreme Court
was on vacation and would not
resume until the beginning of
October 1993 and as the said
elections were scheduled to take
place between the 18 and 30
August 1993, the court accepted
the plaintiffs-applicants’
contention that the purpose of
their writ would be defeated if
the order sought was not made.
In applications of this nature
the court would have to satisfy
itself that the claim was
neither frivolous nor vexatious
and that serious questions of
law were involved in the
determination of the substantive
case. The court accepted that
the applicants had established a
prima facie case and that
there was a need for the
status quo to be preserved.
Vanderpuye v Nartey
[1977] 1 GLR 423 approved.
Case referred to:
Vanderpuye
v Nartey [1977] 1
GLR 423.
APPLICATION for interim
injunction.
Peter Adjetey
(with Nana Akufo-Addo and
Alex Quaynor) for the
applicants.
AIKINS JSC.
This is an application praying
for an order of this court for
interim injunction directed to
the Electoral Commission, lst
defendant-respondent herein,
restraining it from holding the
elections of district chief
executives of the districts
scheduled by the lst
defendant-respondent between
18th August 1993 and 30th August
1993 pending the hearing and
determination of the substantive
writ No 11/93 filed today, 17
August 1993.
The application was filed
pursuant to article 134 of the
Constitution, 1992 and Rule 60
of the Supreme Court Rules 1970
(CI 13). Article 134 empowers a
single justice of the Supreme
Court to exercise the power
vested in the Supreme Court in
civil matters not involving the
decision of the cause or matter
before the Supreme Court. I am
satisfied that I have
jurisdiction to adjudicate upon
this matter.
The writ filed by the plaintiffs
this morning is seeking two
reliefs, namely:
“(a) a declaration that the
holding by the Electoral
Commission of elections to the
office of District Chief
Executive for each district
between 18th August 1993 and
30th August 1993 is inconsistent
with and a contravention of the
Constitution, specifically
articles 242, 243 and 246
thereof, and is therefore
unconstitutional, illegal and
unenforceable.
(b) an order of injunction
directed to the Electoral
Commission prohibiting and
restraining it from holding
elections to the office of
District Chief Executive for
each district between 18th
August 1993 and 30th August
1993.”
The contention of the plaintiffs
is that on 14 August 1993 the
lst defendant-respondent issued
a statement directing the
holding by the district
assemblies of elections for the
office of district chief
executives of the districts
between 18 August 1993 and 30
August 1993. They contend that
the holding of these elections
is inconsistent with and a
contravention of the
Constitution 1992, and that it
is in the public interest that,
pending the hearing and
determination of the merits of
the substantive writ, the lst
defendant-respondent should be
restrained by an interim order
of this court from holding the
proposed elections, as the
holding of the said elections is
potentially unconstitutional and
illegal. They urge further that
if an order of restraint is not
made by this court the purpose
of the plaintiffs-applicants’
writ will be defeated and
rendered wholly nugatory. It has
been brought to my notice that
the defendants-respondents have
been served with the necessary
papers and have been informed
that this matter is due for
hearing at one o’clock in the
afternoon of today, but there
has been no appearance for
defendants-respondents, and the
defendants-respondents have not
thought it fit to be in court to
defend the case.
I have read the relevant
provisions of the Constitution
affecting this case, and given
due consideration to the
argument of counsel for the
plaintiffs-applicants.
It is pertinent to note that the
Supreme Court is at the moment
on vacation and will not re-open
for business until the beginning
of October 1993, and as the said
elections are scheduled to take
place between the 18th and 30th
August 1993 I agree with counsel
for the plaintiffs-applicants
that the purpose of their writ
“will be defeated and rendered
wholly nugatory” if the order
sought is not made.
In applications of this nature
the court will have to satisfy
itself that the claim is neither
frivolous nor vexatious, and
also that serious questions of
law are involved in the
determination of the substantive
case. Leading counsel for the
plaintiffs-applicants has urged
that there is need for the
status quo in this writ to
be preserved and I think I agree
with him.
In reading the affidavit of the
plaintiffs-applicants, it is my
view that a prima facie
case has been made by the
plaintiffs-applicants to justify
the grant of the relief they
seek.
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.”
I agree with that court. As I
have said earlier a prima
facie case has been made by
the plaintiffs-applicants, and
there is no doubt in my mind
that the claim in their writ is
neither frivolous nor vexatious.
In my judgment, this is a case
where it is proper and fitting
that the application for interim
injunction sought should be
granted, and it is hereby
granted. The Electoral
Commission is hereby prohibited
and restrained from holding the
proposed elections to the office
of District Chief Executive for
each district between 18 August
1993 and 30 August 1993.
Application granted.
S Kwami Tetteh, Legal
Practitioner. |
