The University of Ghana SRC Judicial Board has in a unanimous decision dismissed the petition brought forward by Joseph Agyekum challenging his disqualification by the SRC Electoral Commission from this year’s election.
The court gave its ruling after four days of hearing.
Day 1: Court Grants Ex-Parte Injunction, March 30
The Vetting for aspirants was slated for 6pm on the said date at the SRC Union Building conference room. Supporters of aspirants were seated awaiting the vetting which appeared to delay due to power outage.
The Electoral Commissioner, Rexford Opare could be seen pacing to and fro in an attempt to secure a generator. What many did not know was that a court hearing was currently ongoing in an office within the same union building. The aspirants could be seen in their suit and tie, ready to meet the pass mark of 70% the Commissioner had stated as the new pass mark.
Elsewhere Counsels Kwame Twum, Eugene Offei and another colleague of theirs were busy convincing the bench to grant an Ex-Parte interlocutory injunction. They were representing Joseph Agyekum popularly known as JO an abbreviation he affectionately explains to mean ‘Justice’ and ‘Openness’. He was clearly seeking the former.
Joseph Agyekum had been disqualified together with Eugene Agyei for failing to meet the requirement spelled out in article 30(1)(b). Article 30 spells out the criteria one must satisfy in order to contest for an Executive Officer portfolio.
The said provision reads
“He has attained a Cumulative Grade Point Average (CGPA) of 3.0 as at the time of filing his nomination.”
Counsel Twum argued that on a true and proper interpretation of the provision, the plaintiff is qualified to contest the 2016 UG SRC elections. He prayed that the court orders the first defendant (Electoral Commissioner) to revoke its decision in respect of disqualifying the plaintiff, award a cost of 1,000 cedis and any other orders the court may deem fit to grant.
The UG SRC Judicial Board in a unanimous decision granted the application for an Ex-Parte interlocutory injunction. The court in its ruling stated that
“..Applicant has succeeded in satisfying the pertinent requirement for an application of this nature as enunciated in the American Cyanamid case; whether or not there is a serious issue to be tried. It follows therefore that the present ongoing vetting is temporarily halted…”
Few minutes after the ruling, the court registrar exited the office where hearing had just ended and quickly located the Commissioner and handed the injunction notice. The Electoral Commissioner then headed to the Conference room and announced the injunction to all present. He ended by saying
“I think by Friday the court will rule, so as it stands now vetting has been suspended”.
The court later informed parties to the case that hearing of substantive matter will come off on Friday, April 1, 2016.
Day 2: Court dismisses application to set aside interlocutory injunction, April 1.
Hearing begun thirty minutes after 6pm. Counsels for the defendant (Electoral Commission), Counsels Nana Boadu, Barnabas Abisa and the SRC Legal advisor Richard Offei were seated and ready to move a motion for the petition to be dismissed by the Bench. Counsel Abisa rose and argued that the court ought to dismiss the petition because the plaintiff had failed to attach the relevant document to the Ex-Parte application that was granted by the court earlier.
Counsel for Joseph Agyekum argued against the motion. Counsel Twum argued that the defendant had failed to satisfy the requirements of setting aside an injunction as indicated in the Brown v Newel case of 1838.
“Counsel has failed to prove that there was a suppression of facts and fraudulent misrepresentation of facts”, he said.
The Bench after a brief recess ruled unanimously that the defendant had failed to prove the two requirement in the Brown v Newel case. Hearing of the substantive matter could not proceed because counsels for the plaintiff had failed to file their statement of case (substantive case) as well as defendant failing to file response. The court then adjourned hearing to Saturday, April 2 at 9am.
Day 3, Court fines Joseph Agyekum 80 cedis and adjourns sitting to 4pm.
Hearing which was scheduled to begin at 9am delayed for about two hours. Counsels for the plaintiff were absent in court. The Bench called the plaintiff Joseph Agyekum to explain why his counsels were absent. Joseph Agyekum stated that a member of his legal team had taken ill hence their absence. The bench found this reason strange because the plaintiff at previous hearings had been represented by three counsels.
Counsel Barnabas rose once more, praying that court dismisses the suit because the plaintiff had demonstrated a desire to delay proceedings. The Bench disagreed.
The Bench ordered Joseph Agyekum to pay an amount of 80 cedis to the defendant for the delay. Presiding Justice Nadia Antwi in delivering the order informed the court that hearing must be as fair as possible. She adjourned hearing to 4pm and warned the plaintiff that hearing at 4pm will proceed with or without his counsel.
Day 4, Court Dismisses Petition, orders plaintiff to pay 600 cedis as damages.
Hearing begun at 4pm prompt. Counsel for the Electoral Commission Abisa Barnabas moved an Ex-Parte motion asking the court to dismiss the petition. Counsels for the plaintiff entered the court, 25 minutes after 4pm. Counsel Abisa was still up moving his motion. The plaintiff, Joseph Agyekum was absent from court.
Counsel Abisa argued that the plaintiff should have filed for a Judicial Review rather than a call for interpretation. He stated that the plaintiff asserts that his rights has been abused, hence they ought to call for a judicial review and not interpretation. He cited Ernest Victor Apau v Mustapha as the authority. He Reminded the court that in that ruling, Justice Gbadegbe stated that it was a human right issue and not one that requires interpretation..
He argued further that the plaintiff’s evidence was inadequate.
“Plaintiff has failed to even attach his transcript as ordered by the court when it granted the injunction”, he said. Counsel Abisa in concluding described the petition as frivolous and vexatious.
Counsel Twum was asked by the Bench why he failed to show up in court in the morning. Contrary to the claim by Joseph Agyekum that a member of their legal team had taken ill, he said their client owed them some legal fees hence their absence.
The court went on recess and returned to unanimously dismiss the application.
Counsel Kwame Twum (Counsel for plaintiff) was called by the court to orally present his client’s case.
Counsel Twum argued that the plaintiff was praying that the court interprets Article 30 (1)(b). He stated that upon a proper interpretation of the said provision his client had the required CGPA as at the time of filing his nomination. He reminded the court that despite obvious clarity, an enforcement of this provision has challenges and that a ruling by the court will provide a judicial precedent that will make things clearer. He added that the Dean of student affairs, whose letter to the Commission was used as basis to disqualify the plaintiff, per the institution’s Act 2010, was not the custodian of academic records.
Twum explained that two results of his client was released after his client had filed his nomination. This he claimed led to reduction in his client’s CGPA. He concluded by reminding the court that the burden of proof per the evidence act was not static and that the Ec, the institution that had disqualified his client ought to prove to the court the document it had relied on for the disqualification.
“The EC has only presented a letter with some names ticked and others not ticked, what does it mean?” he stated.
It was then the turn of of the counsels for the Electoral Commission.
Counsel Nana Boadu, a member of the Ecs legal team addressed the court. He argued that article 30 (1)(b) was unambiguous and required no interpretation. He reminded the court that since the plaintiff was crying foul, the plaintiff ought to prove to the court with evidence that he had 3.0 at the time of filing his nomination. He added that the plaintiff contrary to Counsel Twum’s assertion had not attached his transcript to his form when he filed his nomination.
The Bench then invited the Electoral Commisioner Rexford Opare as an expert witness. Mr. Opare told the court that the plaintiff was not required to attach his transcript to the nomination form and that the plaintiff didn’t attach the said document. He said his office received Joseph Agyekum’s nomination on March 23.
Counsel Twum then cross examined the expert witness. Rexford Opare revealed during cross examination that Joseph Agyekum had filed his nomination on March 23 and that the Commission wrote to the Dean of Student Affairs on March 24. The Commission then received a reply from the Dean stating which candidates had met this requirement on March 29. Mr.Opare told the court that he doesn’t believe any result released in between the aforementioned date could have affected the aspirant’s CGPA.
Hearing came to a halt at this stage. Justice Mettle Nunoo reminded the court that Joseph Agyekum was still not in court had not paid the fine of 80 cedis. The bench increased the amount to 100 cedis. Counsel Twum told the court that his client was on his way and that he had assured him that he will pay the amount once he arrived.
Rexford Opare was then cross-examined briefly by Counsel Boadu. Counsel Boadu asked the EC to confirm some details on the Constitutional Instrument issued by the EC.
The court then headed for a recess after which the petition was dismissed by the Bench unanimously. The court in its ruling read by Presiding justice Nadia Antwi stated that the plaintiff had failed to meet the requirements of the evidence act. The plaintiff, the bench stated had failed to prove that Joseph Agyekum had 3.0 as at the time of filing his nomination. The court also ordered Joseph Agyekum to pay the Electoral Commission 600 cedis as damages in addition to the 100 cedis awarded earlier.
The Electoral Commission was given the green light to hold vetting for aspirants.