IN THE HGIH COURT OF JUSTICE, LAW COURT COMPLEX, HUMAN RIGHTS DIVISION COURT 2, ACCRA GHANA HELD ON THURSDAY, THE 13TH

DAY OF JULY 2017 BEFORE HIS LORDSHIP ANTHONY K. YEBOAH, J=================================

SUIT NO. HR/0066/2017

1. IRENE KORLEY-AYERTEYE 2. NII ADOTEI MINGLE3. KEN DONKOR ADDOR4. DINAH SARPONG5. NAOMI SAM6. SUSSIE NTIM

PLAINTIFFS/7. GODFRIED TESSU KWAME

APPLICANTS8. NUHU UMAR9. JOHN A. NEBUGRI10. DOMINIC ENYAN11. MAVIS FRIMPONG

VRS.

GENERAL LEGAL COUNCIL - DEFENDANT

===============================PARTIES : 1ST, 2ND, 3RD, 4TH, 6TH, 8TH AND 11TH

PLAINTIFFS/APPLICANTS -PRESENT

MICHAEL OSEI AKOTO REPRESENTS 5TH PLAINTIFF

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DUKE AWINSON ANABA REPRESENTS 7TH PLAINTIFF

JOYCE AHETO REPRESENTS 9TH

PLAINTIFF

PRINCE PERCY TAYLOR REPRESENTS 10TH PLAINTIFF

DEFENDANT - ABSENT

COUNSEL: KWAKU ANSAH ASARE, ESQ. FOR THE

PLAINTIFFS/APPLICANTS PRESENT NANA YAW NTRAKWA, ESQ. FOR THE DEFENDANT PRESENT

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RULING

Interim1 or interlocutory injunction is a useful judicial machinery for regulating the conduct of parties until the final determination of the issues in controversy. Such injunction seeks to maintain or adjust or re-adjust the relationships of the parties to prevent one overreaching the other. But most importantly, it regulates the conduct and relationship of the parties in order that when the final orders of the Court come to be made, they will not be rendered nugatory or incapable of being executed.2

1 Interim injunctive order is for a limited period of not more than ten days; interlocutory injunctive order is to last till final conclusion of the proceedings; perpetual injunctive order is for an indefinite period.2 cf. Equitable Remedies, 9th edition, Spry, Ian (Dr., QC), TLR Australia, 2013

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In granting or refusing an application for interim or interlocutory injunction, the Court must be informed by two fundamental principles: Firstly, the Applicant for the injunction establishes a prima facie case which simply means demonstrating that the Applicant has a legal right which Equity may protect. Equity follows the law, therefore, once such a protectable legal right is demonstrated on affidavit evidence, the Court may take the necessary steps to protect it, if the second principle operates in favour of the Applicant. Secondly, the Applicant must convince the Court that the balance of convenience tilts adversely against him. Where the Applicant establishes a legal right prima facie and demonstrates that the balance of convenience tilts unfavourably towards his side, the Court, all the circumstances considered, may3 grant the Application.4

In evaluating the balance of convenience, the Court seeks to ensure that its final orders are not

3 Equitable remedies are general discretionary remedies.4 Vanderpuye v. Nartey [1977] 1 GLR 428: ““Griffiths-Randolph J. by whom the original application was heard, proceeded on principles which he stated in the following manner: “Normally, when such an application is made, the court does not decide the rights of the parties; but rather seeks to have the status quo maintained. However, the making by the court of the order sought is discretionary; and in order that the court’s discretion may be properly exercised in favour of the plaintiff, it necessary for him to show a reasonably fair or strong prima facie case in support of his claim . . .”It is to the latter part of the statement that objection is taken. The requirement that an applicant for interlocutory relief should show a prima facie case is apparently a recent development in the English courts as a method of disposing of certain types of claim in Chancery. For the traditional view for the grant or refusal of interlocutory relief has been, for the court to abstains in the words of Kindersley V.C. in Wakefield v. Duke of Buccleugh (1865) 12 L.T. 628 at p. 629 from “expressing any opinion upon the merits of the case until the hearing” but to act to minimise the sum total of irreparable damage to the litigants. But, as the note in the Law Quarterly Review (1975), Vol. 91, at p. 169 written by Mr. Peter Prescott, points out, in recent times the tendency has been for the courts to adopt the attitude that they “be guided more and more by the apparent strength or otherwise of the plaintiff’s case as revealed by the affidavits.” And this, as the note goes on is evidenced by the English Court of Appeal in Cavendish House (Cheltenham) Ltd. v. Cavendish-Woodhouse Ltd. [1970] R.P.C. 234 in which Harman L.J. said that “you start off with a prima-facie case. That, of course, is the essential prelude to the granting of interlocutory relief” Though recent, the practice draws on scattered references in earlier cases like Smith v. Grigg Ltd. [1924] 1 K.B. 655 at p. 659, C.A. in which Atkin L.J. (as he then was) had spoken of “a strong prima facie case that the right which he seeks to protect in fact exist.”

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overreached by the present conduct of the Respondent. In other words, where irreparable damage is likely to be occasioned by the present conduct of the Respondent, then it is proper that such an application be granted.

In the English case of American Cynamid Co. v. Ethicon Ltd [1975] AC 396 HL, Lord Diplock stated the object of interlocutory injunction as follows: -

“The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the Plaintiff’s need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the Plaintiff’s undertaking in damages.... [T]he Court must weigh one need against another and determine where the balance of convenience lies……”

Lord Diplock continued:“As to that, the governing principle is that the Court should first consider whether if the Plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the Defendant’s continuing to do what was sought to be enjoined between the time of the Application and the time of the trial. If the damages… would be adequate… no

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interlocutory injunction should normally be granted.”

In sum, the object of interim or interlocutory injunction is to secure the final orders of the Court by regulating the present conduct of the parties where a protectable legal right has been shown and the balance of the convenience tilts adversely towards the Applicants. The plaintiffs herein are the Applicants in the present application. They are eleven LLB graduates from various institutions recognized by the General Legal Council (‘Council’) and have sued the General Legal Council as defendant per their writ of summons that was issued at the Human Rights Division of the High Court, Accra on 11th July 2017. The Council is the statutory body responsible for the organization of legal education in Ghana in terms of the Legal Profession Act, 1960, Act 32. Their claimed reliefs are as follows:

“i. A declaration that the General Legal Council is a creature of statute i.e. the Legal Profession Act, 1960 (Act 32).

ii. A further declaration that at the statutory body responsible for the organization of legal education in Ghana, it comes under a statutory duty under the Legal Profession Act, 1960 (Act 32) and the Professional Law Course Regulations, 1984 (L. I. 1296) to comply with the terms of the law regarding admission of law graduates in the Ghana School of Law.

iii. A declaration that the passage of L. I. 1296 under the powers conferred on the Defendant-Council by Section 14 of the Legal Professional Act, 1960 (Act 32) makes Regulations 2 and 3 (L. I. 1296) the only

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lawful criteria for admission of the Plaintiffs into the Ghana School of Law.

iv. A further declaration that Plaintiffs and persons with the requisite qualifications in terms of the law (i.e. Act 32 and L. I. 1296) automatically qualify for admission into the Ghana School of Law.

v. A declaration that the admission criteria imposed by Defendant-Council in terms of an entrance examination and an interview for admission into the Ghana School of Law since 2015 contravene the provisions of Act 32 and L. I. 1296.

vi. An order of Court setting aside the unlawful criteria complained off as illegal and unconstitutional and an infringement upon the Plaintiffs’ fundamental human rights enshrined in the 1992 Constitution of the Republic of Ghana.

vii. A declaration that being itself a creature of statute by virtue of the 1992 Constitution and the Courts Act, 1993 (Act) 459), the Court could not fail to take up the issue of illegality arising from breaches by Defendant-Council of Sections 13 and 14 of the Legal Profession Act, 1960 (Act 32) and Regulations 2 and 3 of the professional Law Course Regulations 1984 (L.I. 1296) which had come to its notice.

viii. A further declaration that the Courts are the servants of the Legislature and are legally enjoined to pay strict obeisance to statute.

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ix. A declaration that allowing the Defendant-Council to administer the entrance examination on Friday, 14th July, 2017 would amount to a grant of immunity from the consequences of breaching Sections 13 and 14 of the Legal Profession Act, 1960 (Act 32), Regulations 2 and 3 of the Professional Law Course Regulations, 1984 (L.I. 1296) and articles 11 (7), 23, 296 (a) and (b) and 297 (b) of the Constitution, 1992.”

The plaintiffs rely, according to them, on their legal capacity as persons directly affected by:

“the institution of entrance examination for admission into the Ghana School of Law by defendant-council and they failed to gain admission or that they are being made to write it (again) even though the entrance examination and interview are both illegal and declared unconstitutional by statute and declared unconstitutional by the Supreme Court in its judgment delivered in June, 2017 in Civil Suit No. J.1/1/2016 in the case of:

Professor Stephen Kwaku Asare….. Plaintiff -vrs-

1. Attorney-General2. General Legal Council……… Defendants.”

The thrust of the application of the plaintiffs is that “the imposition of the entrance examination to be conducted by the defendant on Friday, 14th July, 2017 is illegal, irregular, and unconstitutional.” For this reason, the plaintiffs have put in this present ex parte application filed on 11th July 2017 with 13th July 2017 as the return date and are praying for the following equitable remedy:

“an order of interlocutory [sic] injunction to restrain the defendant-council whether by itself,

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agents, assigns privies, servants and whomsoever of whatever description from conducting the entrance examination planned for Friday, 14th July, 2017.”

In their joint affidavit in support of the application, the plaintiffs deposed in paragraphs 14, 17 and 20 as follows:

“14.That as law graduates we are of the considered view that once the act of conducting the entrance examination into the Ghana School of Law has been declared illegal and unconstitutional by the Supreme Court, that act is rendered void ab initio and no action can be founded on it.

17. That even if chaos should result from halting the examination complained of, still the law must be obeyed.

20. That the balance of convenience is clearly in favour of granting the injunction for the simple reason that the defendant suffers no harm from the injunction. In contrast, the harm caused us if the injunction is denied is irreparable.”

The plaintiffs generously exhibited to their

affidavit in support the unreported judgment of the Supreme Court in the Professor Asare case (supra). From it, I quote, as follows, the underscored directions and orders of the Supreme Court:

“By virtue of and in accordance with article 2(2) of the Constitution, it is hereby ordered that the Council puts in place a mechanism that would enable it to make changes to LI 1296 in terms of what it thinks appropriate in order to properly exercise its mandate under Act 32 having regard in particular to sections 1, 13, and 14 by putting in

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place a system of legal education in terms of articles 11(7) and 297 of the constitution. As preparations towards admissions in October 2017 have already been initiated and bearing in mind that persons who would avail themselves of such opportunities are qualified within the scope of regulations 2 and 3 as pronounced in this judgment, we do not think it is in the public interest to interfere with such arrangement. It is hereby further ordered that the new system should be in place within 6 months from today such that admissions into the professional law course in October 2018 shall not be conducted under the system which has informed the declaration to which the consequential orders herein relate.”

As can clearly be seen from the pleadings, depositions in the supporting affidavit and the statement of case, this suit and application emanated directly from the Prof. Asare case. It is a case that was finally decided by the Supreme Court of the Republic of Ghana. The understanding is that the ratio decidendi, the rules and the principles forming a part of the judgment now form a part of the ‘common law’5 of the Republic of Ghana as is provided for under article 116 of the Constitution, 1992. Accordingly, 5 The decisional law.6 The Constitution, 1992: “Article 11(1) The laws of Ghana shall comprise- (a) this Constitution; (b) enactments made by or under the authority of the Parliament established by this Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution. (d) the existing law; and (e) the common law. (2) The common law of Ghana shall comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of customary law including those determined by the Superior Court of Judicature. (3) For the purposes of this article, "customary law" means the rules of law, which by custom are applicable to particular communities in Ghana.

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whatever rights, relative to the Ghana School of Law entrance examination and interview, that persons like the aggrieved plaintiffs have, must so long as the Prof. Asare judgment exists, be defined and understood in terms of the declarations and orders made in the Supreme Court judgment that bind everybody including all courts in Ghana7. And, the jurisdiction of the Supreme Court to make such orders and give such directions is clearly enshrined in the Constitution, 19928.

In pursuance of their Lordships’ jurisdiction under article 126(4) of the Constitution, 1992, the following

(4) The existing law shall, except as otherwise provided in clause (1) of this article, comprise the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution, and any Act, Decree, law or statutory instrument issued or made before that date, which is to come into force on or after that date. (5) Subject to the provisions of this Constitution, the existing law shall not be affected by the coming into force of this Constitution. (6) The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution. (7) Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall - (a) be laid before Parliament; (b) be published in the Gazette on the day it is laid before Parliament; and (c) come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation by the votes of not less than two thirds of all the members of Parliament.”

7 The Constitution, 1992: “Article 129(1) The Supreme Court shall be the final court of appeal and shall have such appellate and other jurisdiction as may be conferred on it by this Constitution or by any other law. (2) The Supreme Court shall not be bound to follow the decisions of any other court. (3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

8 The Constitution, 1992:“Article 126 (4) In the exercise of the judicial power conferred on the Judiciary by this Constitution or any other law, the Superior Courts may, in relation to any matter within their jurisdiction, issue such orders and directions as may be necessary to ensure the enforcement of any judgment, decree or order of those courts.”

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order was made and it is this order that appears to be concerning to the plaintiffs:

“As preparations towards admissions in October 2017 have already been initiated and bearing in mind that persons who would avail themselves of such opportunities are qualified within the scope of regulations 2 and 3 as pronounced in this judgment, we do not think it is in the public interest to interfere with such arrangement.”

It would appear from a thorough and careful reading of the judgment of their Lordships that the declaration of unconstitutionality was made subject to the above-quoted limitation. It cannot, therefore, be a correct rendition of the judgment, as the plaintiffs contend, that their Lordships declared the entrance examination illegal and unconstitutional unconditionally. The rights of the plaintiffs and persons like them are subject to the above limitation for the time being.

But, evidently, the plaintiffs are aggrieved by the limitation attending the unconstitutionality declaration, hence the present action. They are unable to appreciate why the Supreme Court can, in the same breath, declare unconstitutionality and arrogate to themselves the power to allow the self-same unconstitutionality to continue even for a moment. To them the picture can, in law, only be black or white and never grey. And, this is the subject matter of the present suit. The plaintiffs appear to have a legal right such as has been defined in this ruling and stated to be a demonstrably limited right9. Still and all, any court that is faced with the circumstances and facts of the present case ought to be mindful of the admonition in the important and instructive case of Foli and Ors. v. Agya-Atta and Ors. [1976]10 9 Article 12(2) of the Constitution, 1992.10 Foli and Ors. v. Agya-Atta and Ors. (Consolidated) [1976] 1 GLR 194 CA:

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As regards the issue of balance of convenience, the plaintiffs deposed in paragraph 17 of the affidavit in support as follows: “That even if chaos should result from halting the examination complained of, still the law must be obeyed.” This deposition is ruffling for a couple of reasons, with the greatest respect the distinguished11 and learned counsel for the plaintiffs. Firstly, this deposition seems to forget the fact that the decisional law derivative from the judgments of the superior courts including the foremost or apex court, that is the Supreme Court, is also part of the laws of the Republic of Ghana as has been provided for under article 11 of the Constitution, 199212. After all, without the judicial intervention of the Supreme Court under article 2 of the Constitution, 1992, the conduct of the Council would still be deemed to be constitutional. Secondly, chaos is a factor to take account of in evaluating the balance of convenience and irreparable damage. And, a rational decision must be made here taking also into account what has become known as the ‘culture of justification’13 in judicial adjudication. And, this is exactly what their Lordships sought to do by adopting the ‘prospective approach’ in making their “Thus, in the most famous statement of that aspect of the principle [of estoppel/res-judicata], Wigram V.-C. in Henderson v. Henderson (1843) 3 Hare 100 at pp. 114-115 puts the point this way: “I believe I state the rule of the court correctly, when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.””

11 He was my lecturer at the Ghana School of Law.12 Cf. Footnote 1 infra.13 Etienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 S.A.J.H.R. 31, 32.

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final orders as is quoted above, which involves temporarily suspending the effect of the unconstitutionality declaration in the public interest14.

In the circumstances, what Equity requires the plaintiffs to do is to demonstrate how adversely this prospective approach affects them and for which reason there is the need to make an order of interim injunction. In this regard, all that this court has before it is paragraph 20 of the affidavit in support which bears repeating as follows:

“That the balance of convenience is clearly in favour of granting the injunction for the simple reason that the defendant suffers no harm from the injunction. In contrast, the harm caused us if the injunction is denied is irreparable.”

This issue, as to where the balance of convenience tilts, is to be resolved on affidavit evidence and the application is ex parte meaning that the affected respondent or defendant cannot make an input. It is, therefore, not sufficient to lay before the court a bare allegation of fact that “the defendant suffers no harm” and that “the harm caused to [the plaintiffs] if the injunction is denied is irreparable.” These allegations of fact are calling for evidence which I cannot find in the affidavit in support. What, for example, is the nature of the harm that the plaintiffs have in mind that can be said to be irreparable? It is not for this court to speculate; it is for the plaintiffs to demonstrate the harm by stating the nature of the harm and, where possible, lead affidavit evidence.

The defendant suffers no harm, according to the plaintiffs. Really? This is an ex parte application and the principles governing such applications call for

14 Article 12(2) of the Constitution, 1992.

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utmost candour and good faith15. Do the plaintiffs seriously believe that the defendant suffers no harm when the order applied for is granted a day before 14th

July 2017? In an application ex parte such as the present one, all the facts must be laid before the court and nothing must be suppressed16. Besides, the plaintiffs ought to have given strong grounds for coming ex parte17; I see none in the affidavit. It is for the plaintiffs to demonstrate the possible irreparable harm that may be caused to them, but they have failed to do so.

However, as a judge, I am ultimately responsible for the decisions that I make, whether the other side is present before the court or not; I must also anticipate the possible effects and implications of my decisions to the extent that they affect even persons who are not before the court. This is very important.18 This court, like all courts, tend to suffer from what is known as epistemic deficiency for not being able to tell how the numerous other LLB graduates react to the judgment of the Supreme Court, and what their preferences and hopes are. The plaintiffs do not even constitute a legally recognized association with known leaders who, upon consultation with the membership, have opted for interim injunction against the entrance examination that involves numerous other persons with diverse circumstances.

These plaintiffs may be the dynamic and concerned LLB graduates, but do the other supposedly unconcerned LLB graduates wish to miss the upcoming entrance examination only to be merged 15 Lazard Brothers and Company v. Midland Bank Limited [1933] A.C. 28916 R. v. Kensington Income Tax Commissioners [1917] 1 K.B. 486 at p. 504, CA17 Order 25 (8) of the High Court (Civil Procedure) rules, 2004, CI 4718 http://cyber.law.harvard.edu/bridge/LegalProcess/fuller2.htm; “The Forms and Limits of Adjudication” (1957) (92 Harv. L. Rev. 353, 1978-79).

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with the rather disturbing backlog of LLB graduates in future? I am not comfortable, just as their Lordships in the Supreme Court, with the present circumstance of the backlog of LLB graduates who earnestly wish to obtain the qualification to practise law in Ghana. Their Lordships were so concerned as to suggest an option in the following words:

“This calls for the allocation of for example quotas to [University of Ghana] and other universities and or institutions which have been given to offer law degrees for the purpose of enabling students to be admitted to School for their practical training in order to qualify for enrollment as lawyers. While not taking the view that this is the only means by which legitimate controls may be exercised on admissions into the School, it is strongly recommended that the Council give consideration to this option in the future as part of its regulatory mechanism.”

Without seeming to take issue with the wise counsel of their Lordships in the Supreme Court, if I were permitted to take the liberty to offer a suggestion, I would, with the utmost respect, encourage the august Council to test their options using the Oakes Test (proportionality test) adumbrated by the Supreme Court in the Tommy Thompson and Ahumah Ocansey cases. That test may help to ask and answer much more fundamental questions. This is a human rights issue that needs be addressed and urgently so.19

Back onto the rail tracks, I must ask myself what the plaintiffs lose in the event where the upcoming entrance examination proceeds and the plaintiffs are 19 In the Matter of Consolidated Suits: Writ No. JI/4/2008 Ahumah Ocansey vrs The Electoral Commission and Writ No. JI/5/2008 Centre for Human Rights & Civil Liberties (Churcil) vrs The Attorney-General & The Electoral Commission of 23RD March, 2010; Coram: Wood (Mrs), CJ (Presiding) Date-Bah (Dr), JSC, Owusu (Ms), JSC, Dotse, JSC, Anin Yeboah, JSC; Republic v Tommy Thompson Books Ltd. (No2) [1996-97] SCGLR 484 at 500-501

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successful in their suit before this court? It does not appear to me plausible that when the final orders of the Court come to be made, they will be rendered nugatory or incapable of being executed, if this application is refused. I am not sure the plaintiffs have painted any picture for me to examine and come to a decision in terms of any harm they are likely to suffer which is not only irreparable, but can also not be compensated for by way of costs. On the contrary, if the interim injunction is granted, I can foresee the ‘chaos’ that the plaintiffs themselves anticipate, but call on this court to disregard without a whimper.

In the result, I am of the considered view that even though I see a limited legal right inherent in the plaintiffs that Equity may protect in the right circumstances, I am not sure that the plaintiffs have successfully demonstrated to me that they will suffer any irreparable harm or damage, if the application for interim injunction is refused.

Accordingly, I refuse the application.

(SGD.)ANTHONY K.

YEBOAH, J HIGH COURT

JUDGE

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