REVIEW-HON KOJO OPPONG NKRUMAH vs. THE CHIEF JUSTICE OF THE REPUBLIC OF GHANA & ANOR

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: KULENDI JSC (PRESIDING)

ADJEI- FRIMPONG JSC

SUUREBAAREH JSC

REVIEW MOTION

NO. J7/34/2026

2ND SEPTEMBER, 2026

HON. KOJO OPPONG NKRUMAH, MP …………. PLAINTIFF/APPLICANT/

APPLICANT

VRS

1. THE CHIEF JUSTICE OF THE REPUBLIC OF GHANA DEFENDANTS/

RESPONDENTS/

2. THE ATTORNEY-GENERAL RESPONDENTS

RULING

KULENDI JSC: –

INTRODUCTION:

By a motion on notice filed on 24th August 2026, the Applicant, Hon. Kojo Oppong Nkrumah, invokes the jurisdiction of this Court under Article 134(b) of the Constitution, section 7(b) of the Courts Act, 1993 (Act 459), and rule 73 of the Supreme Court Rules, 1996 (C.I. 16), as amended by C.I. 98 seeking the reversal of the ruling delivered by our illustrious brother Pwamang JSC, sitting as a single Justice on 21st August, 2026 wherein this Court dismissed his application for an interlocutory injunction filed on 14th August, 2026.

In addition to the foregoing, the Applicant is expressly praying for the following reliefs:

An order of interlocutory injunction restraining the 1st Defendant/Respondent herein and the designated judges from implementing, enforcing and giving effect to the impugned warrants issued by the 1st Defendant/Respondent directing selected judges presiding over the affected High Courts to sit and conduct criminal trials during the legal vacation which commenced on the 1st day of August 2026 and ending on the 30th day of September 2026 pending the final determination of the suit;

An order consequential upon relief (i) restraining His Lordship, Justice Francis Apongabuno Achibonga, JA, sitting as an additional High Court Judge at Specialised Court ‘1’, Accra, and Her Ladyship, Justice Charity Akosua Asem, JA, sitting as an additional High Court Judge at Specialised Court ‘2’, Accra, from adjudicating the criminal trials pursuant to the impugned warrants pending the final determination of the substantive action.

BACKGROUND:

This application arose from a substantive constitutional action instituted on 14th August, 2026 under Articles 2(1) and 130(1) of the Constitution. In that action, the Applicant challenged the constitutionality of the Chief Justice’s warrants and, to the extent pleaded, Order 79 rules 1(1) and 1(2) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).

His plaint is that the arrangements deployed by the Honorable Chief Justice for vacation sittings occasion unequal treatment and selective justice, constitute an improper exercise of administrative discretion, and interfere with the rights to health, rest and satisfactory working conditions of affected judges, lawyers and Judicial Service staff. These circumstances, he argues, contravene the text and spirit of Articles 17(1) and (2), 23, 24(1) and (2), 36(10), and 296(a) and (b) of the Constitution.

The Applicant coupled his writ with an application for interlocutory injunction, seeking the following orders:

(i) An order of interlocutory injunction restraining the 1st Defendant/Respondent herein and the designated judges from implementing, enforcing and giving effect to the impugned warrants issued by the 1st Defendant/Respondent directing selected judges presiding over the affected High Courts to sit and conduct criminal trials during the legal vacation which commenced on the 1st day of August 2026 and ending on the 30th day of September 2026 pending the final determination of the suit;

(ii) An order consequential upon relief (i) restraining His Lordship, Justice Francis Apongabuno Achibonga, JA, sitting as an additional High Court Judge at Specialised Court ‘1’, Accra, and Her Ladyship, Justice Charity Akosua Asem, JA, sitting as an additional High Court Judge at Specialised Court ‘2’, Accra, from adjudicating the criminal trials pursuant to the impugned warrants pending the final determination of the substantive action.

Our brother Pwamang JSC, sitting as a single Justice of this Court, considered the application and dismissed it in a ruling delivered on 21st August, 2026. Against this background, the Applicant invoked this Court’s jurisdiction under Article 134(b) of the Constitution to reverse that ruling, relying on the following eight principal grounds:

His Lordship erred in dismissing the Applicant’s preliminary legal objection that the Attorney-General cannot in the circumstances, when the Chief Justice’s administrative actions are being questioned relative to Articles 23 and 296 of the Constitution, represent the 1st Respondent in the hearing of the application for the interlocutory injunction;

His Lordship did not consider the corollary that the Chief Justice having refused, failed and/or neglected to respond to the Applicant’s affidavit in support and traverse the statement of case, is deemed to have admitted the Applicant’s prayer for interlocutory injunction pending the determination of the original suit.

Having correctly recognised that he was not called upon at the interlocutory stage to determine the substantive action, the learned Single Justice nevertheless exceeded the permissible limits of the interlocutory enquiry by making definitive pronouncements which substantially predetermined the constitutional questions reserved for determination by the full bench in suit no. J1/29/2026;

His Lordship erred in the application of the legal principles governing interlocutory injunctions and this has occasioned on the people of Ghana including the Applicant a substantial miscarriage of justice;

His Lordship failed to consider the public interest in preserving the constitutional integrity of the administration of justice pending the determination of the Applicant’s substantive action;

His Lordship did not consider the fact that there are serious constitutional questions in the substantive action;

His Lordship failed to consider the time-sensitive nature of the impugned warrants and the risk that the substantive action may be rendered nugatory if the impugned criminal trials continue throughout the legal vacation; and

His Lordship failed, refused and/or neglected to apply the balance of convenience and weigh the prejudice arising from continuation of the impugned warrants against the temporary inconvenience that may arise from restraining their implementation.

The Applicant maintains that, unless the warrants are restrained and his consequential interlocutory reliefs granted, the affected trials may substantially progress and/or conclude and the vacation may expire before the substantive action is determined, thereby depriving any eventual judgment in his favour of much of its practical effect.

APPLICANT’S ARGUMENTS:

The Applicant contends that the Chief Justice’s position as head of an independent arm of government, and the direct challenge to his exercise of administrative discretion, required him to defend the application separately from the Attorney General. He argues that the learned single Justice ought to have considered the implications of that representation for judicial independence and the potential conflict between the interests of the Chief Justice and those of the Attorney General.

In paragraph 14 of the affidavit in support of the instant application, he deposed as follows:

“ I am advised by my Counsel and verily believe same to be true that even though the 2nd Respondent is constitutionally responsible for representing the State under Article 88(5) of the Constitution, the 1st Respondent whose administrative act is directly under constitutional challenge ought to have a choice of representation other than the 2nd Respondent. The learned judge therefore erred in dismissing the objection without regard to this special circumstance.”

On the foregoing premises, he therefore argues that the Chief Justice’s failure to file an affidavit in opposition, separate from the joint affidavit filed by the learned Attorney General, left the material factual depositions unanswered, and that the learned single Justice ought to have treated those depositions as admitted when determining the application.

Yet another principal plank of the Applicant’s submission is that the learned single Justice exceeded the proper limits of acceptable judicial enquiry within the context of an interlocutory injunction application and by so doing prejudged the substantive matters implicated in the, yet to be determined, writ. The Applicant enumerates a litany of pronouncements made by the single justice and contends that these amounted to definitive conclusions on questions reserved for determination in the substantive constitutional action, rather than a provisional assessment of whether a serious question arose for trial.

The Applicant also challenges the requirement that he was required to demonstrate “very high prospects of success” before the other considerations governing interlocutory relief could be examined. He submits that the relevant inquiry was whether the action disclosed a serious, non-frivolous question for determination.

On issues of public interest and the balance of convenience implicated in the 21st August, 2026 ruling, the Applicant acknowledges the importance of expeditious criminal trials but contends, uncontestably, that their conduct must remain consistent with the Constitution.

He argues that the learned Single Justice failed to place proper juridical weight on the very real prospect and potential of constitutional injury and likelihood of the refusal of the injunction to render the substantive relief moot vis a vis the temporary inconvenience of suspending implementation of the impugned warrants.

RESPONDENT’S OPPOSITION:

Regarding the Applicant’s objection to the Attorney General’s representation of the Chief Justice, the affidavit in opposition submits that the single Justice did not determine whether the Chief Justice was obliged to retain separate counsel, and that this question was separable from the determination of the injunction application.

On the allegation of the single Justice exceeding his jurisdiction, the Respondents submit that the Justice’s observations formed an inextricable part of the necessary inquiry into whether the substantive action disclosed a serious constitutional question to be tried. That inquiry necessarily required some examination of the constitutional allegations, without finally determining them. They maintain that the ruling, read as a whole, confined itself to the interlocutory relief sought and did not conclusively resolve the substantive action.

The Respondents further contend that the single Justice correctly applied the requirements of a serious constitutional question to be tried, irreparable harm and the balance of convenience. They argue that his reference to “very high prospects of success” reflected the ubiquitously accepted caution required when restraining the exercise of public authority, rather than the imposition of an erroneous test.

They also maintain that the Applicant established neither a right requiring protection by injunction nor any legally recognised injury that he or another person would suffer if the trials continued.

Finally, the Respondents submit that the balance of convenience and the public interest favour the continuation of the trials, particularly in light of the constitutional entitlement of accused persons to a hearing within a reasonable time. In their submission, the benefits of expeditious criminal adjudication outweigh the Applicant’s generalised and opaque constitutional grievance. They accordingly pray that the application be dismissed and the single Justice’s ruling affirmed.

EVALUATION:

Article 134(b) of the 1992 Constitution originates this Court’s jurisdiction to “ vary, discharge or reverse orders, directions and/or decisions made by a Single Justice in the following terms:

A single Justice of the Supreme Court may exercise power vested in the Supreme Court not involving the decision of the cause or matter before the Supreme Court, except that –

(b) in civil matters, any order, direction or decision made or given under this article may be varied, discharged or reversed by the Supreme Court, constituted by three Justices of the Supreme Court.

Rule 73 of the Supreme Court Rules, 1996 (C.l. 16) as amended by the Supreme Court (Amendment) Rules, 2016 (C.I. 98) which prescribes the modalities for the invocation of this unique jurisdiction, provides as follows:

“73. (1) A person dissatisfied with the decision of a single Justice of the Supreme Court in respect of an application determined under article 134 of the Constitution, may apply to the Supreme Court to have the application determined by three Justices of the Court.

(2) The application to have the cause or matter determined by the three Justices shall be by motion on notice and shall be served on any other party who has an interest in the cause or matter.”

A literal reading of these provisions reveals an apparent difference in emphasis. Article 134(b) directs the three Justices to examine the order, direction or decision of the single Justice, whereas rule 73 speaks of having the application determined by three Justices. Read in isolation, the latter formulation might suggest a fresh determination of the original application. Read together, however, the provisions contemplate scrutiny of the intervening decision within the special review jurisdiction whose nature and limits this Court has explained in its jurisprudence.

This Court, per a ruling dated 27th March, 2019 with Civil Motion No.: J7/05/2019 entitled MARTIN ALAMISI AMIDU V. THE ATTORNEY-GENERAL, WATERVILLE HOLDINGS (BVI) LTD. AND ALFRED AGBESI WOYOME U.T. BANK LIMITED (UNDER RECEIVERSHIP) reaffirmed this principle in the following words:

“ Though this application is not a review application as prescribed by Rule 54 of the Supreme Court Rules, 1996 C. I. 16, the import of the application is a prayer for review of the decision of the single judge. Rule 73 of C. I. 16 as amended unlike rule 54 does not make any provision as to how the review jurisdiction of a panel of 3 judges would be exercised. However Rule 5 of C. I. 16 takes care of matters not expressly provided for by the rules of procedure. Rule 5 of C. I. 16 reads:

“Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the Court, the Court shall prescribe such practice and procedure as in the opinion of the Court the justice of the cause or matter may require.”

In our opinion the forum provided by article 134(b) of the constitution for a panel of three justices of this court to vary, discharge or reverse the decision of a single judge is not intended to be a forum where the applicant would reargue his case, rather it is a forum where lapses that may result in miscarriage of justice may be corrected. As such like any review application it would be in the interest of justice to examine the decision complained of to determine if there are any special circumstances to warrant a reversal, varying or a discharge of the subject decision.

…

The age long principle developed by the court in considering review applications is to examine the decision under review to find out if there are any exceptional circumstances that would result in miscarriage of justice. The Supreme Court per Francois JSC puts this principle this way in the case of Agyekum v. Asakum Engineering and Construction Ltd. [1992] 2 GLR 635 at 651

The Supreme Court has expressed the view many times before, that the review jurisdiction does not provide a platform for rehearing previous legal positions, whatever new learning and erudition are thrown into the melting pot, the acid test remains as always the existence of exceptional circumstances and the likelihood of a miscarriage of justice that should provoke the conscience to look at the matter again.”

[See also the cases of MASS PROJECTS LTD (NO. 2) V STANDARD CHARTERED BANK (NO. 2) (2013-2014) SCGLR 309; ECOBANK GHANA LIMITED V. ALUMINIUM ENTERPRISE LTD Suit No.: J7/5/2015; 23RD March, 2017; ALBERT JOOJO OCANSEY (SUBSTITUTED BY SIGMUND OCANSEY) & 2 OTHERS VRS. MR. F. F. FIANKO – AWUKU & 3 OTHERS ( TERESA OCANSEY) Civil Appeal No.: J4/73/2023; 13TH November, 2024]

In light of the foregoing, although Article 134(b) does not expressly describe the jurisdiction it confers as a review jurisdiction, this Court’s jurisprudence establishes its character as a special review jurisdiction.

We shall therefore examine the present application to determine whether the Applicant discloses exceptional circumstances occasioning a miscarriage of justice that warrant our intervention.

Before we commence an evaluation of the merits of this application, it is prudent to draw inspiration from the decision of this Court delivered on the 18th day of December, 2014 in Civil Motion No.: J7/22/2014 entitled REV. ROCHER DE-GRAFT SEFA AND OTHERS vrs. BANK OF GHANA, which, speaking through our venerable brother GBADEGBE JSC., reasoned as follows:

“As earlier on said in the course of this delivery, our task in the application before us is to determine whether in reaching the decision dated 29 July, the learned Justice of the Supreme Court acted on the wrong principle or took into account irrelevant matters or did not take into account matters which ought to have been taken into account or had come to a conclusion which no court properly instructing itself on the law would have reached.

…

Having stated what in our view are the principles which should guide us, we commence by saying that although the decision that we are reconsidering was made by a single Justice of the Supreme Court, it is entitled to be treated with respect and interfered with by a discharge, reversal or variation only when we reach the conclusion on the processes before us that the order in respect of which our jurisdiction has been invoked was an injudicious exercise of discretion.

We venture to add that by the application herein, we are not authorized to substitute our discretion for that of the learned Justice who determined the application resulting in the order being reconsidered by us.” (emphasis ours)

The Applicant contends that the learned single Justice erred in law by dismissing his preliminary objection to the Attorney General’s representation of the Chief Justice in this suit which challenged the latter’s exercise of administrative discretion.

He has argued before this Court that such representation compromises judicial independence and relies principally on the decisions of this Court in the cases of JANET AMEGATCHER VRS. ATTORNEY-GENERAL (No. 1) & Others [2012] 1 SCGLR 679; JAMES MARSHALL BELIEB VRS. ATTORNEY-GENERAL & CHIEF JUSTICE, (Writ No. J1/21/2021, 27 July 2022); and FRANK OTAH ENYEREM VRS. LOGISTICS INC. LIMITED & OTHERS, Suit No. J6/1/2015, 5 December 2016).

In his opinion, reliance on these authorities required the learned single Justice to uphold his objection to the Attorney General’s representation of the Chief Justice.

With respect to the Applicant, that submission does not accurately reflect the scope or effect of the authorities, and we must distinguish, from the outset, the question whether an institution or officeholder may properly be joined as a party from the question whether the Attorney General may represent that party. This Court has long settled that the recognition of an institution’s capacity to sue or be sued in its own name does not, without more, disqualify the Attorney General from acting as its counsel.

In the Amegatcher case supra , the immediate question concerned whether the Speaker of Parliament and the Minister of Local Government had properly been joined to the action, having regard to Article 88(5).

Similarly, in the James Marshall Belieb case supra, the Court considered and rejected the Attorney General’s objection to the joinder of the Chief Justice, notwithstanding that the Attorney General represented both defendants in the proceedings. Neither decision established that naming the Chief Justice as a defendant in proceedings challenging his administrative conduct necessarily precluded the Attorney General from representing him.

Significantly, in the James Marshall Belieb case, our respected brother Amadu JSC. identified the objection in the following terms:

“In the statement of case filed on behalf of the Defendants, counsel for the Defendants has raised and articulated the issue of misjoinder of the 2nd Defendant.”

The Court rejected that objection and explained the distinction between the Chief Justice’s judicial and administrative functions:

“As a judicial officer, the Chief Justice is clearly insulated from judicial proceedings arising from any cause of action in respect of the discharge of his judicial functions. To that extent, the immunity provisions contained in Article 127(3) will apply and render any such action unconstitutional. However, where a cause of action arises against the occupant of the office of Chief Justice in the exercise of the administrative duties provided for by the Constitution and the Courts’ Act, a cause of action challenging the manner in which that administrative duty is exercised or any decision arising from the exercise of that administrative power is conceivably actionable against the Chief Justice qua Chief Justice and in some cases may be named as a party eo nominee.” (emphasis supplied)

Quite clearly, save the recognition of the independent entitlement of the Chief Justice to be joined to a suit implicating his administrative functions, as was done in the instant case, the James Marshall decision supra did not in any way purport to prescribe who was competent to represent the Chief Justice, nor did it establish that the Chief Justice must defend such proceedings independently of the Attorney General. Indeed, in that case, both Defendants were represented by Hon. Diana Asonaba Dapaah, the then Deputy Attorney General.

We acknowledge that the Janet Amegatcher case supra, although arising in the context of joinder, also expressly addressed legal representation and the constitutional importance of preserving the autonomy of independent State institutions. In that case, the respected Atuguba JSC stated:

“Consequently, we consider that the time has come for a realistic revisit to article 88(5). All the constitutionally established independent bodies like the Commission on Human Rights and Administrative Justice, The Electoral Commission, etc can sue and be sued on their own relating to their functions per counsel of their choice.

Any person affected by an action involving the State can upon application be joined to such action, to protect his or its interest. With regard to the Judiciary and the Legislature, where their position on an issue is in conflict with that of the Attorney-General they may proceed on their own by counsel of their choice. However, any of these bodies referred to may access the services of the Attorney-General if they so choose.” (emphasis supplied)

Date-Bah JSC explained the underlying constitutional concern as follows:

“The plain meaning of article 88(5) is given effect through the interpretation that the presumptive rule is that the Attorney-General is to be the defendant in all civil proceedings against the State. However, there are exceptions to this presumptive rule, necessitated by the core values of the Constitution and the overriding constitutional need to avoid conflicts of interest. The exceptions are meant to buttress the autonomy of the independent organs of the State.”

Again, with deference to the Applicant and his Counsel, none of these opinions establish an immutable prohibition against the Attorney General’s representation of independent constitutional bodies. At best, they preserve institutional autonomy and independence by recognizing separate participation and independent representation where appropriate. However, they expressly preserve the ability of those institutions to obtain the Attorney General’s services, should they be so inclined, as the Chief Justice has done in the instant case.

To our minds, of all the decisions cited in the Applicants statement of case, it is the judgment in Frank Otah Enyerem v. Logistics Inc. Limited & Others supra which best addresses the question of legal representation directly.

In this case, the Court considered whether the Attorney General could represent the Registrar of the High Court, Tema, in proceedings concerning his alleged involvement in the wrongful release of property attached in execution of a judgment. Counsel for the 3rd to 5th Defendants objected to that representation on the ground that the Attorney General’s membership of the Executive rendered it incompatible with judicial independence and principles of Separation of powers.

The erudite Dotse JSC, speaking for the Court, rejected any categorical prohibition and affirmed that Amegatcher had developed, rather than displaced, the principle in the Tsatsu Tsikata vrs. Chief Justice & Attorney General case (relied on by the Single Justice) permitting the Attorney General to represent the Chief Justice in proceedings concerning his official functions.

In rendering the decision of the Court, the learned Justice laid out the following guidelines:

“After many anxious considerations of the various constitutional and statutory provisions, notable among them being articles 88 and 127 (1) (2) and (CA 10) and Act 555, and the cases referred to supra, we are of the view that it is useful to work with the following guidelines whenever a decision is to be made whether to permit the Attorney-General to represent the Judiciary or an employee or staff thereof. We realize that, it will certainly be imprudent to lay down a hard, fast and unbending set of criteria whenever such a decision is to be made. The following are however to be considered:

Independence of the Judiciary or of the Judicial Service. Since this is a core and critical element, whenever the representation by the Attorney-General will compromise the independence of the Judiciary, that representation must not be accepted.

Conflict of interest situations. Any such representation which gives the slightest indication of there being a conflict of interest situation arising must equally be avoided.

Thirdly, any representation by the Attorney-General which also gives any indication as it were that the Judiciary stands the risk of being compromised one way or the other, must also be avoided.

Finally, an assessment must be made on a case by case basis, especially when one considers the pertinent questions posed by our illustrious brother Dr. Date-Bah JSC in the Amegatcher v Attorney-General’s Case supra.”

It is therefore apparent, even on an appraisal of the authorities urged on us by the Applicant, that this Court has consistently rejected the inflexible approach, which the Applicant has by his objection, urged on this Court. Even in Frank Otah Enyerem case supra, this Court, having applied those considerations, permitted the Attorney General to represent the Registrar.

In light of the foregoing, we find that the Applicant’s mere assertion that this case concerns judicial independence or the Chief Justice’s administrative powers does not suffice to disqualify the Attorney General from representing him.

The Applicant must identify circumstances showing how that representation threatens judicial independence or gives rise to a conflict of interest. This Court would be remiss in its responsibility as a policy court if it treated the bare invocation of judicial independence and principles of separation of powers as sufficient to exclude the Attorney General’s representation. Indeed, as we have established, none of the authorities discussed supports automatic disqualification merely because the person represented belongs to the Judiciary.

We are of the view that the Applicant has not shown how the circumstances relied upon establish a conflict or divergence of interests, interference with the Chief Justice’s independent position, or another basis for rejecting the representation under the guidelines in the Frank Otah Enyerem case.

Indeed, and as was correctly noted by the Single Justice, the earlier decision in Tsatsu Tsikata vrs. Chief Justice & Attorney-General [2001–2002] SCGLR 437 bears directly on the representation objection. There, this Court considered an argument that the Attorney General could not represent the Chief Justice because the proceedings concerned acts attributed to the Chief Justice and because such representation offended the separation of powers doctrine. The respected Ampiah JSC, in that case, stated:

“There is no doubt as to the position of the Chief Justice. He is a public officer appointed by the President acting in consultation with the Council of State and with the approval of Parliament. It is not disputed that his official acts, ie acts performed in pursuance of the functions of his office are official acts. Under article 88(5), therefore, any attack on him in the performance of his duties need be defended by the Attorney-General on behalf of the State.”

The Court further observed:

“As stated before, the Chief Justice has not been sued in his personal capacity.”

It accordingly concluded:

“The preliminary objection is therefore unmeritorious and it is overruled.”

Read together therefore, the foregoing precedents establish that the Attorney General’s position as the presumptive defendant in civil proceedings against the State does not make him the exclusive channel through which every State institution or affected person must participate in litigation.

Constitutionally established independent bodies may sue and be sued in their own names in matters concerning their functions and may engage counsel of their choice. Similarly, any person whose interests is affected by an action involving the State may also apply to join the proceedings to protect those interests and other State organs may also apply for leave to sue or be sued in their own names in a particular case where separate participation would avert a conflict of interest.

In particular, where the Judiciary’s or Legislature’s position conflicts with that of the Attorney General, either institution may proceed independently through counsel of its choice.

We must however hasten to emphasize that the capacity in which an institution or officeholder participates in proceedings, does not by itself determine who may represent that party and whether the action is commenced or defended in the independent body’s own name or in the name of the Attorney General, the Attorney General must be presumptively responsible, under Article 88(5) to represent all such bodies.

This is however subject to the overarching principle that representation by the Attorney General must remain compatible with the independent discharge of the constitutional functions of the institution concerned.

In each case therefore, the Court must examine the nature of the dispute, the interests and positions of the parties, and the implications of the proposed representation by the Attorney General for institutional autonomy and constitutionalism.

Where those circumstances disclose conflicting interests, a threat to institutional independence, or any indication that the representation may otherwise compromise the autonomy or independence of the institution, the Court must reject it, notwithstanding the institution’s willingness to accept the Attorney General’s services.

Where no such concern arises, neither the institution’s independent constitutional status, its separate joinder, nor the fact that the proceedings challenge its administrative conduct suffices to disqualify the Attorney General from representing same. The inquiry therefore turns on the implications of the representation in each particular case, rather than the institutional identity of the proposed client alone.

Applying the foregoing principles therefore, we find no basis for disturbing the learned single Justice’s dismissal of the preliminary objection. The Applicant has not established circumstances that required the Court to exclude the Attorney General from representing the Chief Justice. This ground therefore discloses no error warranting our intervention under Article 134(b).

On the substance of the single Justice’s decision, the Applicant challenges the ruling on two principal grounds: first, that the single Justice exceeded his jurisdiction by making pronouncements which prejudged and purported, conclusively, to determine the substantive merits of the case; and second, that he improperly evaluated the requirements for the grant of an interlocutory injunction.

In the judgment of this Court dated 6th May, 2025 with Writ No. J1/18/2025 entitled Vincent Ekow Assafuah v. The Attorney General,, in which I had the privilege of authoring a concurring opinion, the threshold for the grant of interlocutory injunctive relief against an arm of government was formulated as follows:

“Specifically, a Court should only issue a preemptive injunction against the Executive or coordinate arm of government where;

An applicant presents a strong prima facie case of a clear illegality or a manifest unconstitutionality sufficient to rebut the presumption of constitutionality of official acts;

There is a real likelihood of irreparable harm if an injunctive relief is not granted.

The balance of convenience favors the applicant and the public interest will not be unduly jeopardised

The injunction or other interlocutory relief will not interfere excessively and/or unnecessarily with the executive, legislature or other public institution’s discharge of their constitutional or statutory duties.

Declaratory relief in terms of an ex post facto nullification of the impugned conduct would be insufficient to restore the status quo”

Unless faced with the most egregious and imminent breaches, which would threaten a constitutional order, courts generally refrain from issuing injunctive reliefs against the executive or legislature. Instead, they must prefer post-facto constitutional review, trusting in the robustness of corrective remedies, such as declarations of nullity or political accountability.”

We are therefore entirely in agreement with the single Justice that the Applicant failed to satisfy the requirements for the grant of an injunction against the Chief Justice and the learned Justices of the High Court acting pursuant to his warrant.

In particular, we reject the contention that the impugned observations of the single Justice necessarily amounted to a prejudgment of the substantive action.

Certainly, the requirement to establish a strong prima facie case of clear illegality or manifest unconstitutionality necessarily calls for a facial or prima facie examination of the substance of the Applicant’s allegations.

We find that these observations which merely articulated the single Justice’s explanations as to why, in his view, this threshold had not been met, does not, without more, constitute a conclusive determination of the merits. Read in their proper context, the single Justice’s observations were directed at that interlocutory inquiry, and no more.

Upon examining the application, we are equally unpersuaded that the Applicant demonstrated a real likelihood of irreparable harm, whether to himself or to persons affected by the impugned warrant.

In our view, the continuation of criminal proceedings, and the procedural steps ordinarily attendant upon them, do not of themselves establish such harm. Nor has the Applicant shown that, should the substantive action succeed, declaratory relief and such consequential orders as this Court may consider appropriate would be insufficient to address the consequences of the impugned conduct.

We also find that the single Justice properly exercised his discretion when he held that the Applicant had failed to demonstrate that the balance of hardship tilted in his favour. Indeed, it is in the public interest that criminal trials proceed expeditiously, and the Applicant has advanced no compelling reason sufficient to outweigh that interest.

CONCLUSION:

It is on the basis of the foregoing, that we concluded, on the 2nd of September, 2026, that, having considered the entire record before us including the respective statements of case and duly evaluating the extensive arguments urged on behalf of the parties as well as the settled jurisprudence of this Court, the application lacks merit, fails at the threshold and is accordingly dismissed.

.

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) G. S. SUUREBAAREH

(JUSTICE OF THE SUPREME COURT)

CONCURRING OPINION

ADJEI-FRIMPONG JSC:-

The lead opinion of the President of this panel, Kulendi JSC has done justice to the issues in this application. Nonetheless, I wish to express myself in my own words on a subject I consider very crucial to the administration of justice in this country.

The 2026 legal vacation in accordance with Order 79 rule 4(b) of the High Court (Civil Procedure) Rules 2004, (C.I.47) as amended, commenced on 1st August 2026. As has been the administrative practice, the Chief Justice issued warrants to a number of Superior Court Justices to sit as vacation Judges. Two of them, Justices Francis Apongabuno Achibonga and Her Ladyship Charity Akosua Asem JJA were issued with warrants to sit as additional Justices of the High Court.

It appears the Justices who had pending cases before them prior to the vacation were proceeding to conduct regular trials. The Lawyers in some of the cases were aggrieved by the practice of conducting regular criminal trials in the legal vacation. On account of the grief of the Lawyers, the Ghana Bar Association wrote to the Chief Justice to complain about the hearings and request his reconsideration of the warrants. In the meantime, the Justices proceeded on the position that the warrants had mandated them to proceed with the hearings. In one of the cases that were before him for instance, Achibonga JA is on record to have ruled inter alia:

“As I indicated on the last date, I have been issued with a warrant by the Honourable Chief Justice to sit during the legal vacation and to conduct hearings. Until the said warrant is revoked, I am mandated to continue to sit as a vacation Judge and to conduct hearings. I therefore intend to continue to sit and conduct hearings during the vacation until the warrant authorizing me to sit is revoked.”

My Lords, I will interpolate to point out at once that the Chief Justice’s warrant to Judges to sit in the legal vacation is an authority to sit only. The warrant does not prescribe how a judge should conduct the business of the Court. The authority of a High Court Judge to conduct the business of his or her Court whilst sitting is prescribed by Article 140 (4) of the Constitution. It states:

“A Justice of the High Court may, in accordance with rules of Court exercise in court or in chambers, all or any of the jurisdiction vested in the High Court by this Constitution or any other law.”

The Justice sitting in vacation therefore acts in accordance with the rules of court and not the warrant. The warrant gives licence not instruction. The rules of Court envisaged by Article 140(4) include the power of adjournment of trials, which is specifically provided for under Order 36 rule 3 of the High Court (Civil Procedure) Rules C.I 47 which states:

“The Court may, if it considers it necessary in the interest of justice, adjourn a trial for such time, to such place, and upon such terms as it considers fit.”

This is a discretionary power wholly vested in the Judge to be exercised as the justice of the case may require. The warrant does not add to or subtract from what is purely a judicial act.

Wiredu J (as he then was) in MAHAMA VRS SOLI (1976)2 GLR 99 at pages 110 to 111 fittingly applied the prescription in the old rules of the High Court as follows:

“The power to postpone the hearing of a case on a trial day is governed by the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 36 r. 19 which reads as follows:

“The Judge may, if he think it expedient for the interests of justice, postpone or adjourn a trial for such time, and to such place within the Judicial Division to which he is assigned, and upon such terms, if any, as he shall think fit.” It is the discretion vested in the trial judge and it is his exclusive prerogative. The power of the judge to adjourn the hearing of any matter is dependent on the justice of the occasion. It is a judicial act which may be reviewed on appeal and not on administrative act.”

Now, upon the decision of the Justices to proceed with the hearings and in the events that followed, the Plaintiff, a Member of Parliament and Lawyer caused a writ to be filed in this Court invoking its original jurisdiction under article 2(1) and 130(1) of the 1992 Constitution for the following reliefs:

“a. A declaration that the warrants of the Honourable Chief Justice directing some judges to sit and conduct criminal trials in selected cases during the legal vacation is inconsistent with the letter and spirit of Articles 17(1),(2),23 and 296(a)and (b)of the Constitution,1992 and therefore unconstitutional, null and void; b. A declaration that the action of the Honourable Chief Justice to promote and facilitate the hearing of “special criminal cases” in the legal vacation to the total neglect of other criminal cases [is]tantamount to selective justice which contravenes the letter and spirit of Article 17(1)of the Constitution 1992 and therefore unconstitutional, null and void. c. A declaration that the warrants of the Honourable Chief Justice directing some judges to sit and conduct criminal trials in selected cases during the legal vacation violate the right to health of members of the Bar and judicial service who have been affected by the directive and is inconsistent with Articles 24(1),(2)and 36(10) of the Constitution 1992 and therefore unconstitutional, null and void. d. A declaration that Order 79 Rules 1(1)and 2 of the High Court (Civil Procedure) Rules,2004(CI 47)to the extent that they allow the Honourable Chief Justice to select some cases for hearing during legal vacations in the same manner as ordinary court sittings, they are inconsistent with Articles 17(1),(2),23,24(1), (2),36(10)and 296(a)and(b)and the Constitution,1992 and therefore unconstitutional, null and void; and e. Any other order(s) or directions that this Honourable Court may consider appropriate for giving effect to the declarations and orders so made.”

The writ was followed by a motion on notice for interlocutory injunction praying the Court to restrain the Chief Justice and the two named Justices from implementing, enforcing and giving effect to the warrants. In effect, the Plaintiff wanted the two Justices ordered to desist from conducting hearings in the criminal cases until the determination of this suit by the Supreme Court or perhaps, until the legal vacation expired.

The application came before a single justice of this Court, His Lordship Justice Gabriel Scott Pwamang JSC. By a ruling delivered on 21st August 2026 the learned Justice dismissed the application on the concluding note that he did not find it right, just or convenient to grant the application.

The applicant has invoked this Court’s jurisdiction pursuant to Article 134(b) of the Constitution to have the decision of the Single justice reversed. The application has been brought upon a several grounds two of which this opinion addresses. The third ground has been stated as follows:

“(iii) Having correctly recognized that he was not called upon at the interlocutory stage to determine the substantive action, the learned Single Justice nevertheless exceeded the permissible limits of the interlocutory enquiry by making definite pronouncements which substantially predetermined the constitutional questions reserved for the determination by the full bench in suit no. J1/29/2026.”

Referring to various portions of the ruling where he thinks the Learned Single Justice made definitive pronouncements on constitutional issues, the Plaintiff argues that the interlocutory application has arisen within a substantive constitutional action which raises questions concerning the constitutionality of the Chief Justice’s administrative action under Order 79 rule 1(1) of C.I. 47.

He contends that the purpose of an interlocutory injunction is preservative and that it is not the occasion to finally determine constitutional questions which the substantive action places before the full court. Whilst agreeing that the learned Single Justice was not prohibited from considering whether the Plaintiff had put forth an arguable or serious questions of law to be tried, he nonetheless thinks he went beyond the limits of that determination to predetermine matters that properly belong to the resolution of the substantive constitutional action. Reference is made to such cases as WELFORD QUAICOO VRS A.G. & ANOR [2012]1 SGLR 259; ZOOMLION GHANA LTD VRS MERSKWORLD CO. LTD. [2013-2014]1 SCGLR 327 and REPUBLIC VRS HIGH COURT, KUMASI; EX PARTE MOBIL OIL (GHANA) LTD (HAGAN-INTERESETD PARTY) [2005-2006] SCGLR 312.

In response, the Defendants pointed to various portions of the ruling including referencing the same case law which to them, suggested that the learned Single Justice placed himself within the limits and threshold of determining the interlocutory injunction. They pointed out that the constitutional questions concerning articles 17, 23, 24, 36 and 296 of the 1992 Constitution were placed before the learned Single Justice by the Plaintiff himself for the specific purpose of establishing a serious question to be tried. They submit that it was that and only that threshold question the learned Single Justice determined.

Now, the general purpose of an interlocutory injunction which is to preserve the subject matter of the litigation until the dispute is finally resolved but not to determine conclusively, the rights of the parties, is applicable in public law or constitutional disputes. Equally applicable is the principle that an applicant must demonstrate a serious question of law to be tried. Again, the Court must be satisfied that prima facie, the applicant has demonstrated a legal or equitable right that ought to be protected by it. See WELFORD QUAICOO VRS A.G. & ANOR [2012]1 SGLR 259 and MICHAEL ANKOMAH-NINFA VRS JAMES GYEKYE QUAYSON & ORS unreported ruling in Writ No. J1/11/2022 dated 13th April 2022.

But can a court answer those questions, that is, whether an applicant has put forth a serious question of law to be tried and whether prima facie, an applicant has demonstrated a legal or equitable right that ought to be protected without any consideration of the substantive issues at all? I do not think so. The exercise will necessarily involve a review of the pleadings and affidavit side by side with the law to make a temporary estimation of the applicant’s case. See FACTORTAME LTD VRS SECRETARY OF STATE FOR TRANSPORT (NO.2) [1991]1 ALL ER 70 at 123. But the question is, how far must the Court into the substantive issues in its consideration? This appears a Gordian knot. It seems to me that the court may go far enough for the purpose solely of determining whether there is a serious question to be tried or that prima facie there is legal or equitable right to be protected. The inroad is not only to confirm that the applicant’s case is not frivolous or vexatious, but is also to enable the court satisfy itself that the applicant has shown a serious question to be tried or there is the presence of legal or equitable right to be protected. Definitive pronouncements on the merits will certainly cross the line, but temporary pronouncements in discussing the pleadings and affidavits side by side with the applicable law for the limited purpose of determining those questions is permissible. There should be a stop well short of definitive interpretation and conclusion of constitutional and statutory provisions, yet enough space to properly assess the contention put forth by an applicant to decide whether to grant or refuse the application.

It is on the above scale that the pronouncements of the learned Single Justice must be weighed to determine whether he confined himself within the threshold or went overboard.

In respect of article 17(1) and (2), his Lordship the Single Justice upon discussing the provisions of law, came to the following conclusion:

“In Nartey v Gati [2010] SCGLR 745at p 755 the Supreme Court stated as follows; “Article 17(2) makes it clear that not all discrimination is unlawful. It proscribes discrimination based on certain grounds. The implication is that discrimination based on other grounds may not be unlawful,”

See also Date-Bah’s opinion in the case of Professor Kwaku Asare v Attorney- General [2012]460 (The Dual Citizenship Case). Therefore, for an action based on Article 17 to raise a serious question for consideration, it must alleged some of the unlawful grounds in Article 17(2). This the plaintiff has failed to do. I take judicial notice of the different types of cases that the Specialised Courts were established to handle. They include Narcotics, Auditor-General Surcharges, Cyber Crime, Galamsey, Corruption and corruption related cases. In those circumstances it is impossible for the Chief Justice to have targeted any particular gender, race, colour, ethnic origin, religion, or creed by his warrants.

Similarly, having regard to the very wide range of cases covered under the warrants, the high number of accused persons and witnesses who would be involved in these hearings, it would be difficult to impeach the Chief Justice’s exercise of discretion pursuant to articles 23 and 296(a) and( b) without any evidence of ill will.”

In respect of article 24(1) and (2), he noted:

“The plaintiff has also alleged violation of Articles 24 (1) & (2) of the Constitution which deal with the right to work under satisfactory conditions and Article 36(10) on the duty of the state to safeguard the health, safety and welfare of workers. The applicant states that conducting hearings during the legal vacation is likely to adversely affect the health and well-being of the Judges, the Judicial Service staff and lawyers involved in those proceedings. These statements plainly fail to take account of the existing standard practice where judges who sit during legal vacation take their leave when the rest of the courts resume work. As for the Court staff, their leave from work is not in any way affected by legal vacation sitting. For the lawyers they are independent service providers in Court proceedings who are free to plan their leave at any time of the year. Being independent service providers, the responsibility for ensuring compliance with article 24(1) & (2) is in the hands of individual lawyers. Some choose to work during the legal vacation. Consequently, this ground of action fails to meet the threshold of a serious constitutional question so as to be the basis for a public law interlocutory injunction.”

Touching on Order 79 of C.I 47, he analyzed:

“The last declaration sought on the plaintiff’s writ concerns Order 79 of the High Court (Civil Procedure) Rules,2004(C.I.47). This order plainly permits the Chief Justice to direct hearing of civil cases during legal vacation and the plaintiff/applicant wants that authority declared unconstitutional. Since this rule has been in operation all these years, and since interlocutory injunction are to preserve the status quo, it means that pending the determination of the plaintiff’s suit, the power should remain. But C.I. 47 regulates civil cases and the subject matter of the plaintiff’s complaint here are criminal trials The Courts Act,1993 (Act 459) and the Criminal and Other Offences (Procedure) Act,1960 (Act 30) have no statutory provisions that prescribe periods of legal vacations. Section 80 of Act 459 left it to the Rules of Court Committee which has made provision for legal vacation in the High Court for only civil cases. As such, although a practice in criminal proceedings in the High Court has evolved along the lines of the civil procedure rules as regards legal vacation hearings, there is no binding positive statute or precedent that can be held to be an injunction against a Chief Justice restraining him from authorizing hearings in a criminal case in the High Court during legal vacation. In fact, the applicant concedes that the Chief Justice has this authority. Therefore, to claim an existing legal or equitable right to such reprieve against the Chief Justice which may be protected with an order of interlocutory injunction is hard to establish.”

My considered view from the foregoing, is that the learned Single Justice made the pronouncements for the sole purpose of determining whether the Plaintiff put forth a serious issue of law for determination or demonstrated the presence of legal or equitable right to be protected in deciding whether to grant an injunction in a constitutional dispute. Examining the analysis and the conclusions he reached, I am not satisfied that the pronouncements were such definitive and conclusive as to come to the decision that he exceeded the threshold for the consideration of an interlocutory injunction. The ground therefore fails.

The Plaintiff again attacked the learned Single Justice on his position that the Plaintiff failed to demonstrate a high prospect of success of his case in order to obtain an injunction in the case. The learned Judge had said:

“Again, in the case of Republic v High Court (Fast Track Division) Accra; Ex parte Ghana Lotto Operators Association (National Lottery Authority; Interested Party) [2009] SCGLR 372 Atuguba JSC said as follows at page 400:

“It is not surprising therefore that it has been held by this court that when a body is entrusted with statutory discretion, the courts should be careful not to clog its exercise with injunction: see Attorney General v Commission on Human Rights and Administrative Justice [1999-2000]1 GLR 358, SC. This, however, does not mean that an interim injunction cannot lie against the improper use of statutory discretion.”

So the authorities establish that though Courts have jurisdiction to grant orders of interlocutory injunction in public law matters, the applicant for such an interlocutory injunction is required to first and foremost demonstrate that her substantive claim has a very high prospects of success before the Court would consider the other factors.”

By ground (iv) of his application, the Plaintiff contends that this hurdle of “to first and foremost demonstrate that her substantive claim has very high prospects of success before the Court would consider the other factors” was high and well above the threshold set by such authorities as WELFORD QUARCOO VRS ATTORNEY-GENERAL (supra); MICHAEL ANKOMAH-NINFAH VRS JAMES GYEKYE QUAYSON & ORS (supra); REPUBLIC VRS HIGH COURT (FAST TRACK DIVISION) ACCRA; EX PARTE GHANA LOTTO OPERATORS ASSOCIATION (NATIONAL LOTTERY AUTHORITY-INTERESTED PARTY) (supra) and RANSFORD FRANCE VRS ELECTORAL COMMISSION & ATTORNEY-GENERAL (Unreported) Civil Motion J8/84/2012.

It seems to me that by requiring the Plaintiff “to first and foremost demonstrate that her substantive claim has very high prospects of success before the Court would consider the other factors” the learned Single Justice unduly upped the ante and it is our duty to point it out. The condition precedent prescription in his position suggests a two-layer approach to the consideration of the factors guiding the determination of such applications which I am afraid the cases on which he relied did not so propound. To this extent therefore, there is merit in the Plaintiff’s argument. But can this be an error that should warrant a reversal of the decision of the learned Single Justice?

It is a well-established position by a considerable body of case law from this Court and Courts of other common jurisdictions that an injunction in public law cases requires a standard much elevated and higher than that required in an ordinary private law action. See the Canadian case of RJR-MACDONALD INC VRS CANADA (ATTORNEY GENERAL) [1994]1 S.C.R. 311; the South African case of NATIONAL TREASURY V OPPOSITION TO URBAN TOLLING ALLIANCE OUTA [2012] ZACC 18 and the English case of R VRS SECETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME LTD (N0.2) (supra).

In MANITOBA (A.G) VRS METROPOLITAN STORES LTD 1987 CanLII 79 (SCC, (1987)1 SCR 110 the court delivered on the principle as follows:

“A review of the case law indicates that when the constitutional validity of a legislative provision is challenged, the courts consider that they ought not to be restricted to the application of traditional criteria which govern the grant or refusal of interlocutory injunctive relief in ordinary private or civil law cases. Unless the public interest is also taken into consideration in evaluating the balance of convenience, they very often express their disinclination to grant injunctive relief before constitutional invalidity has been finally decided on the merits.”

As I can see, there is a universal approach towards exacting a very high threshold for an applicant who seeks injunction in public law or constitutional matters.

In this Court, TANKO JSC in GERTRUDE ARABA ESAABA TORKORNOO VRS ATTORNEY-GENERAL Civil Motion No. J8A113/2025 delivered himself as follows:

“The reasons herein partly reflect the view I took in an earlier ruling delivered on the 6th of May 2025, following an application for interlocutory injunction in Writ No. 31/18/2025 INTITULED VINCENT EKOW ASSAFUAH VS THE ATTORNEY GENERAL, which provoked the determination of the same legal issues as in the instant application. In that majority decision, I emphasized that the threshold to injunct the performance of a constitutional or statutory duty or process in the exercise of judicial discretion is not light, as may normally be the case in seeking remedies in interlocutory injunction applications within the realm of private law. . . In the said Assafuah case, I articulated inter alia as follows:

“Recognizing the danger to injunct or suspend a constitutional duty or power pendente lite, this court has stated the clearest legal position in a plethora of decisions that, the same must be sparingly exercised with extreme circumspection unless there is a clear demonstration that, the case of an applicant is invariably most likely to succeed for a permanent order of injunction to be made in the substantive suit. That is, there must be extreme exceptional necessity, in the interest of the state and the public at large, as a result of a clear and manifest conduct of constitutional infraction to warrant the court to grant an interlocutory injunction against the exercise of a constitutional function by no mean a person than the President in the exercise of the powers vested in him by the constitution pending the determination of the substantive matter.”

In the ASSAFUAH case, Kulendi JSC in his concurring opinion emphasized the high threshold by the following paragraph:

“Accordingly, I am firmly of the view that the principle must be rigorously applied when the Supreme Court is invited to grant injunctive relief, whether prohibitory, mandatory, or even in the form of stay of execution against the performance of a public function which, on its face is constitutionally sanctioned. In such cases, a significantly higher threshold is required. The applicant must go beyond asserting inconvenience or disagreement. They must demonstrate, with compelling clarity, the threat or existence of a gross and flagrant constitutional violation. Moreover, they must establish that the continuation of the impugned public act would, absent judicial intervention, cause irreparable harm or hardship so substantial that it outweighs the public interest in allowing constitutional process to continue.”

On a thorough consideration of the reasoning and analysis of learned Single Justice, what I find is his clear obedience to the requirement of imposing a high threshold on the Plaintiff in making his application. Thus, although the learned Justice’s condition precedent-double hurdle expression (first and foremost demonstrate that her substantive claim has very high prospects of success before the Court would consider the other factors) took the standard up a notch, I take the view, on a general assessment of his deliberation within the context of the high threshold set by respected authorities that, no serious error constituting an exceptional circumstance for us to reverse the decision was committed. In the event, that ground also fails.

Subject to the foregoing, I agree with the reasoning and conclusions so ably articulated in the lead judgment and so I also dismiss the Plaintiff’s application.

(SGD.) R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

COUNSEL

FRANK H. K. DAVIES ESQ. FOR THE PLAINTIFF/APPLICANT/APPLICANT WITH DIANA ASONABA DAPAAH ESQ.

DR. JUSTICE SREM-SAI (DEPUTY ATTORNEY GENERAL) FOR THE DEFENDANTS /RESPONDENTS/RESPONDENTS WITH SARAH FAFA KPODO (CHIEF STATE ATTORNEY) AND REGINALD NII ODOI (STATE ATTORNEY)