Case of the week: Vincent Ekow Assafuah v The Attorney General

Supreme Court · Writ No: J1/18/2025 · 6 May 2025 · Ghana

Introduction:

This case relates to the vexed issues surrounding the attempted removal of the Chief Justice of Ghana and in particular, applications for injunction against constitutional and statutory duties and how such applications ought to be addressed by the Courts.

Facts:

The plaintiff, Vincent Ekow Assafuah, brought an action challenging the constitutionality of the President’s initiation of removal proceedings against the Chief Justice under Article 146 of the 1992 Constitution. He contended that the President failed to notify the Chief Justice or request her comments before consulting the Council of State. This, he argued, violated the Chief Justice’s right to a fair hearing under Articles 23 and 296 and threatened judicial independence as protected by Article 127. He as such filed an application for interlocutory injunction to restrain the President or the council of state from proceeding with the consultation processes for the removal of the Chief Justice until the final hearing and determination of the suit.

The President, following the suit, notified the Chief Justice via formal communication and received her response in compliance with article 146 (6). This response was considered, a prima facie case was found, and the Chief Justice was subsequently suspended upon the formation of an investigative committee.

Consequently, the Plaintiff’s initial application of an interlocutory injunction had been overtaken by subsequent developments highlighted above which essentially rendered it moot. The Plaintiff filed a second application for injunction to:

1. Restrain any step or action from being taken as part of the processes for the removal of the Chief Justice under Article 146 or in any manner, and

• Suspend the operation of the warrant of suspension of the chief justice issued by the President under Article 146(10) of the Constitution 1992 until the hearing and final determination of the substantive suit.

Holding:

The Supreme Court, by 3:2 majority decision, dismissed the application for interlocutory injunction. The Court held that:

1. The President complied with the constitutional procedures required under Article 146(6), as evidenced by letter (Exhibit “B”) dated 28^th March 2025 from the Office of the President to the Chief Justice.

2. No irreparable harm had been demonstrated by the plaintiff to justify suspending the constitutional process and that a subsequent nullification of the impugned acts of the President will suffice to restore the status quo.
3. The public interest in allowing constitutionally mandated processes to continue outweighed any speculative harm to the Chief Justice.

Concurring Opinion by Kulendi JSC:

Justice Kulendi emphasized the principle of judicial restraint and the presumption of regularity in executive actions. He observed that any procedural lapses were effectively cured once the Chief Justice was notified and engaged with the process.

Dissenting Opinion Mensa-Bonsu JSC:

Justice Mensa-Bonsu dissented, finding that the initial failure to notify the Chief Justice constituted a breach of her right to a fair hearing and compromised judicial independence. She also noted the prejudicial effect of public commentary on the matter and would have granted the injunction to preserve the dignity of the office and process.

Implications of the Decision:

The decision also reinforces the high threshold for judicial intervention in ongoing constitutional processes. It underscores the Court’s careful balancing between protecting individual rights and ensuring the uninterrupted operation of governance structures. By this, the Apex Court underscored a useful exception to the Moffat principle which in essence stipulates that “an injunction application, once served, is as good as granted”

Significant Quote:

“Without the introduction of useful nuance in the application of the Moffat principle to applications touching on constitutional duties, statutory bodies, public offices and functions; litigants could initiate baseless cases paired with frivolous injunction applications, with the sole intention of frustrating essential governmental functions. To judicially endorse the notion that a competent constitutional actor must consider their hands tied merely due to the service of an injunction application, particularly one that seeks to restrain or impede the execution of a critical constitutional mandate, would risk paralyzing essential state functions and could lead to catastrophic consequences for our public and constitutional order. In good conscience and in fidelity to our judicial oath, we cannot endorse a position that could potentially be exploited by deliberate and well-resourced strategy deployed by individuals or entities pursuing parochial private interests to obstruct, delay and frustrate constitutional oversight and hold the public interest to ransom. In the premises, we find that, in cases involving the discharge of constitutionally or statutorily mandated functions by specifically designated actors, be they, statutory bodies, public offices or individuals empowered by law so to act, it would be utterly imprudent to adopt a blanket rule that mere service of an application for interlocutory injunction suffices to halt constitutional or statutory action which presumptively, would inure to the collective interest of the public.” – Kulendi JSC

Commentary/Insight:

By this decision, a nuanced approach to the Moffat principle has been underscored in favour of the continuance of constitutional and statutory duties even during the pendency of an application for interlocutory injunction. As such, nothing short of an express judicial grant of an injunction would suffice to restrain a constitutional or statutory duty bearer whose actions are presumptively in line with constitutional or lawful mandates.

This promotes measured judicial intervention in the function of agents of the co-ordinate arms of government and ensures court processes are not used as tools for strategic delay or political gamesmanship.

This decision could serve as a future benchmark in cases involving attempts to restrain constitutionally empowered actors, such as the Electoral Commission, CHRAJ, or Parliament, through interim reliefs. The Court’s emphasis on the public interest and continuity of constitutional functions signals judicial caution against inadvertently enabling legal mechanisms to become instruments of disruption.