A-G’s advice to President to refrain from performing a constitutional duty is a disaster – Justice Srem-Sai

A Senior lecturer of Constitutional Law at GIMPA School of Law, Dr. Justice Srem-Sai has described the Attorney-General (A-G) Godfred Yeboah Dame’s advice to the President to refrain from performing a constitutional duty merely because of writ as a “disaster.”

Dr. Srem-Sai, who is also a practising lawyer said, it is not correct when the A-G said, “The Speaker of Parliament is playing politics (rather than law) and that he (the A-G) is not.”

“After all,” he said, “all the Speaker did was to apply the Attorney-General’s own advice.”

“What seems to be correct, however, is that the Attorney-General and his boss have had the rare pleasure of tasting a dose of their own medicine, and have suddenly discovered the sourness,” Dr Srem Sai stated.

The A-G in a response to the Speaker of Parliament on Thursday, March 21 said there was nothing before the Supreme Court that inhibits Parliament from vetting and approving ministerial nominees upon his searches.

His response followed the Speaker’s decision not to determine the fate of those minister and deputy minister nominees before the House after the Speaker said he has been served with processes filed at the Supreme Court by Member of Parliament for North Dayi restraining the House from performing their duties.

However, in a Facebook post on Friday, March 22 while explaining what he termed “Two quick points,” Dr Justice Srem explained the types of injunctions and their effect.

Below is his post on Facebook

I. THE WRIT

At the Supreme Court (original jurisdiction), a Plaintiff’s case comprises of 3 processes (documents): (1) the writ, (2) the statement of case (SOC), and (3) the affidavit of verification of facts (AVF).

The law allows a Plaintiff to file the writ without the SOC and the AVF. However, a Plaintiff who chooses this option has up to 14 days (after filing the writ) to file the SOC and the AVF.

Even if such a Plaintiff defaults in respect of the 14 days, the authorities converge on the point that such a default does not make the writ void. The writ is potent and, until the Defendant moves the Court to have it struck out, only merely voidable.

So, it is not particularly correct to say (as the Attorney-General seems to be saying) that a writ is void and, thereby, impotent if it is issued without an SOC and an AVF.

II. THE INJUNCTION

There are 3 forms of injunctive reliefs in a proceeding: (1) interim, (2) interlocutory, and (3) final/absolute injunctions. They differ, but ONLY in terms of scope of time. They do not differ in respect of purpose.

In other words, regardless of the differences, all injunctions have one purpose – to ensure that a person does not win a case only to find out that what she went to court to protect has disappeared.

This means (and a proper reading of the authorities seems to confirm that) the principle applies even if the person seeks a final injunctive relief only (that is, without an interlocutory injunction).

Accordingly, the courts would not grant you an injunction in any form unless you show that the harm you wish to prevent if caused, cannot be sufficiently remedied by any legal means. That, I think, is the correct position of the law.

Now, this Attorney-General has advised the President to refrain from performing a constitutional command merely because a litigant has applied for an order of injunction, which the Court is yet to consider. This is a disaster.

A careful reasoning through the facts would show, quite clearly, that the question at the core of this disaster is not, as the A-G seems to suggest, about the FORM of injunctive relief – whether interlocutory or final.

The question, rather, is on the NATURE of the subject matter. That is – whether a constitutional command could be injuncted merely because a litigant has applied for (but is yet to be granted) such an order.

So, again, it is not correct when the Attorney-General says that the Speaker of Parliament is playing politics (rather than law) and that he (the A-G) is not. After all, all the Speaker did was to apply the Attorney-General’s own advice.

What seems to be correct, however, is that the Attorney-General and his boss have had the rare pleasure of tasting a dose of their own medicine, and have suddenly discovered the sourness.

Da yie.