ABDUL FATAWU A. SALAM VRS. PRESIDENT OF NUGS (CHAIRMAN OF CC)

THE OFFICE OF THE JUDICIAL BOARD
THE NATIONAL UNION OF GHANA STUDENTS.
1st June, 2010.
Case/ suit #: CJ/NUGS/04/10
ABDUL FATAWU A. SALAM
VRS.
PRESIDENT OF NUGS (CHAIRMAN OF CC)
Re: Application for a stay of execution of the decision taken on 30th May, 2010, at a Central Committee (CC) meeting of the National Union Of Ghana Students to reinstate Mr. Karim Abdul-Hakib as the representative of NUGS on All Africa Students Union (AASU).

Application brought on 31st May, 2010 by Abdul Fatawu A. Salam (GIMPA) against the President of NUGS (Chairman of the Central Committee).

Pleas in law and main argument.
Contrary to the assertion of the mover of the motion (at the said CC meeting), Hamza Suhuyini to reinstate Mr. Karim Abdul-Hakib as the representative of NUGS on All Africa Students Union (AASU), on grounds that Mr. Karim Abdul-Hakib had shown appreciable remorse since his withdrawal hence a motion to reinstate him, the petitioner rather contends that such an assertion was misleading. The petitioner purports that Mr. Karim Abdul-Hakib treated the letter of withdrawal sent to him as result of a resolution passed by CC (last year) with impunity. He alleges that rather than showing contrition, Mr. Karim Abdul-Hakib rather adopted a nonchalant attitude and still held himself as the representative of NUGS on All Africa Students Union (AASU). The petitioner equally alleges that despite his withdrawal, Mr. Karim Abdul-Hakib did not only organise programmes in the name of AASU, but opened a bank account and designed an AASU website. The Police are currently ascertaining the veracity or otherwise of those claims by Mr. Sunday Ogunlana (AASU Secretary General).

The petitioner also avers that CC erred in taking the decision to reinstate Mr. Karim Abdul-Hakib, without due cognizance to the repercussions on the image of NUGS. He argues that, considering the grounds under which Mr. Karim Abdul-Hakib was withdrawn, any letter written to the Ministries of Education, Foreign Affairs and other affiliates of NUGS will raise doubts on the credibility of NUGS as an institution that must be taken seriously by her affiliates and other stakeholders.

The petitioner also questioned the legality or constitutionality of the decision of CC to reinstate Mr. Karim Abdul-Hakib since such a decision in his view is not backed by law.

NOTICE FOR AN ORDER FOR INTERIM INJUNCTION
UPON READING AND HEARING the application and statements of claim, signed to and argued by ABDUL FATAWU A. SALAM; filed on 31st May in support of motion Ex-parte for an interim injunction,

IT IS HEREBY ORDERED THAT the President of NUGS, the National Secretariat, the Central Committee, National Executive Committee and Congress by themselves, their agents, representatives, and all others claiming to act for and on their behalf are herby restrained from carrying out the resolution of the Central Committee to reinstate Mr. Karim Abdul-Hakib. It is therefore ordered that the execution of the decision is pending until at such a time that the substantive matter is brought to a close and a communication given to that effect by my office.

Any form of communication or letter issued for and on behalf of NUGS to communicate the resolution of CC to reinstate Mr. Karim Abdul-Hakib to any person or group of persons must be immediately withdrawn or remedied upon receipt of this notice of an interim injunction issued on this day, 1st June, 2010.

The Judicial Board holds the view that anything contrary to this order (interim injunction) and the immediate implementation of the resolution of CC will not only prejudice the outcome of the case on the substantive matter but shall cause irreparable and incalculable damage to the image of the union to its stakeholders and affiliates. The embarrassing absurdity which could arise if the resolution of CC is immediately carried out is that; if in a hypothetical situation, a letter is written to communicate the reinstatement of Mr. Karim Abdul-Hakib to him and all other stakeholders; and the questions of law so raised by the petitioner holds (ie. Earlier decision to withdraw him stays) after the case is conclusively heard; the dignity, seriousness, credibility of the union will be brought to question by this sheer inconsistency. It is therefore imperative that the matter before the judicial board is brought to a closure before the resolution of CC is communicated To Whom It May Concern.

In granting the interim injunction, the Judicial Board among other things, took cognisance of the following landmark cases.

The Supreme Court in determining the case involving the NPP vrs EC and Anor. No1 [1992/1993] 3 GBR PRT1 Page1 decides that: “the court would have to be satisfied that the case is neither frivolous nor vexatious and that a serious question of law was involved in the determination of the substantive case”

Obviously, this matter is neither frivolous nor vexatious since the right of the petitioner, the reputation of Mr. Karim Abdul-Hakib and the image of the NUGS is at stake. On the facts in the instant case, the question of law which arises is whether CC has the right whatsoever to reinstate a withdrawn officer since per the withdrawal the seat had become vacant. Another question of law is whether or not a vacant seat can be occupied by a motion carried to that effect or a fair electoral process must be carried for all interested persons in such a vacant position to contest. Until this and many other questions of law are resolved, the interim injunction is certainly justified.

In granting this interim injunction, the judicial board also took cognisance of the constitutional position and legal provisions of the Union in the matter before us and whether or not the board had any jurisdiction whatsoever in the case before us.

It must be stated explicitly that, article 57 (a and b) of the Constitution of NUGS stipulates that, “the Judicial board shall have jurisdiction in:

a) Every matter relating to the enforcement and interpretation of any provision of this constitution

b) All matters arising as to whether a resolution was made or, authority has acted in excess of the powers conferred on it by this constitution or any other provision made there under.

In furtherance to article 57 supra, article 3 (c) of the Constitution of NUGS clearly states that, c) Any member(s) who alleges that:

i. an act or omission of any person
ii. a bye-law or decision of a body
Is inconsistent with, or is in contravention of a provision of this constitution, may bring an action to the judicial board for a declaration to that effect.

It must equally be significantly noted that, in pursuance to granting the judicial board its original jurisdiction in the matter before us, article 3 (d) states that,” for the purpose of a declaration under article 3(c) supra, the Judicial Board shall make such orders and give such directions as it may consider appropriate for giving effect to the declaration so made.”

It is therefore within the jurisdiction of the Judicial board to issue prerogative writs, or orders such as mandamus, certiorari, prohibition, interdiction and any other order as it deems reasonably necessary…”

The sages have said in Latin that, “Natura non facit , nec lex supervacuum”- meaning, “nature makes no vacuum and the law, nothing purposeless”. By this principle, every legal process must clear the murky waters of every controversy beyond every reasonable doubt and that all the principles and procedures of a justice system must be upheld. To borrow the words of Justice Kpegah during the case of Agbevor vs A-G in the year 2000 (SCGLR 403), in which he opined that “Justice must be done even if the heavens fall...”

Another authority supporting the importance of protecting the petitioner's right to an injunction is as follows;

The case of ODONKOR VRS AMARTE [1987/88] 1GLR 578 SC states that, the purpose of interim orders is aimed at holding the balance even between the parties pending a final determination of matter in controversy between them.

The undeniable fact is that both the petitioner and the defendants have a right to be protected as it is clearly enshrined in article 3 of the Constitution of NUGS. Any attempts to ignore these fundamental matters can be injurious to the rights of the petitioner as well as the defendants and these ought not to be countenanced. The preamble of the NUGS Constitution is also instructive in this regard.

In FELLOWES AND SONS VRS FISCHER[1975] 3 WLR 184, it was stated that, one of the factors which the court had to take into consideration when called upon for an interim order...was whether or not the plaintiff's (applicant/petitioner) claim, on the facts was maintainable, the courts had absolute discretion to grant or refuse an interim injunction. In this regard, article 296 of the 1992 Constitution of the Republic of Ghana was our guiding principle

Lord Denning also adds his voice to this call in the case of HUBBARD VRS VOSPER [1972] 2 WLR 389 when he states that, “in considering whether to grant an interlocutory injunction, the right cause of the judge is to look at the whole case, he must have regards not only to the strength of the claim but also the strength of the defence, and then decide what is best to be done.” This reference is instructive; especially when the Police Service and other names of persons in our affiliate groups are involved. The dignity of the Union must be protected and any action which will breach the protocols of amity must be corrected.

“Justice should not only be done but manifestly and undoubtedly seen to be done”, these were the words of Lord Hewart (C.J) in the Republic vs. Susse Justices (1924). And by these words, may we be cautioned by precedence and let posterity guide us in our decisions and actions as we seek fair and true justice.

GIVEN UNDER MY HAND AND THE AUTHORITY OF THE JUDICIAL BOARD, NUGS.

THIS 1ST DAY OF JUNE, 2010.
CHAIRMAN, JUDICIAL BOARD OF NUGS
JUSTICE KUTSIENYO.
(0242-385006)