Private legal practitioner, Thaddeus Sory, has reacted to the reasoning of the Supreme Court in its handling of the ‘Vacant Seats’ case initiated by Efutu MP, Alexander Afenyo-Markin and concludes that,
“There is no order saying that the MPs must be allowed in Parliament or order directing that Parliament recognise the said MPs as earlier ordered by the Court contained in the majority decision of the Court.
The order staying execution of the Speaker’s ruling is NOW SPENT.”
In effect, he argues that there is no order against the Speaker of Parliament, Alban Sumana Bagbin.
Read Thaddeus Sory’s arguments below, which he first posted on Facebook Thursday evening.
“The Supreme Court decision released this afternoon is interesting. The majority decision raises a number of legal issues. Since this is a public and not legal platform I will discuss the most basic but fundamental issue for debate.
In every case before the courts, the courts’ final judgment is based on the case presented to the court contained in the original papers filed by the plaintiff before the court.
If the facts on which the plaintiff initially presented their case to the court changes, and they want the court’s decision to reflect the changed circumstances, they must formally change their original case by way of an amendment. The Supreme Court rules allow the plaintiff to amend their statement of case.
Now the majority judgment unequivocally admits that at the time the Plaintiff filed his case, the Speaker’s response to the statement made by the Leader of the NDC caucus in Parliament HAD NOT BEEN MADE.
Darko Asare JSC admits that the Plaintiff instituted his action on 15/10/2024 and the Speaker made his statement on 17/10/2024.
The Plaintiff’s reliefs therefore did not pray the Supreme Court to declare the Speaker’s response to the statement null and void.
Darko Asare JSC therefore conceded in page 4 [see especially paragraph 4 of his judgment] that on the facts on which the Plaintiff instituted the action before the Court, there was no issue on which the Supreme Court’s exclusive original jurisdiction was legitimately being invoked.
Darko Asare JSC also admitted that it is events after the Plaintiff instituted the action in the Supreme Court that were of concern to the majority.
The Plaintiff however, did not formally, by way of an amendment to his case formally bring the new facts to the Court as part of the substantive case before the Court.
The new facts came to the Supreme Court by way of an interlocutory ex parte application and the Court dealt with it. The substantive case however, remained the same.
Darko Asare JSC therefore admitted that it is subsequent events occurring “two days after the issuance of” the writ which is the Speaker’s statement that the affected MPs “cannot be allowed by law, to continue to pretend to be representing their constituents” and Parliament was accordingly so informed that constituted the “act” that caused the Supreme Court to stay execution of the
Speaker’s said statement pending the determination of the matter by the Supreme Court. See page 5 of his judgment.
The Court however, justified its decision to assume jurisdiction in respect of the Speaker’s subsequent response to the Leader’s statement on the ground that the decision had an “intimate connection with their jurisdiction and its inextricable link to the pleaded facts and issues.” See pages 10 and 11.
Darko Asare JSC who wrote the lead judgment of the Court therefore clearly admitted that there was no cause of action on which the Plaintiff sought and obtained the order for stay of execution.
The effect of this admission also is that at all times material to the judgment of the Court, the Plaintiff’s case before the Court disclosed no cause of action because the case was not formally amended to reflect the changed circumstances.
It is acknowledging that this admission meant the certain perdition of the Plaintiff’s case before the Court that the majority decision had to take cognizance of a case that was not formally brought before it, to enable it entertain the Plaintiff before the Court.
In their judgments therefore, the majority decisions [both Darko Asare and Asiedu JJSC] only expressed their disagreements with the conclusion reached by the Speaker in his response to the Leader’s statement.
Their final orders never pronounced that the Speaker’s response to the Leader’s statements are null and void and of no effect.
