IN THE JUDICIAL BOARD, NATIONAL UNION
OF GHANA STUDENTS. ACCRA
AD 2014,
Petition
No.: NUGS JB07/2014
23rd September
Michael Paa-QuecyAdu Applicant
Vrs
1. The
Vetting Committee
2. National
Union of Ghana Students Respondents
JUDGMENT
BY NYARKO TONNY CHIEF JUSTICE
CORAM
Nyarko A.
Tonny Chief Justice (Presiding)
BenjamineSabbahSomiah
JJB
Osafo-Ampomah, Kwame BonahJJB
COUNSELS
Julian MawuseCobbinah
appearing for theApplicant
Emmanuel Amoahappearing
for the 1st Respondent (per JanetTukpeyi)
Peter KwasiKodjie
with him Osmanuappearing for the 2nd Respondent
Constitutional
law—violations of constitutional provisions whether same constitute a ground
for disqualification from contesting for any position under NUGS for 2 years
Constitutional
Law—Qualification under Article 70—whether Professional program is a post
graduate qualification
Practice
and procedure—Practice—Joinder—Application for joinder—when same is granted
Evidence—
burden of proof—credibility and weight of evidence
Natural justice—Right to be
heard—Persons under duty to act judicially obliged to give adequate notice to
persons affected by proceedings or decisions—Vetting committee of NUGS required
by to act judicially—
Jurisdiction of the JudicialBoards
—to review or set aside the decisions of the Vetting Committee—vetting
committee is the exercise of its function shall not be subject to the control
of any person
My Lords, I would like to commence my judgment with the following
statement“Justice emanates from the people of the Union and in whose name
justice shall be dispensed without fear or favour, in pursuing this quest, I
shall therefore draw the distinction, between the desperation of some
individual members and the entire aspirations of the Union…for the evil that
men do lives after them and the good were often interred with their bones for
Posterity sake”
Introduction/Background
The
facts surrounding this suit have been fully played out in near epic dimensions
before the public. However for the sake of records I would proceed by setting
out the facts surrounding this controversy. The applicant MrAdu, a member of 2nd
Respondent Union and a Professional student of the University of Professional
Studies Accra (UPSA) pursuing the Charter Institute of Marketing program. The1st
Respondent is a 7 member vetting committee set up under Article 50(a) and 60 of
2nd Respondent’s constitution, and the 2nd Respondents is
a student’s union of Ghana,thusthe National Union of Ghana students NUGS,This
was an appeal against a decision of the 1st Respondent, vetting
committee set up by the 2nd Respondent under Article 50(a) and 60 of
the NUGS constitution.By his application to this honourable Board, the Petitioner/Applicant
alleges that, in his quest to serve the 2nd Respondent as the
president, he submitted himself before the 1st respondent, a 7 member
panel to be considered ‘qualified or not’for the position
as the president of the 2nd respondent as required by law. However,
he was considered not suitable for the position and hence was disqualified. In
justifying its actions, the 2nd respondent by a report presented to
the Central Committee gave the following reasons as why the applicant was
disqualified:
1.
Mr. Michael
PaaQuecyAdu, during his tenure of office as Vetting Committee Secretary, failed
to honour the Constitution of NUGS by contravening and showing gross disrespect
for the provisions of NUGS Constitution, which shows a blatant display of
contempt for the NUGS Court established by the NUGS Constitution. By the powers
vested in the Judicial Committee which in the discharge of its mandate in
2012/2013 NUGS year, made a declaration against one Mr. Jude Sekle, that he be
disqualified from contesting as NUGS President because he is not a student as
defined by the constitution. A copy of
the ruling was served on the then Vetting Committee, of which Mr. Michael PaaQuecyAdu
was the Secretary. The committee however did not carry out the ruling of the
Judicial Board but choose to truncate, and dishonor the Constitutional mandate
of Board and thus contravening the provisions of the NUGS Constitution Article 3 (a) (e) (c)
(d) and 59(a)
Based on the
above provisions, an aspirant who did not honour or respect the provisions of
Constitution of the Union does not and cannot qualify to contest as an
Executive of the Union as President. This aspirant did not respect the
Constitution and therefore cannot honour same when allowed to contest and
become President of the Union.
2.
Secondly, Mr.
Michael PaaQuecyAdu submitted to the Vetting Committee that he is offering a
course in Chartered Institute of Marketing Part II leading to Postgraduate
qualification. Investigations conducted and report from the National Accreditation
Board (NAB) reveals that the said course is not a Postgraduate course but a
certificate course which gives a student access to enroll in a Postgraduate
course. Therefore, CIM Part II is not a Postgraduate course but a certificate
course, thus its status, weight, and duration does not make it a Postgraduate
degree. The said aspirant, per his introductory letter shows that he is a
professional student in line with Article 70 (a) and (b) of the NUGS Constitution.
Aspirants were made to understand on the Nomination Form that ‘It is important
that nominee’s eligibility for national office be based upon accurate
information. Hence, misrepresentation in any form or manner shall render this
nomination null and void.NUGS reserves the right to cancel the nominee’s
application if false or incorrect information is supplied without prejudice to
any provision in the NUGS constitution. Mr. Michael PaaQuecyAdu submitted in
his nomination form including a reference letter from Institute of Professional
Studies-Accra (IPSA) as of close of nomination on 29th July, 2014 at 16:55 GMT
at the NUGS Secretariat. In the said document, a black inked pen was used to
alter, insert and change a date, which is to be the duration of the course of
study. This alteration undermines the authenticity of the reference letter and
thus calling into question the genuineness of the status of the reference
letter. It therefore seen as a ploy to conceal from the Union the duration,
status, weight and equivalence of the course he is offering to a Postgraduate
course. By providing false and inaccurate information, and also having contravened
the NUGS Constitution. Therefore, he is disqualified from contesting for NUGS
President
The applicant dissatisfied with the decision of the
1st Respondent brought this application pursuant to Article 60(g) to
this hounourable Board stating in his application among others that:
1. It is frivolous to hold a committee’s report on
an individual since the applicant served the vetting committee as an individual
and the report that was submitted to the then Central Committee was the
collective decision of the committee as authored and binds on the dissenting
opinion of the committee.
2. The ground on which the applicant was
disqualified is frivolous and exposes the lack of appreciation of the vetting
committee on issues concerning studentship in the university of professional
studies and that the constitutional provisions were misinterpreted hence the
constitution of the National Union of Ghana of Students has been willfully
violated and the rights of the Applicant short-circuited
Counsel
for the Applicantinter aliaprayed this Board for the following reliefs
a.
That this Judicial
committee constitute for the purpose of protecting the constitution of NUGS
quash the grounds the presidential candidature of Mr. Paa-QuecyAdu was
disqualified
b.
That the
applicant’s candidature be reinstated in the interest of justice and fairness
By the Petition
before us, the Applicant MrPaa-QuecyAduis
invoking the Jurisdiction of the Judicial Board pursuant to Article 60(g) seeking
review or appealing against the Vetting Committee’s, decision disqualifying him
from contesting for NUGS President as indicated supra. The bench is therefore
invited to determine whether or not the grounds for his disqualificationare“justifiable” within the premise of Law.
It is necessary for me to set down the issues for determination in this
particular case before us
ISSUES
1. Whether or not the Applicant pursuing the Chartered Institute of
Marketing (CIM) program, qualifies to contest for NUGS President as a
Postgraduate Student
2. Whether or not failure to carry out the orders of the judicial board
as a member of a vetting committee constitute a ground for disqualification
from contesting as NUGS President
Before
I delve into the main issues I think it is necessary to comment on the
application for joinder by the 2nd Respondent, the National Union of
Ghana Student and the Jurisdiction of the Judicial Board to Review the
decisions, acts and functions of the Vetting Committee.
Application for Joinder
By
his application for joinder, counsel for the 2nd Respondent stated
that, NUGS established the 1stRespondentVetting Committee as a
constitutional body and conferred on it the mandate to scrutinize aspirants for
the 2014/2015 elections as required by law. They argued that this case has
brought NUGS congress which is supposed to have ended the 22nd day
September 2014 to a halt. Therefore NUGS stands to lose financially since if
this case is not resolved as a matter of urgency, it may have to spend extra
amount to extend rent on the venue/accommodation, rent on mattresses, feeding
of members at congress, etc. it is therefore in the interest of justice to be
joined to the suit and defend such interest as the 2nd Respondent.
Counsel cited the case of Jake ObstebiLampteyAnd 2 Others V The John
DramaniMahamah and the Electoral Commissioner (2013-2014) UNREPORTEDand
referred the Board to the joinder application by the National Democratic Party
which was granted and subsequently joined to the suit as the 3rd
respondent.
Is a
trite law that, in an application for joinder brought under Order 4, r. 3 of the High Court (Civil
Procedure) Rules, 2004 (CI 47), the most important question was whether the
joinder of a party would enable the court effectually and completely to
adjudicate upon and settle all questions involved in the case If it would, then
the application would be granted but not otherwise. Dictum of Ollennu J. in Apenteng v. Bank of West Africa Ltd. [1961] G.L.R. 81 applied. This
bench was of the opinion that it is crucial to grant the application and join
NUGS as the 2nd respondent. Accordingly the application was granted
and NUGS joined to this Application as the 2nd Respondent:
Jurisdiction of the Judicial Board to
subject the functions of the Vetting Committee to Legal Scrutiny
Article
60(b): The Vetting Committee shall not be subjected to the instruction of any
person or body in the performance of its duties.
After
reading this provision, one would be tempted to say that the Judicial Board
lacks jurisdiction to review or subject the Decision of the Vetting Committee
disqualifying the Applicant Mr. Michael Paa_QuecyAduto strict Legal scrutiny. However,
this does not suggest that the Judicial Board cannot subject the work and
decision of the Vetting Committee to ‘legal scrutiny’ if those acts or decisions
are contrary to or are madein contravention with any provision in the NUGS
Constitution. We need not forget that
the Vetting committee is in itself a creation of law, i.eby Article 50of the NUGS
Constitution. Articles 2, 3 50, 54, 57, 60(g) etc provides the guide to the
jurisdiction of the Judicial Board over the Vetting Committee’s decisions and
actions. Therefore “no act, omission or decision of the Vetting committee or any committee
or any member can be regarded as valid unless it satisfies the test of
consistency with the NUGS Constitution” Supreme Court in the
Yebbi&Avalifo[2000] SCGLR 149 applied..I
will end the discussions on this here because his Lordship Justice Somiahon
this Bench has done a brilliant work on the aforementioned principles in his
judgment herein. So I will proceed to the issues.
1.
WHETHER OR NOT THE APPLICANT PURSUING
THE CHARTERED INSTITUTE OF MARKETING (CIM) PROGRAM, QUALIFIES TO CONTEST FOR
NUGS PRESIDENT AS A POSTGRADUATE STUDENT/QUALIFICATION TO CONTEST FOR NUGS
PRESIDNETAS A POST GRADUATE STUDENT
In
the instant case, the applicant was seeking his qualification to contest under
Article 70(b). He contended that he is a Postgraduate student at the University
of Professional studies Accra (UPSA).Counsel for the Applicant tendered in
evidence Exhibit “A” which was an image on his Samsun Galaxy (phone was
accepted in evidence and Marked as Exhibit “A” and because the image was on the
phone when it was tendered, the phone became Exhibit “A” a property of the
Judicial Board’s as records) as a confirmation to the student status in the
above named institution as his response to a preliminary objection by Counsel
for the 1st Respondent, which was dismissed by the Bench. Counsel
further tendered in evidenceExhibit “B” and argued that, Mr. Michael
Paa-QuecyAdu is graduate student and qualify to contest for NUGS President
under Article 70(b) of the NUGS Constitution. However Counsels for 1st
and 2nd Respondents argued that the Applicant is not a graduate
student and hence does not qualify to contest for NUGS president since Chartered
Institute of Marketing Program CIM is a professional Program of study and not a
postgraduate program of study as counsel for the Applicant is claiming. At this juncture, In order to determine the
scope of any textual ‘commitment’ under article 70(b) for the qualification
of Postgraduate students to contest for NUGS President, I must necessarily
determine the limit of Article 70 because this in itself is a delicate exercise
in fighting against the continues and repeated filling of candidates who do not
qualify every year.
The
grounds for qualification to contest as the President of the National union of
Ghana students are set out under Article 70 of the NUGS Constitution
70. QUALIFICATION FOR
ELECTION
a) Aspirants contesting for the position of National President,
National General Secretary, National Treasurer and Education and
Democratization Secretary shall be full-time students of member institutions
who have completed at least one academic year and have one more academic year
to complete their programmesof pursuit.
b) Notwithstanding the clause (a) supra post graduate students
shall be allowed to contest.
c) Subject to this Constitution all other National Officers
shall hold their positions as National Service Persons.
On
the true and proper interpretation of Article 70(b), we must give it a
benevolent, broad, liberal and purposive construction so as to promote the
apparent policy of its framers the dictum of Atuguba JSC in Nsiah v Amankwaah;
Nsiah v Mansah (Consolidated)[1998-99] SCGLR Tuffuor v Attorney-General [1980]
GLR 63 per Sowah JSC; 132 at 140.In giving the above provision such
interpretation, it is obvious from the Preamble of the NUGS Constitution, that
this is a student’s Union, and hence in its quest to search for leaders to
frontiers it’s operations, it must look no further than, fromamong the students
of Ghana who constitute its membersand not going on rampage from street to
street looking for someone who belongs to say the Cocoa Grower Association (CGA) or
Cattle “Rarers” Association(CRA) to become the President or NUGS
executive. Therefore to qualify to contest for any position,one must at all
times be a full-time student of a member institution, and must have completed
at least one academic year and have one more academic year to complete his/her program
of pursuit. This presupposes that
a. an aspirant should be in his/her 2nd or 3rd
year of study for a 4 year degree program to qualify to contest for the
positionsunder 70(a)
b. an aspirant should be in his/her 2nd year of
study for a 3 year Diploma/degree program to qualify to contest for the
positionsunder 70(a)
c. an aspirant must be a Postgraduate studentunder Article 70(b).
Being a postgraduate student means
i.
an aspirantshould
be enrolled in any postgraduate program accredited by the National
Accreditation Board
ii.
in a
member institution.
Here the analysis would be that an aspirant qualifies to
contest for the Positions under 70(b) if he/she is in the 1st year
of study or has one year (or any time shorter than one year but in line with
the NUGS year)to complete his/her program of study of which he/she shall serve
the term of office concurrent with the last year of study as a postgraduate
student.
On
the issue of qualification to contest for NUGS position, the case of GiftyNyarko&TonnyNyarkoVrs Jude Sekle&
2 Others Suit No Bmsc1025/025/2013 High Court Accra Unreportedprovides an
authoritative position to spice up the discussion. In this case the applicants GiftyNyarko&TonnyNyarkoapplied for
a perpetual injunction against Jude Sekle from contesting as the NUGS president
and a declaration that he Mr. Jude Sekle is not a student as defined by the
NUGS Constitution.Thecourt in its ruling upholding/granting the Applicants application
exhausted the arguments on Article 70 of the NUGS Constitution. The learned
High Court Judge in her ruling gave the position of the law as that, to qualify
to contest for the NUGS president one must
a. first of all be a full-time students of member institutions,
b. secondly you must
have completed at least one academic year and have one more academic year to
complete theprogrammes of pursuit
c. or enrolled in any postgraduate course accredited by the
National Accreditation Board in a member institution.
In
his quest to satisfy the provision supra, Counsel for the Applicant in his
submission told this Bench that, the applicant is a postgraduate student at the
University of Professional Studies (UPSA). This was contended by counsels for 1st
and 2ndRespondents,Counsels argued that Charter Institute of Marketing
(CIM) is a Professional Program of study does not give rise to a Postgraduate Qualification.
In
order to move along with the flow of this Judgment I would like to exhaust
argument on the law on evidence and the burden of proof to ascertain the degree
of evidence required in this case and who bears the burden of proof
The law on Evidence and burden of proof
It
is necessary at this point to ascertain who bear the burden of prove to be
discharged in order to resolve the controversy. It is an established principle
of law that, he who alleges bears the onus of proof to discharge the evidential
burden to enable him convince the court as is required by law pursuant to sections
10, 11(1) and 12 (1) of the Evidence Act, 1975 NRCD 323
Section 10 (1) for the purposes of this Decree, the
burden of persuasion means the obligation of a party to establish a requisite
degree of belief concerning a fact in the mind of the tribunal of fact or the
court.
Section 10 (2)
The burden of persuasion may require a party to raise a reasonable doubt
concerning the existence or non-existence of a fact or that he establish the
existence or non-existence of a fact by a preponderance of the probabilities or
by proof beyond a reasonable doubt.
Section 11(1) for the purposes of this Decree, the
burden of producing evidence means the obligation of a party to introduce
sufficient evidence to avoid a ruling against him on the issue.
Section 12(1) except as otherwise provided by law,
the burden of persuasion requires proof by a preponderance of the
probabilities.
Section 12 (2)
"Preponderance of the probabilities" means that degree of
certainty of belief in the mind of the tribunal of fact or the court by which
it is convinced that the existence of a fact is more probable than its
non-existence.
These
sections stipulate that the burden of persuasion requires a party to establish
a requisite degree of belief concerning facts in the mind of the court to
prevent a ruling being made against him by proof on the preponderance of
probabilities. In giving teeth to the above provisions of the Evidence Decree,,
Justice Ansah JSC in the case of Takoradi Flour Mills V Samir Faris
[2005-2006] SCGLR 882, AT 900
stated authoritatively concerning the burden of proof in civil matters as
follows:-“It is sufficient to say that this being a civil suit, the rules of
evidence requires that the plaintiff produces sufficient evidence to make out
his claim on a preponderance of probabilities, as defined in section 12 (2) of
the Evidence Decree, 1975 (NRCD 323).Thus the law is settled that the
party who bears the burden of proof must produce the required evidence of the
facts in issue that has the quality of credibility for his claim to succeed. Also
Her Ladyship Mrs Justice Sophia Adinyira, JSC, succinctly summed up the law on
the burden of proof by reference to this statute in Ackah V. Pergah Transport Limited & Others [2010] SCGLR 728, AT
PAGE 736, as follows:
‘It is a basic principle of law on
evidence that a party who bears the burden of proof is to produce the required
evidence of the facts in issue that has the quality of credibility short of
which his claim may fail… It is trite law that matters that are capable of
proof must be proved by producing sufficient evidence so that, on all the
evidence, a reasonable mind could conclude that the existence of a fact is more
reasonable than its nonexistence. See also the case of Jake ObstebiLampteyAnd 2 Others V The John DramaniMahamah and the
Electoral Commissioner (2013-2014) UNREPORTED
Who bears the burden of proof?
It
is obvious that the burden of proof lies on the applicant to convince this Bench
that Mr. Adu is a postgraduate student on the preponderance of probability. Knowing
that, the burden of proof lies on them;Counsel for the Applicant tendered in
evidence EXHIBIT “B” a letter tittle
“Confirmation in respect of Mr. Michael
Paa-QuecyAdu” on the University of Professional Studies Accra UPSA,
letterhead. He argued that, Mr. Michael
Paa-QuecyAduis pursuing a Postgraduate Program at the University of Professional StudiesAccra (UPSA),and that Chartered
Institute of Marketing (CIM) had been accredited by UPSA as having the sole
prerogative to determine the status of programs, they run
EXHIBIT
“B”
ON UPSA LETTERHEAD
My Ref: No. DE/VAG/UPSA409/VOL611
28th July, 2014
The chairman
NUGS Committee
Accra
CONFIRMATION
IN RESPECT OF MR. MICHAEL PAA-QUECY ADU
This is to confirm that Mr.MichaelPaa-QuecyAdu was admintted
into the institute of professional studies (IPS) now a University of
Professional Studies Accra (UPSA) in May, 2010 through June 2013 and Pursued
Batchlor of Science in Marketing course
MrAdu is currently a professional student of this University
pursuing the Chartered Institute of Marketing (CIM) program leading to
postgraduate qualification
Thank you
Yours faithfully
SIGNED
Daniel BukariDirector of Accadamic AffairsFor REGISTRAR
Counsel
for the 2nd Respondent fiercely opposed this argument by counsel for
the Applicant that CIM is a Postgraduate Program of study and that it is UPSA
that has the sole prerogative of determining the status of their program of
study. He tendered in Evidence Exhibit “III”,a mail conversation
between the President of 2nd Respondent, Sammy BinfohDarkwa and a personnelidentified
in that mail as the *Head* Credential Evaluationat the National Accreditation
Board.Counsel brought the Bench’s attention to the fact that, it is a trite
knowledge that Chartered Institute of Marketing (CIM) is not a Postgraduate Program.
He expressed his amusementat Mr. Adu telling thehonourableBench and the people
he sort to lead as president that CIM is a Postgraduate program of study: “a
blatant lie”
Content
of Exhibit “III”
EXHIBIT
“III”
Sammy DakwaBinfoh
-------- Original Message --------
Subject: Re: CLARIFICATION
From: EVALUATION DEPARTMENT <evaluation@nab.gov.gh>
To: Sammy <sammybinfoh@yahoo.com>
CC:
Dear Sammy,
Thanks for the mail.
The duration for the Chartered Institute of Marketing (CIM)
UK Part llprogramme is between 2 to 4 years depending on the pace at which one
works.
Ideally it should be 2 years. It is not at par with any
Postgraduate course offered in Ghana. I must emphasize that CIM programmes are
purely professional qualifications and cannot be compared with conventional
academic qualifications.
Thank you
*HEAD* Credential Evaluation
*NATIONAL ACCREDITATION BOARD*
P. O. Box CT 3256
Cantonments - Accra
Ghana - West Africa
TEL: +233 30 703
4463
MOB: +233 20 823 1904
EMAIL: evaluation@nab.gov.gh <EVALUATION@NAB.GOV.GH>
Counsel
for the Applicant on Exhibit “III” argued that,it is the University of Professional Studies, as matter of fact every
institution that has the sole prerogative to determine the status of programs,
they run and not the National Accreditation Board that determines that.Therefore
the information on Exhibit “III”that the Applicants’program of
pursuit is not a Postgraduate program is to be rejected by the Bench
Counsel
for the 1st Respondent on the other hand also tendered in evidence Exhibit “I” in support of argument by
the 2nd Respondent thatChartered
Institute of Marketing (CIM) is not a postgraduate Program. He argued that
the Applicant submitted in his nomination form including a reference letter
from the Institute of Professional Studies-Accra (IPSA) as of close of
nomination on 29th July, 2014 at 16:55 GMT at the NUGS Secretariat and. In the
said document, a black ink pen was used to alter, insert and change a date,
which is to be the duration of the course of study. This alteration undermines
the authenticity of the reference letter and thus calling into question the
genuineness of the status of the reference letter. Counsel stated further that,
it was after the close of nominations,that the Applicant submitted another
reference letter to the 1st Respondent which was on a different
letterhead and with a different signatory from that of the first reference
letter. Hence, it was seen as a ploy to conceal from the 1stand 2nd
Respondents, hisstatus quoas a student, duration, weight and equivalence of the
course he is offering to a Postgraduate course. On Exhibit “I” counsel for 2nd Respondent tells this Bench
that since CIM is not a postgraduate program, Mr. Aduby that conduct wastrying
to conceal the true information on the status quo of his program of study
and that is the reason why he had to alter or cancel out the official document.
My Observations
Now
I will turn my attention to resolve the legal battle between all the counsels
after exhausting my discussions on the law on Evidence, and the standard of proof
needed to establish ones case. It is obvious from the discussion supra, the
burden of proof had been on the Applicant to discharge the degree of believe
and convince the bench on the following averments he made in his submissions,
a. Whether or not the Applicant was concealing his status quo
as a Postgraduate student
b. Whether or not the state of the two reference letters
corroborate with the averments giving of them
c. Whether or not it is the sole prerogative of UPSA to
determine the status of its programs of pursuit and not the National
Accreditation Board
d. Whether or not CIM is
a Postgraduate program of study
Counsel
for the Applicant in attempt to discharge the burden of proof, apart from Exhibit “B”he tendered inevidence,
which had been put in straight opposition by Counsels for the Respondents,
Counsel for the Applicant continuously stated to the bench that his client Mr.
Adu is a postgraduate student without producing any cogent, credible and
incontrovertible evidence whether documentary or by calling witness to
establish a degree of belief that indeed Charter Institute of Marketing is a
postgraduate Program of study. Neither
did he succeed in convincing the bench that, it is the sole prerogative of UPSA
to determine the status of their program of studies.I will state categorically
on the premise of law, anApplicant does not prove his or her case merely by supplying
the court with documents and calls it evidence or going into the witness box
and repeating that averment on oath, Majolagbe
v Larbi 1959 GLR1`90 AT PG 192 applied, where Ollennu J repeating his dicta from the case of Khoury v Richter (unreported) said;Proof in law is the establishment
of facts by proper legal means. Where a party makes an averment capable of
proof in some positive way, eg by producing documents, description of things,
reference to other facts, instances or circumstances, and his averment is
denied, he does not prove it by merely going into the witness box and repeating
that averment on oath, or having it repeated by his counsel in his argument.”He
proves it by producing credible, cogent and incorrigible document or witness
from whom the court can be satisfied that what he avers is true and that every
reasonable person will come to a conclusion in his favour(the emphasis is mine). Counsel
for the Applicant could have succeededby producing credible, cogent and
incorrigible document or witness to establish a prima facie case in his
favour.
In
trying to reason along with the argument supra, I am of the opinion that more
weight be giving to Exhibits “I” and “B”
and less weight to Exhibit “III”
since it was not corroborated by its authors thus Sammy BinfoDarkwa and the *Head* Credential Evaluation at the National Accreditation Board. However Exhibit “III” shall be referred to or
shall guide this bench in its judgment. In fact I am not convinced by the argument
by the Applicant and his Counsel, on the cancellation or alteration on Exhibit “I”. Thatit was purportedly
done by the University of Professional studies Accra, (UPSA) the institution
that issued the letter. Succinctly put, the applicant told this Bench that the alterations “may” have been done by the Registrar of UPSA because the
content was concealed from him (the Applicant) until he submitted his
nominations forms at the close of nominations when he was told of the
alterations. He stated further that it was at this instance thathe obtained Exhibit
“B”from his institution which contains the correct version of the
information he earlier presented to the Vetting Committee. Interestingly, both
letters i.eExhibits “I” and “B”submitted to the Vetting Committee
was on two different letterheads [Exhibit “I” on IPS
letterhead and Exhibit “B” on UPSAletterhead] and of different
signatories [exhibit “I” signed by Fredrick Doe, (coordinator Professional
program/lecturer) and Exhibit “B” signed by Daniel Bukari. (Director of
academic affairs for: REGISTRAR) UPSA]when the said letters were purported to have come from the office of the
Registrar of the same institution: “a
myth am still trying to unveil”. The applicant had told the Bench in an
attempt to defend “why” different
letterheads and signatories that, the Institute of Professional Studies (IPS)
has metamorphosed into what is now known as the University of Professional
Studies, Accra (UPSA) and that IPS is now a college or department under UPSA(the emphasis is mine).
However,
Counsel for 2nd Respondent,
whom judicial notice was taking of him to be apast student of the Institute of
Professional Studies now the University of Professional Studies, Accra, raised
the “eyebrow” on the credibility
of the Applicants averments before the Bench on the issues of Letterheads and
different Signatories on the Exhibits “I” and “B”and
I
found the Applicant’s submission not convincing enough to elude the minds of
this bench on the true facts. I must say I am completely taking aback,that MrMichaelPaa-QuecyAdu
a man of such a respectable status who command a lot of respect among the peers
in the NUGS fraternity, also a ‘brother’ whom I respect much myselfwould tell
this bench and the entire student of NUGS that the “hand written ink”
cancelation and alteration on a typed official document was done by a reputable
institution as UPSA. Well I don’t know his motivation though but on the face of
it I think his advisers had failed to coach him well on what to say on that.
I
can conclusively rely on the arguments by counsels for the Respondents on
Exhibit “I”thatthe black ink pen used to alter, insert and
change a date, which is to be the duration of the course of study, was not done
by the University of Professional studies Accra (UPSA) as MrPaa-QuecyAdu is making us believe.Even
common sense and logic would tell you that whenever official letters are issued
with errors on them, corrections are done by re-typing of the entire document
and not by cancellation and or alteration in pen ink. One sure fact the
Applicant Mr. Paa-QuecyAdu
should know is that, we the members of NUGS are
highly intellectuals; he shouldn’t
expect to deceive us with the explanation giving by him on that particular
issue. I am convinced that, the alteration undermines
the authenticity of the reference letter and therefore seen as a ploy to
conceal from the Union the duration, status, weight and equivalence of the
course he is offering to a Postgraduate course.
Also on the issue as to whether Chartered
Institute of Marketing (CIM) is a PostgraduateProgram of study and as to
whether UPSA has the Prerogative of determining its program of pursuit.Exhibit “B” which was tendered by the
Applicant himself, corroborate withExhibit
“III” and earlier submissions by the Respondents that Chartered Institute
of Marketing (CIM) program is not a postgraduate program of study. The emphasis
is laid on “MrAdu is currently a professional student of the University pursuing
the Chartered Institute of Marketing (CIM) program leading to postgraduate
qualification……” onExhibit “B”.
Thesewords are clear and unambiguous and the contest in which it had been put to
use also makes sense, therefore “Leading to postgraduate qualification”when
giving its ‘ordinary meaning’the inescapable conclusion would be that, Chartered
Institute of Marketing (CIM) programdoes not give rise to a post graduate
qualification; it is a professional program or a certificate course which “merely”
gives a student access to enroll in a Postgraduate course. Thus its status,
weight, and duration do not make it a Postgraduate Program.
Also Exhibit
“III” is corroborated by Section
2(1), of the National Accreditation Board Act, 2007 (Act 744),which states
that “the
Board is responsible for the accreditation of both public and private
institutions as regards the contents and standards of their programs.”The
Applicant having failed to convince this Bench by leading cogent, credible and
incontrovertible evidence that indeed UPSA had accredited the Chartered
Institute of Marketing (CIM) program as a postgraduate program pursuant to Section 8(1) of Act 744, he failed in
discharging the burden on him to avoid a ruling against him.
Accordingly
the 1st Respondent is justified in disqualifying the Applicant on
these grounds
2.
WHETHER OR NOT FAILURE TO CARRY OUT THE
ORDER OF THE JUDICIAL BOARD AS A MEMBER OF A VETTING COMMITTEE CONSTITUTE A
GROUND FOR DISQUALIFICATION FROM CONTESTING NUGS PRESIDENT/LEGAL EFFECT ON THE FAILURE
TO CARRY OUT THE ORDER OF THE JUDICIAL BOARD
The
question for determination here is whether or not failure to carry out the
orders of the judicial board as a member of a vetting committee constitutesa
ground for disqualification from contesting for NUGS presidency, any position
or appointment in NUGS?
The
2nd respondent argued that Mr. Michael PaaQuecyAdu,
during his tenure of office as Vetting Committee Secretary, failed to honour
the Constitution of NUGS and violated Article 3 (a) (e) (c) (d) and 59(a) when the 2012/2013NUGS vetting
committee ignored an order by the Judicial Board, against one Mr. Jude Sekle,
that he be disqualified from contesting as NUGS President because he is not a
student within the meaning of the NUGS constitution. When copies of the ruling were served on the
then Vetting Committee of which Mr. Michael PaaQuecyAdu was the Secretary, the
committee did not carry out the orders of the Judicial Board, but choose to
truncate and dishonor the Constitutional mandate of the Judicial Board,hence
contravening the provisions of the NUGS Constitution Articles3 (a) (e) (c) (d) and 59(a)
Article 3
a. All members shall
adhere to all the provisions of this Constitution
c. Any
member(s) who alleges that: 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.
d. For the
purpose of a declaration under clause (c) of this article, The Judicial Board
shall make such orders and give such directions as it may consider appropriate
for giving effect to the declaration so made.
e. Any member
or member body, to whom an order or a direction is addressed under clause (d)
of this article by the Judicial Board, shall duly obey and carry out the terms
of the order or direction
Article 59(a)the decision of the Judicial
Committee shall be binding on all individual members and bodies of NUGS
Counsel for the
Applicant contended that, it is frivolous to hold a committee’s report on an
individual and adduced that the applicant served the vetting committee only as
the secretary, and the report that was submitted to the then Central Committee
was the collective decision of the committee as authored and binds on the
dissenting opinion of the committee. Especially when the Applicant MrAdu voted
against the Committee’s decision to pass Mr JudeSekle asenforcing an order by
the Judicial Board, hence he belonged to the minority that voted not pass Mr
Jude Sekle.He cited the NUGS case ofYakubuYusifVrs the
Vetting Committee Suit No. NUGS JB/06/2014in furtherance of his argument
and stated that, the applicant YakubuYusifin that case was also a member of the
2013 Vetting Committee of whichMrAdu served as the Secretary, but the applicant
YakubuYusifwho was disqualified by the vetting committee on same grounds was
reinstated by the Judicial Board. Counsel then posed the question “why can’t the Applicant, MrAdu
in the instant case be reinstated on same grounds”?
I think I have to spare a little
time to educate us on the proper and true ruling in the case of YakubuYusifVrs
the Vetting Committee oft-cited, that the Applicant is seeking reliance on.
The applicantYakubuYusifin this case was reinstated by a
majority decision of 2 to 1 of which I gave the dissenting opinion. The
majority on the Bench reasoned that, there was a petition against YakubuYusif
by a concerned member from the NHSAG bloc on his failure to present a financial
report as the immediate past president, but when he appeared before the Vetting
committee,he was not giving hearing on the issue contraryto the rules of
Natural Justice “audialterampartem”
“hear the other side”. I am sure thatthe majority on the
Bench might have been influence by one the many cases on the rules of Natural
Justice that was cited in that case. One of which is the case of ACCRA
HEARTS OF OAK SPORTING CLUB v. GHANA FOOTBALL ASSOCIATION [1982-83] GLR 111-120
HIGH COURT, ACCRA 27 MAY, 1981, where in this case After a football match played between Accra Hearts of
Oak and Dumas on Sunday 29 March, 1981, some spectators who were at the stadium
expressed their dissatisfaction with the referee's handling of the match by
indulging in acts of [p.112] hooliganism which resulted in a considerable damage
to property at the stadium. Although there was no evidence that the wanton acts
of hooliganism and destruction were committed by supporters of Hearts, the
Ghana Football Association, in a press release, decided to ban Hearts from
playing any "home" match at the Accra Sports Stadium until further
notice. And further, that the Ghana Football Association would decide the venue
at which Hearts would play their "home" matches from time to time.
Hearts brought this action for an injunction to restrain the defendants from
acting upon the said press release on the ground that they were not heard
before the decision to ban them was taken. The defendants conceded that the
plaintiffs were not heard before the punishment was imposed.
The high court in its ruling
said: “Anybody
or persons having legal authority to determine questions affecting the rights
of citizens, and having the duty to act judicially should give adequate notice
to persons likely to be affected by their proceedings or decisions, so that
they might be in a position to prepare their case, appear at the inquiry and
make representations on their own behalf or through a representative………this imposed
on the disciplinary committee a duty to act judicially. Consequently, even
though the G.F.A had the authority to transfer a club to another venue if it
was satisfied that supporters and players were rowdy, before it could take such
a decision, the committee was bound by the rules of natural justice to give a
hearing to the plaintiffs. An act or decision consequential upon a
contravention of the audialterampartem rule might be restrained by prohibition
or an injunction or set aside by certiorari”
The majority were also of the
view that the issue of he being part of the committee that disregarded the
orders of the judicial Board contrary to Articles 3 (a) (e) (c) (d) and 59(a) of
the NUGS Constitution was not an issue for determination before the bench. They
were only guided by the pleading before them and every case is decided on its
own merits, hence the Applicant YakubuYusifwas reinstated by the Majority on
the Bench.
I think therefore that the
question posed by counsel for the applicant supra would in effect be answered
that, the decision in the case of YakubuYusifvrs The
Vetting Committee wouldn’t avail him as a defense for his reinstatement in the instant
case. Also the Applicant’s Counsel failed to discharge the burden of proof on
him, to convince the Bench that indeed MrAdu voted against the 2013 vetting
committee’s decision to pass Mr Jude Sekleenforcing the orders of the Judicial
Board, which I “think “would
have”
placed him at the ‘mercy’ or ‘sympathy’ of the Bench to have “may be”reinstated him. However, even if Counsel
had lead proof to that effect, I don’t think he would still be exonerated from
the charge against him because disrespecting the orders of the judicial Board
is measured against the gravity of Article 3(f) of the NUGS Constitution, as such
act is contemptuous of the Judicial Board in respect of its orders andsanity
The offence of contempt
Again, I would
like to take us on a journey on the offence of contempt to boost the level of
our appreciation and understanding on the gravity of such offenses. This
offense may be committed by conduct that tends to bring the authority and
administration of justice into disrespect or disregard and or to interfere with
or prejudice parties to pending court proceedings or their witnesses. Thus the
offence ofcontempt of court may be committed in different forms: including
situations such asinterfering with witnesses or jurors; frightening off parties
to litigation; refusing to answer questions in court: commenting on pending proceedings
in such a manner as to prejudice the outcome of the case; running down the
courts and the judges; and refusing
to obey an order of the court.This offence falls into two categories: (a) civil contempt consisting of
disobeying judgments, orders or other processes of the superior courts; or (b) criminal contempt
consisting of acts that obstruct or interfere with the due administration of
justice.Republic v Mensa-Bonsu; Ex parte
Attorney-General [1994-95] GBR 130 applied.(For the
gravity of contempt of court refer to the Supreme Court’s contempt cases
against some persons in the 2012 Electoral Petition)From the discussion on the law of
contempt, I am convince that the act of the 2013 VettingCommittee of which the
Applicant MrPaa-QuecyAdu served as the Secretary was calculated to bringing the
Judicial Board of the National Union of Ghana Students to ridicule and if not
condemned, would encourage total disrespect for the NUGS Judicial Board.Enviably,
the Judicial Board is one of the strongest institutions within NUGS; all effort
must be directed in keeping its status as the sole interpreter and enforcer of
the NUGS Constitution. As a sign of caution, “no matter how big you think you are, once you subscribe to
the National Union of Ghana Students, you are subjected to the NUGS
Constitution, so no matter how you think that, a Judicial Board’s order is
unfair, wrong, or against the weight of evidence, until it is set aside by the
Judicial Board or a higher Court of competent Jurisdiction upon an application
to that effect, you must carry out the orders to the letter. We are not in the
“Jungle” where the strongest animals and plants rule, No! We are found in the
midst of intellectuals guided by constitution, hence Supremacy of the
Constitution and Rule of Law must prevail”
On this note I am
bond by theMajority opinion in the case of YakubuYusifVrs
the Vetting Committee Suit No.NUGS JJB/6/2014 supra (even though I gave a dissenting
opinion), to rule that, it is unfortunate the applicant in the instant case is
seeking to shield himself with YakubuYusifVrs the Vetting
Committee Suit No. NUGS JB/06/2014 Unreportedknowing the true and proper
ruling of the Bench in that case. It is my opinion that the actions of the 2013
vetting committee were contemptuous of the Judicial Board of NUGS in violation
of Articles 3 (a) (e) (c) (d) and 59(a)as discussed supra. The gravity
of such violation shall attract the penalization or sanction under Article 3(f)
of the NUGS Constitution; as such act is contemptuous of the Judicial Board in
respect of its orders and sanity.
Article 3(f):Failure
to obey or carry out the terms of an order or direction made or given under
clause (b) of this article constitutes a violation of this constitution and
shall in the case of
i.
a student,
not be eligible for election or for appointment to any office of the Union for
two years.
Hence the Applicant Mr MichaelPaa-QuecyAduis
disqualified from contesting for NUGSPresident and from this Day 23th
September 2014 not eligible for election or for appointment to any office of
the Union for two years as deterrence to whoever is giving the mandate by the
constitution to act.
Application
dismissed
NATIONAL
UNION OF GHANA STUDENTS (NUGS)
JUDCIAL
BOARD ACCRA - AD 2014
No.: NUGS JB06/2014`23rd September, 2014
CORAM
Nyarko A.
Tonny Chief Justice (Presiding)
BenjamineSabbahSomiah
JJB
Osafo-Ampomah,
Kwame BonahJJBPetition
PaaQwasiAdu - PETITIONER/APPLICANT
Vrs
Vetting Committee - 1st RESPONDENT/DEFENDANT
President NUGS, Accra - 2nd
RESPONDENT/DEFENDENT
Judgmentby Somiah, B. S. (JJB)
Since my brother the Chief
Justice on the Bench has giving us the facts in “extenso” in his Judgment, I will avoid repeating most of the issues he discussed
therein.
Facts: The Petitioner/Applicant,
having bought/collected/obtained a nomination forms of the National Union of
Ghana Students, (NUGS) to contest for the Office of President for the 2014/15 NUGS
year, submitted himself to the Vetting process as provided for by Art.60(a) of
the NUGS Constitution. However he was ‘disqualified’ from contesting for the
position of President, as per its report presented before the Central Committee
of NUGS at its last meeting before congress. The Vetting Committee gave in its
report the following as the reasons for disqualifying the Applicant
1.
The
Candidate, herein as the Petitioner/Applicant, submitted two (2)
introductory/reference letters in support of his student status qualification
relative to Art. 70 (a) and (b) of the NUGS Constitution. The said letter(s),
as submitted, confirmed the Candidate/Petitioner/Applicant as “offering a
course in Chartered Institute of Marketing Part II leading to Postgraduate
qualification. Furthermore, a black ink pen was used to alter, insert, and
change a date, which is to be the duration of the course of study which
undermines the authenticity of the reference letter and thus calling into
question the genuineness of the status of the reference letter. Consequently,
the Vetting Committee sees this act as a “ploy to conceal from the Union, the
duration, status, weight and equivalence of the course he is offering to a
postgraduate”.
2.
Investigations
conducted and report from the National Accreditation Board (NAB) reveals that
the said course is not a Postgraduate course but a certificate course, and that
its status, weight, and duration do not make it a Postgraduate degree.
3.
The
Candidate/Petitioner/Applicant during his tenure of office as Vetting Committee
Secretary, failed to honour the Constitution of NUGS by contravening and
showing gross disrespect for the provisions of NUGS Constitution Article 3(f)”
by not carrying out “the ruling of the Judicial Board but choose to truncate,
and dishonor the Constitutional mandate of the Board.
The Petitioner/Applicant, as per
his petition, filed on the 23rd of September, 2014 before this board:
a.
Aver that the
ground on which the Candidate/Petitioner/Applicant “was disqualified is
frivolous and exposes the lack of appreciation of the Vetting Committee on
issues concerning studentship in the University of Professional Studies, Accra
b.
Contend that
the constitution of the National Union of Ghana Students has been violated
willfully and the right of the Candidate/Petitioner/Applicant has been short-circuted
c.
Aver that
that “the constitutional provisions were misrepresented and should not be
entertained
d.
Aver that the
Candidate/Petitioner/Applicant “has qualified an aspirant unconstitutionally
last year while serving as the Secretary to the vetting committee is a
misrepresentation of the facts and should be disregarded
e.
Aver that the
allegation that the Candidate/Petitioner/Applicants’programme of pursuit is not
a post-graduate programme is unfounded
According Counsel for the
Applicant pray the Board for the following reliefs;
a.
That this
Judicial Committee constituted for the purpose of protecting the constitution
of NUGS “quashes the grounds” on which the candidate/Petitioner/Applicant was
disqualified
b.
That the
Candidate/Petitioner/Applicant “be reinstated in the interest of justice and
fairness”
I will also join my brother the
presiding Judge on the issues set out for determination in this application:
ISSUES
1. Whether or not the Applicant pursuing the Chartered Institute of
Marketing (CIM) program leading to postgraduate qualification, qualifies to
contest for NUGS President as a Postgraduate Student
2. Whether or not failure to carry out the order of the judicial board
as a member of a vetting committee constitute a ground for disqualification from
contesting NUGS President
Crucial to this application is
the issue of jurisdiction of the judicial board to review the decision of the
vetting committee.
A petition of this nature must be
construed or understood to have multidimensional elements which could bother on
the Jurisdiction of the Board to execute certain aspects of the case. As
earlier pointed out, the Board has been invited, as per this petition, to
review the decision(s) of the Vetting Committee of NUGS, which per Art. 60(b)
of the NUGS Constitution “shall not be subjected to the instruction of any
person or body in the performance of its duties. This does not suggest that the
Judicial Board cannot subject the work and decision of the Vetting Committee to
‘legal scrutiny’ if those acts or decision are contrary to or in contravention
with any provision in the NUGS Constitution. Per Art. 3(c), 57 (a) (b) (c), and
60(g), the judicial board inter alia has the sole mandate of interpreting and
enforcing the provisions of the NUGS Constitution can review the decision of
the vetting committee most especially where its powers have been invoked by the
applicant in the instant case
Atugugba, JSC notes that “in the
exercise of this court’s original jurisdiction, which does not include the
fundamental human rights, it does not mean that when such rights arise
incidentally or are interlocked with matters falling within our original
jurisdiction the same should be prejudiced or ignored, see Tait
v. Ghana Airways Corporation (1970) 2 G&G 1415(2d), Benneh v The Republic
(1974)2 GLR 47 C.A (full bench) and Ogbamey-Tetteh v Ogbamey-Tetteh (1993-94) 1
GLR
It must be
noted that the Board dismissed a preliminary objection raised by Counsel for
the 1st Respondent/Defendant, concerning the status of the Petitioner/Applicant
as a ‘Student’ on the basis that same formed part of the petition which was
going to be dealt with in the cause of the hearing.
Before I
proceed on the issues, I will advance argument on the Burden of Proof required
in this case
Burden
of proof
I opt to go along the lines
adopted by Atugigba, JSC and Ansah, JSC, in the case of Nana
AddoDankwaAkuffo-Addo&Ors ‘Vrs’ John DramaniMahama&Ors, in the
application of the provisions of the Evidence Act, 1975 (N.R.C.D 323), Ansah,
JSC, states inter
alia
that in “civil
cases, such as the one before the Board, the burden of proof is on the
petitioner to prove the facts alleged……he who asserts is required to prove such facts by adducing
credible evidence in support and if he fails to do so his case must fail”Yorkwa v Duah[1992-93]
GBR 280, CA; Buhari v INEC (2008)12 SC 1; Ackah v Pergah Transport Ltd. [2010]
SCGLR 728; GIHOC Refrigeration v Jean Hanna Assi [2005-2006] SCGLR 198; Dr.
Kwame AppiahPoku&ors v KojoNsafuahPokuors. [2001-2002] SCGLR 162.Applied.
Theburden of proof comprises the “burden
of persuasion”and
“the
burden of producing evidence”. The under the
burden of persuasionthe obligation of a party is to
establish a requisite degree of belief concerning a fact in the mind of the
tribunal of fact or the Court. Here a party is required to raise a reasonable
doubt concerning the existence or non-existence of a fact, or to establish the
existence or non-existence of a fact by a preponderance of the probabilities or
by proof beyond a reasonable doubt. And under the burden of producing evidence, the obligation of a party is to
introduce sufficient evidence to avoid a ruling against him on the issue. In
other circumstances, the burden of producing evidence requires a party to
produce sufficient evidence so that on all the evidence a reasonable mind could
conclude that the existence of a fact was more probable than its non-existence.The
standard of proof to be satisfied by a party is by a “preponderance
of probabilities” save where a contrary requirement is created by law.
On whom does
the burden of proof lie?
This being an application invoking
the jurisdiction of the Judicial Board to review the decision of the Vetting
Committee disqualifying the Applicant, the onus lies on the Applicant to proof
that, the grounds on which the Vetting Committee disqualified him are not “Justifiable” within the premise of law. APetitioner/Applicant
is expected to prove on the preponderance of probability that the “grounds”
on which the
decision(s) of the Vetting Committeedisqualifyinghim/her is ‘not
justifiable’.
This presupposes that, the Petitioner/Applicant is vested with the ‘burden to
prove’ that the ‘grounds’ on which the Vetting Committee “nullified” his
candidature after Vetting are not ‘justifiable’;
Student Qualification
Status
It is important to note that I would be referring to
thediscussion supra on the appropriate sections of the Evidence Decree,
especially of Sections 10(2)(b) and 11(1) on the burden of proof to arrive at a
logical conclusion in this case. Looking at the Petition before the Board, it
must be noted that the board, by this petition, is invited to review the
decision of the Vetting Committee, disqualifying the Applicant MrPaa-QuecyAdu
from contestion for NUGS President. The jurisdiction of this court has also
been invoked pursuant to Article 60(g) by the Applicant to determine whether
the grounds of disqualification of a candidate are “justifiable”. Before we can
successfully embark on such legal journey the Board shall avers it mind to the
dictates of the NUGS Constitution,Art.70(a) and 70(b)
Art.70 (a): Aspirants
contesting for the position of National President, National General Secretary,
National Treasurer and Education and Democratization Secretary shall be
full-time students of member institutions who have completed at least one
academic year and have one more academic year to complete their programmes of
pursuit.
b)
Notwithstanding
the clause (a) supra post graduate students shall be allowed to contest.”
It must be understood that there
are two (2) categories of persons/students ‘qualified’ to contest for the
position of National President of NUGS, to wit; full-time students of member
institutions who have completed at least one academic year and have one more
academic year to complete their programmes of pursuit and post graduate
students.
a.
the student
must be in his 2ndyear for a 3-year Diploma Programmeor
b.
second (2nd)
or third (3rd) year (for a 4-year Degree Programme).
c.
Notwithstanding
this provision, all post graduate students are ‘qualified’ to contest for the
position at any material moment so long as he/she has a full year (or any
shorter in line with the NUGS year) to complete his/her programme of pursuit of
which he can serve his/her term of office concurrent with his last year of
study.
To answer the earlier question as
to what constitutes a “justifiable grounds” for nullifying a person’s candidature;
we must aver our minds to relevant provisions of the NUGS Constitution Art.70
and 71 which provides for “QUALIFICATION FOR ELECTION” and “GROUNDS FOR
DISQUALIFICATION” respectively. The
Board may not be drawn into looking at these provisions in ‘super individuum’. It is trite knowledge that “Nemoaliquampartemrecteintelligerepotestantequamtotumperlegit”. I
will adopt the approach of reading the provisions a constitution as a wholesuch
as the one (1) adopted by Atugugba JSCin J H Mensah v Attorney-General
(1996-97) SC GLR 320 to the effect that “by the principle of constitutional interpretation. the
constitution be construed as a whole so that the constitution its various parts
work together in such a way that none of them is rendered otiose. He said:at 362
“...since it is easy, by taking a particular provision of an
Act in isolation, to obtain a wrong impression of its true effect. The dangers
of taking passages out of their context are well known in other fields, and
they apply just as much to legislation. Even where an Act is properly drawn it
still must be read as a whole. Indeed a well-drawn Act consists of an
inter-locking structure each provision of which has its part to play. Warnings
will often be there to guide the reader, as for example, that an apparently
categorical statement in one place is subject to exceptions laid down elsewhere
in the Act, but such warnings cannot always be provided.”
The combined effect of both
provisions is that a student seeking to contest the position of President must
have been ‘qualified’ (on one(1) leg) to be nominated for the position but
could also be disqualified (on another leg) if he/she if found to have been
found culpable of any of the ‘frowns’ in the Art. 71. The fundamental basis for
justifiable ground would that under Article 70 or 71 and any other relevant
provisions and regulations; including those of the Electoral commission, if
any, as per Art. 60(c), which reads inter alia that a students must “satisfy
the requirements provided for in this constitution or regulations as may be set
out by the Electoral Commission. Therefore before a person contested for any
position under NUGS he/she must have accessed him/herself and found to be ‘favoured’
by these provisions.
Toascertain whether the grounds
on the Vetting committee disqualified the Applicant are “Justifiable”
groundsthe issue on 2 reference letters and the discrepancies on them as well
as the allegations of disregarding the orders of the Judicial Board become
crucial to be resolved. From the face of the evidence adduced or produced
before this Bench; one (1) of the said letter, in soft copy form on his Mobile
handset and later reproduced in hard form upon the order of the Board i.e
Exhibit “A” and the other tendered by the 2nd Respondent/Defendant Exhibit “I”,
supports the allegations of the Vetting Committee in respect of the alterations
on the said letter. The explanations of the Petitioner/Applicant to the alleged
“ploy to conceal from the Union, the duration, status, weight and equivalence
of the course he is offering to a postgraduate” are that; ‘the alterations
“may” have been done by the Registrar of the School and that he (Petitioner/Applicant)
could not have known because it was concealed
until he (Petitioner/Applicant) submitted the nominations forms at the
brink of close of filing nominations on 16:55GMT of July 29, 2014 when he was
informed of the alterations at which instance he (Petitioner/Applicant) went
back to institution to obtain a corrected/new letter for submission. I find the
Petitioner/Applicant’s responses to be ‘unconvincing’ and hard to comprehend,
particularly in respect of ‘why’ the two (2) reference letters appeared on
‘different’ letterheads, when the said letters were purported to be emanating
from the office of the registrar of the same institution. Counsel for 2nd
Respondent/Defendant, who himself is a past student of the University of
Professional Studies, Accra (then Institute of Professional Studies), attacked
the authenticity and credibility of the first letter (Exhibit A), as submitted,
on the basis of the letterheads and the different signatories to the letters,
where the contentious reference letter (Exhibit A) was signed Mr. Frederick Doe(Coordinator
for Professional Programmes/Lecturer) for the Director, IPS, whereas the second
letter was signed by Daniel Bukari
(Director of Academic Affairs) for the Registrar.
The fact on the evidence Exhibit
B, as tendered by the Petitioner/Applicant, confirms the
Candidate/Petitioner/Applicant to be “currently a professional student of this
University pursuing the Chartered Institute of Marketing (CIM) programme
leading to prosgraduate qualification”, which has been alluded to by the Vetting
Committee. The argument of the Petitioner/Applicant, that the University of
Professional Studies, Accra and for that matter every institution holds it a
prerogative to determine the status of its programmes, hence the allegation
that the Candidate/Petitioner/Applicants’ “programme of pursuit is not a
post-graduate programme is unfounded”. I find this argument to be ‘flawed’ from
Exhibit III (reproduced by the Chief Justice in his Judgement) and on the face
of the reference letter Exhibit B which rather identifies the
Candidate/Petitioner/Applicant to be a “Professional student” than a
postgraduate student, and also in particular reference to Sections 2(1), 2(2),
and 8(1) of the National Accreditation Board Act, 2007 (Act 744), which
provides that; Functions of the Board Section 2.
1)
The Board is
responsible for the accreditation of both public and private institutions as regards the contents and
standards of their programmes.
2)
Without
limiting subsection (1), the Board shall
a.
determine the
programmes and requirements for the proper operation of an institution and the
maintenance of acceptable levels of academic or professional standards in the
institution in consultation with that institution;
b.
determine the
equivalences of diplomas, certificates and other qualifications awarded by
institutions in the country or elsewhere;
Accreditation exercise
8. (1) An accreditation exercise may be
initiated by the Board or an institution itself and shall be in relation to the
institution or its programme or to both.
The Petitioner/Applicant fails to
disprove the findings of the Vetting Committee, in respect of the reported
“Investigations conducted and report from the National Accreditation Board
(NAB)” ‘revealing that the said course is not a Postgraduate course but a
certificate course’, and that “its status, weight, and duration does not make it
a Postgraduate degree”.
Also, the Vetting Committee
submits that the Candidate/Petitioner/Applicant during his tenure of office as
Vetting Committee Secretary, “failed to honour the Constitution of NUGS by
contravening and showing gross disrespect for the provisions of NUGS
Constitution Articles3 (a) (e) (c) (d) and 59(a)by not carrying out the ruling of
the Judicial Board but choose to truncate, and dishonor the Constitutional
mandate of the Board. In his defense, the Petitioner/Applicant stated that,this
assertion is a misrepresentation of the facts and should be disregarded, and
that the constitutional provisions were misrepresented and should not be
entertained. The Petitioner/Applicant further contends that the constitution of
the National Union of Ghana Students has been violated willfully and the right
of the Candidate/Petitioner/Applicant has been short-circuited (sic)
The Petitioner/Applicant however
woefullyfailed to lead any evidence to support his claims that the fact of the
then vetting committee disregarding the orders of the judicial board was “misrepresentation”by the 1st Respondent Vetting
Committee. He further fails to show any point of law where “the constitution of
the National Union of Ghana Students has been violated by the 1st
Respondent in disqualifying him and its consequence(s) on his ‘rights’ to be
elected to the office of president of NUGS
The Petitioner/Applicant only
seeks to rely on the case of YakubuYusifVrs the Vetting
Committee Suit No. NUGS JJB/6/2014 Unreported, where this honourable Board
reversed the decision of the VC and reinstated the Petitioner/Applicant,YakubuYusif where the
Candidate/Petitioner/Applicant, was also disqualified on the following grounds:
i.
Failure to
fully comply with the order of the VC to submit audited accounts/statement in
response to a petition, of financial misappropriation and or embezzlement
during his tenure of service as the NASHAG President, against him, and
ii.
Grounds C of
the report of Vetting Committee (as stated above) in respect of the
disqualification of the Candidate/Petitioner/ApplicantMrPaa-QuecyAdu in the
instant case.
It must be noted that the
semblance or connection of the two (2) cases:YakubuYusifVrs
the Vetting Committee Suit No. NUGS JJB/6/2014 Unreportedand the Instant case, rest only
with the fact that both Candidates/Petitioners/Applicants served on the
previous Vetting Committee that acted ultra vires the order of the then
Judicial Board.
However in later case YakubuYusifVrs
the Vetting Committee Suit No. NUGS JJB/6/2014 Unreportedthere was a petition against him
for not submitting a financial report to the vetting committee, he wasn’t
giving any fair hearing on that particular petition contrary to the rule of
natural Justice, audialtrampartem (hear the other side)Upon the
admission of the Chairman of the Vetting Committee, that he submitted the
audited statement as was requested but could not produce “receipts” and other
supporting documents subsequent to his submission of the audited statement;
which was further held that the receipts and other supported documents had been
lodged with the auditors of the accounts and was going to take to retrieve,
cleared on that grounds. And as per the majority decision of 2-1 of which my
brother the Chief Justice dissented, that was against the rules of natural
justice as in the case of Accra Heart of Oak football
Club vs. the Ghana Football Associationoft cited in the Judgment of
TonnyNyarko CJ
The majority also held that the
applicant in the case further showed unequivocal remorse concerning his
purported involvement in disregarding the orders of the Judicial Board contrary
to Art.3 (a) (e) (c) (d) and 59(a). However that didnot exonerate him
on that count. I also find him culpable and join my brother TonnyNyarkothe
Chief Justice in condemning such contemptuous actof the then vetting committee in
respect of disregarding the orders of the judicial board. As much, he was also
made to suffer the same fate under article 3(f) just that he was passed
narrowly on the rules of natural Justice most especially where the issue of his
association with the then vetting committee was not a question for
determination in that particular case. So the Bench was Limited only to the
pleading of the Applicant YakubuYusif and that of the Vetting Committee to
decide the case on its own merit.
It is trite knowledge in judicial
practices that each case is tried or considered on its own merits. This has
been affirmed by several Courts, including the California Supreme Court decision
in SprecherVrs Adamson (California Supreme Court 1981), which the Court discarded the
common law immunity and declared that each case must be tried on its own merit.
It must also be noted that, like most instances in judicial practice and
procedure, the Courts and in our instance the Judicial Board, tries to maintain
a good balance of consistency in its judgment. However, I take the strong view
that, this practice cannot be construed to be a substitute for seeking to
justify your own case, especially as having been granted the opportunity and
avoid the over-reliance on judicial precedence, if not for anything all, its
evidential value must be guided by the dictates of the relevant provisions of
the Evidence Act, 1975 (N.R.C.D 323) and in particular as in the
words of the Learned Supreme Court Justice Julius
Ansah (JSC)
puts it that “he who
asserts is required to prove such facts by adducing credible evidence in
support and if he fails to do so his case must fail”.
It was observed by my good self,
that what would he have done if the Vetting Committee refused/disregarded the
order of the Board to reinstate him and deny him the opportunity to contest in
the elections, forthwith. This brings to fore a well admitted principle in the
execution of justice, whether in relation to seeking to uphold the rights of
persons, in that “He, who seeks equity must come with clean
hands” or “he who seek equity must do equity”
Conclusion
Having observed the arguments put
forth by all parties to this case and the evidences adduced to support the
claims and counterclaims of the parties, and considering the vested interest of
the broader people of Ghanaian Students, who form the membership of NUGS, and
in whose “Sovereignty” and “for whose welfare the powers, duties and
responsibilities that are conferred under this constitution shall be
exercised”, as per Art. 2(a) of the NUGS Constitution, Iam of the opium that;
the grounds on which the applicant was disqualified are “JUSTIFIABLE” grounds
with the premise of law. Consequently
(i) I
do ‘not grant’ the relief of the Candidate/Petitioner/Applicant in seeking to
‘quash the grounds’ on which the Candidate/Petitioner/Applicant was
disqualified
(ii) I
do not grant the relief of the Candidate/Petitioner/Applicant to “be reinstated”.
Accordingly, I dismiss the petition and further
caution that ‘all’ the provisions of the NUGS Constitution must be respected
and adhered to as prescribed by Art. 3(a), including enforcing the Art.3(f).
NATIONAL
UNION OF GHANA STUDENTS (NUGS)
JUDCIAL
BOARDACCRA - AD 2014
Petition No.:
NUGS JB06/2014
23rd September, 2014
CORAM
Nyarko A.
Tonny Chief Justice (Presiding)
BenjamineSabbahSomiah
JJB
Osafo-Ampomah,
Kwame BonahJJBPetition
PaaQwasiAdu - PETITIONER/APPLICANT
Vrs
Vetting
Committee - 1st
RESPONDENT/DEFENDANT
President
NUGS, Accra - 2nd RESPONDENT/DEFENDENT
Judgement by Osafo-Ampomah, Kwame Bonah (JJB)
I’ve had the
opportunity to read the seasoned arguments from my brothers here on this Bench.
I would also add just a little to what they have already said in their Judgments.
In doing so I would skip the facts and other similar issues
In fact the applicant
per this application is invoking the jurisdiction of the judicial board
pursuant to article 60(g) of the NUGS constitution to ascertain whether the
grounds on which he was disqualified by the vetting committee herein after referred
to as the 1st Respondent is justifiable.
The vetting
committee in its report gave the following as the grounds on which the
Applicant Mr. Michael Paa-QuecyAdu was disqualified.
1.
Mr. Michael
PaaQuecyAdu, during his tenure of office as Vetting Committee Secretary, failed
to honour the Constitution of NUGS by contravening and showing gross disrespect
for the provisions of NUGS Constitution, which shows a blatant display of
contempt for the NUGS Court established by the NUGS Constitution. By the powers
vested in the Judicial Committee which in the discharge of its mandate in
2012/2013 NUGS year, made a declaration against one Mr. Jude Sekle, that he be
disqualified from contesting as NUGS President because he was not a
student. A copy of the ruling was served
on the then Vetting Committee, of which Mr. Michael PaaQuecyAdu was the
Secretary. The committee however did not
carry out the ruling of the Judicial Board but choose to truncate, and dishonor
the Constitutional mandate of Board and thus contravening the provisions of the
NUGS Constitution Article 3 (a) (e) (c) (d) and 59(a)
Based on the
above provisions, an aspirant who did not honour or respect the provisions of
Constitution of the Union does not and cannot qualify to contest as an
Executive of the Union as President. This aspirant did not respect the
Constitution and therefore cannot honour same when allowed to contest and
become President of the Union.
2.
Secondly, Mr.
Michael PaaQuecyAdu submitted to the Vetting Committee that he is offering a
course in Chartered Institute of Marketing Part II leading to Postgraduate
qualification. Investigations conducted and report from the National
Accreditation Board (NAB) reveals that the said course is not a Postgraduate
course but a certificate course which gives a student access to enroll in a
Postgraduate course. Therefore, CIM Part II is not a Postgraduate course but a
certificate course, thus its status, weight, and duration does not make it a Postgraduate
degree. The said aspirant, per his introductory letter shows that he is a
professional student in line with Article 70 (a) and (b) of the NUGS Constitution.
Aspirants were made to understand on the Nomination Form that ‘It is important
that nominee’s eligibility for national office be based upon accurate
information. Hence, misrepresentation in any form or manner shall render this
nomination null and void. NUGS reserves the right to cancel the nominee’s
application if false or incorrect information is supplied without prejudice to
any provision in the NUGS constitution. Mr. Michael PaaQuecyAdu submitted in
his nomination form including a reference letter from Institute of Professional
Studies-Accra (IPSA) as of close of nomination on 29th July, 2014 at 16:55 GMT
at the NUGS Secretariat. In the said document, a black inked pen was used to
alter, insert and change a date, which is to be the duration of the course of
study. This alteration undermines the authenticity of the reference letter and
thus calling into question the genuineness of the status of the reference
letter. It therefore seen as a ploy to conceal from the Union the duration,
status, weight and equivalence of the course he is offering to a Postgraduate
course. By providing false and inaccurate information, and also having
contravened the NUGS Constitution. Therefore, he is disqualified from
contesting for NUGS President
The crucial
issue to be resolved is what constitutesjustifiable grounds for disqualifying
an aspirant from contesting for position under the constitution?
Articles 70 and
71 becomes very useful in answering this question.
It
may seem that, as per Article 60(b), theVetting Committee shall not be subjected
to the instruction of any person or body in the performance of its duties.
Therefore the judicial Board cannot not clog its functions with judicial orders
or interfere to review its decisions.
However,
the judicial board in its role as the sole interpreter and enforcer of the NUGS
Constitution, may subject to Articles 2, 3 50, 54, 57, 60(g) of the
constitution review the decision or interfere with the functions of the Vetting
Committee when they are not justifiable on constitutional grounds. For instance,
under the 1992 constitution of Ghana, Article 93(3), the legislative power of
Ghana is vested in Parliament and shall be exercised in accordance with this
Constitution. Also under Article 58(1), the executive authority of Ghana shall
vest in the President and shall be exercised in accordance with the provisions
of this Constitution. In the exercise of both Legislative and Administrative
functions, neitherof the organs shall be subjected to any interference from a
person or any other authority. Yet TheSupreme Court is by Article 130(1)(b) of
the 1992 Constitution vested with exclusive original jurisdiction to declare
any enactment orlegislation made by the Parliament as null and void on the
grounds that the legislation in question has been made in excess of the powers
conferred on Parliament or any other authority or person by law or under the
Constitution. In the same way the Supreme Court can review an executive action.
On
this premise, the NUGS judicial board may also review or subject the functions
and decisions of the Vetting Committee to strict legal scrutiny, because as
indicated by my brother the Chief Justice, “no act, omission or decision of the Vetting
committee or any committee or any member can be regarded as valid unless it
satisfies the test of consistency with the NUGS Constitution’we can
review the decision of the 1st Respondent the Vetting Committee.
On what
constitutes justifiable grounds for disqualifying an aspirant from contesting
for position under the constitution Articles 70 and 71 becomes very useful in
answering this question (since the Articles have been reproduced by my
colleagues on this bench let me proceed to make opinion) Therefore justifiable
ground would be one that falls either under Article 70 or 71 and any other
provision in the NUGS constitution that seeks to forbid certain conducts or
acts; for instance if a member disobeys the orders of the judicial board under
circumstance as one under Articles 3 (a) (e) (c) (d) and
59(a),inter alia.
The first
ground on which the applicant was disqualified by the 1st respondent
boarders on whether or not the applicant is a postgraduate student which is a
matter of Article 70(b). from the evidence adduced in the proceedings and
joining the discussions of my brothers on the bench, the plaintiff failed to
convince the bench as to whether charter institute of Marketing program is a postgraduate
program. Therefore he left his locus as a postgraduatestudent unresolved. Hence
it is a justifiable ground for his disqualification
Consequently, subsequent
Vetting Committees to be formed under this Union, are advised that whatever has
to do with such Professional courses or certificate programs must be
investigated beyond their institutions, further confirmations or clarificationsmust
be obtained from the National Accreditation Board (NAB) to that effect,
The second
ground on which the applicant was disqualified has to do with the breach the of
NUGS constitution Articles 3 (a) (e) (c) (d) and 59(a)of which the sanction is under
article 3(f).Infact disobeying a courts order is serious crime, it becomes necessary
for the court to sanction people who disobey its orders to protect its sanctity
and respect. It is therefore necessary for us on the bench to protect the
sanity of the NUGS judicial Board, else a time will come where people will no
longerregard the Judicial Board and its orders. Even though I joined the majority
in its rulingin the case of YakubuYusifVrs the Vetting
Committee Suit No.NUGS JJB/6/2014 Unreportedquashing the decision of the 1st
Respondent disqualifying the Applicant YakubuYusif,
I am of the
opinion that the this ground is also a justifiable ground upon which the
applicant was disqualified. YakubuYusifVrs the Vetting Committeewill not avail the Applicant in
this case to exonerate him on this count because this case was decided on the rules
of natural Justice, audialtrampartem (hear the other side) and on its
own merits.Most especially where the question of his membership on the then
vetting committee was not an issue for determination before the bench. However
MrYakubuYusifwas made to suffer the same fate under Article 3(f) of the NUGS
constitution.
Consequently,
the Applicant Mr, Michael Paa-QuecyAduis disqualified from contesting for NUGS President and from
this Day 23th September 2014 not eligible for election or for
appointment to any office of the Union for two years as deterrence to whoever is
giving the mandate by the constitution to act, as clearly stated under Article
3(f) of the NUGS Constitution.
Application dismissed
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