COVID-19: Two citizens sue NIA, AG over Ghana Card mass registration exercise

Two citizens of Ghana, Mr. Kevor Mark-Oliver and Mr. Emmanuel Akumatey Okrah has filed a suit against the National Identification Authority (NIA) over its decision to commerce the mass registration exercise of the Ghana card in the Eastern Region of Ghana despite president’s directive suspending of public gatherings amid the deadly Covid 19 spread.

In the writ filed at the High Court, Human Right Division in Accra sighted by Awake News, the two are asking the court to “restrain the Respondents, their agents, privies and assigns from continuing with the mass registration in the Eastern Region for the Ghana card until the final determination of a Human Rights motion challenging the legality and constitutionality of the mass registration exercise in the Eastern Region for the time being in terms of the coronavirus outbreak by the Respondents.”

The applicants argued that “On Thursday, 14th March, 2020, Ghana recorded and confirmed its first two cases of the corona virus” and “According to the Ghana Health Service (GHS), as at 18th March, 2020 Ghana had recorded and confirmed 7 cases of the coronavirus out of a total of 143 suspected cases.”

This has forced the “President of Ghana, H.E Nana Akufo-Addo on Sunday, 15th March, 2020 in a national address to the nation gave directives that all public gatherings including church activities, conferences, schools and many more should be suspended for at least four weeks.”

Subsequently, “The Government of Ghana has also presented the Imposition of Restriction Bill, 2020 which will seek to proscribe public gatherings of more than 25 people or more to mitigate the viral spread of the corona virus. As a result of the directives from the President the Ministry of Foreign Affairs and Regional Integration, Ghana issued a communique that the Ministry is suspending the issuance of passports except those considered as emergencies.”

“In spite of all these drastic measures by the Government to curtail the wide spread of the corona virus, the 1st Respondent issued a press release where the 1st Respondent stated that it is still continuing with the registration and issuance of the Ghana Card in the Eastern Region.”- the write said

According to the two, they “serious legal question to be tried or rights to be protected” and “That the Applicants stand to suffer irreparable damage in the likely event that the Applicants are successful in the substantive case.”

Read the full writ:

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE

HUMAN RIGHTS DIVISION

ACCRA – A.D 2020

IN THE MATTER OF ARTICLES,12, 21(4) (C), 42, AND 33 (1) AND (5), OF THE 1992

CONSTITUTION

AND

IN THE MATTER OF AN APPLICATION BY KEVOR MARK-OLIVER AND EMMANUEL AKUMATEY

OKRAH UNDER ARTICLE 33 OF THE 1992 CONSTITUTION AND ORDER 67 OF C.I 47

SUIT NO:

KEVOR MARK-OLIVER

ASK/B32

Koforidua

1ST APPLICANT

EMMANUEL AKUMATEY OKRAH

H/N B241/3

Somanya

2ND APPLICANT

VRS

NATIONAL IDENTIFICATION AUTHORITY No. 8 Nelson Mandela Avenue Off Gulf House Street South Legon, Accra.

1ST RESPONDENT

ATTORNEY GENERAL

Attorney General’s Department

Ministries, Accra.

2ND RESPONDENT

STATEMENT OF CASE IN SUPPORT OF MOTION FOR INTERLOCUTORY INJUNCTION PURSUANT TO ORDER 25 OF C.I. 47

1. INTRODUCTION

1.1   My Lord, this is the Applicants’ Statement of Case in support of the Motion for Interlocutory Injunction to restrain the Respondents, their agents, privies and assigns from continuing with the mass registration in the Eastern Region for the Ghana card until the final determination of a Human Rights motion challenging the legality and constitutionality of the mass registration exercise in the Eastern Region for the time being in terms of the corona virus outbreak by the Respondents.

1.2    The Applicants herein are praying this Honourable Court to grant this application on the following grounds:

1. That it would be just, fair and convenient for this Honourable Court to restrain the Respondents from continuing with the mass registration and issuance of the Ghana card in the Eastern Region pending the final determination of the Human Rights Application.
2. That the Applicants have a serious legal question to be tried or rights to be protected.
3. That the Applicants stand to suffer irreparable damage in the likely event that the Applicants are successful in the substantive case.
4. STATEMENT OF MATERIAL FACTS
5. The gravamen of the Applicants case is that sometime in 2019 the 1st Respondent started the mass registration and issuance of the Ghana card to citizens of Ghana starting from the Greater Accra Region.
6. The 1st Respondent started the registration and issuance of the Ghana card in the Eastern Region on Wednesday, 4th March, 2020.
7. Sometime in December, 2019, the world witnessed the viral spread of the novel Corona virus also known as the Convid-19 virus.
8. According to the World Health Organization (WHO), as at 17th March, 2020, over 183, 000 people globally had contracted the corona virus out of which over 7,100 had been killed. (Please refer to Exhibit A attached to the Originating motion).
9. According to the World Health Organization (WHO), the precautionary measures to mitigate the viral spread of the corona virus include the following.

• Wash your hands with soap and water frequently
• Maintain social distancing

• Avoid touching eyes, nose and mouth IV. Practice respiratory hygiene.

6. On Thursday, 14th March, 2020, Ghana recorded and confirmed its first two cases of the corona virus.
7. According to the Ghana Health Service (GHS), as at 18th March, 2020 Ghana had recorded and confirmed 7 cases of the corona virus out of a total of 143 suspected cases. (Please refer to Exhibit B attached to the originating motion).
8. According to the Ghana Health Service website on corona virus, www.ghanahealthservice.com/covid-19, the precautionary measures to mitigate the viral spread of the corona virus include the following.
9. Wash your hands with soap and water before touching anything including your eyes, nose and mouth.
10. Cover your mouth and nose when you cough or sneeze.

• Disinfect the objects and surfaces you touch

20. Avoid close contact (1 metre or 3 feet) with anyone with cold or flu-like symptons.
21. The President of Ghana, H.E Nana Akufo-Addo on Sunday, 15th March, 2020 in a national address to the nation gave directives that all public gatherings including church activities, conferences, schools and many more should be suspended for at least four weeks.
22. The Government of Ghana has also presented the Imposition of Restriction Bill, 2020 which will seek to proscribe public gatherings of more than 25 people or more to mitigate the viral spread of the corona virus.
23. As a result of the directives from the President the Ministry of Foreign Affairs and Regional Integration, Ghana issued a communique that the Ministry is suspending the issuance of passports except those considered as emergencies. (Please refer to Exhibit C attached to the Originating motion)
24. In spite of all these drastic measures by the Government to curtail the wide spread of the corona virus, the 1st Respondent issued a press release where the 1st Respondent stated that it is still continuing with the registration and issuance of the Ghana Card in the Eastern Region. (Please refer to Exhibit D attached to the originating motion).
25. As a result of the registration and issuance of the Ghana card by the 1st Respondent, many people gather at the registration centre, Ayeste Methodist School with no safety precaution being taken into consideration. (Please refer to Exhibit E attached to the Originating motion)
26. The Ghana Medical Association (GMA) has release a press statement calling on the 1st Respondent to suspend the registration and issuance of the Ghana card as the registration can increase people’s chances of contracting the disease. (Please refer to Exhibit F attached to the originating motion).
27. The Ghana Medical Association stated in their press statement that “It is, end the considered view of the GMA that this mass registration activities by the NIA if allowed to continue could create a fertile ground for potential spread of COVID-19, endangering the lives of the staff of the NI., the communities involved and the entire nation in the process. This will undoubtedly be fatal for the country.
28. The registration and issuance of the Ghana card in the Eastern Region which has a tendency in aggravating the spread of the corona virus violates the Applicants right to good health guaranteed by Article 12 of the International Covenant of Economic, Social and Cultural Rights which Ghana is a signatory.
29. The continuing registration and issuance of the Ghana card in the Eastern Region has a strong tendency in aggravating the spread of the corona virus.
30. The continuous act of the 1st Respondent in registering and issuing the Ghana card in the Eastern Region exposes the people in the Eastern Region to a high risk of contracting the corona virus.
31. The holding of the Ghana card is evidence of voter’s citizenship as a Ghanaian which is needed for the registration of a person as a voter and the issuance of the new Voters ID card which will be held by the Electoral Commission later this year as envisaged in its publication. (Please refer to Exhibit G attached to the originating motion).
32. In as much as the Ghana card is so important to prove one’s Ghanaian citizenship, one cannot risk his life to get the Ghana card by being directly exposed to the corona virus.
33. The registration of the Ghana card exercise must be done in a healthy manner as anything contrary is likely to disenfranchise the Applicants since the Applicants are likely to abstain from the registration exercise for health reasons.
34. If the registration for the Ghana card exercise is continued, the Applicants as well as others who are scared of contracting the corona virus are likely to be disenfranchised since they would not be able to register for the new Voters ID card.
35. The Applicants will suffer irreparable harm or damage should the 1st Respondent continue with the registration and issuance of the Ghana card since the Applicants will at a high risk of contracting the corona virus.
36. GROUNDS FOR INTERLOCUTORY ORDERS

3.1Under the law and in a long line of decided cases1, the Courts have consistently granted interlocutory injunction in the following circumstances:

3.1.1    where there is a serious question to be tried or a right to be protected;

3.1.2  where on the balance of convenience, the Applicant stands to suffer more harm than the Defendant if the injunction is not granted;

3.1.3    where it will be just and convenient for this Honourable Court to grant the injunction; and

1 1American Cyanamid Co v. Ethicon Ltd [1975] 1 All ER 504; see also Owusu v. Owusu [2007-

2008] SCGLR 870; Vanderpuye v. Nartey (1997 1 GLR 428; Mensah v. Moro 1981 (GLR) 228

3.1.4    where the Applicant stands to suffer irreparable damage from the actions of the Defendant in the event that the Applicant is successful in the substantive case.

ARGUMENTS

4. THIS APPLICATION SHOULD BE GRANTED BECAUSE THE APPLICANTS HAVE RAISED A SERIOUS LEGAL QUESTION TO BE TRIED.

4.1My Lord, the Courts have emphasized that an injunction order may be granted, as in the instant case, where the Applicant has established that there is a serious legal question to be tried or a right to be protected.

4.2In the case of American Cynamid v. Ethicon Ltd2, Lord Diplock delivered himself thus:

“The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.”

4.3         When Kpegah J. (as he then was) was confronted to decide what a serious question means in Baiden v. Tandoh3, he opined that the establishment of a serious question to be tried amounted in effect to the establishment of a prima facie case. The learned judge held that:

“In my humble view, a plaintiff cannot be said to have raised “serious questions” to be tried without actually establishing a prima facie case “

4.4         My Lord, it is our case that the Applicants have raised serious questions to be tried and established a prima facie case.

4.5         My Lord, the Respondent legally started the mass registration and issuance of the Ghana card which of itself is an evidence of Ghanaian citizenship sometime in 2019.

4.6         My Lord, the sudden outbreak and viral spread of the corona virus in Ghana which has as at 18th March, 2020 affected 7 persons has made it necessary

for the Government of Ghana to suspend all public gatherings including church activities, schools and many more.

4.7         My Lord, as a result of the outbreak and viral spread of the corona virus, the Government has also presented the Imposition of Restrictions Bill to Parliament which also seeks to proscribe all public gatherings of more than 25 people.

4.8         As part of the measures to mitigate the viral spread of the corona virus, the World Health organisation as well as the Ghana Health service gave certain precautionary measures which includes avoiding public gatherings and many more.

4.9         My Lord, in spite of all these measures put up by the Government and the World Health Organisation to mitigate the viral spread of the corona virus, the 1st Respondent herein has refused to suspend the mass registration and issuance of the Ghana card in the Eastern Region.

4.10     The mass registration and issuance of the Ghana card exercise which is currently ongoing in the Eastern Region has a strong tendency of exposing the Applicants to the corona virus.

4.11     The Ghana Medical Association has released a press statement calling on the 1st Respondent to suspend the registration and issuance of the Ghana card since the registration can increase people’s chances of contracting the disease.

4.12      That the holding of the Ghana card is evidence of a voter’s citizenship as a Ghanaian which is needed for the registration of a person as a voter and issuance of the new Voters ID card which will be held by the Electoral Commission later this year as envisaged in its publication.

4.13      In as much as the Ghana card is so important to prove one’s Ghanaian citizenship, one cannot risk his life to get the Ghana card by directly bing exposed to the corona virus.

4.14     The registration and issuance of the Ghana card exercise must be done in a healthy manner as anything contrary is likely to disenfranchise the Applicants since the Applicants are likely to abstain from the registration exercise for health reasons.

4.15     The mass registration and issuance of the Ghana card violates the Presidential directives which suspends and bans public gatherings of 25 or more people hence rendering the registration and issuance of the Ghana card in the Eastern Region illegal.

4.16     That the mass registration and issuance of the Ghana card violates the Applicants’ right to good health as the registration exercise is likely to expose the Applicants to contracting the corona virus.

4.17     That the mass registration and issuance of the Ghana card by the 1st Respondent which is likely to expose the Applicants to the corona virus is a breach of the Applicant’s fundamental human rights to good health guaranteed by the constitution, 1992.

4.18      Further, the Court of Appeal held in the case of Centracor Resources Ltd v. Boohene4 that an injunction order shall not be granted where the applicant has shown that the legal right sought to be protected does not really exist.

4.19     The Applicants have also demonstrated that the legal right they seek to protect really exist.

4.20     It is therefore, our humble submission that this Honourable Court grants the present application as the Applicants have established the existence of a prima facie case and a serious question to be tried.

5. THIS APPLICATION SHOULD BE GRANTED BECAUSE IT WOULD BE JUST, FAIR AND CONVENIENT TO DO SO.

5.1         My Lord, Order 25 Rule 1, sub-rule 1 of the High Court Civil Procedure Rules5

(“Court Rules”) provides that:

“The Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so, and the order may be either unconditionally or upon such terms and conditions as the Court considers just.”

5.2         This means that the Court will grant an application for interlocutory injunction where it appears to the Court that the justice of the case demands for same and it would be convenient for the Court to do so.

5.3         Under the Court Rules6, the Court may only grant an injunction if it appears to the Court to be just and convenient.

5.4         My Lord, in Owusu v. Owusu7, the Supreme Court held that the grant or refusal of an injunction is at the discretion of the trial court but that discretion ought to be exercised judicially.

5.5         The question is; will the court exercise its discretion judicially if it grants the interlocutory order? Yes.

5.6         My Lord, it is our submission that this Honourable Court should exercise its discretion in favour of the Applicants and grant the Interlocutory Order that the Applicants are seeking.

5.7         My Lord, in the case of Sowah v. Bank for Housing and Construction and

Anor8, the Supreme Court held that

“a discretionary right involved a duty to be fair and candid and implied that the discretion should not be exercised in an arbitrary, capricious or biased way or in a manner as to deliberately create injustice.”

5.8         It is the case of the Applicants that the mass registration and issuance of the Ghana card violates the Presidential directives as well as the Applicants’ right to good health.

5.9         My Lord, it is the Applicants’ case that there is a Presidential directive which suspends public gathering of more than 25 people but the mass registration which brings hundreds of people and even sometimes thousands of people together breaches the Presidential directive as well as the exposes the Applicants in contracting the corona virus.

5.10     My Lord, the people participating in the registration for the Ghana card exercise have direct contact with each other which is a major way the

corona virus is spread, hence the registration exercise which brings hundreds of people together with direct contact exposes the Applicants to contracting the corona virus.

5.11     Clearly, my Lord, the Applicants have a right to be protected and have demonstrated that this instant suit is not an abuse of the court process

6. THE APPLICATION SHOULD BE GRANTED BECAUSE ON THE BALANCE OF CONVENIENCE, THE APPLICANT WILL SUFFER MORE HARM IF THE ORDER SOUGHT FOR IS NOT GRANTED.

6.1My Lord, it is the law that where there are doubts as to the adequacy of damages available to either party or to both, the question of balance of convenience arises.9

6.2Lord Diplock in the American Cyanamid case held that in assessing where the balance of convenience lies, a significant factor to consider is whether or not each party could be adequately compensated in damages. In that case, he delivered himself, thus:10

“The extent to which the disadvantages to each party would be incapable of being compensated in damages in the event of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies.”

6.3         Amissah J.A. also held in the Vanderpuye v. Nartey11 that the question for consideration on the balance of convenience resolves itself into whether on balance of convenience, greater harm would be done by the refusal to grant the application than not.

6.4         We rely on the above submissions and the words of Lord Diplock in the

American Cyanamid Case at page 509 that:

“The court must weigh one need against another and determine where the balance of convenience lies’

6.5         My Lord, the Respondents continuous mass registration and issuance of the Ghana card exposes the Applicants to a high risk of contracting the corona virus which might eventually lead to the death of the Applicants and other people.

6.6         My Lord, in the event that the Applicants are successful in the Human Rights suit challenging the legality and constitutionality of the mass registration and issuance of the Ghana card in the Eastern Region, any judgment gotten will be rendered nugatory as the Respondent would have finished with the mass registration and issuance of the Ghana card.

6.7         My Lord, the Applicants would have suffered already contracted the corona virus with its attendant effects on the Applicants health and that of their family and friends and no compensation would be able to put the Applicants back in the position they were before the mass registration and issuance of the Ghana card.

6.8         That the mass registration and issuance of the Ghana card exposes the Applicants to contracting the corona virus which can ultimately lead to the death of the Applicants and put the lives of their family at high risk of also contracting the disease.

6.9         The Respondents on the other hand would not suffer any harm if the application is granted.

6.10     My Lord, the Respondents will simply go ahead with the mass registration and issuance of the Ghana card in the Eastern Region in the unlikely event that the Applicants are unsuccessful in their substantive suit.

6.11     We submit that on the balance of convenience, the Applicants stand to suffer more harm than the Respondents.

7. THE APPLICATION SHOULD BE GRANTED BECAUSE THE RESPONDENTS CANNOT ADEQUATELY COMPENSATE THE APPLICANT IN THE EVENT THAT THE APPLICANT’S ACTION IS SUCCESSFUL AFTER TRIAL.

7.1         My Lord, many cases can be cited for the salutary rule that if damages cannot adequately compensate the Applicant in the event that his action is successful, the Court will grant an interlocutory order.12

7.2         Thus, Lord Diplock in the American Cyanamid v Ethicon13 case stated that the Court should first consider whether if the Plaintiff was to succeed at the trial, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the acts of the Defendant.

7.3         Lord Diplock added that if damages would be an adequate remedy and the Respondents would be in a financial position to pay them, no interlocutory order should normally be granted.

7.4         The Applicant states that he cannot be placed where he formerly stood … and that the injury he will suffer is a material one which cannot not be adequately compensated by damages”.

7.5         My Lord, the Respondents’ continuous registration and issuance of the Ghana card in the Eastern Region violates the Presidential directives as well as the put the Applicants in a high risk of contracting the corona virus.

7.6         The Applicants state that the mass registration and issuance of the Ghana card has a negative effect on the Applicants’ health and lives as the Applicants are likely to contract the corona virus and this negatively affect the Applicants in the event of a successful trial at the Human Rights Court.

7.7         We submit that the Applicants have a legal right to enforce and is more than likely to be successful in this action. But in the unlikely event that the Applicants are unsuccessful in this action, the Respondents will not lose anything and will simply go ahead with the mass registration and issuance of the Ghana card.

7.8         We respectfully urge this Honourable Court to grant the Applicants’ motion because the Applicants have showed that damages would not adequately compensate them should they contract the corona virus as a result of the mass registration and issuance of the Ghana card.

• American Cyanamid v. Ethicon cited supra;
• American Cyanamid v. Ethicon cited supra;

8. CONCLUSION OF THE ARGUMENTS

For the above mentioned reasons, we humbly pray that the application for Interlocutory Injunction be granted.

Respectfully submitted.

DATED IN ACCRA THIS 18TH DAY OF MARCH, 2020.