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The Supreme Court in the legal vacation case of HON. KOJO OPPONG NKRUMAH v. THE CHIEF JUSTICE & THE ATTORNEY-GENERAL (No.2) [TLP-SC-2026-67] has lucidly developed the grounds for a Court to reject representation of an independent state body by the Attorney-General and Minister of Justice.
In the unanimous decision of the Court, the Presiding judge, respected for his legal eloquence and judicial delivery, H/L Justice E.Y Kulendi, JSC brilliantly rounded up the law as developed by the Supreme Court on legal representation by the A-G for independent state bodies.
Background
Hon Kojo Oppong Nkrumah filed a writ during the legal vacation of 2026 invoking the Original Jurisdiction of the Supreme Court against sittings of the High Court in 'ORAL' cases during legal vacation. He filed an interlocutory application seeking injunctive orders directed at Justices Achibonga and Charity Asem from siting during the vacation. The Supreme Court constituted by a single Justice, H/L Justice Pwamang JSC dismissed the injunction motion.
Hon. Oppong Nkrumah, a legislator and Legal Practitioner applied to invoke the review jurisdiction of the Supreme Court seeking a reversal. This culminated into the decision in OPPONG v CJ & AG (No. 2). At the hearing of the motion for reversal, the learned Frank Davies raised a preliminary legal objection to the representation of the Chief Justice by the A-G which objection suffered a unanimous dismissal.
With voiced support from H/L Justice Adjei Frimpong, JSC, an agile civil procedure gatekeeper at the Apex Court, Justice Kulendi in refusing the preliminary objection raised against the defense of the Chief Justice by the A-G indicated the free hand of Independent State Institutions to procure representation and prosecute their case as plaintiffs or defendanst in Court through lawyers who are different form the A-G.
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In his usual delightful delivery of legal policy, Justice Kulendi listed grounds upon which an objection against representation by the A-G of an independent State Body shall be upheld. The Court thus cement the legal position that the mere cloak of independence draped around a State Body does not automatically mean the A-G cannot represent such a body. At paragraphs 53, 54 and 55 of his delivery captured on page 20 of the decision, Justice Kulendi held as follows:
"53. In each case therefore, the Court must examine the nature of the dispute, the interests and positions of the parties, and the implications of the proposed representation by the Attorney General for institutional autonomy and constitutionalism.
54. Where those circumstances disclose conflicting interests, a threat to institutional independence, or any indication that the representation may otherwise compromise the autonomy or independence of the institution, the Court must reject it, notwithstanding the institution’s willingness to accept the Attorney General’s services.
55. Where no such concern arises, neither the institution’s independent constitutional status, its separate joinder, nor the fact that the proceedings challenge its administrative conduct suffices to disqualify the Attorney General from representing same. The inquiry therefore turns on the implications of the representation in each particular case, rather than the institutional identity of the proposed client alone."
Injunction motion dismissal affirmed
Upon a well-laid out position of the law and the reasoning of the Court in dismissing the objection raised against Dr. Srem-Sai from representing the Chief Justice, the Court, speaking through Kulendi JSC with concurrence from Adjei-Frimpong, JSC reiterated the grounds for evaluation of a motion for injunction operating against a state body.
Justice Kulendi relied on his view in VINCENT EKOW ASSAFUAH v. ATTORNEY-GENERAL [TLP-SC-2025-37] and showered blessings on the decision of his Senior brother sitting on the ordinary Bench in the same case reported as HON. KOJO OPPONG NKRUMAH v. THE CHIEF JUSTICE & THE ATTORNEY-GENERAL [TLP-SC-2026-23] on our case report.
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