The Apex Court constituted by the learned Chief Justice, Gertrude Torkornoo, Mariama Owusu J.S.C, Asiedu J.S.C., Asare Darko J.S.C. and Adjei-Frimpong J.S.C. have unanimously dismissed the application brought by Oliver Barker-Vormawor for the disclosure of documents which according to Hon. Kan Dapaah have national security implication and thus cannot be disclosed.

The respected Justices of the Supreme Court reached this decision after Counsel for Mr Barker-Vormawor failed to convince the Supreme Court that their jurisdiction under Article 135 of the 1992 Constitution has been properly invoked and that the applicant has identified a specific document which bears national security status and for which reason the Supreme Court ought to order the production of same for the use of the High Court trying the defamation suit brought by the Minister of National Security, Kan Dapaah against Mr. Barker-Vormawor.

Motion vs Writ

The Supreme Court Bench in the voice of the erudite Asiedu J.S.C quizzed Dr. Justice Srem-Sai why his option was to invoke the Article 135 jurisdiction of the Supreme Court for the production of sensitive national security documents by way of an application and not a writ with the Attorney-General joined to the action. Dr. Srem-Sai's answer was to the effect that he tried to make the Attorney-General a party but the High Court refused the request. As if to suggest that his answer was not satisfactory enough, Justice Asiedu who is deemed a tough task master as a Civil Procedure teacher at the Ghana School of Law requested further details on the actual steps taken by the learned Dr. Srem-Sai to make the A-G a party to the application for disclosures.

Dr. Srem-Sai poised to win the Court over to grant his application directed the Court to an application to dismiss the suit of the Minister at the High Court exhibited and attached to his application as evidence of efforts to join the A-G to the suit. Justice Asiedu was highly unconvinced by the evidence of attempts at joining the A-G to the matter as he followed up with the question, "If you, file a motion to dismiss an application is that an application to make the A-G party to the suit? "

Justice Asiedu appeared to have entered the mode of a Civil Procedure teacher as he suggested to Dr. Srem-Sai that Order 23 of the Civil Procedure Rules, C.I 47 provides that if the Minister refuses to answer to a request to admit facts, the requesting party is to assume the truth of the statement. The learned Srem-Sai held a slightly different view from Asiedu J.S.C. as he contended that the refusal to give an answer accompanied with an explanation per the rules on admission does not result in the right of assumption of truth by the requesting party.

What document to be disclosed?

The learned and respected Chief Justice who appeared clear in her mind the applicant, Mr. Barker-Vormawor had failed to identify the exact document with security implications he desired disclosed per his application requested Dr. Srem-Sai the exact document he wanted disclosed. Dr Srem-Sai without fail directed Her Ladyship to a set of questions attached to the application and exhibited as Exhibit "OMV 6". Her Ladyship who from all indications looked unimpressed reacted after a read of the said exhibit. She said that the exhibit had no document named but a set of questions which had no document mentioned neither a description of any document.

Her Ladyship continued that the set of questions which are the basis for the invocation of Article 135 of the 1992 constitution are not documents but are questions which relate to activities or a mental state etc. and therefore that cannot be nor relate to a document.

Gertrude Torkornoo C.J made a little detour albeit related to the fulcrum of the matter she had raised with Dr. Srem-Sai said the application brought by Dr. Srem-Sai was the second time an action of invoking the Article 135 jurisdiction of the Court had come to her as a judge of the Supreme Court Bench. In an exercise of comparison, she said the other matter had specific documents mentioned by the Plaintiffs unlike that presented by Dr. Drem-Sai on behalf of his client, Oliver Barker-Vormawor, who is himself a lawyer.

The Chief Justice who appeared to have the desire for Counsel to appreciate her point clearly read out Article 135 of the 1992 constitution and suggested to Counsel for the Applicant that he said article as read does not relate to discoveries or admissions of fact.

She repeated her question again requesting for the specific document the Applicant desired disclosed. Dr. Srem-Sai finally mentioned one. He said minutes of a National Security decision. In a voice supportive of the view of the President of the Bench, the learned Mariama Owusu requested to know which minutes of which decision Dr. Srem-Sai was referring to as minutes of the National Security without more was not specific enough.

Her Ladyship butted in again and said the panel failed to see any reference to any official document, thus, the reason the Court did not hold the proceedings in camera despite the requirement under Article 135(3) . The President of the Panel requested how the Court can possibly make an order when there are no specific conditions relative to the timelines and the court does not actually know the document needing disclosure per the application and oral submission of Dr. Drem-Sai.

Rights of Information disclosure under the Right to Information Act (RTI)

The learned Adjei Frimpong who keenly watched on as Dr. Srem-Sai attempted to invite the Court to appreciate matters from the viewpoint of the applicant as he said the hurdle of national security nature of documents allows the Minister to wield a shield against an action brought by a party against him but a party is dis-entitled from countering claims of the Minister with his/her claims. Adjei Frimpong quizzed Dr.Srem-Sai if he attempted to utilise rights under the RTI Act. Before Counsel for the Applicant could supply an answer, the President of the Panel who appeared still in eager search for the mentioning of a particular document said there are 17 questions per the application of Mr. Oliver Barker-Vormawor. She thus directed Dr. Srem-Sai to direct the panel again to the question making reference to a specific document which Dr. Srem-Sai again mentioned the minutes of a National Security document pointing out question number 7 per the application as referencing a document needed to be disclosed.

Justice Owusu requested the date of the said document and when the said minutes were made which Counsel could not supply an answer to. Counsel however represented to the Court that it can and will supply a list of specific documents if the opportunity is given. The said representation was made by the learned Dr. Srem-Sai upon being quizzed if a list of documents needing disclosure can be provided if the court allowed such a list to be supplied.

Parallels from the US

Justice Asiedu who is easily made out from members of the Bench with his well trimmed mustache and is always spotted wearing a studious face in a display of his mastery of the Civil procedure rules requested if the applicant at the High Court where the substantive matter lies and is being battled out filed for further and better particulars of the said documents he requests the Supreme Court to exercise its powers under Article 135(1) for.

Justice Owusu following the exchanges suggested to Dr. Srem-Sai that his client was on a fishing expedition for information to support his counter-claim.

Justice Adjei-Frimpong suggested to Dr. Srem-Sai that the said jurisdiction of the Supreme Court being invoked was not a tool for discoveries. He served as the agent during the exchanges who engaged Counsel in the comparative situation in the US in the case of NIxon v US where the President was to make available to the court specific documents. He added, "you do not fish". Dr. Drem-Sai, a constitutional law lecturer at the University of Ghana Faculty of Law reacted and said the said documents requested in the said U.S case was a tranche of audio tapes. Justice Adjei Frimpong responded that the said tranche was identifiable drawing the dissimilarity of both situations further in mind.

Bright Okyere-Adjekum gets his say

The learned Bright Okyere-Adjekum did not break a sweat convincing the panel as his learned friend Dr. Srem-Sai appeared to have. His submissions were pointed. Per his arguments opposing the application of Oliver Barker-Vormawor, the jurisdiction of the Court was not invoked as no reference to a specific document was made by the applicant. He was clear in his submission, as he repeated the view of Owusu JSC that the applicant was on a fishing expedition. He suggested that the heading of the application itself was indicative enough of the motive of the applicant. He added that the applicant was allowed to fish at the High Court in the defamation action brought by the National Security Minister against the applicant. He invited the Supreme Court to prevent the applicant from further fishing at the Apex Court.

Last word to Srem-Sai

Dr. Srem-Sai submitted that the principle of mutuality eloquently espoused in the English case of Chadwick v Chadwick and adopted in the Ghanaian case of Lartey v Bannerman be applied for the Minister-Plaintiff in the defamation action at the High Court. This according to the argumentation of Dr. Srem-Sai will allow the applicant and Defendant at the High Court have the supply of documents the applicant may rely on for his case.

Amicus Curiae

Jonathan Owusu Asare who attempted to address the Court but was refused the opportunity earlier during proceedings was now offered the opportunity of addressing the Court. Mr. Asare who upon being quizzed represented to the Court that he addresses the Court as a friend of the Court. He said Article 135(3) was clear and required in camera hearing of the application brought by the learned Oliver Barker-Vormawor.

He argued that proceedings had gone on without an in camera hearing. Justice Asare Darko reacted to the argument as offered by the learned Asare as he referred Counsel to the suggestion earlier offered by the Chief Justice that the panel opted not to have in camera hearing because no document of a national security nature was identified by the application.

Mr. Asare who differed with the opinion of Justice Asare Darko argued that the reading of article 135(5) gave no such discretion to the Court suggesting his position of in camera hearing should have been the non-negotiable option for the bench. Her Ladyship the Chief Justice who appeared displeased by the view of Counsel in a firm voice and a stern look suggested to Mr. Asare that the panel reads a case file before it sits in court. "All five of us," Her Ladyship added. She added that there was no document and the panel did not find any and thus did not find the need for in camera hearing. Mr. Asare resigned to the view of the Court thereby paving the way for the ruling of the Court.

Ruling

In a predictably terse ruling, the Court held that no reference to an identified document was made per the application of Mr. Oliver Barker-Vormawor. The Court added that C.I 47 provides for interrogatories, discoveries among others which the applicant could take advantage of. The Court in the voice of the Chief Justice added that the application was not supportable by any provision of the constitution and thus would suffer the fate of dismissal. The Court rejected the request of 50,000 cedis cost as prayed for by the reliable Okere-Adjekum and gave no cost for the dismissal of the application.