The National Communication Officer of the main opposition National Democratic Congress (NDC), Mr Sammy Gyamfi, has sued the Attorney General and Inspector-General of Police (IGP) and prayed the court for an interlocutory injunction to be placed on the enforcement of a court order secured by the Criminal Investigations Department of the Ghana Police Service, to have his mobile phone and Facebook account records searched in connection with an alleged cybercrime.
In his application, Mr Gyamfi said on Tuesday, 17 December 2019, “I received a phone call from an officer by name ACP Herbert Yankson, Head of Cyber Unit of the Criminal Investigation Department (CID) of the Ghana Police Service that he has been authorised by the 2nd Respondent (IGP) to invite me based on a complaint received from the Jubilee House without more”, adding: “The 2nd Respondent’s authorised officer did not state any named or identifiable complainant except to say Jubilee House”.
Also, he said: “My attention has been drawn to an ex parte application by the 2nd Respondent’s authorised officer to the District Court for the records of my phone without indicating what specifically the 2nd Respondent is looking for and without any evidence that I have in fact committed or about to commit the alleged crime of forgery and spreading of false information to cause fear and panic”.
That application, he said, was filed at the Kaneshie District Court.
Additionally, he said: “My attention has, again, been drawn to an ex parte application by the 2nd Respondent’s authorised officer, to the same District Court for an order directed at Facebook for the production of information on my Facebook account with User Name SAMMY GYAMFI with User ID URL WWW.FACEBOOK.COM/SAMUEL.GYAMFI.94064 without indicating what specifically the 2nd Respondent is looking for, and without any evidence that I have, in fact, committed or about to commit the alleged crime of forgery and spreading of false information to cause public fear and panic”.
Mr Gyamfi, through his lawyer, argues that “the 2nd Respondent has not provided any justifiable legal basis whatsoever to request for my phone records” and also “has not provided any justifiable legal basis whatsoever to request for my Facebook information”.
Accordingly, he said: “The grounds upon which I make this instant application for the enforcement of my fundamental human rights are as follows: That the ex parte application by the 2nd Respondent to have access to the Applicant’s phone records which constitutes a threat to the Applicant’s right to privacy ought to have been on notice in order to enable him to defend his constitutional right to privacy under article18(2) of the 1992 Constitution of Ghana; that the ex parte application by the 2nd Respondent to have access to the Applicant’s Facebook information which constitutes a threat to the Applicant’s right to privacy ought to have been on notice in order to enable him to defend his constitutional right to privacy under article18(2) of the 1992 Constitution of Ghana; that the ex parte application which was granted to the 2nd Respondent to enable the 2nd Respondent to have access to the phone records of the Applicant without the 2nd Respondent showing the document that has been forged was illegal and unlawful”.
Mr Gyamfi is, thus, seeking the following reliefs:
“An order restraining the Inspector-General of Police from proceeding to examine the phone records of the Applicant pending the determination of the Application; an order restraining the 1st Respondent, 2nd Respondent, the Criminal Investigations Department of the Ghana Police Service and/or their agents, officers or assigns from proceeding with efforts to access information on my Facebook account with User Name SAMMY GYAMFI with User ID URL WWW.FACEBOOK.COM/SAMUEL.GYAMFI. 94064; an order restraining Facebook from releasing or sharing information on my Facebook account with User Name h GMg GYAMFI with User ID URL WWW.FACEBOOK.COM/SAMUEL.GYAMFI. 94064 with the 1st Respondent, 2nd Respondent, the Criminal Investigations Department of the Ghana Police Service and or their agents, officers and assigns; and a declaration that the ex parte application for the phone records of the Applicant which same was granted instead of it being on notice is null and void and of no legal effect”.
Read his full writ below:
THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
(HUMAN RIGHTS DIVISION)
ACCRA- A.D. 2019
SUIT NO:
IN THE MATTER OF ARTICLES 18(2) AND 33 OF THE 1992 CONSTITUTION OF THE REPUBLIC OF GHANA
AND
IN THE MATTER OF AN APPLICATION BY SAMUEL GYAMFI FOR THE ENFORCEMENT OF HIS FUNDAMENTAL HUMAN RIGHTS
SAMUEL GYAMFI APPLICANT
ACCRA)
VRS.
THE ATTORNEY-GENERAL RESPONDENTS
Ministries, Accra
INSPECTOR GENERAL OF POLICE
Accra
AFFIDAVIT OF SAMUEL GYAMFI IN SUPPORT OF ORDER FOR INTERLOCUTORY INJUNCTION
I, SAMUEL GYAMFI, in the Greater Accra Region of the Republic of Ghana make oath and say as follows:
That I am the Deponent herein.
That I am the Applicant in the above instituted suit.
That I am a private legal practitioner and the National Communication Officer of the National Democratic Congress (NDC).
That I depose to this affidavit for and on my own behalf in support of the Application before this Court praying the Court for orders enforcing my fundamental human rights.
That at the hearing of this application, Counsel shall seek the leave of this Honorable Court to refer to all processes filed in connection with the instant Application as if all such processes were incorporated in my present affidavit and deposed to.
That the 1st Respondent is the principal legal advisor to the Government of Ghana and the proper person to sue in matters involving official conduct of public officers.
That the 2nd Respondent is the head of the Police Service in Ghana.
That on Tuesday the 17th day of December 2019, I received a phone call from an officer by name ACP Herbert Yankson, Head of Cyber Unit of the Criminal Investigation Department (CID) of the Ghana Police Service that he has been authorised by the 2nd Respondent to invite me based on a complaint received from the Jubilee House without more.
That the 2nd Respondent’s authorised officer did not state any named or identifiable complainant except to say Jubilee House.
That my attention has been drawn to an ex parte application by the 2nd Respondent’s authorised officer to the District Court for the records of my phone without indicating what specifically the 2nd Respondent is looking for and without any evidence that I have in fact committed or about to commit the alleged crime of forgery and spreading of false information to cause fear and panic.
That the 2nd Respondent filed this application at the Kaneshie District Court. (Motion Ex parte attached and marked as exhibit SG1)
That my attention has again been drawn to an ex parte application by the 2nd Respondent’s authorised officer, to the same District Court for an order directed at Facebook for the production of information on my Facebook account with User Name SAMMY GYAMFI with User ID URL WWW.FACEBOOK.COM/SAMUEL.GYAMFI.94064 without indicating what specifically the 2nd Respondent is looking for, and without any evidence that I have, in fact, committed or about to commit the alleged crime of forgery and spreading of false information to cause public fear and panic.
That the 2nd Respondent filed this application at the Kaneshie District Court. (Motion Ex parte attached and marked as exhibit SG2)
That I am advised by Counsel and verily believe same to be true that the Respondent’s application to interfere with my right to privacy ought to be on notice and not ex parte as the Respondent failed or neglected to demonstrate any reasonable or probable cause that I have committed or about to commit the alleged crime of forgery and spreading of false information.
That I am advised by Counsel and verily believe same to be true that the 2nd Respondent in moving the application for the phone records failed and or neglected to show any probable cause that the Applicant has or is about to commit the alleged crime to justify the interference with the Applicant’s right to privacy and the protection of same.
That I am advised by Counsel and verily believe same to be true that the 2nd Respondent in moving the application for the Applicant’s Facebook information failed and or neglected to show any probable cause that the Applicant has or is about to commit the alleged crime to justify the interference with the Applicant’s right to privacy and the protection of same.
That the application was granted and the 2nd Respondent has evinced the clearest indication to access my phone records to fish for information in clear contravention of my constitutional right to privacy under article 18(2) of the 1992 Constitution of Ghana.
That I am further advised and believe same to be true that the two purported motions ex parte and the orders made thereon at the instance of the Respondents herein were made without jurisdiction, null and void and with no legal effect, the same having been made by the district court in clear violation of chapter 5, in particular article 33 of the Constitution, 1992 and a binding judgment of a superior Court.
That I am advised by Counsel and verily believe same to be true that the 2nd Respondent has engaged and is engaging in manifest fishing expedition and same is unlawful interference with my right to privacy recognised under article 18(2) of the 1992 Constitution of Ghana.
That I repeat the paragraphs above and further say that there is no known person who has lodged any criminal complaint in relation to the offence of forgery.
That the 2nd Respondent has failed and or neglected to show the said item and or document that the Applicant is alleged to have forged to warrant the release of phone records of the Applicant.
That the 2nd Respondent has not provided any justifiable legal basis whatsoever to request for my phone records.
That the 2nd Respondent has not provided any justifiable legal basis whatsoever to request for my Facebook information.
That accordingly, the grounds upon which I make this instant application for the enforcement of my fundamental human rights are as follows:
That the ex parte application by the 2nd Respondent to have access to the Applicant’s phone records which constitutes a threat to the Applicant’s right to privacy ought to have been on notice in order to enable him to defend his constitutional right to privacy under article18(2) of the 1992 Constitution of Ghana.
That the ex parte application by the 2nd Respondent to have access to the Applicant’s Facebook information which constitutes a threat to the Applicant’s right to privacy ought to have been on notice in order to enable him to defend his constitutional right to privacy under article18(2) of the 1992 Constitution of Ghana.
That the ex parte application which was granted to the 2nd Respondent to enable the 2nd Respondent to have access to the phone records of the Applicant without the 2nd Respondent showing the document that has been forged was illegal and unlawful.
That the ex parte application which was granted to the 2nd Respondent to enable the 2nd Respondent to have access to the Facebook information of the Applicant without the 2nd Respondent showing the document that has been forged was illegal and unlawful.
That in moving the ex parte application for the phone records, the 2nd Respondent failed and or neglected, to show any probable cause that the Applicant has or is about to commit the alleged crime to justify the revocation of the Applicant’s right to privacy and the protection of same.
That in moving the ex parte application to have access to the Applicant’s Facebook information, the 2nd Respondent failed and or neglected , to show any probable cause that the Applicant has or is about to commit the alleged crime to justify the revocation of the Applicant’s right to privacy and the protection of same.
That the District Court lacked jurisdiction and erred in law when it purported to make the two orders aforesaid upon the applications by the Respondents herein, which orders sought to derogate from fundamental human rights and freedoms enshrined in chapter 5 of the Constitution, 1992 and without regard for binding judicial precedent from the Superior Court.
That on the basis of the grounds deposed to at paragraph 19 above, I pray this Court for the following reliefs;
An order restraining the Inspector General of Police from proceeding to examine the phone records of the Applicant pending the determination of the Application.
An order restraining the 1st Respondent, 2nd Respondent, the Criminal Investigations Department of the Ghana Police Service and/or their agents, officers or assigns from proceeding with efforts to access information on my Facebook account with User Name SAMMY GYAMFI with User ID URL WWW.FACEBOOK.COM/SAMUEL.GYAMFI. 94064.
An order restraining Facebook from releasing or sharing information on my Facebook account with User Name h GMg GYAMFI with User ID URL WWW.FACEBOOK.COM/SAMUEL.GYAMFI. 94064 with the 1st Respondent, 2nd Respondent, the Criminal Investigations Department of the Ghana Police Service and or their agents, officers and assigns.
A declaration that the ex parte application for the phone records of the Applicant which same was granted instead of it being on notice is null and void and of no legal effect.
A declaration that the ex parte application for the Facebook information of the Applicant which same was granted instead of it being on notice is null and void and of no legal effect.
A declaration that the 2nd Respondent failed to establish any legal basis to have access to the Applicant’s phone records when it failed to show the document that has been forged and any evidence of the said forgery by the Applicant at the time of the moving of the application at the District Court.
A declaration that the 2nd Respondent failed to establish any legal basis to have access to the Applicant’s Facebook information when it failed to show the document that has been forged and any evidence of the said forgery by the Applicant at the time of the moving of the application at the District Court.
A declaration that the 2nd Respondent failed to establish any legal basis to have access to the Applicant’s Facebook information when it failed to show any probable cause that the Applicant has or is about to commit the alleged crime of forgery and spreading of false information to cause fear and panic to justify the revocation of the Applicant’s right to privacy and the protection of same.
A declaration that the 2nd Respondent failed to establish any legal basis to have access to the Applicant’s phone records when it failed to show any probable cause that the Applicant has or is about to commit the alleged crime to justify the revocation of the Applicant’s right to privacy and the protection of same.
An order of certiorari to bring before this court the entire proceedings before the district courts in respect of the two ex parte motions and the orders there in titled ‘In the Matter of The Republic vrs. Sammy Gyamfi and In the Matter of Application For the Retention and Examination of Electronic Devices Pursuant to Section 88 of the Criminal And Other Offences (Procedure) Act, 1960 (Act 30) and the Electronic Transaction Act, (Act 772/2008) AND In The Matter of the Republic VRS. Sammy Gyamfi with User ID URL WWW.FACEBOOK.COM/SAMUEL GYAMFI 94064 AND In The Matter of Application for Disclosure of Electronic Information Pursuant to the Electronic Transaction Act (Act 772/2008 Section 102 (2) A to be quashed as having been made without jurisdiction.
An order of prohibition and/or injunction directed at and restraining the Respondents jointly or severally from taking any steps aimed at enforcing or in furtherance of the said orders from the District Courts.
That unless this Court intervenes, the 2nd Respondent will unlawfully proceed to examine the phone records and Facebook information of the Applicant in flagrant breach of his constitutional right to privacy under article 18(2) of the 1992 Constitution of Ghana.
WHEREFORE I depose to this affidavit in good faith.
…………………………
DEPONENT
SWORN TO IN ACCRA)
THIS ……. DAY OF)
DECEMBER, 2019)
BEFORE ME
COMMISSIONER OF OATHS
IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT OF JUSTICE
(HUMAN RIGHTS DIVISION)
ACCRA- A.D. 2019
SUIT NO:
IN THE MATTER OF ARTICLES 18(2) AND 33 OF THE 1992 CONSTITUTION OF THE REPUBLIC OF GHANA
AND
IN THE MATTER OF AN APPLICATION BY SAMUEL GYAMFI FOR THE ENFORCEMENT OF HIS FUNDAMENTAL HUMAN RIGHTS
SAMUEL GYAMFI APPLICANT
VRS.
THE ATTORNEY-GENERAL RESPONDENTS
Ministries, Accra
INSPECTOR GENERAL OF POLICE
Accra
_________________________
STATEMENT OF CASE FILED FOR AND ON BEHALF OF APPLICANT
__________________
FACTS
The facts giving rise to the instant application are that the Republic or Respondents on 19th December 2019 by two ex parte motions secured 1)an order of the District Court, Kaneshie, to retain and search the electronic devices of the Applicant and 2) a further order directed at Facebook to produce information from the Facebook account of the Applicant.
Respondents’ authorised officer requested for the records of the Applicant’s electronic devices phone without any probable cause that the Applicant has committed or is about to commit any offence.
THE POSITION OF THE LAW
My Lord, generally, the grant or refusal of an order of interlocutory injunction is at the discretion of the trial court, but that discretion has to be exercised judiciously. In the exercise of such discretion the trial judge ought to take into consideration the pleadings and affidavit evidence before it. See the case of Agyei v Similao [2012] 1 SCGLR 127 @ 129, Pountney v. Doegah [1987-88] 1 GLR 111 at 116 see also Owusu V. Owusu-Ansah [2007-08] SCGLR 870.
In the case of 18TH July v. Yehans International [2012] 1 SCGLR 167, the Supreme Court outlined the principles to be considered in granting an interlocutory injunction as follows at page 172:
Consider whether the case of an applicant was not frivolous and the applicant had demonstrated that he had a legal or equitable right which the court should protect.
Whether the status quo was to maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter.
Whether on the balance of convenience the refusal of the application would cause serious hardship to the applicant.
(See also Welford Quarcoo v Attorney General [2012] 1 SCGLR 259, Vanderpuye v Nartey [1977] 1GLR 428, Odonkor & ORS V. Amartei [1987-88] 1GLR 578 SC).
In 18TH July v. Yehans International [2012] 1 SCGLR 167 the Supreme Court held that in granting the injunction the trial court is to determine if ‘the case of an applicant is not frivolous and had demonstrated that he had legal or equitable right which a court should protect. The court is also enjoined to ensure that the status quo is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter.’
Also, the court is to consider the balance of convenience and to refuse the application if the grant would cause serious hardships to the other party. See 18TH July v. Yehans International [2012] SCGLR 167, Owusu V. Owusu-Ansah [2007-08] SCGLR 870.
In Welford Quarcoo v Attorney General [2012] 1 SCGLR 259, Supreme Court per Date-Bah JSC held that the balance of convenience, ‘means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief.
APPLICANT SHOWS ITS ENTITLEMENT TO THE INJUNCTIVE RELIEF.
My Lord, article 18 of the Constitution guarantees the right to privacy which can only be interfered with in a accordance with law.Exhibits SG 1 and 2 do not provide any legal basis nor does the law provide any basis for the grant of the order of the District Court for the Respondents to seize and retain the electronic devices of the Applicant.
Furthermore, section 88 of Act 30 pursuant to which the orders of the District Court were made does not support the orders made by the Court.
My Lord, since the right to privacy of the Applicant stands to be irreparably harmed on the basis of allegations that do not provide any legal basis for arrest or investigation and pose a serious risk to the right to privacy of the Applicant we pray the Court to grant the instant application.
DATED AT AYINE AND FELLI LAW OFFICES, H/NO. C8 08/29, 1ST CLOSE LILY STREET, EAST LEGON, ACCRA, THIS 20TH DAY OF DECEMBER, 2019
……………………………………..
GODWIN KUDZO TAMEKLO
LIN NO: GAR 20789/19
LAWYER FOR APPLICANT
TIN P0009458298
THE REGISTRAR
HIGH COURT
(HUMAN RIGHTS DIVISION)
ACCRA
AND FOR SERVICE ON THE ATTORNEY GENERAL, MINISTRIES, ACCRA, INSPECTOR GENERAL OF POLICE, ACCRA
source: Class FM Online
