An Accra Fast Track High Court presided over by Mr Justice Edward Amoako Asante has asked New Patriotic Party (NPP) to redirect its request to stop the final declaration of the Presidential Election Runoff results.
The New Patriotic Party (NPP) and Mr Mac Manu, Chairman of NPP, on Wednesday filed an ex-parte motion to stop the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan and the EC from declaring the final results. They were represented by Mr Atta Akyea and Ms Irene Addo.
But Mr Justice Asante said the case was so important and of national interest and could destabilise the country that it could not be heard ex-parte.
He ruled: "I hereby order the plaintiffs/applicant to serve the writ of summons as well as the motion for the interim injunction on the NDC and Prof. John Evans Atta Mills - that is the interested parties.
"Plaintiff is to file it by 1000 am Friday and the defence is to be filed by Sunday, 4pm.
"The said motion should be fixed for the fifth day of January, 2009."
Before making the order, Mr Samuel Cudjoe, who described himself as a friend of the court, drew the attention of Justice Asante to the fact that Thursday January 1 was a statutory public holiday and, therefore, the court could not sit.
He referred to "Court Order 79" which allowed the Chief Justice to constitute a court to sit on any day, even on vacation but stressed that the Chief Justice had no right to cause the court to sit on a statutory public holiday.
Mr Cudjoe said it was only the President, who could order the court to sit on statutory public holiday, and that he could do so not by word of mouth but by an Executive Instrument.
He said by giving the warrant for the court to sit on a statutory public holiday, the Chief Justice had committed an illegality.
Mr Atta Akyea insisted that Court Order 79 allowed the Chief Justice to empanel a court any day, and stressed the "any day" and added "including vacation".
He said if the argument that it was the President that could order the court to sit on public holiday were to hold, it would amount to subjecting the Judiciary to the Executive and this would be in contravention to the concept of separation of powers.
After listening to the arguments Justice Asante ruled;"I see the concern raised by Mr Cudjoe but I am of the view that today is a public holiday and vacation day as well. Since I have a warrant to go on with the case, I think I have to proceed with the hearing of the matter." He then went on to issue the order.
Mr Tony Lithur, another friend of the court, said the Legislature in its wisdom decided that only the President could authorise the court and indeed any Ghanaian to work on a public holiday and so should it be.
He accused Mr Atta Akyea of breaking the ethics of the legal profession by seeking to come to court with a major national issue on ex-parte. "You wanted to come in through the window but the window has been shut," he said.
After Justice Asante, had given his order, Mr Fui Tsikata, another friend of the court, still drew his attention to the fact that the sitting of the court on a statutory holiday was illegal so he could not give any order.
Mr Atta Akyea came in again to draw the attention of Mr Tsikata to the fact that he filed the motion on Wednesday December 31 2008, which was a working day. "You do not have the basic facts and you are talking," Mr Atta Akyea said.
Tempers flared up at certain stages. Mr Lithur unreservedly apologised to the court for his outburst.