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31 July 2017

Court reverses Indian businessman’s deportation

An Accra High Court Presided over Justice Kwaku Ackaah Boafo has declared the deportation of an businessman, Ashok Kumar Sivaram, as illegal and an abuse of discretionary power on the part the the Interior Minister, Ambrose Dery.

Mr. Sivaram according to the deportation order, “acquired and submitted a forged Marriage Certificate in Support of his application for Citizenship by Registration as a Ghanaian in 2015.

Base on this, the Minister for the Interior concluded that his continued presence in Ghana was not conducive to the public good and therefore deported him.

The applicants subsequently filed an order for Judicial review in the form of a Certiorari, to quash the decision of the Interior Minister which has already been executed by the Ghana Immigration Service.

The Court

The court first dismissed the application by the AG seeking the dismissal of the application by lawyers of the aggrieved Indian businessman on grounds that the application was not properly before the Court.

The court held that contrary to the contention by the AG that the applicant should have sued the AG instead of the Minister of Interior and Comptroller of the Immigration in person, the court is of the opinion that the application for Judicial review by way of certiorari is properly before the court.

The court further stated that its decision is premised on Article 141 of the 1992 constitution which gives the High Court the power to review decisions of lower courts and other administrative bodies.

The court also held that the Minister for the Interior exceeded his jurisdiction when he issued the deportation order. Additionally, the Indian National’s right to be heard was also breached by the Minister in that he was not given a fair hearing before his deportation was carried out.

Orders

The deportation order of the Minister of Interior issued against Ashok Kumar Sivaram is here by quashed and same is declared null and void.

But in the suit filed on his behalf by his lawyer, Mr Gary Nimako Marfo, Mr Ashok Kumar Sivaram insists his deportation was illegal, unfair and an abuse of office by the officers in charge of the deportation and demands a return.

He has consequently prayed the court to quash the deportation order and for the two respondents ordered to facilitate his return to Ghana to conduct his business as well as be ordered to restore his work and residence permit in addition to paying his legal fees and any other Order(s) as the Court deem fit.

Application by Gary Nimako Marfo

Respectfully my Lord, the Applicant is an Indian National and a 50% Shareholder/Director of a Telecom Company known as Jai Mai Communications Limited. As a matter of fact the Company has only two Directors/Shareholders and the Applicant was the only Resident Director/Shareholder in Ghana.

On 24th January, 2017, the other 50% Shareholder/Director commenced an action in the High Court, Commercial Division to among others pray the Court for the Company to be valued so that he is bought out of the Company by the Applicant.

On 5th May, 2017 the High Court, Commercial Division presided over by His Lordship Justice Kyei Baffour accordingly appointed Messrs Ernst & Young to audit Jai Mai Communications Limited to pave way for the purpose of a buyout.

The Applicant informs Counsel that subsequent to the Orders of the High Court for the valuation of the Company, the other Indian Director/50% Shareholder, Sanchin Nambeear, threatened to ensure his deportation from Ghana.

Subsequent events have shown that the Applicant was arrested in his office on 1st June, 2017 by officers of the Ghana Immigration Service and on the same morning of June 1, 2017, the Applicant was deported from Ghana to India under a Deportation Order signed by the 1st Respondent .

It is interesting to point out that at the time of the said deportation, Counsel for the Applicant was not in the jurisdiction. Upon his return, a petition was submitted to the Respondents for an administrative reversal of the Deportation Order and the Applicant restored to his Resident/Work Permit. It appears without a doubt that the Respondents are adamant to reverse the decision hence the instant action.

The decision of the 1st Respondent which is the subject matter of this application is captured in the followings words;

“DEPORTATION ORDER – ASHOK KUMAR SIVARAM

WHEREAS Ashok Kumar Sivaram acquired and submitted a forged Marriage Certificate in Support of his application for Citizenship by Registration as a Ghanaian in 2015.

WHEREAS this act is fraudulent and criminal.

WHEREAS in the opinion of the Minister for the Interior, the continued presence in Ghana of Ashok Kumar Sivaram is not conducive to the public good.

AND THEREFORE in exercise of the power conferred on the Minister for the Interior by Section 36(1) of the Immigration Act, 2000 (Act 573), this order is made this 15th May, 2017.

ASHOK KUMAR SIVARAM is hereby ordered to leave Ghana by Friday 19th May, 2017 and thereafter remain out of Ghana.

DATED AT ACCRA 15TH DAY OF MAY, 2017.

According to counsel for the Applicant, on the backdrop of the orders, he was deported from Ghana on the said morning of 1st June 2017 without any notice to him or being offered the opportunity to be heard on the allegation of forgery leveled against him.

“The Respondents carried out this operation without regard to the presence of the Applicant’s business interest in Ghana that employs one hundred and sixty (160) people out of which one hundred and thirty (130) are Ghanaians and thirty (30) are Expatriates,” it said.

Again, “no regard or consideration was given by the Respondents inspite of the pendency of the case in the High Court, Commercial Division and the Order for a valuation process to be undertaken by Ernst & Young to enable the Court proceed with the matter pending before it.”

It said the Applicant was arrested as if he was a common criminal on 1st June, 2017 and immediately deported from Ghana without regard to the Orders of the High Court made on 5th May, 2017 for the valuation of Jai Mai Communications Limited.

Counsel is therefore arguing that

9. That the determination of forgery is a matter under the exclusive preserve of the Court and not the 1st Respondent.

10. That the 1st Respondent exceeded his jurisdiction when he made a judicial determination that a marriage certificate is fraudulent and criminal when he had no jurisdiction to determine same and thereby exceeded his jurisdiction.

11. That fraud can only be established by a Court of Law after evidence of same has been led and proof thereof established beyond reasonable doubt.

12. That the conclusion by the 1st Respondent that the “continued presence of Ashok Kumar Sivaram was not conducive to the public good” was not backed by any evidential proof and thereby amounted to gross abuse of the exercise of discretionary power vested in the 1st Respondent.

13. That the Deportation Order was not backed by any Executive Instrument and thereby the said Deportation was unlawful.

14. That the Respondents’ decision to deport the Applicant was not fair and that as administrative officials, they were enjoined by the 1992 Constitution to act fairly, reasonably and comply with the requirements imposed on them by law.

15. That the 1st Respondent in exercising his discretion to deport the Applicant ought to have been fair and candid in the exercise of that power.

16. That this Honourable Court has the supervisory jurisdiction to ensure that administrative officials exercised their powers legally, that is within the confines of the law.

17. That if a Minister and for that matter the 1st Respondent exceeds his jurisdiction, this Court has the power to quash by certiorari his decision and declare it to be legally invalid.

18. That the 1st Respondent does not have the jurisdiction to determine fraud and having done so as forming the basis of the Deportation Order, he had acted in excess of his jurisdiction and that the said decision is amenable to be quashed by certiorari.

19. That the Respondents did not afford the Applicant any hearing prior to the issuance of the Deportation Order thereby breaching the Applicant’s right to audi alteram partem.

20. That the Applicant did not have any criminal record in Ghana prior to his Deportation.

21. That no Court in Ghana has convicted the Applicant of having submitted a fraudulent Marriage Certificate in support of his application for registration as a Ghanaian.

22. That when the Immigration authorities raised issues about the Applicant’s Marriage Certificate, I travelled to Kumasi Metropolitan Assembly (KMA) in 2015 with him.

23. That the Applicant pointed the two women all workers of KMA who procured the Marriage Certificate for the Applicant in the presence of the Registrar of Marriages and the Head of Legal of KMA.

24. That these two ladies admitted procuring the Marriage Certificate for the Applicant in front of the Registrar of Marriages and the Head of Legal of KMA.

25. That it became manifestly clear that the Applicant was not the author of the said marriage certificate but only a victim.

26. That the Applicant withdrew the Application for registration as a Ghanaian on 1st November, 2016. Attached and marked as Exhibit G3 is a copy of the said letter.

27. That the Applicant was not in Ghana on the basis of this alleged fraudulent Marriage Certificate.

28. That the Applicant was in Ghana on a Work/Residence Permit conducting his business peacefully. Attached herewith and marked as Exhibit G4 Series are copies of the Applicant’s passport and the Work/Residence Permit.

29. That the quick and sudden deportation of the Applicant after the Honourable Court made the Order for valuation of Jai Mai Communications Limited leaves much to be desired.

30. That the absence of the Applicant in the jurisdiction has seen the sudden entry of the other Director/50% Shareholder, to file a purported Board of Directors Resolution to the Bankers of Jai Mai Communications Limited in his bid to make himself the Sole Signatory of the Bank Accounts of the Company. Attached herewith and marked as Exhibit G5 is a copy of the said purported Board Resolution.

31. That this purported Board of Directors Resolution was done without the knowledge or consent of the Applicant who is a Director/50% Shareholder of Jai Mai Communications Limited. Attached herewith and marked as Exhibit G6 Series are emails sent to Prudential Bank Limited to that effect.

32. That it appears clearly, that the entire deportation of the Applicant was intended to facilitate the takeover of the Company by the other non-resident Director/50% Shareholder.

33. That in the circumstances, it is demonstrably clear that the decision to deport the Applicant from the jurisdiction by the Respondents was not bonafide and same ought to be quashed by certiorari.

34. That the Company employs 160 people (130 Ghanaians and 30 Expatriates) and therefore in the interest of justice, fairness and also staff of the Company, the Applicant ought to be made to return to Ghana to save the business from collapse.

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