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RULING

JOYCE BAMFORD-ADDO, J.S.C.:

This is an application the Applicant asking for a review of the decision of this Court dated 13th February 1996 which held that the court has no jurisdiction to hear the case brought before it in the above mentioned case. Since jurisdiction is a fundamental issue, the absence of which would render any decision of a Court null and void, it is of utmost importance for a Court to ensure that in any case brought before it, it has the requisite jurisdiction to hear and determine that case. Where there is lack of jurisdiction a Court ought to decline jurisdiction. In the same manner where a court has jurisdiction in any case is should accept jurisdiction and adjudicate on it. It would be wrong in a such case to decline jurisdiction, as this would result in injustice to an applicant and would constitute exceptional circumstance for which a review would be granted under Article 133 of the 1992 Constitution.

The Plaintiff/Applicant by a writ and accompanying statement of case invoked the original jurisdiction of this Court for the following reliefs, namely:

A declaration that:

"1(i) Section 5(1) and 12(3) of the Passport and Travel Certificate Decree 1967 NLCD 155 which seek to give the Minister of Foreign Affairs ("Member Responsible") wide discretionary powers in the grant, refusal, revocation, cancellation or impounding of passports and travel certificates, Section 5(2)a, (b)(ii)(iii) which provides the Minister of Foreign Affairs ("Member Responsible") shall not issue a passport to specified categories of persons, and section 17(e) which seeks to give the Minister of Foreign Affairs absolute discretion in refusing to grant travel certificates are inconsistent with, and a contravention of the letter and spirit of the Constitution and especially Article 11 (1), (2) and (3) and 21(1)(g). Accordingly the said Sections of NLCD 155 are null and void and unenforceable.

(ii) As a citizen of Ghana by birth, the Plaintiff has a constitutional right to enter and leave Ghana and a fortiori to a passport to enable him exercise and enjoy that right.

(2) An order directing the Minister of Foreign Affairs and Director of BNI to return to the Plaintiff his old passport to enable the Plaintiff to apply for a new Passport."

The Defendant admit that the Plaintiff is a citizen of Ghana and conceded that the right to a Passport was inherent in the freedom of movement guranteed under Article 21(1)(g) of the Constitution. Before the hearing at the Supreme Court a Preliminary objection to jurisdiction was raised by the Defendants on the ground that the Plaintiffs case was not a proper case in which the original jurisdiction of the Court under Article 130(1)(a) of the Constitution could be invoked. The Defendants submitted that the Plaintiff had clothed a Human Rights enforcement issue as a request for interpretation of the Constitution and that the proper forum for such an action was the High Court as provided under Article 33 of the Constitution: namely

"33(1) Where a person alleges that a provision of this Constitution on the fundamental Human Rights and Freedoms has been or is being or is likely to be contravened in relation to him then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress."

The issue for decision is whether the Plaintiffs claim concerns a question of interpretation which would enable him to invoke the original exclusive jurisdiction of the Supreme Court, or whether he is in actual fact seeking only an enforcement of his fundamental rights, in which case the proper forum would be the High Court. The endorsement on the Plaintiffs Writ of Summons sought an interpretation of various clauses of NLCD 155 in an attempt to render those clauses inconsistent with the Constitution namely Article 21 (1)(g) and therefore to have them declared null and void and unenforceable.

Article 21(1)(g) which deals with general fundamental freedoms and provides as follows:

"Article 21(1) All persons shall have the right to (g) freedom of movement which means the right to move freely in Ghana, the right to leave and enter Ghana, and immunity from expulsion from Ghana."

I do not find any difficulty in understanding the import of these words, which in my opinion does not need to be interpreted by the Court at all. The Plaintiff in his writ and endorsement 1(ii) that "he had a constitutional right to leave Ghana and a fortiori to a passport to enable him to exercise and enjoy that right."

The Defendants on their part conceded this fact that the right to a passport is inherent in the freedom of movement guaranteed under Article 21(1)(g) of the Constitution.

If the two parties both understand the words in Article 21(g), and NLCD 155 and are in agreement as to their meaning, wherein lies the issue of interpretation which would clothe the Supreme Court with jurisdiction under Article 130(1)(a) to enable it to assume jurisdiction to interpret provisions of the Constitution vis-a-vis the challenged clauses of NLCD 155?  In the circumstances of this case it is clear that the question of interpretation is not called for. The second relief of Plaintiff which support this view as stated earlier is a request for an order that the plaintiff is entitled to a passport, even though he had not applied for one nor been refused one. It is evident that he is in effect seeking an enforcement of his fundamental human right of freedom of movement, hence his request for a passport. To obtain this relief the applicant should have applied to the High Court for enforcement of his human rights rather he clothed his claim in interpretative garb to enable him invoke the original jurisdiction of this court.

In a similar case of Nana Yiadom I vs. Nana Amaniapong (1981) GLR 3 at p.8 Apaloo C.J. giving the ruling of the Court delivered himself thus:

"The plain truth of the matter is that the original jurisdiction of this Court has been wrongly invoked. We will accordingly acceded to the challenge to our jurisdiction. Perhaps we should point out, at least for the benefit of the profession that where the issue sought to be decided is clear and is not resoluable by interpretation we will firmly resist any invitation to pronounce on the meaning of Constitutional provisions. It would we think be a waste of mental effort and be thoroughly pointless"

See also the case of Ghana Bar Association vs. Attorney-General Writ No.8/95 dated 5th December 1995 reported in G.S.C. J. 1995 Vol. 2. Where in that case this same issue of jurisdiction was raised as a preliminary issue. I stated in that case inter alia that:

"In deciding the issue of jurisdiction, matters to take into consideration included the statute which invests jurisdiction, as well as the true nature of the claim having regard to the pleadings, issues, and reliefs sought, or the actual effect of such reliefs, regardless of the words used or the manner in which the claim and reliefs are couched"

Considering the reliefs sought in this case and having regard to the surrounding circumstances I find that this is not a case which calls for the interpretation of the Constitution so as to invest the Supreme Court with the appropriate jurisdiction under Article 130(1)(a) but rather a case of enforcement of human rights which should have been instituted at the High Court. In consequence I hold that the majority decision of the Supreme Court dated 13/2/96 on the issue of lack of jurisdiction was correctly decided.

Plaintiff/Applicant is here requesting for a review of that decision and the only ground for a review has been stated and restated in this Court, as contained in The Practice Direction for Review in (1987-88) GLRD 80 namely:

"The only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review."

Various decisions of this Court have identified circumstances which could be said to be exceptional, some of which are, Bissi vs. Kwakye SC (1987-88) GLRD. 84 Nasali vs. Addy S.C. (1987-88) GLRD 82 Mechanical Llyod Assembly Plant Ltd. vs. Nartey S.C. (1987-88) GLRD. 105 Abadio vs. Mensah (1989-90) GLRD. 60 and Leslie Clifford Tetteh Quarcoo and Rev. J. Ofei Akrofi vs. Nana Kwasi Afranie II S.C. Civil Motion No.2/92 dated 20th October 1992.

Considering and applying these decided cases to the facts of the case before us, and the fact that I have earlier held the Supreme Court's decision to be correct, I do not find in this case any exceptional circumstances, which in the interest of justice calls for a review of the decision of the Supreme Court that it has no jurisdiction, to entertain this case. It would have been otherwise if the Supreme Court's decision on jurisdiction had been wrongly decided.

For the above reasons the application for a review fails and must be dismissed.

HAYFRON-BENJAMIN, J.S.C.:

On the 22nd April 1998 I cast my vote in favour of reviewing the judgment of the Court in this self same case dated the 13th February 1996. I indicated that owing to the vagaries of our Supreme Court secretariat I would file my reasons for so voting. As my learned brethren and sisters pressed to render their opinions I was thus privileged to listen to them. It seemed to me that they were re-iterating the former views which the majority had taken in this case on the 13th February 1996. If I understood the view of the majority correctly then, it appeared the majority had refused, to reach the merits at that time because in their view the issue of the "Fundamental Human Rights" was by our Constitution of 1992 "exclusively" committed to the jurisdiction of the High Court. Of course the expression "exclusively" does not occur in that context in the relevant Article of the Constitution which spells out the jurisdiction of the Supreme Court. Article 130(1) states:

"Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in Article 33 of the Constitution the Supreme Court shall have Exclusive original jurisdiction...".

In my respectful opinion the expression "subject to" is not coterminous with "exclusively". The English and foreign legal learning on the expression "subject to" would seem to suggest a proviso or a condition without which in this context a jurisdiction may not be assumed. But this is not so. As I said I listened intently to the opinions of my learned and respected sister's and brethren and having checked his draft opinion I find myself in total agreement with my learned and respected brother ATUGUBA, J.S.C. in his excellent disquisition on the concurrent jurisdiction of this Court on issues affecting the FUNDAMENTAL HUMAN RIGHTS. In my respectful opinion therefore the expression "subject to" within the context of this Constitution means that if there is no other provision in the Constitution by which a remedy may be obtained then the High Court will have specific jurisdiction to grant redress in matters involved in breaches of the provisions of chapter 5 of the Constitution. The power thus conferred by Article 130 is complementary to and not an ouster of any jurisdiction conferred on this Court by the Constitution. Nor would Article 2 of the Constitution otherwise make sense. This Article provides a blanket cover for litigating

"(a) an(y) enactment or anything contained in or done under the authority of that or any other enactment or

(b) any act or omission of any person"

"which is inconsistent with or in contravention of a provision of this Constitution." (emphasis mine). Of course Article 21(1)(g) is a provision of the Constitution and in AMUA-SEKYI, J.S.C.'s view (which I share) "a sine qua non for every person who leaves Ghana to travel abroad or who having left Ghana desires to return, it goes without saying that if the Plaintiff has an unrestricted right of entry into the country then he is entitled to be issued with the necessary document or papers to enable him to return."

Clearly then "any act of any person with respect to the provision of any "an enactment......" "which is inconsistent with or is in contravention of a provision of this Constitution" is entitled to "bring an action in the Supreme Court for Declaration to that effect." I do not see how such a clear provision of the Constitution granting such exclusive jurisdiction to this Court may be abridged or ousted even by implication by the proviso to Article 130.

In my opinion the Applicants principal relief in his case under review sought for a declaration that sections 5(1), (2)(a)(ii)(iii), 12(3) and 17(e) of the Passports and Travel Certificate Decree 1979 (N.L.C.D.156) inconsistent with Article 21(1)(g) of the Constitution. In my respectful opinion the duty of this Court was clear - to enquire into the nature and object of the plaint and to determine whether the provisions of N.R.C.D. 155 were inconsistent with those parts of Article 21 of the Constitution referred to in his writ of summons. This Court was then entitled to conclude whether or not those sections in the Decree were inconsistent with or in contravention of the Constitution. The issue of FUNDAMENTAL HUMAN RIGHTS,  if at all, was collateral to the main presentation. Regrettably my learned and respected brethren in the majority took stances which quoting from the opinion of Justice Brennan in the American case of HAIG V. AGEE 454 U.S. 280 (1981) the Learned Supreme Court judge said "(the majority's statements) are extreme over simplifications of Constitutional doctrine or mistaken views of the law and facts of the case."

Now that the matter comes up for review I can reiterate my agreement with the opinion expressed by Mr. Justice Brennan quoted above. At the risk of appearing to criticize my learned and respect brethren there are more reasons than their numbers for refusing to reach the merits of the case. It is trite learning that review is not an appeal. But if I heard them correctly in conference their view is that this case was a human right issue presented in the form of a request for interpretation and enforcement of the Constitution. In their opinion this Court should have declined jurisdiction since by Article 33 only the High Court had jurisdiction and could be approached by any method known to the High Court. It was even suggested that it was a common law principle. I will not belabour this point.

But there was the Privy Council case of JAUNDOO v. A.G. OF GUYANA 1971 A.C. 972 which appears to shed some light on the real basics, if they cared, of the opinion of the majority of my learned and respected brethren. In the character of the clear advice tendered by the English judges to Her Majesty after deliberations on appeals from the Commonwealth States which still retain judicial contact with Britain, Lord Diplock considered the provisions of Articles 18 and 19 of the Guyana Constitution and having set down Article 19 in extenso proceeded to consider in particular Article 19(6) which though more detailed and comprehensive was in many ways similar to our Article 33. While I am not bound by this decision, I must express my sincere regard for the authority of the pronouncement. In the JAUNDOO case, supra, as in this case, the Rules of Court Committee had not made the rules governing the procedure and practice in Fundamental Human Rights issues and the Privy Council, in my view rightly, in the context of the Constitution of GUYANA decided that when the matter affects the human rights of the citizen and the authority required to settle the rules of practice and procedure for approaching the High Court had not done so any recognized legitimately available method for approaching the High Court (in this instant) will be proper. As Lord Diplock remarked such great importance does the Constitution attach to the Chapter on FUNDAMENTAL HUMAN RIGHTS that it "will have a hollow ring unless the fundamental rights which it bestows upon 'every person in Guyana' are buttressed by an effective legal remedy". (See page 978 of the report).

I am in full agreement with this view. However, it is easy to take a peripheral view of the article 19(6) of the Guyana Constitution and over simplify dicta in the Jaundoo judgment supra and conclude that the proposition therein stated in that report constitutes a useful guide to the determination of similar issues arising under our Constitution. The unsuspecting may not appreciate that there are serious distinctions between the two Constitutions which the majority of my learned and respected brothers failed to take in refusing to reach the merits of the case at Bar.

First, their Lordships in the Privy Council did not refer to any jurisdiction conferred upon any other Court with a jurisdiction similar to that conferred on this Court by Article 2 of our Constitution. Next it is obvious from a reading of the Article 19 of that Constitution that there is no Supreme Court in Guyana as we know it within our municipality. The hierarchy of Courts in that country consists of lower Courts, High Court, Court of Appeal and Privy Council. It will be observed that Article 19 which was the point for decision is, as I have said, a comprehensive adoption of the essential elements of our Articles 2, 33 and 130, but with all powers vested in the High Court. In that Constitution Article 19(1) which states inter alia, the conditions for seeking redress in Fundamental Human Rights issues is subject to section (6) thereof which requires the Rules making body to make rules to govern practice and procedure in the High Court. Thus a litigant suing for redress or for a declaration that any enactment or act or omission is inconsistent with a provision of the Constitution or is inconsistent with his fundamental Human Rights is necessarily limited in forum to the High Court. Their Lordships were struck by the urgency of the word "redress" and therefore stated at page 983 of the report that:

"The procedure adopted must be such as will give notice of the application to the person or legislative or executive authority against whom redress is sought and afford to him or it an opportunity of putting the case why the redress should not be granted."

I am in agreement with this procedure for the speedy ventilation and resolution of a human rights grievance where no other court can be approached. But where as within our municipality other Courts exists which have concurrent and enhanced jurisdiction in matters touching and concerning the inconsistency with or contravention of

"a provision of the Constitution"

it will be idle for a Court of competent jurisdiction to pretend that the provisions of Chapter 5 of our Constitution cannot be the subject of any declaration. Going to Court is one and winning ones case is another. Therefore if the jurisdiction exists it will be wrong of a Court to decline to deliver a verdict one way of the other.

In this case it was suggested that the Applicant's case before the original Court was caught by paragraph 6 of the PRACTICE DIRECTIONS OF THE SUPREME COURT (1981) G.L.R.1. In respect of the determination of the issue of concurrent jurisdiction of this Court with any other lower Court I found it necessary to render below just a short part of the paragraph 6 which reads:

"It is also to be noted there where a cause or matter can be determined by a Superior Court other than the Supreme Court the jurisdiction of the lower Court shall first be invoked" (emphasis mine).

I am not here concerned with the remainder of the paragraph under reference which promises dire consequences on counsel or client for such infractions, but the Supreme Court must decide not that it has no jurisdiction in the matter but that the matter

"can be determined by a Superior Court"

to whose jurisdiction the application

"shall first be invoked"

I do not think that beats the imagination of any average person to conclude that under this paragraph 6 the Supreme Court has concurrent jurisdiction with the Superior Court which is capable of determining "a cause or matter namely, the HIGH COURT.

I have taken a little time to dilate on the differences in the formulations of the Fundamental Human Rights practice and procedures between the Constitution of GUYANA and our Constitution largely because, as I say, we tend to over-simply matters and reach conclusions which may not accord with the history and principles upon which our Constitution is founded. The GUYANA Constitution is founded on the Westminster model while our Constitution is largely founded on the U.S.A. model with the inclusion of other experiences from the written Constitutions of other countries. But in the area of FUNDAMENTAL HUMAN RIGHTS it must be said that the matters enumerated in the Constitution and in chapter 5 thereof are based firmly on the sum total of our national experiences and our nation's subscription to international conventions and protocols on Fundamental Human Rights. As AMUA-SEKYI, J.S.C. wrote in his contribution in the main case (  ............. (1996 Vol. 1) G.S.C.J. 4 at page 10

"They remind one of the Preventive Detention Act, 1958 and its successors which empowered the executive or its agents to order the detention without trial of any citizen of Ghana if "satisfied that order is necessary" in specified circumstances. In case after case, among them In re Okine (1959) G. L. R. 1; Amponsah & Another v. Minister of Defence (1960) G.L.R. 140 CA; In re Dumoga & 12 Others (1961) G.L.R. 44; Re Akoto & 7 Others 1961 G.L.R. 523 SC; Republic vs. Inspector-General of Police, ex parte Ibrahim (1977) G.L.R. 7; Republic v. Assistant Director of Prisons, ex parte Dagomba & Others 1979 G.L.R. 1, the Courts turned away hapless individuals who were challenging the legality of their detention under the various enactments."

Thus was born Article 2 of our present Constitution which - unlike the attitude of the predecessor of this Court in Re: Akoto, supra in declaring the Presidential Oath to protect civil liberties and human rights akin only to a non justifiable "Coronation Oath" - gives the present Supreme Court power to enforce the provisions of the Constitution, prevent breaches thereof and declare laws void as being inconsistent with or in contravention of the Constitution. This Court having been granted such awesome authority in the defence of the Constitution and in particular in the protection of the civil and human rights of all who live and work within our municipality, cannot cringe from determining issues of human rights on the ground that "exclusive" jurisdiction therefor lay in some other forum. As I have said the jurisdiction is there. But by the mechanics of the PRACTICE DIRECTION referred to in this opinion, this Court may control which such cases it may determine itself and which such cases the parties may "first" invoke the jurisdiction of the High Court.

Such a practice must necessarily involve our understanding and appreciation of the International Conventions and protocols on FUNDAMENTAL HUMAN RIGHTS & FREEDOMS. Briefly these conventions and protocols may be divided into two categories namely

(a) Human Rights, Civil and Political and

(b) Human Rights, Economic, Social and Cultural.

I cannot explain these twin concepts better than cite their formulations from a Russian publication entitled A DICTIONARY OF INTERNATIONAL LAW (translated from the Russian and edited by MURAD SAIFULIN Cand. Sc.(Law) 1986 where the Editor classifies Civil and Political Rights as include:

"equality; the prohibition of discrimination; the right to take part in the conduct of public affairs; the prohibition of subjecting anyone to cruel, inhuman or degrading treatment or punishment; the prohibition of slavery, slave-trade and forced or compulsory labour; the right to liberty and security of person; the right to liberty of movement and freedom to choose one's residence, including the right to freely leave any country; the right to freedom of thought, consciousness and religion; the right to hold opinions without interference and the right to freedom of expression; the right of peaceful assembly; the right to freedom of association; etc."

and Economic, Social and Cultural rights also as

"the right to work; the right of everyone to just and favourable conditions of work; the right to form trade unions; the right of trade unions to function freely; the right to strike; the right to social security, including social insurance; the right to protection and assistance to the family, mothers and children; the right to an adequate standard of living; in the right to the highest attainable standard of physical and mental health; the right to education; the right to take part in cultural life, etc."

It is obvious that civil rights are not "individual rights" as contended by one of my learned and respected brethren. In my respectful opinion no one person can assemble anywhere for any lawful purpose. Consequently a civil right must enure to the benefit of a group, a class or even to the whole society. Thus a judgment in a civil rights action must result in a judgment in rem and binding on all persons for all time until circumstances change the shape of these. On the other hand human rights issues are concerned with individual rights and judgments in respect of such breaches must necessarily be in personam. This must be so because Article 33(4) unlike the Article referred to in the GUYANA Constitution specifies the nature of the redress which the High Court may grant. Observing those remedies carefully it is obvious that the remedies are in the nature of supervisory writs. The nature of these writs were clearly discussed by DENNISON, J. from his seat in the High Court, Accra in NYAKO V. MINISTER OF LOCAL GOVERNMENT 2 W.A.L.R. 147 I do not know how be the application of the prerogative writs any statute could be declared inconsistent with or in contravention of a provision of the Constitution.

In the instant application it was obvious that the Applicant was litigating his civil right -

"the right to liberty of movement and freedom to choose one's residence including the right to freely leave any country".

Incident in which was the possession of a passport. The Respondent admitted he was in possession of the Applicants' passport but that

(i) the Applicant had not demanded for its return and

(ii) that in any case the Passport had expired.

I, of course rejected these excuses and gave my reasons therefor. A judgment on the merits of the Applicant's presentation would have settled the issues for all time.

Reinforcing the concurrent jurisdiction of this Court with the High Court on Human Rights issue I would like to return to AMUA-SEKYI, J.S.C.'s opinion in this self same case where at page 7 of the report referred to above, His Lordship wrote:

"In New Patriotic Party v. Inspector-General of Police & Another 30 November, 1993, this Court declared Sections 7, 8, 12(a), 13 of the Public Order Decree, 1972 (NRCD 68) void and in New Patriotic Party v. Attorney-General 8 March, 1994 this Court declared that notwithstanding the provisions of the Public Holidays Law, 1989 (PNDCL 220) it was no longer lawful to declare 31 December of each year a public holiday and use public funds to celebrate the occasion. On the learned Acting Attorney-General's own admission, if the provisions of NLCD 155 complained of are found by this Court to be inconsistent with any provision of the Constitution, they shall, to the extent of the inconsistency, be void and this Court will have jurisdiction under Articles 2(1) and 130 so to declare. Therefore, the correct legal position is that these Articles permit a person who alleges that any provision in any enactment, whether made before or after the Constitution came into force, is in conflict with any provision of the Constitution to bring an action for a declaration." (emphasis mine).

The matter of our competence to assume jurisdiction was settled in these two cases mentioned above. It was contended that the decision in the N.P.P. v. Attorney-General, supra, could not be followed because the issue of jurisdiction was not raised. If as my learned and respected brethren contend the issue of jurisdiction was not raised it was not necessary for the Court to address itself on a non-existent objection. In any case the Respondent, the Attorney-General knew the law and the Constitution and was prepared to admit that

"if the provisions of [NLCD 155] complained of are found by this Court to be inconsistent with any provision of the Constitution they shall, to the extent of the inconsistency, be void, and this Court will have jurisdiction under Articles 2(1) and 130 so to declare." (See Amua-Sekyi at page 8 of the Report).

Surely by the same token this Court had jurisdiction to declare sections of the PUBLIC ORDER DECREE 1972 (N.R.C.D. 68) and provisions of the PUBLIC HOLIDAYS LAW 1989 (P.N.D.C.L. 220) null and void as being inconsistent with or in contravention of a provision or provisions of the Constitution.

In my respectful opinion there was ample argument in favour of reviewing the judgment. Special circumstances for so reviewing a case must include a situation where this Court being normally bound by the force of our Constitution to follow its previous decision has failed to do so without ascribing cogent reasons therefore or where this Court itself must apply the MOSI V. BAGYINA principle in correcting itself.

Thus for now as AMUA-SEKYI, J.S.C, wrote in his original opinion in this self same case

"the timorous, the obsequious or the indolent (have given) an excuse for shelving the determination of cases and turning them over to another Court or Judge."

This Court fails to express the hopes of the framers of the Constitution and the expectations of our people if in spite of clear authority in support of its jurisdiction in matters affecting the enforcement of FUNDAMENTAL HUMAN RIGHTS it tends to

"cross(ed) to the other side of the road and pass(ed) him by"

as in the parable of the Good Samaritan ( (Luke 10:31) when it sees the problem.

AMPIAH, J.S.C.:

I will also dismiss the application.

KPEGAH, J.S.C.:

In this application the plaintiff is seeking a review of our previous decision declining jurisdiction to determine his claim as a Court of first instance. The ground on which this court had earlier declined jurisdiction was that the plaintiff's claim, no matter how it was framed, was in essence and substance a claim seeking the enforcement of his fundamental human rights; and by the combined effect of articles 33(1), 130(1) and 140(2) of the Constitution, this was a claim which fell within the exclusive jurisdiction of High Court as a Court of first instance. The Supreme Court has only appellate jurisdiction in such matters under article 33(3) of the Constitution.

The right to a review in this Court is no longer as a result of the indulgence of the Court, but is now a constitutional right conferred by article 133(1) which provides as follows:

"The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by the rules of Court".

And rule 54 of the Supreme Court Rules, 1996 (C.I.16) provides the grounds and Conditions as follows:

"The Court may review any decision made or given by it on any of the following grounds -

(a) exceptional circumstances which have resulted in miscarriage of justice;

(b) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decision was given".

By the nature of this application the only proper ground which could be urged, and which indeed had been urged upon us, is that there is an exceptional circumstance which had occasioned a miscarriage of justice. Until the coming into force of the Constitution and the Supreme Court Rules, 1996 (C.I.16), this was the sole ground on which an applicant for a review could have approached this Court. There is no dearth of authority is to the standard of proof required to be achieved before this Court can be induced to review its own solemn decision: the applicant must not only establish that there is a special circumstance for which reason a second look must be taken at his case, but also that the said circumstance had occasioned a miscarriage of justice to him. This standard had been set obviously because of the time-honoured principle that it is in the public's interest that there be an end to litigation.

While there may not be any judicial definition of what "exceptional circumstance" is, there are, however, several authorities as to what a review application is not intended to be: a second bite at the cherry or in plain language a re-arguing of a point all over again.

In the case of THE REPUBLIC V. HIGH COURT, ACCRA AND COURT OF APPEAL, ACCRA; EX-PARTE TOGBE GOBO DARKE XII AND ANOR, CM 21/92 (unreported) dated 17th November, 1992, I said:

"... there is no indication as to what the special or exceptional circumstances should be, or what type of threat should be posed to the attainment of Justice in a case before the Court will permit a review of its judgment. Being a discretionary power, it has been left to the Court itself to determine as two cases are hardly ever fought on the same facts. There is, however, unanimity as to what a review procedure was not intended for".

The main ground urged in support of the instant application for a review is that this Court erred in declining jurisdiction in the matter. As has earlier been pointed out, although it can be said there is some uncertainty about what this Court will consider to be an exceptional circumstance warranting a review of an earlier decision, I think it can be said that jurisdiction being so fundamental in any legal or judicial proceedings its wrongful assumption or declinature will constitute an exceptional circumstance for a party to successfully make a case for a review. In such a case there is no need to go further and establish that there has been a miscarriage of justice since it can be presumed from the very act of wrongful assumption or declinature of jurisdiction per se.

My Lords, I have said it before and I want to repeat it here that in determining the scope or extend of our original jurisdiction, we must read together articles 2(1) and 130(1) of the Constitution. And reading the two articles together our exclusive original jurisdiction can be said to be in respect of the following situations:

(i) enforcement of all provisions of the Constitutions, except those provisions contained in Chapter Five dealing with Fundamental Human Rights; or

(ii)  the interpretation of any provision of the Constitution; or

(iii) an issue whether an enactment is inconsistent with any provision of the Constitution.

See cases like GBEDEMAH V. AWOONOR-WILLIAM 2 G. & G. 438 and TAIT V. GHANA AIRWAYS CORP. 2 G. & G. 527 which approved and applied the GBEDEMAH CASE.

The issue raised in the application before us is whether or not the majority were right in declining jurisdiction in view of the reliefs claimed by the plaintiff. As learned Counsel for the plaintiff puts it:

"The fundamental submission of the applicant is that this Court, with all due respect, erred in holding that the case was in reality and solely one of the enforcement of the human rights provisions of the Constitution, and that it was the High Court that had exclusive jurisdiction to hear the case in the first instance."

To support his assertion learned counsel submitted that the first relief sought by the plaintiff was a declaration that certain sections of the Passport and Travel Certificate Decree, 1967, (NLCD 155) are inconsistent with or a contravention of certain provisions of the Constitution and therefore null and void. And since it is only the Supreme Court which has the authority under the Constitution to make such a declaration, it was wrongful for us to have declined jurisdiction. The fallacy of this argument is that this is the constitutional apparel with which the real claim was clad in to induce us to assume jurisdiction.

I will recall the reliefs the plaintiff claimed in the action:

"(i) that sections 5(1) and 12(3) of the Passport and travel Certificate Decree, 1967, NLCD 155... section 5(2)(a), (b)(ii), (iii)... and section 17(e)... are inconsistent with, and a contravention of the letter and spirit of the Constitution, and especially Articles 11(1), (2) and (3) and 21(1)(g). Accordingly, the said sections of NLCD 155 are null and void and unenforceable.

(ii) As a citizen of Ghana by birth the plaintiff has a constitutional right to enter and leave Ghana A FORTIORI to a passport to enable him exercise and enjoy that right.

(iii) [A]n order directing the Minister of Foreign Affairs and Director of BNI to return to the plaintiff his old passport to enable plaintiff apply for a new passport".

In his written submission, learned counsel for the Plaintiff Nana Akuffo-Addo explained that clerical error was responsible for referring to Article 11(1) (2) and (3) instead of Article 17 of the Constitution and asked the Court to correct the error accordingly. Although he did not make a formal application seeking leave to amend his writ and statement of case, as required by the Rules of this Court, I personally, suo motu, allowed the amendment. While those in the minority did not consider and never referred to Article 17 of the Constitution, both Ampiah and Adjabeng JJSC referred to the said article without formally amending the writ and statement of case. Which may indicate an implied acceptance of the proposed amendment.

After examining the reliefs sought in the writ and the statements of case (as amended), the majority held the view that the plaintiffs claim was in essence and substance a claim for the enforcement of his fundamental human rights but dressed-up as a constitutional issue; and that such a claim is cognisable by the High Court as a Court of first instance. This was what I said:

"My view of the case before us is that it is really an action brought to enforce the fundamental rights of the plaintiff but which had been dressed-up in a rich Constitutional apparel to make it attractive to this Court so that we can give him audience".

My brother Adjabeng J.S.C expressed himself thus:

"It is quite clear, however, from the papers filed by the plaintiff that his real complaint is an alleged violation of and the enforcement of his human right 'to enter and leave Ghana, a fortiori to passport to enable him exercise and enjoy that right'. This is confirmed by the fact that the plaintiff also seeks a declaration that as a citizen of Ghana by birth, he has such a constitutional right; he also seeks "an order directing the Minister of Foreign Affairs and Director of BNI to return to the plaintiff his old passport to enable him apply for a new passport". It must be said  that this Court cannot assume jurisdiction merely because the plaintiffs claim has been framed in such a way as to appear as a constitutional matter to be dealt with by the Supreme Court".

And in his opinion Ampiah JSC said:

"The plaintiff seeks his reliefs under Articles 17(1) (2) and (3), and 21(1)(g) of the Constitution ... These provisions speak of the rights of the individual citizen".

After considering the import of Articles 130(1), 140(2) and 33(1) of the Constitution Ampiah J.S.C. continued thus:

"It is quite clear from these provisions that the forum for the enforcement of one's Fundamental Human Rights etc. in the first instance, is the High Court".

The assessment of the plaintiff's case as one which in reality was seeking to enforce his fundamental human rights, which is not within our enforcement jurisdiction, is being attacked as an erroneous decision.

In this application the plaintiff has not been able to convince me why the earlier view of his case was erroneous. We therefore have to apply paragraph 7 of our Practice Direction (1981) GLR 1 which says:

"The Supreme Court would not entertain any case or matter dressed up as a constitutional issue which in essence or substance is an issue which is cognisable by a lower superior court".

I think collectively the majority did discuss extensively whether the plaintiff could be said to be invoking our interpretative jurisdiction or not and they answered the question in the negative. As to whether he could be said to be invoking our enforcement, jurisdiction instead, the majority took the view that issues of enforcement of certain provisions of the Constitution arose but this Court has no jurisdiction to enforce those provisions as a Court of first instance.

This should lead me to a consideration whether the Supreme Court has concurrent jurisdiction which the High Court in the enforcement of the fundamental human rights of individual or not as is being urged upon us in this review application.

Since I had exhaustively dealt with this issue in my original judgment which is sought to be reviewed, through this application, I would prefer leaving this aspect to the fresh minds who have joined the review panel to exercise their minds over it. I can only reiterate my views briefly thus: If one reads articles 2(1) and 130(1) together with articles 33 and 140(2) one comes to the inescapable conclusion that the enforcement jurisdiction of the Supreme Court does not include the enforcement of those provisions of the Constitution relating to the liberties of the individual as a Court of first instance. This has been specifically assigned to the High Court.

There is some talk of this Court assuming jurisdiction under Article 129(4) of the Constitution which provides as follows:

"4. For the purpose of hearing or determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by a necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any Court established by this Constitution or any other law". (Emphasis supplied)

The above provision of the Constitution does not permit the Supreme Court to claim concurrent original jurisdiction with all adjudicating tribunals created by the Constitution or under any other law. The influential condition is that the Supreme Court must first be determining a matter "within its jurisdiction" before it can have all the powers, authority and jurisdiction vested in any Court. A distinction must therefore be made between "jurisdiction" properly so-called and "judicial power". The two concepts are often confused as meaning the same thing. "Jurisdiction" in its accepted connotation is often defined as "the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limit of this authority are imposed by the statute, chapter, or commission under which the Court is constituted, and may be extended or restricted by alike means", SEE HALSBURYS LAWS OF ENGLAND VOL. 9 (3RD ED.) pp. 350-51.

And perhaps the most distinguishing factor between "jurisdiction" and "judicial power" lies in the fact that judicial power is often exercised by all the Courts in the exercise of their legitimate jurisdiction but none of the Courts possesses all the jurisdiction to enable it exercise judicial power.

Unless this distinction is maintained it can be argued that the Supreme Court has original jurisdiction in Chieftaincy matters under Article 129(4) of the Constitution. But it could be said that when the Supreme Court is properly seized with an appeal from the National House in a chieftaincy matter under article 131(4) it has all the powers, authority and jurisdiction of the chieftaincy tribunals which had previously dealt with the matter; and it could make any order which the said tribunal could have made since as an appellate court it has all the powers and jurisdiction of the lower court or adjudicating tribunal. I am therefore of the firm view that before Article 129(4) can be resorted to by this Court, the matter for determination must be "within its jurisdiction". I dare say that this article will be more relevant and visible when the Supreme Court, being the final court of the land, is exercising its appellate, review and supervising jurisdictions rather than its exclusive original or reference jurisdictions.

In view of all I have said I am of the view that this Court properly declined jurisdiction to hear the plaintiffs claim as a Court of first instance and will dismiss the review application.

ADJABENG, J.S.C.:

I agree with the opinion of my sister, Bamford-Addo, J.S.C.; just read, and that of my brother, Acquah, J.S.C. about to be read, that the application be dismissed.

ACQUAH, J.S.C.:

My Lords, the basic issue, as I see it, in this review application is whether or not the Supreme Court has concurrent original jurisdiction with the High Court in the enforcement of the provisions on fundamental human rights and freedoms, enshrined in the 1992 Constitution of Ghana. For I certainly agree with the applicant that the issue of jurisdiction, be it a wrongful assumption or rejection, is such a fundamental issue as to constitute an exceptional circumstance entitling a party affected to apply for a review. But as to whether he will eventually succeed in his quest for a review, is of course, another matter.

The background of this application is that, the applicant, a Ghanaian citizen, had his passport withdrawn following investigations into some of his activities. Thereafter he was sent off to United States in exchange for another person who had been arrested in U.S.A. on charges of spying for the Ghana Government. After staying in U.S.A. for sometime, he sought to return home, and so instructed his solicitors in Ghana to request from the Foreign Ministry and the Bureau of National Investigation, for the restoration of his old passport. After waiting for sometime without any response from the said authorities, he filed this writ invoking the original jurisdiction of this Court against the Attorney-General and the Bureau of National Investigation for:

"1. A declaration that:

(i) Section 5(1) and 12(3) of the Passports and Travel Certificate Decree 1967, NLCD 155, which seeks to give the Minister for Foreign Affairs ("Member Responsible") wide discretionary powers in the grant, refusal, revocation, cancellation or impounding of passports and travel certificates section 5(2)(a), (b)(ii, iii) which provides that the Minister for Foreign Affairs ("Responsible Member") shall not issue a passport to specified categories of persons, and section 17(e) which seeks to give the Minister for Foreign Affairs absolute discretion in refusing to grant travel certificates are inconsistent with and contravention of the letter and spirit of the Constitution, especially Articles 17(1), (2) and (3) and 21(i)(g). Accordingly the said section of NLCD 155 are null, void and unenforceable.

(ii) As a citizen of Ghana by birth, the Plaintiff has a constitutional right to enter and leave Ghana and a fortiori to a passport to enable him exercise and enjoy that right.

3. An order directing the Minister of Foreign Affairs and Director of BNI to return to the plaintiff his old passport to enable plaintiff apply for a new passport."

At the hearing, the Attorney-General resisted the action on a number of grounds including the jurisdiction of this Court to entertain at first instance the reliefs sought. He contended, inter alia, that the action raises no issue of interpretation and that it is essentially for the enforcement of the applicant's fundamental rights and freedoms, and therefore the Supreme Court has no concurrent original jurisdiction with the High Court in these matters.

In its judgment delivered on 13th February 1996, this Court had no doubt that the applicant was indeed seeking the enforcement of his fundamental rights and freedoms. And by a majority of 3:2, it dismissed the action on grounds that it had no such concurrent original jurisdiction with the High Court.

Emboldened perhaps by this split decision, the applicant now seeks this review, contending in his statement of case:

"that the dismissal of plaintiff's suit on jurisdiction grounds was a fundamental error, this would constitute an exceptional circumstance and that in the interest of justice the decision ought to be reviewed."

The applicant thus anchors his review on two grounds, namely, exceptional circumstances and the interest of justice. His submissions grounded on the interest of justice is two-fold. He refers to the case of NPP vrs. I.G.P., SC. Writ No.3/90 of 30th November 1993, (unreported) and contends rightly in my view, that that case bears close affinity to his case. He then submits, that since the Supreme Court assumed jurisdiction in this NPP vrs. I.G.P. (supra), the interest of justice requires that he ought not be shut out of this court on ground of jurisdiction. Relying on a number of foreign decisions, he submits that human rights issues are matters of great importance, and therefore when such issues are brought before this highest Court, everything must be done to do substantial justice to the issues therein rather than allow technicalities to impede the course of justice. He relies in particular on Kent vrs. Dulles 2 L Ed 2d 1204; Attorney-General vrs. AIII & Ors. (1989) LRC (Const) 474; Tinyefuza vrs. Attorney-General. Const Petition I of 1997 of 25/4/1997, Uganda Constitutional Court; Re Longwe & Ors. vrs. The Attorney-General & Anor H/C Malawi, Misc. Civil Appeal No. 11 of 1993 (unreported); Ferreira vrs. Levin No. & Ors. 1996 (I) BCLR I (cc); Romesh Thappar vrs. The State of Madras (1950) 594 India Supreme Court.

Now the issue in this review application is basically one of jurisdiction, which of course, requires the interpretation of the relevant Constitutional provisions. Thus unless it is demonstrated that the above foreign decisions were based on identical provisions as our relevant Constitutional provisions, the fact that those foreign courts assumed original jurisdiction in those actions, can be of no assistance in determining whether our Supreme Court has concurrent original jurisdiction with our High Court in redressing human rights abuses. Especially as in the instant case, the applicant failed, to set out the relevant statutory provisions on the jurisdiction of the foreign Courts.

In this regard, let me reiterate a very pertinent advice I gave in my opinion in Republic vs. Tommy Thompson Books & Ors., Ret No. 2/96 of 7th May, 1997. S.C.(unreported). There, I said, in relation to the use of foreign decisions in the interpretation of the provisions of our Constitution:

"Now the Constitutions and laws on which the foreign decisions were made, differ in their express provisions from that of our 1992 Constitution of Ghana .... Accordingly in seeking to apply to the interpretation of our 1992 Constitution what has been said in particular cases about other Constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration, and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject matter and structure of the Constitution and the circumstances in which it had been made. For a national Constitution is a reflection of that nation's history and the noble aspirations of its framers. Accordingly notwithstanding the invaluable scholarship in foreign decisions, what is required of us is originality in the interpretation of our Constitution, paying particular attention to its language, and construing the words in such a way as to advance the intent, of the framers; intent nurtured on our peculiar history and social circumstances."

Apaloo CJ made the same point in Kwakye vs. Attorney-General (1981) GLR 944 at 958 when he said that in the exercise of the interpretative jurisdiction of this court:

"We must have regard to the terms of our particular Constitution whose specific reference points are largely unique to our national history. In this area, more than others, judicial pronouncements in other jurisdiction on the particular facts of their experience are not likely to be of much assistance; the range of judicial wisdom embodied in them will, of course, influence our judicial reflections. I think originality is required of us in the exercise of our original jurisdiction if we are to attend to the letter and spirit of the Constitution as the basic law of our land. That originality must, of course, be judicial and must not do damage to the plain and obvious meaning of the words used nor is it the province of this Court to be astute to find some reason or other for depriving the constitutional provision of an effect clearly intended."

Clearly then, whether the Ghana Supreme Court has concurrent original jurisdiction with the Ghana High Court in redressing human rights abuses, will depend entirely on the language of our relevant Constitutional provisions and not on the decision of any foreign Court. For in the case of Romesh Thappar vrs. The State of Madras (supra), for example, decided by the India Supreme Court, articles 32(1) and 266(1) of the Indian Constitution, read:

"32(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed."

And article 226(1) also says:

"226(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any Person or authority,  including in appropriate cases, any Government within those territories, order or writs .... for the enforcement of any rights conferred by Part III and for any other purposes."

From the above provisions, it is crystally clear that the Indian Supreme Court has concurrent original jurisdiction with the Indian High Court in redressing human rights abuses. The question therefore is, does the 1992 Constitution of Ghana, have a provision identical with article 32(1) of the Indian Constitution? Certainly Not! Thus to rely on the decision of the Indian Supreme Court on this issue of jurisdiction will undoubtedly undermine the language and integrity of our 1992 Constitution.

Interest of Justice

Now before dealing with the main issue of jurisdiction, let me briefly discuss the two submissions on the interest of justice. And first, that of technicalities.

I concede that the general tendency of our courts and those in other jurisdictions has been a movement from the clutches of technicalities to doing substantial justice in the particular circumstances of each case. A positive assertion to this effect was made over hundred years ago by Bowen LJ to his American colleagues in the following words (quoted in Potin vrs. Wood (1962) 2 WLR 258 CA at 262);

"It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation."

But then an objection on grounds of lack of jurisdiction is not one of technicality. It is a fundamental objection which questions the very foundation and authority of a Court to sit and adjudicate on the matter before it. And it is indeed because of the fundamental nature of the issue of jurisdiction that the applicant herein contends that the dismissal of his action on grounds of lack of jurisdiction constitutes a fundamental error vitiating the majority judgment and entitling him to this review.

Jurisdiction is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter and the parties. Jurisdiction defines the powers of Court to inquire into facts, apply the law, make decisions and declare judgment. Thus the Oxford Advanced Learners Dictionary defines jurisdiction as:

"authority to carry out justice and to interprete and apply laws; right to exercise legal authority...."

Chief Justice Salmon P. Chase stated the effect of lack of jurisdiction in Ex Parte McCardle 7 Wall 506 (1869) (quoted at page 80 of Constitutional Law for a changing America. 2nd Ed by Epstein & Walker) in the following words:

"Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."

Thus in Kumnipah II vrs. Ayirebi (supra) Amua Sekyi JSC rightly pointed out that a person affected by a judgment which is a nullity on the ground of want of jurisdiction is entitled, unconditionally to have it set aside. Accordingly to describe an objection on grounds of lack of jurisdiction as a technicality is a serious misconception of the nature and potency of jurisdiction.

Let me emphasize that a court of law does not do justice according to a particular judge's emotional reaction to the suit, but according to law. And no court, irrespective of its position in the court's hierarchy, is competent to sit on a case if the statute creating that court did not vest it with jurisdiction. And in the instant case, the minority did not ignore the issue of jurisdiction, but proceeded on their firm conviction that the Supreme Court has concurrent original jurisdiction with the High Court.

The other submission is that since this court assumed jurisdiction in NPP vrs. IGP (supra), a case quite similar to the instant one, the interest of justice requires that jurisdiction ought to have been assumed by the majority. This raises, in some respects the issue of judicial precedent.

Precedent is admittedly an important and useful factor in our decision making process. But a rigid adherence to it may be inimical to the development of the law. For one cannot, for example, help but reflect on what would have been the effect on English Law if the majority decision of 3:2 had been the other way in the case of Donoghue vrs. Stevenson (1932) Act 562 H.L.

Certainly stare decision promotes the important considerations of consistency and predictability in judicial decisions, and represents a wise and appropriate policy in most instances. But that doctrine has never been thought to stand as an absolute bar to reconsideration of a prior decision, especially with respect to matters of constitutional interpretation. For where a court errs in its construction of a statute, correction may always be accomplished by legislative action. But the cumbersome process of amending a Constitutional provision coupled with the injunction on Parliament in article 107(a) of the 1992 Constitution, impose a duty on this court to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question. And whenever the said precedent is found to be unsatisfactory, to refuse to follow it. Article 107(a) provides:

"Parliament shall have no power to pass any law -

(a)  to alter the decision or judgment of any Court as between the parties subject to that decision or judgment."

In my view therefore, a Constitutional decision of this Court should be open to discussion when it is supposed to have been founded in error, so that our judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.

In Green vrs. United States 356 US 165 (1959) (quoted at page 23 of Constitutional Law for a Changing America (supra), Justice Black said:

"Ordinarily it is sound policy to adhere to prior decisions but this practice has quite properly never been a blind, inflexible rule. Courts are not omniscient....Indeed, the Court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time and where compelling reasons present themselves, to refuse to follow erroneous precedents; otherwise mistakes in interpreting the Constitution are extremely difficult to alleviate and needlessly so".

Thus of the 105 precedents overruled by the US Supreme Court between 1953 and 1990 terms, 68.6 percent involved constitutional issues.

In Ghana, article 129(2) of the 1992 Constitution does not bind this Court to follow the decision of any court while 129(3) thereof empowers this Court to depart from its previous decision if it appears right to do so.

Now it is not everything said in a decision that constitutes binding judicial precedent. As the late Cecilia Koranteng-Addow J. rightly stated in Republic vrs. Director of Prisons & Anor. Ex Parte Shackleford (1981) GLR 554 at 564:

"it is the reason or principle on which a question before a court has been decided, which is binding as a precedent. It is the ratio decidendi of a judgment of a superior court which sets a precedent for itself or inferior courts to follows".

And Sir George Jessel in In re DHDallett's Estate (1879) 13 Ch. D at 712 also said:

"The only use of authorities or decided cases is the establishment of some principle which the judge can follow out in deciding the case before him"

In the NPP vrs. I.G.P. (supra) the reliefs claimed were:

"i) Section 7 of the Public Order Decree 1972 (NRCD 68), which gives to the Minister for the Interior the power to prohibit the holding of public meetings or processions for a period in a specified area, section 8 of the said Decree which provides that the holding of all public processions and meetings and the public celebration of any traditional custom shall be subject to the obtention of prior police permission, section 12(c) of the said Decree which gives to a superior police officer the power to stop or disperse such a procession or meeting and section 13 of the said Decree which makes it an offence to hold such processions, meetings and public celebrations without such permission, are inconsistent with and a contravention of the Constitution, especially Article 21dS(1)(d) therefore null, void and unenforceable.

ii) Under the Constitution no permission is required of the police or any other authority for the holding of a rally or demonstration or procession or public celebration of any traditional custom by any person, group or organization."

In their accompanying statement of case, the NPP pleaded in paragraph 4 thereof:

"4. Plaintiff says that the right of its members to embark on a peaceful demonstration is enshrined and guaranteed by Article 21 (1)(d) of the Constitution as a fundamental human rights."

They then pleaded instances where their members had been prevented from going on demonstration and then concluded in paragraph 11 as follows:

"11. Plaintiff says that in each case the prohibition of the holding of these rallies and the arrest of its members on a peaceful demonstration were effected by 1st defendant in violation of the fundamental human rights of the plaintiff and its members as enshrined in the Constitution, especially article 21(1)(d) thereof."

It is clear from the above pleadings and indeed the written legal submissions that the NPP was essentially seeking the enforcement of the fundamental rights of its members to demonstrate freely without interference as guaranteed in article 21(1)(d) of the 1992 Constitution. And that the issue of interpretation, if it did arise, was only incidental to the realization of this objective. It is also equally clear from the pleadings that the defendant did not plead nor raise the issue of jurisdiction. Consequently that court could not, especially as the parties had no opportunity to address on that issue, make any pronouncement on whether or not it had original jurisdiction in the matter before it. And since the court made no such pronouncement, its decision cannot constitute a precedent on the issue of jurisdiction.

Of course, if the issue of jurisdiction had been raised in NPP vrs. I.G.P. (supra), the Court would have undoubtedly adverted its attention to the well-established principle on the scope of the Supreme Court's original jurisdiction in the interpretation and enforcement of the provisions of the Constitution, as enunciated in Gbedemah vrs. Awoonor-Williams (1969) 2 G & G 438, and later cited and approved in a number of cases including Tait vrs. Ghana Airways (1970) 2 G & G 529; Republic vrs. Mailankan (1971) 2 GLR 473 SC; Republic vrs. Special Tribunal Ex Parte Akosah (1980) GLR 592 CA; vrs. The Attorney-General & Abban Writ No.8/95 of 5th December 1995 (unreported). According to the principle, for a person to be able to invoke the original jurisdiction of the Supreme Court, the writ of summons or statement of claim or both, must prima facie raise an issue relating to

(a) the interpretation of the provisions of the Constitution, or

(b) the enforcement of a provision of the Constitution, or

(c) a question whether an enactment was made ultra vires Parliament, or any other authority or person or under the Constitution.

On the question, when an issue of interpretation arises, the court held that interpretation does not arise where the language of the provision is clear and unambiguous.

Accordingly, on the basis of the above principle, Mrs. Bamford-Addo, J.S.C. in GBA vrs. Attorney-General & Abban (supra) set out the relevant factors in considering the issue of the Supreme Court's original jurisdiction, in the following words:

"in deciding the issue of jurisdiction matters to take into consideration include the statute which invests jurisdiction as well as the true nature of the claim having regard to the pleadings, issues and reliefs sought or the actual effect of the reliefs, regardless of the words used or the manner in which the claim and reliefs are couched. I agree with the test provided in the case of Gbedemah vrs. Awoonor-Williams (1969) 2 G & G 438 as applied in the case of Tait vrs. Ghana Airways Corporation (1970) 2 G & G 527 (Court of Appeal sitting as the Supreme Court). In deciding whether this court is seized with jurisdiction in the present claim, I intend to apply that test". (emphasis mine).

But unfortunately the issue of jurisdiction was not raised in NPP vrs. I.G.P. (supra), and the opportunity was thus lost in applying the above test to the materials before their Lordships. In sum therefore once the issue of jurisdiction was not raised and pronounced upon in NPP vrs. I.G.P., supra, same cannot constitute a precedent on jurisdiction.

On the other hand, the very assumption of jurisdiction by the Court in NPP vrs. I.G.P. (supra) without question, cannot also constitute lawful justification for this court to continue assuming jurisdiction in subsequent cases. For the equitable principles of estoppel have no place when it comes to the interpretation and enforcement of the provisions of the Constitution. As Adade J.S.C. aptly put it in Bilson vrs. Apaloo (1981) G.L.R. 24 at pages 69 to 70 thus:

"But it is said that the Court of Appeal has been sitting five all the time, and no one has raised a finger. That does not mean that finger can never be raised. It has been raised now, and we cannot force it down. If in my reckoning, an error was committed then there is no reason why that error should be perpetuated simply because it has been done with imputy in the past. Public policy and common sense pleaded by the defendant cannot be suffered to oust the operation of what, in my view, are the clear prescriptions of the constitutional provisions".

In the instant review, going by the test ably set out above by Mrs. Bamford-Addo, J.S.C., although the applicant couched his reliefs as seeking the interpretation of certain provisions of the 1992 Constitution vis-a-vis section of the Passport and Travel certificate Decree 1967 (NLCD 155), it is clear from his statement of case and written submissions that he was in substance and in effect seeking the enforcement of his fundamental right under the 1992 Constitution. Thus at page 10 of his written submissions filed on 11th August 1990, he summarizes the substance of his action, in the following words:

"The plaintiff here is a citizen of Ghana who has brought an action against the government of Ghana in the Ghana Supreme Court to enforce a right ... founded on his constitutional right as a citizen of Ghana under the Ghana Constitution. Finally ... no one can thereby deny or take away or suspend the enforcement and enjoyment of a citizen's constitutionally guaranteed right in his own Country. (emphasis mine).

It follows then that the applicant's relief for a declaration that certain section of the NLCD 155 are inconsistent with the 1992 Constitution are only a means of securing the enforcement of his fundamental rights. To this end, having regard to the provisions of articles 33(1), 130(1) and 140(2), has this court original jurisdiction to entertain his action? The majority at the ordinary bench says No, while the minority says Yes. Which is which?

The Issue of Jurisdiction:

Now the arguments for the concurrent original jurisdiction of the Supreme Court, advanced by the applicant at the ordinary bench are premised, first on their interpretation of article 33(1), secondly on the combined effect of articles 33(1) and 130(1) and finally on the fact that the Rules of Court Committee had not yet, in accordance with article 33(4), made rules of court on the practice and procedure for the superior courts in redressing human right abuses.

In Gbedemah vrs. Awoonor-Williams (supra) the court examined articles 2, 28(1) and 106(1) of the 1969 Constitution, now articles 2, 33(1) and 130(1) of 1992 Constitution, and made definite pronouncement on the scope of the Supreme Court's enforcement jurisdiction, and whether under article 28(1), now 33(1) of the 1992 Constitution, the Supreme Court can also entertain at first instance, human rights cases. At page 440 of the report, Azu-Crabbe J.A. as he then was, reading the unanimous opinion of the Court of Appeal sitting as the Supreme Court, said:

"In the whole of the Constitution there were only two articles - article 2 and article 28 - which have the word "enforcement" in a marginal note on the side of the main provisions. In our view, it is not without significance that the powers to enforce in article 28 are excluded from the original jurisdiction of the Supreme Court. This article which is found in chapter 4 of the Constitution deals with the enforcement of the fundamental human rights - liberty of the individual. Under article 28 any person who alleges that his fundamental rights and freedoms have been infringed can seek redress by initiating proceedings in the High Court, which alone is vested with original jurisdiction in matters affecting the liberty of the individual".(emphasis mine).

Later down in the unanimous opinion, his Lordship continued at the same page 440 thus:

"The word enforcement in article 106(1) is not defined in the Constitution, and unless we can find words within the corners of the Constitution that restricts its application, we will conclude that it means the enforcement of the provisions of the Constitution, other than the provisions of article 12 to 27" (i.e. those on fundamental human rights) (emphasis mine).

The court then dismissed the preliminary objection and assumed jurisdiction because article 71(2)(ii) in respect of which Mr. Awoonor-Williams founded his claim was not part of the human rights provisions.

It is thus evidently clear that Gbedemah vrs. Awoonor-Williams (supra) authoritatively settled the point that the original jurisdiction in the enforcement of human rights abuses, as far as the courts are concerned, was vested only in the High Court, and that the Supreme Court had no concurrent original jurisdiction with the High Court in such matters. For the Supreme Court powers of enforcement under article 2 did not cover the enforcement of human rights violations which are expressly reposed in the High Court under article 33(1) of the 1992 Constitution.

The decision in Gbedemah vrs. Awoonor-Williams (supra) not withstanding, I will proceed to examine each of the three arguments set out above. Article 33d(1) of the 1992 Constitution reads:

"Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress."

The argument is that the above article is permissive in language and does not specifically exclude the original jurisdiction of the Supreme Court. The permissiveness is alleged to be foundered on two expressions: first

"without prejudice to any other action that is lawfully available", and secondly, "may apply...."

Now on a reading of article 33(1), it is quite clear that the first expression refers to any possible cause of action which may arise from a violation of one's fundamental right and freedom, independent of that victims constitutional right of seeking redress for the said violation. Thus, for example, if someone's personal liberty is violated through wrongful arrest and detention, the victim may, while in detention, resort to the High Court on a habeas corpus application for his release and may thereafter sue for damages for unlawful arrest and detention at a court with jurisdiction to award the damages he seeks. The action for unlawful arrest and detention is one which is lawfully available to the victim following the violation of his personal liberty. And this is all that the first expression deals with. It does not mean that one can file this habeas corpus application at the Supreme Court. No.

In respect of the second expression, the "may" gives the victim of a human right violation, the option of going to Court to seek redress. The victim is under no compulsion to go to court for redress if he does not wish to do so. In the example given above, the victim in detention may decide not to seek his release, but wait till the authority release him, after which he may sue for damages for unlawful arrest and detention. Or some people may even not take any such action at all, and may console themselves in God's retribution. The "may" indicates the freedom of the victim to decide on what to do. For to compel such a victim to seek redress in court would equally amount to a violation of his fundamental right and freedom of thought, conscience and belief as guaranteed in article 21(1)(b) of the 1992 Constitution. But if, however the victim decides to go to Court for redress, then he ought to apply to the High Court as provided in article 33(1) and confirmed in article 140(2) of the 1992 Constitution. Article 140(2) provides:

"140(2) the High Court shall have jurisdiction to enforce the fundamental Human Rights and Freedoms guaranteed by this Constitution."

No other court in the 1992 Constitution is such original jurisdiction vested. To contend therefore that the two expressions discussed above are permissive and do not exclude the original jurisdiction of the Supreme Court is not only untenable but would even lead to the absurd result that all the other courts can by that argument exercise such jurisdiction. For the Supreme Court is not specifically mentioned in Article 33(1).

It is also important to note, in relation to the expression "may apply" that under the 1992 Constitution, apart from the judiciary, the Commission for Human Rights and Administrative Justice created in chapter eight thereof, is also empowered to handle complaints, investigate violations and offer redress in human rights issues. Thus a victim of human rights violation may decide not to seek redress at the courts but at the Commission for Human Rights and Administrative Justice which is empowered under article 218 of the 1992 Constitution to, inter alia, investigate and take "appropriate action to call for the remedying, correction and reversal" of human rights abuses.

It is clear therefore that there is nothing in article 33(1) that can support the contention that the Supreme Court has concurrent original jurisdiction with the High Court.

But it is further contended that the Supreme Court's concurrent original jurisdiction can be inferred from the reading of article 33(1) and 130(1) together. Article 130(1) reads:

"130(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive jurisdiction in —

(a) all matters relating to the enforcement or interpretation of this Constitution; and

(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution".

For a proper analysis and understanding of this provision, I will break it down into two parts: the "subject to" part, and main part. The "subject to" part is:

"Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution".

The rest of the provision is the main part which outlines the Supreme Court's exclusive original jurisdiction in the matters set out in sub-clauses (a) and (b) thereunder.

Now it must be noted that the expression "subject to" appearing at the beginning of article 130(1) of the 1992 Constitution is generally used in legislation to serve as a warning and thereby avoid an apparent conflict between different provisions of the same enactment or between different enactments. See, Clark (CAJ) Ltd. vrs. Inland Revenue Commission (1973) 1 WLR 905, affirmed (1975) 1 801 CA, and Addo vrs. Sarbah (1968) GLR 154. In the latter case, which dealt with the original jurisdiction of the High Court in rent disputes, the relevant paragraph 27 of the Courts Decree 1966 (NLCD 84) provided:

"27. Subject to and in accordance with the provisions of this Decree and any other enactment for the time being in force, the High Court shall have —

(a)     original jurisdiction in all matters

(b)     ..........................................

(c)     ..........................................

(d)     .........................................."

In explaining the purpose and effect of the expression "subject to" at the beginning of paragraph 27 of NLCD 84, Charles Crabbe J, as he then was, that acknowledged authority in legislative drafting, said at page 158:

"The expression "subject to" is used in legislation to serve as a warning. It is used to indicate a modification and thereby point out that the particular provisions in which it is used is not complete by itself. It is used to avoid an apparent conflict between enactments or between different parts of the same enactment. To resolve a conflict that would otherwise be apparent, it was, in my view, desirable that a warning should be given. It is therefore clear to me that paragraph 27 of the Courts Decree is incomplete as it stands, for the whole of that paragraph cannot be read and construed without looking at other provisions of the Decree with which it might be in conflict. Not only that. It has to be read in conjunction with 'any other enactment for the time being'."

His Lordship then proceeded at page 159 to state the effect of the "subject to" part of paragraph 27 thus:

"The effect of this is that if there is any enactment which confers specific jurisdiction on any court or authority or body, the High Court is precluded from dealing with that matter save perhaps on an appeal" (emphasis mine).

Indeed in the 1992 Constitution, the expression "subject to" appears in over fifty provisions. For example, it appears in article 5(1), 6(2), 11(5), 17, 39(11), 50(1), 55(3), 55(10), 55(17), 58(3), 69(4), 92(11), 94(c), 93(2), 120, 113, 136(5), 110(1), 244(4), 278(1) and 278(4).

Article 136(5), for instance, reads:

"136(5) Subject to clause (3) of article 129 of this constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law."

Article 129(3) in respect of which 136(5) is subject to, also reads:

"The Supreme Court may while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law".

Now it can be seen from the above two provisions, i.e. 129(3) and 136(5), that, had it not been for the "subject" to part of article 136(5), there would have been a dilemma for the Court of Appeal whenever that Court is faced with a choice between a decision of it which is in conflict with that of the Supreme Court on a question of law. But by virtue of the "subject to" part of article 136(5), whenever such a situation occurs, the main part of article 136(5) gives way to the "subject to" part, to enable the Court of Appeal follow the decision of the Supreme Court as provided in 129(3) instead of its previous inconsistent decision. The Court of Appeal is thereby, in effect, precluded from following its own previous inconsistent decision because of the "subject to" part of article 136(5).

 The net result of the above analysis is that where a statutory provision is expressed to be subject to another statutory provision or statute, this generally makes the "subject to" provision prevail over the main provision, whenever there appears to be conflict or incongruity in reading the two provisions together.

Now in the instant case, in respect of article 130(1), the main part thereof show that the Supreme Court has exclusive original jurisdiction in respect of the matters set out in sub-clause (a) and (b) thereunder. And under sub-clause (a), the exclusive original jurisdiction is in respect of the interpretation and enforcement of all the provisions of the Constitution.

But then article 33(1) as conclusively confirmed by article 140(2) of the 1992 Constitution, shows that the High Court also has original jurisdiction in the enforcement of the human rights and freedoms provisions in chapter five of the Constitution. In that situation the main part of article 130(1) which talks of the Supreme Court's exclusive and the emphasis is on the word "exclusive", original jurisdiction in the enforcement of ALL the provisions of the Constitution, which by that must necessarily include those on fundamental human rights, cannot be reconciled with the allocation of the same original jurisdiction in human rights provisions to the High Court in articles 33(1) and 140(2). In other words if that jurisdiction is exclusive to the Supreme Court, as the main part of article 130(1) provides, then that exclusive original jurisdiction cannot be shared with the High Court nor any other court.

Accordingly, to remove this conflict between the exclusiveness of the Supreme Court's original jurisdiction and the High Court original jurisdiction in articles 33(1) and 140(2), the "subject to" part of article 130(1) precludes the Supreme Court from exercising original jurisdiction in the enforcement of human rights abuses, so as to preserve the exclusiveness of the Supreme Court's original jurisdiction in the enforcement of all the other provisions of the 1992 Constitution, except those on the fundamental human rights and freedoms. For, just as the "subject to" part of article 136(5) precluded the Court of Appeal from following its own previous inconsistent decision because of article 129(3), so the "subject to" part of article 130(1) precludes the Supreme Court, from exercising original jurisdiction in the enforcement of fundamental human rights and freedoms provisions as same had already been vested in the High Court under article 33(1). It is by such an interpretation of article 130(1) that one can give meaning and content to the exclusiveness of the original jurisdiction vested in the Supreme Court in the main part of article 130(1). The word "exclusive" was not used in article 130(1) without significance. And an interpretation which fails to bring out the meaning and effect of the word "exclusive", would be myopic. For as the Privy Council cautioned in Ditcher vrs. Denison (1857) 11 Moo. P.C. 324 at 337:

"It is also a good general rule in jurisprudence that one who reads a legal document, whether public or private, should not be prompt to ascribe, should not without necessity or some sound reason, impute to its language tautology or superfluity, and should be rather at the outset inclined to suppose each word intended to have some effect, or be of some use".

The word "exclusive" in article 130(1) was therefore not put down for fun but intended to vest in the Supreme Court a jurisdiction not to be shared with any other Court. Not surprisingly therefore, the unanimous decision in Gbedemah vrs. Awoonor-Williams (supra), as already pointed out, came to the same conclusion as I have done, when in defining the exclusive original jurisdiction in the enforcement of the provisions of the Constitution, the Court stated at page 440 that the Supreme Court's power of enforcement

"...means the enforcement of the provisions of the Constitution, other than the provisions of article 12 to 27". (i.e. those on fundamental human rights)

The same conclusion was also reached by Mrs. Bamford-Addo J.S.C. in GBA vrs. Attorney-General (supra) wherein the GBA sought a declaration that section 57 of the Courts Act 1993 (Act 459) and 15(1) of the Chieftaincy Act 1971 (Act 370) were inconsistent with article 140(1) of the 1992 Constitution. After meticulously examining Gbedemah vrs. Awoonor-Williams (supra), the Constitutional proposals, and the relevant provisions of the 1969 and 1992 Constitutions, Mrs. Bamford-Addo, J.S.C. said:

"Unless a person can bring his case within the situations indicated in Gbedemah vrs. Awoonor-Williams as approved in Tait vrs. Ghana Airways Corporation, the original jurisdiction  of this court cannot be invoked. There are other constitutional arrangements for an aggrieved person to call upon another court to intervene before the matter travels to us by way of appeal. The original jurisdiction is a special and exclusive jurisdiction which can be invoked in the circumstances indicated already".

She then went on to make a crucial distinction between article 2(1) and 33(1) of the 1992 Constitution, thus:

"It is necessary to maintain the distinction between a suit to enforce the Constitution and one which is intended to enforce to a personal or proprietary right which has been breached. While the former action can be brought by invoking the original jurisdiction of the Supreme Court, the latter is enforceable in the High Court."

She thereafter quoted articles 33(1) and 140(1) of the 1992 Constitution and concluded thus:

"In my view, article 2(1)" is not for the enforcement of right - whether individual or corporate rights. That is the function of article 33(1) of the Constitution....Article 2(1) is for the enforcement and interpretation of the Constitution. This is the ratio decided in Tait vrs. Ghana Airways Corporation (supra). So in Peoples Popular Party vrs. Attorney-General (supra) when the Party alleged its right under the Constitution were breached it properly went to the High Court to seek a redress or remedy".

The above excellent and impeccable exposition of Mrs. Bamford-Addo J.S.C. clearly explodes the proposition that the Supreme Court has concurrent original jurisdiction with the High Court in the enforcement of human rights actions. Thus a reading of articles 33(1) and 130(1) together does not in any way, bear out the contention that the Supreme Court has concurrent original jurisdiction with the High Court in human right abuses. Such a contention is clearly inconsistent with the exclusiveness of the original jurisdiction vested in the Supreme Court in the main part of article 130(1). It is indeed a failure to appreciate the import of the "subject to" part of article 130(1) and the meaning and effect of the word "exclusive" in the main part of the same article that leads to the untenable concurrent notion.

No Practice and Procedure rules:

The last argument for the concurrent original jurisdiction is founded on the absence of rules of court governing the practice and procedure of the Superior Courts in human rights and freedoms violation. Going strictly by this argument it is not only the High Court, but the Supreme Court itself cannot also entertain that original jurisdiction because the rules required under article 33(4) are meant not only for the High Court but the superior courts which include the Supreme Court. The logical conclusion of this argument should be that because of the absence of the rules of court required under article 33(4) human rights abuses cannot be redressed at all in the courts. And the only avenue left for a victim ought to be the Commission for Human Rights and Administrative Justice. For if there are no rules to enable the High Court exercise it's original jurisdiction, no such rules had equally been made to enable the Supreme Court exercise any such original jurisdiction. But there can certainly be no failure of justice.

Now article 33(4) reads:

"The Rules of Court Committee may make rules of Court with respect to the practice and procedure of the superior courts for the purpose of this article".

As I have already pointed out the said rules of court have as yet not been made. But does this mean that there should be no means of seeking redress in human rights violations at the High Court? This question was considered in the Privy Council case of Jaundoo vrs. Attorney-General of Guyana (1971) AC 927 PC. In that case, article 8(1) which was part of the human rights provisions of Guyana Constitution guaranteed that there should be no compulsory acquisition of a person's property except in accordance with a written law and the payment of compensation. Article 19(1)(2)(3) and (4) of the same Constitution gave a right to a victim of human rights violation, to seek redress at the High Court with a further right of appeal to the Court of Appeal and finally to the Privy Council. Article 19(6) thereof directed Parliament to make rules on the practice and procedure for seeking redress at the said courts. At the time of Jaudoo's case Parliament had not made the said rules. Now, Jaundoo, a landowner, fearing that her constitutional right under article 8(1) of the Constitution was about to be infringed by the Government's threat to construct a new road upon part of her land, took out an originating notice of motion against the Attorney-General for redress under article 19 of the Constitution.          The High Court of Guyana dismissed her application not on the merit but on grounds that originating notice of motion was improper. Her appeal to the Court Appeal was also dismissed by a majority of 2:1, with the opinions of their lordships being as diverse and conflicting on the proper procedure to be adopted in such circumstances. At the Privy Council, their Lordships referred to the statement of the law in In re Meister, Lucious and Bruning Ltd. (1914) 31 TLR 28 at 29, which reads:

"Where the Act (s.c. Constitution) merely provides for an application and does not say in what form that application is to be made, as a matter of procedure it may be made in any way in which the court can be approached".

To this statement of the law, their Lordships added at page 983 that:

"The procedure adopted must be such as will give notice of the application to the person or the legislative or executive authority against whom redress is sought and afford to him or it an opportunity of putting the case why the redress should not be granted".

This Privy Council decision in Jaundoo vrs. Attorney-General of Guyana (supra) was referred to with approval by Francois J.S.C. in his opinion Darko vrs. Amoah (1989-90) 2 GLR 214 SC wherein at page 219, his Lordship said:

"In any event it is elementary that where the procedure for utilizing a substantive legal provision has not been spelt out, a litigant is entitled to adopt the nearest, reasonable mode of utilizing the right accorded by the law".

Again Robert Hayfron-Benjamin J, as he then was, adopted the statement of the law in In re Meister, Lucius & Bruning Ltd. (supra) in the Peoples Popular Party vrs. Attorney-General (1971) 1 GLR S138. In that case, the People Popular Party, a registered political party under NLCD 34, were refused a permit by the police to hold protest marches in respect of a political issue, even though a permit had been given to another group to protest on a similar issue. The police did not assign any reason for the refusal. The Peoples Popular Party thereupon by an originating summons sought a High Court's order to compel the police to issue the permit to them, submitting that their liberty of association, movement and assembly as provided in the 1969 Constitution, had been infringed. The Rules of Court Committee had then not made rules governing the practice and procedure for the enforcement of the fundamental human rights. Thus as to whether the Peoples Popular Party could seek redress at the High Court by originating summons, his Lordship at page 145, of the report said:

"Article 28(4) of the Constitution provides that, 'the Rules of Court Committee may by constitutional instrument, make rules of court with respect to the practice and procedure of the Superior Court of Judicature for the purposes of this article.' No such rules have so far been made. It is however a rule of practice that where a statute provides for an application to the court without specifying the form in which it is to be made, and the normal rules of court do not expressly provide for any special procedure, such applications may be made by an originating motion. See Re Meister Lucious and Bruning Ltd. (1914) WN 390 ... I am satisfied that ... their application is properly before this Court".

The legal position therefore is that where an enactment confers an actionable right on a person, but there are no rules specifically provided for vindicating that right because either that enactment provided none, or it rather directed an authority to make the said rules which are yet to be made, an aggrieved person is entitled to adopt the nearest reasonable procedure of utilizing the right accorded by the law. A procedure which must be such as to give notice to the person or legally authorized authority against whom redress is sought, and afford to him or it an opportunity of putting his side of the case. For where there is an actionable right there must be a remedy for vindicating that right.

Accordingly, in the instant review, the absence of rules of Court by the Rules of Court Committee cannot amount to a failure of  justice nor imply that there can be no means of seeking redress at the High Court. Furthermore the absence of such rules of Court cannot also justify a recourse to the exclusive original jurisdiction of the Supreme Court set out in article 130(1) of the 1992 Constitution:

Conclusion:

From the above exposition, it is clear that each of the arguments advanced in support of the view that the Supreme Court has concurrent original jurisdiction with the High Court in redressing human rights abuses under the 1992 Constitution is untenable, and the majority at the ordinary bench were therefore justified in dismissing the plaintiffs action on grounds of jurisdiction. The application for review will therefore be dismissed.

ATUGUBA, J.S.C.:

This is an application for Review of the decision of this court dated the 13th day of February 1996 dismissing the plaintiffs action wherein he sought the reliefs already recounted in the rulings that have preceded mine. I also agree with the reasons already given in those preceding rulings that this application be entertained.

The applicant contends that in so far as his said action was dismissed for want of jurisdiction an exceptional circumstance has thereby arisen since this court "assumed jurisdiction," "in the case of the New Patriotic Party (NPP) vs. Inspector General of Police (IGP) Supreme Court, Suit No.3/90, November 30, 1993, which is, in all relevant respects, identical to the present case." He in substance contends that "once the jurisdiction of the Supreme Court has been properly invoked, .... that Court has power under Article 129(4) of the Constitution to exercise" all the powers, authority and jurisdiction vested in any court established under this Constitution or any other Law. This we submit includes the power to enforce the human rights provisions of the Constitution. Article 129(4) reads in full as follows:

"For the purpose of hearing and determining a matter within its jurisdiction and the amendment, execution or enforcement of judgment or order made in any other matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the power, authority or jurisdiction vested in any court established by this Constitution or any other law. " (e.s)

I have come to the conclusion that this court indeed has a concurrent jurisdiction with the High Court in the enforcement of the Fundamental Human Rights by a process of reasoning that is not quite the same as that of the applicant. It seems to me that if one goes by the applicant's route alone it is workable only where the issue of the fundamental human rights is incidental or ancillary to the main original action before this court. In other words where the real substance of an action before this court is within the jurisdiction of this court but then touches an issue of fundamental human rights coincidentally then such an issue can as well be entertained by this court by reason of Acticle 129(4). This, to my mind, in this connection, is the crux of Article 129(4) which is premised on this court having to deal with "a matter within its jurisdiction and the amendment, execution or enforcement of judgment or order made in any other matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law." (e.s) In other words article 129(4) cannot by itself initially confer jurisdiction on this court in the fundamental human rights. Some such reasoning has all along been the core ratio decidendi of such cases as TAIT vs. GHANA AIRWAYS CORPORATION, 2 G & G 527 and NANA YIADOM vs. NANA AMANIAMPONG & ORS. (1981) GLR 3. The case of NEW PATRIOTIC PARTY vs. THE ATTORNEY-GENERAL popularly known as the C.I.B.A case could illustrate this point. There the N.P.P. challenged the constitutionality of certain provisions of the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) which. inter alia, required certain specified organisations to be compulsorily  registered with that Council, on grounds that touched and concerned the freedom of association, a fundamental human right. The action succeeded in part. The rights of the NPP itself were not affected in that action. The involvement of the fundamental human rights in that case was therefore only incidental.

The predecessors of Article 130(1) of the Constitution 1992, are article 106(1) of the 1969 Constitution which provided as far as is relevant that:

"106(1) The Supreme Court shall, save as otherwise provided, in article 28 of this Constitution, have original jurisdiction, to the exclusion of all other courts,

(a) in all matters relating to the enforcement or interpretation of any provision of this Constitution,"

and article 118(1) of the 1979 Constitution which provided that:

"118(1) The Supreme Court, shall, except as otherwise provided in article 35 of this Constitution, have original jurisdiction, to the exclusion of all other courts,

(a) in all matters relating to the enforcement or interpretation of any provision of this constitution."

However the 1992 Constitution has, in modified language, provided in article 130(1) as follows:

"130(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in — (a) all matters relating to the enforcement or interpretation of this Constitution,"(e.s.)

The differences in the language used in the 1969 and 1979 Constitutions and the 1992 Constitution with regard to the original jurisdiction of this court are crucial and unaccidental.  The background to the said provisions of the 1969 and 1979 Constitutions has vividly been related by a keen Ghanaian constitutionalist, (now Professor) C.E.K. Kumado in his article "Judicial Review of Legislation in Ghana since Independence" (1980) 12 R.G.L.67 at particularly p.82 where he states:

"The Decree which set up the Constitutional Commission had emphasised that the commission's proposals should incorporate the doctrine of "separation of powers."

It was to include provisions for a "separate and independent" judicial organ and to ensure "that the said Constitution provides an effective machinery for the protection" of individual freedoms. The Commission remained alive to these injunctions."

The "effective machinery for the protection" of individual rights was provided by the specific recourse to the High Court in the provisions concerning the fundamental human rights under the 1969 Constitution. It was not surprising therefore that the Legislature used the words "save as otherwise provided ......." in the 1969 Constitution (Article 106(1)) and "except as otherwise provided ...."  in the 1979 Constitution, (article 118(1)) (e.s.)

It is well known that in GBEDEMAH vs. AWOONOR-WILLIAMS, 2 G & G 438 the Court of Appeal, sitting as the Supreme Court held that article 106(1) of the 1969 Constitution ousted the jurisdiction of the Supreme Court from the enforcement of the fundamental human rights. This interpretation was quoted with approval by the Court of Appeal sitting as the Supreme Court, in TAIT vs. GHANA AIRWAYS CORPORATION (1970) 2 G & G 527.

However in KWAKYE v. ATTORNEY-GENERAL (1981) G.L.R. of S.C. at 13 the Supreme Court in its unanimous Ruling on a preliminary objection to its jurisdiction held per Apaloo C.J. that: "The plaintiff claims that he was not tried but that a prison sentence of 25 years was allegedly imposed on him in his absence. He says that act contravened chapter 6, the human rights provisions of the Constitution and invites us to so declare. That the Constitution, 1979 clothes this court with jurisdiction to make the declaration sought by the plaintiff in a fit case is hardy in doubt. (e.s) Article 2(1)(b) enacts that:

"2(1) A person who alleges

       ....................................

   (b) that any act or omission of any person, is inconsistent with, or is in contravention of, a provision of this Constitution, may at any time bring an action in the Supreme Court for a declaration to that effect." (The emphasis is ours)

It is precisely that complaint that the plaintiff makes. If we construe article 2(1)(b) alright, he is entitled to invoke the jurisdiction of this court as soon as the act complained of was committed or even threatened." (e.s) Then in answer to the reliance placed on the ouster clause of section 15(2) of the transitional provisions, Apaloo C.J. at p.14 said:

"This subsection is very widely couched but it seems to us that as the plaintiff sought a relief which this court is prima facie entitled to grant, the defendant who claims that this court's jurisdiction is ousted by this provision, must provide a factual basis for it."(e.s)

It is of great significance that a few months prior to this ruling in Kwakye's case, the esteemed late Cecilia Koranteng-Addow J, had in almost identical circumstances entertained an application for Habeas Corpus in the REPUBLIC vs. DIRECTOR OF PRISONS, EX PARTE SCHAKLEFORD (1981) GLR 554, as a fundamental human rights action and in overruling similar objections to jurisdiction of the High Court at p.575 she held:

"Where a person seeks to enforce article 35, the jurisdiction of the High Court is not ousted by article 118(2). Article 15(2) of the transitional provisions may provide an answer, which cannot be questioned, to the charge, but before resort is had to it the factual question as to whether this is a matter which the transitional provisions is sought to protect must be answered. Otherwise how can the court tell when one is an A.F.R.C. Convict?"

Earlier at page 565 she refused to refer the matter to the Supreme Court because until the factual aspect of it had been determined no issue of interpretation of the Constitution had arisen. It is clear therefore that the action in KWAKYE vs. ATTORNEY-GENERAL supra, was an action to enforce the Fundamental Human Rights and was entertained as such. Clearly then when the 1992 Constitution came to be framed the Legislature was faced with a situation where the Court of Appeal had construed a similar provision to exclude the original jurisdiction of the Supreme Court from the enforcement of the Fundamental Human Rights whereas the Supreme Court in the Kwakye case had held the contrary. Whether in response to that situation or not, the Legislature is presumed to know the law and the plain fact is that article 130(1) of the 1992 Constitution is substantially differently worded both in the choice of new opening phraseology and grammatical restructuring of the provision relating to the Supreme Court's jurisdiction vis a vis the enforcement of the fundamental human rights. In place of "save as otherwise provided" in article 106(1) of the 1969 Constitution and "except as otherwise provided" in article 118(1) of the 1979 Constitution we now have "subject to the jurisdiction of the High Court" in article 130(1) of the 1992 Constitution followed by "shall have exclusive original jurisdiction" as opposed to  "......... have original jurisdiction, to the exclusion of all other courts," commonly employed in articles 106(1) and 118(1) of the 1969 and 1979 Constitutions, respectively.

The phrase "subject to ..." Does not mean "save as ..........." or  "except as....", though the latter two expressions mean one and the same thing.  Nor is "subject to ... shall have exclusive original jurisdiction" the same as "save as ..... (or "except as ....") .... shall have original jurisdiction, to the exclusion of all other courts." In the latter case it is the residue of the original jurisdiction less what has already been taken out of it by the expropriating words, "save as" or "except as .....", that then becomes exclusive, but "shall have exclusive original jurisdiction" cannot mean not having original jurisdiction; there is original jurisdiction, but it should not be exclusive where it is "subject to ........"  the jurisdiction of another court.

In ADEMOLA II vs. AKINWANDE THOMAS (1946) 12 WACA 81 the Nigerian Supreme Court had to construe the following provision in section 12 of Ordinance No.23 of 1943 Laws of Nigeria;

"Subject to such jurisdiction as may for the time being be vested by ordinance in native courts, the jurisdiction by this ordinance vested in the Supreme Court shall include all His Majesty's civil jurisdiction which at the commencement of this ordinance was, or at any time afterwards may be exercisable in Nigeria, for the judicial hearing and determination of matters in difference, or for the administration or control of property and persons, and also all His Majesty's criminal jurisdiction which at the commencement of this Ordinance was, or at any time afterwards may be exercisable for the repression of punishment of crimes or offences or for the maintenance of order, and all such jurisdiction will be exercised under and according to the provisions of this ordinance and not otherwise. Provided that, except in so far as the Governor may by order in council otherwise direct and except in suits transferred to the Supreme Court under the provisions of section 25 of the Native Courts Ordinance, 1933, the Supreme Court shall not exercise original jurisdiction in any suit which raises any issue as to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a native court nor in any matter which is subject to the jurisdiction of a native court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death."

It was contended that this provision ousted the jurisdiction of the Nigeria Supreme Court in any matter where jurisdiction had been conferred on a native court. Rejecting that argument the W.A.C.A. held at 83 as follows:—

"It appears to us that no other reasonable interpretation can be given to them than that the Supreme Court shall exercise its jurisdiction subject to that of the Native Courts so that, where a Native Court has exercised or is exercising the jurisdiction vested in it by Ordinance, the jurisdiction of the Supreme Court shall not supersede it and shall not be exercised in the same matter. This is a limitation obviously desirable wheresoever there may exist courts of equal and concurrent jurisdiction within the same area and such an interpretation gives coherence to the whole section and meaning to each part thereof. "(e. s.)

The decision of the W.A.C.A on appeal, sub nomine AKISATAN v. AKINWANDE THOMAS (1950) 12 WACA 90 was confirmed by the Privy Council. It is true that the proviso to the provision played an important role in its interpretation but the Privy Council emphasised that even without that proviso the construction of it by the W.A.C.A was right.

At page 91 Lord Simonds who delivered the judgment of the Privy Council said:

"it was not contended before their Lordships that the present suit raised any issue in respect of which it was specifically enacted by the proviso to the section that the Supreme Court should not exercise original jurisdiction. But it was contended that the effect of the opening words of the section "subject to such jurisdiction as may for the time being be vested by ordinance in Native Courts" was to oust the jurisdiction of the Supreme Court and to vest exclusive jurisdiction in a native court in any matter in respect of which jurisdiction has been vested by ordinance in that Native Court." (e.s)

His Lordship roundly held at p.92 that "... The opening words upon which the appellants rely, do not necessarily bear the meaning for which they contend, which is in effect to read them as if they ran "Except in those matters in respect of which jurisdiction may from time to time be vested in Native Courts." On the contrary they would, even without the proviso, be fairly susceptible of the meaning which is given to them by the Court of Appeal and which might perhaps be very briefly stated by saying that the words "subject to" are equivalent to "without prejudice to."

Continuing he said:

"But if it is clear that the ordinance contemplates concurrent jurisdiction, this is inconsistent with the vesting of exclusive jurisdiction in the Native Courts, where ex facie the Supreme Court would have jurisdiction.  On the other hand, it appears to their Lordships that since by the terms of the Ordinance the jurisdiction vested in the Supreme Court was to include all His Majesty's jurisdiction, etc, the careful draftsman might well think it desirable to make it clear that this enactment was not to prejudice the Native Courts in the exercise of such jurisdiction as might from time to time be vested in them. Accordingly the section opens with words which are apt to provide that safeguard.

Further it may be observed that neither in section 12 of the relevant Ordinance nor in any other Ordinance to which their Lordships' attention has been called, whether relating to the establishment of Native Courts or to the Constitution of the High Court of the Protectorate or of the Supreme Court is the appropriate word "exclusive" used in relation to the jurisdiction vested in native courts. Both in the Ordinance of 1943 and in earlier Ordinances where it is intended to vest exclusive original jurisdiction in such courts this result is achieved by a limitation of or exception from the jurisdiction of the High Court or Supreme Court. " (e.s)

In the English case of C & J CLARK LTD. vs. INLAND REVENUE COMRS (1973) 2 ALLER 513, Megarry J, had to construe the words "subject to" in s.78 of the Finance Act 1965. At page 520 he stated:

"I cannot see why the simple phrase "subject to" should be subject to such delicate adjustments; and if it were, I can foresee trouble, if, say, sub-s (6) of a section with ten subsections began "subject to sub-s(1) above and to the following provisions of this section."

In my judgment, the phrase,"subject to" is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision. Where it appears in the opening words of s.78(1), it does nothing in my judgment to demonstrate that sub-s(2) allows an appointment to be made even if there has been no shortfall."

Applying these principles I am unable to see any conflict between Article 130(1) and Articles 140 and 33(1) of the 1992 Constitution. The latter provides

"33.(1) Where a person alleges that a provision of this Constitution on the fundamental human rights has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress."(e.s)

My approach is internally supported by the context of the 1992 Constitution itself. For example, under Article

"137(1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law".(e.s)

Consequently, for example, it is provided thus in article

"131(3) The Supreme Court shall have appellate jurisdiction, to the exclusion of the Court of Appeal, to determine matters relating to the conviction or otherwise of a person for high treason or treason by the High Court."

This clearly demonstrates that the words "subject to...." in article 137(1) could not have by themselves operated to exclude the appellate jurisdiction of the Court of Appeal from convictions for "high treason or treason by the High Court" under article 131(3) if the words "to the exclusion of the Court of Appeal" were not therein inserted. It is a trite principle of the construction of statutes that the Legislature does not waste its words or use them for no purpose. Certainly the words "to the exclusion of the Court of Appeal" (e.s.) were meant to prevent the Court of Appeal from having concurrent appellate jurisdiction with the Supreme Court in convictions "for high treason or treason by the High Court," which would have been the resultant position without them, despite the words subject to...." in article 137(1). It also shows that if the Legislature had similar intent in relation to the jurisdiction of the Supreme Court in the enforcement of the fundamental human rights which is clearly, comprehended by the words of Articles 2(1) and 130(1) of the 1992 Constitution, it similarly would have used that phrase of exclusion in article 33(1) instead of the words "without prejudice to any other action that is lawfully available" (e.s.) words which are very accommodating and respectful of the Supreme Court's jurisdiction in the fundamental human rights.

It is also to be noted that though section 15(1) of the Chieftaincy Act, 1971 (Act 370) vests exclusive jurisdiction in chieftaincy matters in traditional councils subject to its other provisions, it has not been held that its effect is to oust that jurisdiction in such matters when another provision also confers jurisdiction in such matters on another authority. See REPUBLIC vs. SECRETARY FOR CHIEFTAINCY AFFAIRS, EX PARTE SAM (1987-88) 1 GLR 189 C.A.

In GHANA BAR ASSOCIATION vs. ATTORNEY-GENERAL (1995) 1 G.S. C.J. 11 S.C., this court held that having regard to the words "subject to ..." in Article 140(1) of the 1992 Constitution, the High Court has no jurisdiction in chieftaincy matters in view of the other provisions relating to chieftaincy. It is clear however that the court was much swayed by the facts (a) that the ordinary courts are not suitable for the adjudication of matters steeped in tradition for which the chieftaincy tribunals are better equipped by reason of the customary background of their panel and (b) the consistent exclusion of the ordinary courts from chieftaincy matters by prior legislation. The case of ASARE vs. OPPONG (1967) GLR 433 which held that appeals from Workmen's Compensation actions still lay from the Circuit Court to the High Court and not the Court of Appeal even though an amendment sought to vest the Court of Appeal with jurisdiction over decisions of a Circuit Court, turned on the peculiar wording of paragraph 36 of the Courts Decree 1966 (N.L.C.D 84) which provided:

"Without prejudice to any powers or rights otherwise expressly provided for in the provisions of this Decree or in any other enactment for the time being in force, any person aggrieved by a decision of a Circuit Court, other than a decision in a summary trial of a criminal case may, subject to and in accordance with those provisions, appeal to the Court of Appeal". (e.s)

The crucial difference lay in the words

"... and in accordance with those provisions",

which made it difficult to appeal to the Court of Appeal having regard to the provisions of section 21 of the Workmen's Compensation Act 1963 (Act 174) which directed appeals from the Circuit Court in such matters to the High Court. This is reinforced by C.O.P. v. AKYEAMPONG (1963) 1 GLR 402 S.C. in which it was held that section 8(1)(b) of the Courts Act 1960 which provided for "the hearing of appeals from any decision of a High Court or Circuit Court in a criminal matter exercised in accordance with the provisions of this or any other enactment," was circumscribed by section 14 of the Courts Act, 1960 which limited it to only an appeal by a defendant who had been convicted or whose conviction had been upheld by a Circuit Court and therefore the Prosecution could not appeal under S.335 of the Criminal Procedure Code 1960 which provided that "The prosecution ...... may appeal from a decision of a Circuit Court in its appellate jurisdiction under this Part to the Supreme Court in Accordance with section 14 of the Courts Act, 1960 (C.A.9)"(e.s.)

I am also encouraged by S.Y. Bimpong-Buta, a keen Ghanaian legal scholar, who has stated at page 21 of the Ghana Bar Association publication entitled "Lectures in Continuing Legal Education 1993 - 1994" that:

"It appears, given the wording of article 130 of the 1992 Constitution, that the Supreme Court has concurrent original jurisdiction with the High Court to determine and give redress in respect of an application by an aggrieved person - alleging in relation to him, a contravention of the Fundamental Human Rights and Freedoms enshrined in chapter 5 of the 1992 Constitution."

He further states at page 26:

"Under article 2 of the 1992 Constitution, the Supreme Court has original jurisdiction relating to the enforcement of the provisions of the Constitution. This jurisdiction is distinct from an action to enforce the provisions relating to the Fundamental Human Rights and Freedoms which is concurrently vested in the High Court under articles 33(1) and 140(2) of the Constitution."

In view of KWAKYE v. ATTORNEY-GENERAL, supra I cannot endorse the view that article 2 of the 1992 Constitution does not cover the fundamental human rights.

I therefore, hold that the applicant succeeds on his ground relating to jurisdiction.

As to the prayer for the return of his old passport or a new one I think the same was rightly dismissed. That prayer in so far as the old passport is concerned involves some sort of renvoi. He desires its return to him only to return it attached to his intended application for a new one to the same Ministry of Foreign Affairs. Since it is not disputed that an old passport is the property of the Ghana Government under the Passports and Travel Certificates Decree 1967 its custody by the respondents is proper and does not in the circumstances of this case prejudice the applicant's right or ability to apply for a new one. There is no miscarriage of justice occasioned by the dismissal of that prayer. In any case the fact that he is a citizen of Ghana or any other fact which can be established by the production of the old passport has been established abundantly in the original proceedings and judgment of this court in this case. It has been therein clearly admitted that the applicant is a citizen of Ghana and that the old passport is in the custody of the respondents and all this has been upheld by the original decision of this court. I do not see how in these circumstances the retention of the old passport of the applicant prejudices the applicant in any way.

As to a new passport he has not yet applied for one and he certainly cannot seek and does not seek, in the circumstances of this case, that the necessity for an application for a new passport by him be dispensed with.

Consequently no further issues fall for adjudication until he applies for one and is refused or threatened with a refusal. It is trite law that if a decision of a court is otherwise supportable, the same ought not to be disturbed simply because some or all the actual reasons for the same are erroneous.

Subject therefore to what I have held concerning jurisdiction I would also dismiss this application.

COUNSEL

Nana Akufo Addo, with Akoto Ampaw for the Applicant

Dr. Obed Asamoah, Attorney-General with Mr. Martin Amidu Dep. Attorney-General, Mr. Avah; Chief State Attorney for the Attorney-General.

I. W.