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JUDGMENT
ACQUAH, JSC:
My Lords, the original
jurisdiction vested in the
Supreme Court by articles 2(1)
and 130(1) of the 1992
Constitution to interpret and
enforce the provisions of the
Constitution, is a special
jurisdiction meant to be invoked
in suits raising genuine or real
issues of
— the interpretation of a
provision of the Constitution or
— the enforcement of a
provision of the Constitution,
or
— a question whether an
enactment was made ultra vires
Parliament, or any other
authority or person by law or
under the constitution.
See: Gbedemah vrs. Awoonor-Williams,
(1969) 2 G&G 438 Tait, vrs Ghana
Airways Corporation (1970)2 G &
G 527, Yiadom vrs Amaniampong
(1981) GLR 3 SC, Edusei vrs
Attorney-General (1996-97) SCGLR
1, Edusei vrs. Attorney General
(No.2) CM 21/96, 22nd April 1998
SC (unreported), Republic vrs.
Special Tribunal ex parte Akosah
(1980) GLR 592 CA.
This special jurisdiction is not
meant to usurp, or to be
resorted to in place of, any of
the jurisdictions of a lower
court. In other words, where our
said jurisdiction has been
invoked in an action which
properly falls within a
particular course of action at a
lower court, this court shall
refuse to assume jurisdiction in
that action, notwithstanding the
fact that it has been presented
as an interpretation and/or
enforcement suit. For a large
number of actions which fall
within specific causes of action
can be presented in the form of
interpretation and/or
enforcement actions. For
example, if someone goes to farm
or commences building on another
person’s land, the latter can
file a suit at the Supreme Court
invoking its original
jurisdiction for a declaration
that the said entry unto his
land, constitutes an invasion of
his right to his property under
article 18 of the 1992
Constitution, damages for such
violation, and an order to
recover his property. But it is
quite clear that such a suit is
really a land suit falling
within the jurisdiction of the
lower court with the authority
to handle claims of the value of
the land in dispute.
In Tait vrs. Ghana Airways
Corporation (1970) 2 G & G 527
the plaintiff, a pilot, was
employed by the defendant in
written service agreement dated
1st January 1967. On 24th April
1967, a DC-3 plane he was
piloting from Kumasi to Accra
crashed in a field near Takoradi
with a loss of a passenger. He
was suspended 'without
prejudice' and an enquiry into
the cause of the crash was held.
The report of the enquiry was
presented to the Government and
his suspension was withdrawn.
But in a letter dated 29th May
1970 signed by the managing
director of the defendant, he
was informed that his service
with the defendant were no
longer required and ordered to
vacate his official bungalow.
Dissatisfied with the
termination of his services he
invoked the original
jurisdiction of the Supreme
Court under article 106(1)(a) of
the 1969 Constitution (the
equivalent of article 130(1)(a)
of the 1992 Constitution) for
“(a) A declaration that his
dismissal from the employment of
the defendant corporation
communicated to the plaintiff by
letter dated 29th May 1970
purporting to be signed by the
managing director of defendant
corporation, is wrongful and
invalid under the Constitution
1969, in particular articles 138
and 140 there of.
(b) Consequential relief”
Article 138 of the 1969
Constitution dealt with the
protection of public services,
while 140 dealt with
appointments of public officers.
The action of the plaintiff was
clearly one founded in
employer-employee relationship,
particularly that of wrongful
dismissal, and did not involve
an enforcement and/or
interpretation of the provisions
of the Constitution referred to.
Not surprising therefore, the
Supreme Court in refusing to
assume jurisdiction, said at
page 529:
"We have already held that on
its construction and having
regard to the issues settled,
the plaintiff’s action is
essentially one of wrongful
dismissal and does not,
therefore, fall within the ambit
of article 106(1)(a) ... It
is an action for wrongful
dismissal under the common law,
which is part of the laws of
Ghana ... Since our original
jurisdiction is limited to
article 106, we are driven to
the conclusion that this court
is not seised with jurisdiction
to try this suit as a court of
first instance".
Now where the main thrust of the
action is not one of enforcement
and/or interpretation, and that
the issue of interpretation, if
it arises, is ancillary to the
determination of the claims of
the parties, the proper
procedure is for that suit to be
filed at the court or tribunal
which has jurisdiction over the
claims of the parties. And if
that court in the course of
determining the claims, takes
the view that the said issue is
one of interpretation, that
court can refer that issue to
the Supreme Court, under article
130(2) of the 1992 Constitution.
Article 130 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 original 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.
(2) Where an issue that relates
to a matter or question referred
to in clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay the
proceedings and refer the
question of law involved to the
Supreme Court for determination;
and the Court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court"
Article 130(2) therefore
empowers any court below, to
refer to the Supreme Court for
determination any issue relating
to Article 130(1) thereof.
Now it is very important to
understand and appreciate that
the 1992 Constitution is the
fundamental and supreme law of
the land, the provisions of
which no other law is permitted
to contradict. As stated in
article 1(2) thereof:
“1(2) This Constitution shall be
the supreme law of Ghana and any
other law found to be
inconsistent with any provision
of this Constitution shall, to
the extent of the inconsistency,
be void"
Therefore all courts, tribunals,
institutions including the
Government and all individuals
are bound by its provisions.
Accordingly all courts,
tribunals and indeed
all-adjudicating authorities in
Ghana are obliged to apply the
provisions of the Constitution
in the adjudication of disputes
before them. Thus in a land suit
by an alien plaintiff for
declaration of title to a
portion of stool land, the court
before whom the suit is pending,
is obliged to apply the
provisions of chapter 21 of the
1992 Constitution (dealing with
lands and Natural Resources) to
the determination of the claim.
It is only where in the
determination of such a claim
before the lower court, an issue
of interpretation or that of the
validity of a law vis-à-vis the
provisions of the Constitution
arises, that the lower Court is
obliged to stay proceedings and
refer the said constitutional
issue to the Supreme Court for
determination. Short of that,
the lower court is within its
rights to study the relevant
provisions of the Constitution
and apply them to the resolution
of the claims. For as Bannerman
CJ said in Republic vrs.
Markankan (1971) 2 GLR 473 at
478.
"... a lower court is not bound
to refer to the Supreme Court
every submission alleging as an
issue the determination of
question of interpretation of
the Constitution or of any other
matter contained in article
106(1)(a) or (b). If in the
opinion of the lower court the
answer to a submission is clear
and unambiguous on the face of
the provisions of the
Constitution or laws of Ghana,
no reference need be made since
no question of interpretation
arises and a person who
disagrees with or is aggrieved
by the ruling of the lower court
has his remedy by the normal way
of appeal, if he so chooses. To
interpret the provisions of
article 106(2) of the
constitution in any other way
may entail and encourage
references to the Supreme Court
of frivolous submissions, some
of which may be intended to
stultify proceedings or the due
process of law and may lead to
delays such as may in fact
amount to denial of justice".
When then does a real or genuine
issue of interpretation or
enforcement of a provision of
the Constitution arise for
determination by the Supreme
Court either in the exercise of
its original jurisdiction under
article 130(1)(a) or in its
reference jurisdiction under
article 130(2) of the 1992
Constitution?
In Tait vrs. Ghana Airways
Corporation (supra) at page 528,
the court said:
“…unless the words of an article
of the Constitution are
imprecise and ambiguous, an
issue of interpretation does not
arise, where the language of the
constitution is not only plain
but admits of but one meaning,
the task of interpretation can
hardly be said to arise. The
mere fact that a party invokes
in support of his case, a
provision of the Constitution
which is couched in plain
unambiguous language, does not
turn an action the true nature
of which is one of wrongful
dismissal into one relating to
the interpretation of a
provision of the Constitution
within the meaning of article
106(1)(a)”.
In the Republic vrs. Special
Tribunal, ex parte Akosah
(supra), the court after
examining the relevant
authorities on the subject came
to the conclusion that an issue
of enforcement or interpretation
of a provision of the
Constitution arises in any of
the following eventualities:
(a) Where the words of the
provision are imprecise or
unclear or ambiguous. In other
words, if one party invites the
court do declare that the words
of the article have a double
meaning or are obscure or else
mean something different from or
more than what they say;
(b) where rival meanings have
been placed by the litigants on
the words of any provision of
the Constitution.
(c) Where there is a conflict in
the meaning and effect of two or
more articles of the
Constitution, and the question
is raised as to which provision
shall prevail.
(d) Where on the face of the
provisions, there is a conflict
between the operation of
particular institutions set up
under the constitution, and
thereby raising problems of
enforcement and of
interpretation.
At page 605 of the report, the
court continued:
“… there is no case of
enforcement or interpretation
where the language of the
article of the Constitution is
clear, precise and unambiguous …
Again where the submission made
relates to no more than a proper
application of the provisions of
the constitution to the facts in
issue, this is a matter for the
trial court to deal with; and no
case of interpretation arises”.
In summary then, whereas the
original jurisdiction to
interpret and enforce the
provisions of the 1992
Constitution is vested solely in
the Supreme Court, every court
and tribunal is duty-bound or
vested with jurisdiction to
apply the provisions of the
Constitution in the adjudication
of disputes before it. And this
jurisdiction is not taken away
merely by a party's reference to
or reliance on a provision of
the Constitution. If the
language of that provision is
clear, precise and unambiguous,
no interpretation arises and the
court is to give effect to that
provision.
With these basic principles in
mind, let us now turn to the
instant suit.
One Nana Gyakorang Adu Twum II,
Chief of Kade in the Akyem
Abuakwa Traditional area was
convicted by the erstwhile
National Public Tribunal on 29th
March 1993 on a charge of
defrauding by false pretences
contrary to section 131 of the
Criminal Code 1960 (Act 29), and
sentenced to six months I.H.L.
He was also ordered to pay a
fine of ¢10,000 or in default to
serve a further sentence of
three months I.H.L. A year
thereafter, the plaintiffs
claiming to be citizens of Ghana
and hailing from Kade, invoked
the original jurisdiction of
this court under articles 2 and
130(1)(a) of the 1992
Constitution against the chief,
for;
(a) A declaration that:
(i) the defendant, having been
convicted by the National Public
Tribunal on 29th March 1993 on
the offence of defrauding by
false pretences, contrary to
section 131 of the Criminal Code
1960 (Act 29), is not qualified
to be or act as a chief pursuant
to the provisions of article 275
of the Constitution.
(ii) The defendant is
accordingly destooled as the
Kadehene of Akyem Abuakwa
(b) An order that the defendant
vacates the Kadehene's palace 14
days after this Court's order.
(c) An order that the defendant
renders an account of all stool
properties to the kingmakers of
the Kade stool.
In their statement of case the
plaintiffs recounted the facts
as set out above and contended
that by virtue of that
conviction the defendant was
disqualified from acting as a
chief in accordance with article
275 of the 1992 Constitution.
The defendant in his Statement
of Case admitted being the chief
of Kade, and convicted by the
National Public Tribunal. But he
contended that the trial was
engineered and piloted by the
5th and 6th plaintiffs who had
been agitating for his
destoolment.
On the orders of the court, the
Attorney General was served with
copies of the pleadings. In his
answer to the plaintiff’s case,
the Attorney General pleaded
inter alia:
“2. … it is submitted that the
procedure adopted by the
plaintiff in his writ is
improper for the following
reasons:
(a) Despite the manner in which
the case in couched, there is no
doubt that the object of the
plaintiff is to remove the
defendant, or to destool him if
in fact he has been convicted
for 'high treason, high crime or
for an offence involving the
security of the state, fraud,
dishonesty or moral turpitude'.
(b) Since the object of the
plaintiff is the removal or
destoolment of a chief who has
acted in breach of Article 275
the appropriate remedy for the
plaintiff is to file destoolment
proceedings at the Judicial
Committee of the Akim Abuakwa
Traditional Council stating
reasons why Nana Gyankorang Adu
Twum II can no longer exercise
the functions and duties of
chief of Kade.
(c) This view of the matter is
supported by the Supreme Court
decision in Nana Yiadom I vrs.
Nana Amaniampong & Ors. 1981 GLR
3 SC”.
Now as bourne out by their writ
of summons, the plaintiffs seek
a declaration that the defendant
is not qualified to be a chief,
an order to destool him, to
remove him from his palace, and
finally account for all stool
properties. The defendant is
admitted to be presently the
chief of Kade. And obviously the
effect of these reliefs is to
seek his destoolment. Is such an
action, not a cause or matter
affecting chieftaincy?
A cause or matter affecting
chieftaincy is defined in
section 66 of the Chieftaincy
Act 1971 (Act 370) as follows:
"Cause or matter affecting
chieftaincy means any cause,
matter, question or dispute
relating to any of the
following—
(a) the nomination, election,
appointment or installation of
any person as a chief or the
claim of any person to be
nominated, elected, appointed or
installed as a chief.
(b) The destoolment or
abdication of any chief.
(c) The right of any person to
take part in the nomination,
election, appointment or
installation of any person as a
chief or in the destoolment of
any chief.
(d) The recovery or delivering
of stools property in connection
with any such nomination,
election, appointment,
installation, destoolment or
abdication.
(e) The constitutional relations
under customary law between
chiefs.
The relief’s claimed by the
plaintiffs obviously fall within
the above definition. And the
fact that the plaintiff claim to
base their action on a provision
of the Constitution, does not
change the true nature of the
action. For as Apaloo CJ said in
Nana Yiadom vrs. Nana
Amaniampong (supra) at pages 5
to 6:
"A chief becomes one because he
is placed on a stool, that is
enstooled. When he is removed
from it, he is said to be
destooled. These are the
expressions which both usage and
legislation have hallowed.: see
section 51 of the Chieftaincy
Act, 1971 (Act 370). The fact
that both the plaintiff and
plaintiff's counsel shrank from
using these expressions does not
lead us to believe that these
proceedings are in substance and
truth other than destoolment
proceedings"
The 1992 Constitution which
granted to the Supreme Court,
original jurisdiction to
interpret and enforce the
provisions of the Constitution
also guaranteed in chapter 22
thereof the institution of
chieftaincy and vested in
chieftaincy tribunals, the
jurisdiction to determine any
cause or matter affecting
chieftaincy. In this wise, the
Supreme Court was vested with
final appellate jurisdiction
from the decisions of the
judicial committee of the
National House of Chief. The
Supreme Court has no
jurisdiction to determine at
first instance, actions seeking
the destoolment of a chief, or
seeking an order for a chief to
vacate from his palace, or
ordering him to render accounts
of stool properties. Neither is
the Supreme Court's original
jurisdiction to interpret and
enforce the provisions of the
Constitution meant to be
employed in place of the
jurisdictions vested in the
chieftaincy tribunals.
Accordingly, notwithstanding the
manner in which the plaintiffs'
action is presented, it is clear
that its proper forum is the
appropriate chieftaincy
tribunal. And if in the course
of the determination of the
action at that chieftaincy
tribunal, the tribunal takes the
view that the meaning of article
275 is not clear and therefore
needs the interpretation of the
Supreme Court, that tribunal is
entitled under article 130(2) of
the 1992 Constitution, to refer
this issue to this Court, and
stay its proceedings to await
our opinion. Our jurisdiction
has therefore been wrongfully
invoked and this action ought to
be and is hereby struck out.
JUSTICE G. K. ACQUAH
JUSTICE OF THE SUPREME COURT
JUSTICE E. K. WIREDU
JUSTICE OF THE SUPREME COURT
JUSTICE J. A. BAMFORD-ADDO
(MRS.)
JUSTICE OF THE SUPREME COURT
JUSTICE A. K. B. AMPIAH
JUSTICE OF THE SUPREME COURT
JUSTICE E. D. K. ADJABENG
JUSTICE OF THE SUPREME COURT
JUSTICE W. A ATUGUBA
JUSTICE OF THE SUPREME COURT
JUSTICE S. A. B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Nutifafa Kuenyehia for the
plaintiffs
Dr. Twum for the Defendants
Mr. Afrifa Gyasie, Chief State
Attorney for the
Attorney-General
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