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SE, J.S.C.
ANIN-YEBOAH, J.S.C. BAFFOE-BONNIE,
J.S.C. GBADEGBE, J.S.C.
AKOTO-BAMFO (MRS), J.S.C.
Constitutional law –
Interpretation – Statute -
Elections - Creation of New
District Electoral Areas and
Designation of Units -
Boundaries between Regions -
Section 3(3) and (4) of the
Local Government Act, 1993 (Act
462 - Articles 241 (2) and
Article 5 - Constitution, 1992-
Whether or not Parliament acted
in excess of its powers by
approving, adopting and enacting
L.I. 1983 - Whether or not the
Minister responsible for Local
Government acted in excess of
the powers conferred on him by
the Local Government Act, 1993
(Act 462) - Whether or not one
version of L.I. 1983 as opposed
to the other was procedurally
duly passed.
HEADNOTES
The
plaintiffs issued a writ in this
court claiming that the creation
and specification of a new
District Electoral Area by the
Local Government (Creation of
New District Electoral Areas and
Designation of Units)
Instrument, 2010 (L.I. 1983)
made in exercise of the powers
conferred on the Minister
responsible for Local Government
by Section 3(3) and (4) of the
Local Government Act, 1993 (Act
462), is inconsistent with and
in contravention of Article 5 of
the Constitution, 1992, to the
extent that its effect with
regard to the Lower Manya Krobo
District (which is in the
Eastern Region) and the Dangme
West District (which is in the
Greater-Accra Region), is to
alter the boundaries between the
Greater-Accra Region and Eastern
Regionand An order restraining
the 1st defendant
herein, the Electoral Commission
from conducting elections or
Unit Committee elections or
exercising its powers to conduct
any elections whatsoever in
Osorkutu, Bungalow, Akutue,
Zongo New Town, Amedeka, Natriku
and Salom Electoral Areas which
are specified by L. I. 1983 as
being part of the Dangme West
District in the Greater-Accra
Region by the Local Government
(Creation of New District
Electoral Areas and Designation
Units) Instrument, 2010 (L.I.
1983), pending the hearing and
final determination of the
merits in the instant action.
HELD
Clearly since
under article 11(7) a statutory
instrument laid before
Parliament takes effect within
21 Parliamentary sitting days it
follows that the version which
is stated as having come into
force on 24th
November, 2010 cannot be right.
It simply in those circumstances
cannot be said to have been laid
before Parliament or gazetted on
19th October 2010.
The period between 19th
October 2010 and 24th
November 2010 manifestly exceeds
the constitutional maturity date
of 21 parliamentary sitting days
and it is to be wondered why
this singular version of L.I.
1983 was in need of special
extension of time, which is not
constitutionally feasible, to
come into effect. By contrast
the other version of LI 1983
also dated 19th
October 2010 does not contain
any unacceptable commencement
date. The presumption therefore
is that it took effect after the
usual 21 parliamentary sitting
days. We therefore declare the
version of L.I. 1983 which
carries the disputed electoral
areas For the reasons given we
do not decide the District or
Region to which the disputed
areas belong. That can be
litigated by the appropriate
legal processes in the light of
our foregoing reasons. However
having declared the version of
L.I.1983 which is therein stated
to have come into force on 24th
November 2010 null and void, it
follows that the other version
which we accept as the earlier
or original version of L.I. 1983
as procedurally valid enjoys, in
all other respects, the
presumption of regularity. The
plaintiff’s action therefore
succeeds to the extent indicated
in this judgment.
STATUTES
REFERRED TO IN JUDGMENT
Local
Government (Creation of New
District Electoral Areas and
Designation of Units)
Instrument, 2010 (L.I. 1983)
Local
Government (Dangme West District
Assembly) (Establishment)
Instrument 1989, L.I. 1490
Local
Government (Manya Krobo District
Assembly) (Establishment)
Instrument 1989, L.I. 1492
Local
Government Act, 1993 (Act 462),
Constitution,
1992,
Greater-Accra
Regional Act, 1982 (P.N.D.C.L.
26)
Greater-Accra
Region (Amendment) Law, 1982 (P.N.D.C.L.
28)
CASES
REFERRED TO IN JUDGMENT
Stephen Nii
Bortey Okane and Others v. The
Electoral Commission & Attorney
General (Writ No. J1/2/2011)
Nii Tetteh
Opremreh v. The Electoral
Commission & Attorney-General
(Writ No. J1/3/2011
In Re Akoto
(1961) 2 GLR 253, SC
Mosi v.
Bagyina (1963) 1 GLR 337 S.C.
Napier v.
National Business Agency Ltd
(1951) 2 All ER 264 C.A.
Republic v.
High Court, Koforidua; Ex parte
Otutu Kono III (Akwapim
Traditional Council Interested
Party) (2009) 1 SCGLR 1
Ababio v.
Boso Traditional Council (1979)
GLR 53,
In re Wa-Na,
Republic v. Fijoli-Na; Ex parte
Yakubu and Others (1987-88) 1
GLR 180 C. A.
Republic v.
Kumasi Traditional Council Ex
parte Dei (1973) 2 GLR 73 C.A.
Kyereh v.
Kangah (1978) GLR 83 (Full
Bench) and Aduamoa II v. Adu
Twum II (2000) SCGLR 165
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
GODFRED
YEBOAH DAME (WITH HIM BOYE
AGYEKUMHENE) FOR THE PLAINTIFFS.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 1ST
DEFENANT.
SYLVESTER
WILLIAMS PRINCIPAL STATE
ATTORNEY FOR THE 2ND
DEFENDANT.
NKRABEA
EFFAH DARTEY (WITH HIM K. T.
K. AGBAN) FOR THE CO-DEFENDANTS.
J U D G M E N T
______________________________________________________________________
ATUGUBA,
J.S.C:
On the 24th
day of December, 2010, the
plaintiffs issued a writ in this
court claiming:
i.
“A declaration that the creation
and specification of a new
District Electoral Area by the
Local Government (Creation of
New District Electoral Areas and
Designation of Units)
Instrument, 2010 (L.I. 1983)
made in exercise of the powers
conferred on the Minister
responsible for Local Government
by
Section 3(3) and (4) of the
Local Government Act, 1993 (Act
462), is inconsistent with
and in contravention of Article
5 of the
Constitution, 1992, to the
extent that its effect with
regard to the Lower Manya Krobo
District (which is in the
Eastern Region) and the Dangme
West District (which is in the
Greater-Accra Region), is to
alter the
boundaries between the
Greater-Accra Region and
Eastern Region.
ii.
A declaration that the
specification by the Local
Government (Creation of New
District Electoral Areas and
Designation of Units)
Instrument, 2010 (L.I. 1983)
that Osorkutu, Bungalow, Akutue,
Zongo New Town, Amedeka, Natriku
and Salom Electoral Areas
(previously part of the Lower
Manya Krobo District in the
Easter Region as per the
specification made by C.I. 46 of
2004), are now part of the
Dangme West District in the
Greater-Accra Region, is in
excess of the powers conferred
on the Minister responsible for
Local Government by Section 3(3)
and (4) of the Local Government
Act, 1993 (Act 462)
iii.
A declaration that upon a true
and proper interpretation of
Articles
241 (2) and Article 5 of the
Constitution,
Parliament acted in excess of
its powers by approving,
adopting and enacting L.I. 1983.
iv.
A declaration that upon a true
and proper interpretation of
Articles 241 and Article 5 of
the Constitution, 1992,
the
Minister responsible for Local
Government acted in excess of
the powers conferred on him by
the Local Government Act, 1993
(Act 462) by specifying
Osorkutu, Bungalow, Akutue,
Zongo New Town, Amedeka, Natriku
and Salom Electoral Areas
(previously part of the Lower
Manya Krobo District in the
Eastern Region as per the
specification made by C. 1. 46
of 2004), as now part of the
Dangme West District in the
Greater-Accra Region under the
Local Government (Creation of
New District Electoral Areas of
Designation of Units)
Instrument, 2010 (L.I. 1983)
v.
An order declaring as null, void
and of no effect the Local
Government (Creation of New
District Electoral Areas and
Designation Units) Instrument,
2010 (L.I. 1983) made in
exercise of the powers conferred
on the Minister responsible for
Local Government by Section 3(3)
and (4) of the Local Government
Act, 1993 (Act 462).
vi.
An order declaring null, void
and of no effect the parts or
specifications in the second
column of the Schedule to the
Local Government (Creation of
New District Electoral Areas and
Designation Units) Instrument,
2010 (L.I. 1983) which relate to
the specification of Osorkutu,
Bungalow, Akutue, Zongo New
Town, Amedeka, Natriku and Salom
Electoral Area as part of the
Dangme West District.
vii.
An order restraining the 1st
defendant herein, the Electoral
Commission from conducting
elections or Unit Committee
elections or exercising its
powers to conduct any elections
whatsoever in Osorkutu,
Bungalow, Akutue, Zongo New
Town, Amedeka, Natriku and Salom
Electoral Areas which are
specified by L. I. 1983 as being
part of the Dangme West District
in the Greater-Accra Region by
the Local Government (Creation
of New District Electoral Areas
and Designation Units)
Instrument, 2010 (L.I. 1983),
pending the hearing and final
determination of the merits in
the instant action.
viii.
Any further order(s) as to this
honourable court may seem meet.”
From the reliefs claimed it is
quite clear that the plaintiffs
initially set out to impeach the
validity of one legislative
instrument, namely, the Local
Government (Creation of New
District Electoral Areas and
Designation Units) Instrument,
2010 (L.I. 1983) on the grounds
that it is in violation of
article 5 of the Constitution
relating purported to alter the
regional location of six
villages within Akuse from the
Manya Krobo District in the
Eastern Region into the Dangme
West District in the
Greater-Accra Region.
However, subsequently on the 16th
day of June, 2011 the plaintiffs
filed, with leave, a
supplementary statement of their
case in which they now averred
as follows:
“ 47. It is very relevant to
indicate that the original
version of the legislative
instrument in dispute, L. I.
1983 placed before Parliament,
had the seven electoral areas in
dispute specified as being part
of the Lower Manya Krobo
District in the Eastern Region.
A copy of the relevant pages of
the original L. I. 1983 has been
filed by the Plaintiffs herein.
48. As Your Lordships will note,
the original version of L. I.
1983 was also gazetted on the 19th
day of October, 2010. Page 71
indicates that the total number
of electoral areas allocated to
the Lower Manya Krobo District
Assembly was thirty-one (31),
whilst page 100 also shows that
the total number of electoral
areas allocated to Dangme West
was Forty-one (43). This
was in line with the current
status of Akuse as an Eastern
Region town.
49. Quite curiously, when the
L.I. was debated by Parliament,
Parliament without any warrant
or authority, altered the total
number of electoral areas
allocated to the Lower Manya
Krobo and the Dangme West
District Assemblies. The result
was that the final L. I. 1983
passed into law had the total
number of electoral areas for
Manya Krobo reduced to
Twenty-five (25), whilst the
total number of electoral areas
for Dangme West was increased to
fifty (50).
50. It is the further case of
the Plaintiffs that Parliament
in reducing the total number of
electoral areas for Lower Manya
Krobo from the original figure
of 31 to 25, and increasing the
total number of electoral areas
for Dangme West from the
original figure of 43 to 50,
acted without authority. This is
because the Parliament of Ghana
in adopting, approving and
enacting a legislative
instrument, is regulated by
Article 11 of the 1992
Constitution. …
51. It is the respectful
submission of the Plaintiffs
herein that, to the extent that
the original L.I. 1983 laid
before Parliament had thirty-one
(31) electoral areas for the
Lower Manya Krobo District
Assembly, same should have been
approved by Parliament and come
into force after the lapse of
twenty-one sitting days of
Parliament. It is to be noted
that the original version of
L.I. 1983 was also gazetted and
therefore after 21 days, same
should have become law.
52. If the Parliament of Ghana
deemed it necessary to change
any provision in the original
version of L.I. 1983, in
accordance with Article 5, it
should have annulled the whole
of the Legislative Instrument.
It did not have the power to suo
motu, change, alter, increase or
reduce the number of electoral
areas allocated to both the
Lower Manya Krobo and Dangme
West District Assemblies.
53. It will be respectfully
appreciated that the L. I. 1983
which came into force on the 24th
day of November, 2010, is laden
with flagrant
unconstitutionalities and same
must be declared as such.”
The defendants consistently
contend that the disputed areas
ought constitutionally to belong
to the Dangme West District of
the Greater Accra Region of
Ghana. This court took the view
that the issues raised in this
case have some different colour
from
Stephen Nii Bortey Okane and
Others v. The Electoral
Commission & Attorney General
(Writ No. J1/2/2011) and Nii
Tetteh Opremreh v. The Electoral
Commission & Attorney-General
(Writ No. J1/3/2011) where
the only issue was whether
Parliament could make
alterations of its own to
subsidiary legislation laid
before it under article 11 of
the 1992 Constitution. In the
present case there is also the
issue as to which region,
between the Greater Accra and
Eastern regions, do the disputed
electoral areas belong having
regard to article 5 of the
Constitution.
The Constitution of Ghana by
virtue of articles 1 and 2 is
the supreme and most fundamental
law of Ghana and it is clear
from articles 2 and 130 as
construed by this court that
subject to the High Court’s
jurisdiction in the enforcement
of private fundamental human
rights this court is the Trustee
of the 1992 Constitution of
Ghana. Clearly then if a genuine
break with the infamous case
of In Re
Akoto (1961) 2 GLR 253, SC
is to be made by this court then
this court cannot shut its eyes
to breaches of the Constitution
when they loom large in a case
before it. This must be so
because even at common law a
court is bound suo motu to raise
fundamental issues such as lack
of jurisdiction (even after
judgment), see
Mosi v.
Bagyina (1963) 1 GLR 337 S.C.
or illegality, by tracking
it when it looms even faintly in
a case before the court, see
Napier v.
National Business Agency Ltd
(1951) 2 All ER 264 C.A.
It would therefore have been a
dereliction of constitutional
Trust on the part of this court
to have confined itself solely
to the issue
whether
one version of L.I. 1983 as
opposed to the other was
procedurally duly passed.
However, in a bid to get to the
constitutional bottom of this
matter this court hit a hard
rock. This is because the whole
question as to whether the
disputed areas fall within the
Dangme West District in the
Greater Accra Region or the
Manya Krobo District in the
Eastern Region hinges on the
territorial components of the
erstwhile Osudoku Local Council
which under the provisions of
the
Greater-Accra Regional Act, 1982
(P.N.D.C.L. 26) as amended by
the Greater-Accra Region
(Amendment) Law, 1982
(P.N.D.C.L. 28) is a
constituent part of the Greater
Accra Region.
It is true that the second
Schedule to P.N.D.C.L. 26
contains a “Statutory
Description of the Greater Accra
Region” and some towns or
villages are depicted on the map
within the area described as
Osudoku in the Greater Accra
Region in the Third Schedule
thereof. However, as Africans
and Ghanaians in particular we
know that maps often depict the
major towns or villages and
therefore it will be perilous to
apply the maxim expressio unius
est exclusio alterius in respect
of all other villages or areas
alleged to be part of a certain
territory or geographical area
because they are not depicted on
a map. This is brought to the
fore when one considers that
despite these schedules to PNDCL
26, it is shown by paragraph 7
of the original statement of the
plaintiffs’ case dated the 7th
day of January 2011 as follows:
“Your Lordships, in order to
assist in an appreciation of the
issues raised herein, it is
pertinent to state that, the
genesis of the dispute as to the
determination or demarcation of
the boundary between the
Greater-Accra Region and Eastern
Region as it pertains to
Natriku, Akuse and its
surrounding villages occurred in
the early 1990s upon the
enactment of the
Local
Government (Dangme West District
Assembly) (Establishment)
Instrument 1989, L.I. 1490 and
the Local Government (Manya
Krobo District Assembly)
(Establishment) Instrument 1989,
L.I. 1492. Quite
curiously, these two enactments
listed Natriku under both Dangme
West and Manya Krobo District
Assemblies.” (e.s.)
It took a Cabinet Review Team to
resolve this matter as stated in
paragraph 8 of the said
plaintiffs’ statement of case:
“ … After a review of the
process which led to the
enactment of L.I. 1490 and L.I.
1492, evidence by the Electoral
Commission, the Survey
Department, the Osudokus and
Manya Krobos as well as a
scrutiny of all documents …”
All this apart, the high water
mark of this case is that the
said “Erstwhile Osudoku Local
Council” was constituted by the
Local Government (Osudoku Local
Council) Instrument, 1952. We,
at this stage acknowledge our
plenary gratitude to the
distinguished Professor Justice
V.C.R.A.C. Crabbe, the Statute
Law Review Commissioner who
unearthed this legislative
instrument for us in response to
our distress call to him, per
our letter dated 28th
March, 2012. The most crucial
provision of this Instrument is
section 5 as follows:
“5. The area of authority of the
Council shall be the area of the
Osudoku State but not East of 0
20 East Longitude of Greenwich.”
Apart from the purely
cartographic exclusion of “East
of 0◦20 East Longitude of
Greenwich”, the residue of the
constitutive area of authority
of the said Local Council is
“the area of the Osudoku State”.
The question what
constitutes the Osudoku State is
manifestly a question of
customary chieftaincy law
because surely such a state is a
native state constituted under
customary constitutional law.
This will involve the question
of constitutional relations
between the Osudoku paramount
stool and other customary
chiefly stools with which it
shares native boundaries. All
this has been clearly
highlighted by paragraphs 4 and
7 of the plaintiffs’ affidavit
in opposition to the
co-defendants’ motion for leave
to file a counterclaim as
follows:
“ 4. That the question whether
Akuse belongs to the Manya Krobo
Traditional Council or the
Osudoku Traditional Council is a
bone of serious contention
between the two traditional
councils. In point of fact,
Akuse has two chiefs nominated
by both the Manya Krobo
Traditional Council and the
Osudoku Traditional Council. …
7. That the true situation is
that as a result of the
conflicting claims by both the
Manya Krobo Traditional Council
and the Osudoku Traditional
Council, the National House of
Chiefs has deferred recognition
of both claimants until a
resolution of the impasse.
Attached herewith and marked as
Exhibit “NAK” is a letter from
the National House of Chiefs
disclosing a reference of the
impasse to the Standing
Committee of the National House
of Chiefs.” (e.s.)
The question as to
the nature and area of a
traditional council has for many
years been determinable by
reference to a legislative or
administrative instrument. But
though this issue arose in
Republic
v. High Court, Koforidua; Ex
parte Otutu Kono III (Akwapim
Traditional Council Interested
Party) (2009) 1 SCGLR 1 this
court, as noted by the Editorial
Note thereto was split in such a
way that the matter cannot be
said to have been resolved
therein. Nonetheless whereas in
this case there is a real issue
as to which chief has the
customary authority to appoint a
chief for Akuse and
consequently under which chief’s
customary authority does Akuse
and by extension the disputed
areas falls or fall, a cause or
matter affecting chieftaincy is
clearly involved.
The crux of the
matter is that whether Akuse is
part of the Osudoku State or not
is a cause or matter affecting
chieftaincy since aforesaid
constitutional relations and
claims between two contending
chiefs in different traditional
councils, Districts and Regions
are involved.
It is therefore
crystal clear that the question
whether Akuse falls within the
Greater Accra Region or Eastern
Region cannot be resolved
without resolving the nature,
extent and area of the Osudoku
State which clearly evinces a
cause or matter affecting
chieftaincy. This issue is
cardinal and this court cannot
entertain it without
entertaining a cause or matter
affecting chieftaincy, see
Ababio v.
Boso Traditional Council (1979)
GLR 53, In re Wa-Na, Republic v.
Fijoli-Na; Ex parte Yakubu and
Others (1987-88) 1 GLR 180 C. A.
and Republic v. Kumasi
Traditional Council Ex parte Dei
(1973) 2 GLR 73 C.A.
Chieftaincy is a matter
peculiarly suited and entrusted
to the customary institutions
except the appellate
jurisdiction of this court in
decisions of the National House
of Chiefs, see
Kyereh v.
Kangah (1978) GLR 83 (Full
Bench) and Aduamoa II v. Adu
Twum II (2000) SCGLR 165.
Consequently this
court can determine as at now
only the issue as to the
validity of the two competing
versions of L.I. 1983. It is
clear from the evidence and the
two versions of this legislative
instrument that though both of
them were gazetted on 19th
October 2010 one of them is
stated as having come into force
on 24th November 2010
and that is the version which
puts the disputed areas within
the Dangme West District in the
Greater Accra Area.
Clearly
since under article 11(7) a
statutory instrument laid before
Parliament takes effect within
21 Parliamentary sitting days it
follows that the version which
is stated as having come into
force on 24th
November, 2010 cannot be right.
It simply in those circumstances
cannot be said to have been laid
before Parliament or gazetted on
19th October 2010.
The period between 19th
October 2010 and 24th
November 2010 manifestly exceeds
the constitutional maturity date
of 21 parliamentary sitting days
and it is to be wondered why
this singular version of L.I.
1983 was in need of special
extension of time, which is not
constitutionally feasible, to
come into effect. By contrast
the other version of LI 1983
also dated 19th
October 2010 does not contain
any unacceptable commencement
date. The presumption therefore
is that it took effect after the
usual 21 parliamentary sitting
days. We therefore declare the
version of L.I. 1983 which
carries the disputed electoral
areas under the Dangme West
District within the Greater
Accra Region unconstitutional
and null and void. See
Stephen Nii Bortey Okane and
Others v. The Electoral
Commission & Attorney General
(Writ No. J1/2/2011) and Nii
Tetteh Opremreh v. The Electoral
Commission & Attorney-General
(Writ No. J1/3/2011)
Conclusion
For the reasons given we do not
decide the District or Region to
which the disputed areas belong.
That can be litigated by the
appropriate legal processes in
the light of our foregoing
reasons. However having declared
the version of L.I.1983 which is
therein stated to have come into
force on 24th
November 2010 null and void, it
follows that the other version
which we accept as the earlier
or original version of L.I. 1983
as procedurally valid enjoys, in
all other respects, the
presumption of regularity.
The plaintiff’s action therefore
succeeds to the extent indicated
in this judgment.
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A.
ADINYIRA(MRS.)
JUSTICE OF THE SUPREME COURT
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN -YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE -
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO – BAMFO
(MRS.)
JUSTICE OF THE SUPREME COURT
COUNSEL
GODFRED
YEBOAH DAME (WITH HIM BOYE
AGYEKUMHENE) FOR THE PLAINTIFFS.
JAMES
QUARSHIE-IDUN (WITH HIM ANTHONY
DABI) FOR THE 1ST
DEFENANT.
SYLVESTER
WILLIAMS PRINCIPAL STATE
ATTORNEY FOR THE 2ND
DEFENDANT.
NKRABEA EFFAH
DARTEY (WITH HIM K. T. K. AGBAN)
FOR THE CO-DEFENDANTS.
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