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Constitutional Law - Articles
125 and
127 of the 1992 Constitution -
Commission of Inquiry (C.I.
79) - Whether or not the
Judgment Debt Commission
violated Articles 125 and 127 of
the 1992 Constitution - Whether
Government wholeheartedly
accepted and adopted the
unlawful findings - Whether
attacks on the judiciary by the
Commission was unjustified
HEADNOTES
In this case the thrust of the
plaintiff’s action is that
judicial decisions cannot be
reopened by administrative
tribunals and declared as
nullities. The plaintiff
contends that such conduct is
contrary to articles 125 and 127
of the 1992 Constitution of
Ghana. Whether or not the
Judgment Debt Commission
violated Articles 125 and 127 of
the 1992 Constitution in respect
of its report on the Alfred
Woyome v. Attorney-General and
Another, Sky Consult v. Ghana
Post cases. To resolve this
issue one has to consider (1)
the terms of reference of the
commission and (2) the relevant
findings and recommendations of
the commission relating to the
said two cases. Plaintiff avers
that in the White Paper
published in November, 2015 by
the executive (Exhibit ‘C’), the
Government wholeheartedly
accepted and adopted the
unlawful findings and
unjustified attacks on the
judiciary by the Commission in
respect of the Woyome case
HELD :-
For all the foregoing
reasons we uphold the
Plaintiff’s action in so far as
it relates to the portions of
the findings and expressions of
the Judge in the two cases of
Alfred Woyome v.
Attorney-General and Another and
Sky Consult v. Ghana Post
Company which sought to fault
the judge with regard to his
adjudication of those cases and
to nullify the same.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution Articles 125 and
127
Commission of Inquiry (C.I. 79
CASES REFERRED TO IN JUDGMENT
The Republic v. Special
Tribunal; Ex parte Akosah (1980)
GLR 592 C.A
Sumaila Biebiel (No. 1)
V. Adamu Daramani &
Attorney-General (No. 1) [2011]1
SCGLR 132,
Okudzeto Ablakwa v
Attorney-General (No. 1) (2011)
2 SCGLR 986
Emmanuel Noble Kor v. .
The Attorney-General , .Justice
Isaac Delali Duose, Suit no J1/
16/ 2015, dated 10/3/2016,
unreported.
Mosi v. Bagyina (1963)
IGLR 337SC
Macfoy v UAC Ltd (1962) AC
152 P.C
Republic v High Court,
Accra; Ex parte Afoda [2001 –
2002] SCGLR 768
Republic v Conduah; Ex
parte Aaba (substituted by Asmah)
(2013 – 2014) 2 SCGLR 1052
Lutterodt v Mensa Nyarko
(1984-86)1 GLR 277 C.A
Koranteng II v. Klu
(1993-94)1 GLR 280 S.C.
JH Mensah v
Attorney-General(1996-97) SCGLR
320 at 362:
BOOKS REFERRED TO IN JUDGMENT
Alfred Agbesi Woyome vrs.
The Attorney General (Judgment
Debt Commission)
Sky Consult vrs. Ghana
Post Company (Judgment
Debt Commission)
DELIVERING THE LEADING JUDGMENT
AKUFFO (MS), JSC:-
CORAM:
AKUFFO (MS), CJ
PRESIDING,ATUGUBA, JSC, ADINYIRA
(MRS), JSC, DOTSE, JSC, YEBOAH,
JSC, BAFFOE-BONNIE, JSC, BENIN,
JSC
COUNSEL.
L. S. N. AKUETTEH FOR THE
PLAINTIFF
DOROTHY AFRIYIE ANSAH
(MRS), SENIOR STATE ATTORNEY FOR
THE DEFENDANTS
JUDGMENT
ATUGUBA, JSC:-
The plaintiff by his writ herein
claims as follows:
“1. A declaration that the
Commission of Inquiry into
payments from public Funds
Arising from Judgment Debts and
Related Processes appointed
by His Excellency the President
of the Republic by C.I. 79 on
8th October, 2012
has no lawful authority to
reopen, review and/or declare
any decision, order or judgment
of any court of competent
jurisdiction an error of law or
a nullity.
2. A declaration that by the
findings and recommendations
made by the Commission in
respect of Suit No.
RPC/152/2010- intituled Alfred
Agbesi Woyome vrs. The Attorney
General and the case intituled
Sky Consult vrs. Ghana Post
Company the Commission exceeded
its jurisdiction and purported
to exercise judicial power
contrary to Articles 125(1), 3)
and (5); 127(1) and (2); 129(1);
and 137 of the Constitution of
Ghana.
1.
A declaration that the
‘findings and recommendations’
of the said Commission on the
two cases and the Government
White Paper thereon amounts to
an interference in the judicial
process and violation of the
independence of the judiciary as
enshrined in the 1992
Constitution and to that extent
void and of no effect
whatsoever.
2.
An order directed at the
Defendants to expunge from their
records the said findings,
recommendations and the
Government White Paper thereon.
3.
An order of perpetual
injunction restraining the
Defendants, their agents,
servants, privies and persons
claiming through them from ever
referring to, relying on, or
using the said findings,
recommendations and the
Government White Paper thereon
on the said two cases for any
purposes whatsoever.
4.
Any further orders and
directions as this Honourable
Court may consider appropriate
for giving effect to the
declarations so made.”
The parties’ agreed issues
for trial are as follows:
“1.Whether or not this
Honourable Court has
jurisdiction to entertain this
action.
2. Whether or not the
Judgment Debt Commission
violated Articles 125
and 127 of the 1992 Constitution
of Ghana in respect of its
report on the Alfred Woyome
vrs. Attorney General and
Another; Sky Consult vrs. Ghana
Post cases.
3.
Whether or not the White Paper
issued by the president in
respect of the report of the
Commission on the Alfred
Woyome vrs. Attorney General and
Another; Sky Consult vrs. Ghana
Post cases are in violation
of Articles 125 and 127 of
the 1992 Constitution of Ghana
and amounts to an interference
in the judicial process.
4. Whether or not the
Plaintiff is entitled to the
reliefs claimed.”
Issue 1
Whether or not this honourable
Court has jurisdiction to
entertain this action
It has become almost an
entrenched custom for defendants
to constitutional actions to
raise issues as to the
jurisdiction of this court to
entertain them.
In this case the thrust of
the plaintiff’s action is that
judicial decisions cannot be
reopened by administrative
tribunals and declared as
nullities. The plaintiff
contends that such conduct is
contrary to articles 125 and 127
of the 1992 Constitution of
Ghana.
These articles are as
follows:
125. The Judicial power of
Ghana
(1) Justice
emanates from the people and
shall be administered in the
name of the Republic by the
Judiciary which shall be
independent and subject only to
this Constitution.
(2) Citizens
may exercise popular
participation in the
administration of justice
through the institutions of
public and customary tribunals
and the jury and assessor
systems.
(3) The
judicial power of Ghana shall be
vested in the Judiciary;
accordingly neither the
President nor Parliament nor any
organ or agency of the President
or Parliament shall have or be
given final judicial power.
(4) The Chief
Justice shall, subject to this
Constitution, be the Head of the
Judiciary and shall be
responsible for the
administration and supervision
of the Judiciary.
(5) the
Judiciary shall have
jurisdiction in all matters
civil and criminal, including
matters relating to this
Constitution, and such other
jurisdiction as Parliament may,
by law, confer on it.
127 Independence of the
Judiciary
(1) In
the exercise of the judicial
power of Ghana, the Judiciary,
in both its judicial and
administrative functions,
including financial
administration, is subject only
to this Constitution and shall
not be subject to control or
direction of any person or
authority,
(2)
Neither the President nor
Parliament nor any person acting
under the authority of the
President or Parliament nor any
other person whatsoever shall
interfere with Justices or
judicial officers or other
persons exercising judicial
power, in the exercise of their
judicial functions; and all
organs and agencies of the State
shall accord to the Courts such
assistance as the Courts may
reasonably require to protect
the independence, dignity and
effectiveness of the Courts,
subject to this Constitution.
(3) A
Justice of the Superior Court,
or any person exercising
judicial power, shall not be
liable to any action or suit for
any act or omission by him in
the exercise of the judicial
power.
(4) The
administrative expenses of the
Judiciary, including all
salaries, allowances, gratuities
and pension payable to or in
respect of leave of absence,
gratuities and pension payable
to or in respect of, persons
serving in the Judiciary, shall
be charged on the Consolidated
Fund.
(5) The
salary, allowances, privileges
and rights in respect of leave
of absence, gratuity, pension
and other conditions of service
of a Justice of the Superior
Court or any judicial officer or
other person exercising judicial
power, shall not be varied to
his disadvantage.
(6)
Funds voted by Parliament, or
charged on the Consolidated Fund
by this Constitution for the
Judiciary, shall be released to
the Judiciary in quarterly
installments.
(7) For
the purposes of clause (1) of
this article, “financial
administration” includes the
operation of banking facilities
by the Judiciary without the
interference of any person or
authority, other than for the
purposes of audit by the
Auditor-General, of the funds
voted by Parliament or charged
on the Consolidated Fund by this
Constitution or any other law,
for the purposes of defraying
the expenses of the Judiciary in
respect of which the funds were
voted or charged.”
It is quite clear that the
parties have advanced rival
contentions as to the
applicability of these
provisions and as will presently
appear, the articles relied on
require interpretation and/or
enforcement, on the facts of
this case. This court
therefore has jurisdiction to
entertain this writ, see The
Republic v. Special Tribunal; Ex
parte Akosah (1980) GLR 592 C.A
subject to the decisions of this
court in cases such as Sumaila
Biebiel (No. 1) V. Adamu
Daramani & Attorney-General (No.
1) [2011]1 SCGLR 132, Okudzeto
Ablakwa v Attorney-General (No.
1) (2011) 2 SCGLR 986 and
Emmanuel Noble Kor v. 1. The
Attorney-General 2.Justice Isaac
Delali Duose, Suit no
J1/16/2015, dated 10/3/2016,
unreported.
Issue 2
Whether or not the Judgment Debt
Commission violated Articles 125
and 127 of the 1992 Constitution
in respect of its report on the
Alfred Woyome v.
Attorney-General and Another,
Sky Consult v. Ghana Post cases.
To resolve this issue one
has to consider (1) the terms of
reference of the commission and
(2) the relevant findings and
recommendations of the
commission relating to the said
two cases.
The Commission’s Terms of
Reference
The Commission was set up
by the Commission of Inquiry
into payments from Public Funds
arising from Judgment Debts and
Related Processes Instrument,
2012 C.I. 79
Terms of Reference
(a) to ascertain the
causes of any inordinate
payments made from public funds
in satisfaction of judgment
debts since the commencement of
the 1992 Constitution;
(b) to ascertain the
causes of any inordinate
payments from public funds and
financial losses arising from
arbitration awards, negotiated
settlements and related
processes since the commencement
of the 1992 Constitution; and
(c) to make
recommendations to the
Government for ensuring that, as
far as practicable
(i) the instances where public
funds are utilized to make
payments in satisfaction of
judgment debts and public debts
arising from related processes
are limited or avoided; and
(ii) Government does not incur
undue financial losses when it
does business with private
persons or institutions.”
The impugned findings and
recommendations of the
Commission
Though the plaintiff
attacks the findings and
observations of the Commission
with regard to court decisions
and their acceptance by the
Government per its white paper
separately, these matters are
intertwined in the Government’s
white paper and are therefore
herein dealt with together.
These are stated in paragraphs
38 to 39 of the plaintiff’s
statement of case as follows:
“38. Plaintiff avers that in
the White Paper published in
November, 2015 by the executive
(Exhibit ‘C’), the Government
wholeheartedly accepted and
adopted the unlawful findings
and unjustified attacks on the
judiciary by the Commission in
respect of the Woyome case, and
published same at pages 3-5 of
the White Paper in the following
manner, among others:
“1.
Alfred Agbesi Woyome v.
Attorney-General and Another
The Commission reviewed
the various documentation
submitted to it on this matter
and established the following:
“(i) Either through
inadvertence or pure mischief
through connivance, both the
Chief State Attorney Samuel
Nerquaye Tetteh who was charged
with the defence of the suit in
the trial court, and the trial
judge did not scrutinize the
processes filed before them with
judicious eyes. If the trial
judge, particularly, had done so
he would not have granted the
application for default judgment
in the first place. The bank
accounts of the wife of the
Chief State attorney Mrs.
Nerquaye Tetteh, was later found
by the Economic and Organised
Crime Office (EOCO) to have
ballooned by the payment into it
of the sum of GH¢400,000.00 by
Alfred Agbesi Woyome after the
deal had become successful. The
then Attorney General, in
deciding to negotiate with
Alfred Agbesi Woyome for the
payment of the cedi equivalent
of €22,129,501.74 to him as
representing 2% of alleged
financial engineering costs, was
ignorant about the facts of the
case Woyome had pleaded in
court, but nevertheless went
ahead to negotiate and finally
ordered for such payment to be
made without any scrutiny of his
claim and due diligence.
(ii) The trial court
seriously erred when it granted
a default judgment that was
procedurally flawed in many
aspects. The default judgment
was a complete nullity due to
the procedural irregularities
that completely destroyed its
foundation.
·
The plaintiff had no
mandate under the rules of court
to amend his writ of summons
twice without leave before
pleadings were closed. Order 16
Rule 1(1) gives the plaintiff
one opportunity. He amended his
writ of summons twice without
leave but the trial court either
failed to scrutinize the records
before granting the application
or turned a blind eye to it.
·
When the plaintiff amended
the endorsement on his writ of
summons to change completely his
cedi claim to a Euro claim with
other reliefs, he did not amend
his original statement of claim
to correspond to the new claim
which was completely different
from the original claim.
·
At the time plaintiff
filed the motion for default
judgment in default of defence,
the defendants had not been
served with any statement of
Claim as required under the
Rules of Court in support of the
amended Writ of Summons to which
they could respond by way of
statement of defence.
·
On 14th May
2010, just seven (7) days after
the service of the amended writ
of summons on the 1st
defendant, plaintiff caused a
motion for judgment in default
of defence to be filed. This
was contrary to Order 16 Rule
3(2)(b), which provides for a
period of fourteen (14) days
after the service of an amended
statement of claim on the
defendant.
(iii) Though the parties
in the action filed a supposed
Terms of Settlement intending it
to be adopted as a consent
judgment, the State, before the
date slated for the adoption of
the said terms, had declared its
intention not to go by the terms
anymore since it had realized it
had a defence to the action.
That conduct alone served as a
caveat to the trial court in
treating the terms as Consent
Judgment since it had been
robbed of its consensual
content. The trial court
regrettably forced a Consent
Judgment on the State. What the
trial court described as a
“Consent Judgment” was therefore
not a Consent Judgment properly
so-called. It was a judgment
forced on
the State by the trial court,
which makes it a complete
nullity.
(iv) There was no basis
for the payment of the sum of
over Gh¢51 million to Alfred
Agbesi Woyome. This is because
he was not entitled to any such
payment as the EOCO rightly
found and stated in its interim
report.
(v) The trial court
should have set aside the
default judgment it had wrongly
entered against the State and
allowed the Attorney-General to
defend the action as she
intimated. The failure of the
trial High Court to do so led to
the wrong payment of the huge
sum of over Gh¢51 million to
Alfred Agbesi Woyome who did not
deserve it in the least.
(vi)The payment to Alfred Agbesi
Woyome was inordinate and at the
same time fraudulent. It
therefore constituted a huge
financial loss to the State.”
39. At page 42 of the White
Paper, the Government again
accepted and repeated the
unlawful findings and review of
the judicial decisions by the
Commission in respect of the Sky
Consult case in the following
manner:
“The
Commission made the following
findings and observations:
(i)
The interest that was
computed and added to the
principal sum was wrongly
computed and the trial court
therefore erred in entering
summary judgment for the amount
claimed;
(ii)
The summary judgment was
applied for and granted before
the expiry of the period allowed
for entry of appearance,
contrary to the provisions of
Order 14 rule 1 of the High
Court civil Procedure Rules, C.I
47 of 2004. In the Commission’s
own words, “this was error
apparent on the face of the
record which should not have
escaped the attention of any
prudent court”;
(iii)
The trial court did not
exercise due diligence in
granting the application and the
Court of Appeal also did not
observe the High Court (Civil
Procedure) Rules properly before
dismissing the appeal;
(iv)
The unfortunate
developments compelled Ghana
Post to pay more money than what
Sky Consult deserved;
(v)
Ghana Post should have
proceeded further to the Supreme
Court for a final determination
of the matter”
The Common Law Position
As far as the nullity of a
decision of a court of competent
jurisdiction is concerned, the
balance of judicial decisions in
Ghana has swung to the position
that the judgment of a court
cannot be treated as null and
void without recourse to court.
Before that cases like Mosi v.
Bagyina (1963) IGLR 337SC based
on the celebrated case of Macfoy
v UAC Ltd (1962) AC 152 P.C had
held that a void order was ipso
facto void without the need for
a court to set it aside. In the
course of time the courts tried
to restrict the ambit of the
nullity principle to cases in
which the nullity is patent or
obvious on the face of the
order.
All this was finally
reviewed and settled by this
court in the remarkable case of
Republic v High Court, Accra; Ex
parte Afoda [2001 – 2002] SCGLR
768 wherein this court for
public policy reasons,
unanimously held per Kpegah JSC
at 773 thus:
“We . . . reiterate the law to
be: the fact that an order of,
or a process from, a court of
competent jurisdiction is
perceived and considered void or
erroneous should not give a
party who is affected by the
order, or to whom the process is
directed, the slightest
encouragement to disobey it; and
when cited for contempt, only to
turn round to justify the said
disobedience by the fact that
the order ought not to have been
made or the process issued in
the first place. The proper
thing to do is to either obey,
or sue for a declaration to that
effect or apply to have it set
aside. The proponent of the
order then assumes the burden to
justify the order on which he
relies and so prove that the
order or the process was not
improvidently made. As a matter
of public policy it is important
that the authority of the court
and the sanctity of its process
be maintained at all times. It
is too dangerous to give a
litigant and his counsel the
right to decide which orders or
process of the court are lawful
and therefore deserving of
obedience, and if not, must be
disobeyed. An order or process
of a court of competent
jurisdiction cannot be impeached
by disobedience. That way, we
should needlessly be empowering
lawyers, in their various
chambers, to have supervisory
jurisdiction over the courts.
That is an effective way to
undermine, if not destroy, the
administration of justice.”
This decision has been
followed fairly consistently in
cases such as Republic v Conduah;
Ex parte Aaba (substituted by
Asmah) (2013 – 2014) 2 SCGLR
1052
As regards administrative
bodies, it is settled that
unless the relevant statute
provides otherwise they have no
supervisory authority over the
decisions of the courts – see
Lutterodt v Mensa Nyarko
(1984-86)1 GLR 277 C.A and
Koranteng II v. Klu (1993-94)1
GLR 280 S.C. In the latter case
it was held that not even the
Chief justice can unsettle a
decided case in his
administrative capacity, even
though the judgment on the case
cannot be found.
Admittedly some of the
broad terms of the provisions of
the constitution, particularly
articles 278(1) and 280(1) can
give the impression that a
Commission of Inquiry can
enquire “into any matter of
public interest” inclusive of
the merits or demerits of the
decisions of the courts. But as
Acquah JSC said in JH Mensah v
Attorney-General(1996-97) SCGLR
320 at 362:
“I think it is
now firmly settled that a better
approach to the interpretation
of a provision of the 1992
Constitution is to interpret
that provision in relation to
the other provisions of the
Constitution so as to render
that interpretation consistent
with the other provisions and
the overall tenor or spirit of
the Constitution. An
Interpretation based solely on a
particular provision without
reference to the other
provisions is likely to lead to
a wrong appreciation of the true
meaning and import of that
provision. Thus in Bennion’s
Constitutional Law of Ghana
(1962) it is explained at page
283 that it is important to
construe an enactment as a
whole:
“. . . since it is easy, by
taking a particular provision of
an Act in isolation, to obtain a
wrong impression of its true
effect. The dangers of taking
passages out of their context
are well known in other fields,
and they apply just as much to
legislation. Even where an Act
is properly drawn it still must
be read as a whole. Indeed a
well drawn Act consists of an
inter-locking structure each
provision of which has its part
to play. Warnings will often be
there to guide the reader, as
for example, that an apparently
categorical statement in one
place is subject to exceptions
laid down elsewhere in the Act,
but such warnings cannot always
be provided.”
I am therefore of the considered
view that having regard to the
obvious absurdity involved in
determining the tenure of office
of a minister or deputy minister
solely or article 81, a recourse
must be made to the broad
outline of the type of
government created in the 1992
Constitution.” (e.s.)
One must therefore match
articles 278(1) and 280(1) with
the specific and insistent
provisions of the Constitution
in articles 125(1), (4), 127(1)
– (3) and 154 and it becomes
clear that the Judiciary was
meant to be a self disciplining
institution and outside
interference was not
countenanced. The appellate and
supervisory jurisdictions of the
courts are also in point. This
is laid bare by paragraphs 251 –
252 of the Report of the
Committee of Experts
(Constitution) on Proposals for
a Draft Constitution of Ghana,
as follows:
“INDEPENDENCE
OF THE JUDICIARY
251. The independence of the
Judiciary should be guaranteed
by the State and enshrined in
the Constitution. It is the
duty of all governmental and
other institutions to respect
and observe the independence of
the judiciary.
252. It is the view of the
Committee that the concept of
judicial independence has
several aspects, and that there
can be no meaningful
constitutional guarantee for the
basic integrity of the judicial
process unless the following
fundamental principles are
acknowledged and reflected in
the provisions relating to the
Judiciary:
1. There should be an
unequivocal prohibition of
Executive interference with the
judicial process. The Judiciary
must not be subject to any
control or directive from the
Executive or any other quarter
in the discharge of its judicial
functions. Nor should the
Executive, or indeed the
Legislature, pronounce on the
adjudication of cases or attempt
to alter or revise the outcome
of such adjudication. This
principle is without prejudice
to mitigation or commutation by
competent authorities of
sentences imposed by the
Judiciary, in accordance with
the law.”
Furthermore, article
280(2) provides thus:
“Functions
of commission of inquiry
(2)
Where a commission of
inquiry makes an adverse finding
against any person, the report
of the Commission of inquiry
shall, for the purposes of this
Constitution, be deemed to be
the judgment of the High Court
and accordingly, an appeal shall
lie as of right from the finding
of the Commission to the Court
of Appeal.”
The effect of this
provision if applicable to the
Judiciary will place the
Judiciary under the supervisory
authority of the Executive arm.
Certainly such a situation would
not be a construction that would
operate as regards the
independence of the Judiciary ut
magis floreat quam pereat. The
chequered history of the
independence of the Judiciary in
this country does not permit of
a contrary interpretation.
For all the foregoing
reasons we uphold the
Plaintiff’s action in so far as
it relates to the portions of
the findings and expressions of
the Judge in the two cases of
Alfred Woyome v.
Attorney-General and Another and
Sky Consult v. Ghana Post
Company which sought to fault
the judge with regard to his
adjudication of those cases and
to nullify the same.
W. A. ATUGUBA
(JUSTICE OF
THE SUPREME COURT)
S.
A. B. AKUFFO (MS)
(CHIEF JUSTICE)
S. O. A ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE
OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
L. S. N. AKUETTEH FOR THE
PLAINTIFF
DOROTHY AFRIYIE ANSAH
(MRS), SENIOR STATE ATTORNEY FOR
THE DEFENDANTS
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