|
Constitutional law - Judicial
review - Supreme Court –
invoking the original
jurisdiction – Executive
Instrument – Establish a
District Assembly - Gazette
notification - Declaration of
new district – Breach of Statute
Whether or not both EI 11 of
2007 and LI 1910 of 2008 are a
nullity in law by reason of the
several instances of statutory
and constitutional breach and or
non-compliance - Section 1 of
the Local Government Act, 1993
(Act 462) - Articles 1 (2), 2
(1) (a) and (b) and 130 (1) (a)
and (b), 240, 241 and 296 of the
1992 constitution.”
HEADNOTES
The facts which triggered this
action, as appears from the
plaintiffs’ own narration, are
not in the least complex. By
Executive Instrument (EI) 11 of
2007, and in the exercise of his
executive authority under the
Local Government Act 1993,(Act
462), the President of Ghana,
created a new administrative
District known as the Biakoye
District. Their chief complaint
as concerns this matter is that,
the President’s conduct was in
direct contravention of section
1 of the Local Government Act,
1993, (Act 462) in that he
failed to “direct the 2nd
defendant to conduct a study and
submit the findings and
recommendations to him for his
consideration” before making the
said declaration. The
plaintiffs further averred that
following the creation of this
District, the Parliament of
Ghana by Legislative Instrument
(LI) 1910 of 2008, sought to
establish a Biakoye District
Assembly to administer the said
District with Nkonya Ahenkro as
the District capital, thus
raising another controversy.
This time, their case is that
their discontent lay in the
choice of Nkonya Ahenkro as the
district capital; a choice they
complain was plainly contrary to
the antecedent gazette
notification which has named
Worawora as the district
capital. Additionally, they
maintain that a memorandum of
understanding subscribed to by
all the paramount chiefs
representing the five
constituent traditional areas
had, for good and sufficiently
valid reasons, unanimously voted
Worawora as their district
capital, whereas the purported
official naming of Nkonya
Ahenkro has been done without
their prior consultation and or
approval. They describe this
latter imposition of a district
capital on the stakeholders, as
constituting “a capricious,
arbitrary, unfair and
unreasonable exercise of
executive discretion, in
contravention of or inconsistent
with the governing principles of
decentralisation and due process
as contained in articles 240,
241 and 296 of the 1992
constitution.”
HELD
The breach or
violation complained of must
therefore derive from the
constitution, not an Act of
Parliament or some other
subsidiary legislation. Where
the inconsistency or violation
complained of lies outside of
the Constitution and does not
therefore relate to any of its
provisions, but rather, an Act
of Parliament, as in this
particular complaint, the action
to strike down must fail. That
is not to say that under these
circumstances, i.e. where the
violation complained of relates
to an Act of Parliament or some
other subsidiary legislation,
the aggrieved person has no
cause of action or is without
remedy. The aggrieved does have
a cause of action which is
clearly not cognisable under the
article 2 (1) and 130(1) (b) of
the 1992 Constitution. He or she
has a remedy but it lies in some
other forum, not the Supreme
Court, exercising its power of
judicial review of legislative
action under our constitutional
scheme. In conclusion, I hold
that our jurisdiction has been
wrongly invoked. I dismiss the
plaintiffs action in its
entirety as not been cognisable
under the legislative review
jurisdiction of this court. It
appears to me that the
plaintiffs only resorted to the
instant action to stultify and
or prevent the bringing into
fruition the operationalisation
of the Biakoye District
Assembly. Such blatant abuse of
the legal and judicial processes
should be and are hereby frowned
upon and deprecated.In the
premises, I agree with the
conclusion reached by the Chief
Justice that the plaintiffs
action herein fails and same is
accordingly dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Local
Government Act, 1993 (Act 462).
1992
constitution.
CASES
REFERRED TO IN JUDGMENT
R. M. D.
Charmabaugwalla v. Union of
India, AIR1957 SC 628
DPP v Hutchinson [1990] 2 AC 783
UKHL.
Republic v Yebbi & Avalifo
[2000] SCGLR 149
Edusei v. Attorney-General
[1996-97] SCGLR I,
Adumoah 11 v. Adu Twum [2000]
SCGLR 165
Republic v. High Court (Fast
Track Division) Accra; Ex Parte
Electoral Commission (Mettle
–Nunoo & Others Interested
Parties)
New Patriotic Party vrs
Attorney-General (31st
December case) [1993-94] 2 GLR
35, S.C
National
Media Commission vrs
Attorney-General [2000] SCGLR 1
Agbevor vrs Attorney-General
[2000] SCGLR 403
Edusei (No 2) vrs
Attorney-General, [1998 -99]
SCGLR 753
Bimpong-Buta
vrs General Legal Council and
others [2003 -2004] SCGLR 1200
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS),
CJ:-
COUNSEL
AKWASI BOSOMPEM FOR THE PLAINTIFFS.
CLARENCE KUWORNU FOR THE ATTORNEY
GENERAL.
MR. DABI FOR THE ELECTORAL
COMMISSION.
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
WOOD (MRS),
CJ:-
The Supreme Court’s exclusive
power of judicial review of
legislative action is
exercisable under articles 2(1)
and 130 (1) (b) of the 1992
Constitution. By these articles,
this court has exclusive
original jurisdiction in “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.”
Article 1 (2), which
unambiguously asserts the
supremacy of the constitution as
the fundamental law of the land
provides:
“(2) The 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.”
Again, articles 2 (1) (b) and
130 of the constitution state:
2 (1) A person who alleges that
-
(a) an 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;
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.
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.
(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.”
In this
action,
the Plaintiffs, who are
Paramount Chiefs and sub-Chiefs,
on behalf of themselves,
communities and traditional
areas of Worawora, Bowiri,
Apesokubi, Tapa and Nkonya, all
in the Volta Region, invoke this
original jurisdiction for a
number of reliefs, two of
which are declaratory in nature.
They read:
i.
“A
declaration that the purported
declaration by the President of
Ghana of a Biakoye District by
E.I. 11 of 2007 is a nullity in
law by reason of failure by the
President to direct the
Electoral Commission to conduct
a study and also to receive the
findings and recommendations of
such a study for his
consideration before declaring
the said new District in
breach
of
Section 1 of the Local
Government Act, 1993 (Act 462).
ii.
A
declaration that the L.I
purporting to
establish
a Biakoye District Assembly
together with naming of Nkonya
Ahenkro as the capital is a
nullity in law by reason of the
grounds of law contained in
Relief 1 (supra) coupled with
the fact that there was no
antecedent
gazette
notification thereof in
breach of the law.
iii.
An
order striking down or otherwise
nullifying E.I. 11 of 2007 and
L. I. 1910 of 2008.
iv.
An
order of injunction restraining
the Defendants herein together
with other departments and
agencies of government such as
the Ministry of Local Government
and Volta Regional Co-ordinating
Council and their officials from
inaugurating or operationalising
in any way whatever a Biakoye
District Assembly by virtue of
the Executive and Legislative
Instruments aforementioned.
v.
Consequential or further
orders.”
The facts which triggered this
action, as appears from the
plaintiffs’ own narration, are
not in the least complex. By
Executive Instrument (EI) 11 of
2007, and in the exercise of his
executive authority under the
Local Government Act 1993,(Act
462), the President of Ghana,
created a new administrative
District known as the Biakoye
District. Their chief complaint
as concerns this matter is that,
the President’s conduct was in
direct contravention of section
1 of the Local Government Act,
1993, (Act 462) in that he
failed to “direct the 2nd
defendant to conduct a study and
submit the findings and
recommendations to him for his
consideration” before making the
said declaration.
The plaintiffs further averred
that following the creation of
this District, the Parliament of
Ghana by Legislative Instrument
(LI) 1910 of 2008, sought to
establish a Biakoye District
Assembly to administer the said
District with Nkonya Ahenkro as
the District capital, thus
raising another controversy.
This time, their case is that
their discontent lay in the
choice of Nkonya Ahenkro as the
district capital; a choice they
complain was plainly contrary to
the antecedent gazette
notification which has named
Worawora as the district
capital. Additionally, they
maintain that a memorandum of
understanding subscribed to by
all the paramount chiefs
representing the five
constituent traditional areas
had, for good and sufficiently
valid reasons, unanimously voted
Worawora as their district
capital, whereas the purported
official naming of Nkonya
Ahenkro has been done without
their prior consultation and or
approval. They describe this
latter imposition of a district
capital on the stakeholders, as
constituting “a capricious,
arbitrary, unfair and
unreasonable exercise of
executive discretion, in
contravention of or inconsistent
with the governing principles of
decentralisation and due process
as contained in articles 240,
241 and 296 of the 1992
constitution.”
I deem it expedient to set out
in extenso the basis on which
the charges of capriciousness,
arbitrariness, unfairness and
unreasonableness are founded, as
these must be juxtaposed against
the relevant constitutional
provisions aforementioned, for a
determination of whether or not
these constitute valid grounds
for properly exercising our
legislative review jurisdiction.
The following are the verified
facts:
“(a)Nkonya Ahenkro is located at
one extreme end of the area
sought to be created as Biakoye
District by E.I.11 of 2007 and
therefore its choice as a
District capital imposes
needless hardship and
inconvenience on constituents as
typified by the cases of the
three (3) principal Bowiri towns
of Anyirase, Amanfrom and
Kyirahin whose residents and
elected representatives may now
have to travel over 60
kilometres to Nkonya Ahenkro,
unlike the previous situation
where these towns were within a
maximum radius of 5 kilometres
of Jasikan as the District
capital.
(b) Nkonya Ahenkro has no land
space for the development of a
District capital; and
(c) Nkonya Ahenkro has no
physical and social
infrastructure and amenities to
help kick-start and support a
new District.”
The plaintiffs’ action falls in
two parts. Their case, as is
clearly stated in the concluding
part of their verified statement
is that,
both EI 11 of 2007 and LI 1910
of 2008 are a “nullity in law by
reason of the several instances
of statutory and constitutional
breach and or non-compliance.”
A Court’s duty is to determine
the real matters in controversy
between parties effectually. It
is therefore imperative in
actions of this kind, as indeed
in other civil causes or
matters, that all alleged acts
of statutory and constitutional
invalidity, breaches or
violations, inconsistencies, or
non compliance be identified
with sufficient particularity,
with nothing being left to
chance or conjecture. It is
equally crucial that the
relevant constitutional
requirement alleged to have been
violated, be sufficiently
identified, to enable the court
effectively measure the
allegations against the confines
of the relevant constitutional
provisions. Therefore, unless
the circumstances clearly
warrant it, a general reference
to an entire article or
provision is insufficient. This
just requirement of the law,
which is based on plain good
sense, serves the interests of
justice well in all civil
actions. It enables issues in
controversy between parties to
be clearly identified, so each
side can adequately prepare to
meet the case alleged against
him or her, thereby enabling the
court to firmly and effectually
determine all disputed issues.
In
constitutional litigation,
two important principles make it
imperative that particulars of
invalidity or
unconstitutionality be clearly
stated. They are the presumption
of validity or constitutionality
in favour of legislation and the
principle of severability of
impugned legislation. A brief
analysis of these principles,
will cast further light on the
point I have made. The
presumption is that every Act of
the legislature is presumed to
be valid and constitutional,
until the contrary is proven. A
law will not be adjudged
unconstitutional, unless the
case is so clear as to be devoid
of any doubts. Indeed, the
legal principle in criminal law
which enjoins doubts to be
resolved in favour of accused
persons, works in much the same
way in this area of the law.
The principle is so hallowed
that it has been observed that
to doubt the constitutional
validity of a law, is to resolve
it in favour of its validity. In
other words, doubts are resolved
in favour of constitutionality
and not the person challenging
it.
In my judgment, it is perhaps in
the area of judicial review of
legislative action, that on the
principle of severability of
impugned legislation, it becomes
absolutely essential that the
rule be strictly observed. In
this context therefore,
generality or vagueness is not
the proper approach.
On the basis of this principle,
the offending parts of
legislation may be severed and
struck down, leaving other parts
intact and unaffected by the
exercise. It is therefore
evident that the principle can
only be justly applied where the
alleged particulars of
unconstitutionality; however
manifested or described, whether
as being ultra vires the powers
conferred, or as breaches,
violations, conflicts, or
non-compliance with
constitutional requirements or
procedures, are clearly spelt
out.
The test for textual
severability of impugned
legislation has been analysed in
a number of cases. I make
reference to two of them, in
order to clarify the point I
have made. First, as was set
out by the Constitution Bench of
India in
R. M. D. Charmabaugwalla
v. Union of India, AIR1957 SC 628
and second, by the Law Lords in
DPP
v Hutchinson [1990] 2 AC 783
UKHL.
The Indian Court expressed
itself thus:
“When a legislature whose
authority, is subject to
limitations aforesaid enacts a
new law which is wholly in
excess of its powers, it is
entirely void and must be
completely ignored. But where
the legislation falls in part
within the area allotted to it
and in part outside it, it is
undoubtedly void as to the
latter; but does it on that
account become necessarily void
in its entirety? The answer to
this question must depend on
whether what is valid could be
separated from what is invalid,
and that is a question which has
to be decided by the Court on a
consideration of the provisions
of the Act. This is a principle
well established in American
jurisprudence, Vide Cooley’s
Constitutional Limitations, Vol.
1, chap. VII, Crawford on
Statutory Construction, Chap. 16
and Sutherland on Statutory
Construction, 3rd
Edn. Vol. 2, Chap. 24.” [para 12
of AIR].
Second, I refer to a decision of
the House of Lords in DPP v
Hutchinson and DPP v Smith
[1988] UKHL 11 (12 July 1990),
in which Lord Bridge of Harwich
spoke to the principle of
severability of impugned
legislation. The Law Lord
expressed himself thus:
“When a legislative instrument
made by a law-maker with limited
power is challenged, the only
function of a court is to
determine whether there has been
a valid exercise of that limited
legislative power in relation to
the matter which is the subject
of disputed enforcement. If a
law-maker has validly exercised
his power, the court may give
effect to the law validly made.
But if the court sees only an
invalid law made in excess of
the law –maker’s power, it has
no jurisdiction to modify or
adapt the law to bring it within
the law maker’s power. These are
the basic principles which have
always to be borne in mind in
deciding whether legislative
provisions which on their face
exceed the law-maker’s power may
be severed so as to be held and
enforced in part. The
application of these principles
leads naturally and logically to
what has traditionally been
regarded as the test of
severability. It is often
referred to inelegantly as the
“blue pencil” test. Taking the
simplest case of a single
legislative instrument
containing a number of separate
clauses of which one exceeds the
law-maker’s power, if the
remaining clauses enact
free-standing provisions which
were intended to operate and are
capable of operating
independently of the offending
clause, there is no reason why
those clauses should not be
upheld and enforced. The
law-maker has validly exercised
his power by making the valid
clauses. The invalid clause may
be regarded as unrelated to, and
having no effect upon, the
operation of the valid clauses,
which accordingly may be allowed
to take effect without the
necessity of any modification or
adaptation by the court.”
This Court deployed the
principle, embedded in article 1
(2) of the 1992 Constitution, in
the case of
Republic v Yebbi & Avalifo
[2000] SCGLR 149 to
conclude that:
“part of section 24 (1) of Act
459 which reads that: “a
Regional Tribunal shall have
concurrent original jurisdiction
with the High Court in all
criminal matters” is
inconsistent with the said
article 143 (1) of the 1992
Constitution and, to the extent
of such inconsistency void.”
For purposes of clarity, I set
out the particulars of the
alleged various acts of
unconstitutionality and other
statutory violations as
furnished by the plaintiffs.
Notwithstanding their assertion
that there were several
instances of statutory and
constitutional breaches or non
compliance, I identified only
the following verified
particulars:
1
The President’s failure to
direct the Electoral Commission
to undertake a study and submit
findings and recommendations for
his study in contravention of
s.1 of the Local Government Act,
Act 462, for which reason E.I.
11 2007, being in violation of
articles 240, 241 and 296 of the
1992 constitution are a nullity.
2
The purported naming of Nkonya
Ahenkro, (rather than Worawora)
as District capital per LI 1910
without antecedent gazette
notification is in breach of the
law, and constitutes a
capricious, arbitrary, unfair
and unreasonable of executive
discretion, inconsistent with
articles 240, 241 and 296 of the
1992 constitution.
It is indeed
quite difficult, if not
impossible, to understand what
provoked the plaintiffs’ second
complaint, that which expresses
their extreme dissatisfaction
with the selection of Nkonya
Ahenkro and not their veritable
choice of Worawora, as the
capital of the Biakoye District.
This allegation is not supported
by the facts on the record.
Section 6 of the Local
Government (Biakoye District
Assembly) (Establishment)
Instrument, 2007 L.I 1910
exhibited by the Plaintiffs as
“Exhibit WBA 1” provides
as follows:
Location of
principal offices of assembly
-
The Assembly shall establish
its principal offices at
Worawora where meetings
of the Assembly shall be
held.
The specific
words District capital has not
been used to describe Worawora,
but it is plain from the
legislation, in which no mention
is made of Nkonya Ahenkro as
District capital, that the
reference is to the District
capital position. Plainly,
under LI 1910, which the
plaintiff prays be struck down,
the District capital position
has, in accordance with their
unanimous decision, by reason of
matters they have alluded to,
namely its central location
coupled with the existence of
physical and social
infrastructure, amenities and
abundant land space, been
conferred on Worawora. It
follows that the very
foundation of the plaintiff’s
case or the fulcrum around which
it evolves is non existent.
As regards the plaintiffs’ 1st
relief, it is clear that on
their own showing, the
contravention relates s.1 of the
Local Government Act, 1993 (Act
462) and not a constitutional
provision. It is worth
reproducing their complaint in
full:
“The President of Ghana failed
to direct the Electoral
Commission, the 2nd
Defendant herein, to conduct a
study and also to receive the
findings and recommendations of
such a study for his
consideration before declaring
the said new District in
contravention of section 1 of
the Local Government Act, 1993
(Act 462), a fact that was
acknowledged in the official
Report of the Parliamentary
Committee on Local Government
which is attached hereto marked
“WBA”.
It is true that the plaintiffs
make a general reference to
constitutional provisions, but
as I have already noted this is
plainly insufficient and clearly
inconsequential. No merit lies
in making such bare assertions
and leaving it at that. This
court has adroitly gone behind
mere words to unveil the real
nature or substance of actions
filed. We have not hesitated to
do so in causes or matters
affecting chieftaincy, or other
matters in which our
jurisdiction have been clearly
ousted. (see
Edusei v. Attorney-General
[1996-97] SCGLR I, Adumoah 11 v.
Adu Twum [2000] SCGLR 165 and
Republic v. High Court (Fast
Track Division) Accra; Ex Parte
Electoral Commission (Mettle
–Nunoo & Others Interested
Parties).
To identify the real substance
of actions brought before the
court, we have observed that the
proper approach is to examine
the writ as well as the
pleadings; in this type of
litigation, the reliefs and the
facts verified by affidavit.
The plain facts are that the
Plaintiffs’ first complaint,
which relates to the
establishment of the Biakoye
District by virtue of Executive
Instrument (E.I.) 11 of 2007, is
not linked to any constitutional
provision, let alone its
violation or contravention.
Despite the bare assertion that
EI 11 is a nullity “by reason of
the several instances of
…constitutional breach and or
non-compliance”, reference is
not made to any specific
constitutional provision,
neither are particulars of any
constitutional requirements been
provided. To the contrary, the
pith of the plaintiffs’ action,
as can be seen from both the
reliefs and the verified
statement of case, is that the
executive authority failed to
comply with an Act of
Parliament, specifically the s.
1 of the Local Government Act,
1993, (Act 462). Their grievance
did not relate to the
non-compliance of constitutional
provision, but an Act of
Parliament. This forms the basis
of their prayer that the L.I.
2007 must therefore be declared
a nullity. The legitimate
question is whether an
invocation of this court’s
original jurisdiction via the
process of
judicial
review of legislative
action, is the proper method for
seeking redress.
It is trite, but I must
emphasise that,
incontrovertibly, this special
power is exclusively limited to
the striking down of legislation
made in excess of the powers
conferred under the 1992
Constitution, not those made
ultra vires the power conferred
by some other enactment. In
other words, this court will
only strike down legislation
which is found to be violative
of a constitutional provision,
namely, that the legislation is
either inconsistent with, in
breach, or violation or
contravention of provisions of
the Constitution.
The
breach or violation complained
of must therefore derive from
the constitution, not an Act of
Parliament or some other
subsidiary legislation. Where
the inconsistency or violation
complained of lies outside of
the Constitution and does not
therefore relate to any of its
provisions, but rather, an Act
of Parliament, as in this
particular complaint, the action
to strike down must fail. That
is not to say that under these
circumstances, i.e. where the
violation complained of relates
to an Act of Parliament or some
other subsidiary legislation,
the aggrieved person has no
cause of action or is without
remedy. The aggrieved does have
a cause of action which is
clearly not cognisable under the
article 2 (1) and 130(1) (b) of
the 1992 Constitution. He or she
has a remedy but it lies in some
other forum, not the Supreme
Court, exercising its power of
judicial review of legislative
action under our constitutional
scheme.
In conclusion, I hold that our
jurisdiction has been wrongly
invoked. I dismiss the
plaintiffs action in its
entirety as not been cognisable
under the legislative review
jurisdiction of this court.
G.
T.
WOOD (MRS)
CHIEF
JUSTICE
DOTSE, JSC:-
The facts of
this case have been
satisfactorily narrated by Wood
C.J, and since I agree with her
statement of the facts, there is
no need to state or repeat them
again.
I have also
had prior discussions with the
Honourable Chief Justice on the
outcome of this case and I agree
with her on the conclusions
reached in this matter, that the
writ herein filed against the
Defendants be dismissed.
This
concurring opinion is just for
purposes of emphasis and
expatiation of some points of
law which I believe need to be
expanded for the development of
the law and as a guide to legal
practitioners who intend to
invoke the original jurisdiction
of this Court.
INVOCATION OF
ORIGINAL JURISDICTION
From a close
study of the reliefs the
plaintiffs seek against the
Defendants, and amplification of
same in their statement of case,
it is clear that the plaintiffs
in the instant action are
seeking to invoke the original
jurisdiction of the court.
The
plaintiffs have given clear
proof and indication of this
intent in their statement of
case where they refer to
articles 2(1) (a) and (b) as
well as 130 (1) (a) and (b) of
the constitution 1992.
Out of
abundance of caution, let me
refer to these constitutional
provisions:
Article 2 (1)
“ A person who
alleges that
(a) an
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
is
inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect”.
Article 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.”
The fact that
article 130 (2) of the
Constitution 1992 contains
provisions whereby whenever any
issue such as are provided for
in article 130 (1) of the
Constitution call for and or
arise in proceedings before any
other Court, other than the
Supreme Court, then that Court
shall stay the proceedings and
refer the matter or issues for
determination to the Supreme
Court, confirms that it is only
the Supreme Court that has
exclusive original jurisdiction
in the matters reserved for it,
pursuant to articles 2 (1) (a)
and (b) and 130 (1) (a) and (b)
of the constitution 1992.
Original
jurisdiction in this context
must be understood to mean the
sum total of the jurisdiction
that has been provided for and
is available to be exercised by
the Court that has power to
initially hear a lawsuit. This
therefore means that, it is the
Supreme Court that has been
clothed with power
(jurisdiction) to hear and
determine at first instance the
following:
i.
All matters relating to the
enforcement or interpretation of
the Constitution other than
provisions on the enforcement of
Fundamental Human Rights and
Freedoms as enshrined in article
33 of the constitution, 1992.
ii.
Any matter 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.
iii.
The passage of any enactment by
Parliament, or the acts of
commission or omission by any
person or authority considered
to be inconsistent with or is in
contravention of a provision of
this Constitution.
The above are
the broad areas under which the
original jurisdiction of this
court may be invoked. The above
should not be taken as an
inflexible tabulation, but
capable of expansion and should
in that respect therefore be
considered as a guide only. At
the core of this guide list is
the point that, there must
always be a constitutional
provision as a reference point.
However,
after applying the above
considerations to the nature of
the reliefs being claimed by the
Plaintiffs in the instant suit,
I am convinced the plaintiffs do
not qualify for the
consideration by this court of
the said reliefs, let alone the
grant of same.
This is so
because, the plaintiffs, by
their writ, seek the following
reliefs:
i. A
declaration that, the
declaration by the President of
Ghana of a Biakoye District,
pursuant to E. I. 11 of 2007 is
a nullity in law because the
President failed to direct the
Electoral Commission to conduct
a study and receive the report
and recommendations of such a
study for his consideration
before establishing the said
Biakoye District in breach of
section 1 of Local Government
Act, 1993 (Act 462).
ii. A
further declaration that L.I.
1910 which purported to
establish a Biakoye District
Assembly together with the
naming of Nkonya Ahenkro as the
capital is a nullity in law for
the same reasons stated supra,
i.e. failure to direct the
Electoral Commission to conduct
a study and no antecedent
gazette notification had been
given.
iii.
An order striking down or
nullifying E. I. 11 of 2007 and
L. I. 1910 of 2008.
iv. An
order of injunction restraining
the Defendants herein together
with other departments and
agencies of government such as
the Ministry of Local Government
and Volta Regional Co-ordinating
Council and their officials from
inaugurating or operationalising
in any way whatever a Biakoye
District Assembly by virtue of
the Executive and Legislative
Instruments aforementioned.
v.
Consequential orders.
None of the
above reliefs is cognisable
under article 2 (1) (a) and (b)
or 130 (1) (a) and (b) of the
Constitution 1992 already
referred to supra or put
bluntly, the plaintiff’s writ
does not disclose any cause of
action.
1.
This is so because in relief one
(1) supra, the plaintiffs talk
about the President acting in
breach of section (1) of the
Local Government Act, 1993 (Act
462) in the creation of the
Biakoye District Assembly.
The preamble
to the Local Government Act,
1993, (Act 462) provides as
follows:-
“An Act to
establish and regulate the local
government system in
accordance with the constitution
and to provide for related
matters.”
This means
that, Act 462 has recognised the
Supreme and basic nature of the
Constitution, 1992 as is
provided for under article 1 (2)
of the Constitution, 1992 to the
extent that as the Constitution
and basic law of the land, the
Constitution is Supreme and any
law inconsistent with the
Constitution must to extent of
the inconsistency be void.
Act 462
contains the following relevant
provisions on the establishment
of District Assemblies.
Section 1
(1) “The districts
in existence immediately before
the coming into force of the
1992 Constitution shall continue
as districts for the purpose of
this Act
(2)
The President may, by executive
instrument,
(a) declare an area to be
a district, and
(b) assign a name to the
district
(3)
The President shall in the
exercise of the powers under sub
section 2 (a) direct the
Electoral Commission to make the
appropriate recommendations”
Sub-sections
4 (a) (i) (ii) (iii) and (b) of
section 1 of Act 462 contains
the list of what factors the
Electoral Commission should take
into consideration before making
recommendations to the President
on the creation of new
districts.
Section 3 of
Act 462 gives power to the
Minister of Local Government to
establish by Legislative
Instrument, a District Assembly
for any District, Municipality
and Metropolis which has been
created in accordance with
article 241 (3) of the
Constitution 1992.
This section
also specifies the following as
the ingredients that the
Legislative Instrument must
contain. These are:
i. The
name and area of the authority
ii. The
number of elected and appointed
members of the Assembly
iii. The
jurisdiction, functions and
responsibilities
iv. The
capital of the Assembly
v. Other
matters
It is clear
therefore that Act 462 had been
enacted pursuant to the
Constitution and is to that
extent subject to the
Constitution. This therefore
connotes that, in construing the
true effect of Act 462, one must
consider the total and combined
effect of the powers of the
President as contained in
chapter 8 of the Constitution,
and the entire Constitution 1992
for that matter. Special mention
must therefore be made of
article 78 (1) of the
Constitution 1992 which vests
the power of appointment of
Ministers, basically with the
President with the prior
approval of Parliament. In
essence therefore, as an
executive President, it means
that the President whenever an
enactment specifies an act to be
done or exercised by a Minster
such as in the instant case,
then the inference can be drawn
that the, influence, power and
authority of the President in
the performance of such a
function cannot be understated.
It is
therefore unacceptable for the
plaintiffs to question the
propriety and or validity of
Executive and Legislative
Instruments passed by the
Minster of Local Government
acting on behalf of the
President and pursuant to Act
462 in the creation of the
Biakoye District Assembly.
In the
instant case, the enactment
which is inconsistent with the
constitutional provision has not
been stated by the plaintiffs.
References to the statement of
case filed by the Plaintiffs in
support of their writ has not
helped matters. As a result,
relief one (1) just stands alone
without the necessary
constitutional linkage or nexus
showing the inconsistent
portions of the enactment
complained about vis-a-vis the
Constitution.
It should be
noted that articles 241 (1) (2)
and (3) of the Constitution 1992
deal with local government
administration and also mandate
Parliament to be responsible for
the re-drawing of the boundaries
of existing districts or for the
reconstitution of the said
districts.
In addition
to the above, E. I. 11 of 2007
and L. I. 1910 were all laid
before Parliament pursuant to
article 11 (7) of the
Constitution 1992.
Besides, when
attention was drawn to the fact
that the 2nd
defendant i.e. the Electoral
Commission was not consulted as
required by Act 462 already
referred to, before the Biakoye
District Instrument was laid
before Parliament, it was
withdrawn for the necessary
consultations to be done and
re-laid later before Parliament.
For the
plaintiffs reliefs to be
cognisable under the remit of
the original jurisdiction of the
Supreme Court, the reliefs must
be so clearly stated and couched
as to admit of no controversy,
for example that, Parliament or
for that matter an authority, be
it the President or any other
person has in acting pursuant to
an enactment made by Parliament
exceeded the parameters of the
powers conferred on Parliament
by the Constitution under
article 1 (2) of the
Constitution 1992. It should be
noted that, what the
Constitution states in article
1(2) is very clear and should
not pose any interpretation
problems. Out of abundance of
caution, this is what the
article provides:
“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 extend of the inconsistency,
be void”.
There is
therefore this element of
constitutional supremacy of the
Constitution 1992.
The Supreme
Court in a number of cases has
stated quite clearly this
principle of constitutional
supremacy under the Constitution
1992 as is evident in articles 1
(2), 2 (1) (a) and (b) and 130
(1) (a) and (b) of the
Constitution 1992.
Cases which
readily come to mind are the
following:
1.
New
Patriotic Party vrs
Attorney-General (31st
December case) [1993-94] 2 GLR
35, S.C. Aikins
JSC in his opinion in support of
the majority decision stated as
follows:-
“In my view,
even though Parliament has the
right to legislate, this right
is not without limit, and the
right to enact a law that June
4 and December 31 should be
declared public holidays cannot
be left to linger in the realm
of public policy. Such
legislation must be within the
parameters of the power
conferred on the legislature,
and under article 1 (2) of the
Constitution, 1992 any law found
to be inconsistent with any
provision of the Constitution
(the Supreme Court) shall to the
extent of such inconsistency be
void.”
i
National
Media Commission vrs
Attorney-General [2000] SCGLR 1
and
ii.
Agbevor vrs Attorney-General
[2000] SCGLR 403 which both
declared the
actions of the President as
being inconsistent with various
sections of the Constitution,
1992 and therefore
unconstitutional and void.
iii.
Edusei
(No 2) vrs Attorney-General,
[1998 -99] SCGLR 753 at 754,
where the majority opinions of
Bamford Addo JSC as she then
was, and Kpegah JSC are
relevant, and therefore
appropriate.
a. Per Bamford Addo JSC
“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 a case
of enforcement of human rights,
which should have been
instituted at the High Court”
b. Per Kpegah JSC
“In
determining the scope or extent
of our original jurisdiction, we
must read together articles 2
(1) and 130 (1) of the 1992
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 Constitution, except
those provisions contained in
chapter 5 dealing with
Fundamental Human Rights,
ii.
the interpretation of any
provision of the constitution;
or
iii.
an issue whether an enactment is
inconsistent with any provision
of the Constitution” and
iv.
Bimpong-Buta vrs General Legal
Council and others [2003 -2004]
SCGLR 1200 at 1205
where the
Supreme Court unanimously held,
whilst striking out the
plaintiffs action for want of
jurisdiction as follows:
“The plaintiffs action did not
raise any real or genuine issues
of constitutional interpretation
such as would justify the court
exercising its original
jurisdiction under articles 2
(1) and 130 (1) (a) of the 1992
Constitution. The plaintiff’s
action was no more than an
ordinary civil suit splendidly
presented as a constitutional
issue”
The combined
effect of all these cases on the
instant suit is that, the
plaintiffs have not properly
invoked the original
jurisdiction of the Supreme
Court. What must be noted is
that, unless a plaintiff can
identify the ultra vires nature
of the act or acts complained
of, or put simply, that the
provisions of an enactment are
ultra vires the Constitution
1992, then the invocation of the
original jurisdiction cannot be
justified under articles 1 (2),
2 (1) (a) and (b) and 130 (1)
(a) and (b) of the Constitution
1992.
The instant
writ by the plaintiffs apart
from the fact that it does not
satisfy this basic requirement,
also clearly does not disclose
any cause of action.
The position
might therefore be stated that
whenever a plaintiff invokes the
original jurisdiction of the
Supreme court in its enforcement
or interpretative functions of
the Constitution pursuant to
articles
1 (2), 2 (1) (a) and (b) and 130
(1) (a) and (b) of the
Constitution, 1992, the
court must before assuming
jurisdiction satisfy itself that
the reliefs are clearly
cognisable under the said
constitutional provisions and
that the plaintiff has a cause
of action under the purview of
the Constitutional provisions.
Whenever there is certainty that
a plaintiff has not met the
criteria set out in the said
constitutional provisions
referred to supra and as has
been espoused in line with the
several decided cases, the Court
should not waste time but
dismiss the plaintiffs case in
limine.
This is so
because, the said jurisdiction
conferred on the Supreme Court
is such a serious jurisdiction
that it should not be invoked on
fanciful, trifling conjectures,
but on solid, concrete and
substantial constitutional
grounds capable of withstanding
the litmus test.
2.
When reliefs two (2) through to
five (5) are also put under the
constitutional telescopic
observation, it is clear that
they also do not measure up to
the required standard capable of
sustaining the invocation of the
original jurisdiction of the
Supreme Court.
I am
therefore of the considered view
that, the entire writ filed by
the plaintiffs is incompetent as
it basically fails to disclose
any cause of action. Not one
constitutional provision has
been cited in support of the
plaintiffs’ case.
In arriving
at the decision I have come to
in this case, I am certain the
original intent of the
Constitution 1992 on the
invocation of this original
jurisdiction of the Supreme
Court is to establish the
principle of supremacy of the
Constitution pursuant to article
1 (2) of the Constitution, 1992.
Besides, to qualify to come
under articles 2 (1) ( a) and
(b) and 130 (1) (a) and (b) of
the Constitution, 1992 the
plaintiff must narrate serious
allegations of conduct which
have linkages to breaches of
constitutional provisions of the
constitution 1992 or breach of
an enactment with a
constitutional provision.
It appears to
me that the plaintiffs only
resorted to the instant action
to stultify and or prevent the
bringing into fruition the
operationalisation of the
Biakoye District Assembly. Such
blatant abuse of the legal and
judicial processes should be and
are hereby frowned upon and
deprecated.
In the
premises, I agree with the
conclusion reached by the Chief
Justice that the plaintiffs
action herein fails and same is
accordingly dismissed.
J. V. M. DOTSE
JUSTICE OF THE
SUPREME COURT
J. ANSAH
JUSTICE OF THE
SUPREME COURT
R.C. OWUSU (MS)
JUSTICE OF THE
SUPREME COURT
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
COUNSEL:
AKWASI
BOSOMPEM FOR THE PLAINTIFFS.
CLARENCE KUWORNU FOR THE ATTORNEY
GENERAL.
MR. DABI FOR THE ELECTORAL
COMMISSION. |
