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Constitutional law -
Interpretation - Voluntary
association - statute of Ghana
Football Association -
Arbitration or mediation – Lack
of jurisdiction - Article 2(1)
(a) of the 1992 Constitution -
Whether or not plaintiff’s suit
raises issues or matters falling
within the exclusive
jurisdiction of the court -
Whether or not reliefs claimed
by the plaintiff in this suit is
a violation of the fundamental
human rights chapter of the
Constitution 1992 - whether or
not a provision in a private
instrument is null and void and
could be dealt with by any other
court.
HEADNOTES
This action,
is being brought under article
2(1) (a) of the Constitution
1992 as it is asking this Court
to strike down some provisions
in the statute of Ghana Football
Association as being
unconstitutional, as they
infringe or contravene the
letter and spirit of chapter
five of the 1992 Constitution
and are thereby null and void.
HELD
This action,
in our opinion is being brought
under article 2(1) (a) of the
Constitution 1992 as it is
asking this Court to strike down
some provisions in the statute
of GFA as being
unconstitutional, as they
infringe or contravene the
letter and spirit of chapter
five of the 1992 Constitution
and are thereby null and void,
the relief sought by the
plaintiff is vague as on the
face of the pleadings he has not
pointed to any particular
articles under Chapter Five of
the 1992 Constitution which
article 17.1.11.1-6 may be said
to be inconsistent with and for
which reason, it should be
declared void The Supreme
Court’s original and exclusive
jurisdiction under Articles 2(1)
and 130(1) in testing the
validity of any laws of Ghana
can only be invoked in relation
to ‘Laws of Ghana’ as stipulated
under article 11 of the
Constitution 1992. Consequently,
we do not think this case raises
any constitutional issue to
warrant an
interpretation or
enforcement by this Court. From
the foregoing, we find that the
preliminary objection is valid
and is therefore upheld. We will
accordingly dismiss the
plaintiff’s action for
lack of
jurisdiction.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Sports Act,
1976 (SMCD54)
CASES
REFERRED TO IN JUDGMENT
Edusei (No.
2) v. Attorney-General [1998-99]
SCGLR 729
Federation of
Youth Association of Ghana v.
Public Universities & Others,
Suit No. Writ J1/51/2009,
unreported judgment dated
3/2/2010 S.C
New Patriotic
Party v. Inspector-General of
Police [1993-94] 2GLR
459,
Mensima v. Attorney-General
[1996-97] SCGLR 67
New Patriotic
Party v. Attorney-General (CIBA
CASE) [1996-97] SCGLR 729.
Adjei- Ampofo
v. Accra Metropolitan Assembly
&Attorney-General (No1)
[2007-2008] SCGLR 611
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ADINYIRA(MRS), JSC
COUNSEL
OSAFO BUABENG
FOR THE PLAINTIFF
THADDEUS SORY
FOR THE DEFENDANT
R U L I N G
_________________________________________________________________
ADINYIRA(MRS), JSC:
The plaintiff
a citizen of Ghana and a
supporter of Tema Youth Football
Club is claiming against the
Ghana Football Association (GFA)
per his writ dated 1September
2010, the following reliefs:
(a)
“A
declaration that article
17.1.11.1- 6 of the statutes of
the Ghana Football Association
seeking to oust members and
their supporters from resorting
to the law courts to ventilate
their grievances as of right and
further purporting to coerce
football clubs from associating
themselves with such actions to
save themselves from expulsion,
in so far as they constitute
acts of the Ghana Football
Association, is inconsistent
with and or are in contravention
with the letter and spirit of
chapter five of the 1992
Constitution of the Republic of
Ghana and are thereby void an d
have always been null and void
for all purposes.
(b)
An
order restraining the Ghana
Football Association, it’s
agents and members from
requesting any member to file or
publish a disclaimer in respect
of an action in Court commenced
by a supporter of a football
club in which the said club
obviously has an interest in
same
(c)
Such
further or other reliefs that
this honorable court may seem
meet.”
The defendant
has raised a preliminary
objection to the jurisdiction of
this Court to entertain this
action. The objection is
premised on three grounds:
i)
The
plaintiff’s suit raises no issue
or matter falling within the
exclusive jurisdiction of this
court.
ii)
The
reliefs
claimed by the plaintiff in this
suit allege a violation of the
fundamental human rights chapter
of the Constitution 1992 of
the Republic of Ghana, a matter
within the province of and
jurisdiction of the High Court
and not this Court.
iii)
The
plaintiff’s suit raises the
question as to
whether
or not a provision in a private
instrument is null and void and
could be dealt with by any other
court.
In response,
Counsel for the plaintiff
submitted that the plaintiff’s
claim is not for an enforcement
of a provision of Chapter 5 of
the Constitution. It is for a
declaration that certain acts of
the defendant infringes on that
chapter of the Constitution,
consequently the Supreme Court
has jurisdiction in the matter.
It is
necessary to set out articles
2(1), 33 (1) 130 (1) and 140 (2)
of the 1992 Constitution which
deals with the respective
jurisdiction of the Supreme
Court and the High Court:
“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.”
“33 (1)
Where a person alleges that a
provision of this Constitution
on the fundamental human rights
and freedoms has been, or is
being or is likely to be
contravened in relation to him,
then, without prejudice to any
other action that is lawfully
available, that person may apply
to the High Court for redress.”
“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
140
(2). The High Court shall have
jurisdiction to enforce the
Fundamental Human Rights and
Freedoms guaranteed by this
Constitution.”
By the
combined effect of articles
33(1), 130(1) and 140(2) supra
the proper forum for the
enforcement of the
provisions of the Constitution
relating to violation of
fundamental human rights is
within the original jurisdiction
of the High Court. See the case
of Edusei
(No. 2) v. Attorney-General
[1998-99] SCGLR 729
where this Court specifically
held that the Supreme Court has
no concurrent jurisdiction with
the High Court in the
enforcement of an infringement
of Fundamental Human Rights.
However the Supreme Court
has exercised its original
and exclusive jurisdiction
in matters where the central
issue involves the
interpretation of the provisions
of the Constitution relating to
the enjoyment of a fundamental
human right in contrast to the
enforcement of a fundamental
human right by a victim of a
breach of those rights. See
the case of
Federation of Youth Association
of Ghana v. Public Universities
& Others, Suit No. Writ
J1/51/2009, unreported judgment
dated 3/2/2010 S.C.
There are also those line of
cases which are instituted under
articles 2(1) (a) and 130(1) to
strike down legislations which
were considered to be
inconsistent or in contravention
with some provisions relating to
fundamental human rights. See
New
Patriotic Party v.
Inspector-General of Police
[1993-94] 2GLR 459,
Mensima v. Attorney-General
[1996-97] SCGLR 67 and,
New Patriotic Party v.
Attorney-General (CIBA CASE)
[1996-97] SCGLR 729.
Although
counsel for the plaintiff
submitted that the action is for
a declaration that certain acts
of the defendant infringes on
chapter five of the Constitution
1992, in substance he is seeking
a declaration by this Court that
the dispute resolution mechanism
set out under article
17.1.11.1-6 in the statutes of
GFA is inconsistent with and in
contravention with the letter
and spirit of Chapter Five of
the Constitution.
This action,
in our opinion is being brought
under article 2(1) (a) of the
Constitution 1992 as it is
asking this Court to strike down
some provisions in the statute
of GFA as being
unconstitutional, as they
infringe or contravene the
letter and spirit of chapter
five of the 1992 Constitution
and are thereby null and void.
The first
hurdle to be cleared is whether
the statutes of GFA of 2008 can
properly be classified as an
enactment or regulation as
envisaged under Article 11 of
the Constitution to warrant a
scrutiny by this Court under its
exclusive and original
jurisdiction under article 2(1)
(a) to determine the
constitutionality or otherwise
of some of its provisions? It is
necessary to set out Article
11(1) of the 1992 Constitution
on what comprises the Laws of
Ghana. It states:
11(1) “The
Laws of Ghana shall comprise -
(a) this
Constitution;
(b)
enactments made by or under the
authority of the Parliament
established by this
Constitution;
(c) Any
Orders, Rules and Regulations
made by any person or authority
under a power conferred by this
Constitution; (The emphasis
mine.)
(d) the
existing law; and
(e) the
common law.”
The GFA is a
voluntary association even
though it may receive
subventions or grants from the
National Sports Authority under
section 4 (1) (i) of the
Sports
Act, 1976 (SMCD54). The
statutes of GFA is definitely
not an Act of Parliament and
nothing in the statutes of the
GFA made at its Congress on 1
December 2005 suggests that the
GFA is a statutory body nor were
its statutes made under the
authority or power conferred by
this Constitution. (See
preamble to the Statutes GFA
which states: “In exercise of
the power conferred on the Ghana
Football Association (GFA) by
the GFA Congress these Statutes
are hereby made on 1st
December 2005”).
The Statutes
of GFA is accordingly not part
of the Laws of Ghana but a
private agreement or arrangement
between members of a
voluntary
association to regulate the
conduct of their affairs. It is
therefore our considered opinion
that any challenge against any
provision of its statutes must
be made at another forum other
than the Supreme Court.
Secondly,
the
relief sought by the plaintiff
is vague as on the face of the
pleadings he has not pointed to
any particular articles under
Chapter Five of the 1992
Constitution which article
17.1.11.1-6 may be said to be
inconsistent with and for which
reason, it should be declared
void.
Thirdly, it
is trite law that parties can
voluntarily agree to resort to
alternate dispute resolution
mechanism, such as
arbitration or mediation. It
is an accepted public policy in
all legal systems. In reality a
person’s right to resort to the
law courts is not entirely
ousted in any agreement
containing alternate dispute
resolution. This is due to the
principle of the rule of law
that where in the process of
alternate dispute resolution
there is a breach of the rules
of natural justice or any
irregularity, the aggrieved
party may seek redress in the
courts other than the Supreme
Court. It can be observed that
article 17.11.5 states that:
“Any club which violates these
provisions of the Statutes and
Regulations of the Association
shall forthwith cease to be a
member of the Association but
without prejudice to its
rights under the Constitution of
the Republic of Ghana.”
[Emphasis mine]
CONCLUSION
The Supreme
Court’s original and exclusive
jurisdiction under Articles 2(1)
and 130(1) in testing the
validity of any laws of Ghana
can only be invoked in relation
to ‘Laws of Ghana’ as stipulated
under article 11 of the
Constitution 1992. Consequently,
we do not think this case raises
any constitutional issue to
warrant an interpretation or
enforcement by this Court.
The criteria of public interest
cases set in
Adjei-
Ampofo v. Accra Metropolitan
Assembly &Attorney-General (No1)
[2007-2008] SCGLR 611,
does not even arise, here.
From the
foregoing, we find that the
preliminary objection is valid
and is therefore upheld. We will
accordingly dismiss the
plaintiff’s action for lack of
jurisdiction.
S. O. A.
ADINYIRA (MRS)
JUSTICE OF
THE SUPREME COURT
S. A.
B. AKUFFO (MS)
JUSTICE OF
THE SUPREME COURT
R.
C. OWUSU (MS)
JUSTICE OF
THE SUPREME COURT
P.
BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
B. T. ARYEETEY
JUSTICE OF
THE SUPREME COURT
COUNSEL:
OSAFO BUABENG
FOR THE PLAINTIFF
THADDEUS SORY
FOR THE DEFENDANT
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