Constitutional Law - Articles
2(1), 128, 130 and 134) of the
1992 Constitution-Interpretation
- Preliminary
Objection - Whether
a private person does not have
the capacity to execute a
judgment in favour of the state
-
Whether
the judgment in Martin Alamisi
Amidu v. The Attorney General
and 2 Ors Suit No. J7/10.2013 is
unconstitutional.
HEADNOTES
Capacity - true and proper
interpretation of Articles 2(1),
128, 130 and 134 of the 1992
Constitution a single Justice of
the Supreme (Court) has no
jurisdiction to determine
matter(s) involving the
interpretation and enforcement
of the Constitution., true and
proper interpretation of
Articles 2(1) and 88 of the 1992
Constitution, a private person
does not have the capacity to
execute a judgment in favour of
the state. A declaration that
the ruling of His Lordship,
Justice Anin Yeboah, JSC,
sitting as a single Justice of
the Supreme Court,) granting the
opportunity to Martin Alamisi
Amidu to execute the judgment in
Martin Alamisi Amidu v. The
Attorney General and 2 Ors Suit
No. J7/10.2013 is
unconstitutional
HELD :-
Other than striking out the 2nd Defendant
as party in the suit herein, the
Preliminary Objection, and the
preliminary point of law raised
by the 1st Defendant,
are hereby overruled.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution Articles 2(1),
128, 130 and 134 and 88
Supreme Court Rules, 1996 (CI
16) Rule 45(3)
CASES REFERRED TO IN JUDGMENT
Martin Alamisi Amidu v. The
Attorney General & 2 Ors (Civil
Motion No. J8/9/2017)
Alamisi Amidu v. The Attorney
General and 2 Ors Suit No.
J7/10.2013
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
S. A. B. AKUFFO (MS) JSC:-
COUNSEL.
OSAFO BUABENG WITH HIM STEPHEN
CHAWEY FOR THE PLAINTIFF
/RESPONDENT.
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
MICHELLE KWARTENG (ASSISTANT
ATTORNEY) FOR THE 1ST DEFENDANT
/RESPONDENT.
2ND
DEFENDANT/APPLICANT APPEARS FOR
HIMSELF.
-----------------------------------------------------------------------------------------------------------------------
S. A. B. AKUFFO (MS) JSC:-
Brief Background
On 23rd November
2016, the Plaintiff herein, in
his capacity as a citizen of
Ghana, caused to be issued in
this Court a writ against the
Defendants herein claiming the
following reliefs:-
“1. A declaration that
upon a true and proper
interpretation of Articles 2(1),
128, 130 and 134 of the 1992
Constitution a single Justice of
the Supreme (Court) has no
jurisdiction to determine
matter(s) involving the
interpretation and enforcement
of the Constitution.
2. A declaration that
the ruling of his Lordship
Justice Anin Yeboah, JSC,
sitting as a single Justice of
the Supreme Court, delivered on
16th November 2016 in
the case intituled Martin
Alamisi Amidu v. The Attorney
General & 2 Ors (Civil Motion
No. J8/9/2017) granting the
opportunity to Martin Alamisi
Amidu to execute the judgment in
Martin Alamisi Amidu v. The
Attorney General and 2 Ors Suit
No. J7/10.2013 is inconsistent
with the provisions of Articles
2(1), 128, 130 and 134 of the
1992 Constitution.
3. A declaration that
upon a true and proper
interpretation of Articles 2(1)
and 88 of the 1992 Constitution,
a private person does not have
the capacity to execute a
judgment in favour of the state.
4. A declaration that
the ruling of His Lordship,
Justice Anin Yeboah, JSC,
sitting as a single Justice of
the Supreme Court, delivered on
16th November, 2016
in the case intituled Martin
Alamisi Amidu v. The Attorney
General & 2 Ors (Civil Motion
No. J8/9/2017) granting the
opportunity to Martin Alamisi
Amidu to execute the judgment in
Martin Alamisi Amidu v. The
Attorney General and 2 Ors Suit
No. J7/10.2013 is
unconstitutional.
5. An order of this
Honourable Court setting aside
the order of His Lordship,
Justice Anin Yeboah, JSC,
granting opportunity to Martin
Alamisi Amidu to orally examine
Alfred Agbesi Woyome.
6. Any further or other
orders as this Honourable Court
may deem fit.”
A Statement of the Plaintiff’s
case was appended to the said
writ, setting out the grounds
for the reliefs claimed. The
said grounds are not of
particular relevance for the
purposes of this Ruling and
therefore we will advert to them
only where necessary. On 5th December
2016, the 2nd Defendant
filed his Statement of Case and
also filed a notice of intention
to raise a Preliminary
Objection. The grounds for the
objection were set out in an
affidavit annexed to the said
notice and may be succinctly
summed up as follows:-
1. None of the reliefs
claimed raise any issue of
interpretation or enforcement of
the Constitution so as to clothe
the Plaintiff ‘with any locus
standi and/or cause of action to
commence this action under
Articles 2(1) and 130 of the
1992 Constitution’.
2. In substance and form, the
declaratory reliefs claimed by
the Plaintiff in his writ and
statement of case are reliefs
against a justice of the Supreme
Court, Justice Anin Yeboah, for
exercising the judicial power
and function entrusted to him,
under Articles 126, 127(3) and
134 of the Constitution, of
making a judicial ruling and
order while sitting as such
justice of the Supreme Court on
16th November, 2016,
in the matter of a civil motion
entitled Martin Alamisi Amidu v.
the Attorney General & 2 Ors.
3. The Plaintiff is merely
seeking an advisory opinion as
there are no acts or omissions
on the part of any of the
Defendants that would entitle
the Plaintiff to sue under
Article 2(1) and 130.
4. A process has been filed
in this Court by the person who
was 3rd Defendant in
the matter that came before
Justice Anin Yeboah, for the
discharge or reversal of the
ruling made by the said Justice
on 16th November 2016
and in form and substance, the
said process seeks to obtain the
same reliefs as those sought by
the Plaintiff herein.
5. The writ herein is a ruse
and amounts to a disguised
application for a review of the
ruling made by Justice Anin
Yeboah hence it is not a
constitutional matter at all,
but is, rather, a frivolous and
vexatious abuse of the processes
of this court.
We must note that the 1st Defendant
for its part, although it did
not directly react to the
Preliminary Objection, raised in
its Statement of Case in defence
against the writ the issue of
the Court’s jurisdiction under
Articles 2(1) and 130 of the
Constitution, on the ground that
nothing in Article 134 prevents
the learned Single Justice from
hearing the matter that came
before him, and if the Plaintiff
is inclined to discharge or
reverse the decision of the
Single Judge, his constitutional
course of action lay in the
procedures set out in Article
134(b) and that, consequently,
the reliefs sought raised no
controversy or issues for
interpretation or enforcement.
According to the Attorney
General, therefore, the
Plaintiff’s claims are a mere
smokescreen to invoke,
surreptitiously, this Court’s
original jurisdiction so as to
appeal against or seek review of
Justice Anin Yeboah’s ruling.
Additionally, the 1st Defendant
contended that the Plaintiff,
being a stranger to ‘the Martin
Alamisi Amidu Case and the
subsequent execution processes’,
has no capacity to bring the
action herein since he has not
in any manner shown that the
decision made by the Single
Justice affects him.
Further, and in still on the
issue of jurisdiction, the 1st Defendant
argued that since the crux of
the Plaintiff’s writ is to set
aside the Single Justice’s
decision, the action is against
the Supreme Court and the 1st and
2ndDefendants are not
proper parties to be sued as
nothing points to any act or
omission of either person.
The Plaintiff on 16th January
2017, with the leave of the
Court, filed an affidavit in
opposition to the Preliminary
Objection, the salient points
being:
1. The Preliminary Objection
herein is grounded in the 2nd Defendant’s
view of the scope of articles
2(1) and 127(3) whereby
according to the 2nd Defendant
a more narrow interpretation
must be placed on Article 2(1)
(b) where the ‘act’ is a
judicial decision and the
‘person’ is a judge acting in
his judicial capacity.
2. The action raises the
novel issue of the
interpretation of article 134
with regard to the span of the
jurisdiction of a Single Justice
of this Court sitting pursuant
to that article.
We note that, in addition to the
arguments made in the various
parties’ statements of case and
affidavit hereinbefore
mentioned, each party was
afforded the opportunity to
address the Court, when it sat
to hear the Preliminary
Objection on 10th January
2017, and in, particular, the
representative of the 1st Defendant,
whilst agreeing with the 2nd Defendant,
also argued the abovementioned
points raised in their Statement
of Case.
Analysis
Despite the wide ranging points
and references made by the
parties respectively, the issues
for our determination at this
stage of this matter are of very
narrow compass and are:
a. Whether or not under
article 2(1) this Court has the
jurisdiction to entertain the
Plaintiff’s writ under its
original jurisdiction; in other
words, has the Plaintiff
properly invoked the
jurisdiction of the Court?
b. Whether or not the proper
parties are before the Court.
Subject Matter Jurisdiction
In determining whether or not
our original jurisdiction has
been properly invoked we need to
look at the Plaintiff’s writ
before us, not the matter that
came before the Single Justice.
However, in so doing we must
focus on the preliminary
objection, not the substance or
merits of the writ. For this
purpose we need only to look at
the subject matter of the writ,
asking ourselves ‘what is it
that the Plaintiff is asking the
Court to do?’ In other words
what is the nature of the
reliefs claimed by the
Plaintiff?
We have already set out, in-extenso,
the said reliefs and will not
repeat them here. Suffice it to
say that, in relief 1, the
Plaintiff is asserting a
particular interpretation of the
combined effect of Articles
2(1), 128, 130 and 134 of the
Constitution whereby, according
to him, a Single Justice of the
Supreme Court has no
jurisdiction to determine
matters involving the
interpretation and or
enforcement of the Constitution.
Clearly this assertion involves
ascertainment of the scope and
magnitude of the jurisdiction of
a Single Judge and we cannot
make such ascertainment without
interpreting article 134 (which
has never been interpreted by
the Court) and relating its
meaning to the other articles
mentioned, as well as article
127(3).
For ease of reference we set
out, seriatim, the provisions of
these Articles of the
Constitution:-
“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.”
“127(3) A Justice of a 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.”
“128(1) The Supreme Court shall
consist of the Chief Justice and
not less than nine other
Justices of the Supreme Court.
(2) The Supreme Court shall be
duly constituted for its work by
not less than five Supreme Court
Justices except as otherwise
provided in article 133 of this
Constitution.
(3) The Chief Justice shall
preside at sittings of the
Supreme Court and in his
absence, the most senior of the
Justices of the Supreme Court,
as constituted, shall preside.
(4) A person shall not be
qualified for appointment as a
Justice of the Supreme Court
unless he is of high moral
character and proven integrity
and is of not less than fifteen
years' standing as a lawyer.”
“130(1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in -
(a) all matters relating to the
enforcement or interpretation of
this Constitution; and
(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.
(2) Where an issue that relates
to a matter or question referred
to in clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay the
proceedings and refer the
question of law involved to the
Supreme Court for determination;
and the court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court.”
“134 A single Justice of the
Supreme Court may exercise power
vested in the Supreme Court not
involving the decision of the
cause or matter before the
Supreme Court, except that -
(a) in criminal matters, where
that Justice refuses or grants
an application in the exercise
of any such power, a person
affected by it is entitled to
have the application determined
by the Supreme Court constituted
by three Justices of the Supreme
Court and
(b) in civil matters, any order,
direction or decision made or
given under this article may be
varied, discharged or reversed
by the Supreme Court constituted
by three Justices of the Supreme
Court.”
As was pointed out by the
Plaintiff in his Statement of
Case in opposition to the
Preliminary Objection, even the
arguments upon which the
objection is based (and one may
add, as well as the arguments of
the 1stDefendant) beg
the question of the combined
effect of these Articles on the
scope of a Single Justice’s
jurisdiction. Thus, we are of
the view that there is
definitely a controversy raised
as to the meaning of these
articles when read together and
particularly the import of
article 134, the construction
and interpretation of which will
be of immense aid, in future, to
all justices of the Court when
they function singly under
article 134.
The 3rd relief
claimed also raises a proper
issue for the interpretation of
article 88 in relation to the
scope of the citizen’s right of
action created by article 2(1),
the determination of which will
clarify further the meaning of
the latter article and thereby
enrich the application and
enforcement of the Constitution.
The rest of the reliefs claimed
are effectively ancillary to
these two reliefs and whether or
not they will necessarily arise
will depend on the Court’s
determination on the merits of
the abovementioned two reliefs.
In the light of the foregoing,
it is our view that the
jurisdiction of the Court, under
articles 2(1) and 130, has been
properly invoked.
The Parties
Concerning the 2nd issue
of whether or not the proper
parties are before the court, we
will commence with the Plaintiff
and examine whether or not he
has the capacity or locus standi
to bring the writ. It is our
view that, in their analysis of
this issue, both the 1st and
2nd Defendants went
a-chasing after a red herring in
the form of the case that came
before the Single Justice.
Whilst it is indeed the
disposition of that matter which
gave rise to this action, the
very fact that the Plaintiff is
not party to that matter
completely forecloses any
arguments based on access to the
remedies set out in
Article134(b), or for that
matter any other remedies
available to a party to that
matter. What we need to do, in
ascertaining the locus standi of
the Plaintiff is to take the
writ as it stands and shine on
it only the light of Article
2(1) (see supra).
The Plaintiff is a person, (and
a citizen of the Republic of
Ghana) who, as a result of the
outcome of a matter within the
public domain, i.e. the decision
of a court of law, which, in his
view, was delivered outside the
bounds of the constitutionally
delineated jurisdiction of the
Judge, has issued a writ for the
Supreme Court to interpret and
enforce certain portions of the
Constitution. It is for the
Court to determine the merits of
his claims, but that does not
derogate from his right as a
person to question the
constitutionality of the
exercise of that judicial power,
pursuant to article 2(1). Since
he is not party to the case that
came before the learned justice,
what other avenue would be
available for him to vent such
concerns? We hold that the
Plaintiff has the capacity to
bring the action herein.
Regarding the 1st Defendant,
we have no doubt that the
Attorney General is a proper
party to this action. Article 88
(5) provides that
“The Attorney-General shall be
responsible for the institution
and conduct of all civil cases
on behalf of the State; and all
civil proceedings against the
State shall be instituted
against the Attorney-General as
defendant”.
Furthermore, Rule 45(3) of the
Supreme Court Rules, 1996 (CI
16) (as amended) requires that
where the Attorney General is
not named as a party in a matter
where the original jurisdiction
of the Court has been invoked,
the writ shall (nevertheless) be
served on the Attorney General.
This is a matter involving the
proper scope of a public act
performed in the course of a
constitutionally prescribed
duty. The fact that the person
who performed the act has not
been made a party in the writ is
neither here nor there vis-a-vis
the propriety of making the
Attorney General a party and it
is rather surprising that, after
decades of the operation of our
Constitution, the Attorney
General would raise such an
issue as a point of law against
the validity of the writ. We,
therefore, hold that the 1st Defendant
is a proper party to the
Plaintiff’s action.
Finally, concerning the 2nd Defendant,
it is our view that he is not a
proper party to the action. As
we have hereinbefore noted, this
action is independent of the
matter that came before the
Single Justice and the role of
the 2nd defendant in
that matter is irrelevant to
this writ. The Plaintiff has not
shown any act or omission on the
part of the 2nd Defendant
that would raise a course of
action under Article 2(1)
against him. Consequently we
hold that the 2nd Defendant,
not being a proper party to the
suit be and is hereby struck out
as a defendant.
Conclusion
Other than striking out the 2nd Defendant
as party in the suit herein, the
Preliminary Objection, and the
preliminary point of law raised
by the 1st Defendant,
are hereby overruled.
(SGD) S. A. B.
AKUFFO (MS)
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) V. J. M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) A. A.
BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
OSAFO BUABENG WITH HIM STEPHEN
CHAWEY FOR THE PLAINTIFF
/RESPONDENT.
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
MICHELLE KWARTENG (ASSISTANT
ATTORNEY) FOR THE 1ST DEFENDANT
/RESPONDENT.
2ND
DEFENDANT/APPLICANT APPEARS FOR
HIMSELF. |