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RULING
JOYCE BAMFORD-ADDO, J.S.C:
The brief facts of this case are
that the Plaintiff was appointed
as Deputy Chairman of the
National Commission on Civic
Education (NCCE), by the
President in accordance with
Article 232(2) of the 1992
Constitution on the 6th July
1993 till 28th August 1999 when
he was removed from office in
accordance with Articles 236 and
146 of the Constitution. Under
Article 236 the procedure for
the removal of the Deputy
chairman of NCCE shall be the
same as provided for the removal
of a Justice of the High Court
under Article 146(1) which says
"A Justice of the Superior Court
or a chairman of the Regional
Tribunal shall not be removed
from office except for stated
misbehaviour or incompetence or
on ground of inability to
perform the functions of his
office arising from infirmity of
body or mind".
The procedure provided for the
removal of a High Court Judge
was that when the President
receives a petition for the
removal of a High Court Judge or
Chairman of a Regional Tribunal
he refer same to the Chief
Justice whose duty it is to
determine whether there is a
prima facie case or not.
If there is, the Chief Justice
is empowered to set up a
Committee to investigate the
allegation of 'stated
misbehaviour' against the person
accused and then, if proved, to
make final recommendation to the
Chief Justice who would then
forward same to the President.
Article 146(9) says:—
"The President shall in each
case, act in accordance with the
recommendations of the
Committee".
In this case the President
received a petition containing
complaints of stated
misbehaviours against the
Plaintiff and consequently the
requisite procedure referred to
above was set in motion. The
Justice George Acquah Committee
i.e. 2nd Defendant herein, was
appointed which investigated the
alleged stated misbehaviour and
thereafter made findings of fact
and recommendations to the
President on account of which
the Plaintiff was removed from
office.
The Plaintiff took action
against the Defendants by the
invocation of the exclusive
original Jurisdiction of the
Supreme Court under Article
130(1) (a) seeking an
interpretation of Articles
146(1) and 236 of the
Constitution. The various
reliefs sought are contained in
16 paragraphs of the writ. In my
view two of those reliefs are
pertinent here, namely:
(1) A declaration that by the
combined effect of Articles
146(1), (3) and (5) and 236 of
the Constitution, and by their
proper interpretation the
standards set for the removal of
a constitutionally appointed
office holder such as The Deputy
Chairman, National Commission
for Civic Education, is a high
Constitutional standard that is
implied by the “stated
misbehaviour” incompetence and
ground of inability to perform
the function of his office
arising from infirmity of body
and mind” and that this high
standard should be the yardstick
for assessing any allegation of
“stated misbehaviour” levelled
against Plaintiff and not an
ordinary connotation of the word
“misbehaviour”.
(2) A declaration that without
any stated recourse or resort to
Appeal or review the procedure
used for obtaining the removal
of Superior Court Judges or
constitutionally appointed
persons such as plaintiff is
dangerous enough…as to defeat
the good intentions which the
framers of the Constitution had
in mind when they inserted this
provisions of ‘Article 146 in
the Constitution.”
In paragraph 13, plaintiff asked
for an order
“Nullifying the said Instrument
of Revocation of (Plaintiff’s)
appointment and declaring any
such purported removal from
office as unlawful and not in
accordance with Article 146(9)
of the 1992 4th Republic
Constitution”, and further in
paragraph 16:
“Damages or compensation for the
public embarrassment mental
torture, defamation act of
intimidation, threat that the
Plaintiff has suffered from the
unlawful and unconstitutional
attempt to remove him from
office as Deputy Chairman of the
3rd Defendant Commission".
It is quite evident from the
above quoted paragraphs 13 and
16 of the Plaintiffs Writ that
his claim is for unlawful
removal from office and he is
therefore asking for the
nullification of his removal,
and reinstatement plus damages.
A motion on notice of intention
to raise a Preliminary objection
was filed by the 4th Defendant
namely:
"The plaintiff's action has
improperly invoked the Original
Jurisdiction of this Court
because it raises matters
(issues) outside the ambit of
this Honourable Court's Original
Jurisdiction and therefore this
Honourable Court has no
jurisdiction to hear the case in
exercise of the Original
jurisdiction of the Court".
The issue then is does such a
matter fall within the Original
Jurisdiction of this Court under
Article 130(1) of the
Constitution.
The jurisdiction of the Supreme
Court is contained in Article
129(1), namely Original
Jurisdiction. Appellant
Jurisdiction, Supervisory
jurisdiction Review Jurisdiction
and reference jurisdiction see,
Article 129(1), 130(1), 131,
132, 133 and 130(2).
The Original jurisdiction of the
Supreme Court Under Articles
2(1) and 130(1) can properly be
invoked to interpret and enforce
the provisions of the
Constitution and it is a special
exclusive jurisdiction meant to
be exercised in suits raising
genuine and real issues
involving interpretation of the
provision of the constitution,
its enforcement and a question
whether an enactment was
properly made intra vires the
powers Parliament or other
authority or person by law or
under the Constitution see the
case of Baffour Kwame Fante
Aduamoah II and 6 others v. Nana
Gyakorang Adu Twum II Suit No.
3/94 dated 9th February 2000
(unreported) SC.
Where it was stated as follows:
"This special jurisdiction is
not meant to usurp or to be
resorted to in place of any of
the jurisdictions of a lower
court in other words, where our
said jurisdiction has been
invoked in an action which
properly falls within a
particular cause of action at a
lower court this Court shall
refuse to assume jurisdiction in
that action, notwithstanding the
fact that it has been presented
as an interpretation and or
enforcement suit. For a large
number of actions which fall
within specific causes of action
can be presented in the form of
interpretation and/or
enforcement of actions".
This point was reiterated
further by the Supreme Court in
the case of Nana Sarpong Gyamfi
v. Nana Kwaku Dakore II Writ No.
1/99 dated 9th February 2000
(unreported), and a chieftaincy
case couched as a constitutional
case was therefore dismissed.
See also earlier case of
Republic v. Maikankan (1971)
2GLR 473 at 478 per Edmund
Bannerman CJ to the effect that
if in the opinion of the lower
court the answer to a submission
is clear and unambiguous on the
face of the provisions of the
Constitution or laws of the
Ghana, no reference need be made
to the Supreme Court since no
question of interpretation
arises and a person who disagree
with or is aggrieved by the
Ruling of the lower Court has
his remedy by the normal way of
Appeal if he so chooses.
The same issue was discussed in
the case of Yiadom I v.
Amaniampong (1981) GLR 3 SC
where Apaloo C.J said at p.8,
"The plain truth of the matter
is that the Original
Jurisdiction of this Court has
been wrongly invoked... Perhaps
we should point out at least for
the benefit of the profession
that where the issue sought to
be decided is clear and not
resolvable by interpretation we
will firmly resist any
invitation to pronounce on the
meaning of Constitutional
provisions..."
The question then is does thus a
matter fall within the Supreme
Court's interpretative
jurisdiction under Article
130(1) of the Constitution? If
not this Court would decline
jurisdiction.
In the case of Tait v. Ghana
Airways Corporation (1970) 2G&G
527 the Court while interpreting
Article 106 of the 1969
Constitution which is in pari
materia with Article 130 of the
1992 Constitution found that the
plaintiffs' case was one of
wrongful dismissal case and
therefore the Court rejected
same saying:
"We have already held that on
its true construction and having
regard to the issues settled the
plaintiff's action is
essentially one of wrongful
dismissal and does not therefore
fall within the ambit of Article
106(1) (a) ... since our
original jurisdiction is limited
to Article 106 we are driven to
the conclusion that this Court
is not seized with jurisdiction
to try this Suit as a Court of
first instance".
The interpretative original
jurisdiction of the Supreme
Court is exclusively meant for
the interpretation of the
Constitution which does not sit
as a Court of first instance or
on Appeal. Other lower Courts
are designated for these
purposes under the Constitution,
the Courts Act, as well as other
laws.
The Tait case was approved and
followed by a number of other
cases see Gbedemah v.
Awoonor-Williams (1970) G and G
438, as well as later cases like
Baffour Kwame Fante Aduamoah II
vrs. Nana Gyakorang Adu Twum II
Suit No. 3/94 dated 9/2/2000
(unreported) and Nana Sarpong
Gyamfi vrs. Nana Kwaku Dakore II
Writ No. 1/99 dated 9th February
2000. SC (unreported).
The above cited cases as well as
others provide useful guides as
to which cases are proper
constitutional interpretation
cases. Particularly, see In Rep.
Vs. Special Tribunal Ex-Parte
Akosah [1980] GLR 592. CA. where
the Court after considering
relevant authorities on the
issue as to which cases are
proper enforcement or
interpretation matters under
Article 118(1)(a) of the 1979
Constitution which is in pari
materia with Article 130(1) of
the 1992 Constitution said that
the interpretation of a
provision of the Constitution
arises in certain circumstances
namely:
(a) Where the words of the
Statue are imprecise, unclear,
or ambiguous, put in another way
it would arise if one party
invited the Court to declare
that the words of the Article
had a double meaning or were
obscure or else meant something
different from or more than what
they said; the Statute have a
double meaning or is obscure or
else means something different
from or more than what they say;
(b) Where rival meanings are
placed by the litigants on the
words of any provision of the
Constitution;
(c) Where there is a conflict in
meaning and effect of two or
more Article of the Constitution
and the question was raised as
to which provision should
prevail; and
(d) Where on the face of the
provisions there was a conflict
between the operation of
particular institutions set up
under the constitution…
Also where the submission made
related to no more than a proper
application of the provisions of
the Constitution to the facts in
issue that was a matter for the
trial Court to deal with.
Clearly I find that from the
facts and circumstances of this
case as well as the reliefs
claimed by the Plaintiffs that
even though his case is couched
in Constitutional garb it is
essentially a case for
reinstatement as Deputy Chairman
of (NCCE) which matter does not
fall within the jurisdiction of
this Court under 130(1)(a) of
the Constitution. Further this
Court is not sitting as an
Appellate Court in this matter
and would not userp the
appellate jurisdiction of a
lower Court clothed with the
proper jurisdiction.
The plaintiff’s arguments in
support of his case is mainly
that the proper standard of
proof or weight to be put on the
words “stated misbehaviour”
under Article 146 (1) by 2nd
Defendant should be of a high
standard and should be
understood to mean “gross
misbehaviour” since it is not
any ordinary ‘misbehaviour’
which is implied. This argument
should have been canvassed
before the 2nd Defendant
committee at the hearing, before
coming to its findings and
recommendations. It is not a
matter for the Supreme Court to
consider under Article 130
despite the fact that is has
been made out as a
constitutional interpretation
matter. The plaintiff is really
challenging the findings of fact
and recommendation of the
Justice George Acquah Committee
as a nullity in order to get a
reinstatement and the proper
forum is the Court of Appeal,
not the Supreme Court.
See the plaintiff’s statement of
case filed on 19th March 2002,
where he states as follows:
“Plaintiff therefore wishes to
seek the indulgence of the
Honourable Supreme Court to
declare the Report of 2nd
Defendant Committee Null and
Void and unfit to be used as a
basis for Constitutional
impeachment”
In other words the Plaintiff is
seeking an appeal of the
recommendation of the 2nd
Defendant committee and he
should exercise his right of
appeal provided under the
Constitution. Article 295(1) of
the Constitution provides that:
“Commission of inquiry 'includes
a Committee of inquiry”.
Therefore Chapter 23 and Article
278 applies to committees of
inquiry as also Article 280(2)
which says that:
“Where a Commission of inquiry
makes an adverse findings
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 findings of
the commission to the Court of
Appeal”
This article clearly specifies
the forum of Appeal for the
Plaintiff as the Court of
Appeal.
See Fawkes vrs. Accra Brewery
Ltd. (1981) GLR 489 at 490. H.C.
And Dankwah vrs. Republic (1981)
GLR 241 CA
For the above reasons I am of
the opinion that our
jurisdiction has been wrongly
invoked and the Preliminary
objection succeeds. This action
ought to be dismissed.
J.A. BAMFORD-ADDO (MRS)
JUSTICE OF THE SUPREME COURT
AFREH, J.S.C.:
I agree
D.K. AFREH
JUSTICE OF THE SUPREME COURT
BADDOO, J.S.C.:
I agree.
S.G. BADDOO
JUSTICE OF THE SUPREME COURT
DR. TWUM, J.S.C.:
I agree.
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
ADZOE, J.S.C.:
The Plaintiff, Dr, Jacob
Emmanuel Oppong, was appointed
on 9th July, 1993 as Deputy
Chairman of the National
Commission for Civic Education.
It is a commission which the
1992 Constitution has provided
for in Article 231. Its
membership consists of a
Chairman, two Deputy Chairmen
and four other members, all
appointed by the President
acting on the advice of the
Council of State.
Functions of the Commission:
The Commission's functions are,
inter alia,
(1) to create and sustain within
the society the awareness of the
principles and objectives of the
Constitution as the fundamental
law of the people of Ghana;
(2) to educate and encourage the
public to defend the
Constitution at all times,
against all forms of abuse and
violation;
(3) to formulate for
consideration of Government,
from time to time, programmes at
the national, regional and
district levels aimed at
realising the objectives of the
Constitution;
(4) to formulate, implement and
oversee programmes intended to
inculcate in the citizens of
Ghana awareness of their civic
responsibilities and an
appreciation of their rights and
obligations as free people; and
perform
(5) such other functions as
Parliament may prescribe.
Terms and Conditions of service:
As regards the terms and
conditions of service of members
of the Commission, Article 235
provides that a Deputy Chairman
of the Commission shall enjoy
the same terms and conditions of
service as a Justice of the High
Court. Accordingly Article 236
also provides that the procedure
for the removal of a Deputy
Chairman of the Commission from
office shall be the same as that
provided for the removal of a
Justice of the High Court under
the Constitution.
The High Court forms part of the
Superior Courts of Judicature
which also include the Supreme
Court, the Court of Appeal and
the Regional Tribunals (Article
126); and when Article 146(1)
stipulates that a Justice of the
Superior Court "shall not be
removed from office except for
stated misbehaviour or
incompetence or on ground of
inability to perform the
functions of his office arising
from infirmity of body or mind",
the plaintiff as Deputy Chairman
of the Commission is also
covered by this provision - the
cumulative effect of Articles
235, 236 and 146(1).
The procedure laid down in the
Constitution for removal is in
Article 146(2) to (11) which, by
virtue of Article 236, must be
applied in the case of the
plaintiff also. It is this:
i. There must be a petition to
the President for plaintiff's
removal from office; and on
receipt of the President must
refer the petition to the Chief
Justice who will determine
whether there is a prima facie
case - Article 146(3).
ii Where the Chief Justice
decides that there is a prima
facie case, he will set up a
committee consisting of three
Justices of the superior courts
appointed by the Judicial
Council and two others appointed
by the Chief Justice on the
advice of the council of state -
Article 146(3)
iii the Committee will
investigate the complaint and
make recommendations to the
Chief Justice and the Chief
Justice will then forward the
said recommendation to the
President - Article 146(5).
iv The President shall cut in
accordance with the
recommendation of the Committee.
The NCCE office:
The plaintiff ostensibly found
the atmosphere in the NCCE
office not at all tranquil. He
might have had problems with
some junior staff and his
colleague members of the
commission; and in a petition
dated 21st January, 1999, to the
President, the Chairman of the
Commission, the 4th defendant
herein, asked for the removal of
the plaintiff as the Deputy
Chairman of the Commission.
The Committee of inquiry and its
work.
In due course a Committee was
set up to investigate the
complaints made against the
plaintiff. The Committee was
chaired by His Lordship G.K.
Acquah, a Justice of the Supreme
Court. The Committee took
evidence from ten witnesses
including Mr. Larry Bimi, the
4th defendant herein and the
plaintiff in respect of the
charges levelled against the
plaintiff. These charges were
that: (1) the plaintiff
"misbehaved by refusing to
accept the authority of the
chairman of the Commission
[NCCE] and refusing to swap
offices which acts amounted to
insubordination and prejudicial
to the effective and efficient
performance of the functions of
the commission"; and (2) that
the plaintiff misbehaved by
making inappropriate sexual
advances towards Georgina
Barnes, an employee of the NCCE
which conduct is "unbecoming of
your office". The Committee
accepted the evidence against
the plaintiff on the two charges
and made the following
recommendations in their
reports:
"RECOMMENDATIONS
We therefore recommend that for
the proper and smooth
performance of the functions of
the NCCE, Dr. Oppong ought to be
removed from office".
The Committee's report was dated
16/8/99 and signed by all five
members of the Committee.
Removal.
According to the plaintiff he
heard of his removal from office
by the President in an
announcement on Radio Ghana on
28th August, 1999. He also read
the same news story in the Daily
Graphic and Ghanaian Times on
29th August, 1999. What he heard
on the radio and read in the
newspapers was in his own words
to the effect that:
"The President has removed Dr.
J.E. Oppong as Deputy Chairman
of the National Commission for
Civic Education. This was on the
recommendation of a 5-member
committee set up by the Chief
Justice to investigate various
misbehaviours on the part of Dr.
Oppong".
The plaintiff himself quotes the
above announcement in paragraph
6 of his statement of case filed
on 10/3/2000.
What plaintiff was expected to
do.
Article 295(1) of the
Constitution states that a
commission of inquiry includes a
committee of inquiry. This
definition is very crucial in
the context of the instant suit
in view of the fact that the
plaintiff has chosen to issue a
writ challenging his removal
instead of appealing against the
proceedings before the committee
and its recommendations. It is
provided in Article 280(2) of
the Constitution that where a
commission of inquiry makes
adverse findings against any
person, the report of the
commission shall be deemed to be
the judgment of the High Court
and accordingly an appeal shall
lie as of right from the
findings of the commission to
the Court of Appeal.
According to Article 280(5)(a)
the finding of a commission
shall only have effect as a
judgment of the High Court six
months after the finding is made
and announced to the public, and
after the said six months the
person against whom the findings
is made now has three months
within which to lodge his
appeal; or the appeal may be
lodged within such other time as
the High Court or the Court of
appeal may, be special leave and
on such conditions as it may
consider just, allow - Article
280(6).
What do these provisions mean?
In my opinion they mean first,
that the Committee which
investigated the complaints made
against the plaintiff must be
considered to be a Commission of
inquiry as described in the
Constitution with all its
functions and procedures as set
out in the Constitution;
secondly they mean that the
plaintiff has a right of appeal
to the Court of Appeal; thirdly,
they mean that the finding made
against the plaintiff should be
regarded as a High Court
decision six months after the
date of publication, namely 28th
August, 1999 which, by
calculation, would take us to
the 28th February, 2000;
thereafter, within three months
- ie. by the end of May, 2000,
the plaintiff could exercise his
right of appeal to the Court of
Appeal against the finding made
against him by the committee of
inquiry. Even after May 2000,
the plaintiff could apply to the
High Court or the Court of
Appeal for special leave to
appeal against the finding of
the Committee.
It is unfortunate that the
plaintiff did not even wait to
allow the committee's finding to
metamorphose into a judgment of
the High Court so as to enable
him exercise his right of appeal
before issuing the writ in the
present case on 25th February,
2000. It appears the plaintiff
did not have any intention to
appeal against the committee's
decision. His Counsel does not
even agree that the committee
which investigated the
allegations made against the
plaintiff could be properly
considered as a commission of
inquiry notwithstanding the
definition contained in Article
295(1) of the Constitution that
in this Constitution, unless the
context otherwise requires ...
"Commission of inquiry" includes
a committee of inquiry: His
argument as stated in his
written submission to court
concludes thus:
"All of these attributes of a
Commission of Inquiry did not
apply to the 2nd Defendant
committee as plaintiff's
affidavit challenging the record
of proceedings has shown".
"We respectively submit,
therefore, that the 2nd
Defendant Committee was NOT a
committee inquiry or a committee
of Inquiry as understood as a
'Term of Art' in the 1992
Constitution. It was, therefore,
NOT equivalent in rank to a High
Court......"
When the Constitution enacts
that the committee is a
commission and its finding shall
"be deemed to be the judgment of
the High Court", the argument of
counsel pales into mere
sophistic chicanery which I
cannot accept. The points I have
so far noted have a grave impact
on the action instituted by the
plaintiff and the preliminary
objection taken by the 4th
defendant.
The plaintiff's claim.
In the writ issued on 25:2:2000,
the plaintiff is seeking, inter
alia, thirteen (13) declaratory
reliefs, reinstatement and
damages or compensation. I wish
I could reproduce all the
reliefs verbatim but that is as
difficult as it is difficult to
summarise them one by one
because each of them is set out
in such a prolix language that
to quote them will be tedious
and time-consuming whiles they
also defy any comprehensible
précis.
You need to read them only to
conclude that the entire speaks
for itself. The action is
essentially and substantially a
claim for wrongful dismissal.
The plaintiff’s grievances are
directed mainly at the decision
reached by the 2nd defendant
Committee of Inquiry. According
to the plaintiff the
interpretation put by that
committee on “stated
misbehaviour” was wrong; it was
a result of the said wrong
interpretation that the
Committee found him guilty of
the charges and recommended to
the President that his (the
plaintiff’s) appointment should
be revoked; that the charges
levelled against him were not
the type of acts contemplated by
the Constitution as
“misbehaviour” warranting his
removal from office; the
Committee exceeded its
jurisdiction, or scope of
authority; he also wants an
order of perpetual injunction
restraining the defendants from
removing him from office; he
wants to be reinstated and wants
damages or compensation for the
embarrassment caused to him by
his purported removal from the
NCCE.
To summarise it all, the
plaintiff must be understood to
be saying that the Committee of
Inquiry had wrongly found him
guilty when there was no
evidence that he had committed
offences that could properly be
said to amount to “stated
misbehaviour” under the
Constitution and, therefore, his
removal from office was not
lawful. This argument, on
analysis, is only another way of
saying that the Committee of
inquiry made an error of
substantive law in holding that
the actions allegedly proved to
have been committed by the
plaintiff amounted to the type
of “misbehaviour” contemplated
by the constitution to justify
the removal from office of a
person in the position of the
plaintiff. As can be gathered
from the plaintiff’s statement
of case the standards set for
the removal of a
constitutionally appointed
office-holder such as that of
the Deputy Chairman, National
Committee for Civic Education,
is a high Constitutional
standard that is implied by the
"stated misbehaviour" and that
this high standard should be the
yardstick for assessing any
allegations of "stated
misbehaviour", levelled against
plaintiff and not an ordinary
connotation of the word
misbehaviour" but that the
committee of inquiry did not
apply or use the high
constitutional standard for
impeachment required by the
framers of the constitution to
determine whether these grounds
for removal of superior court
judges has been flouted.
The objection: The objection
raised by the 4th defendant
reads:
"Plaintiffs action has
improperly invoked the original
jurisdiction of this Honourable
Court because it raises matters
(issues) outside the ambit of
this Honourable court has no
jurisdiction to hear the case in
the exercise of the original
jurisdiction of the court".
If the Court upholds the
objection, that would be the
death-knell of the plaintiff's
action. But the plaintiff does
not want a still-born action and
is, therefore, resisting the
objection. One of his arguments
is that because both the
invitation to the plaintiff to
appear before the committee of
inquiry and the report submitted
by the committee on the matter
to the President were captioned
"in the matter of removal from
office ... in accordance with
Article 236 and 146(3), (4) and
(5) of the Constitution", the
expression "in accordance with
the constitution" makes the suit
a constitutional suit as the
question for determination is
"whether or not the removal of
plaintiff from office by the
Execution was truly done in
accordance with the
Constitution". I have no doubt
in my mind that this argument is
untenable. This suit must derive
its constitutional character
from the provisions of Article
2(1) of the Constitution which
read as follows:—
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) an 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.
The declaration to be sought in
the Supreme Court under Article
2(1) is either that:
(a) an enactment is inconsistent
with, or is in contravention of
a provision of the Constitution,
or
(b) anything contained in or
done under the said enactment is
inconsistent with, or is in
contravention of a provision of
the Constitution or
(c) any act or omission of any
person is inconsistent with, or
is in contravention of a
provision of the Constitution.
And Article 2(1) must be
understood to mean that it is
for such a declaration alone
that a person may "bring an
action" in the Supreme Court.
The original jurisdiction
conferred on the Supreme Court
by Article 130(1) must therefore
be strictly limited to the area
of litigation defined by Article
2(1), which must always be read
together with the said Article
130(1) which defines the court's
original jurisdiction to be 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 Supreme Court has,
therefore, consistently insisted
that for a party to invoke the
Original jurisdiction of the
court the action must raise a
real and genuine issue of
interpretation. See Baafour
Kwame Fante Aduamoah II & Ors v.
Nana Gyakorang Adu Twum II
(unreported Suit No. 3/94 -
judgment dated 9/2/2000). The
plaintiff must show clearly that
the question at issue can only
be resolved by an interpretation
of the constitution. There may
be cases where some provision of
the constitution could come into
focus barely incidentally
without having any direct impact
on the dispute between the
parties, with the result that
the court is not obliged to
interpret the Constitutional
provision in order to determine
the matter in controversy.
Indeed the mere fact that a
plaintiff has raised some
incidental constitutional issue
should not make his case a
constitutional case within the
meaning of Articles 2(1) and
130(1) of the Constitutional -
see the cases of Yiadom I v.
Amaniampong (1981) GLR 3 and
Edusei v. Attorney-General
(1996-97) SCGLR 1. The opinion
was expressed in Rep. V.
Naikankan (1971) 2 GLR 473 that
a lower court can apply a
provision of the Constitution if
the provision is clear and
unambiguous on the face of it
and no question of
constitutional interpretation
arises. If the language of the
provision is clear, precise and
unambiguous, no interpretation
arises and the court is to give
effect to that provision; and
when the committee of inquiry,
chaired by a justice of the
Supreme Court assisted by two
other judges of the Superior
courts of judicature sat to
decide on the allegations made
against the plaintiff in the
petition referred to the
committee, which decision
involved the application to the
facts before them of a provision
of the Constitution that was
relevant to the determination of
the case, the law as interpreted
by the committee in reaching its
decision must be taken as the
law so far as the dispute
between the parties is
concerned. If the law as
declared by the Committee
appeared erroneous to the
plaintiff herein, he had the
opportunity to avail himself of
his right of appeal, failing
which he must forever hold his
peace with regard to the
committee's decision.
The plaintiff's contention that
"stated misbehaviour" should be
construed to mean "gross
misbehaviour" because the
Constitution must be taken to
intend that a high standard
should be the yardstick for
assessing any allegations of
"stated misbehaviour" in Article
146(1) is mere wishful thinking.
Where the words of a statute are
clear there is no room for
applying any principles of
interpretation which are merely
presumptions in cases of
ambiguity. See Croxford v.
Universal Insurance Co. (1936) 2
KB 253, at 280; and Patu-Styles
v. amoo Lamptey (1984-86) 2 GLR
644 at 691 where Taylor J.S.C.
said:
"Where words are clear and
unambiguous the fundamental rule
is that they need not be
interpreted or construed. They
are given effect to".
Otherwise stated, the principle
is that (as expressed by Anin
J.A.) unless the words of an
Article of the Constitution are
imprecise and ambiguous an issue
of interpretation does not arise
- see Tait v. Ghana Airways
Corp. (1970) 3 ALR (all African
Law Reports) 249. The same idea
was implicit in the words of
Bowen L.J. when he said that
when the meaning of a statutory
provision "is unequivocally
expressed, the necessity for
rules of construction disappears
and reaches its vanishing
point". See London & N.W. Rly
Co. v. Evans (1983) 1 Ch. 16. at
27.
If the framers of the
Constitution had intended "gross
misbehaviour" and not mere "misbehaviour"
they would have said so, and not
having said that a person in the
position of the plaintiff could
only be removed from office for
"gross misbehaviour" the
plaintiff's argument calling for
an interpretation to that effect
cannot be sustained.
A careful study of the
plaintiff's claim leaves no
doubt that all he is claiming
is, in his own words, a
declaration that his "purported
removal from office is
wrongful..." even though he has
not denied, and cannot deny,
that the laid down
constitutional procedure for his
removal was rigidly complied
with. I am also of the opinion
that the claim raises no
constitutional issue to warrant
the invocation of the court's
original jurisdiction. I
accordingly uphold the
preliminary objection and
dismiss the action.
T.K. ADZOE
JUSTICE OF THE SUPREME COURT
COUNSEL
Mr. Ward-Brew appearing for
plaintiff.
Mrs. M.C. Quansah for 1st & 2nd
Defendants with Sylvia Adusah,
State Attorney.
Mr. Samuel Cojoe for 3rd
Defendant.
Mr. Abrose Derry for 4th
Defendant.
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