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Constitutional law - Invoking
the original jurisdiction of the
court – Interpretation -
Enforcement of provisions of the
Constitution - Breach of
conflict of interest
– Whether or not
2nd
defendant has contravened
articles 130(1) and (a) 287 of
the 1992 -
Whether or not failure to
declare
interest in companies to the
Auditor-General before taking
office as a Minister of Finance,
contravenes article 286(1)(a) of
the 1992 Constitution -
Whether or not the court has
jurisdiction -
HEADNOTES
HELD
It appears to
us that relief (a) is
questioning the mode and scope
of the investigation carried out
by the 2nd defendant
leading to its findings. The
plaintiff is dissatisfied with
how the 2nd defendant
arrived at a verdict of guilty
or not guilty in its
investigation. Our opinion is
the investigations carried out
by the 2nd defendant
was within its mandate under
article 287 of the Constitution,
1992 and its enabling law, Act
456 to investigate complaints
and make its findings in a
report. The findings may or may
not confirm the complaint. A
person dissatisfied with the
analysis of the law and the
findings made could resort to
provisions made in the law for
either challenging the findings
or enforcing the findings. There
is nothing ambiguous, imprecise
or unclear about meaning of
article 287 to warrant an
invitation to this court to
embark on a journey of
interpreting that constitutional
provision.
Even if we
were to accept the argument of
the plaintiffs that the 2nd
defendant went outside its
jurisdiction and interpreted a
provision of the Constitution,
our position would be that the 2nd
defendant has acted without
jurisdiction. In that case, the
2nd defendant being
an inferior adjudicating body,
the remedy available to the
plaintiffs would be to seek
relief in another forum but
certainly not an interpretation
from this court
In the third
relief, the plaintiffs seek an
order from this court to expunge
some of the findings made by the
2nd defendant in its
Report on the grounds that those
findings were void, illegal and
beyond the jurisdiction of the 2nd
defendant. We find no case made
for us to interpret any
provision of the Constitution
under this relief. If anything,
plaintiffs’ remedy lies in
another forum other than the
Supreme Court.
we see any
ambiguity, imprecision or
unclear language in a
constitutional provision to be
interpreted? None of the reliefs
sought by the plaintiff and the
constitutional provisions relied
upon met that stringent test to
warrant the invocation of our
original interpretative
jurisdiction. We will,
therefore, resist the invitation
by the plaintiff for us to
embark on this futile exercise
we find no
merit in the writ inviting us to
exercise our original
jurisdiction and same is
accordingly dismissed.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
CASES
REFERRED TO IN JUDGMENT
Republic v. Special Tribunal; Ex
parte Akosah [1980] GLR 592.
Nana Yiadom v Nana Amaniapong &
Ors [1981] GLR 3
National Media Commission v.
Attorney-General [2000] SCGLR 1.
Aduamoa II & Ors v Adu Twum II
[2000] SCGLR 165 at 167
Ghana Bar Association v.
Attorney General and Another
[2003-2004] 1 SCGLR 250
Bimpong Buta v. General Legal
Council [2003 -2004] SCGLR1200.
Oppong v Attorney-General
[2003-2004] 1 SCGLR 376
Kpodo & Anor v Attorney-General.
[Writ No J1/03/2018] dated 12th
June, 2019
The Republic v. High Court (Fast
Track Division) Accra; Ex parte
National Lottery Authority
(Ghana Lotto Operators
Association & Other/Interested
Parties) [2009] SCGLR 390
Osei Boateng v. National Media
Commission [2012] 2 SCGLR 1038.
Bortier & Anor v Electoral
Commission & Anor [2012] 1 SCGLR
433
Danso v. Daaduam II & Another
[2013-2014] 2 SCGLR 1570.
Abu Ramadan v. The Electoral
Commission [2015-2016] 1 SCGLR 1
Mayor Agbleze & Ors v
Attorney-General S. C. [Writ No
J1/28/2018] 28th
November 2018
Bomfeh v Attorney-General S. C.
[Writ No J1/14/2017] 23rd
January 2019 (Unreported).
Kpodo & Anor v Attorney-General
S. C. [Writ No J1/03/2018] 12th
June, 2019
Okudzeto
Ablakwa (No 2) & Anor v
Attorney-General &
Obetsebi-Lamptey (No 2) [2012] 2
SCGLR 845
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AMEGATCHER,
JSC:-
COUNSEL
OSMAN
ALHASSAN FOR THE PLAINTIFFS.
COSMAS
AMPENGNOU FOR THE 2ND
DEFENDANT.
SLYVESTER
WILLIAMS, CHIEF STATE ATTORNEY
BEING LED BY GODFRED
YEBOAH-DAME, DEPUTY ATTORNEY
GENERAL FOR THE 1ST
AND 3RD DEFENDANTS.
AMEGATCHER,
JSC:-
Dynamic Youth
Movement of Ghana is an
incorporated person registered
under the laws of Ghana with the
object of empowering the youth
of Ghana through education,
training and advocacy. Together
with its director, Edward
Tuttor, a citizen of Ghana, they
instituted this writ exercising
the powers vested in them under
the provision in articles 2(1)
and 130 of the Constitution,
1992. The
constitutional provision
vested persons the right to
invoke
the original jurisdiction of
this court to seek an
interpretation to or
enforcement of any provisions of
the Constitution. This writ
is part of myriads of writs
which the Supreme Court had been
inundated with of late from
individual and corporate bodies
seeking to test the legality or
otherwise of acts or omission of
constitutional and
administrative bodies and public
office holders which they
perceived to be inconsistent
with or a contravention of
provisions of the Constitution.
Interestingly the predecessor
constitution of 1979 also
suffered from the same thirst.
Some of these writs have played
no mean role in shaping the
jurisprudence of this court and
extending the frontiers of
constitutional law in this
jurisdiction. Others, however,
did not meet this test.
To the
latter, provoked the formulation
of a roadmap by the then Court
of Appeal performing the
functions of the Supreme Court
some forty years ago to guide
parties and practitioners think
through the issues before them
thoroughly before appearing in
the apex court to seek an
interpretation. That was the
case of
Republic v. Special Tribunal; Ex
parte Akosah [1980] GLR 592.
In that case, the roadmap was
set out for triggering the
interpretative jurisdiction of
the Supreme Court under the 1979
Constitution. At page 605 Anin
JA speaking on behalf of the
court stated that the original,
interpretative jurisdiction of
the Supreme Court would be
invoked where under the
following:
“(a) the words of the provision
are imprecise or unclear or
ambiguous. Put in another way,
it arises if one party invites
the court to declare that the
words of the article have a
double-meaning or are obscure or
else mean something different
from or more than what they say;
(b) rival meanings have been
placed by the litigants on the
words of any provision of the
Constitution;
(c) there is a conflict in the
meaning and effect of two or
more articles of the
Constitution, and the question
is raised as to which provision
shall prevail;
(d) on the face of the
provisions, there is a conflict
between the operation of
particular institutions set up
under the Constitution, and
thereby raising problems of
enforcement and of
interpretation.”
Since the formulation of this
roadmap, this court have
reformulated and reechoed the
circumstances under which its
interpretative jurisdiction
would be triggered in a number
of cases some of which are as
follows:
Nana Yiadom v Nana Amaniapong &
Ors [1981] GLR 3
National Media Commission v.
Attorney-General [2000] SCGLR 1.
Aduamoa II & Ors v Adu Twum II
[2000] SCGLR 165 at 167
Ghana Bar Association v.
Attorney General and Another
[2003-2004] 1 SCGLR 250
Bimpong Buta v. General Legal
Council [2003 -2004] SCGLR1200.
Oppong v Attorney-General
[2003-2004] 1 SCGLR 376
The Republic v. High Court (Fast
Track Division) Accra; Ex parte
National Lottery Authority
(Ghana Lotto Operators
Association & Other/Interested
Parties) [2009] SCGLR 390
Osei Boateng v. National Media
Commission [2012] 2 SCGLR 1038.
Bortier & Anor v Electoral
Commission & Anor [2012] 1 SCGLR
433
Danso v. Daaduam II & Another
[2013-2014] 2 SCGLR 1570.
Abu Ramadan v. The Electoral
Commission [2015-2016] 1 SCGLR 1
Mayor Agbleze & Ors v
Attorney-General S. C. [Writ No
J1/28/2018] dated 28th
November 2018 (Unreported)
Bomfeh v Attorney-General S. C.
[Writ No J1/14/2017] dated 23rd
January 2019 (Unreported).
Kpodo & Anor v Attorney-General
S. C. [Writ No J1/03/2018] dated
12th June, 2019
(Unreported).
The summary of these
formulations is aptly captured
in the dictum of Sophia Akuffo
CJ in one of the latest decision
on the subject. That is the case
of
Kpodo & Anor v Attorney-General
S. C. [Writ No J1/03/2018] dated
12th June, 2019
(Unreported).
Explaining the court’s role when
writs are filed invoking the
original jurisdiction of the
court, her ladyship stated
bluntly as follows:
“The original
jurisdiction of this Court being
a special one, whenever it is
invoked, it must be evident that
the matter falls within the
parameters set by the
Constitution and as clarified in
several decisions of the
Court…The position of the law,
as expounded in the cases cited
above is that, inter alia, the
existence of an ambiguity or
imprecision or lack of clarity
in a provision of the
Constitution is a precondition
for the invocation and exercise
of the original interpretative
jurisdiction of this Court.
Where the words of a provision
are precise, clear and
unambiguous, or have been
previously interpreted by this
Court, its exclusive original
interpretative jurisdiction
cannot be invoked or exercised.
This is important for ensuring
that the special jurisdiction is
not needlessly invoked and
misused in actions that, albeit
dressed in the garb of a
constitutional action, might be
competently determined by any
other court. Consequently, it
has become our practice that in
all actions to invoke our
original jurisdiction, whether
or not a defendant takes
objection to our jurisdiction,
or even expressly agrees with
the plaintiff that our
jurisdiction is properly
invoked, we take a pause to
determine the question of the
competence of the invocation of
our jurisdiction, before
proceeding with the adjudication
of the matter or otherwise.”
What, then, are the peculiar
facts of this case which should
call for our intellectual
stimulation and accord this writ
its place among the honours list
in the development of this
court’s jurisprudence?
Acting in accordance with
article 284 and 287 of the
Constitution, 1992, one Yaw
Brogya Gyenfi petitioned the
Commission for Human Rights and
Administrative Justice, the 2nd
defendants in this writ to
investigate the 1st
defendant, the Minister of
Finance in an alleged
conflict
of interest situation in the
issuance of a 7-year and 15 year
bonds by the government. The
petition questioned why 95% of
the bonds were purchased by one
single investor, Franklin
Templeton Investment whose
director one Trevor G. Trefgarne
is also described as chairman of
Enterprise Group Limited, a
company partially owned by Data
Bank Limited, a company 1st
defendant is known to have
significant interest.
The 2nd defendant
investigated the complaint and
published its findings in a
Report dated 22nd
December 2018. The plaintiffs
are dissatisfied with the
investigations and findings of
the 2nd defendant
particularly the findings on
conflict of interest. According
to plaintiffs, the 2nd
defendant in arriving at that
finding, engaged in a process of
analysis and references to
constitutional provisions and
Supreme Court authorities in
order to give and actually gave
meaning to article 284. It is
the case of the plaintiffs that
the findings of the 2nd
defendant on the conflict of
interest complaint firstly is
inconsistent with article 287(1)
of the Constitution and secondly
amount to an interpretation of
article 284 of the Constitution.
The plaintiffs also submit that
the acts and omissions of the 1st
defendant as established and
published in the Report
contravenes articles 284, 286
(1)(b) and 78(3). The
plaintiffs, therefore, contend
that this “action is,
therefore, centred on the
conduct of both the 1st
and 2nd defendants as
established and contained in the
Report…...”
On the basis
of these facts the plaintiffs
seek the following reliefs from
this court:
a.
A declaration that by going
beyond investigations to make a
pronouncement (of guilt or
otherwise) on the 1st
defendant in respect of the
allegation of
breach of
conflict of interest, the
2nd
defendant has contravened
article 287 of the 1992
Constitution.
b.
A declaration that by
interpreting article 284 of the
1992 Constitution (as disclosed
between paragraph 3 of page 127
and paragraph 3 of page 133 of
the Report), the 2nd
defendant has contravened
article
130(1)(a) of the 1992
Constitution.
c.
A consequential order that the
content of the report as
specified in reliefs (a) and (b)
above be expunged from the
Report.
d.
A declaration that the failure
of the 1st defendant
to
declare his shareholding
interest in Data Bank Financial
Services Limited, Data Bank
Brokerage Limited and Data Bank
Financial Holdings Limited to
the Auditor-General before
taking office as a Minister of
Finance, as found by the 2nd
defendant at page 120 of the
Report, contravenes article
286(1)(a) of the 1992
Constitution.
e.
A declaration that the
occupation by the 1st
defendant of the office of
director in Ventures and
Acquisition Limited, a private
company, while in office as
Minister responsible for finance
without the due permission of
the Right Honourable Speaker of
Parliament on the grounds stated
by the law, contravenes article
78(3) of the 1992 Constitution.
f.
A declaration that by issuing or
overseeing the issuance of the
said bonds to Templeton without
disclosing his relational
interests with a director at
Templeton, one Trevor G.
Trefgarne, the 1st
defendant has acted in
contravention of article 284 of
the 1992 Constitution.
g.
A declaration that by issuing or
overseeing the issuance of the
said bonds without disclosing
his interest in the securities
industries in general, the 1st
defendant has acted in
contravention of article 284 of
the 1992 Constitution; and
h.
Any other reliefs that this
Honourable court deems fit under
the circumstances.
When this
writ came up initially for
hearing on 4th December, 2019,
this court, first exercising the
practice developed to properly
scrutinize every invocation of
our original jurisdiction and
secondly considering the
objection taken by the 1st
and 3rd defendants in
their statement of case filed on
15th February 2018
questioning the competence of
the invocation of our
jurisdiction ordered the parties
to file submissions addressing
it on that critical issue of
jurisdiction. We have
reviewed the submissions by the
parties and carefully
scrutinized the reliefs sought
by the plaintiff.
It appears to
us that relief (a) is
questioning the mode and scope
of the investigation carried out
by the 2nd defendant
leading to its findings. The
plaintiff is dissatisfied with
how the 2nd defendant
arrived at a verdict of guilty
or not guilty in its
investigation. Our opinion is
the investigations carried out
by the 2nd defendant
was within its mandate under
article 287 of the Constitution,
1992 and its enabling law, Act
456 to investigate complaints
and make its findings in a
report. The findings may or may
not confirm the complaint. A
person dissatisfied with the
analysis of the law and the
findings made could resort to
provisions made in the law for
either challenging the findings
or enforcing the findings. There
is nothing ambiguous, imprecise
or unclear about meaning of
article 287 to warrant an
invitation to this court to
embark on a journey of
interpreting that constitutional
provision.
The remedy if
any available to the plaintiffs
lie to some other adjudicating
body but certainly not this
court.
The
plaintiffs second relief is
challenging the jurisdiction of
the 2nd defendant to
interpret a provision of the
Constitution. According to
plaintiffs the 2nd
defendant acted beyond its power
when it purported to interpret
article 284 of the Constitution.
From the submission by the
parties and the Report of the 2nd
defendant exhibited to this writ
as exhibit ET 5, what the 2nd
defendant expounded in its
report was to cite article 284
and apply an interpretation this
court has given to that article
in the case
of
Okudzeto Ablakwa (No 2) & Anor v
Attorney-General &
Obetsebi-Lamptey (No 2) [2012] 2
SCGLR 845.
The position
of the law as this court has
stated time and again is where
the Supreme Court had considered
and given an interpretation to
any provision of the
Constitution, that
interpretation is binding on all
courts in the hierarchy of
courts as well as inferior and
adjudicating tribunals and their
role would be to apply the
interpretation so given to that
article when an issue on that
came before them. In doing so
the 2nd defendant
neither breached any provisions
of the Constitution nor did it
act outside its powers by
applying a provision of the
Constitution.
Even if
we were to accept the argument
of the plaintiffs that the 2nd
defendant went outside its
jurisdiction and interpreted a
provision of the Constitution,
our position would be that the 2nd
defendant has acted without
jurisdiction. In that case, the
2nd defendant being
an inferior adjudicating body,
the remedy available to the
plaintiffs would be to seek
relief in another forum but
certainly not an interpretation
from this court.
In the third
relief, the plaintiffs seek an
order from this court to expunge
some of the findings made by the
2nd defendant in its
Report on the grounds that those
findings were void, illegal and
beyond the jurisdiction of the 2nd
defendant. We find no case made
for us to interpret any
provision of the Constitution
under this relief. If anything,
plaintiffs’ remedy lies in
another forum other than the
Supreme Court.
Regarding
reliefs four and five, the
plaintiffs are seeking a
declaration from this court that
1st defendant has
contravened articles 286(1) (a)
and 78(3) of the Constitution as
a result of 1st
defendant’s failure to declare
his shareholding interest in
some companies to the
Auditor-General as well as 1st
defendant’s continuing
directorship of a private
company while in office as a
Minister of State without the
permission of the Speaker of
Parliament. Again, no issue of
interpretation arises from these
reliefs. The Constitution has
copious provisions for dealing
with any such infractions on the
part of a public office holder
or a Minister of State. The
plaintiff’s duty is to explore
the reliefs provided and not to
gamble before the apex court of
the land.
Equally,
reliefs six and seven invite us
to hold that the 1st
defendant had contravened
article 284 of the Constitution
by overseeing the issuance of
the bonds to Templeton without
disclosing his relational
interest with a director of
Templeton or disclosing his
interest in the securities
industries. It is our opinion
that if the 1st
defendant has abused his office
as alleged by the plaintiffs,
there are provisions in the
current law of the country for
an aggrieved person to resort
to. There is nothing to
interpret in article 284 after
this court has done same in 2012
in Okudzeto Ablakwa’s case
(supra).
The test from the decided cases
cited above is, do
we see
any ambiguity, imprecision or
unclear language in a
constitutional provision to be
interpreted? None of the reliefs
sought by the plaintiff and the
constitutional provisions relied
upon met that stringent test to
warrant the invocation of our
original interpretative
jurisdiction. We will,
therefore, resist the invitation
by the plaintiff for us to
embark on this futile exercise.
It seems to
us that the plaintiff rushed to
this court without considering
carefully the reliefs sought,
the forum where these reliefs
are to be ventilated and the
numerous decisions of this court
on the roadmap and grounds under
which the original
interpretative jurisdiction of
this court could be triggered.
Parties exercising their
constitutional rights to appear
in the apex court are advised to
pause and thoroughly examine
their case fully. This will go a
longer way to assist the court
further improve on its
jurisprudence and the
constitutional history of this
country.
We will, in conclusion,
reiterate the warning of Apaloo
CJ in the case of Nana Yiadom
v Nana Amaniapong & Ors (supra)
at 8 that:
“The plain truth of the
matter is that the original
jurisdiction of this court has
been wrongly invoked. We will
accordingly accede to the
challenge to our jurisdiction.
Perhaps we should point out at
least for the benefit of the
profession, that where the issue
sought to be decided is clear
and is not resolvable by
interpretation, we will firmly
resist any invitation to
pronounce on the meaning of
constitutional provisions. It
would, we think, be a waste of
mental effort and a thoroughly
pointless exercise.”
Guided by
this dictum,
we find
no merit in the writ inviting us
to exercise our original
jurisdiction and same is
accordingly dismissed.
N. A.
AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
ANIN
YEBOAH
(CHIEF
JUSTICE)
V. J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
Y. APPAU
(JUSTICE OF
THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF
THE SUPREME COURT)
PROF.
N. A. KOTEY
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
OSMAN ALHASSAN FOR THE
PLAINTIFFS.
COSMAS AMPENGNOU FOR THE 2ND
DEFENDANT |
