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J U D G M E N T
DR. DATE-BAH, J.S.C:
This is the unanimous judgment
of the Court. The Plaintiffs
issued a Writ on 2nd March
2004 seeking an enforcement of
the Constitution by:
1. “A declaration that by the
proper interpretation of the
Article 36(1) and (2) of the
1992 constitution PNDC law 125
ceased to exist or to have any
effect upon the coming into
effect of the 1992 constitution
of the Republic of Ghana.
2. A declaration that said
PNDC law 125 is inconsistent
with the provision of the
discriminate (sic) 1992
constitution in so far as it
tends to decrements (sic)
against certain categories of
workers in Ghana and within the
CocoBod.
3. A declaration that the said
P.N.D.C. law 125 is
unconscionable and must be
removed from the statute books
of Ghana.”
The Writ was expressed to be
issued by three Plaintiffs,
namely, Ernest Adofo, Paul K
Sekley and Samuel Ntiful “for
themselves and on behalf of 70
other workers of the Cocobod
retrenched in September 1994”.
In the accompanying Statement of
Case, verified by an affidavit
deposed to by the first
Plaintiff, the Plaintiffs stated
that they were citizens of Ghana
and former employees of the
Ghana Cocoa Board. They further
stated that in or about 1994 the
Plaintiffs, numbering about 70,
were declared redundant and
their employment terminated.
Their terminal benefits were not
paid them, they claimed. When
they made inquiries regarding
these benefits, they alleged
that they were informed of PNDC
Law 125, which was said to
empower the Ghana Cocoa Board to
terminate their employment and
to indemnify the Board from any
liability for the payment of
retirement benefits in
accordance with the collective
agreement of these employess.
The Plaintiffs contended that
PNDCL 125 was unconstitutional,
as it offended against the
express stipulation in Article
36 of the 1992 Constitution.
This reference in the
Plaintiff’s Statement of Case
was in fact wrong and should
have read section 36 of the
Transitional Provisions (First
Schedule to the Constitution).
On 25th November
2004, the Plaintiffs filed a
motion on notice for an
amendment of their Writ in order
to cure an irregularity which
had been identified by the
Defendants. The Plaintiffs’
Writ had failed to provide the
addresses of the first three
Plaintiffs nor the names or
addresses of the 70 other
workers of Cocobod that the
first three Plaintiffs purported
to represent. The amendment was
granted on 18th January
2005. By the amended Writ, the
three Plaintiffs no longer
purported to be representing
others and their respective
addresses were now inserted.
The nature of the relief sought
was now endorsed as follows:
“Enforcement of the Constitution
by:
1. A declaration that by the
proper interpretation of the
Article 36(1) and (2) of the
Transitional Provisions of the
1992 constitution PNDC Law 125
ceased to exist or to have any
effect upon the coming into
effect of the 1992 constitution
of the Republic of Ghana.
2. A declaration that said
PNDC Law 125 is inconsistent
with the provisions of the 1992
constitution in so far as it
tends to discriminate against
certain categories of workers in
Ghana and within the CocoBod and
in so far as it seeks to oust
the jurisdiction of the courts.
3. A declaration that the said
PNDC Law 125 is unconscionable.”
Learned counsel for the
Attorney-General, Mrs.Kathleen
Quartey Ayensu, Chief State
Attorney, filed a notice of
preliminary objection to the
Plaintiffs’ Writ, insisting that
the Writ did not raise issues
predominantly within the ambit
of Article 130(1) of the
Constitution and that the issues
raised were predominantly
employment issues. At the
hearing of this case, the Court
decided that it would rule on
this objection when giving its
judgment on the Writ itself.
In the course of his argument
before this Court, learned
counsel for the Plaintiffs, Mr
Klayson, refined his case and
eventually agreed to limit the
relief sought from this Court to
the declaration of the
unconstitutionality of sections
5 and 6 of PNDC Law 125. In
other words, he orally abandoned
all the other reliefs he had
sought and requested the Court
to strike them out. In similar
vein, learned counsel for the
Attorney-General stated that if
all the other issues were to be
remitted to the proper forum,
namely the High Court, then she
would concede the
unconstitutionality of sections
5 and 6 of PNDC Law 125.
Both counsel therefore
eventually agreed that the issue
to be determined in this case
should be narrowed down to the
issue of the constitutionality
of provisions in PNDC Law 125
which purported to block the
Plaintiffs’ access to the
courts. Learned counsel for the
Second Defendant, Mr.
Clottey-Sefa, associated himself
with the position of learned
counsel for the
Attorney-General. This then is
the issue which this Court is
required to pronounce on. This
agreement by all counsel in this
case in effect means that the
preliminary objection by learned
counsel for the Attorney-General
was overtaken by events. The
employment issues in this case
having been stripped off by the
mutual consent of counsel, the
basis for the preliminary
objection by learned counsel for
the Attorney-General falls away.
It therefore remains for us to
set out the alleged offending
provisions of PNDC Law 125,
whose full short title is:
“Ghana Cocoa Board
Re-Organisation and Indemnity
Law, 1985” and to determine
whether they should be struck
down as being unconstitutional.
“5. No action shall be
brought against the Board or any
of it Divisions or Subsidiaries
or any other person in respect
of any obligation, liability or
claim arising from the
re-organisation of the Board or
the termination of employment of
any employee of the Board under
section 1 of this Law or from
any act or omission in
connection with or consequent
upon such re-organisation or
termination.
6. Any action pending in
any Court before the
commencement of this Law in
respect of any obligation,
liability or claim or in respect
of any act or omission referred
to in section 5 of this Law is
hereby abated.”
The power to strike down
legislation in conflict with any
provision of the 1992
Constitution is one of the most
important of this Court. It is
a power to safeguard liberty
from encroachment by the
legislature, whether constituted
under our current Constitution
or under any earlier
Constitution or constitutive
document, subject to the
transitional provisions of the
various Constitutions we have
had. It is a power accorded
this Court by clear provisions
in the Constitution, whose
exercise is endorsed and
mandated by binding precedent
from this Court. That binding
precedent includes Sam (No.
2) v Attorney-General
[2000]SCGLR 305 and the clear
provision of the Constitution is
Article 1(2) of the 1992
Constitution which provides as
follows:
“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 extent of the inconsistency,
be void.”
This Constitutional provision
unequivocally and
authoritatively establishes a
doctrine of supremacy of the
Constitution in the Ghanaian
jurisdiction. This doctrine
implies that the supremacy of
Parliament is limited and
Parliament’s enactments and
those of previous legislatures
are subject to the supremacy of
the Constitution. This
supremacy of the Constitution
implies the assertion that
constitutional clauses granting
an effective indemnity against
the provisions of the current
Constitution, which exist under
the terms of the transitional
provisions of the 1969, 1979 and
1992 Constitutions, are also
supreme. Those clauses
therefore establish an effective
indemnity.
The doctrine of the supremacy of
the Constitution should
logically imply the power of
judicial review of the
constitutionality of legislation
in order to enforce that
supremacy. Thus, even if there
had been no express power in the
Constitution for this Court to
strike down offending
legislation, we would have been
willing to imply one. Such
implication is, obviously,
unnecessary because of the
explicit power conferred on this
Court by Article 2(1) of the
Constitution, which has been
repeatedly described in this
Court as a special jurisdiction.
This special jurisdiction to
strike down legislation is made
an exclusive one of this Court
by Article 130 of the
Constitution. The net effect of
Article 130(1) is that, where a
Plaintiff seeks to obtain a
declaration that a statute or
part of a statute is void as
“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 exclusive
original jurisdiction in the
matter.
The power of judicial review of
the constitutionality of
legislation, which is explicitly
conferred on this Court by
Articles 2(1) and 130(1) of the
Constitution, is one that should
be vigilantly deployed by this
Court in discharge of the
obligation of this Court to
uphold the Constitution of this
land. It is a power over whose
legitimacy constitutional
scholars in constitutional
democracies have often
agonised. Because of the
clarity of the provisions which
vest this Court with that
jurisdiction, we do not think
this Court need agonise about
the legitimacy of its power.
The framers of the Constitution
wanted this Court to exercise
this jurisdiction and that is,
for us, a sufficient basis for
the legitimacy of the power.
However, the reason why some
constitutional scholars agonise
over the legitimacy of the power
is that judges are unelected and
therefore are not electorally
accountable. On the other hand,
this very lack of electoral
accountability is probably one
of the justifications or
rationales for judicial review.
The Constitution expects judges
to protect individuals and
minorities from the power of the
majority. The fundamental human
rights and freedoms enshrined in
Chapter 5 of the Constitution
are intended to facilitate the
fulfilment by judges of this
expectation. The fact that
judges are unelected in
democracies such as ours
strengthens their capacity to
protect individuals and
minorities because their tenure
is not dependent on the
short-term wishes of the
majority of the electorate.
Marjoritarian institutions such
as Parliament and the Executive
are less well-suited to the
protection of the interests of
individuals and minorities
because of the pressure applied
on them by the will of the
majority which they represent.
A similar point is made by
Professor Laurence Tribe in his
well-regarded book American
Constitutional Law, Volume One
(Third Edition, Foundation
Press, New York, 2000) at pp.
27-28, where he says:
“Although the non-judicial
branches, too, are sworn to
uphold the Constitution, the
independent judiciary has a
unique capacity and commitment
to engage in constitutional
discourse –to explain and to
justify its conclusions about
governmental authority in a
dialogue with those who read the
same Constitution even if they
reach a different view. This is
a commitment that only a
dialogue-engaging institution,
insulated from day-to-day
political accountability but
correspondingly burdened with
oversight by professional peers
and vigilant lay critics, might
plausibly be expected to
maintain. The price we pay for
allowing judges to discharge
this commitment is that, for
various periods of time, an
enlightened consensus and
perhaps even a vigorous public
debate may be blocked by blind
judicial adherence to
constitutional views we will
later come to regret. But the
price of the alternative course
is that, for other periods, the
enlightened informed public
discourse and perhaps ultimately
the consensus that judges might
help to catalyze in the name of
the Constitution may be blocked
by more self-interested or
short-sighted majorities.”
These are among the reasons that
must have persuaded the framers
of our Constitution to confer on
this Court the power of judicial
review of legislation. The
conferment of a comprehensive
power of judicial review on the
Supreme Court dates back to the
1969 Constitution. However, even
the 1960 Republican Constitution
had a provision on judicial
review in its Article 42(2),
which gave an original
jurisdiction to the Supreme
Court “in all matters where a
question arises whether an
enactment was made in excess of
the powers conferred on
Parliament by or under the
Constitution…” The absence,
though, of any meaningful Bill
of Rights and the paucity of
restraint on the power of the
Parliament of the First Republic
meant that judicial review did
not loom large in the
constitutional order established
under that Constitution.
Indeed, the contemporary
formulation of the power of
judicial review in force since
1969 was undoubtedly influenced
by the perceived timorousness of
the Supreme Court of the First
Republic in the famous case of
Re Akoto [1961]GLR 523.
Since then, the Supreme Courts
of the Second, Third and Fourth
Republics have been clear about
their power to strike down
legislation in conflict with the
Constitution. Indeed, even in
relation to the Independence
Constitution of 1957, there was
some scope for limited judicial
review of legislation since,
although it did not contain a
full Bill of Rights, it did
contain protection against
compulsory acquisition of
property without compensation in
section 34 of the Constitution
Order-in-Council and also
against racial discrimination
and interference with religious
freedom in section 31.
Restrictions were also placed on
the power of Parliament over
chieftaincy matters and over
regional devolution.
Among the first cases in which
the Supreme Court’s power of
judicial review was sought to be
invoked under the contemporary
formulation was Gbedemah v
Awoonor-Williams (1969) G &
G 442, where, although the
alleged offending statute was
not struck down, Apaloo JA, as
he then was, delivering the
judgment of the Court, and Azu
Crabbe JA, as he then was,
dissenting, never doubted that
the Court had the power to
strike down the legislation, if
need be. (This was a case of
the Court of Appeal sitting as
the Supreme Court under the
transitional arrangements then
in place.)
The power of judicial review was
exercised by the Supreme Court
of the Third Republic when it
held, in Kwakye v
Attorney-General [1981] GLR
9, that the State Proceedings
(Amendment) Decree 1969 (NLCD
352) was inconsistent with
article 2(1) of the 1979
Constitution, where a person
sought to invoke the original
jurisdiction of the Supreme
Court, and was to the extent of
the inconsistency void. Apaloo
CJ, delivering the judgment of
the Court, explained as follows
(at p.13):
“We think that where a person
seeks to invoke the original
jurisdiction of the court on a
complaint founded on article
2(1) of the Constitution, the
State Proceedings (Amendment)
Decree of 1969 is ineffectual.
It is, in our opinion, plainly
inconsistent with that article
and is voided by article 1(2).”
Similarly, the current Supreme
Court struck down parts of
subsidiary legislation
promulgated under the Liquor
Licensing Act, 1970 (Act 331) as
being inconsistent with the
letter and spirit of the 1992
Constitution, in Mensima v
Attorney-General [1996-97]
SCGLR 676. See also the
decision of the Court of Appeal
in 1976, as the final court of
appeal then, in Agyei v
Apraku & Ors [1977] 1GLR
111.
The nature of the jurisdiction
conferred on this Court by
Article 2(1) was widely
canvassed in the Sam (No.2)
case (supra) where it was
authoritatively settled that:
“It is clear then that the
jurisdiction under article 2(1)
is a special jurisdiction
available to citizens of Ghana
only, irrespective of personal
interest.” (Per Bamford-Addo
JSC at page 315 of the Report
(supra)).
In that case, the Plaintiff sued
for a declaration from the
Supreme Court that section 15 of
the Divestiture of State
Interests (Implementation) Law
1993 (PNDCL 326) was
inconsistent with or in
contravention of the provisions
of articles 140(1) and 293(2)
and (3) of the 1992 Constitution
and to that extent was null and
void. The Supreme Court granted
him the declaration sought, thus
striking down as
unconstitutional the offending
section 15 which was in the
following terms:
“No action shall be brought and
no Court shall entertain any
proceedings against the State,
the Committee or any member or
officer of the Committee in
respect of any act or omission
arising out of disposal of any
State interest made or under
consideration under this Law.”
There is thus a striking
similarity between the material
facts of that case and the
present case in that they both
deal with denial of access to
the courts. We believe that the
ratio decidendi of that
case is binding on the Court in
this case.
The unimpeded access of
individuals to the courts is a
fundamental prerequisite to the
full enjoyment of fundamental
human rights. This Court has a
responsibility to preserve this
access in the interest of good
governance and
constitutionalism. Unhampered
access to the courts is an
important element of the rule of
law to which the 1992
Constitution is clearly
committed. Protection of the
rule of law is an important
obligation of this Court.
Accordingly, we are willing to
hold that, quite apart from the
legal reasoning based on Article
140(1) of the Constitution,
which is outlined later in this
judgment, it is incompatible
with the necessary intendment of
Chapter 5 of the Constitution
for a statute to provide for a
total ouster of the jurisdiction
of the courts in relation to
rights which would otherwise be
justiciable. This is an
interpretation of the
Constitution which is intended
to reflect a core value of the
Constitution, namely, public
accountability of the government
and its agencies in the interest
of democracy.
Public accountability of the
Executive implies an obligation
on the part of the Executive
(including its agencies), where
any legal person shows just
cause, to explain its
performance and conduct and to
remedy any legal wrong that the
Executive may have committed.
This obligation would be eroded
if the Executive were able to
insulate its conduct in
particular areas involving
justiciable rights from the
scrutiny of the courts.
A further reason for prohibiting
the barring of access to the
courts is that it brings into
question the very function of
the judiciary. Under our
Constitution, the judiciary is
given the role of a watchdog
against abuse or excess of power
by the Executive or the
Legislature. This function of
the judiciary as a third pillar
of responsible and accountable
government would be undermined
by the ouster of the
jurisdiction of the courts in
any matters relating to
justiciable rights. In short,
the constitutional vision
immanent in the 1992
Constitution is inconsistent
with the barring of access to
the courts established under the
Constitution. As the
Commonwealth (Latimer House)
Principles on the Accountability
of and the Relationship between
the Three Branches of
Government, endorsed by the
Heads of Government Meeting in
Abuja, Nigeria, in 2003, have
put it (in Principle VII(c)):
“Best democratic principles
require that the actions of
government are open to scrutiny
by the courts, to ensure that
decisions taken comply with the
Constitution, with relevant
statutes and other law,
including the law relating to
the principles of natural
justice.”
It should be pointed out, in
this connection, that this case
provides an illustration of the
need to apply an interpretation
of the Constitution that
furthers the objective purpose
of the Constitution. In the
judgment of Dr. Date-Bah JSC in
Professor Asare v Attorney-General
(to be reported in 2003-2004
SCGLR), he explained our
understanding of this approach
to interpretation. This is
3what he said then (at p. ):
“The subjective purpose of a
constitution or statute is the
actual intent that the authors
of it, namely, the framers of
the constitution or the
legislature, respectively, had
at the time of the making of the
constitution or the statute.
The objective purpose is not
what the author actually
intended but rather what a
hypothetical reasonable author
would have intended, given the
context of the underlying legal
system, history and values etc.
of the society for which he is
making law. This objective
purpose will thus usually be
interpreted to include the
realisation, through the given
legal text, of the fundamental
or core values of the legal
system. A poignant illustration
of objective purpose is to be
found in the Australian case of
Theophenous v Herald Weekly
Time Ltd. (1994) 182 CLR
104.
………
In the context of the Ghanaian
legal system, the core values
from which could be distilled
the objective purpose of
constitutional provisions would
include the provisions of
Chapters 5 and 6 of the
Constitution and core doctrines
such as the doctrine of the
separation of powers. In this
connection, I would like to
refer to the dictum of Sowah JSC
(as he then was) in Tuffuor v
Attorney-General [1980]
G.L.R 637 at p. 647, which is
frequently referred to and is in
this case relied on by both the
Plaintiff and the Defendant. He
said:
“The Constitution has its letter
of the law. Equally, the
Constitution has its spirit….Its
language, therefore, must be
considered as if it were a
living organism capable of
growth and development. Indeed,
it is a living organism capable
of growth and development. A
broad and liberal spirit is
required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.”
The “spirit” to which Sowah JSC
refers is another way of
describing the unspoken core
underlying values and principles
of the Constitution. Justice
Sowah enjoins us to have
recourse to this “spirit” or
underlying values in sustaining
the Constitution as a living
organism.
The distinction between
subjective and objective
purposes of a legal text can be
significant. An emphasis on the
objective purpose may be
important in order to respond to
social and other change. At the
same time, authorial intent
(subjective purpose) cannot be
ignored. The interplay between
subjective and objective
purposes, therefore, has an
important influence on a judge’s
approach to constitutional and
statutory interpretation.”
There is no doubt that any
meaningful analysis of the
fundamental core values of the
1992 Constitution, as distilled
from, inter alia,
Chapters 5, 6 and 11, would lead
inexorably to the conclusion
that a total ouster of the
jurisdiction of the courts in
relation to any justiciable
rights is unconstitutional. In
short, such ouster is against
the spirit of the Constitution
and thus unlawful. We elaborate
below on the mechanics of the
line of thought on which we base
this view.
First, we would like to say, in
relation to the provisions on
the courts in our current
Constitution, that a good
starting point in the task of
the identification of the core
values relating to them would be
the The Proposals of the
Constitutional Commission for a
Constitution for Ghana (1968)
which provided the basis for the
provisions on the Judiciary in
the 1969 Constitution which, in
substance, have been retained in
subsequent constitutions.
Paragraph 502 of the
Proposals (at p. 138) is in
the following terms:
“502. It is our considered
view, which is happily shared by
all Ghanaians, that the Law
Courts of Ghana shall be the
custodian and the bastion of the
liberty and dignity of
Ghanaians, the guardian of the
Constitution, in short, the
citadel of justice. The
independence of Judges is an
essential prerequisite to the
attainment of this objective,
and it can be achieved only
under certain accepted
conditions.”
A similar thought was
articulated by President Wilson
of the United States in a
passage quoted from him by the
U.S. Supreme Court in Evans v
Gore (1920) 253 US 245 . He
said (at pp. 251-252):
“Our courts are the balance
wheel of our whole
constitutional system, and ours
is the only constitutional
system so balanced and
controlled. Other
constitutional systems lack
complete poise and certainty of
operation because they lack the
support and interpretation of
authoritative, indisputable
courts of law. It is clear
beyond all need of exposition
that for the definite
maintenance of constitutional
understandings it is
indispensable, alike for the
preservation of the liberty of
the individual and for the
preservation of the integrity of
the powers of the Government,
that there should be some
non-political forum in which
those understandings can be
impartially debated and
determined. That forum our
courts supply. There the
individual may assert his
rights; there the Government
must accept definition of its
authority. There the individual
may challenge the legality of
Governmental action and have it
adjudged by the test of
fundamental principles, and that
test the Government must abide;
there the Government can check
the too aggressive self
assertion of the individual and
establish its power upon lines
which all can comprehend and
heed.
The constitutional powers of the
courts constitute the ultimate
safeguard alike of individual
privilege and of governmental
prerogative. It is in this
sense that our judiciary is the
balance wheel of our entire
system; it is meant to maintain
that nice adjustment between
individual rights and
Governmental powers which
constitutes political liberty.”
What these two quotations
express is that constitutional
arrangements such as those
prevailing in Ghana cannot work
to their purpose unless there is
a court system in place to
resolve matters impinging on the
liberty of the individual and
the powers of government.
Implied in this proposition is
the principle that there should
be untrammelled access to the
courts. It is this core value
which informs the general
provision in Article 125(5) of
the Constitution, which
proclaims that:
“The Judiciary shall have
jurisdiction in all matters
civil and criminal, including
matters relating to this
Constitution, and such other
jurisdiction as Parliament may,
by law, confer on it.”
Provisions derogating from this
central constitutional role of
the judiciary and the courts are
inherently incompatible with a
core value of the Constitution.
Sam (No.2) relied
principally on Article 140(1) of
the Constitution to outlaw the
denial of access to the courts
that the facts of the case
presented. We are in this
judgment founding the
unconstitutionality of the
denial of access evident on the
facts of this case on a deeper
and wider footing. In our view,
the denial of access, on the
facts here, offends against a
core value of the Constitution
and is therefore in conflict
with the spirit of the
Constitution. We have already
identified some of the specific
provisions of the Constitution
which conflict with any
statutory endeavour to deny
access to the courts. These
include Chapter 5, whose
fundamental freedoms would not
be justiciable without access to
the courts, and Articles 125(5)
and 140(1) referred to above.
But, it is the cumulative effect
of these provisions that we wish
to highlight, rather than the
individual provisions.
So repugnant to the core values
of the Ghanaian legal system is
the barring of access to the
courts that Edusei J., as he
then was, declared, in the High
Court, even during the rule of a
military regime, in Labone
Weavers Enterprises Ltd. v
Bank of Ghana
[1977] 2 GLR 156 at p. 157 that:
“I am of the view that every
person has an unimpeded access
to the law courts of this
country, and this basic and
fundamental right can only be
taken away by express provision
of a Decree or an Act of
Parliament if that Act does not
run counter to any provisions of
the Constitution that the
country may have.”
Reflecting the core value
articulated there by the learned
and respected judge, we are in
this case giving further
protection to the core principle
expressed in that case by
holding that, under the current
constitutional regime, even
express statutory provisions
cannot take away the right of
access to courts. Such
statutory provisions are
repugnant to the spirit of the
Constitution.
The present case is one of those
cases where the constitutional
principle of interpretation that
all the relevant provisions of
the Constitution should be read
as a whole and not individually
needs to be invoked. As Justice
White of the Supreme Court of
the US said in South Dakota v
North Carolina (1940) 192 US
268, at p. 465 of the Lawyer’s
Edition:
“I take it to be an elementary
rule of constitutional
construction that no one
provision of the Constitution is
to be segregated from all the
others and considered alone, but
that all provisions bearing upon
a particular subject are to be
brought into view and are to be
so interpreted as to effectuate
the great purpose of the
instrument.”
Accordingly, applying the
cumulative and integrated effect
of the constitutional provisions
referred to above, we clear in
our mind that section 5 of PNDCL
125 is unconstitutional, as
being against the spirit of the
1992 Constitution.
Next, we return to the Sam
(No.2) case. The Plaintiff’s
argument there was rather better
constructed than in the current
case, where the blunderbuss
approach of counsel for the
Plaintiff meant that he did not
really focus his argument on the
issue of denial of access to the
courts, until circumstances
compelled him to do so during
the hearing of this case on 8th March
2005. It was this lack of
precision which necessitated his
oral modification of his case in
the face of this Court.
The better argumentation of the
Plaintiff in the Sam (No. 2)
case relied on Articles 140(1)
and 293(2) and (3) of the 1992
Constitution in order to succeed
in that case. We believe that
those same provisions are
relevant to the outcome of this
case.
Article 140(1) is in the
following terms:
“The High Court shall, subject
to the provisions of this
Constitution, have jurisdiction
in all matters and in
particular, in civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
on it by this Constitution or
any other law.”
Clauses (1) to (3) of Article
293 provide as follows:
“(1) Where a person has a
claim against the Government,
that claim may be enforced as of
right by proceedings taken
against the Government for that
purpose without the grant of a
fiat or the use of the process
known as petition of right.
(2) The Government shall
be subject to all those
liabilities in tort to which, if
it were a private person of full
age and capacity, it would be
subject –
a. In respect of torts
committed by its employees or
agents;
b. In respect of a breach of
duties which a person owes to
his employees or agents at
common law or under any other
law by reason of being their
employer; and
c. In respect of a breach of
the duties at common law or
under any other law attached to
the ownership, occupation,
possession or control of
property.
(3) No proceedings shall
lie against the Government by
virtue of paragraph (a) of
clause (2) of this article in
respect of an act or omission of
an employee or agent of the
Government unless the act or
omission would, apart from this
article, have given rise to a
cause of action in tort against
that employee or his estate.”
The Plaintiff’s claim in the
Sam (No.2) case was that the
cumulative effect of articles
140(1) and 293(1) to (3) quoted
above was to render
unconstitutional the indemnity
granted to the State and the
employees of the Divestiture
Implementation Committee from
court proceedings by section 15
of PNDCL 326. This was the
claim which was upheld by the
Supreme Court.
The main difference between the
current case and the Sam (No.
2) case is that here the
defendant in the substantive
(employment) case is not the
Government itself but a
statutory corporation. There is
therefore no need to resort to
Article 293 in relation to that
defendant. Nevertheless, to
strike down the statutory
impediment in PNDCL 125 to
access to the High Court
jurisdiction under article
140(1) set out above, it is
necessary to sue the Government
for the declaration sought by
the Plaintiff herein.
Applying the ratio decidendi
of Sam (No. 2), it may be
asserted that, to the extent
that section 5 of PNDCL 125
purports to oust the
jurisdiction of the High Court,
it is in conflict with article
140(1) and being a mere statute
must fall away to the extent of
its inconsistency. Any statutory
provision intended to impede
access to the general unlimited
jurisdiction of the High Court,
as set out above in Article
140(1), is equivalent to an
endeavour to curtail that
jurisdiction. That jurisdiction
being one conferred by the
Constitution itself, any statute
in conflict with it is
unconstitutional to the extent
of such conflict. It is,
accordingly, not surprising that
learned counsel for the
Attorney-General conceded the
unconstitutionality of sections
5 and 6 of PNDCL 125. Thus, in
addition to the broader ground,
based on the core values of the
Constitution, which has been
articulated above, there is also
this narrower ground derived
from a precedent binding on this
Court, according to which the
denial of access to the courts
manifest on the facts of this
case is unconstitutional.
Moreover, in this particular
case, PNDCL 125 being a statute
enacted by an unelected regime,
the issues as to the legitimacy
of the exercise of judicial
review (raised above) do not
even arise in relation to this
statute. This Court should
therefore declare that section 5
of PNDCL 125 is null and void.
We do not consider it necessary
to come to a view on section 6
of PNDCL 125 since the
Plaintiffs have not pleaded any
facts indicating that any action
is pending in any court in
respect of any act or omission
referred to in section 5 of the
Law. Nevertheless, in view of
the holding of this Court in the
Sam (No.2) case, supra,
that a dispute or controversy
involving a Plaintiff personally
is not a necessary precondition
to the invocation of this
Court’s original jurisdiction,
this Court has the prima
facie jurisdiction to
declare section 6 of PNDCL 125
also to be null and void.
However, that section does raise
issues as to conduct prior to
the coming into force of the
Constitution on 7th January
1993 and the applicability of
section 34 of the transitional
provisions of the 1992
Constitution which we consider
unnecessary to resolve in order
to give the Plaintiffs in this
case an effective remedy. We
will therefore not rule on the
constitutionality of section 6.
As regards the
unconstitutionality of section
5, the transitional provisions
of the 1992 Constitution, as
explained in the Sam (No. 2)
case, are not of assistance to
public officials whose post
January 7th 1993
conduct is in question.
Accordingly, we would grant the
Plaintiffs’ amended claim for a
declaration that section 5 of
the Ghana Cocoa Board
Re-Organisation and Indemnity
Law, 1985 (PNDCL 125) is
unconstitutional and void. We
find it unnecessary to rule on
the constitutionality of section
6 of that same Law.
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO, (MS)
JUSTICE OF THE SUPREME COURT
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
R.T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mrs. Kathleen Quartey Ayensu
C.S.A. for Attorney-General.
Mr. Samuel Klayson for
Plaintiff.
Mr. John D. Clottey-Sefa for 2nd
Defendant.
gso*
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