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Constitutional law - 1992
Constitution - Interpretation -
Whether on a true and proper
interpretation of the 1992
Constitution - Whether or not
the Attorney General who is a
Minister of State can properly
represent the 6th Defendant who
is a judicial officer in legal
suit. - Whether, the
representation of the 6th
Defendant by the
Attorney-General who is a
Minister of State under Article
88 (1) of the 1992 Constitution
is in contravention of and
inconsistent with the letter and
spirit of Article 125 (1), 127
(1) and (2), and 161 of the said
Constitution.
HEADNOTES
The plaintiff, formerly an
engineer on board the vessel M/V
MIDEN ANIE brought a suit
against the said vessel together
with her owners and operators
for unpaid salaries before the
High Court Tema. In the said
suit titled Frank Otah Enyerem v
Miden Systems & 3 Ors, the
plaintiff obtained judgment in
the total sum of Three Hundred
and Twenty-Eight Thousand, Five
Hundred US Dollars ($328,
500.00) in June 2013. Following
the said judgment the plaintiff
caused to be attached by a writ
of fifa the property of the
defendants therein. The property
so attached has been described
as “Dive Spread Equipment” in
four (4) separate 20 footer
containers ("the property"). In
the instant suit, the plaintiff
alleges that at all material
times the property was in the
custody of the 3rd defendants
herein, (PSC, Tema Ship yard)
The plaintiff alleges that,
following the attachment of the
property, his lawyers wrote to
the 6th defendant
(Registrar, High Court, Tema) to
issue a letter to the selected
valuer to proceed with the
valuation of the property
pending judicial sale. The 6th
defendant is alleged to have
unduly delayed in issuing the
said letter. Consequently, the
plaintiff filed an application
for an order of mandamus against
the 6th defendant to
issue the letter. The said
application was eventually
slated for 28th
August, 2013. The application
was however withdrawn on the
said day upon an announcement by
the 6th defendant to
the Court that he had already
issued the letter. The plaintiff
alleges that upon receipt of the
letter, he discovered that the 6th
defendant had either connived
with the 3rd to 5th
defendants to convey the
property to the 1st
and 2nd defendants on
the pretext that the property
was an integral part of the
vessel M/V MIDEN ANIE which had
previously been sold by auction
in a separate action.
HELD
we are certain in our minds
that, the representation by the
Attorney-General of the 6th
Defendant, in the suit pending
at the High Court, Tema will not
undermine the independence of
the Judiciary or of the 6th
Defendant, who by definition
under article 161 of the
Constitution is a Judicial
Officer, or result into a
conflict of interest situation,
or compromise the office of the
6th Defendant in
anyway whatsoever. Each
determination must be made on a
case by case assessment. It is
in respect of the above reasons
that we decided the referral
issue on the 5th of
December 2016 and held that it
was perfectly legitimate for the
Attorney-General to represent
the 6th Defendant in
the suit currently pending
before the said court. We
therefore accordingly direct the
continuation of the suit with
the said representation.
STATUTES REFERRED TO IN JUDGMENT
State Proceedings Act, 1998,
(Act 555)
Judicial Service Act, 1960 (CA
10)
Judicial Service Regulations,
1963 (LI 319)
CASES REFERRED TO IN JUDGMENT
Tsikata v The Chief Justice &
Attorney-General [2001-2002] I
GLR 186, S.C
Amegatcher v Attorney-General
(No. 1) & Others [2012] I SCGLR
679, SC
Asare v Attorney-General
[2003-2004] SCGLR 823, at 825
and 833,
In
Re Presidential Election
Petition, No. 4” [2013] SCGLR
Special Edition, 73
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE
JSC
COUNSEL
CHARLES HABIAH WITH HIM ALEX
OWIREDU DARKWAH FOR THE
PLAINTIFF.
EKOW DADSON FOR THE 1ST
AND 2 ND DEFENDANTS
OSAFO BUABENG WITH HIM FRANCIS
GARBA FOR THE 3RD, 4TH
& 5TH DEFENDANTS.
ADWOA O. OBENG (SENIOR STATE
ATTORNEY) FOR THE 6TH
DEFENDANT
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JUDGMENT
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DOTSE JSC
On the 5th day of
December 2016 this court by a
unanimous decision dismissed the
referral action necessitated by
the preliminary legal objection
filed and argued by learned
counsel for the 3rd
to 5th Defendants
against the legal representation
of the 6th Defendants
by the Attorney-General.
Following that dismissal, this
court directed as follows:-
“Accordingly the Judge before
whom the suit was pending in the
High Court, Tema, or any other
Judge presiding over the Court
in which the suit is pending is
to continue the suit with the
Attorney-General representing
the 6th Defendant in
terms of the orders and judgment
of this Court. The full and
reasoned judgment of this court
are to be filed later.
We now proceed to give the
reasons for our said decision.
INTRODUCTION
By an order of His Lordship
Adjei-Frimpong J.,presiding over
the High Court, Tema the
following issues formulated by
him were referred to the Supreme
Court for interpretation:
-
Whether on a
true and proper
interpretation of Articles
124 (1); 127 (1) and (2) and
161 of the 1992
Constitution, the Attorney
General who is a Minister of
State under Article 88 (1)
of the Constitution can
properly represent the 6th
Defendant who is a judicial
officer in legal suit.
-
Whether, the
representation of the 6th
Defendant by the
Attorney-General who is a
Minister of State under
Article 88 (1) of the 1992
Constitution is in
contravention of and
inconsistent with the letter
and spirit of Article 125
(1), 127 (1) and (2), and
161 of the said
Constitution.
FACTS OF THE CASE
The facts of this case admit of
no controversy whatsoever. They
are as follows:-
The plaintiff, formerly an
engineer on board the vessel M/V
MIDEN ANIE brought a suit
against the said vessel together
with her owners and operators
for unpaid salaries before the
High Court Tema. In the said
suit titled Frank Otah
Enyerem v Miden Systems & 3 Ors,
the plaintiff obtained judgment
in the total sum of Three
Hundred and Twenty-Eight
Thousand, Five Hundred US
Dollars ($328, 500.00) in June
2013.
Following the said judgment the
plaintiff caused to be attached
by a writ of fifa the property
of the defendants therein. The
property so attached has been
described as “Dive Spread
Equipment” in four (4)
separate 20 footer containers
("the property"). In the instant
suit, the plaintiff alleges that
at all material times the
property was in the custody of
the 3rd defendants herein, (PSC,
Tema Ship yard)
The plaintiff alleges that,
following the attachment of the
property, his lawyers wrote to
the 6th defendant
(Registrar, High Court, Tema) to
issue a letter to the selected
valuer to proceed with the
valuation of the property
pending judicial sale. The 6th
defendant is alleged to have
unduly delayed in issuing the
said letter.
Consequently, the plaintiff
filed an application for an
order of mandamus against the 6th
defendant to issue the letter.
The said application was
eventually slated for 28th
August, 2013. The application
was however withdrawn on the
said day upon an announcement by
the 6th defendant to
the Court that he had already
issued the letter.
The plaintiff alleges that upon
receipt of the letter, he
discovered that the 6th
defendant had either connived
with the 3rd to 5th
defendants to convey the
property to the 1st
and 2nd defendants on
the pretext that the property
was an integral part of the
vessel M/V MIDEN ANIE which had
previously been sold by auction
in a separate action.
RELIEFS IN THE SUIT
IN WHICH THE REFERRAL WAS MADE
The Plaintiff in the instant
suit claims jointly and
severally against all defendants
for the following reliefs:-
i.
A declaration that the
action of the 1st and
2nd defendants in
picking up the lawfully attached
Dive Spread Equipment contained
in four (4) separate 20 footer
container supported by the 3rd
and 4th defendants is
unlawful and void in law.
ii.
An order directed at the 1st,
3rd, 4th,
5th defendants to
produce all the said four (4)
separate 20 footer containers
and deposit same at the 3rd
defendants’ Drydock Shipyard,
Tema for valuation work to be
conducted by the assigned valuer
Or in the alternative
An order for compensation
commensurate to the full
judgment debt in favour of the
plaintiff
iii.
Damages for negligence in
office and loss suffered by the
plaintiff thereof
iv.
Costs including legal
costs of the suit
On 21st October,
2013, the Attorney-General
entered appearance for the 6th
defendant and proceeded to file
a statement of defence in that
behalf on 5th
November, 2013.
On 24th
February, 2015, the lawyer for
the 3rd to 5th
defendants filed a notice of
preliminary objection against
the legal representation of the
6th defendant by the
Attorney General; citing
breaches of Articles 88(1),
125(1), 127(1) & (2) and 161 of
the 1992 Constitution.
It is in pursuit of the above
argument that the High Court
Judge presiding over the Tema
High Court referred the issues
set out supra to the Supreme
Court for determination.
Pursuant to an order of this
court dated 17th June
2015, statements of case were
filed by counsel for 3rd
to 5th defendants and
6th defendant
respectivley on these issues.
The crux of the arguments of
learned counsel for the 3rd
to 5th Defendants can
be summarised briefly as
follows:-
ARGUMENTS OF COUNSEL
Relying on the constitutional
provisions in article 88 (1) to
(5) of the Constitution 1992,
and celebrated cases like
Tsikata v The Chief Justice &
Attorney-General [2001-2002] I
GLR 186, S.C and
Amegatcher v Attorney-General
(No. 1) & Others [2012] I SCGLR
679, SC the said Defendants
urged the court to interpret the
word “state” as used in
the context in which it has been
used in article 88 (5) as
limited to Government as it is
defined by the Constitution vide
Article 295. According to
learned counsel, Mr. Osafo
Buabeng, because no serious
attempt was made to really
define the word “state”
in the article 88 (5) context,
this court should use the
instant opportunity to
straighten the law on the
subject. According to learned
counsel, the position as
currently existing with the case
law is that the Attorney-General
is at liberty to interfere with
the independence of the
Judiciary and this will lead to
absurdities. He therefore
concluded that the 6th
Defendant, being the Registrar
of the High Court, Tema is a
Judicial Officer and a public
servant vide Article 190 (1) (a)
of the Constitution.
On the other hand, learned
counsel for the 6th
Defendant, Adwoa Obeng, Senior
State Attorney, relying on the
same cases referred to supra in
addition to the following case
and statutes such as Asare v
Attorney-General [2003-2004]
SCGLR 823, at 825 and 833,
State Proceedings Act, 1998,
(Act 555) Judicial Service Act,
1960 (CA 10) and the Judicial
Service Regulations, 1963 (LI
319) argued that although the
Constitution has carefully built
an architecture that preserves
and protects the doctrine of
separation of powers into three
distinct organs of state, to wit
the Executive, Legislature and
Judiciary, these are independent
of each other, however, they all
have checks and balances.
This special working
relationship between the three
arms of government had been
stated by me in my opening
remarks in the opinion I
delivered in “In Re
Presidential Election Petition,
No. 4” [2013] SCGLR Special
Edition, 73, at 303, as
follows:-
“In 1776, John Adams, one of the
United States most respected
statesmen and author, wrote in
his book: Thoughts of Government
(as quoted at page 178 of the
book: The Quotable Founding
Fathers (2008 Edition) edited by
Buckner F. Melton Jr), the
following profound statement on
the working relationship between
the three arms of government, to
wit, the Executive, Legislature
and Judiciary:
“The dignity and stability of
government in all its branches,
the morals of the people, and
every blessing of society depend
so much upon an upright and
skillful administration of
justice, that the judicial
power ought to be distinct from
both the legislature and
executive, and independent upon
both, that so it may be a
check upon both, and both should
be checks upon that.”
From the above, it is clear that
the independence of the
Judiciary cannot be
over-emphasised. Indeed the
situation in Ghana even has
constitutional endorsement in
article 127 (1) (2) of the
Constitution. But that should
not lead us to conclude that as
an independent body, the
Judiciary should not have any
working relationship with the
Executive where the
Attorney-General belongs or the
Legislature, where he could be a
member, or by virtue of his
position as an Attorney-General
attend proceedings of
Parliament. See article 111 of
the Constitution
According to learned Senior
State Attorney, under the
current constitutional and legal
regime, and until Article 88 of
the Constitution is amended, it
is perfectly lawful for the
Attorney-General to represent a
member of the Judiciary or
Judicial Service in a civil suit
irrespective of the clear
provisions of Article 127 of the
Constitution in their entirety
which guarantee’s Judicial
Independence.
The 6th Defendants
therefore urged this court to
decide and rule on the referral
issue in favour of the 6th
Defendant that the
Attorney-General can represent
him.
REAL ISSUES FOR
DETERMINATION
Even though the learned trial
Judge formulated the two issues
stated supra for determination,
in reality they both can be
subsumed into one issue
re-formulated as follows:-
“Can the Attorney-General
represent the 6th
Defendant the Registrar of the
High Court, Tema in the suit
pending therein?”
In determining this case, it
will be pertinent to refer
particularly to Articles 88 and
127 of the Constitution 1992. We
will therefore set them out
clearly as follows:-
Article 88 (1) - (5)
(1)
“There shall be an
Attorney-General of Ghana who
shall be a Minster of State and
the principal legal adviser
to the Government.
(2)
The Attorney-General shall
discharge such other duties of a
legal nature as may be referred
or assigned to him by the
President, or imposed on him by
this Constitution or any other
law.
(3)
The Attorney-General shall
be responsible for the
initiation and conduct of all
prosecutions of criminal
offences.
(4)
All offences prosecuted in
the name of the Republic of
Ghana shall be at the suit of
the Attorney-General or any
other person authorised by him
in accordance with any law.
(5)
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.” Emphasis
Article 127
(1)
“In the exercise of the
judicial power of Ghana, the
Judiciary, in both its judicial
and administrative functions,
including financial
administration, is subject only
to this Constitution and
shall not be subject to the
control or direction of any
person or authority.
(2)
Neither the President nor
Parliament nor any person acting
under the authority of the
President or Parliament nor any
other person whatsoever shall
interfere with Judges or
Judicial officers or other
persons exercising judicial
power, in the exercise of their
judicial functions; and all
organs and agencies of the State
shall accord to the courts such
assistance as the courts may
reasonably require to protect
the independence, dignity and
effectiveness of the courts,
subject to this Constitution.”
Emphasis
Our role in this case has been
well cut for us by the two
previous decisions of the court
in the Tsikata v Chief
Justice & Attorney-General,
supra and Amegatcher v
Attorney-General, also
supra.
It is worthwhile to note that,
in the Tsikata case supra, a
preliminary objection like the
instant one had been raised by
the Plaintiff therein to the
representation of the Chief
Justice by the Attorney-General,
claiming that, the
Attorney-General being a member
of the Executive as clearly
denoted by the provisions of
Article 88, such representation
amounted to interference with
the independence of the
Judiciary as captured in article
127 supra.
The court, speaking through
Ampiah JSC held inter alia as
follows:-
“The Chief Justice
was a public officer appointed
by the President in consultation
with the Council of State, and
with the approval of Parliament.
Acts performed by him in the
pursuance of the functions of
his office were therefore
official acts. Accordingly,
as provided by article 88 (5)
any attack on him in the
performance of his duties needed
to be defended by the
Attorney-General on behalf of
the state.”
We cannot but agree and endorse
the views of the court as
expressed therein. However, when
another opportunity presented
itself in the more recent case
of Amegatcher v
Attorney-General, (No. 1)
and others, supra, the Court
speaking through Atuguba and
Date-Bah JJSC, raised certain
pertinent issues but did not
depart in the main from the
decision in the Tsikata case
supra. Instead, the court in the
Amegatcher case, opened the
window wide and indicated the
possibility of future expansion
of the scope of the principle.
Atuguba JSC at page 684 of the
report stated his views as
follows:-
“Consequently, we consider
that, the time has come for a
realistic revisit to article 88
(5) of the 1992 Constitution.
Accordingly, we would come down
on article 88 (5) as follows –
all the Constitutionally
established independent bodies
like the Commission on Human
Rights and Administrative
Justice, the Electoral
Commission, etc can sue and be
sued on their own relating to
their functions per counsel of
their choice. Any person
affected by an action involving
the state can, upon application,
be joined to such action his or
her interest. With regard to
the Judiciary and legislature
where their position on an issue
is in conflict with that of the
Attorney-General, they may
proceed on their own by counsel
of their choice. However, any of
these bodies referred to may
access the services of the
Attorney-General if they so
choose.” Emphasis
Even though, Dr. S.Y.
Bimpong-Buta in his Editorial
note to the Amegatcher case on
pages 680 and 681 sought to
create the impression that the
Tsikata case had been departed
from that view cannot be the
case. Instead, the Amegatcher
case is an improvement upon the
Tsikata case with a window of
hope for members of the
Judiciary to opt for legal
representation from the
Attorney-General or not.
It is also very important to
observe that, Dr. Date-Bah JSC
in his opinion in the Amegatcher
case, raised the following
pertinent questions:-
“Article 88 (5) provides that
all civil proceedings against
the state shall be instituted
against the Attorney-General as
defendant. Does this mean that
every civil action against any
organ or institution of the
state has to be brought against
the Attorney-General who is
infact a member of the
executive? Does this not
compromise the principle of the
separation of powers? What
happens if the Attorney-General
wants to sue the speaker or the
Chief Justice? Must he sue
himself? If a member of the
Attorney-General’s political
party sues the Chief Justice,
can the Attorney-General
compromise the suit, since he is
the nominal defendant,
irrespective of the wishes of
the Chief Justice? These are but
a few of the many troubling
issues that arise from a literal
reading of article 88 (5)”.
Emphasis supplied
We have perused the erudite
decisions of our brethren in the
cases just referred to supra. We
have also given in depth
consideration to the erudite
submissions of learned counsel
for the parties in this referral
action.
GUIDELINES
After many anxious
considerations of the various
constitutional and statutory
provisions, notable among them
being articles 88 and 127 (1)
(2) and (CA 10) and Act 555, and
the cases referred to supra, we
are of the view that it is
useful to work with the
following guidelines whenever a
decision is to be made whether
to permit the Attorney-General
to represent the Judiciary or an
employee or staff thereof. We
realize that, it will certainly
be imprudent to lay down a hard,
fast and unbending set of
criteria whenever such a
decision is to be made. The
following are however to be
considered:-
1.
Independence of the
Judiciary or of the Judicial
Service. Since this is a core
and critical element, whenever
the representation by the
Attorney-General will compromise
the independence of the
Judiciary, that representation
must not be accepted.
2.
Conflict of interest
situations. Any such
representation which gives the
slightest indication of there
being a conflict of interest
situation arising must equally
be avoided.
3.
Thirdly, any
representation by the
Attorney-General which also
gives any indication as it were
that the Judiciary stands the
risk of being compromised one
way or the other, must also be
avoided.
4.
Finally, an assessment
must be made on a case by case
basis, especially when one
considers the pertinent
questions posed by our
illustrious brother Dr. Date-Bah
JSC in the Amegatcher v
Attorney-General’s Case
supra.
Applying the above guidelines to
the circumstances of the instant
referral, we are certain in our
minds that, the representation
by the Attorney-General of the 6th
Defendant, in the suit pending
at the High Court, Tema will not
undermine the independence of
the Judiciary or of the 6th
Defendant, who by definition
under article 161 of the
Constitution is a Judicial
Officer, or result into a
conflict of interest situation,
or compromise the office of the
6th Defendant in
anyway whatsoever. Each
determination must be made on a
case by case assessment.
It is in respect of the above
reasons that we decided the
referral issue on the 5th
of December 2016 and held that
it was perfectly legitimate for
the Attorney-General to
represent the 6th
Defendant in the suit currently
pending before the said court.
We therefore accordingly direct
the continuation of the suit
with the said representation.
V. J.
M. DOTSE
JUSTICE OF THE
SUPREME COURT
J. ANSAH
JUSTICE OF THE
SUPREME COURT
ANIN YEBOAH
JUSTICE OF THE
SUPREME COURT
P. BAFFOE - BONNIE
JUSTICE OF THE
SUPREME COURT
N. S.
GBADEGBE
JUSTICE OF THE
SUPREME COURT
V. AKOTO – BAMFO (MRS)
JUSTICE OF THE
SUPREME COURT
J. B. AKAMBA
JUSTICE OF THE
SUPREME COURT
COUNSEL
CHARLES HABIAH WITH HIM ALEX
OWIREDU DARKWAH FOR THE
PLAINTIFF.
EKOW DADSON FOR THE 1ST
AND 2 ND DEFENDANTS
OSAFO BUABENG WITH HIM FRANCIS
GARBA FOR THE 3RD, 4TH
& 5TH DEFENDANTS.
ADWOA O. OBENG (SENIOR STATE
ATTORNEY) FOR THE 6TH
DEFENDANT
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