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RULING

MRS. JOYCE BAMFORD-ADDO, J.S.C.:

I have been privileged to read in advance the ruling of my Brother Adjabeng, J.S.C. and I agree with him. In this case the Plaintiffs invoked the Original Jurisdiction of this court under Article 2 of the 1992 Constitution, for a declaration:

1. That the Hemang Lands (Acquisition and Compensation) Law 1992 (PNDCL 294) is inconsistent with and in contravention of the Constitution of the Republic of Ghana 1992 especially, Articles 20 and 170 thereof and is consequently null and void.

2.   An order setting aside or striking down as null and void the said PNDCL 294.

The Defendant raised certain preliminary objections to the claim of the Plaintiffs on a number of grounds important amongst them are the following:

a)  That the PNDCL 294 is not inconsistent with Articles 20 and 107 of the Constitution because the Constitution acts prospectively and not retrospectively to affect the acquisition which had taken place months before the coming into force of the Constitution.

b) That PNDCL 294 being a legislative act of the PNDCL done before the coming into force of the Constitution for the purpose of vesting the Hemang Land in the Republic, the Courts cannot by virtue of S.34 of the Transitional Provisions of the Constitution go behind the law and question its rationale or wisdom as the jurisdiction of the Court is ousted in respect of the said legislative Act of the PNDC.

The PNDCL 294 came into force on the 20th November 1992 before the coming into force of the Constitution on the 7th January 1993, so that the Hemang lands was vested in the Republic, see S.1 of PNDCL 294, a few weeks before the effective date of the Constitution. By virtue of Article 11(2) of the Constitution PNDCL 294 formed part of the existing laws of Ghana. That Article says:

"Article 11 (2) The existing law shall except as otherwise provided in clause (1) of this Article, comprises the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution and any Act, Decree, Law or statutory instrument issued or made before that date which is to come into force on or after that date"

However, Section 36(2) of the Transitional Provisions of the Constitution provides that

Notwithstanding the abrogation of the Proclamation referred to in subsection (1) of this section any enactment or rule of law in force immediately before the coming into force of this constitution shall in so far as it is not inconsistent with a provision of this Constitution continue in force as if enacted, issued or made under the authority of this Constitution".

This would mean that existing Law passed by any Government except the PNDC or Armed Forces Revolutionary Council Government could be challenged under S.36(2) of the Transitional Provisions of the Constitution if it is found to be inconsistent with a provision of the 1992 Constitution. However, the exception to this is clearly stated in the provisions of Section 34(3) of the Transitional Provisions and affects PNDCL 294 which is a legislative act of the PNDC Government. Section 34(3) provides:

"For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council or the Armed Forces Revolutionary Council or a member of the Provisional National Defence Council or the Armed Forces Revolutionary Council or any person appointed by the Provisional National Defence Council or the Armed Forces Revolutionary Council in the name of either the Provisional National Defence Council or the Armed Forces Revolutionary Council shall be questioned in any proceedings whatsoever and accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act."

By virtue of S.34(3) supra PNDCL 294 cannot be questioned by this court nor can any remedy or relief be granted in respect of any such challenge to the unconstitutionality of the said law, despite S.36(2) of the Transitional Provisions.

The binding and superior effect of section 34(3) is made apparent by the unambiguous provisions of Article 299 of the Constitution itself to the effect that:

"The Transitional Provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution."

In consequence thereof the Preliminary Objections of the Defendant should be upheld. This court has no jurisdiction to go into the present case or grant any consequential remedy. See Kwakye vs. Attorney General (1981) GLR 944.

I would also dismiss the plaintiffs' action for the above reasons.

C. HAYFRON-BENJAMIN, J.S.C.:

I have also had the privilege of reading the able opinions of my learned and respected sister JOYCE BAMFORD-ADDO, J.S.C. and my brother ADJABENG, J.S.C. and I concur in their conclusion that the Defendant's objection succeeds and the Plaintiffs action is consequently dismissed.

This was clearly a speculative action whose objective was to resurrect matters which in the past had been agitated in our Courts on the supposition that PNDCL 294 was inconsistent with the Constitution 1992 "especially Articles 20 and 170 (sic) and is consequently null and void". In my respectful opinion the Articles of the Constitution sought to be relied upon - and this includes Article 107 - have no bearing whatsoever on the quality and purport of PNDCL 294 which came into effect on the 20th November, 1992 before the coming into force of the 1992 Constitution. Thus by Article 1(2) thereof the quality of the Constitution vis-à-vis any other law is stated thus:

"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."(Emphasis mine)

The Defendant raises several preliminary objections to the maintenance of this litigation by the Plaintiffs, principal among which are that the Constitution cannot in this case operate retrospectively and also that since PNDCL 294 was a legislative act done by the PNDC before the coming into force of the Constitution, by Section 34 of the Transitional Provisions of the Constitution it would not be open to this Court to "go behind the law and question its rationale or wisdom".

I decline undertaking any academic discussion of arguments pro and contra the retro-activity or retrospectivity of the Constitution. Retro-activity or retrospectivity is a rebuttable presumption and may be displaced when conditions are satisfied. Suffice to say that by Section 30 of the Transitional Provisions of the Constitution the President was given the power within 12 months of assuming office to cleanse the Statute Books and bring up other laws to conform with the provisions of the Constitution. Of course if the President over-looked existing statute which he should have erased from the Statute Books this Court in its permanent situation of watchdogs of the Constitution may step in to correct the situation. However, as I have said in this case the Plaintiffs have not pointed to any specific Article in the Constitution which PNDCL 294 may be said to be inconsistent with and therefore void. PNDCL 294 is therefore an existing law within the intendment of Article 11 of the Constitution.

Yet again the Defendants raise the issue of the ouster jurisdiction of Courts contained in section 34 of the Transitional Provisions of the 1992 Constitution and submits that the Plaintiffs could not "question" the validity of PNDCL 294. In ABEL EDUSEI VRS. ATTORNEY GENERAL & ANOR. I had the opportunity of considering the decision of this Court in KWAKYE VRS. ATTORNEY-GENERAL (1981) GLR 9. I said:

"In my respectful opinion the Kwakye case, supra, proved to be the watershed in the adjudication of Constitutional issues where it was sought to oust the Courts jurisdiction by resort to what has become known as the "Indemnity" Clause in Transitional Provisions. The vexed issue of clauses in constitutions by which there have always been attempts to exclude the jurisdiction of Superior Courts have always been stoutly resisted by these Courts. In my respectful opinion therefore the KWAKYE case defines the parameters within which the Superior Courts may resist any curtailment of that jurisdiction in constitutional matters.

It is therefore imperative that in constitutional matters there must first be evidence by which the Court is 'satisfied' that the authority under scrutiny 'took or purported to have taken an executive, legislative or judicial action'. Then again the 'evidence adduced in its entirety' must amount to proof of the action taken by the Defendants. Thirdly, to sustain the ouster jurisdiction, the defect must be procedural, for 'where the defects are of substantive legal requirements, they cannot be considered as procedure prescribed by law".

In the present case the Plaintiffs are clearly "questioning" the validity of PNDCL 294 and the principles in the Kwakye case, supra, if correctly applied would entitle this Court to grant the Plaintiffs the reliefs they seek. In the Kwakye case this court was called upon to determine whether there had been a judicial action taken within the intendment of the law and the court decided that there was indeed what could legally pass for a trial - a judicial action.

In the present case, however, the issue is whether PNDCL 294 is a legislative act properly so called. In other words was the PNDCL 294 passed in accordance with and within the ambit of the applicable law? The applicable law for determining the validity of any law was the PROVISIONAL NATIONAL DEFENCE COUNCIL (ESTABLISHMENT) PROCLAMATION 1981 by Section 4 of which the law passed by the PNDC would be valid if it was signed by the Chairman thereof and gazetted. There is no gainsaying that P.N.D.C.L 294 possesses these attributes and therefore in terms of section 34(3) of Transitional Provisions its validity cannot be 'questioned' in any Court.

ADJABENG, J.S.C.:

The plaintiffs, who describe themselves as the lawful attorneys respectively of the Ellis and Wood Families of Cape Coast, have taken this action for and on behalf of those families against the Attorney-General as the principal adviser and the constitutional representative of the Government of Ghana. They claim the following reliefs:

"(1) A declaration that the Hemang Lands (Acquisition and Compensation) Law, 1992 (PNDCL 294) is inconsistent with, and in contravention of the Constitution of the Republic of Ghana 1992 specifically articles 20 and 107 thereof and is consequently null and void.

(2)  An order setting aside or striking down as null and void, the said PNDCL 294".

This action was prompted by the passing of the Hemang Lands (Acquisition and Compensation) Law, 1992 (PNDCL 294) in October, 1992. The Law came into effect on the 20th day of November, 1992, the date of its Gazette notification. By this Law, the Provisional National Defence Council Government acquired the lands, described in the Law, the property of the plaintiffs' families. It is provided in sections 1, 2 and 3 of P.N.D.C.L 294 as follows:

“1. Notwithstanding any law or anything to the contrary, the lands specified in the Schedule to this Law are hereby vested in the Provisional National Defence Council, on behalf of the Republic, free from all encumbrances.

2. (1) There shall be payable to the Ellis and Wood families a final and total compensation in the sum of two hundred million cedis in respect of the said land.

(2) The compensation specified in subsection (1) of this section shall be paid subject to the deduction therefrom of all taxes, rents and other charges payable and outstanding in respect of the said lands.

3. (1) No court or tribunal shall have jurisdiction to entertain any action or proceedings of whatever nature for the purpose of questioning or determining any matter on or relating to the said lands, the acquisition or the compensation specified in this Law."

The basis of the plaintiffs' complaint in this action is clearly stated in paragraph 21 of their statement of case. It is stated therein as follows:

"21. The Plaintiffs will contend that the said PNDCL 294 is inconsistent with and contravenes articles 20 and 107 of the Constitution for the following reasons:

(1) It involves a compulsory acquisition of the plaintiffs' families without any indication that it was in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit and without clearly stating the necessity for such acquisition or providing reasonable justification for the hardship caused to the plaintiffs' families.

(2) The law does not make provision for the payment of fair and adequate compensation to the Plaintiffs' families since the compensation itself provided in the law was unilaterally imposed and is totally derisory and both inadequate and unfair.

(3) It purports to oust the jurisdiction of the High Court or any other court for the determination of the interest of the Plaintiffs and the amount of compensation or other matters relating to the acquisition.

(4)  It alters the decision or judgments of the superior courts of this country between the parties subject to various suits brought in the courts with regard to the subject-matter of the acquisition.

(5) It operates retrospectively to impose limitations on or adversely affecting the rights and liberties of the plaintiffs' families and imposes liabilities upon them in consequence."

The defendant denies that P.N.D.C.L 294 is inconsistent with articles 20 and 107 of the 1992 Constitution. This is because, according to the defendant in his statement of case, the Constitution "acts prospectively and not retrospectively to affect acquisitions which have taken place months before the coming into force of the Constitution." The defendant also denies that PNDCL 294 does question the validity of any judgment or decision of any superior court in respect of the lands the subject-matter of the acquisition. Indeed, it must be said here that the fact that the law in question provides for the payment of compensation to the plaintiffs' families and nobody else in respect of the lands acquired amply shows a recognition of the title of the plaintiffs' families in the said lands and which title the various judgments mentioned had confirmed. Most importantly, it is the contention of the defendant that

"PNDCL 294 being a legislative act of the Provisional National Defence Council done before the coming into force of the Constitution for the purpose of vesting the Hemang Land in the Republic the courts cannot by virtue of section 34 of the Transitional Provisions go behind the law and question its rationale or wisdom as the jurisdiction of the court is ousted in respect of the said legislative act of the PNDC."

Based on the above arguments, the defendant promptly filed a notice in which he raised some preliminary legal points challenging the jurisdiction of the court to entertain this action. It is submitted in the defendant's written submissions that since PNDCL 294 came into force on the 20th of November, 1992 and so acquired the Hemang Lands on the said date whilst the 1992 Constitution came into force on the 7th of January, 1993, it cannot be said that the said law is inconsistent with the said Constitution. This is because the Constitution acts prospectively and not retroactively. The defendant supports this contention with the Supreme Court decision in the case of Fattal & Anor. Vs. Minister For Internal Affairs & Anor. [1981[ G.L.R. 104. This same decision is cited by the defendant to support another submission, namely, that the provisions of the 1992 Constitution cannot now be invoked to nullify a valid piece of legislation competently passed by the appropriate authority before the commencement of the Constitution. Lastly, the defendant submits that by virtue of sec. 34(3) and (4) of the Transitional Provisions of the 1992 Constitution, the jurisdiction of this court is ousted since the courts are thereby not allowed to question any "executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council . . . .”

In answer to the above submissions, it is conceded on behalf of the plaintiffs that "the constitution, except where it expressly so provides, acts prospectively and not retroactively - or retrospectively." The plaintiffs, however, contend that "PNDCL 294 is a statutory conveyance; nothing more, nothing less." And that because it is a conveyance, it purports to be the legal basis of any assertion of title to the Hemang Lands by the Republic. This law is therefore "operative and can be invoked to support and justify the assertion of title by the Republic to the Hemang Lands for as long as it is on the statute book and has not been repealed or otherwise affected by law of a higher authority such as the Constitution." In the view of the plaintiffs, "the lawful owners of the Hemang Lands immediately before the promulgation of PNDCL 294 can validly continue to be deprived of their title and right to the Hemang Lands so long as PNDCL 294 is operative and in force."

Another argument made by the plaintiffs is that PNDCL 294 being an enactment in force immediately before the coming into force of the 1992 Constitution can only, in accordance with section 36(2) of the Transitional Provision of the Constitution, "continue in force as if enacted under the authority of the Constitution only in so far as it is not inconsistent with the provisions of the Constitution."

In respect of the defendants' invocation of section 34 of the Transitional Provisions of the Constitution the plaintiffs say as follows:

"(38) The first answer to this submission is that in these proceedings it is not the 'action' or 'act' of the PNDC that is being called in question. It is the necessity for an enactment or rule of law in force immediately before the coming into force of the Constitution to be consistent therewith which is being agitated here. It is submitted that whatever else section 34 may succeed in doing it cannot set at nought the provisions of section 36, clause (2) of the same Transitional Provisions.

(39) It is submitted that section 34, clause (3) and section 36, clause (2) of the Transitional Provisions of the Constitution must be read so as to give effect to each section. This would mean that where a legislative act of the PNDC contains provisions which do not conflict with any provisions of the Constitution, effect should be given to it, but not otherwise. It is thus submitted that section 34, clause (3) of the Transitional Provisions of the Constitution should be read subject to section 36, clause (2) thereof."

In conclusion, the plaintiffs submit that PNDCL 294 is inconsistent with both articles 20 and 107 of the Constitution and is subversive of the very fundamental structure of the Constitution and should consequently be declared by this court as null and void and should accordingly be set aside.

It seems to me that only two issues arising from this matter as regards the preliminary legal points raised merit attention and, therefore, resolution. The first issue is whether or not this court can apply the provisions of the 1992 Constitution which came into force on the 7th of January, 1993 to PNDCL 294, which was passed and came into force in 1992, before the Constitution came into force. The second issue is whether in the face of section 34 of the Transitional Provisions of the 1992 Constitution which debars the courts from questioning any “executive, legislative or judicial action of the PNDC . . . .”, this court can entertain the plaintiffs' action which seeks to question PNDCL 294, a legislative act of the PNDC and, indeed seeks to have it set aside. In my view, the issue raised about the capacity or locus standi of the plaintiffs, namely, that since the land in question had been acquired, they no longer had interest in it and so have no locus standi to bring this action, is untenable. This is because the law in question recognised the plaintiffs' families as the owners of the lands in question before the acquisition. If, therefore, they think that their lands were unlawfully taken from them and the law allows them to question the acquisition, who else apart from the owners can take action in such a situation? No doubt, it is the plaintiffs' families. And this is exactly what they have done. The issue, therefore, is not whether the plaintiffs have capacity to question the law, but whether they can, by the Constitution which came later, question the law which had been passed and had taken effect before the constitution came into force.

In respect of the first issue stated above it is not disputed that PNDCL 294 had been passed and it had taken effect before the 1992 Constitution came into force. It is also agreed that the Constitution can only be applied prospectively and not retroactively or retrospectively. What did PNDCL 294 do? This law, at the time it took effect in 1992, vested the plaintiffs' lands in the Republic. In other words, the law acquired the plaintiffs' lands and vested them in the state or the Republic. And this was done before the 1992 Constitution came into force in January, 1993. There is nothing in the law suggesting anything else to be done before the vesting of the lands would be complete. At the time the law came into force in 1992, therefore, the acquisition and vesting of the plaintiffs' lands were complete. The only thing the plaintiffs were to do was to collect the compensation stated in the law. I find it difficult to see how this court can legally use the provisions of the 1992 Constitution to declare that PNDCL 294 is null and void. I cannot see how that can be done. I find unconvincing the argument that PNDCL 294 is a statutory conveyance and so is an existing law which can continue to be in force only if it is not inconsistent with the Constitution as enacted in section 36(2) of the Transitional Provisions of the Constitution.

In a similar situation as this, this court in May, 1981, held in its holdings 3 and 4 in the case of Fattal vs. Minister for Internal Affairs [1981] G.L.R. 104, at 106 as follows:

"(3) .... Indeed article 89(1)[of the 1979 Constitution] prevented Parliament from passing any law which was to operate retrospectively either in intent or content. The Constitution came into force on 24 September 1979 as provided by the Constitution of the Third Republic of Ghana (Promulgation) Decree, 1979 (A.F.R.C.D. 24). Consequently the provisions of the Constitution could not be invoked to nullify S.M.C.D. 172, a valid piece of legislation competently passed by the appropriate authority before the commencement of the Constitution on the ground that it was a legislative judgment when in fact at the time of its enactment there was no legal prohibition against legislative judgments."

"(4) Although S.M.C.D. 172 might appear unjust, unreasonable and even autocratic yet it was not within the province of the Supreme Court to strike it down merely because it was an unjust or unreasonable law. The days when courts of law could embark on such an exercise were over. When S.M.C.D. 172 was enacted there was no Constitution holding the legislative power in leash and no court could have declared S.M.C.D. 172 invalid, null and void. The Supreme Court could nullify an existing law only if at the time it was passed it was invalid or its continued operation conflicted with the Constitution. The court was 'supreme' only within the bounds of the Constitution. The court had not within its environment nuances of supremacy, sovereignty or omnipotence. It could not redress injustices perpetrated by military regimes in the past under Decrees regularly enacted by them. Benham's Case (1610) 8 Co. Rep. 113(b) cited."

The above pronouncements of this court in 1981 in a similar situation as the present sum up my views on the first issue set out earlier in this ruling.

In respect of the second issue which concerns section 34(3) of the Transitional Provisions of the 1992 Constitution, it must be said at once that PNDCL 294 in issue here is clearly caught by the said section 34(3) of the said Transitional Provisions. Section 34(3) of the Transitional Provisions provides that

“ . . . . no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council .... shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act."

It is not disputed that P.N.D.C.L. 294 was a legislative act or action taken by the P.N.D.C. when they were in power. But the plaintiffs in their written submissions contend that "it is not the 'action' or 'act' of the P.N.D.C. that is being called in question." In their view, what is in issue is

“ . . . . . the necessity for an enactment or rule of law in force immediately before the coming into force of the Constitution to be consistent therewith which is being agitated here."

It is their submission that "whatever else section 34 may succeed in doing, it cannot set at nought the provisions of section 36, clause (2) of the same Transitional Provision."

There seems to be no doubt that the plaintiffs' action seeks to question the legislative action of the P.N.D.C. in acquiring by P.N.D.C.L 294, the lands of the plaintiffs' families and vesting the same in the state or the Republic. And they want the court to declare the law null and void and to set it aside. If this is not the questioning of the legislative act of the P.N.D.C., I do not know what else can be. As this court said in a similar situation in the case of Kwakye vs. Attorney General [1981] G.L.R. 944 at 947 and 976, per Archer J.S.C. (as he then was).

"(1) The true meaning of section 15(2) [of the transitional provisions of the 1979 Constitution, which is the same as section 34(3) of the transitional provisions of the 1992 Constitution] appears to be that whenever the court is satisfied that the A.F.R.C. took or purported to have taken an executive, legislative or judicial action, then that court shall not question the validity, the correctness, the fairness or justice of that decision or action. Simply, the court should not interfere."

From the foregoing, I am of the firm view that this court has no power to entertain the plaintiffs' action. The action ought, therefore, to fail.

ATUGUBA, J.S.C.:

The plaintiffs in this action seek to invalidate the Hemang Lands (Acquisition and Compensation) Law, 1992, PNDCL 294 which provides as follows:

“1. Notwithstanding any law or anything to the contrary the lands specified in the schedule to this Law are hereby vested in the Provisional National Defence Council, on behalf of the Republic, free from all encumbrances.

2.(1) There shall be payable to the Ellis and Wood families a final and total compensation in the sum of two hundred million cedis in respect of the said land."

The reliefs sought are:

“1. A declaration that the Hemang Lands (Acquisition and Compensation Law, 1992 (PNDCL 294) is inconsistent with, and in contravention of the Constitution of the Republic of Ghana 1992 specifically articles 20 and 107 thereof and is consequently null and void.

2.  An order setting aside or striking down as null and void, the said PNDCL 294".

The said PNDCL 294 came into force on the 22nd day of October, 1992. The Plaintiffs' claim brings up the question of the nature of the operation of the 1992 Constitution. Article 11(5) of the Constitution provides as follows:

"(5) Subject to the provisions of this Constitution, the existing Law shall not be affected by the coming into force of this Constitution".

Article 36(2) provides, (so far as is relevant) as follows:

"(2) any enactment or rule of law in force immediately before the coming into force of this Constitution shall, in so far as it is not inconsistent with a provision of this Constitution, continue in force as if enacted, issued, or made under the authority of this Constitution".

It is common place that the 1992 Constitution is in this respect (as in several other respects) substantially the same as the previous Constitutions of Ghana, 1969 and 1979.

In AWOONOR-WILLIAMS vrs. GBEDEMAH (1969) 2 G&G 442 C.A. (sitting as the Supreme Court), the defendant contended that N.L.C.D. 129 which took away his right of appeal and N.L.C.D. 354 which provided a machinery for realising confiscated assets, were void inasmuch as they offended against the spirit and letter of article 102 of the Constitution. The court, per Apaloo J.A. (as he then was) for and on behalf of the majority, held at p.444 as follows:

"No Decree which was passed by the National Liberation Council could have been struck down by the courts as unconstitutional. In our opinion, therefore, not only were the two Decrees perfectly valid at the dates of their passage, but so were any acts and steps taken under them, including of course, the findings of the Commissions established under N.L.C.D. 72 and Act 250.

As we read the Constitution, it has no retrospective effect on Decrees passed by the National Liberation Council or on matters lawfully transacted under them. On the contrary, we read section 13(3) of the Transitional Provisions scheduled to the Constitution as wholly validating them. Accordingly, even if we accede to the contention of the defendant that those two Decrees are in conflict with Article 102 of the Constitution, this in no way avails him. The findings of the Jiagge Commission remain as solid as a rock and effectively bar the Defendant from membership of the National Assembly. We illustrate our appreciation of the effect of the Constitution on this aspect of the case by a simple example. Before the Constitution came into force, the Court of final resort in Ghana was the Court of Appeal. Judgments delivered by that Court on or before 22nd August, 1969 were final for all purposes. When the Constitution came into force on 22nd August, one further appellate Court - The Supreme Court – was created which replaced the Court of Appeal as the Court of final resort. Judgments delivered by the Court of Appeal on or after 22nd August, 1969, are appealable in certain specified cases to the Supreme Court but any findings or conclusions reached by the Court of Appeal before 22nd August remain wholly untouched by the Provisions of the Constitution. Thus, a man whose conviction for fraud was affirmed by the Court of Appeal on 21st August, 1969, will suffer the disqualification imposed by Article 72(2)(c) of the Constitution, whereas if his appeal had been disposed of on 23rd August he will be entitled, if his original conviction had been in the High Court, to appeal to the Supreme Court. Accordingly, if the report of the Jiagge Commission had been published after the Constitution came into force, then the validity of NLCD 122 and NLCD 354 would have been of more than academic consequence to the defendant. Being part of the existing law within the meaning of Article 126(1)(d) their validity would have to be considered against the provisions of Article 102. Our view of the matter is that on the facts of this case, the validity or invalidity of NLCD 129 and NLCD 354 is irrelevant to the success or failure of the plaintiffs case" (Emphasis supplied)

The dictum that the Transitional Provisions wholly validated the existing law needed clarification. Accordingly and to reiterate the prospective nature of the Constitution, Apaloo J.A. (as he then was) delivering the majority judgment in BENNEH vrs. THE REPUBLIC (1974) 2 GLR 47 C.A. (Full Bench) stated at p.85 as follows:

"The inviolability of the Decrees to which expression was given, can only relate to the era of the National Liberation Council. It is equally clear, that the acts referred to were acts done during such an era on the authority of those Decrees. There was, during the National Liberation Council regime, no "fundamental law" against which the validity or otherwise of any legislation could be tested. The Constitution which became operative on 22nd August, 1969, was prospective and did not seek to invalidate acts which were done before it came into being. After the coming into force of the Constitution, those Decrees have legislative efficacy only in so far as they harmonize with the provisions of the Constitution.

If they fall foul of it, they go".

Since it is clear that the juridical jurisdiction of the 1992 Constitution runneth as from the 7th day of January, 1993 it will be an excess of application of it to relate it to events anterior to its own existence (save for clear provision or necessary implication to the contrary). Such is the plaintiff's case here.

PNDCL 294 relates to matters concluded by it both in terms of the vesting of the plaintiff's land in the PNDC and as to the quantum of compensation for the same. As these matters do not fall to be done on or after the 7th day of January, 1993, (when the 1992 Constitution came into force) that Law, even if it be regarded as an operative existing law within the meaning of Article 11(5), is incapable of infringing the 1992 Constitution. In my view, the umbilical cord of the provisions of the 1992 Constitution cannot be severed from its natal date, namely the 7th day of January, 1993. That being the operative date of the Constitution it is also the operative date for any motions of consistency or inconsistency with the Constitution. In other words, though I accept the submission of Mr. Peter Ala Adjetey that Article 11(5) relating to the operation of the existing law is subject, (as therein stated) to the provisions of the Constitution, inclusive of Section 36(2) of the First Schedule to the Transitional Provisions, yet the said section 36(2) itself is subject to the principle of prospectivity of statutes. It is clear that the requirements of consistency exacted by the said section 36(2) in respect of "any enactment or rule of law in force immediately before the coming into force of this Constitution" are for the purposes of allowing any such pre-existing "enactment or rule of law" to "continue in force as if enacted, issued, or made under the authority of this Constitution". But "the authority of this Constitution" dates from the 7th day of January, 1993. Therefore the consistency requirements of the said section 36(2) of the Transitional Provisions must relate to consistency with the provisions of the Constitution directing something to be done or not to be done in a certain manner or otherwise governing a state of affairs in any respect, as from the 7th day of January, 1993 and not before that date (except for express provision to the contrary or by necessary implication). In this respect, it is pertinent to note that, in acknowledgment of its own generally prospective nature the provisions of the Constitution are themselves couched in the future tense. It is a settled rule of the construction of statutes that they be construed according to their ordinary grammatical meaning, donec probetur in contrariam, if I may so put it.

The pertinent question therefore is whether P.N.D.C.L. 294 which expropriated the plaintiffs' property requires anything to be done which can affect the period commencing from the 7th day of January, 1993 (when the 1992 Constitution came into force), in a certain manner whereas a provision of the Constitution requires that very thing to be done as from the 7th day of January, 1993, in a different manner? The answer is clearly No.

To test this against one example, I will take the contention of Mr. Peter Ala Adjetey that PNDCL 294 is contrary to article 107 of the Constitution. This prohibits legislative judgments in particular and retrospective legislation generally. Its predecessor is Article 89 of the 1979 Constitution. In construing the latter, in FATTAL vrs. MINISTER for INTERNAL AFFAIRS, (1981) G.L.R. 104 S.C., Archer J.S.C. (as he then was) said at p.117:

"Article 89(1)(a) applies to legislative judgments passed after the commencement of the Constitution, 1979, and not before. Indeed Article 89(1)(b) of the constitution, 1979, prevents Parliament from passing any law which is to operate retrospectively either in intent or content. The Constitution will therefore be expected to practice what it has ordained. It cannot operate retrospectively or retroactively otherwise the constitution will be guilty of what in Scottish legal parlance is referred to as reprobating and approbating. The Constitution came into force on 24th September, 1979 and not a day earlier. This is what the Constitution of the Third Republic of Ghana (Promulgation) Decree, 1979 (AFRCD 24), says and the provisions of the constitution, 1979, cannot now be invoked to nullify a valid piece of legislation competently passed by the appropriate authority before the commencement of the constitution on the ground that it is a legislative judgment when in fact at the time of its enactment there was no legal prohibition against legislative judgments. Lord Coke's well-known canon, Nova constitutio futuries imponere debet, non praeteritis (2 Coke Inst. 292) (A new law ought to regulate what is to follow, not the past) is now firmly entrenched in Article 89(1)(b) of the Constitution 1979, which itself is new law and is also bound by Coke's canon".

This construction of Article 89 of the 1979 Constitution of Ghana, applies, in my view mutatis mutandis to Article 107 of the Constitution of Ghana.

But Mr. Ala Adjetey contends that the Fattal case, supra was wrongly decided in so far as it held that a law (in that case SMCD 172 of 1978) which has accomplished its task becomes spent and non operative, since such a law remains nonetheless on the statute book. I think what was meant by that holding is that such a law no longer requires anything to be done and therefore cannot be in competition with any other law, excepting always any express provision or necessary implication, to the contrary.

I however, do not accept his contention that "if the law sustaining the Republic's title to property which otherwise belongs to someone else is dead or spent or no longer operative, the Republic can no longer legally assert title to the property". As stated by S.Y. Bimpong-Buta in his invaluable book "The Law of Interpretation in Ghana" at page 171:

"The general common law rule is; when an Act is repealed or expires, lapses or otherwise ceases to have effect, it is regarded, in the absence of a contrary provision, as having never existed except as to past and closed matters or transactions. This common law position has been codified in Ghana by the Interpretation Act, 1960, Sections 8 and 9".

As what I have so far said is sufficient to dispose of this matter I do not propose to delve much into the questions raised around the effect of s.34(3) of the Transitional Provisions. It is contended that s.34(3) should be read subject to s.36(2). Even if this is done, having regard to what I have already said in extenso about the prospectivity of the Constitution, PNDCL 294 cannot have any inconsistency with the Constitution. But in my opinion, s.36(2) should rather be read subject to s.34(3). The latter, if it is to have any effect (as far as legislative acts are concerned) must be read as a qualification to s.36(2). Put in another way, s.34(3) is a special provision and therefore the verba generalia of s.36(2) cannot derogate from it. That being so, since s.34(3) itself buttresses the jurisdictional ouster provisions of PNDCL 294 the complaint against its provisions barring access to the courts will be of no consequence.

I therefore agree with my brethren Adjabeng and Bamford-Addo, JJ.S.C. whose judgments I have been privileged to read beforehand, that the preliminary objection succeeds.

The case of KWAKYE VRS. ATTORNEY-GENERAL (1981)GLR 637 S.C. is the locus classicus on such of the transitional provisions involved in this case, s.34(3) being a verbatim reproduction from s.15(2) of the 1979 Constitution). It has been followed in EKWAM vrs. PIANIM (No.2) (1996-1997) S.C. GLR. 120 S.C. despite the criticisms of Amua Sekyi, J.S.C. in N.P.P. vrs. ATTORNEY GENERAL (31st December, case) 8th April, 1994.

In this case Mr. Ala Adjetey has formulated and argued the plaintiff's case with valiant and subtle ingenuity, but I am convinced that in the end the arguments based on the prospectivity of the Constitution and the Transitional Provisions thereof, prevail and therefore I hold that the plaintiff's action is not within the purview of article 2(1) which is prospective and not retrospective.

MS. AKUFFO, J.S.C.:

I also agree

COUNSEL

Mr. Peter Ala Adjetey for Plaintiff.

Mr. Avah, Chief Attorney for the Defendant.

I.W.