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GHANA BAR REPORT 1994 -95 VOL 1

Ghana Bar Association v Attorney-General [1994 – 95]  1 G B R 290 - 354 S C

SUPREME COURT

ABBAN, AMUA-SEKYI, BAMFORD-ADDO, HAYFRON-BENJAMIN, KPEGAH, JJSC

7 FEBRUARY 1995

affecting chieftaincy” is unconstitutional and specifically offends against, is in conflict with, and contravenes articles 137(1) and 140(1) of the Constitution of the Republic of Ghana, 1992 (hereinafter referred to as “ the Constitution”).

(2) A declaration that section 15(1) of the Chieftaincy Act, 1971 (Act 370) which gives to a traditional council “exclusive jurisdiction to hear and determine any cause or matter affecting chieftaincy which arises within it s area, not being one to which the Asantehene or a paramount chief is a party”, is inconsistent with, and a contravention of, article 140(1) of the Constitution and consequently null, void and of no effect whatsoever.”

The capacity in which the plaintiff brings the action is disclosed in the writ in the following words:

“The plaintiff is the only association of lawyers in professional practice in Ghana recognized by the Constitution of the republic of Ghana and by various other statutes of the Republic and is concerned, in furtherance of its aims and objectives, with the defence and maintenance of the Constitution of the Republic of Ghana and the observance of the rule of law in general.” (Emphasis supplied).

Paragraphs 1 and 2 of the statement of plaintiff’s case filed alongside the writ reiterated the plaintiff’s capacity and interest in bringing the action. The defendant in his general reply to the writ denied the plaintiff’s statement of case and contended that the plaintiff has “no locus standi in the action before the court.” Both parties have, through their counsel, filed written legal arguments or submissions in which were set out the issues considered by each as raised by the pleadings for determination. I find the issues set out by plaintiff’s counsel as more appropriate; these are:

“(1) whether or not the plaintiff has locus standi in this action;

(2) whether or not the plaintiff’s writ and statement of case disclose any cause of action against the defendant;

(3) whether or not section 57 of the Courts Act, 1993 (Act 459) is unconstitutional and conflicts with, and contravenes article 137(1) of the Constitution of the Republic of Ghana, 1992;

(4) whether or not section 15(1) of the Chieftaincy Act 1971 (Act 370) is inconsistent with and in contravention of article 140(1) of the Constitution of the Republic of Ghana, 1992 and consequently null, void and of no effect, whatsoever.”

It is trite learning that before a person can successfully invoke the jurisdiction of a court in any cause or matter, he must have what is commonly referred to as capacity, or, in legal terms, locus standi in the cause or matter. I will therefore consider this point first. The defendants based their challenge to the locus standi or capacity of the plaintiff on three grounds one of which is that the plaintiff is not a recognised person in law for the purposes of commencing an action in the Supreme Court under article 2(1). The defendants” objection can best be put in their own words:

“The original jurisdiction of the Supreme Court, in our submission, is derived from articles 2 and 130 and not from article 1 and 3 of the Constitution, 1992. On this basis, for a plaintiff to successfully commence an action before this court the plaintiff must show that he is a legal person within the meaning of article 2(1) or that there is a legal matter as required by article 130 ...... It is our submission that he plaintiff must not only show that he is a person under article 2, he must show further that he has an immediate personal interest in the subject-matter of this suit which is distinct form the interest of the community at large. This is the essence of judicial power and a condition precedent to its exercise.” (Emphasis supplied.)

The basis for the objection is that the Ghana Bar Association is not registered to give it a status of “a legal person within the meaning of article 2” of the Constitution. When the case came up for hearing on 15 November 1994 the learned deputy Attorney-General, Mr Martin Amidu, indicated he would, in the main, rely on the submissions filed on behalf of the defendant but wanted to make a response to a point raised by learned counsel, Mr Peter Adjetey, in his submissions earlier filed on behalf of the plaintiff; however, the court, with consent of the plaintiff, granted him leave to file the note the learned Deputy Attorney-General said he had, and which he said he had shown to Mr Peter Adjetey.

This is what is contained in the notes on the question of locus standi:

“The Ghana Bar Association is invoking article 2 of the Constitution which gives a person the right to bring an action. Article 3 gives to every citizen the right to defend the Constitution. The word person in article 2 is used in its popular sense of a natural or artificial person. It is not referable to group action. See articles 2(1), (3) and (5); 3(2), (3), (5), (6) and (7) and chapters 4 and 6 particularly articles 12(1) and 34(1) respectively. The right for which the Ghana Bar Association is seeking a declaration is one vested in every person of sound mind and capacity. Each individual member of the Ghana Bar Association is presumed to be a person of full age and sound mind and is at liberty in his own right to bring an action under article 2.” (Emphasis is mine).

The plaintiff’s answer to the above argument on locus standi is best summed up in its own words and I quote same:

“It is submitted that under article 2(1) of the Constitution 1992, it is not just every citizen of Ghana who has the right to invoke the original jurisdiction of the Supreme Court for the interpretation or enforcement of the Constitution but every person in Ghana whether a citizen or not. It is submitted that in the terms of the expression “a person” the Ghana Bar Association, at least, as a body registered under NRCD 143, is a person for the purposes of the law and can maintain an action of the nature contemplated by article 2 of the Constitution.”

It does therefore appear that both Mr Peter Adjetey and the learned deputy Attorney-General are ad idem that a legal or artificial person is within the contemplation of article 2(1) when the word “person” comes to be construed. Their point of departure is the legal status of the Ghana Bar Association; whether it has that legal or artificial personality to bring an action under the said article 2(1) or not. Learned counsel for the plaintiff says the plaintiff is registered under the Professional Bodies Registration Decree 1973 (NRCD 143). Although the plaintiff has not produced conclusive proof that it has registered, and continues to be so registered, I will not make capital out of this issue and assume, for the present purposes, that it has been registered and continues to be so registered.

By virtue of paragraph 2 of the Professional Bodies Registration Decree 1973 (NRCD 143) any professional body registered under the Decree shall be deemed to be a body corporate with certain legal attributes. Paragraph 2 provides:

 “2. Any professional body registered under this Decree shall, while it continues to be so registered, be deemed to be a body corporate and-

(a) shall have perpetual succession and a common seal,

(b) may sue or be sued in its own name,

(c) may acquire, hold and dispose of any movable or immovable property,

(d) may enter into any contract or transaction.

As I have said, even though the plaintiff did not say so specifically in its writ, it is clear that the plaintiff is invoking the original jurisdiction of the court under article 2(1) of the constitution, which deals with the enforcement of the constitution.

Article 2(1) states:

“2(1) A person who alleges that

(a) an enactment or any thing contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person

is inconsistent with, or is in contravention of a provision of this constitution, may bring an action in the Supreme Court for a declaration to that effect.”

The constitution in its interpretation section does not define the word “person.” It is a sound statement to say that in law the word “person” includes both the individual (natural person) and what has been termed an artificial or legal person. So Lord Selborne LC reading his opinion in the House of Lords case of Pharmaceutical Society v London and Provincial Supply Association Ltd [1879-80] 5 AC 857, said:

“There can be no question that the word ‘person’ may, and I should be disposed myself to say prima facie does, in a public statute, include a person in law: that is, a corporation, as well as a natural person.”

It is important for my purposes to find out the nature or attributes of the legal person. In this respect I would refer to the work of Salmond on Jurisprudence 8th ed where the author defines the legal person at page 336 as “any subject-matter [other than a human being] to which the law attributes a merely legal or fictitious personality.” The learned author then continues at pages 336-337 thus:

“The law, in creating legal persons, always does so by personifying some real thing¼The thing personified may be termed the corpus of the legal person so created, it is the body into which the law infuses the animus of a fictitious personality ¼But legal personality is not reached until the law recognizes, over and above the associated individuals, a fictitious being which in a manner represents them, but is not identical with them.” (Emphasis mine.)

Reference was made to this in Bilson v Apaloo [1981] GLR 24. So that a company is at law a different person altogether from the individuals who subscribe to its memorandum. The case of Salomon v Salomon [1897] AC 22 is a classic illustration of the attributes of the legal person.

Although Lord Selborne LC expressed the view, and this has already been quoted, that prima facie the word “person” when used in a public statute includes a legal person, I dare say, and I am not necessarily committing myself to it, that this presumption will not be applicable in a written constitution like ours. The first reason is that a written constitution is not “a public statute.” I am even tempted to say that in our constitution the word “person” should, prima facie, be referable to individuals. I say so for the simple reasons that the constitution itself acknowledges that the sovereignty of Ghana resides in the people, and that the powers which the constitution distributes and confers are intended to ensure the welfare of the people. It is my view that in dealing with matters relating to a written constitution which, like ours, regulates the relationship between the people and their rulers distributes powers and rights and imposes obligations, the presumption should rather be that words are used in their popular rather than legal or technical sense: loquitur ut volgus, that is according to common understanding and acceptation of the word.

Be that as it may, the word “person” has come to mean natural person and, speaking technically, artificial person. The sense in which it is used in a legal document must depend on a number of factors, the most important of which is the context in which the word appears. In the search for the meaning which must be attributed to the term “person” as used in article 2(1) of the Constitution 1960, our first port of call for assistance should naturally be the Interpretation Act 1960 (CA 4) where section 32(1) provides:

“’person’ includes a body corporate (whether a corporation aggregate or a corporation sole) and an unincorporated body of persons as well as an individual.”

Before anybody is tempted, in view of the above provision, to declare my projected effort as ill-fated, may I caution that the said section should not be read in isolation, as often appears to be the case, but with section 1 of the Act which provides:

“1 Each provision of this Act applies to every enactment being-

(a)      the Constitution, an Act (including this Act) of the Constituent Assembly or of the Parliament of the Republic of Ghana,

(b)      a legislative measure continued in force by the Constitution,

(c)      an instrument made (directly or indirectly) under any such enactment,

except in so far as the contrary intention appears in the enactment.”

Although the learned Deputy Attorney-General submitted that “the word person in article 2 is used in its popular sense of a natural or artificial person” the matter cannot rest there. There is, and I mean no offence, a misconception here.

The word “person” in its popular sense means only natural person and not an artificial or a legal person. The latter sense is included when the word is used in a technical sense. More importantly, I feel his submission is based on the reading of section 32 of the Interpretation Act 1960 (CA 4) in isolation; a mistake of which many legal practitioners and this court may also be accused. In my humble opinion therefore the matter is still at large. The question therefore remains: in what sense have the framers of our constitution used the word “person” in article 2(1). Has the word been employed in a popular sense or in a technical sense which will include a legal person or corporate body.

This word has been copiously used in our Constitution 1992, and it will not only be a perversion of language but an absurdity as well, if, in all the instances in which the word is used, we construe it to include an artificial or legal person without regard to the context in which it appears simply because the Interpretation Act 1960 (CA 4) says so. And I must here state, with all the emphasis at my disposal, that the word “person” is one of the words the meaning of which must be controlled by the context in which it is used. It is therefore a word in respect of which it is dangerous to make any presumptions; but rather prudent to let the context determine its meaning. For example, if this court grants a declaration under article 2(1) it has the discretion to make an appropriate order for its enforcement; and if “any person or group of persons” to whom the order is directed fails to obey the said order, he would commit the offence of high crime. The penalty upon conviction as prescribed by clause 5 of article 2 is imprisonment and non-eligibility for election, or for appointment to any public office.

Can an artificial or legal person or a corporation be so sanctioned? I pause for an answer. In article 13(1) it is stipulated that “no person shall be deprived of his life intentionally;” and article 14(1) guarantees the liberty of “every person” except in certain circumstances only. One such exception is in article 14(1)(d) where it is provided that “a person suffering from an infectious or contagious disease, ¼[is] of unsound mind ¼[or is] addicted to drugs or alcohol or a vagrant” can be deprived of his liberty for purposes of treatment or the protection of the society. The question again may be asked: can a legal person suffer from any of these disabilities; for example, being addicted to drugs or alcohol? The thing is not only absurd but atrocious as well!

Then in article 21(1) it is provided:

“21(1) All persons shall have the right to

(a) freedom of speech and expression;

(b) freedom of thought, conscience and belief¼

(c) freedom to practice any religion and to manifest such practice;

(d) freedom of assembly¼

(e) freedom of association¼

(f) information¼

(g) freedom of movement which means the right to move freely in Ghana¼”

In article 44(1) it is stipulated that “a person is not qualified to be appointed a member of the Electoral Commission unless he is qualified to be elected as a Member of Parliament.” I would like to bring out one more example only as a way of emphasising my point. Article 63(1) provides that “a person shall not be a candidate in a presidential election unless he is nominated for election as President by a document which:

“(a) is signed by him; and

(b) is signed by not less than two persons who are registered voters resident in the area of authority of each district assembly¼”

If I may again ask a now recurrent question - can it be seriously urged upon us in this court that the word “person,” as used in the examples given above, includes a legal person and so must, regardless of context, be construed as such? The answer definitely is a resounding no, since it will be an atrocious use of language. The context must control the meaning to be attached to the word “person” wherever it is used in a document like a constitution.

I would like to turn the other side of the coin. In article 18 the use of the word “person” could be interpreted to include a legal person and this is so only because the context permits it. I beg to quote:

“18(1) Every person has a right to own property either alone or in association with others.

(2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law ¼“

The framers of the constitution clearly evince an intention to provide for corporate rights as well and it will not be proper to construe the word to mean natural persons only.

In the very first article of chapter 5 on fundamental human rights and freedoms, it is provided in article 12(1) as follows:

“12(1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the courts as provided for in this Constitution.” (My emphasis.)

Instead of “by all natural and legal persons in Ghana” the framers could simply have said “by all persons in Ghana” and achieved the same result. To put it the way they did could not have been an extravagant use of words. I think the distinction in this very first article on human rights and freedoms is deliberate and intended for a purpose.

What I have tried to demonstrate by these examples I have given is the danger and absurdity in always construing, without regard to context, this ambiguous word “person” to include a legal person. The crucial question, therefore, may be asked again: in what sense has the word “person” been used in article 2(1) of the constitution? Is it used in the popular sense (which will mean a natural person only) or in a technical sense (which will include a legal person)? A cardinal principle in interpretation is the ascertainment of the true intentions of the lawgiver in order to give effect to same. The presumption that “person” whenever used in a constitution like ours includes a legal person is, indeed, a very weak presumption to make in my view.

Before proceeding any further, I would like to say that I am not too sure whether this is a propitious note on which to begin a career in this court - that is, to find it necessary and compelling to disagree with my more experienced peers on an important issue which I have no doubt will generate a lot of controversy in legal circles and may cause disturbing seismic ripples. In disagreeing with them, therefore, I do so with a lot of diffidence rather than a claim to superior judicial thinking on the matter. Anybody reading article 2(1) cursorily and aware of section 32 of the Interpretation Act 1960 (CA 4) in which the term “person” is defined, without relating it to section 1 of the Act, will immediately and hurriedly dismiss my views as a legal heresy. This is only to be expected since my opinion runs counter to the view popularly held in legal circles; a view, which in my humble opinion, has been adopted not after a critical examination but based solely on assumption, since the Constitution 1992 came into force, for inexplicable reasons.

I say so because all the cases which came before this court under the corresponding articles 2(1) of the 1969 and 1979 constitutions were initiated by individuals. The word “person” as it occurred in article 2(1) of those constitutions was not presumed to include a legal person; if anything at all, it was rather presumed, and correctly so, to have been used in the popular sense -- that is, meaning a natural person or an individual. Indeed, it is only under the Constitution 1992 that in article 2(1), which is in pari materia similar provisions in the 1969 and 1979 constitutions, it is being taken to have been used in its extended sense so as to include a corporate body or a legal person.

In my humble view, there is absolutely no good legal reason for such a presumption; and, as I have said, it is a weak and legally porous presumption to make. A constitution is not a technical legislation for us to presume that words and phrases, if they have acquired one, are used in a technical sense. I have already pointed out earlier in this judgment the danger and the subsequent absurdity and repugnance inherent in such a presumption. And the need for us to look at the context cannot be over emphasised, especially when the word we are considering is the type which must be allowed to be governed by the environment in which it appears.

The question whether a fictitious or a legal person is within the contemplation of article 2(1) of the constitution has never been asked and answered in the numerous cases which came before this court involving the interpretation and enforcement of the Constitution 1992. The locus standi of the plaintiff in this case has been challenged so I think it is a proper case for us to critically examine article 2(1) and resolve the issue in all its ramifications. While your Lordships may feel obliged, in view of the principle of stare decisis, to follow the previous decisions of this court in which corporate bodies invoked our jurisdiction under article 2(1) of the Constitution 1992, I do not feel constrained to do so in this case for reasons which will soon be apparent in the course of my judgment.

In case it is said that since the learned Deputy Attorney-General has conceded that the word, as used in article 2(1), includes a legal person, the issue may therefore not be considered, I wish to say that I do not think it is prudent to follow the precedent of Hayfron-Benjamin J in People’s Popular Party v Attorney-General [1971] 1 GLR 138. The applicants sought an order to compel the police to grant them permit, submitting that their liberties of association, movement and assembly as enshrined in the Constitution 1969, had been breached. In the course of his judgment the learned judge properly raised the issue of capacity, and after quoting in great detail article 12 which enshrined fundamental freedoms, he said:

“These provisions seem to refer to rights and freedoms of human beings. The Constitution does not define a person, but the Interpretation Act, 1960 (CA 4), does and it includes bodies corporate. I can appreciate a limited liability company having a place of origin, but I cannot see how a disemboweled legal entity can have a race, a colour and above all a sex. It is, however, clear that a limited liability company or a corporation can hold property, and that property is protected from confiscation without compensation under the provisions of this article. The protection such a company enjoys is for the benefit of its members. The People’s Popular Party is a registered political party under the Political Parties Decree 1969 (NLCD 345) and therefore has corporate personality. If the rights of its members are invaded then I think the party has the requisite capacity to make an application for their benefit.”

Even though the proceedings were not initiated under the enforcement provision of the constitution, with that sort of reasoning a good opportunity to critically examine an important issue, whether a registered party or a legal person can enforce the Constitutional rights of its members or third persons was lost. And the reason given as to why he did not find the need to examine the issue is more disappointing. The learned judge declared:

“I am further fortified in my view because the respondent did not take any objection to the application being brought in the name of the People’s Popular Party.”

I am not prepared to adopt this attitude in the highest court of the land and more importantly, in a matter involving the interpretation of the fundamental law as such an attitude will not augur well for the development of our Constitutional law. The general exhortation is that everybody must endeavour to uphold the constitution, and I cannot be seen to be doing this if I shy away from my primary responsibility under the constitution itself. I would rather adopt the approach of Taylor J in Fynn v Republic [1971] 2 GLR 433 where he was considering an application for bail pending an appeal. This is what the learned judge said:

“Mr Amonoo-Monney, counsel for the respondent, has not seen fit to resist the applications¼Indeed counsel¼has stated clearly that he is not opposing the applications¼[T]he fact that the Republic do not oppose the applications means no more than that they are in no position to offer arguments to assist the court against the grant, but there may very well be arguments against the grant which an independent examination by the court may reveal.”

Although I am convinced in the view I take of the meaning of the word “person” as used in article (2)1 of the Constitution 1992, I have not succeeded in completely freeing myself from the underlying feeling that I may possibly have it all wrong and be crucified. I am happy to say that this pervasive feeling has not succeeded in blunting the urge to give a judicial opinion on the matter. Silence or acquiescence in the popular view, in the face of grave doubts, would have been a damnable option since judicial timidity, for whatever reason, is a negation of the judges’ oath of office, which, in some respects, is beautifully summed up in the principle fiat justitia, ruat coelum - Let justice be done, though the heavens fall.

In the House of Lords case of Pharmaceutical Society v London & Provincial Supply Association Ltd which I have already cited, Lord Blackburn gave a very invaluable advice when construing the word “person” in a statute. I wish to remind myself of this advice:

“I know I have no great doubt myself, for instance, that the word “person” may very well include both a natural person, a human being, and an artificial person, a corporation. I think that in an Act of Parliament, unless there be something to the contrary, probably (but that I should not like to pledge myself to) it ought to be held to include both. I have equally no doubt that in common talk, the language of men not speaking technically, a “person” does not include an artificial person;¼Nobody in common talk if he were asked, who is the richest person in London, would answer, The London and North-Western Railway Co. The thing is absurd. It is plain that in common conversation and ordinary speech, ‘person’ would mean a natural person: in technical language it may mean the artificial person; in which way it is used in any particular Act, must depend on the context and subject matter.”

Lord Blackburn continued his exhortations thus:

 “I do not think that the presumption that it [person] does include an artificial person, a corporation, if that is the presumption, is at all a strong one. Circumstances, and indeed circumstances of a slight nature in the context, might shew in which way the word is to be construed in an Act of Parliament, whether it is to have the one meaning or the other. I am quite clear about this, that, whenever you can see that the object of the Act requires that the word “person” shall have the more extended or the unextended sense, then, whichever sense it requires, you should apply the word in that sense, and construe the Act accordingly.”

It will be seen that the Interpretation Act, 1960 (CA 4) is a restatement of this important principle enunciated by the House of Lords in this case.

The Pharmaceutical Society v London and Provincial Supply Association Ltd is a case in which the pharmaceutical society brought an information against the defendant company for violating a law which was enacted to protect the public against the sale of poisonous drugs by incompetent persons. The law stipulates in section 1 that “it shall be unlawful for any person to sell, or keep open shop for retailing, dispensing, or compounding poisons, or to assume or use the title of chemist and druggist, and or pharmacist ¼unless such person shall be a pharmaceutical chemist¼within the meaning of this Act, and be registered under this Act.”

In section 15 thereof it is provided that any person who contravened section 1 of the Act shall be liable to a penalty of £5 to be sued for as provided in the Act. A small group of individuals came together and formed a company under the Companies Act, 1862-1867. Only one of the group, a Mr Longmore, was qualified and registered as a pharmaceutical chemist. His share in the company was small. He was employed, on salary, and did the actual dispensing and sale of the drugs on behalf of the company and for the profit of the company. The pharmaceutical society brought an information against the company in the county court, which held that the corporation was not liable and therefore held the action as not maintainable. On appeal, the Queen’s Bench Division allowed the appeal and ordered judgment to be entered for the Plaintiffs. On further appeal, the Court of Appeal reversed the decision thereby holding that the defendant, a corporation, was within the contemplation of the law since it was a “person” in law. In the House of Lords, the judgment of the Court of Appeal was reversed and it was held that the term “person” referred to natural persons since a corporation lacked the capacity to fulfil certain conditions of the Act.

Another case of importance I would like to refer to is Law Society v United Service Bureau Ltd [1934] 1 KB 343 where the issue involved the construction to be placed on the word “person” as used in section 46 of the Solicitors Act 1932. The section provides that “any person, not having in force a practising certificate, who wilfully pretends to be¼qualified¼to act as a solicitor” shall be liable to a penalty. It was held that the words “any person” in the section did not include a body corporate, such as a limited liability company, and a body corporate could not, therefore, be convicted of an offence under the section. Avery J in the leading judgment said:

 “The question whether the expression “any person” in section 46 of the Solicitors Act, 1932, includes a corporation or a limited company involves the further inquiry, under section 2 of the Interpretation Act 1889, whether there is in the Act anything which would indicate a contrary intention. In my view, the words in section 2 of the Interpretation Act 1889, unless the contrary intention appears, merely embody the principle laid down by the House of Lords in Pharmaceutical Society v London & Provincial Supply Association¼“

His Lordship, after quoting from the speech of Lord Selborne LC continued:

“Applying the principle laid down, it seems to me that section 46 of the Solicitors Act 1932, must be held to contemplate a person who can have in force a practising certificate as a solicitor. By section 43 the possession of such a certificate is an essential condition to the qualification of anyone to act as a solicitor¼It is clear beyond possibility of argument that a corporate body cannot pass the final examination provided for by the Act and, therefore, cannot apply to be admitted as a solicitor.”

Avery J however admitted the force in counsel’s argument that in adopting the construction they placed on “any person,” they would to be giving full effect to considerations based on the mischief which was aimed at by the Act, although he was not in “doubt that a corporate body is capable of willfully pretending to be qualified to act as a solicitor.”

It can therefore be stated by way of a proposition that there is no presumption that an ambiguous word like “person” when used in a constitution includes a legal or artificial person. It seems certain, and this is beyond the possibility of argument, that whether the word “person,” which may include an artificial person, when used in a constitution does in fact include such person, depends on the object and context in which the word in employed.

As Maxwell advises in his book, The Interpretation of Statutes, 12th ed, at page 86:

“However wide in the abstract, general words and phrases are more or less elastic, and admit of restriction or extension to suit the legislation in question. The object or policy of this legislation often affords the answer to problems arising from ambiguities which it contains. For it is a canon of interpretation that all words, if they be general and not precise, are to be restricted to the fitness of the matter, that is, to be construed as particular if the intention be particular.”

In constitutional construction, and it is important to always bear this in mind, the aim is to give effect to the intent of the framers of the constitution. So every word has an effect, and every part must be looked at and given effect. To underscore this canon of interpretation, the Court of Appeal, sitting as the Supreme Court, in Tuffour v Attorney-General [1980] GLR 637 at 648 found it necessary to remind itself of the injunction of St Paul contained in his First Epistle to the Corinthians, Chapter 12, verses 14-20 (King James Version):

“For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing? If the whole were hearing, where were the smelling¼? But now are they many members, yet but one body?”

A preamble may afford a useful guide as to what an enactment intends to achieve and it is, therefore, a legitimate aid in construing the enacting parts of the statute. In Turquand v Board of Trade (1886) 11 AC 286, the Earl of Selborne said at page 286 thus:

“There can be no doubt that in the preamble or in any other part of the Act some purpose or intention is expressed, that should be borne in mind in construing everything which is ambiguous or open to more construction than one.”

I will in this vein start with the preamble of the constitution. A written constitution, they say, has two parts - the spirit and the letter. The preamble is the residence of the spirit or animus of the constitution. It is where the principles propelling and giving sustenance to the constitution, what students of constitutional law may call the “doctrinal underpinning” of the constitution, can be found. It is in the preamble that the people make their commitment to those underlying principles. If a provision is capable of two inconsistent interpretations it is the spirit, which must be a guide, and the interpretation, which accords with it must be adopted.

The preamble is as important as the body or corpus of the constitution itself. It contains the vision of the people and is the dynamic or driving force behind the constitution. If a constitution is really an organic law or a living document then one cannot ignore the spirit that sustains it or gives it life. In construing the constitution, therefore, we must read it together with the preamble which is part of it. And in construing the word “person” we must consider any context, within and without the constitution, in which this particular word, “person” should be read: first the context within the constitution, (such as other articles and clauses) and then the context outside the constitution, the legal context we may call it, to see if there is any cause for limiting or extending the word. Since the preamble in the constitution is clear, it provides not only an unequivocal manifestation of the intent of its framers but also a potent aid to the interpretation of the constitution. So, then, where there is ambiguity in the enacting words, their meaning can be governed by the preamble by either expanding or restricting their meaning.

In Attorney-General v Prince Ernest Augustus of Hanover [1957] 2 WLR  1, Lord Viscount Simonds said:

“My Lords, the contention of the Attorney-General was¼met by the bald general proposition that where the enacting part of a statute is clear and unambiguous, it cannot be cut down by the preamble¼ I wish at the outset to express my dissent from it, if it means that I cannot obtain assistance from the preamble in ascertaining the meaning of the relevant enacting part. For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use “context” in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and any other legitimate means, discern the statute was intended to remedy.”

Although the House of Lords held that in the particular circumstances of the Act under consideration, as a matter of construction of the Act, there was nothing in the Act or its preamble capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions, their Lordships were unanimous that where the preamble is very clear and unambiguous, it is capable of governing ambiguous words in the enacting provisions. Perhaps a more compelling reason for looking at the preamble is section 2 of the Interpretation Act 1960 (CA 4), rather than a mere obeisance to the House of Lords whose decisions are only of persuasive authority in this court.

Coming therefore to the preamble it says:

“IN THE NAME OF THE ALMIGHTY GOD

We the People of Ghana

IN EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity;

IN A SPIRIT of friendship and peace with all peoples of the world;

AND IN SOLEMN declaration and affirmation of our commitment to;

Freedom, Justice, Probity and Accountability;

The Principle that all powers of Government spring from the sovereign Will of the People;

The Principle of Universal Adult Suffrage;

The Rule of Law;

The protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation;

DO HEREBY ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

Stopping here, it is patently clear that those who, in the name of God, solemnly declared and affirmed their commitment to the doctrinal underpinnings of the constitution are “the people of Ghana” the individuals who make up the citizenry. It is because of the people’s solemn commitment, for example, to the principle of “friendship and peace to all peoples of the word” that a foreigner who comes to Ghana will enjoy the full protection of the constitution. I am firmly of the view that it is those who have made a solemn commitment to the constitution who require a mechanism to demonstrate their commitment in case of breach or threatened breach. This reasoning implies the submission that since what has been referred to by Hayfron-Benjamin J as a “disemboweled legal entity” made no such commitment it cannot, prima facie, be within the contemplation of the framers of the constitution when providing the requisite mechanism for the enforcement of the constitution.

Immediately after the preamble, and in the very first article of the constitution the people of Ghana enacted thus:

“1(1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.

(2) 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 supplied.)

Does the language in clause (1) of article 1 suggest that those who used it were thinking of anybody else apart from the people of Ghana; the individuals who constitute the citizenry of Ghana? And when the power of governance which they have entrusted to the government is not being “exercised in the manner and within the limits laid down” in the constitution are they not the persons who prima facie require a machinery to show their commitment, and for compelling the trustees of their power to do the right thing? And where any enactment or law, or any act or omission of any authority is inconsistent with any constitutional provision, are the people not the “persons” who should, prima facie, require the machinery to ask for a declaration to that effect from the Supreme Court which is the organ clothed with judicial power by the constitution itself to make an enforceable declaration?

We do not have to look far before discovering the machinery created by the framers of the constitution to enable the individual to demonstrate his commitment in enforcing the constitution by going to the courts to seek an enforceable declaration. The framers decided to immediately provide the mechanism for the enforcement of the constitution in article 2(1). So that any person among the people of Ghana who feels that the governmental authority is not being “exercised in the manner and within the limits laid down” in the constitution, either by enactment of laws which infringe the constitution, or feels that an act or omission of any person is inconsistent with the constitution, can seek a declaration to that effect. (Emphasis mine.)

For further emphasis I will quote the whole of article 2:

“2(1) A person who alleges that -

(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

 (2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.

(3) Any person or group of persons to whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.

(4) Failure to obey or carry out the terms of an order or direction made or given under clause (2) of this article constitutes a high crime under this Constitution and shall, in the case of the President or the Vice-President, constitute a ground for removal from office under this Constitution.

(5) A person convicted of a high crime under clause (4) of this article shall-

(a) be liable to imprisonment not exceeding ten years without the option of a fine; and

(b) not be eligible for election, or for appointment, to any public office for ten years beginning with the date of the expiration of the term of imprisonment.”

Is there any circumstance, what Lord Blackburn called a “circumstance of a slight nature,” within article 2(1), or the preamble or other clauses of Article 2 or the whole of Chapter 1, that is, article 3 inclusive, to indicate the sense in which this rather nebulous and general word “person” is used in article 2(1)?

We again start by reminding ourselves of the time-honoured canon of constitutional construction which gives effect to the intention of the framers of the constitution; every word, therefore, has a purpose and must be given effect. In his speech in the House of Lords in Barnard v Gorman [1941] AC 378 at 384, Viscount Simmons LC said of the task of construing an enactment:

“Our duty is to take the words as they stand and to give them their true construction, having regard to the language of the whole section, and , as far as relevant, of the whole Act, always preferring the natural meaning of the word involved, but nonetheless always giving the word its appropriate construction according to the context.” (Emphasis mine.)

This implies the submission, and this is a proposition with which all lawyers are familiar, that since in statutory language individual words are not to be read and considered in isolation, but may have their meaning determined by other words in the section in which the words occur, or by the preamble, it is therefore necessary that we examine the whole of article 2 and other parts of the constitution (especially the preamble and article 3) to determine their import and see what limitation they impose on the word “person.” or must be imposed on that word. And I would like to repeat, by way of emphasis, that such an exercise is particularly important and necessary here since we are trying to construe a general word which, by its nature, is vague and ambiguous. If this exercise is undertaken, it will be seen that the preamble of the constitution, article 3 and other clauses of article 2 are perfectly in control of article 2(1) and “person” as used in that clause can only refer to individuals (natural persons), and that legal persons are not within its contemplation.

My Lords, if we look at the whole of article 2, and we are entitled to do so, there is no place where it appears to me necessary to contort the word “person” into the wider sense to include a legal person or corporate body. For example, if “a person¼alleges that¼any act or omission of any person is inconsistent with, or is in contravention of a provision” of the constitution and a declaration is made against the “person” whose act or omission is called into question, and he disobeys an order directed to him under clause 2 of article 2 which order or direction is intended to secure the declaration, could he, if he should happen to be a corporate body, suffer imprisonment or be ineligible for public appointment as provided in clause 5 of article 2?

The answer is obvious and any contrary answer will not only be preposterous and unprecedented by its repugnance, but also a mutilation of language. Specifically, can the plaintiff, the Ghana Bar Association, suffer any of these penalties if it were a “person” whose “act or omission” is alleged under article 2(1)(b) to have infringed the constitution and it were disposed to disobey an order directed to it under article 2(2) to enforce a declaration so made? And, I will personally not consider as serious a legal submission or contention that its officers can be so attached to suffer the penalties specified in Article 2(5). For example, if the plaintiff should resolve that lawyers of a certain ethnic origin shall not be admitted as members of the association, this will be an act which will be inconsistent with, or in contravention of a provision of the constitution; namely, article 17(2). The plaintiffs should be proceeded against by those affected under article 33(1) rather than article 2(1) of the constitution.

The words “any person or group of persons” as appears in clause 3 of article 2 cannot by any stretch of language be construed to include a corporate or a legal person. It is rather a clear manifestation of an intent that only individuals (natural persons) that are contemplated by the framers. In my opinion, therefore, it accords more with common sense and proper use of language to say it means a number of individuals or people: but to put it that way may be an inelegant use of language in drafting the constitution.

If clause 5 of article 2 has a limiting or restricting influence over the word “person” as it is used in clauses (1)(b), 3 and 5 itself because a corporate body cannot suffer any of the penalties prescribed by the said clause 5, I am puzzled why clause 5 should not similarly be held to restrict the meaning of “person” in clause (1). Article 2, as we have seen, has five clauses as a whole. It is only in clauses (2) and (4) that the word “person” does not specifically occur. So in clause (1) “a person who alleges that¼any act or omission of any person” is inconsistent with, or is in contravention of a provision of the constitution can have such act or omission questioned in this court; and in clause 3 “any person or group of persons” to whom an order or direction is addressed under clause 2 is under a duty to obey; clause 4 creates the offence of high crime for disobedience; and clause 5 stipulates the penalty for “a person convicted of high crime under clause 4” that person will suffer imprisonment for a period not exceeding ten years, and will not be eligible for election, or for appointment, to any public office. I do not think it will be proper to permit clause 5 to control and restrict the word “person” in all the clauses except clause (1) “a person who alleges” especially as the qualification or restriction is of the same nature. Such a construction will clearly be subversive of the fundamental rule of interpretation that general words must not be read in isolation but the whole section must be read so that construction is made of the parts together, and not of one party only by itself. (My emphasis.)

So in Blackwood v R (1882) 8 AC 87, Lord Hobhouse said:

“Their Lordships conceive that one of the safest guides to the construction of sweeping general words, which it is difficult to apply in their full literal sense, is to examine other words of like import in the same instrument, and to see what limitation must be imposed on them. If it is found that a number of such expressions have to be subjected to limitations or qualifications, and that such limitations or qualifications are of the same nature, that forms a strong argument for subjecting the expression in dispute to a like limitation or qualification.”

My Lords, it is exactly that method of construction which, in my humble view, is applicable in the instant case and which we must apply in construing the word “person” as used in article 2(1).

I am therefore distinctly and very much of the view that there is nothing within the context of article 2 to encourage me to construe the word “person” in the extended sense to include a body corporate or a legal person. I think that it is a sounder construction to hold, in view of the governing and official role of the preamble and other clauses of article 2, and article 3 (which I will soon consider) that only individuals (natural persons) are within the contemplation of article 2(1) of the constitution.

I find it rather incongruous that a law, which does not permit a person to be sue as a defendant will, nevertheless, allow the said person to sue as plaintiff. I have always thought the principle to be that if a person cannot for any reason be a defendant, he cannot, ipso facto, be a plaintiff; or vice versa. For a person who is capable of being a plaintiff must be capable of being a defendant in a possible counterclaim. It is a contradiction in terms to assert that a person is capable of initiating an action in court but not capable of defending one when initiated against him.

We can say the same for the whole of article 3 where the words variously used are “a person,” “any person,” “any class of persons,” and “any person or group of persons.” I will now turn my attention to article 3 which is in the same Chapter 1.

Article 3(1) provides that “parliament shall have no power to enact a law establishing a one-party state.” And in clause 2 it is provided thus:

“(2) Any activity of a person or group of persons which suppresses or seeks to suppress the lawful political activity of any other persons or any class of persons, or persons generally is unlawful.”

Clearly, the language employed in clause 2 does not show any intention to include legal persons or corporate bodies. If any such intentions were present, the framers would have made the same distinction employed in article 12(1). And clause 3 of article 3 stipulates:

 “(3) Any person who-

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.”

Stopping here, it appears to me crystal clear that a restriction or limitation must be imposed on the words “any person” for a legal person or body corporate is not only incapable of a violent overthrow of the constitution, but also incapable of being convicted of high treason and suffer the prescribed penalty of death.

And clause 4 of article 3 obligates every citizen, at all times to defend the constitution, and in particular, “to resist any persons or group of persons seeking to commit any of the acts referred to in clause (3),” and do everything in their power to restore the constitution. So that “any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this constitution” as referred to in clause 3 of this article, commits no offence. See clause 5 of article 3. I am not sure whether a corporate body has the capability to resist or suppress the overthrow, suspension etc of the constitution. In my humble opinion, to say that a corporate body is capable of resisting or suppressing an insurrection will be stretching language to clearly absurd and unacceptable limits.

In the now familiar case of Pharmaceutical Society v London and Provincial Supply Association Ltd supra, Lord Selborne, the Lord Chancellor, said at page 862:

“I think the principle laid down by the junior counsel for the Respondents was substantially right; that if a statute provides that no person shall do a particular act except on a particular condition, it is prima facie, natural and reasonable (unless there is something in the context or in the manifest object of the statute, or in the nature of the subject-matter, to exclude that construction) to understand the legislature as intending such persons, as, by the use of proper means, may be able to fulfil the condition; and not those who, though called “person” in law, have no capacity to do so at any time, by any means, or under any circumstances, whatsoever. (Emphasis supplied.)

So in Rolloswin Investment v Chromolit Portugal Cutelarias e Produtos Metalicos SARL [1973] 1 WLR 912 both parties, limited liability companies, entered into a contract for the sale of goods on a Sunday, and the question arose whether the contract was unenforceable by reason of section 1 of the Sunday Observance Act 1677; the contract was held to be enforceable and that the word “person” excluded a legal person since such an entity was incapable of public worship. Moccatta J said:

“In my judgment, it is clear from reading the statute that the contrary intention does appear. A limited company is incapable of public worship or repairing to a church or exercising itself in the duties of piety and true religion, either publicly or privately, on any day of the week.”

If my views, which I have already stated, are sound, it will appear that the whole of Chapter 1 of the constitution which comprises articles 1, 2 and 3 does not contemplate the involvement of, or any role for, legal persons or corporate bodies but individuals or natural persons. The simple reason is that, not having made any commitment to the constitution in the preamble, the mechanism created for those who have declared their solemn commitment to the principles underpinning the constitution to safe-guard and enforce it, cannot be available to corporate bodies or legal persons and they do not have any obligation to defend the constitution either. In fact they are incapable of resisting any violent overthrow of the constitution.

The doubts I am expressing now had earlier been expressed by Taylor JSC in his dissenting judgment in Bilson v Apaloo [1981] GLR 24. This is what he said:

“It is difficult to imagine how the Court of Appeal can go to prison and suffer the penalty prescribed by the Constitution. The Court of Appeal is to be ineligible for elections or appointment to public office. This is so preposterous and so extravagant a result as to be a clear indication that the Court of Appeal is not a person within the language of article 2(1) to be made a defendant in a suit under the said article¼It is also difficult to imagine the Court of Appeal bringing an action as a plaintiff for a declaration, but as this matter does not arise here, it is not necessary to make any pronouncement.” (Emphasis supplied).

I am sure, as night follows day, that if Taylor JSC had been pressed for an opinion, he would have answered the question firmly in favour of the views I am now espousing. I am fortified in my view by the declared intentions of the framers of the constitution themselves.

And, my Lords, it is their avowed intentions, which in construing or interpreting the constitution, we are under oath to give effect to. My source is the Memorandum on the Proposals for a constitution for Ghana, 1988. My authority for relying on the memorandum as an external aid in the construction of article 2(1) of the constitution is section 19(1) of the Interpretation Act 1960 (CA 4).

The Committee on State Policy, through its Chairman, presented on 26 November 1991 its Report on the Supremacy of the constitution, its Enforcement and Defence and the Legal Formulations to the Consultative Assembly. The Committee’s report read in part:

“The Committee made references to the following documents:

(i) The 1979 Constitution - Chapter 1, articles 1, 2 and 3;

(ii)  The Constitution 1969 - Chapter 1, articles 1, 2 and 3;

(iii) Proposals of the Committee of Experts - Chapter 13 appendix L.

The Committee found no substantial difference between the provisions of the constitutions of 1969 and 1979 dealing with the Supremacy of the Constitution, its Enforcement and its Defence. The Committee accordingly made use of the provisions of both constitutions as and when appropriate.”

In article 2(1) of the Constitution 1969 the machinery for the enforcement of the said constitution is provided thus:

“2(1) Any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, any provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect.”

And in the 1979 Constitution the same mechanism is provided for in these words:

“2(1) A person who alleges-

(a) that an enactment or anything contained in or done under the authority of that or any other enactment, or

(b)   that any act or omission of any person,

is inconsistent with, or is in contravention of, a provision of this constitution, may at any time bring an action in the Supreme Court for a declaration to that effect.”

The only difference between the provisions in the 1979 Constitution and that of article 2(1) in the Constitution 1992 is the deletion of the words “any time” from the 1992 version. Considering the language used in article 2(1) in the three constitutions, I think it is legitimate that the memorandum on article 2(1) of the Constitution 1969 and that on the 1979 Constitution are still relevant in the interpretation or construction of articles 1, 2 and 3 of the Constitution 1992. And if neither reason nor logic can be held to have so informed me, at least the authorities are on my side.

In his invaluable work on The Interpretation of Statutes, 12th edition, Maxwell points out at page 64-66 that a previous legislation may be relevant to the interpretation of later statutes in two ways; firstly, the course which a legislation on a particular point has followed often provides an indication as to how the Act at present in force should be interpreted. The second circumstance in which a previous legislation may be relevant is a situation where light may be thrown on the meaning of a phrase in a statute by reference to a specific phrase in an earlier statute dealing with the same subject matter. The learned author then referred to in R v Loxdale (1758) 1 Burr 445 where Lord Mansfield CJ stated the rules as to the exposition of one Act by the language of another thus:

“Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other.”

This should apply with equal force to article 2 of our Constitution 1992 the memorandum which adopts the reasoning in the memorandum of a previous constitution on the point. The memorandum to the previous constitution should still be relevant in the construction of the new constitution. I will let the Memorandum on the 1979 Constitution speak for itself on the enforcement of the constitution.

The true intentions of the framers can be gathered from paragraphs 85 to 88 of the Memorandum.

“85 A constitution by itself can do very little for a people; hence the desirability that it must contain the provisions that make it possible for the individual to seek the protection of the courts any time he thinks or has reason to think that certain powers, by whatever authority they are being exercised, are either in excess of the powers conferred upon that authority by the constitution or that they are inconsistent with any provision of the constitution.

86 We are faced, in considering this, with two possibilities. First there is a state of affairs in which the constitution being the supreme law would make any law, inconsistent with it, ipso, facto null and void to the extent of the inconsistency. This will involve a situation in which the rights of the individual may be tampered with.

87 The second consideration is that there should be a machinery which makes it possible for individuals to seek to stem an injury that is threatened. We have observed in paragraph 70 that the constitution should provide the mode and institutions through which power should be exercised. If rules of conduct or procedure are laid down they are intended to be obeyed.

88 Our proposal that the constitution should be the supreme law of Ghana carries with it the suggestion that any action contrary to the rules laid down would carry with it not only illegality, but also impropriety, arbitrariness, dictatorship, that is to say, the breaking of the fundamental law of the land.” (Emphasis mine.)

The memorandum on the enforcement of the constitution then concludes:

“It is for these considerations that we propose that provision should be made allowing any person who fears a threatened infringement or alleges an infringement of any provision of the constitution to seek redress in the court. And the courts should have the necessary power to make a declaration, enforceable, of the remedy sought.”

And in the memorandum to the Constitution 1979, the Constitutional Commission said on the Enforcement of the constitution in paragraph 60:

“60 We have been impressed and persuaded by the force of the argumentation adduced by the 1968 Commission in support of the proposal that any person who alleges an infringement of any provision of the constitution should be entitled to seek redress in the courts. We have therefore, recommended the retention of the provision to that effect, together with the necessarily complementary provision empowering the Supreme Court to make enforceable declarations and to give orders or directions granting the remedy sought, or the appropriate remedy as the case may be.” (Emphasis supplied).

It has been pointed out elsewhere in this judgment that article 2(1) of the Constitution 1979 is in pari materia article 2(1) of the Constitution 1992. This is why I concluded that the Memorandum on the Constitution 1969 is still relevant in the construction of article 2(1) of the Constitution 1992.

Article 2 of the Constitution 1969 contained only clauses 1 and 2 which are repeated in the 1979 and 1992 constitutions. Clauses 3, 4 and 5 where added to the Constitution 1979 as complementary provisions to make enforceable the declarations of the Supreme Court and make it costly for any person to flout the same.

After a historical analysis and identifying the mischief they intended to guard against in the proposed constitution, the commission concluded:

“We have, accordingly recommended a provision stating expressly that failure to obey or carry out the terms of a declaration, order or direction of the Supreme Court for the enforcement of a provision of the constitution shall constitute a “high crime” and be punished in accordance with the provisions of the constitution. We have further provided that any declaration, order or direction of the Supreme Court may be addressed to any authority whether civil, military or otherwise, and that any such authority shall be legally obliged to obey and carry out the terms of the order. This is to make plain to all that the Supreme Court has the power to enforce the decisions and orders which it makes in accordance with the function entrusted to it by the constitution. In order further to buttress this objective and make the power even more palpable and of more immediate import to those who may wish or be tempted to question it, we have included a provision which empowers and requires the Supreme Court to punish by imprisonment any person who flouts the authority of the court. Furthermore, any such person or group becomes automatically subject to a constitutional disability: he becomes ineligible for election or appointment to public office for a period of at least ten years. Nor should it be forgotten that for the very high officers of State, failure to comply with any such declaration, order or direction of the Supreme Court would amount to, among other things, a wilful violation of the Constitution and their oath of office. For a President or a Vice-President this would constitute a prime ground for removal from office in accordance with the procedure provided for in the appropriate provisions of the Constitution.”

This is the rationale or intent behind clauses 3, 4 and 5 of the Constitution 1979, which are in pari materia article 2(3), (4) and (5) of the Constitution 1992 but absent from the Constitution 1969.

My Lords, if my reasoning that the Memorandum on the Constitution 1969 is still relevant in the interpretation of article 2(1) of the Constitution 1979 and article 2(1) of the Constitution 1992, and I say so without any fear of contradiction, it does then appear, does it not, that article 2(1) of the present constitution is not only the mechanism intended to enable the people of Ghana (ie the individuals) demonstrate their avowed commitment to the constitution but also the “machinery which makes it possible for individuals to seek to stem an injury that is threatened.”

Also, article 2(1) is the machinery which makes “it possible for the individual to seek protection of the courts any time he thinks or has reason to think that certain powers, by whatever authority they are being exercised, are either in excess of the powers conferred upon that authority by the constitution or that they are inconsistent with any provision of the constitution.”

The said article 2(1) is also available where any law is inconsistent with the constitution, and ipso facto, null and void to the extent of the inconsistency. This, as has been pointed out in the words of the framers of the constitution, “will involve a situation in which the rights of the individual may be tampered with.”

We whose sworn duty it is to interpret article 2(1) cannot construe the word “person” in an extended sense to include a corporate body or a legal person, when the framers of the constitution have clearly and unequivocally declared their intention that by the use of the word “person” they have only the individual in mind in framing article 2(1). I am bound by my oath to give it that construction.

It may be feared that the construction I have placed on article 2(1) will deprive companies or corporations of constitutional protection against confiscation of their properties without compensation, or with inadequate compensation. I have not so decided and must not be taken to have so decided. In short, that is not my ratio decidendi. I have no doubt in my mind a corporation or company which owns property enjoys constitutional protection against confiscation without compensation.

In the unlikely event that such a thing happens in present day Ghana which needs private participation, both local and foreign, for the full realisation of the economic recovery programme, there are adequate safeguards in the constitution.

The circumstances under which one can invoke the exclusive original jurisdiction of the Supreme Court have been considered in a motion in Gbedemah v Awoonor-Williams (1969) 2 G&G 438, SC.

In the subsequent case of Tait v Ghana Airways Corporation (1970) G&G 527, the Court of Appeal sitting as the Supreme Court cited with approval the dictum in Gbedemah v Awoonor-Williams. Tait v Ghana Airways Corporation supra was a case in which plaintiff sought a “declaration that his dismissal from the employment of the defendant corporation, communicated to the plaintiff by letter dated 29/5/70 purporting to be signed by the Managing Director of the defendant corporation, is wrongful and invalid under the Constitution 1969, in particular articles 138 and 140 thereof.”

On a preliminary objection whether the plaintiff’s action fell within the purview of article 106 of the constitution or not the court held that having regard to the pleading and issues filed in the action, the plaintiff’s action was essentially one for wrongful dismissal and neither interpretation nor enforcement was involved and dismissed the action. A strong court, Akufo-Addo CJ, Apaloo, Siriboe, Anin and Archer JJA said per Anin JA:

“In its ruling in the motion entitled Gbedemah v Awoonor-Williams¼this court observed that:

‘¼for a plaintiff to be able to invoke the original and exclusive jurisdiction of the Supreme Court his writ of summons and/or statement of claim must prima facie raise an issue relating to:

 (1) the enforcement of a provision of the constitution; or

(2) the interpretation of a provision of the constitution; or

(3) a question whether an enactment was made ultra vires Parliament, or any other authority or person by law or under the constitution.’

We adopt this test which we regard as an accurate summary of the original jurisdiction of this court as contained in article 106(1)(a) and (b) of the Constitution. The crux of the matter is whether the plaintiff’s action raises any issue of either interpretation or enforcement of any provisions of the Constitution. From the pleadings and issues settled in this case, we hold that no issue of interpretation is herein raised for determination.”

The court concluded:

“Admittedly, it raises one or two incidental constitutional issues; but that fact, without more, does not turn the action into one for interpretation or enforcement or both within the meaning and intendment of article 106(1)(a). It is an action for wrongful dismissal¼Since our original jurisdiction is limited to article 106, we are driven to the conclusion that this court is not seised with jurisdiction to try this suit as a court of first instance.”

Unless a person can bring his case within the situations indicated in Gbedemah v Awoonor-William as approved in Tait v Ghana Airways Corporation, the original jurisdiction of this court cannot be invoked. There are other constitutional arrangements for an aggrieved person to call upon another court to intervene before the matter travels to us by way of appeal. The original jurisdiction is a special and exclusive jurisdiction which can be invoked in the circumstances indicated already.

At this stage I will have to revert to a point earlier raised but not considered in detail. I must say that the constitution has in detail guaranteed individual and, where necessary, corporate rights. For example, a company’s right to own property which cannot be confiscated or acquired without adequate compensation is guaranteed by the constitution.

The question may be asked: if a company’s right to own property is violated, how can it enforce that right? It is necessary to maintain the distinction between a suit to enforce the constitution and one which is intended to enforce a personal or proprietary right which has been breached. While the former action can be brought by invoking the original jurisdiction of the Supreme Court, the later is enforceable in the High Court. It is therefore provided in article 33 as follows:

 “33(1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.” (Emphasis supplied).

This provision is buttressed by article 140(2) which provides:

“(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and freedoms guaranteed by this Constitution.”

Apart from this is article 20 which comes under the chapter on human rights and stipulates that the acquisition of a property by the State shall only be made under a law which makes provision for the prompt payment of fair and adequate compensation and a right of access to the High Court. The cumulative effect of these provisions is a substantial protection for a company. But if Parliament should enact an act that all private companies are confiscated to the State, then, of course, it becomes actio popularis - the citizen’s action - and any one of us (people of Ghana) can bring an action under article 2(1) to challenge the Constitutionality of the Act. And, if Parliament should pass a law that all residents of one Region need a permit to travel to another Region of Ghana, it is again general and becomes actio popularis and any individual can initiate an action in this court.

And where, for example, Parliament enacts a law establishing a one-party state, an act specifically prohibited by the constitution, then again it is actio popularis and any one of us can bring an action for a declaration that Parliament is acting outside its powers since the concept of the supremacy of Parliament is alien to our constitution. But where the liberty of Mr Agbodze Krah Mensah is specifically breached by being detained for, shall we say, six months without charge, then he must call upon the High Court to intervene on his behalf. He does not come here directly for a declaration. This is because a specific right of his has been breached and for every right there is a remedy. in the example I have given, since a specific right has been breached - liberty of Mr Agbodze Krah Mensah - he must ask for a specific remedy and not ask for a declaration. Because under the common law, a declaratory judgment merely decides the rights of parties in a given situation and orders nothing. It is often said that a declaratory judgment is a particularly valuable remedy for the settlement of disputes before they escalate and reach a point where a person’s right is breached. The essence then, at least in the common law, of such a judgment is that it only states the rights of the parties, or their legal positions, as they stand without making any orders or giving any directions. It is true that under article 2 enforceable declarations can be made. But the important thing is that in cases where a specific right or a person is alleged to have been infringed “in relation to him” as provided in article 33(1), one does not normally go for a declaration but a specific remedy which will address the infringement or breach directly. In my view, article 2(1) is not for the enforcement of rights - whether individual or corporate rights. This is the ratio decidendi in Tait v Ghana Airways Corporation supra. So in People’s Popular Party v Attorney-General supra when the party alleged its rights under the constitution were breached it rightly went to the High Court to seek a redress or remedy.

My Lords, some anxiety may be expressed in certain circles as to what implications the interpretation of the word “person” in article 2(1) may have for some decisions earlier given by this court.

I am happy to say that I will here also follow the approach of Taylor JSC, a judge with an insoluble legal reputation, who once sat in this court. This approach was advocated by him in his dissenting judgment in Bilson v Apaloo (supra).

He said at page 91:

“Perhaps the examination of the proper approach adopted in other jurisdictions which I have conducted may be helpful. The examination does show that if a precedent is set which is clearly legally wrong, the proper thing to do is to overrule it.”

After referring to a number of cases some as old as 95 and 200 years, which both the American Supreme Court and the British House of Lords over-turned, he continued:

“The instances can be multiplied. The Privy Council has also on occasions done the same thing. Our alleged decisions are less than twelve years old. They were decided between 1969 and 1971 only. They flouted the Constitution, 1969; they dare not defy our present constitution. In fact, since they have no ratio decidendi at all they have no claim to precedent and therefore they must be overruled in the respectful traditions of the U.S. Supreme Court and the British House of Lords as cases decided per incuriam for lack of jurisdiction.”

So long as those decisions remain and, in my humble view, we refuse to overrule them, they will forever remain as monuments to a false start in our sacred duty as interpreters of our fundamental law. After all, article 129(3) of the constitution permits us, for good reasons, to depart from those decisions.

In view of all that I have said I will dismiss the action of the plaintiff in limine for want of capacity in the plaintiff. There is no need for me to go to the merits of the claim. In any case, my views will not be different from those expressed in R v High Court, Koforidua, ex parte Nyame 20 December 1994, SC.

Action dismissed.

S Kwami Tetteh, Legal Practitioner