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Constitutional law - Supreme
Court - Misjoinder - Invoking
the original jurisdiction –
Interpretation - Creation of
District Assemblies - article
88(1) and (5) – 1992
Constitution – Whether or not
the Attorney-General was never
intended to act as legal counsel
for the other two organs of
State namely the Legislature and
the Judiciary as well as
independent State institutions –
HEADNOTES
The plaintiff
caused a writ to be issued
against the defendants on the 6th
February 2012, with the required
Statement of Case, invoking the
original jurisdiction of this
Court. Counsel for the 1st,
2nd and 4th
defendants then filed, on 24th
February 2012, a motion for
extension of time within which
to file an answer to the
plaintiff’s Statement of Case.
During the hearing of that
motion, this Court raised the
issue of the scope of article
88(5) and its impact on who may
be made a party in suits against
the State or the Republic.
Counsel on both sides were then
directed to file written
submissions on the issue for the
consideration of this Court.
HELD
All the
constitutionally established
independent bodies like the
Commission on Human Rights and
Administrative Justice, The
Electoral Commission, etc can
sue and be sued on their own
relating to their functions per
counsel of their choice.
Any person affected
by an action involving the State
can upon application be joined
to such action, to protect his
or its interest. With regard to
the Judiciary and the
Legislature, where their
position on an issue is in
conflict with that of the
Attorney-General they may
proceed on their own by counsel
of their choice. However, any of
these bodies referred to may
access the services of the
Attorney-General if they so
choose.
In the present case
however there is nothing to show
that Parliament and the
Attorney-General have
conflicting positions as to this
action. The Minister of Local
Government is manifestly a wrong
party to this action.
Accordingly, Parliament and the
Minister of Local Government are
struck out from this writ.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Local
Government Act, 1993 (Act 462)
CASES
REFERRED TO IN JUDGMENT
Republic v.
High Court, Accra; Ex parte
Attorney-General (Delta Foods
Ltd, Interested Party) (1998-99)
SCGLR 595
Ex parte
Attorney-General, Namibia: Re
Constitutional Relations between
the Attorney-General and the
Prosecutor-General (1995) LRC
507
Tuffour v.
Attorney-General (1980) GLR 634
C.A.
R v. Therens
[1985] 1 SCR 613
Head of State
(1989) LRC 671 S.C
Nartey v.
Attorney-General & Justice Adade
[1996-97] SCGLR 63
J.H. Mensah
v. Attorney-General (1996-97)
SCGLR 220
Commission on
Human Rights & Administrative
Justice v. Attorney-General
(No.1) (1998-99) SCGLR 871
Attorney-General v. Commission
on Human Rights and
Administrative Justice (No. 2)
(1998-99) SCGLR 894
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
NENE
AMEGATCHER [WITH HIM MRS.
VICTORIA BATH, DOMINIC BRENYA
OTCHERE, KWASI KELI DELATA AND
MELLESA AMARTEIFIO] FOR THE
PLAINTIFF/APPLICANT.
SYLVESTER
WILLIAMS FOR 1ST 2ND
AND 3RD
DEFENDANTS/RESPONDENT.
JAMES QUASHIE
– IDUN [WITH HIM ANTHONY DABI]
FOR THE 3RD
DEFENDANT.
R U L I N G
__________________________________________________________________________________
ATUGUBA,
J.S.C:
On 6/2/2012
the plaintiff issued a writ
invoking
the original jurisdiction of
this court claiming in effect
that the newly
created
District Assemblies are unconstitutional.
On 29/2/2012
the question arose as to whether
having regard to the provisions
of
article 88(1) and (5) the
Speaker of Parliament and the
Minister of Local Government
have been properly joined to
this action.
Article 88(1)
and (5) are as follows:
“ 88. (1)
There shall be an
Attorney-General of Ghana who
shall be a Minister of State and
the principal legal adviser to
the Government.
(5) The Attorney-General shall
be responsible for the
institution and conduct of all
civil cases on behalf of the
State; and all civil proceedings
against the State shall be
instituted against the
Attorney-General as defendant.”
(e.s.)
The
contentions of Mr. Nene
Amegatcher are varied but the
main thrust of them is his
contention that
“...
the
Attorney-General was never
intended to act as legal counsel
for the other two organs of
State namely the Legislature and
the Judiciary as well as
independent State institutions.
This is because our
constitutional scheme clearly
envisages situations where the
interests of these
constitutional organs can be
antithetical to each other
resulting in controversies that
implicate serious questions of
balances of power. It is
inequitable, or even immoral in
such situations for the
Attorney-General to be legal
adviser for the executive branch
and other organs of State.” (e.s.)
The main
stance of the Attorney-General
on the other hand is that
article 88(5) is clear and
unambiguous and must be given
its full effect.
We are of the
opinion that neither party is
absolutely right as to his
position on this matter. By far
the most definitive
pronouncement of this court on
this issue is its decision in
Republic
v. High Court, Accra; Ex parte
Attorney-General (Delta Foods
Ltd, Interested Party) (1998-99)
SCGLR 595 in which this
court held that the
Attorney-General is the proper
party to sue and be sued on
behalf of the State. However, it
is discernible even from that
decision that this court did
not give a raw application to
article 88(5). It applied it in
a purposive manner, resorting to
the essence of the provision as
opposed to its literal words.
In short this court held that
though the Minister of Food and
Agriculture rather than the
Attorney-General had been
wrongly sued yet in all the
circumstances of the case an
amendment substituting the
Attorney-General as defendant
would meet the ends of justice,
since, inter alia the suit had
been conducted throughout by
attorneys of the
Attorney-General’s Department.
The concerns
of Nene Amegatcher arising from
the position of the
Attorney-General as a political
appointee have been fully
adumbrated by the Supreme of
Court of Namibia in
Ex parte
Attorney-General, Namibia: Re
Constitutional Relations between
the Attorney-General and the
Prosecutor-General (1995) LRC
507. The Court in this case
gave a most extensive
consideration and evaluation of
the role of the Attorney-General
particularly in the Commonwealth
and noted that Ghana’s
Attorney-General belongs to
Model 3, the type that gives the
Attorney-General also the
portfolio of Minister of Justice
and is therefore a political
minister. In such a situation
the court was most sceptical of
any powers relating to law
enforcement being entrusted to
the Attorney-General.
As laid down
in the celebrated case of
Tuffour
v. Attorney-General (1980) GLR
634 C.A. (sitting as the
Supreme Court) the
Constitution is an organic
document capable of growth to
meet the aspirations and needs
of the Ghanaian society.
This principle has been stated
in very moving terms by Le Dain
J in the Canadian case of
R v.
Therens [1985] 1 SCR 613 at
638-639 and 677 and quoted with
approval by Maxwell C.J. of the
Western Samoa Supreme Court in
Reference by the
Head of
State (1989) LRC 671 S.C. at
676.
Constitutional ramifications
since the 1992 Constitution came
into force lend support to Nene
Amegatcher’s aforesaid concerns.
In Nartey
v. Attorney-General & Justice
Adade [1996-97] SCGLR 63 the
Chief State Attorney appearing
in the case for the 1st
defendant, the Attorney-General
informed the court, towards the
end of the case that “she had
been instructed to inform the
court that the first defendant
would no longer contest the
plaintiff’s action.”
In
J.H.
Mensah v. Attorney-General
(1996-97) SCGLR 220 the
Minority in Parliament took the
view that ministers appointed by
a President after an election
required Parliamentary approval
even if they were ministers in
the immediately preceding term
of the re-elected president,
whilst the Majority and the then
Attorney-General took the
contrary view. It was the
Minority Leader’s action in this
court that vindicated the
Minority’s view. In
Commission on Human Rights &
Administrative Justice v.
Attorney-General (No.1)
(1998-99) SCGLR 871 and
Attorney-General v. Commission
on Human Rights and
Administrative Justice (No. 2)
(1998-99) SCGLR 894 the
parties locked horns as to the
ambit of the Commission on Human
Rights and Administrative
Justice’s powers under sections
34 and 35(2) of the Transitional
Provisions and Chapter 18 of the
1992 Constitution. Some of
these incidents keep recurring.
Consequently,
we consider that the time has
come for a realistic revisit to
article 88(5). Accordingly we
come down on articles 88(5) as
follows.
All the constitutionally
established independent bodies
like the Commission on Human
Rights and Administrative
Justice, The Electoral
Commission, etc can sue and be
sued on their own relating to
their functions per counsel of
their choice.
Any person
affected by an action involving
the State can upon application
be joined to such action, to
protect his or its interest.
With regard to the Judiciary and
the Legislature, where their
position on an issue is in
conflict with that of the
Attorney-General they may
proceed on their own by counsel
of their choice. However, any of
these bodies referred to may
access the services of the
Attorney-General if they so
choose.
In the
present case however there is
nothing to show that Parliament
and the Attorney-General have
conflicting positions as to this
action. The Minister of Local
Government is manifestly a wrong
party to this action.
Accordingly, Parliament and the
Minister of Local Government are
struck out from this writ.
(SGD) W. A. ATUGUBA
ACTING CHIEF JUSTICE
AKUFFO [MS.]
JSC;
I agree that,
in this particular case,
Parliament and the Minister of
Local Government have been
misjoined as parties and the
two should be struck out as
such.
(SGD) S. A. B.
AKUFFO [MS.]
JUSTICE OF THE SUPREME COURT
DR. DATE-BAH
JSC:
The plaintiff
caused a writ to be issued
against the defendants on the 6th
February 2012, with the required
Statement of Case, invoking the
original jurisdiction of this
Court. Counsel for the 1st,
2nd and 4th
defendants then filed, on 24th
February 2012, a motion for
extension of time within which
to file an answer to the
plaintiff’s Statement of Case.
During the hearing of that
motion, this Court raised the
issue of the scope of article
88(5) and its impact on who may
be made a party in suits against
the State or the Republic.
Counsel on both sides were then
directed to file written
submissions on the issue for the
consideration of this Court.
The substantive facts of the
case are as stated
admirably by my brother Atuguba
JSC in his lead judgment and I
adopt that statement.
This case
exemplifies the fact that
constitutional interpretation is
often complex and may require
the uncovering of layers of
meaning by, so to speak,
exegesis. This is because, as
Sowah JSC said in Tuffour v
Attorney-General, [1980} GLR
637, a constitution represents
the aspiration of a people.
His often-quoted observations on
this issue (at pp. 647-8) were
as follows:
“A written
Constitution such as ours is not
an ordinary Act of Parliament.
It embodies the will of a
people. It also mirrors their
history. Account, therefore,
needs to be taken of it as a
landmark in a people's search
for progress. It contains within
it their aspirations and their
hopes for a better and fuller
life.
The
Constitution has its letter of
the law. Equally, the
Constitution has its spirit. It
is the fountain-head for the
authority which each of the
three arms of government
possesses and exercises. It is a
source of strength. It is a
source of power. The executive,
the legislature and the
judiciary are created by the
Constitution. Their authority is
derived from the Constitution.
Their sustenance is derived from
the Constitution. Its methods of
alteration are specified. In our
peculiar circumstances, these
methods require the involvement
of the whole body politic of
Ghana. Its language, therefore,
must be considered as if it were
a living organism capable of
growth and development Indeed,
it is a living organism capable
of growth and development, as
the body politic of Ghana itself
is capable of growth and
development. A broad and liberal
spirit is required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach [p.648] to
interpretation would not do. We
must take account of its
principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.
And so we
must take cognisance of the
age-old fundamental principle of
constitutional construction
which gives effect to the intent
of the framers of this organic
law. Every word has an effect.
Every part must be given
effect.”
Thus, a
literal reading of article 88(5)
cannot be allowed to stand in
the way of the aspiration of the
people, expressed in an
acknowledged core value of the
Constitution. If the plain
meaning of a constitutional text
runs counter to a core value of
the Constitution, it calls for
reflection and a purposive
interpretation to reconcile the
particular core value or
aspiration of the people with
the language employed in the
text with a view to extracting a
meaning by a process of
interpretation that expresses
the spirit of the Constitution.
One of the
fundamental principles of the
1992 Constitution is that of
separation of powers between the
Executive, the Legislature and
the Judiciary. Although the
separation is not absolute, it
is one of the cornerstones of
the Constitution. Another
fundamental principle is that of
checks and balances, according
to which certain bodies created
by the Constitution are given
relative autonomy to enable them
to maintain oversight
responsibility over other organs
of State. It follows that the
Constitution should be so
construed as to preserve and not
undermine these fundamental
principles. Yet the plain
meaning of article 88(5) has the
potential to undermine these
principles. Article 88(5)
provides that “all civil
proceedings against the State
shall be instituted against the
Attorney-General as defendant”.
Does this mean that every civil
action against any organ or
institution of the State has to
be brought against the
Attorney-General, who is in fact
a member of the Executive? Does
this not compromise the
principle of separation of
powers? What happens if the
Attorney-General wants to sue
the Speaker or the Chief
Justice? Must he sue himself?
If a member of the
Attorney-General’s political
party sues the Chief Justice,
can the Attorney-General
compromise the suit, since he is
the nominal defendant,
irrespective of the wishes of
the Chief Justice? These are
but a few of the many troubling
issues that arise from a literal
reading of article 88(5). How
are these issues to be resolved?
The opinion
read by my learned brother,
Atuguba JSC, represents a
brilliant pragmatic purposive
interpretation to reconcile the
public interest requirements of
the context of article 88(5)
with the plain meaning of the
provision and I fully agree with
it. I only wish to add a few
words by way of further
explanation of the position that
this court has taken.
The plain
meaning of article 88(5) is
given effect through the
interpretation that the
presumptive rule is that the
Attorney-General is to be the
defendant in all civil
proceedings against the State.
However, there are exceptions to
this presumptive rule,
necessitated by the core values
of the Constitution and the
overriding constitutional need
to avoid conflicts of interest.
The exceptions are meant to
buttress the autonomy of the
independent organs of the
State. There has in fact been
the practice of allowing the
legal persons referred to
popularly as the “constitutional
bodies” to be sued in their own
name. Thus there are judicial
precedents showing that the
Commission on Human Rights and
Administrative Justice, the
Electoral Commission and the
National Media Commission may be
sued in their own name and not
through the Attorney-General.
This practice is endorsed and
affirmed as being in consonance
with the position taken by this
Court today. Furthermore,
applications may be made in
respect of other State organs to
this Court in relation to
specific cases for leave for
these organs to be allowed to
sue or be sued in their own
name, in order to avoid conflict
of interest.
On the
particular facts of this case,
however, there is no
justification for bringing any
of the other State organs within
the exceptions to article 88(5)
carved out by our
interpretation. By practice, it
is accepted that the Electoral
Commission can be made a party,
but there is no cause of action
demonstrated against it
independently by the facts
pleaded in this case. Given the
facts pleaded, the general rule
under article 88(5) applies and
the only defendant should be the
Attorney-General. This is
because the action brought by
the plaintiff seeks to challenge
the constitutionality of certain
provisions in the
Local
Government Act, 1993 (Act 462)
and the multiple State
organs specified in the Writ of
Summons are not needed to enable
this Court to do justice on the
facts of this case.
(SGD) DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD) R. C. OWUSU [MS.]
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. AKOTO – BAMFO [MRS.]
JUSTICE OF THE SUPREME COURT
COUNSEL:
NENE
AMEGATCHER [WITH HIM MRS.
VICTORIA BATH, DOMINIC BRENYA
OTCHERE, KWASI KELI DELATA AND
MELLESA AMARTEIFIO] FOR THE
PLAINTIFF/APPLICANT.
SYLVESTER
WILLIAMS FOR 1ST 2ND
AND 3RD
DEFENDANTS/RESPONDENT.
JAMES QUASHIE
– IDUN [WITH HIM ANTHONY DABI]
FOR THE 3RD
DEFENDANT.
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