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JUDGMENT
MRS. J. BAMFORD-ADDO, J.S.C.:
The plaintiff issued a Writ to
invoke the Original Jurisdiction
of this court seeking the
interpretation of the
Constitution and a declaration
"that Section 15 of the
Divestiture of State Interests
(implementation) Law 1992 PNDCL
326 is inconsistent with or in
contravention of the Provisions
of Articles 140(1) and 293(2)(3)
of the 1992 Constitution and to
that extent it is null and
void."
The Defendant raised a
preliminary objection to this
action on the ground that
Plaintiff has no standing to
bring the suit since he has no
personal interest in the outcome
of the case. He asked that
Plaintiff's writ be struck out
and dismissed for lack of
standing.
The Defendants' grounds for the
preliminary objection were that
a) a controversy or dispute
concerning the interpretation of
an enactment must have arisen
before the said declaration can
be sought.
b) that according to Article
2(1) of the Constitution the
meaning of "person" contained
therein is referable to an
aggrieved person or a person
whose interest has been
adversely affected by the
construction of an enactment or
anything contained in the
enactment; for the reason that
the Supreme Court does not
"tender advice" to prospective
litigants but interpretes the
constitution in the context of
disputes:"
The Solicitor General for
Defendant submitted that even
though the "dispute and
controversy" requirement was not
expressly stated in Article 2(1)
of the Constitution 1992,
"it is clear that all over the
realms of the civilised world,
courts exist to settle disputes
and that it is only those whose
interests have been adversely
affected any way or the other by
the construction of a said
enactment or a provision of that
enactment who are entitled to a
declaration. The 1992
Constitution therefore assumed
this as given and did not
elaborate this expressly in the
constitution."
I find this submission to be
wrong and untenable having
regard to the provisions of our
peculiar constitution. The case
of Bilson vs. Attorney General
SC (unreported) dated 12th
December 1994 was heavily relied
on to support the stance of the
Solicitor General and he asked
this court to apply the decision
in that case and thereby to
dismiss this present case in
limine. The plaintiff invoked
the original jurisdiction of the
Supreme Court under Article 2(1)
of the Constitution 1992 which
Article says:
"Article 2(1) A person who
alleges that—
a) an enactment or anything
contained in or done under the
authority of that or 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." (Emphasis
mine)
The Plaintiff's case is that an
enactment namely S. 15 of PNDCL
326 which provides an indemnity
to the state and officers
against Court proceedings, is
inconsistent with Article 140(1)
and Article 293(1)(2) and (3) of
the Constitution.
The provisions of Article 140(1)
are that:
"The High Court shall subject to
the provisions of this
constitution, have jurisdiction
in all matters and in particular
in civil and criminal matters
and such original. Appellate
and other jurisdiction as may be
conferred on it by this
Constitution or any other law".
And Article 293 permits claims
against the Government thus:
"293(1) Where a person has a
claim against the Government
that claim may be enforced as of
right by proceedings taken
against the Government for that
purpose without the grant of a
flat on the use of process known
as a petition of right.
(2) The Government shall be
subject to all these liabilities
in tort to which, if he were a
private person of full age and
capacity would be subject—
(a) in respect of torts
committed by its employees or
agents;
(b) in respect of a breach of
duties which a person owes to
his employees or agents at
common law or under any other
law by reason of being their
employer; and
(c) in respect of a breach of
duties at common law or under
any other law attached to the
ownership, occupation,
possession or control of
property".
The Plaintiff's claim is that in
view of the cumulative effect
the provisions of Article 140(1)
and 293 quoted above, S. 15 of
PNDCL 329 granting indemnity to
the state and other employees of
the committee from court
proceedings in the circumstances
stated therein contravenes these
said constitutional provisions
and is therefore null and void.
Now S. 15 of PNDCL 326 despite
Articles 140(1) and 293 provides
that:
"No action shall be brought and
no court shall entertain any
proceedings against the State,
the Committee or any member or
officer of the Committee in
respect of any act or omission
arising out of a disposal of any
interest made or under
consideration under this Law."
The standing of the Plaintiff to
bring this action was raised by
Defendant.
The Law is that any person who
goes to Court must have standing
before the court and the
standing of persons entitled to
apply to the Supreme Court under
its original interpretative
jurisdiction is provided in
Article 2(1) and Article 130(1)
of the constitution. Under
these any person who is citizen
is entitled to bring a suit to
the Supreme Court if he alleges
that an enactment or anything
contained in that enactment is
inconsistent with or in
contravention of the
constitution and to obtain a
declaration to that effect. If
this allegation is successfully
proved the Supreme Court, would
under Article 1(2) declare that
particular enactment null and
void.
The plaintiff in this case is "a
person", as defined in the case
of NPP vs. Attorney General case
(1996-97) SC. GLR 729. He is
further a citizen of Ghana and
he has alleged that S. 15 of
PNDCL 236 is inconsistent with
the constitutional provisions
referred to above. See Articles
2(1)(a) of the Constitution.
These are the requirements, for
standing when invoking the
jurisdiction of the Supreme
Court under Article 2(1). Other
requirements like the dispute
and the "controversy"
requirement or "personal
interest" requirement are not
necessary. However under Article
33(1) which deals with the
Protection of Human and other
Rights by the Courts, the
personal interest requirements
is a prerequisite condition for
standing, to enable a plaintiff
to enforce his human rights and
freedoms. Article 33(1) reads:
"Article 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".
The words "in relation to him"
and "that person" implies that a
plaintiff must have personal
interest in the litigation.
Therefore it is only when a
person seeks the enforcement of
his human rights that he ought
to have "personal interest" in
the case, and this would
invariably also mean that there
must have arisen a controversy
or a dispute concerning and
infringement or intended
infringement of plaintiff's said
Rights which he seeks to enforce
through the High Court. These
two provisions i.e. Articles
2(1) and 33(1) are not the same
but different.
Whereas Article 2(1) gives
standing to any person who is a
citizen to seek an
interpretation and enforcement
of the Constitution, in
furtherance of the duty imposed
on all citizens "to defend the
Constitution" under Article
3(4)(a) and Article 41(b) by
seeking an interpretation and a
nullification of provisions
which are inconsistent with the
Constitution. In the case under
Article 33(1) any person be he a
citizen or not can go to the
High Court for enforcement of
his fundamental human rights and
freedoms. Reference Article
12(2). It is clear then that
the jurisdiction under Article
2(1) is a special jurisdiction
available to only citizens
irrespective of personal
interest.
In interpreting our Constitution
it is important to note that the
constitution should be
interpreted in the light of its
own wording and not by reference
to other constitutions in other
jurisdiction e.g. that of the
US. Our constitution is
peculiar to us we must interpret
it in accordance with its clear
words as well as its spirit. As
Sowah J.S.C. as he then was said
in the often quoted case of
Tuffuor vs. Attorney General
(1980) GLR 63 CA at pp.647 - 648
already quoted above:
"The constitution has its letter
of the law. Equally the
constitution has its spirit….
Its language … must be
considered as if it were a
living organism capable of
growth and development… A broad
and liberal spirit is required
for its interpretation. A
doctrinaire approach to
interpretation would not do.
We must take account of its
principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time."
Therefore cognisance must be
taken only of the expressed
provisions in our constitution
and in accordance with the clear
intention of the Drafters of the
Constitution. No reliance should
be placed on the requirements
of, Constitutions in other
jurisdictions, whose
constitution are structured to
suit their individual needs. So
that to import or imply words
not so found in our Constitution
as suggested by the Solicitor
General would be unjustified and
wrong.
I have found support for the
interpretation I have put on
Articles 2(1) and 33(1) in the
Report of the Committee of
Experts (Constitution) on
proposals for a Draft
Constitution of Ghana dated 31st
July 1991. See paragraph 354 -
par 355.
"345. The Supreme Court would be
the principal organ for the
judicial enforcement of the
Constitution. Its power of
judicial review invests it with
the jurisdiction to entertain
all cases relating to the
enforcement and interpretation
of any provision of the
Constitution and all questions
relating to the
constitutionality of any
enactments or any act or
omission by any person. This
involves the power to pronounce
any act of Parliament or any
measure of the Executive
unconstitutional, although it is
hoped that the opportunity for
exercising such powers would be
substantially reduced by the
preventive role of the Judicial
Committee of the Council of
State.
355. The Supreme Court's
jurisdiction in this regard may
be invoked by any citizen of
Ghana. This means that any
Ghanaian who alleges that any
enactment or any action
thereunder or any act or
omission by any person
contravenes the Constitution may
institute an action in the
Supreme Court for a declaration
to that effect. The Supreme
Court may issue any orders or
directions as it deems fit to
give effect to such a
declaration.
356. The foregoing restates the
constitutional arrangements in
this regard under the 1969 and
1979 Constitutions, with the
significant exception that such
actions are now only available
to citizens of Ghana, and not
any person. In so limiting the
category of persons entitled to
institute constitutional
proceedings of this type, the
Committee took the following
factors into account:
(1) In some countries, notably
the US, constitutional
litigation is circumscribed by
well-defined rules. First, the
dispute must be a legal dispute.
Second, it must be justiciable.
Third, the complainant must have
standing to bring the suit, that
is to say, he must have a
concrete legal interest in the
outcome of the case. It was
urged on the Committee that the
experience of constitutional
litigation in the Second and
Third Republics pointed to the
likelihood of the Supreme Court
being inundated with cases
unless some limitations were
imposed on the right to invoke
the original jurisdiction of the
Supreme Court in constitutional
matters.
(2) Against the need to limit
litigation, it was pointed out
that there was a major public
interest in assuring the widest
possible access to the courts
for purpose of constitutional
litigation, and that prospect of
enforcing the constitution
should not be curtailed by the
want of specific interest or
legal standing in the strict
legal sense. However, it was
acknowledged that the right to
institute such proceedings
should not be assured to all
persons, irrespective of their
citizenship. We therefore,
propose that the entitlement to
institute constitutional
proceedings to invoke the
original jurisdiction of the
Supreme Court should be limited
to citizens of Ghana. However,
all persons, irrespective of
their nationality are entitled
to enjoy the benefits of
constitutionally guaranteed
individual rights." (Emphasis
supplied)
Clearly therefore it can be seen
that in actions initiated under
Article 2(1) such as this
present one, the Plaintiff does
not have to have a personal
interest in the case before
invoking the special original
jurisdiction of the Supreme
Court. Consequently plaintiff
has standing contrary to the
position taken by the Solicitor
General in his Preliminary
objection. It seems to me that
the Defendant was confusing the
position when one seeks the
enforcement of his individual
human rights at the High Court
in which case he must have a
personal interest in the case,
with the interpretation
jurisdiction of the Supreme
Court under Article 2(1). The
submission then by Solicitor
General that Article 2 cases be
interpreted as requiring a
"personal interest" of plaintiff
in a "dispute" in order to have
standing before us, since all
civilised courts exist to settle
disputes, is seriously flamed
and untenable. In the absence
of express words to this effect
or by necessary implication,
such requirements cannot be
imputed in to Article 2(1). That
is why it is wrong to rely on
analogies from other
jurisdiction in interpreting our
constitution as suggested by the
Solicitor General.
As my noble Brother Acquah
J.S.C. in the case of Republic
v. Tommy Thompson Books
(1996-97) SC GLR. P.502 rightly
said:
"In seeking to apply the
interpretation of our 1992
Constitution, what has been said
in particular cases about other
constitution care must be taken
to distinguish between judicial
reasoning which depended on the
express words used in the
particular constitution under
consideration, and the reasoning
which depended on what, though
not expressed is nonetheless a
necessary implication from the
subject matter and structure of
the Constitution and the
circumstances in which it has
been made. For a natural
Constitution is a reflection of
that nation’s history and the
embodiment of the noble
aspirations of its framers.
Accordingly notwithstanding the
invaluable scholarship in
foreign decisions what is
required of us is originality in
the interpretation of our
constitution, paying particular
attention to its language, and
constructing the words in such a
way as to advance the intent of
the framers—intent nurtured by
our peculiar history and social
circumstance."
I agree entirely with my said
Brother on this point.
The Solicitor General also
heavily relied on the Bilson v.
Attorney General case SC
unreported Writ No.12/93 dated
12th December 1994 which he
urges us to apply to dismiss the
plaintiff 's suit in this case
in limine. It is to be noticed
that the real reason for
dismissing the action in the
Bilson case (supra) was that
plaintiff had no cause of
action.
From what Hayfron-Benjamin JSC
stated in his judgment it also
appears that the case was
dismissed because it did not
call for any interpretation at
all. He said:
"The plaintiff invites this
court to give him judgment upon
proof of axioms. The answers to
his plaint are obvious,
self-evident and unambiguously
stated in the various articles
of the constitution of 1992 to
which the plaintiff himself
referred. This court cannot
accede to the sterile claims in
which the Defendants is found to
agree with the plaintiff"
The Bilson case did not deal
specifically with the standing
of the Plaintiff, because no
issue of standing was raised or
decided upon. For this reason it
cannot be relied upon as an
authority on standing as urged
on us by the Solicitor General.
He also referred to the case of
NPP v. Attorney General (1996 -
97) SC GLR p.729, but here again
the point of law taken and
decided upon was as seen from
the headnote, is whether the
word "person" under Article 2(1)
includes a corporate person
other than natural person and
whether definition of "person"
in the Interpretation Act 1960
CA 4 S32 is to be applied.
In that case the NPP, a
political body corporate,
brought an action in the Supreme
Court under Article 2(1) of the
1992 Constitution. The Attorney
General the Defendant raised a
preliminary legal objection to
the capacity of the plaintiff to
bring the action under the said
Article on the ground that only
natural persons had the capacity
to bring action under Article
2(1). This point was the issue
which was decided. It was held
dismissing the legal objection
that:
"all classes of persons
(including natural persons and
body corporate bodies (like the
Plaintiff) had the capacity to
bring an action in the Supreme
Court under Article 2(1) for the
enforcement of the 1992
Constitution"
The reason for dismissing legal
objection was that the plaintiff
in that case the NPP fell within
the Definition of "person" in
Article 2(1) and was entitled to
invoke the original jurisdiction
under the said Article. Here
again the court did not consider
standing of plaintiff based on
"personal interest" requirement,
as we are called upon to do in
this present case and therefore
the defendant's submission that:
"For one thing the court in NPP
case assumed the position of
open access by all as given
without really examining this
concept of locus standi fully"
is unfortunate and wrong. The
court in that case did consider
locus based on whether a
"person" includes a corporate
body such as the NPP, which was
raised in that case, which
objection is not the same as the
issue of standing based on
"personal interest" requirement
which this case is considering.
To sum up the general rule is
that any person, natural and
artificial may sue and be sued
in the courts under Article 2(1)
but they must be citizens who
are seeking interpretation of
the constitution and its
eventual enforcement, as
plaintiff is seeking to do in
this case. For the above reasons
I hold that plaintiff has
standing before this court as
provided in the 1992
Constitution in Article 2(1)
which permits anyone with or
even without any personal
interest in a case, to invoke
the special original
jurisdiction of the Supreme
Court for the interpretation and
enforcement of the Constitution
under Article 2(1).
THE SUBSTANTIVE CASE
The plaintiff issued a Writ to
invoke the Original jurisdiction
of the Supreme Court for the
following relief:
"A declaration that S.15 of
PNDCL 326 is inconsistent with
or in contravention of the
provisions of Articles 140(1)
and 293(2) and (3) of the 1992
Constitution of the Republic of
Ghana and to that extent is null
and void."
S.15 of PNDCL 326 states that:
"No action shall be brought and
no court shall entertain any
proceedings against the state,
the Committee or any member or
officer of the Committee in
respect of any act or omission
arising out of disposal of any
state interest made or under
consideration under this law"
According to the Plaintiff the
effect of the said S.15 is that
a person who has any claims
against the state or its
employees under law PNDCL 326 is
barred from going to court to
obtain relief and it also ousts
the jurisdiction of the High
Court by prohibiting any court
including the High Court, from
entertaining actions against the
state or its employees in
respect of matters referred to
in the said S.15.
The thrust of Plaintiff's case
is that this S.15 of PNDCL 326
is inconsistent with Article
140(1) of the Constitution
giving jurisdiction in all cases
to the High Court subject to the
Constitution, and is also
inconsistent with Article 293
which provides that the
Government is subject to all
those liabilities in tort to
which if it were a private
person of full age and capacity
it would be subject. In other
words the liability in tort of
the Government is the same as
that of an ordinary person with
capacity.
The provisions of these two
Articles will be set out again
in full for ease of reference.
"Article 140(1) The High Court
shall, subject to the provisions
of this Constitution, have
jurisdiction in all matters and
in particular, in civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
on it by this Constitution or
any other law."
"Article 293(1) Where a person
has a claim against the
Government, that claim may be
enforced as of right by
proceedings taken against the
Government for that purpose
without the grant of a fiat or
the use of the process known as
petition of right.
(2) The Government shall be
subject to all those liabilities
in tort to which, if it were a
private person of full age and
capacity, it would be subject—
(a) in respect of torts
committed by its employees or
agents;
(b) in respect of a breach of
duties which a person owes to
his employees or agents at
common law or under any other
law by reason of being their
employer; and
(c) in respect of a breach of
the duties at common law or
under any other law attached to
the ownership, occupation,
possession or control of
property."
In view of these Constitutional
provisions the Plaintiff
submitted that any law which is
found to be inconsistent with
them, namely S.15 PNDCL 326 is
null and void, as decreed by
Article 1 (2) of the
Constitution 1992.
For the defence the Solicitor
General argued to the contrary.
He submitted as follows:
"It is my respectful submission
that S.15 of PNDCL 326 would
have to be subsumed under the
umbrella of the first Schedule
(Transitional Provisions) of the
Constitution —S.34(1) and (2)
which provides immunity for acts
done by the PNDC and its
appointees ...... When
Article 140(1) and the
Transitional Provision Section
34(1) and (2) are read together
with S.15 PNDCL 326 there can be
no inconsistency."
The High Court was given
jurisdiction in all matters in
Article 140(1) subject to the
Constitution, but no where was
this wide jurisdiction limited
curtailed or taken away in the
circumstances set out in S.15 of
PNDCL 326 rather, other further
jurisdiction could, as stated in
Article 140(1) be conferred on
it by this constitution or by
any other law. So that unless
the jurisdiction conferred on
the High Court is expressly or
by necessary implication
limited, ousted or curtailed, by
the same Constitution, no
subordinate law such as S.15
which seeks to oust the High
Courts jurisdiction in tort in
certain circumstances, can so
provide.
The plaintiff argued that the
High Court is invested with
civil jurisdiction to adjudicate
in respect of torts committed by
the state or its employees by
virtue of Articles 140(1) and
293 and therefore S.15 of PNDCL
326 cannot oust the High Courts
jurisdiction in respect of torts
committed by the state and its
employees as the said law
appears to do today. This
interpretation it seems to me
not only stems from the clear
and unambiguous language of
Article 140(1) but is also in
conformity with the legal
presumption concerning the
jurisdiction of the Superior
Courts as stated in Akyem v. Adu
(consolidated) (1976) 2 GLR 63
in holding (2) thus:
"(2) There was a presumption
that no matter was deemed to be
beyond the jurisdiction of a
Superior Court unless it was
expressly shown to be so; while
nothing was within the
jurisdiction of an inferior
court unless it was expressly
shown on the face of the
proceedings of the particular
court. Similarly there was a
strong presumption against the
construction of Statutes so as
to oust established jurisdiction
or else restrict the
jurisdiction of the Superior
Courts....."
This case followed the Dictum of
Coussey J.A. (as he then was) in
Timitimi v. Amabebe (1953) 14
WACA 374 at 376 who held as
follows:
"In the first place want of
jurisdiction is not to be
presumed, as to a Court of
Superior jurisdiction nothing is
out of its jurisdiction but that
which specially appears to be
so."
In view of this the jurisdiction
vested in the courts by the
constitution ought not to be
taken away or restricted unless
the jurisdiction of the High
Court as referred to above is
specifically ousted or limited
by the Constitution itself by
express and unambiguous of words
to that effect. Therefore S.15
of PNDCL 326 which is
subordinate to the Constitution,
cannot properly limit the High
Court's jurisdiction
constitutionally given to that
court without the said necessary
authority.
It follows therefore that S.15
of PNDCL 326, which seeks to
oust or curtail the High Court's
jurisdiction in respect of acts
or omissions of DIC arising out
of the disposal of any state
interest under the said law, is
clearly contrary to the
provisions of the constitution
as pointed out, and is
inconsistent with it. In the
same way, S.15 which seek to
prevent aggrieved persons from
seeking redress in the courts in
respect of any torts committed
by the state and its employees
under DIC law, is directly in
conflict with the provisions of
Article 293 which gives the
right to all persons to seek
redress and relief from the
Courts for any torts committed
against them by the state itself
as if it were a private person
of full age and capacity. If a
private person of full age and
capacity is liable for torts
committed by him without any
exceptions then in the same way
the Government is liable for any
torts committed by its officials
or agents. I find this to be
the correct interpretation of
the various provisions discussed
above, and consequently the
indemnity granted in an existing
law under S. 15 of PNDCL 326 is
clearly inconsistent with the
1992 Constitution. It is
unconstitutional as being in
direct conflict with the
constitution and null and void.
It is my view that the
provisions of S. 15 of PNDCL 326
is contrary to Articles 140(1)
and 293(2) and (3) and being
inconsistent with them the said
S. 15 ought be declared null and
void in accordance with Article
1(2) of the Constitution which
provides that:
"Article 1(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."
It is to be noted that the
phrase "Any other law" mentioned
in Article, 1(2) includes the
existing law as well as future
laws and PNDCL 236 forms a part
of the existing law which is
affected by Article 1(2) (see
the dictum of Amua Sekyi J.S.C.
in the case of Dolphyne (No 1)
vrs. Speedline Stevedoring
Company Ltd. and Another 1996 -
97 SC GLR at 182 p.185.)
In interpreting the
Constitution, I am conscious of
the Directives Principles of
State Policy which are meant to
guide the courts when
interpreting the Constitution
particularly Article 37 which
states:
"Article 37(1) The State shall
endeavour to secure and protect
a social order founded on the
ideals and principles of
freedom, equality, justice,
probity and accountability as
enshrined in chapter 5 of this
Constitution and in particular
the state shall direct its
policy towards ensuring that
every citizen has equality of
rights, obligations and
opportunities before the law"
(underscoring mine)
Despite this provision can S.15
of PNDCL 326 which in effect
seeks to, deprive a certain
class of litigants of their
equal right, and opportunities
before the law, a right
expressly granted to them by the
Constitution itself, prevent
them access to the courts,
contrary to the letter and
spirit of the Constitution? All
persons are entitled to, seek
relief for torts committed
against them by the state and
its employees and this would
include employees of D.I.C. in
respect of the torts committed
during the disposal of state
interest under Law 326 with the
coming into force of the
Constitution. As can be seen the
provisions of S.15 of PNDCL 326
is also discriminatory against
that said class of litigants as
it takes away from them the
opportunity to enforce their
legal rights possessed by all
contrary to the Constitution
particularly Article 17(1). To
allow this section 15 of PNDCL
326 to remain in our statute
books therefore is to permit a
direct misguided attack on the
cherished hopes and aspirations
of the sovereign people of Ghana
to wit to live under the rule of
law specified forcefully in the
preamble to the constitution of
1992. The Constitution
stipulates that all persons
shall live under the rule of law
in justice, equality and
freedom, to ensure unity and
stability of this nation.
I have not come to this
conclusion without giving ample
consideration to the contrary
arguments advanced by the
counsel for Defendant. The
Solicitor General's submission
as contained in his Statement of
Case has already been referred
to earlier. He submitted as
follows:
"It is my respectful submission
that section 15 of PNDCL 326
would have to be subsumed under
the umbrella of the first
schedule (Transitional
Provisions) of the
Constitution—Section 34(1) and
(2) which provide indemnity for
acts done by the PNDC and its
appointees. It is absolutely
necessary to establish at which
period of time any act or
omission arising out of a
disposal of any interest
occurred. This is because acts
done by, under or during the
PNDC are protected by Section
34(1) and (2) of the
Transitional Provisions of the
Constitution. And there can be
no doubt that the first schedule
(Transitional) Provisions form
an integral part of the 1992
Constitution. Section 15 of
PNDCL 326 therefore cannot be
said to be inconsistent with
Articles 140(1) and 293(2) of
the Constitution as far as acts
by, under or during the PNDC era
are concerned."
First of all S.34(1) of the
Transitional Provisions deal
only with PNDC and its
appointees and does not concern
this Present Government or its
officers under PNDCL 326 as to
torts committed by them, further
the circumstances for the grant
of the immunity under the said
S.34(2) are different from those
under S. 15 of PNDCL 326.
Secondly the immunity from
liability provided under S.34 of
the Transitional Provisions
covered acts or omissions of
PNDC Government only, in respect
of acts or torts committed
before 7th January 1993 when the
Constitution came into force,
for which reason the said
indemnity was to have effect in
these cases only notwithstanding
the provisions of the
Constitution. Whereas the
immunity provided by S.15 of
PNDC Law 326 in respect of torts
committed by present Government
and its employees are not so
covered considering the effect
of 1992 Constitutional
provisions referred to above.
The two enactment are
substantially different, in
effect and so S.15 of PNDCL 326
cannot be subsumed under S.34 of
Transitional Provision and be
relied on as a defence in this
case as I have stated earlier.
Further the nature and substance
of this case is that of
Constitutional interpretation
under Article 2(1) of the
Constitution vis-a vis S.15 of
PNDCL 326 as it stands today.
The issue being that S.15 of
PNDCL 326 is inconsistent with
Articles 140(1) and 293 of the
Constitution and is therefore
null and void. In this exercise
S.34 of the Transitional
Provisions of the Constitution
has limited relevance it covers
the period before 7th January
1992 and does not provide a
defence for the defendant in
this suit. If S.15 of PNDCL 326
is found to be inconsistent with
the provisions of the
Constitution as at date, then,
it should be declared as null
and void in accordance with
Article 1(2), of the
Constitution notwithstanding of
S.34 of the Transitional
Provisions which provides
immunity to only members of the
PNDC and appointees for any
liabilities incurred by them
before the coming into force of
the 1992 Constitution.
Consequently the submission of
the Defendant that in view of
S.34 of the Transitional
Provision of the Constitution,
S.15 of PNDCL 326 is not
inconsistent with Articles
140(1) and 293(2) of the
Constitution, is unimpressive
and untenable. Defendant's
submissions and arguments do not
answer Plaintiff’s claim as to
the issue of the
unconstitutionality of S.15 of
PNDCL 326. The reason being that
as an existing law it should not
be found to be inconsistent with
the Constitution and if, as I
have already held earlier. It is
in contravention of the
constitution then it is null and
void.
The guide to Constitutional
interpretation provided by Sowah
J.S.C. (as he then was) as
stated above in the case of
Tuffuor v. Attorney General
(1980) GLR 63 CA at pp.647 - 648
is still relevant today as it
was in 1980 I have sought
guidance from it in interpreting
the Constitution in this case.
For the above reasons I hold
having regard to the letter and
spirit of the Constitution that
S.15 of the DIC Law 326 is
inconsistent with Article 140(1)
and 293 of the Constitution 1992
and to this extent S.15 of PNDCL
326 is null and void.
AMPIAH JSC:
Who has jurisdiction to bring an
action under Article 2 (1) of
the Constitution has been the
subject of numerous decisions of
this Court. I have read
beforehand the opinions of my
learned Sisters Mrs.
Bamford-Addo and Miss Sophia
Akuffo, JJSC. and I am in
agreement with them that the
plaintiff has capacity to bring
this action and that he is
entitled to the declaration
sought.
ACQUAH J.S.C:
I have no doubt that the
preliminary objection based on
the alleged lack of capacity in
the plaintiff is wholly
unmeritorious.
I have had the occasion in J. H.
Mensah Vrs. The Attorney-General
(1996-97) GSCLR to explain why
the restraints imposed by the
American Supreme Court on itself
in the exercise of its
jurisdiction in judicial review
cannot apply to the Ghana
Supreme Court.
We derive our jurisdiction
expressly from articles 130 (1)
and 2 (1) in the 1992
Constitution of Ghana, while the
American Supreme Court's
jurisdiction was inferred from
the nature of judicial function.
On the whole I agree with the
opinion of my learned and
respected sisters Mrs.
Bamford-Addo and Miss Sophia
Akuffo, JJSC. about to be read
that the claim deserves to be
granted.
ATUGUBA J.S.C:
The plaintiff challenges the
validity of S.15 of the
Divestiture of State Interests
(implementation) Law, l993,
P.N.D.C.L. 326 on the grounds
that it "is inconsistent with or
in contravention of the
provisions of Articles 140(1)
and 293(2), (3) of the 1992
Constitution of the Republic of
Ghana and to that extent it is
null and void." (emphasis
supplied)
The defendant has questioned the
locus standi of the plaintiff to
bring this action. His objection
is pleaded in several ways but
is succinctly stated in his
written submissions dated the
24th day of January 2000. At
page 7 thereof the defendant
contends against the plaintiff
that "He does not aver that any
right of his has been infringed
or is being threatened with
infringement ........."
(emphasis supplied)
One general ground of locus
standi relied on by the
defendant is that " The
plaintiff has not established
that any occasion has arisen to
warrant the invocation of the
Court's adjudicatory power for a
declaration. "(emphasis
supplied). This latter complaint
however seems to be that the
Plaintiffs action is premature
or academic.
The plaintiff counters the
plaint of locus standi in two
ways. He submits firstly that he
is a citizen of Ghana and also a
legal practitioner practicing in
Ghana and therefore an officer
of the court. I do not however
see how this latter capacity (as
legal practitioner) enhances the
plaintiff’s locus standi. He
further submits that the diverse
litigations in the High Court
involving PNDCL 236 answer the
plaint of locus standi.
The plaintiff invokes the
jurisdiction of this Court under
Article 2 of the 1992
Constitution, which as far as is
relevant provides as follows:
"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."
These words, taken literally
would seem to eliminate notions
of locus standi. But the
Attorney General's objection
deserves serious consideration.
Locus standi is inherent in the
nature of the judicial function
and is accordingly deeply
embedded in the Common Law.
Thus in CHOKOLINGO v.
ATTORNEY-GENERAL OF TRINIDAD AND
TOBAGO [1981] 1 All ER 244. P.C.
at 248 Lord Diplock, delivering
the judgment of Privy Council
said: "….when in chapter 1 the
Constitution of Trinidad and
Tobago speaks of 'law' it is
speaking of the Law of Trinidad
and Tobago as interpreted or
declared by the judges in the
exercise of the judicial power
of the State.
The normal way in which this
interpretative and declaratory
function is exercised is by
judges sitting in courts of
justice for the purpose of
deciding disputes between
parties to litigation (whether
civil or criminal), which
involves the application to the
particular facts of the case of
the law…. that is relevant to
the determination of their
rights and obligations."
(emphasis supplied). So settled
is this rule that Lord Denning
M.R's attempts to puncture it in
England have been resisted by
the House of Lords. In Blackburn
v. Attorney-General (1971) 2 All
ER 1380 C.A. Lord Denning M.R.
took the view that on an issue
over which the public had
concern an individual could
ventilate a public grievance.
However, in Attorney-General v.
Independent Broadcasting
Authority (1973) 1All ER 689 CA
he and the other members of the
court had to recognise that it
is the Attorney-General who can
ventilate a public right or
redress a public wrong at common
law, but sought to create
exceptions in which the
individual could do so.
But in GOURIET v. UNION OF POST
OFFICE WORKERS [1977] 3 All ER
70 H.L. at page 85 the House of
Lords stated, per Lord
Wilberforce forcefully that
"….there is no support in
authority for the proposition
that declaratory relief can be
granted unless the plaintiff in
proper proceedings in which
there is a dispute between the
plaintiff and the defendant
concerning their legal rights or
liabilities, either asserts a
legal right which is denied or
threatened, or claims immunity
from some claim of the defendant
against him, or claims that the
defendant is infringing or
threatens to infringe some
public rights so as to inflict
special damage on the
plaintiff. The present
proceedings do not possess the
required characteristics."
(emphasis supplied)
At pages 100-101 Lord Diplock
also stated:
"The court has jurisdiction to
declare public right but only at
the suit of the Attorney-General
ex officio or ex relatione,
since as my noble and learned
friends, Lord Willberforce and
Viscount Dilhorne have
demonstrated, he is the only
person who is recognised by
public law as entitled to
represent the public in a court
of justice." (emphasis supplied)
Their Lordships made it clear
that this is a constitutional
principle in England. The
plaintiff in this case does not
purport to assert any right of
his beyond the general interest
of the public in the observance
and preservation of the law of
which the Constitution is the
embodiment, in Ghana.
If the common law position as I
have set out above were wholly
consistent with the 1992
Constitution I should have
unhesitatingly upheld the
defendant's objection to the
plaintiff's locus standi.
Needless to say the common law
being part of the existing law
must, as directed by article
11(6) of the Constitution
"be construed with any
modifications, adaptations,
qualifications and exceptions
necessary to bring it into
conformity with the provisions
of this Constitution, or
otherwise to give effect to, or
enable effect to be given to any
changes effected by this
Constitution."
No doubt this direction is a
necessary consequence of the
supremacy of the Constitution as
laid down in Article 1(2) and
reinforced by Section 36(2) of
the Transitional Provisions of
the Constitution. By reason of
similar supremacy, the Canadian
case of THORSON VRS.
ATTORNEY-GENERAL OF CANADA (No.
2) (1974) 43 DLR (3d) 1, as
noted by Lord Wilberforce in
GOURIET VRS. UNION OF POST
OFFICE WORKERS, supra, at p. 82,
"……recognises the English Law on
enforcement of public rights but
distinguishes it where
constitutionality of legislation
is involved." (emphasis
supplied).
Similarly in TUFFUOR VRS.
ATTORNEY-GENERAL (1980) GLR 637
the Court of Appeal (sitting as
the Supreme Court) per Sowah,
J.S.C. (as he then was)
recognised the need for a
controversy or standing in order
to initiate court proceedings
but distinguished it in matters
of constitutionality thus, at
pp. 649-650:
"…the word "matter"….accepting
the Attorney-General's argument,
would not embrace the present
proceedings. Because—and this
must be emphasized—because the
present proceedings in court do
not arise out of "any action,
suit or other original
proceeding between plaintiff and
defendant."
It is purely a proceeding
seeking for an interpretation of
the Constitution. It is a
proceeding in court but not in a
cause. There is no existing
controversy out of which it
arises. The Constitution
confers on every citizen of
Ghana by article 1(3):
"the right to resist any person
or persons seeking to abolish
the Constitutional order as
established by this Constitution
should no other remedy be
possible."
This means that every citizen of
Ghana has the right,
constitutional or otherwise, to
see to it that the
constitutional order as
established by the Constitution
is not abolished or sought to be
abolished. One method, by which
it could be determined whether a
person is seeking to abolish the
constitutional order, is to seek
for an interpretation of the
Constitution as to the meaning
or the effect of a particular
provision or provisions of the
Constitution. In such a case, in
essence, there would neither be
a defendant nor a
plaintiff—properly so-called, as
the terms are commonly employed
in ordinary proceedings in these
courts.
Is there then a controversy? Is
there then a duty, a right, a
liability that can be
established by this court? The
answer is yes! There is a right,
a duty cast upon every citizen
of Ghana to go to the Supreme
Court for determination whether
a person or persons is, or are
seeking to abolish the
constitutional order established
by the Constitution. There is a
controversy regarding the status
of the incumbent Chief Justice,
the determination of which
depends upon an interpretation
of the Constitution. Once there
is a controversy, a justiciable
issue, we believe that under the
wing of interpretation as
contained in paragraph (a) of
clause (1) of article 118, the
court has jurisdiction to
entertain the issue raised by
the plaintiff’s writ.
And the plaintiff is thus
properly before this court."
(emphasis supplied).
This holding has received some
criticism per Kpegah, J.S.C. in
NEW PATRIOTIC PARTY VRS. THE
ATTORNEY-GENERAL (1996-97) SC
GLR 729 at pp. 776-780. At page
780 however, Kpegah J.S.C. said:
The Court of Appeal could have
disposed of the issue as to the
capacity of the plaintiff by
importing into article 2(1) the
concept of public interest
litigation since the court held
the view that whether or not the
Honourable Justice Apaloo, the
incumbent Chief Justice, was the
substantive Chief Justice or not
was not a private right but a
matter of public interest: that
is, assuming that the Court was
right in so concluding."
Be that as it may, the right of
the Ghanaian citizen to defend
the Constitution of Ghana as
enunciated in TUFFOUR v.
ATTORNEY-GENERAL by legal action
has been more clearly
established by the 1992
Constitution. Article .3(4)(a)
provides as follows:
"(4) All citizens of Ghana shall
have the right and duty at all
times—(a) to defend this
Constitution and in particular,
to resist any person or group or
persons seeking to commit any of
the acts referred to in clause
(3) of this article." (emphasis
supplied). The nature of
this—right has been amply
clarified by the Directive
Principles of State Policy in
the Constitution.
Article 34(1) provides:
"The Directive Principles of
State Policy contained in this
Chapter shall guide all
citizens, Parliament, the
President, the Judiciary, the
Council of State, the Cabinet,
political parties and other
bodies and persons in applying
or interpreting this
Constitution or any other law
and in taking and implementing
any policy decisions, for the
establishment of a just and free
society.”
I need not dilate on what was
said in NEW PATRIOTIC PARTY v.
ATTORNEY-GENERAL, supra, about
the effect of these Directive
Principles of State Policy. But
in accordance with article 34(1)
aforesaid I, "in applying or
interpreting" article 3(4) (a)
of the Constitution, do guide
myself by article 41 (b) of the
said Directive Principles of
State Policy which therein
provides:
"41. The exercise and enjoyment
of rights and freedoms is
inseparable from the performance
of duties and obligations, and
accordingly, it shall be the
duty of every citizen—
(b) to uphold and defend this
Constitution and the Law."
(emphasis supplied)
The right of the citizen to
defend the Constitution is put
beyond doubt by the 1992
Proposals for a Draft
Constitution of Ghana, at pages
161 to 162.
As these passages have been
quoted by the President of this
panel and my learned and
respected sister Sophia Akuffo
J.S.C. in the judgment she is
about to read, I need not
restate them here. It is enough
to state that they all go to
support my dictum in New
Patriotic Party v. Attorney
General, supra, at page 784 that
"It is axiomatic that a citizen
of Ghana needs no locus standi
to defend the Constitution. "
(emphasis supplied)
It follows that some dicta in
some cases, such as EDUSEI v.
THE ATTORNEY-GENERAL (1996) Vol.
1 GSCJR, BILSON v. ATTORNEY
GENERAL, Supreme Court, 12
December 1994 unreported,
decided after the 1992
Constitution came into force
cannot be relied upon for a
contention that, at any rate, a
citizen of Ghana needs locus
standi to defend the
Constitution of Ghana through
court action.
As the plaintiff in this action
is a citizen of Ghana that
suffices to enable him bring the
present action and I need not
consider the question of locus
standi in any wider dimensions.
Once a citizen of Ghana, he, as
stated in KWAKYE VRS.
ATTORNEY-GENERAL (1981) GLR 9
S.C. at 13:
"is entitled to invoke to invoke
the jurisdiction of this court
as soon as the act complained of
was committed or even
threatened. (emphasis supplied)
As to the validity of PNDCL 326
both parties are right in their
contentions to some extent. The
learned Solicitor-General
contends in his written
submissions, aforementioned,
"that section 15 of PNDCL 326
would have to be subsumed under
the umbrella of the first
schedule (Transitional
Provisions) of the Constitution.
Section 34 (1) and (2), which
provide indemnity for acts done
by the PNDC and its appointees.
It is necessary to establish at
which period of time any act or
omission arising out of a
disposal of any interest
occurred. This is because acts
done by, under or during the
PNDC era are protected by
Section 34 (1) and,(2) of the
Transitional Provisions of the
Constitution. And there can be
no doubt that the first schedule
Transitional Provisions forms an
integral part of the 1992
Constitution. Section 15 of
PNDCL 326 therefore cannot be
said to be inconsistent with
Articles 140 (1) and 293 (2) of
the Constitution as far as acts
by, under or during the PNDC era
are concerned."
Continuing he further contends
that "………if Articles 140(1)
makes the jurisdiction of the
High Court subject to the
provisions of "this"
Constitution it means that
Article 140 (1) jurisdiction is
subject to the Transitional
provision section 34 (1) and (2)
of the Constitution."
I would add that even though
Article 293 concerning claims
against the Government does not,
like Article 140 (1) express
itself to be subject to the
provisions of the Constitution
section 34(1) which the
Solicitor-General prays in aid
of it (i.e. article 293) has the
same effect as article 140 (1)
in subordinating it to the
provisions of the Constitution,
in view of article 299 of the
Constitution which provides
that:
"The transitional provisions
specified in the First Schedule
to this Constitution shall have
effect notwithstanding anything
to the contrary in this
Constitution."
Even though the Learned
Solicitor-General chooses to
rely on Section 34(1) and (2) of
the Transitional provisions, it
is clear that his submissions on
indemnity for "acts done by,
under or during the PNDC era"
are more generally covered by,
section 34 (3) of the
Transitional Provisions and that
provision is more germane to the
present case than section 34 (1)
(2) thereof. It provides as
follows:
"(3) For the avoidance of doubt,
it is declared that no
executive, legislative or
judicial action taken or
purported to have been taken by
the Provisional National Defence
Council or the Armed Forces
Revolutionary Council or a
member of the Provisional
National Defence Council or the
Armed Forces Revolutionary
Council in the name of either
the Provisional National Defence
Council or the Armed Forces
Revolutionary Council shall be
questioned in any proceedings
whatsoever and, accordingly, it
shall not be lawful for any
court or other tribunal to make
any order or grant any remedy or
relief in respect of any such
act."
In the present proceedings the
plaintiff is not suing anybody
covered by section 34 (1) of the
Transitional Provisions for any
act or omission during the
administration of the PNDC. And
in view of the interpretation
given to the similar provisions
of section 13 (3) of the
Transitional Provisions of the
1969 Constitution in DONKOR VRS.
THE REPUBLIC (1971 1 GLR 30 S.C.
and) BENNEH VRS. THE REPUBLIC
(1974) GLR 47 C.A. (Full Bench)
it is difficult to see how
section 34(2) of the
Transitional Provisions of the
1992 Constitution relating to
acts consequent upon, (in
effect) the 31st December
Revolution, comes into play in
this case. Nonetheless if the
act impugned here is within the
protective umbrella of Section
34(3) of the Transitional
Provisions I do not see how a
court can ignore it and nullify
the act in question merely
because that provision has not
been pleaded. Certainly the
court will have no jurisdiction
to do so and the laws relating
to pleadings certainly are also
subject to the supremacy of the
Constitution and cannot warrant
a blatant infraction of the
Constitution. It is otherwise if
the court is not called upon by
the pleadings to grant a relief,
save the consequential reliefs
mandatorily stipulated in
article 2 of the Constitution.
For a court can only act when
called upon to do so. But it is
a different thing for a court
when called upon to do so, to
grant a relief even against the
provisions of ordinary statutes,
let alone the Constitution. As
Archer J.A said in ASARE VRS.
BROBBEY (1971) 2 GLR 331 C.A. at
338: "In Philips v. Copping
(1935) IK.B.15 at p. 21 C.A.
Scrutton L.J. said:
"it is the duty of the Court
when asked to give judgment
which is contrary to a statute
to take the point although the
litigants may not take it.”
(emphasis supplied).
To my mind section 34(3) of the
Transitional Provisions provides
only a partial and not a total
indemnity. It indemnifies only
the validity of executive,
legislative and judicial acts of
the PNDC and its agents so far
as the period of the
administration of the PNDC is
concerned. It is in this way
that effect can be given to both
sections 34 (3) and 36(2) of the
Transitional Provisions. The
latter provides:
“(2) Notwithstanding the
abrogation of the proclamation
referred to in subsection (1) of
this section, any enactment or
rule of law in force immediately
before the coming into force of
this Constitution shall, in so
far as it is not inconsistent
with a provision of this
Constitution, continue in force
as if enacted, issued, or made
under the authority of this
Constitution.” (emphasis
supplied)
If S. 34(3) is given total
coverage of operation then it
will nullify Section 36(2)
aforesaid. It is however a
cardinal principle of
construction of statutes, not
ill-suited to the construction
of a written Constitution, that
the Legislature or the framers
of the Constitution intend that
all words used in the statute,
should, as far as possible be
given effect. In WARE VRS.
OFORI-ATTA [1959] GLR 181 at
p.186 Murphy J said:
"In Ghana there is only one
Legislature, and all Laws passed
by it are presumed to be for
peace, order and good
government, in accordance with
section 31(1) of the
Constitution. Obviously the fact
that a law is so passed cannot
alone exclude it from the ambit
of section 35, since if that
were so, Section 35 would not
have applied to any law. The
only criterion, in my view, was
whether a Bill directly affected
the traditional functions and
privileges of a Chief. If it did
so, the procedure laid down in
Section 35 had to be followed,
whatever other purpose the
proposed legislation might
have.” (emphasis supplied)
Following upon this observation
of Murphy J, I would say that
though in ELLIS VRS.
ATTORNEY-GENERAL supra, I said
that Section 34(3), is in
relation to Section 36(2) of the
Transitional Provisions a
special provision subject to
which Section 36(2) must be
read, it is quite clear that if
Section 36(2) is to apply to any
law of the PNDC era then Section
34(3) is only special as regards
transactions, past and closed
during the PNDC era.
These views are supported by
Adade and Francois JJ.SC in NEW
PATRIOTIC PARTY VRS.
ATTORNEY-GENERAL, Written
Judgments of the Supreme Court
of Ghana, March 1994 - FEBRUARY
1996 (popularly known as the
31st December case). At page 20
Adade J.S.C. said of section 34
of the Transitional Provisions
as follows:
"What the section does is to
free the persons covered by it
from punishment or from paying
compensation to anyone. It is a
misconception to allege that the
suit here seeks to question
legality or otherwise. The
action is not harking back to
31/12/1981, and asking the court
to declare the coup illegal. It
is looking forward from 7/1/93,
and saying that whatever the
nature of the event, legal or
illegal its anniversary after
7/1/93 should not be celebrated
out of public funds and other
resources. In particular, the
section here does not relate to
the overthrow of the Government
of the 3rd Republic, nor to the
abrogation of the 1979
Constitution. Accordingly,
Section 34(2) is of no
assistance to the Defendants."
By and large, I find this
construction germane also to
Section 34(3) of the
Transitional Provisions.
At pages 50-51 Francois J.S.C.
expressed himself in broader
terms capable of embracing
section 34(3) also, aforesaid.
He said:
“The Indemnity”
An indemnity suggests exemption
from penalties. It is the
closing of a chapter. The
commencement of a fresh start
with the opening of a new page.
Recriminations, enmity and
rancour which may be carried
over from the past, are
proscribed.
In Constitutional terms and with
the relevance of our own
circumstances, an indemnity
connotes perception of a bright
future with all past errors
consigned to the archives of
history. There is a tacit
implication that it may not
augur well for the country, if
it were to be perpetually
embroiled with the rights and
wrongs of the past and the
vengeful pursuit of the pound of
flesh.
With that setting, it is clearly
unjust to exercebate old wounds
by permitting echoes of the past
to reverberate and shatter the
tranquillity the Constitution
sought to promote with the
reconciliatory arrangements.
An event that has earned its
architects an indemnity under
Section 34 of the Transitional
Provisions, must as observed
before be consigned to the grave
with the solemn quietus intoned
by the said section.
The Constitution reminds us that
three such events in the past
are to be buried with the
indemnity of a pardon. Their
ghosts should not linger around,
like phanton wraiths dispensing
mischief with reckless abandon.
A crude analogy is tying up the
hands of a boxer to allow an
adversary to pummel him into
submission, pronounce his
defeat, and still allow the
slaughter to continue.”
(emphasis supplied).
These holdings are similar to
those echoed by the majority of
the Court of Appeal per Apaloo
J.A as he then was in GBEDEMAH
VRS. AWOONOR-WILLIAMS [1969] 2 G
& G 438 C.A. sitting as the
Supreme Court and BENNEH VRS.
THE REPUBLIC [1974] 2 GLR 47 at
95 C.A. (Full Bench). See also
ELLIS VRS. ATTORNEY-GENERAL to
be reported in 2000 SCGLR. See
further KWAKYE VRS.
ATTORNEY-GENERAL [1981] GLR 944
S.C. and an article written by
Professor C.E.K. Kumado entitled
“FORGIVE US OUR TREPASSES: AN
EXAMINATION OF THE INDEMNITY
CLAUSE IN THE 1992 CONSTITUTION
OF GHANA [1993 -1995] 19 U.G.L.
J. 83.
I will therefore hold that in so
far as the legality of, or acts
done under, PNDCL 236 during and
for the period of the PNDC
administration is or are
concerned, section 34 (3) debars
this court from invalidating it
or them. But in so far as the
continued operation of PNDCL 236
is concerned and in respect of
acts done under it as from the
7th day of January 1993 when the
1992 Constitution came into
force, it is as to S.15 thereof
and only that extent, null and
void as being inconsistent with
and in contravention of Articles
2, 140(1) and 293 of the
Constitution, since it disallows
access to the courts even though
permitted by those provisions.
That is what is mandated by
Article 1(2) of the Constitution
which provides that:
"(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)
I therefore hold that PNDCL 236
is null and void to the extent
earlier indicated.
SOPHIA A. B. AKUFFO, J.S.C.:
I have no hesitation in agreeing
that the Plaintiffs claim herein
should succeed. Effectively, the
primary issues posed by the
pleadings and Counsels'
submissions are twofold and
these are:
1. Whether or not the
Constitution requires that there
be a pre-existing controversy or
dispute in which the interests
of the plaintiff is at stake,
before the declaratory
jurisdiction of this court may
be invoked and
2. Whether or not Section 15 of
the Divestiture of State
Interests (Implementation) Law,
1993 (PNDCL 326) is inconsistent
with or in contravention of the
Constitution, particularly
Article 140(1) and Article 293
(1)(2) and (3) thereof and to
the extent of any such
inconsistency or contravention
null and void.
The first issue is of
fundamental importance since it
also encompasses a question of
locus standi and its resolution
will determine whether or not
there is any need to proceed to
consider the remaining issue.
In his written address filed
herein, Counsel for the
plaintiff contended that the
Constitution does not stipulate
any requirement for a party
invoking the jurisdiction of
this Court, under Article 2(1),
to demonstrate that he has locus
standi, nor does it require him
to establish that can occasion
has arisen that warrants such
invocation. According to
Counsel, by virtue of the
aforesaid Article, our
Constitution affords to all
Ghanaians unlimited access to
this Court in order to assure
the constitutional development
of the nation.
On the other hand, the
Defendant’s submissions in this
respect were as follows:—
1. There must be a pre-existing
controversy or dispute involving
the interpretation of an
enactment before an action may
be brought under Article 2 (1).
According to the Defendant,
throughout the world, the reason
courts exist is to settle
disputes and therefore, it is
only persons whose interests are
adversely affected in one way or
the other by an enactment who
are entitled to seek
declarations on the
constitutionality thereof.
2. Article 2(1) must,
consequently, be so read as to
limit its scope to persons
aggrieved or whose interests are
adversely affected by the
construction of an enactment or
anything contained in an
enactment, because it is only in
such situations that an occasion
may be said to have arisen
warranting an interpretation or
declaration. According to
counsel, any other view would
amount to empowering the Supreme
Court to render advisory
opinions to prospective
litigants, contrary to the
unanimous position previously
taken by this Court in Bilson v.
The Attorney General,
(unreported S.C. Judgement dated
December 12, 1994)
3. Since the Plaintiff has
failed to show that he has any
personal interest in the
construction of PNDCL 326, that
there is any public interest
involved in the case, or that
there is any occasion warranting
the invocation of the Court's
jurisdiction under Article 2(1),
we must decline the invitation
to make a declaration in a
vacuum.
Now, Article 2(1) states that:—
(ii) “(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.”
The question we need to resolve
on this issue is, ‘what is the
scope and intent of this
Article?’ In Chapter 13
(entitled ‘the Enforcement of
the Constitution’) of its Report
on Proposals for a Draft
Constitution of Ghana, the
Committee of Experts, the
framers of our Constitution, in
dealing with the enforcement
role of the Supreme Court
stated, at paragraphs 354-356,
that:—
354 “The Supreme Court would be
the principal organ for the
judicial enforcement of the
Constitution. Its power of
judicial review invests it with
the jurisdiction to entertain
all cases relating to the
enforcement and interpretation
of any provision of the
Constitution and all questions
relating to the
constitutionality of any
enactments or any act or
omission of any person. This
involves the power to pronounce
any act of Parliament or any
measure of the Executive
unconstitutional although it is
hoped that the opportunity for
exercising such powers would be
substantially reduced by the
preventive role of the Judicial
Committee of the Council of
State.
355 “The Supreme Court’s
jurisdiction in this regard may
be invoked by any citizen of
Ghana. This means that any
Ghanaian who alleges that any
enactment or any action
thereunder or any act or
omission by any person
contravenes the Constitution may
institute an action in the
Supreme Court for a declaration
to that effect....
356 “…(2) Against the need to
limit litigation, it was pointed
out that there was a major
public interest in assuring the
widest possible access to the
courts for purposes of
constitutional litigation, and
that the prospect of enforcing
the Constitution should not be
curtailed by the want of
specific interest or legal
standing in the strict sense.
However it was acknowledged that
the right to institute such
proceedings should not be
assured to all persons,
irrespective of their
citizenship. We therefore
propose that the entitlement to
institute constitutional
proceedings to invoke the
original jurisdiction of the
Supreme Court should be limited
to citizens of Ghana. However,
all persons, irrespective of
their nationality are entitled
to enjoy the benefits of
constitutionally guaranteed
individual rights.” (emphasis
mine)
In arriving at these conclusions
and proposals, the Committee of
Experts took into account, and
rejected, the jurisdictional
circumscriptions, such as the
requirement for a pre-existing
legal dispute, as well as locus
standi of the complainant in the
case, that are dictated by
procedural rules of some
jurisdictions, such as the
United States of America. Every
country’s constitution is a
reflection of its peculiar past
historical experience, its
present endeavours and its
future aspirations and visions.
The framers of our Constitution
considered the role of the
people of Ghana to be crucial in
assuring its continuous
efficacy, thus in paragraph 360
of its Report, the Committee of
Experts envisaged the expected
role of Ghanaians in the
enforcement of their
Constitution as follows:—
“While various institutions may
play their respective roles in
the enforcement of the
Constitution, the final arbiter
of the viability of the
constitutional order is the
people of Ghana. No
constitutional enforcement
mechanism can be more potent
than the resolute and passionate
commitment of the people to the
entirety of the constitutional
regime itself …In short, the
sovereignty of the people means
that ultimately, the effective
enforcement of the Constitution
lies with the people
themselves.”
It is, therefore, the intent of
the Ghanaian Constitution that
every citizen should play an
active role in its enforcement,
so that there will never again
be in this country a ‘conspiracy
of silence’ that results in the
emasculation of the citizenry
and the destruction of
constitutionalism. For the
purposes of safeguarding the
fundamental imperatives of the
Constitution, Articles 2, 130
and 140(2) are some of the
obvious outcomes of the
deliberations reflected in
Chapter 13 of the Report of the
Committee of Experts.
Consequently, vis-a-vis, the
scope of the provisions of
Article 2(1), there is no doubt,
whatsoever, in my mind that it
has a very wide span and imposes
no such preconditions as have
been contended by the Defendant.
Nor do I see any need to read
into those provisions any such
limitations or preconditions,
indeed to do so would be
invidious and damaging to the
very fabric of the Constitution.
To do so would amount to an
abdication of the duties
conferred upon us under the
Article and would uproot the
teeth implanted in the
Constitution for its
protection. In my view, Article
2(1) is one of the most
important provisions of the
Constitution since it deals with
enforcement. To limit its scope
below the levels intended by the
framers of the Constitution
would be to enfetter on one of
the most crucial built-in
mechanisms for assuring the
people of Ghana that their
Constitution will always remain
a living and vibrant instrument
of social and political
management and good governance.
Every citizen of Ghana, by
virtue of such citizenship, has
an innate interest in the
integrity of the supreme law of
the land, the National
Constitution. As such,
therefore, any perceptible
inconsistency or contravention,
in any enactment or act or
omission of any person, with the
Constitution constitutes a
sufficient occasion for the
invocation of Article 2. The
perceived existence of any
unconstitutional enactment, act
or omission is, ipso facto, a
matter of public concern and,
therefore, any Ghanaian person
(whether natural or artificial)
has the standing, personal
interest and public duty to
bring an action in this Court to
challenge its constitutionality.
That is the regime created by
Article 2(1) to assure the full
effectiveness of Article 1(2).
In the context of Article 2(1)
therefore, there can never be an
officious bystander or nosy
busybody. Every Ghanaian is and
must be an interested party.
This, I believe, has always been
the position of this Court since
the 1992 Constitution came into
existence.
A close look at the case of
Bilson v. The Attorney General
(supra), upon which counsel for
the Defendant place such great
reliance, shows that the
unanimous position taken by this
Court therein was no significant
departure from the foregoing
underlying principle. The most
cursory scrutiny of the claim in
that case would reveal that the
quest of the Plaintiff therein
was not to enforce the
Constitution through a
declaration of this Court on the
constitutionality or otherwise
of any particular enactment or
provision thereof, or the act or
omission of any person. Indeed
it is obvious that the action
was not brought pursuant to
Article 2. Rather, a-propos of
nothing, the plaintiff therein
merely sought confirmatory
declarations on the meaning of
certain provisions of the
Constitution, and also sought to
have Section 34 of the
Transitional Provisions of the
Constitution declared
unconstitutional and therefore
null and void. It is in this
light that, in his opinion in
the case, the esteemed Adade,
JSC stated as follows:
"Take, for instance, the
declaration sought under
paragraph (b) of the writ. The
Plaintiff wants the court to
declare that: '(i) all persons
in Ghana are equal before the
law' and he himself says that
that statement is in Article
17(1) of the Constitution. I
agree with him that Article
17(1) says so. But does the
Court have to declare that the
article says so? In any case
where will such a declaration
take the Plaintiff or anyone
else? Again, has any person
impeded the plaintiff’s access
to the law? In the absence of an
allegation to that effect, what
is the point in merely repeating
the second limb of Article 23 in
the form of a declaration? ....
"Claim (b) (iii) and the whole
of claim (a) ... are no more
than section 34 of the
Transitional Provisions,
dismembered. Assembled together,
they constitute section 34. Here
again, agreeing with the
plaintiff amounts to no more
than saying that what he has
written is indeed section 34 of
the Transitional Provisions,
which is not saying much.
“The plaintiff will be on course
to seek an interpretation of
section 34, or an aspect of it,
if he moves against a particular
person in respect of an act or
omission of that person, and he,
for a defence, seeks shelter
under section 34. It is then
that it will be profitable for
the court to determine whether
the defendant is covered by
section 34 or not. It is then
that an interpretation or
declaration may be called for.
“On the pleadings as they now
stand, any declaration we make
will be an empty declaration, a
declaration in a vacuum.” Ours
is to interpret the Constitution
in the context of disputes,
broadly interpreted. Ours is not
to tender advice to prospective
litigants....”
The learned Hayfron-Benjamin,
JSC also put the situation
created by Dr. Bilson's claim
thus:—
“The plaintiff invites this
court to give him judgement upon
proof of axioms. The answers to
his plaints are obvious, self
evident and unambiguously stated
in the various article of the
Constitution of 1992 to which
the plaintiff himself has
referred. This court cannot
accede to sterile claims in
which the defendant is bound to
agree with the plaintiff.”
Clearly, therefore, there cannot
be any basis for comparison
between the action before the
Court in the Bilson case and
what is now before us, the most
obvious reason being that the
present matter challenges the
constitutionality of a provision
in a particular enactment and
the Bilson case did not. As I
read it, that case certainly did
not lay down any rule that
before a party may invoke the
jurisdiction of this Court under
Article 2(1), he must have a
personal interest in the matter
and/or there must be a
pre-existing dispute or
controversy in which his
interests or rights are at
stake.
Turning to section 15 of PNDCL
326, the constitutionality
whereof is being challenged by
the Plaintiff, that section
reads as follows:—
“No action shall be brought and
no court shall entertain any
proceedings against the State,
the Committee or any member or
officer of the Committee in
respect of any act or omission
arising out of the disposal of
any interest made or under
consideration under this Law.”
It is the case of the Plaintiff
that, since this provision gives
the State and its agencies
immunity from any civil
proceedings in respect of any
act or omission arising from the
implementation of the said PNDC
Law, it is inconsistent with and
in contravention of Articles
140(1) and 293(1), (2) and (3)
of the Constitution and
consequently, it is to that
extent null and void.
In counter-point to the
Plaintiff’s position, the
Defendant submitted that:—
1. Article 140(1) subjects the
jurisdiction of the High Court
to the provisions of the
Constitution.
2. Since under Section 3(1) of
PNDCL 326 the object of the
Divestiture Implementation
Committee (hereinafter referred
to as ‘the DIC’) is to implement
and execute all government
policies on divestiture, and
under Section 4(1) all
recommendations of the DIC are
for the approval of the PNDC,
Section 15 must be subsumed
under the umbrella of the
Transitional Provisions, which
form an integral part of the
Constitution, Section 34 whereof
provides indemnity for acts done
by the PNDC and its appointees.
Consequently, according to the
Defendant, Section 15 cannot be
said to be inconsistent with the
Constitution, as far as acts by,
under or during the PNDC era are
concerned.
3. Both Articles 140 and 293
must be read together with
Section 34 of the Transitional
Provisions and when so read
there is no inconsistency in
Section 15 of the PNDC Law.
Article 140(1) forms part of
Chapter 11 of the Constitution,
which deals with the judicial,
and reads as follows:—
“The High Court shall, subject
to the provisions of this
constitution, have jurisdiction
in all matters and in
particular, in civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
on it by this Constitution or
any other law.”
Article 193(1)-(3), is in
Chapter 26 of the Constitution,
under the sub-title ‘Claims
Against Government’, and states
that:—
“(1) Where a person has a claim
against the Government, that
claim may be enforced as of
right by proceedings taken
against the government for that
purpose without the grant of a
fiat or the use of the process
known as petition of right.
“(2) The Government shall be
subject to all liabilities in
tort which, if it were a private
person of full age and capacity,
it would be
subject—
(a) in respect of torts
committed by its employees or
agents;
(b) in respect of a breach of
duties which a person owes to
his employees or agents at
common law or under any other
law by reason of their being
employer; and
(c) in respect of a breach of
the duties at common law or
under any other law attached to
the ownership, occupation,
possession or control of
property.
“(3) No proceedings shall lie
against the Government by virtue
of paragraph (a) of clause (2)
of this article in respect of an
act or omission of an employee
or agent of the Government
unless the act or omission
would, apart from this article,
have given rise to a cause of
action in tort against that
employee or his estate.”
Although in his submission the
Defendant made reference to
section 34(1) and of the
Transitional Provisions, it is
clear that, for the purposes of
our deliberations on this
matter, it is only section 34(1)
that is relevant. Sub-section
(2) covers acts or omissions
relating to or consequent upon
the events specified in clauses
(a) to (d) of the sub-section,
which cannot properly concern us
here. The aforesaid sub-section
(1) provides as follows:—
“ (1) No member of the
Provisional National Defence
Council, Provisional National
Defence Council Secretary, or
other appointees of the
Provisional National Defence
Council shall be held liable
either jointly or severally, for
any act or omission during the
administration of the
Provisional National Defence
Council.”
The fundamental principles
driving the provisions of
Articles 140(1) and 193 are
those expressed in Article 125,
particularly, clauses (1), (3)
and (5) thereof, which state
that:—
“(1) Justice emanates from the
people and shall be administered
in the name of the Republic by
the Judiciary which shall be
independent and subject only to
this Constitution.
“(3) The judicial power of Ghana
shall be vested in the
Judiciary, accordingly, neither
the President nor Parliament nor
any organ or agency of the
President or Parliament shall
have or be given final judicial
power.
“(5) The Judiciary shall have
jurisdiction in all matters
civil and criminal, including
matters relating to this
Constitution, and such other
jurisdiction as Parliament may,
by law, confer on it."
The meaning of these provisions
is too clear to require any
elaboration. Their spirit and
purpose is to assure Ghanaians
access to justice regardless of
the subject matter or the
identity of the defendant, and
to vest final adjudicating power
in the judiciary, in the form of
both its original and
supervisory jurisdiction.
Consequently, by virtue of
Article 1(2), which declares the
Constitution to be the supreme
law of Ghana and stipulates that
any other law found to be
inconsistent with any of its
provisions shall, to the extent
of such inconsistency, be void,
since Section 15 of PNDCL 326
purports to oust, totally and
for all time, the jurisdiction
of the courts to adjudicate on
any action (civil or criminal)
arising, at any time, out of the
disposal of any interest made or
under consideration pursuant to
that Law, it is void.
In so concluding, I am not
unmindful of the clear
stipulations of Section 34(1) of
the Transitional Provisions.
However, it is also clear that
those provisions were not
intended to grant a general
protection to enactments, or
clauses thereof, which oust the
jurisdiction of the courts. They
specifically, relate and are
limited to acts committed or
omissions made during the
administration of the PNDC.
However, PNDCL 326 is not a
spent force; it did not cease to
operate after the PNDC
administration came to an end
and the Constitution came into
effect. It is an enactment that
is still in effect and the DIC
is still in existence and fully
operative. The purported effect
of Section 15 is to oust, in
perpetuity, the jurisdiction of
the courts in all matters
pertaining to the activities of
the State as well as the DIC and
the members thereof, regardless
of when they were done and place
such activities, forever, beyond
judicial scrutiny. This is
against the spirit of the
Constitution and, in particular
Articles 140(1) and 193 (as well
as Article 125 for that matter).
COUNSEL
Mr. Ntrakwah with Miss Irene
Danquah for plaintiff.
Mr. Addo, Solicitor-General for
Defendant with him, Mr. S.Y.
Anim, Chief State Attorney.
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