Constitutional law – Judges – Oaths of office – Persons entitled to administer oath of allegiance and judicial oath to superior court judges – Circumstances in which power to administer oath to superior court judges may be delegated – 1992 Constitution 156(1), (2), (3) & 299(1)(j); s 4 & 25 of 1st Schedule and 2nd Schedule – Oaths Decree 1972 (NRCD 6) s 2 and 2nd Schedule.

Courts – Supreme Court – Empanelling – Empanelling of court the prerogative of Chief Justice – Litigant has no choice in panel.

Statutes – Construction – Schedule – Schedule to be construed as part of statute.

Article 156 of the 1992 Constitution provides that a justice of the superior court shall, before assuming the exercise of the duties of his office, take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the constitution before the President. Section 4 of the Transitional Provisions of the constitution continues in office any justice of the superior court holding office immediately before the coming into force of the constitution. It provides however that such justice shall take and subscribe to the oaths. The oaths, as provided in the 2nd Schedule, each ended in italics thus in the case of the oath of allegiance: “To be sworn before the President, the Chief Justice or such other person as the President may designate; and in the judicial oath: To be sworn before the President, the Chief Justice or such other person as the Chief Justice may designate.”

The Oaths Decree 1972 (NRCD 6) also provides, in section 2, that the oath of allegiance and judicial oath provided in the Decree shall be taken by the justices of the superior courts and shall be administered by the Chairman of the National Redemption Council or the Chief Justice or such other officer as the Chief Justice may designate. It provides further in section 3 that no person who had taken either oath shall be required to take that oath again.

Section 25 of the Transitional Provisions provides that NRCD 6 shall be construed subject to the constitution. Article 299 of the constitution provides that the Transitional Provisions shall have effect notwithstanding anything to the contrary in the constitution.

On 23/2/93, the Chief Justice, on the authority of a letter from the President’s office, administered the oath of allegiance and the judicial oath to the justices of the Supreme Court and the Court of Appeal. The Ghana Bar Association complained to the Chief Justice that the swearing-in was not in conformity with the 1992 Constitution and was null and void. In response, the Judicial Secretary the 2nd defendant, gave a press conference urging the association to go to court if it so desired. The association then mandated three of its officers to institute an action against the Chief Justice, the Judicial Secretary and the Attorney-General for declarations that under article 156(1), (2) and (3), section 4 of the Transitional Provisions (the 1st Schedule) and the 2nd Schedule of the 1992 Constitution, the purported administration of those oaths by the Chief Justice, and not the President, to the superior court judges holding office immediately before the coming into force of the constitution was null and void. They argued that s 4 of the Transitional Provisions ought to be read with reference to article 156 and applied to all judges, whether appointed before or after the promulgation of the constitution. Counsel submitted further that the directions in italics at the end of the oaths in the Transitional Provisions were mere footnotes that did not restrict or modify article 156.

The defendants contended on the other hand that section 4 of the Transitional Provisions was silent over the modalities for swearing superior court judges continuing in office upon the coming into force of the constitution, and that the Chief Justice did not violate the constitution when he swore them. The Attorney-General submitted that the directions in italics at the end of the oaths in the 2nd Schedule were “indicators” as to the forms of the oaths, to be given full effect.

At the hearing, the defendants obtained leave to plead, in the alternative, that the President had delegated the Chief Justice to administer the oaths to the judges. In proof of the alleged delegation the defendants relied upon a letter from the office of the President that the President had designated the Chief Justice to swear in the judges.

At the hearing, counsel for the plaintiffs submitted that given the significance of the action, it would be in the interest of all that all the justices of the Supreme Court, except the Chief Justice, be empanelled to sit and express their views on the matter.

Held, Adade JSC dissenting: (1) The provision in article 156(3) that a judge should take the oath “before assuming the exercise of the duties of his office” clearly did not apply to judges in office but those to be appointed after the coming into force of the constitution. The swearing of judges to be appointed in future under article 144 would be done by the President himself but he could not delegate his power to the Chief Justice under article 156(3)(a) or to any other person even under article 297(j). Concerning  judges in office, NRCD 6 s 3 provided that they should be relieved from taking the oaths afresh. Section 3 was however subject to the mandatory provision in the Transitional Provisions s 4(2) that those judges should swear the oaths in the 2nd Schedule of the constitution. The modalities for administering those oaths to them were specified in the 2nd Schedule i.e. that the oaths should be taken before the President, the Chief Justice or such other person as the President might designate.

Per Francois, Aikins JJSC. But for section 4(2) of the 2nd Schedule, judges in office would not, under the Oaths Decree, have needed to swear any further oaths. But section 25 of the 2nd Schedule provides that the Decree shall have effect subject to the constitution. This means that the former dispensation or judicial absolution under the Decree from swearing for judges in office was removed and in its place was introduced a requirement to swear in terms of the 2nd Schedule. The directive appeared in article 299. Under article 156(3) however the prescribed oaths were those required “by this article” i.e. article 156. The attempt to extend the scope of article 156 to sitting judges was clearly subversive of the restriction in the article.

Per Bamford-Addo JSC. There is a difference between the words “before assuming the exercise of the duties of his office” in article 156 and words “shall continue to hold office” in section 4(1) in the Transitional Provisions. Whereas the former phrase implies the time when the oaths are to be taken as well as the satisfaction of a precondition by the use of the word “before”, the latter implies that the precondition has already been complied with and the office-holder is permitted to “continue” to hold office. These two provisions surely, are referable to two different classes of judges namely newly-appointed judges and “sitting” judges.

Per Hayfron-Benjamin JSC. In plain English when a person in office goes on vacation and returns, he does not “assume” his duties, he “resumes” his duties. Certainly there must be a distinction between those who are already in office and those entering office. That is the true intendment of article 156(1). The 2nd Schedule has been incorporated into the Oaths Decree and it is to that Decree that we must look for the person to administer the oath. 

(2) In construing a statute, no word may be ignored; a schedule was as much a part of a statute. The italicised words at the end of the oaths, whether designated as footnotes or indicators, formed part of the statute and are enforceable, though contained in a schedule. Re Barker (1881) 17 Ch D 241, CA, Attorney-General v Lamplough (1878) 3 Ex D 214, Inland Revenue Commissioner v Gittus [1920] 1 KB 563, Panagotis v SS Pontiac  [1912] 1 KB 74, Bushell v Hammond [1904] 2 KB 563, CA, R v Bishop of Oxford (1879) QBD 25, Canadian Sugar Refining Co v R (1898) AC 735, Re Woking Urban Council (Basingtoke Canal) 1911 [1914] 1 Ch 300, Tuffuor v Attorney-General  [1980] GLR 637, SC applied.

(3) Empanelling a court was the prerogative of the Chief Justice. Except for good reason requiring a change, such as bias, the court would not interfere in the exercise of the prerogative. Except as provided for review under article 133 of the constitution, the minimum number of justices required to sit on a case was fixed at five under article 128. To grant the plaintiffs’ request would be to concede to the litigant the right to choose his panel. This would undermine the administration of justice.

Per Hayfron-Benjamin JSC: If all the nine judges should sit and express their opinions on the case it would be the height of folly to invite the same justices to sit again and change their minds.

(4) If the Attorney-General was relying on the authority of the Chief Justice under sections 4 and 25 of the Transitional Provisions to administer the oaths then the alternative defence of delegation was irrelevant and misconceived.

Per Adade JSC: If the Chief Justice used his own authority then he did not rely on presidential authority. If on the other hand he performed the act in reliance on authority delegated to him by the President then he impliedly admits that he had no authority by himself to swear the judges. The defendants ought to have elected. Pleading both defences, even in the alternative, suggests that they have no defence and are groping for one.

Per Amua-Sekyi JSC: The law is that the Chief Justice had the power to administer the oaths. If out of abundance of caution the Chief Justice was issued with a document purporting to come from the President authorising him to administer the oaths, that did not take away his right.

Per Bamford-Addo JSC: Under ss 4 and 25 of the Transitional Provisions and NRCD 6 it is not the President but the Chief Justice who is permitted to designate another person to swear in judicial officers.

Peter Ala Adjetey (with him Nelson Cofie, Dr Seth Twum, Frank Sawyerr and William Addo) for the plaintiffs.

Anthony Forson, Attorney-General (with him Mrs Orleans and Mrs Adusa Amankwa) for the defendants.

Cases referred to:

Adegbenro v Akintola [1963] 3 WLR 63, [1963] AC 614, [1963] 3 All ER 544, 107 SJ 532, PC.

Akufo-Addo v Quashie-Idun [1968] GLR 667, CA.

Attorney-General v Lamplough (1878) 3 Ex D 214, 47 LJQB 555, 38 LT 87, 42 JP 356, 26 WR 323, CA.

Barker , Re (1881) 17 Ch D 241, CA.

Bilson v Apaloo [1981] GLR 15, SC.

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG  (1974)  [1974] 2 All ER 611, [1974] 2 WLR 789, CA.

Bushell v Hammond [1904] 2KB 563, 73 LJKB 1005, 91 LT 1, 68 JP 370, 52 WR 453, 20 TLR 413, CA.

Canada Sugar Refining Co v R  (1898) AC 735, 67 LJPC 126, 79 LT 146, 14 TLR 545, PC.

Churchill v Crease (1828) 5 Bing 117, 2 Moo & P 415, 7 LJOSCP 63, 130 ER 1028.

Curtis v Stovin (1889) 22 QBD 513, 58 LJQB 174, 60 LT 772, 37 WR 315, 5 TLR 248, CA.

Duke of Buccleuch, The  (1889) 15 PD 86, 62 LT 94, 6 Asp MLC 471, CA; on appeal sub nom Eastern SS Co Ltd v Smith, The Duke of Buccleuch [1891] AC 310, 65 LT 422, 7 Asp MLC 68, HL.

Ebbs v Boulnois  (1875) 10 Ch App 479, 44 LJ Ch 691, 33 LT 342, 23 WR 820.

Ellerton Re,  (1887) 3 TLR 324, sub nom Re Ellerton, ex parte Russel  31 Sol Jo 235, 4 Morr 36, CA.

Fanny M Carvill (Owners), The Fanny M Carvill (1875) 13 Appellant Cas 455n, 44 LJ Adm 34, 32 LT 646, 24 WR 62, 2 Asp MLC 565, PC.

Inland Revenue Commissioner v Gittus [1920] 1 KB 563, 89 LJKB 313, 122 LT 444, 36 TLR 151, 64 Sol Jo 208, CA; on appeal sub nom Gittus  v IRC [1921] 2 AC 81, 90 LJKB 716, 125 KT 489, 37 TLR 637, 65 Sol Jo 512, HL.

Inland Revenue Commissioners v Brooks [1915] AC 478, HL.

Judges v Attorney-General for Saskatchewan (1937) 53 TLR 464, 81 Sol Jo 196, PC.

Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC.

Minister for Home Affairs v Fisher [1979] All ER 21, PC.

Muir v Hore (1877) 47 LJMC 17, 37 LT 315, 41 JP 471.

National Assistance Board v Wilkinson  [1952] 2 All ER 255, [1952] 2 QB 648, 116 JP 428, [1952] 2 TLR 11, 96 Sol Jo 414, 50 LGR 454.

Panagotis v SS Pontiac [1912] 1 KB 74, CA.

Pretty v Solly  (1859) 26 Beav 606, 33 LTOS 72, 53 ER 1032.

Quarcoo v Nana Akwasi Afranie, 20 October 1992, SC.

R v Bishop of Oxford (1879) 4 QBD 245, 40 LT 152, 43 JP 237; revsd 4 QBD 525, CA; on appeal sub nom Julius v Lord Bishop of Oxford (1880) 5 App  Cas 214, [1874-80] All ER Rep 43, 49 LJQB 577, 42 LT 546, 44 JP 600, 28 WR 726, HL.

R v Greenland (1867) 36 LJMC 37.

Republic v Circuit Court Judge, Accra, ex parte Sakara [1989-90] 2 GLR 379, SC.

Seaford Court Estates v Asher [1949] 2 KB 81, [1949] 2 All ER 155, affd. HL sub nom Asher v Seaford Court Estates Ltd [1950] 1 All ER 1018, [1950] AC 508, HL.

Smith v Portsmouth JJ [1906] 2KB 229, 75 LJKB 851, 95 LT 5, 70 JP 497, 54 WR 598, 22 TLR 650, 50 Sol Jo 575, CA.

Sussex Peerage Case (1844) 11 Cl & Finn 85, [1843-60] All ER Rep 55, 8 Jur 793, 8 ER 1034, 3 LOTS 277, 6 State Tr NS 79, HL.

Thomas v Kelly (1888) 13 App Cas 506, [1886-90] All ER Rep 431, 58 LJQB 66, 60 LT 114, 37 WR 353, 4 TLR 683, HL.

Tuffuor v Attorney-General [1980] GLR 637, SC.

Whitney v Inland Revenue Commissioners [1926] AC 37, 95 LJKB 165, 134 LT 98, 42 TLR 58, 10 TC 88, HL.

Woking Urban Council (Basingstoke Canal) Act 1911, Re [1914] 1 Ch 300, 83 LJ Ch 201, 110 LT 49, 78 JP 81, 30 TLR 135, 12 LGR 214, CA.

ACTION in the Supreme Court for a declaration that the swearing-in of judges of the superior courts by the Chief Justice, and not by the President, was in violation of the 1992 Constitution.

ADADE JSC. On 23/2/93, the Chief Justice, 1st defendant to this action, armed with a letter dated 22/2/93 from the President’s office, administered the oath of allegiance and the judicial oath to justices of the Supreme Court. Three days later, on 26/2/93, justices of the Court of Appeal were likewise sworn. The Ghana Bar Association complains that in either case the swearing-in was not in conformity with the 1992 Constitution and was null and void.

The Association’s first step was to write to the Chief Justice exhibit SC2, dated 4/3/93, explaining in some detail its position. Not receiving any satisfactory response, and apparently teased by the report of a press conference given by the Judicial Secretary, the 2nd defendant, the Association mandated three of its principal officers to institute the present action.

In their statement of case, as in the writ of summons filed on 18 March 1993, the three officers describe themselves respectively as the National President, the National Vice-President and the National Secretary of the Ghana Bar Association.

As was pointed out by the defendants in their statement of case, the plaintiffs do not need to sue in a representative capacity since by article 2 of the constitution, any person “who alleges that any act or omission of any person is inconsistent with, or is in contravention of, a provision of the constitution may bring an action in the Supreme Court for a declaration to that effect.” Nothing however turns on the capacity in which the plaintiffs have sued, and the question need not be addressed further.

The 1st and 2nd defendants, although not described by office in the title of the action, were sued in their official capacities as the Chief Justice and the Judicial Secretary respectively, of the Judicial Service. The 3rd defendant is the Attorney-General of the Republic of Ghana, and was sued as such.

By their writ of summons, the plaintiffs seek two reliefs, viz.

 “1. A declaration that by the combined effect of article 156(1),

(2) and (3), section 4 of the Transitional Provisions (the 1st Schedule) and the 2nd Schedule of the 1992 Constitution of the Republic of Ghana, all justices of the Supreme Court, the Court of Appeal and the High Court in Ghana holding office immediately before the coming into force of the said constitution are obliged to take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the said constitution before the President of the Republic of Ghana only and not before any other person.

2. A declaration that the purported taking and subscribing of the oath of allegiance and the judicial oath by justices of the Supreme Court and the Court of Appeal of Ghana on or about 23rd and 26th February 1993, respectively, before the Chief Justice is null and void and of no effect whatsoever.”

In the statement of case accompanying the writ of summons, the plaintiffs explain at some length, as they did in exhibit SC2, why they consider the action of the Chief Justice unconstitutional. They argue in particular, that by the combined effect of article 156 and section 4 of the Transitional Provisions the Chief Justice has no capacity to administer the oath of allegiance and the judicial oath to justices of the superior courts.

The defendants quite naturally reject this argument. They contend, in particular, per paragraph 8 of their statement of defence thus:

“8. The defendants say further, or in the alternative, that the President properly designated the 1st defendant, the Chief Justice, by letter Ref No OP/S 550 dated 22/2/93, a copy of which is annexed hereto, to administer the oath of allegiance and the judicial oath to justices of the superior courts whose appointments continued under the Transitional Provisions.”

That letter shows, at the extreme left hand corner, that it was received by the Office of the Chief Justice on 23/2/93, the same day that the justices of the Supreme Court were sworn. The letter reads as follows:

“ADMINSTRATION OF OATH OF OFFICE TO JUDGES OF THE SUPERIOR COURTS - SECTION 4 (PART III) TRANSITIONAL PROVISIONS

In conformity with section 4, Part III (Transitional Provisions) of the constitution, the President has designated the Chief Justice to swear-in the judges of the superior courts.

(Sgd) ATO DADZIE

OFFICE OF THE PRESIDENT.

HIS LORDSHIP,

CHIEF JUSTICE,

SUPREME COURT BUILDINGS,

ACCRA.”

Thus for the first time the defendants gave an indication that the Chief Justice might have acted, not on his own authority after all, as claimed in the original statement of defence (see paragraphs 5, 6 and 8 of the statement of defence), but that he was authorised by the President to act, as it were, as the President’s agent. In all the paragraphs of the statement of defence referred to, the defendants emphasised that the Chief Justice acted “in his capacity as the Chief Justice.” The new paragraph 9 introduced another capacity, viz. as a person authorised by the President to act; in other words, as the agent of the President. This is sought to be established by the letter of 22/2/93.

This letter, it is to be observed, merely conveys the information that the President has done something. The defendants say he designated the Chief Justice to do an act and that it was not a delegation of authority. The plaintiffs, on the other hand, say that what the President did was a delegation of authority, and that it was in breach of the Constitution.

When a person is delegated to do an act, he is entrusted with a function to discharge. Designating a person to do something is equally to ask him to do that thing; it is to entrust him with a function to perform. To me the two terms mean the same thing and may be used interchangeably. I see no point in quibbling over them, especially in a document such as a constitution.

In this case the letter says the President has designated the Chief Justice to swear-in judges. The designation, or delegation, might have been by a power of attorney or by a deed under the presidential seal or by word of mouth. The letter is not any of these; it is not the document by which the designation or delegation was done. If delegation vel non, and the manner in which it was done had been issues requiring proof in this case, it might not have been easy to accept this letter as providing that proof.

Notice that paragraph 9 is pleaded as “further or in the alternative”, implying that it is “additional to” or “alternative to” paragraph 8. In a case such as this, I wonder whether a plea in this form is open to the defendants. If the act complained of were about to be performed, in future, I can very well understand a defendant in effect saying: “I have a range of options to choose from. I can do it on my own authority; alternatively I can do it on the authority of Mr X as his attorney or agent.” But where the act has already taken place a defendant must know by what authority he acted, his own or another person’s.

The two defences pleaded are mutually exclusive; the one excludes the other. For if the 1st defendant used his own authority, conferred, as pleaded in paragraph 8, by certain laws, then he did not rely on presidential authority. If, on the other hand, he performed the act in reliance on authority delegated to him by the President, then he is impliedly admitting that he had no authority in himself to do it or if he had, he did not use the authority on that particular occasion; he depended on some authority external to himself.

I think the defendant ought to have elected. Pleading the two defences together, even in the alternative, creates the unfortunate impression that the defendants are unsure of the source of their authority, or else that they have no credible defence and are groping for one, which does not send the right signals.

At a stage in the proceedings, I hinted that the defendants had abandoned one of the defences. Mr Adjetey, for the plaintiffs, was quick to remind me that they had not. Somehow, the hint was not taken up, with the result that arguments concluded without the defendants strictly putting up any defence at all. Rather the defendants adumbrated a number of alternative defence options which could have been open to them, leaving it to the court to choose one defence on their behalf. I do not find this satisfactory for at the end of the day the defendants are yet to answer positively and definitely the question: “By what authority did the 1st defendant do this act - his own or the President’s?”

It is, however, to the credit of the learned and Honourable Attorney-General that shortly after he had been published as taking office, the letter from the President’s office dated 22/2/93 was pleaded and, what is more, exhibited and brought into the public domain, thus making all the facts available to the court and to all parties concerned.

When arguments began on 20 April 1993, Mr Adjetey, counsel for the plaintiffs, made two requests. The first was that, given the nature and significance of the action he considered that it would be in the interest of all if all the justices of the Supreme Court with the exception of the Chief Justice, a party to the action, were given the opportunity to express their views on the matters in controversy and that they should be empanelled to sit. The second was that as the Attorney-General was a party to the action as 3rd defendant, it was not proper that he should argue the case as counsel for all three defendants. This latter point was not pressed and, to all intents and purposes, must be taken to have been abandoned.

The first request was refused. The minimum number of justices to sit at any one time was constitutionally fixed at five under article 128(2) “except as otherwise provided in article 133” (relating to the exercise of the review jurisdiction of the court).

Whilst I agree that each judge should have the opportunity to let the world know how he interprets the articles and sections of the constitution in issue, it is not mandatory, nor necessary, that this be done. Seven is large enough a number to deal with the matter. Further, granting the request will be setting an unhealthy precedent; the court will be ceding to litigants the right to dictate the strength of the panel at any one time. Next time, I can see a party complaining that a panel of nine sitting on his case is too unwieldy and may delay his case, and should be reduced to the constitutional minimum of five.

Empanelling a court is the prerogative of the Chief Justice, and unless there is very good reason for seeking a change, e.g. on grounds of legal bias, I will be loath to interfere with the Chief Justice’s exercise of his prerogative. No such reason was advanced on this occasion.

From the nature of the pleadings and the arguments in court, the relevant pieces of legislation which call for interpretation are article 156 of the 1992 Constitution, section 4 and section 25 of the Transitional Provisions (or 1st Schedule), the oath of allegiance and the judicial oath contained in the 2nd Schedule to the constitution.

Let me observe at this point, by way of putting myself on caution, that the 2nd Schedule to the Constitution is not part of the Transitional Provisions as certain statements would seem to imply (see paragraphs 7 and 8 of the statement of defence). The said schedule does not enjoy the precedence accorded to the Transitional Provisions by article 299 of the constitution.

Article 156(1) of the Constitution reads as follows:

“(1) A Justice of a Superior Court, the Chairman of a Regional Tribunal and also a person presiding over a lower court or tribunal and any other judicial officer or person whose functions involve the exercise by him of judicial power shall before assuming the exercise of the duties of his office take and subscribe the oath of allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.

(2) The President may, on the advice of the Chief Justice, direct that any other person connected with the exercise of judicial power, shall take and subscribe the Judicial Oath.

 (3) The Oath of Allegiance and the Judicial Oath required by this article shall be taken and subscribed

 (a) in the case of the Chief Justice or other Justice of a Superior Court, and a Chairman of a Regional Tribunal, before the President; and

(b) in the case of any other person, before the Chief Justice or before any other Justice of a Superior Court or Chairman of a Regional Tribunal as the Chief Justice may direct.”

Section 4 of the Transitional Provisions says:

“4(1) A justice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under this Constitution.

(2) Any person to whom this section applies shall on the coming into force of this Constitution, take and subscribe the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.”

The oaths themselves are, for the purposes of the present case, not of any significance. What is important is the note appearing in italics at the foot of each of the oaths. These were referred to in argument as footnotes or as indicators. I propose, for convenience, to keep the description, footnotes, although I am sure that the term is not acceptable to all sides.

Article 156(3) divides all the persons mentioned in article 156(1) into two groups, viz.

(a) Group 1 - The Chief Justice, justices of the superior courts and chairmen and,

(b) Group 2 - all others not comprised in Group 1.

By article 156(3) all persons in Group 1 are to be sworn by the President: article 156(3)(a). The Chief Justice has nothing to do with them. Superior court justices fall within Group 1, not Group 2. Therefore the Chief Justice, as Chief Justice, cannot properly swear them. The defence, such as is pleaded under paragraph 8 of the statement of defence cannot avail the defendants.

The Chief Justice can act under article 156(3)(a) only if the President authorises him to act. The question therefore is whether the President can, under article 156(3)(a), delegate his functions to the Chief Justice. Going by the structure of the legislation in issue I am bound to answer this question in the negative.

Both sub-section (3)(a) and sub-section (3)(b) are part of the same article 156. Sub-section (3)(b), coming immediately after sub-section (3)(a), expressly empowers the Chief Justice to delegate his functions in relation to persons within Group 2. Even there, the delegation is not open-ended; it must be to a person within a specified group. Article 156(3)(a) does not contain any such power of delegation. The constitution-makers have evinced a clear intention that the President should have no such power. A delegation to the Chief Justice under article 156 is therefore out of the question.

In the same way it strikes me that notwithstanding his exalted position, the President cannot assume functions under article 156(3)(b) and proceed to swear-in persons within Group 2, e.g. circuit judges, magistrates etc, nor can the Chief Justice delegate his functions under the said article 156(3)(b) to the President. Any such delegation will not be in accordance with the constitution.

Article 60(1) however permits the President to delegate or assign any of his functions, those under article 156(3)(a) included, to the Vice-President. Attention may here be drawn to article 60(8) under which the Vice-President, as Vice President, performs the duties of the President. But he does this, not as a result of any delegation of authority from the President, but because the constitution asks him to take on those duties, as a matter of necessity, for the reason that “the President is absent from Ghana or is for any other reason unable to perform the functions of his office”; see (article 60(8)). No question of delegation or designation is involved here.

Again under article 60(6) the Vice-President takes over the duties of the President. But here he assumes the office as President; he does not perform as Vice-President and therefore an issue of delegation does not arise either.

If both President and Vice-President should be unavailable, the Speaker of Parliament would assume the functions of the President under article 60(11). The constitution has made more than adequate provision for the discharge of the functions of the office of the President. I am convinced that under article 156(3)(a) the President cannot delegate his functions to the Chief Justice; similarly the Chief Justice cannot delegate his to the President under article 156(3)(b).

It even appears to me that the arrangements under article 156 are closely linked to those under article 144 which deals with the appointment of judges. It will be seen that judges in Group 1 (article 156) are, appointed by the President under article 148. Those in Group 2 (judicial officers) are appointed by the Chief Justice under article 18. It may be that the constitution makers, in structuring article 156, worked with the idea that he who appoints, inducts his appointees into office by swearing them.

It has been argued that article 156(1) applies only to new judges, and has no application to sitting justices. The argument urged in support of this contention is the phrase “before assuming the exercise of the duties of [their] office” appearing, in article 156(1) of the 1992 Constitution. Mr Adjetey, for the plaintiffs, conceded this point.

In matters of fact a court is generally bound by admissions, concessions, accords etc by or between parties and, or their counsel. In matters of law, a court is not so bound. I am not attracted by the arguments advanced that article 156(1) applies only to new judges, because of the phrase “before assuming the exercise of the duties of [their] office.”

Section 4 of the Transitional Provisions stipulates that superior court judges in office on the eve of 7/1/93, referred to in this opinion as “sitting judges” or “sitting justices”, “shall continue to hold office as if appointed under [the] constitution”. In other words, although those judges were in fact not appointed under the constitution, it must be taken or assumed that they were so appointed.

Appointments of superior court justices under the constitution are governed by article 144, the relevant portions of which read:

“144.(1) The Chief Justice shall be appointed by the President, acting in consultation with the Council of State and with the approval of Parliament.

(2) The other Supreme Court Justices shall be appointed by the President on the advice of the Judicial Council, in consultation with the Council of State and with the approval of Parliament.

(3) Justices of the Court of Appeal and of the High Court and Chairmen of Regional Tribunals shall be appointed by the President acting on the advice of the Judicial Council.”

It is obvious that the Council of State, established by article 80, was not operative on 7 January 1993, the members had not been appointed. We may take judicial notice of the fact that the members were appointed in April this year and sworn into office on or about 27 April 1993. Similarly the Judicial Council created under the constitution had not been established, and even if it were granted that the council existing prior to 7 January could carry on under section 8(1) of the Transitional Provisions, nobody can claim that it has had anything to do with the tenure of office of sitting justices since 7 January 1993 nor has Parliament either.

In short, sitting justices have not gone through the procedures for appointment laid down under the constitution. This notwithstanding, section 4 of the Transitional Provisions provides that it be assumed that they have been appointed under article 144. The phrase “as if appointed … under the constitution” clearly conveys a legal fiction. What it says is not true in fact, but we are asked to assume it to be true, for convenience and in order to attain certain desirable objectives: in this case, for the purpose of a smooth transition.

There was some argument as to whether “as if” in section 4 of the Transitional Provisions has the same force and effect as “deem” as used in certain enactments and in some places of the constitution. To me this is a mere splitting of hairs over practically nothing. The phrases “as if”, “shall be deemed”, “shall be taken as” etc have the same or similar import: they all introduce messages which are clearly legal fictions. See e.g. section 1(1), 2(1) of the Transitional Provisions both of which use the phrase “shall be taken to have been duly elected.”

By these sections, both the President and Parliament, although elected long before the constitution came into force on 7/1/93, are “taken to have been duly elected for the purposes of the constitution.” In both sections the phrase “shall be deemed to have been duly elected”, or “as if duly elected under the constitution” would equally have been appropriate. Thus while sections 3(1), 8(1) and 31(2) of the Transitional Provisions use “shall be deemed”, sections 11, 22(1) and 31(1) prefer the phrase “as if.” All of them have the same significance.

The sitting judges under section 4 of the Transitional Provisions are deemed to have been appointed under the constitution and therefore are taken as having gone through all the procedures required for their appointment under the constitution. For all practical purposes therefore, they are appointees under the constitution, in the same manner as new entrants are appointees under the constitution. They have all been appointed under article 144, the one, in fact, the other, by a device of legal fiction.

Article 156 requires appointees to take the two oaths in the 2nd Schedule. The repetition of this requirement in section 4(2) of the Transitional Provisions is merely to remind the sitting justices that notwithstanding the fact that they have, by a legal fiction, skipped the procedures in article 144 they must nonetheless take the oaths as anyone else. The requirement therefore is to emphasise the fact that sitting judges are in no different or privileged position, vis-à-vis new entrants, as far as the obligation to take the oaths is concerned.

After all, both categories of judges, being creatures of the constitution, must at some time or the other assume office, i.e. embark upon their duties “under the constitution.”

In the case of new judges, the phrase “before assuming the exercise of the duties of their office” in article 156(1) implies that they are to take the oaths as soon as practicable after their appointment. So long as they have not started work or do not intend to start work, they need not take the oath. They take it if they are about to assume office.

In the case of sitting judges the position is slightly different. There is some urgency about their case. Because they are already in office but are to continue to function under section 4 of the Transitional Provisions “as if appointed … under the constitution”, they are to take the oaths “on the coming into force of the Constitution.” Strictly interpreted this means on 7/1/93, the date on which the constitution came into force.

But we are expounding a constitution, not a penal code; a lot of flexibility is called for. Accordingly I think that the 7/1/93 or within a reasonable time thereafter as may be convenient would be an acceptable interpretation.

The question then would be: What is reasonable time? I would not consider a delay of seven days or, 14 days, too much. But given the urgency implicit in the phrase “on the coming into force of the constitution”, and the fact that the sitting judges must continue to sit, a period of 14 days will appear to me to be unreasonable, and not in accord with the spirit of the constitutional provision that the oaths be taken “on the coming into force of the constitution.”

The obvious intendment of this provision is that sitting judges, like the newly-appointed ones, must also take the oath before entering upon their duties under the constitution; see s 4(1) of the Transitional Provisions.

It must be noted that prior to the constitution these judges were in office and discharging their duties. But the duties were, quite naturally, not being performed under the constitution; they could not have been. From 7/1/93, however they were to discharge their duties “under the constitution”; they were assuming office under the constitution, if only because they were deemed to have been “appointed to their offices under the constitution” under section 4(1) of the Transitional Provisions and not under any other law.

To my mind the phrase “before assuming the exercise of the duties of their office” appearing in article 156(1) cannot be limited to post-constitution appointees only; it applies to sitting judges too. Therefore article 156 applies to both categories of judges. They are both required to take the same oaths as appear in the 2nd Schedule and the administering officer is as mentioned in article 156(3) i.e. the President.

This argument is not affected in any way by section 3 of the Transitional Provisions, that:

“3(1) The Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of the Constitution shall be  deemed to have been established under this Constitution and shall perform the functions of the Supreme Court, the Court of Appeal and the High Court specified respectively in Chapter 11 of this Constitution.

(2) All proceedings pending before any court referred to in sub-section (1) of this section immediately before the coming into force of this Constitution may be proceeded with and completed in that Court notwithstanding anything in this Constitution.” (Emphasis supplied.)

This section has nothing to do with the oath-taking by justices. It is only designed primarily to ensure that writs and appeals filed before 7 January 1993 and pending in the morning of 7 January 1993, do not abort on 7 January 1993. There is no need to file these writs and appeals afresh in what would otherwise be the new post-constitution courts established under Chapter 11. The old courts are deemed to have been established under that Chapter 11.

But the defendants say that section 4 of the Transitional Provisions, which obliges sitting judges to take the oaths does not specify the functionary before whom the oaths are to be taken and that in those circumstances we must fall on NRCD 6, section 9 which lists the Chief Justice as one of several persons authorised to administer any lawful oath.

They also refer to section 25 of the Transitional Provisions that:

“25. The Oaths Decree, 1972 (NRCD 6) as amended, shall have effect subject to the provisions of this Constitution.” (Emphasis supplied.)

That Decree was passed in 1972. Since then it has undergone a number of amendments, mainly consequential, arising from the changes in government from the National Redemption Council to the Supreme Military Council to the Armed Forces Revolutionary Council to the 3rd Republic and to the Provisional National Defence Council. In substance, however, the Decree has remained intact from 1972 through 1991. We may therefore safely take a leap from 1972 straight to 1992 to see what amendments have become necessary as a result of the 1992 Constitution.

The Oaths Decree 1972 (NRCD 6) by itself has no application to sitting judges. Section 3 of the Decree states:

“3.(1) No person who has duly taken the Oath of Allegiance or the Judicial Oath shall be required again to take that oath on the appointment to any other office or on any other occasion.

(2) No person shall be required to take any oath on appointment to any office unless that oath is different from or in addition to an oath duly taken by him, in respect of any other appointment.” (Emphasis mine.)

The oaths that the sitting judges are required to take, and did take, are the oath of allegiance and the judicial oath. These are not different from or in addition to what each had already taken. I hope the defence is not contending that all the sitting judges had not taken any of those oaths for over the past 10, 15 or even 20 years that they had been sitting on the Bench. The court can take judicial notice of the fact that all the judges, including those appointed shortly before the constitution, had all been sworn before the constitution came into force on 7/1/93.

By section 3(1) therefore the sitting judges, having duly taken the oaths “shall [not] be required again to take those oaths on appointment to any other office or on any other occasion.”

Thus because of section 3, the whole of NRCD 6 does not apply to sitting justices; for if the justices are not to be sworn, then the question of who should swear them, how and when etc do not arise. Therefore section 9 of the Decree on which reliance is placed by the defendants as well as section 2 (along with the 2nd Schedule) will also not apply.

But section 25 of the Transitional Provisions 1992 requires that the Decree be applied “subject to the provisions of the Constitution.” One such provision to which NRCD 6 must be made subject is article 156 which defines the persons competent to swear judges. This article, inserted into NRCD 6, amends section 2 and section 9 of the Decree as to those who should administer the oath. Thus under Column 3 of the 2nd Schedule to the Decree there will appear only the phrase “The President” against the names “Chief Justice” and “Justices of the Superior courts” in Column 2. We must also add “Chairmen of Regional Tribunals” under Column 2, against which, in Column 3, must be written President. Column 3 of Schedule 2 of NRCD 6 must be read and interpreted with great discernment.

On each occasion, at least as far as the judiciary is concerned, the person to administer a particular oath must be ascertained from the constitution or other relevant law. Section 9 of NRCD 6 cautions that the persons therein-mentioned “may administer any lawful oath required to be taken or made for the purpose of complying with any law ... except where such law expressly or by necessary implication excludes such procedure.”

Another provision of the constitution which must amend the Decree is section 4(2) of the Transitional Provisions, requiring sitting justices to take the oath. This, inserted into the Decree, will abrogate section 3 thereof (already referred to) or else effect such modifications to it as will make the Decree applicable to sitting justices too. A simple amendment that readily suggests itself to me is to insert “other than a justice of a superior court” immediately after “No person” in section 3(1). The sub-section will then read:

 “3(1) No person, other than a justice of a Superior Court, who has duly taken the Oath of Allegiance or the Judicial Oath shall be required again to take that oath on appointment to any other office or on any other occasion.”

Sub-section (2) will then be rendered as follows:

 “(2) No such person as is mentioned in sub-section (1) above shall be required to take any oath on appointment to any office etc.”

Thus amended, the Decree would have satisfied the requirements of the constitution.

It will then be seen immediately that it must be applicable to all justices, new, as well as old. A better way of dealing with the same section 3 of NRCD 6 may be to bring back the original sub-section 3 of section 3 of the Oaths Act 1960 (CA 12) which was dropped when the said section was re-enacted in NRCD 6. That sub-section was:

“(3) For the avoidance of doubts and notwithstanding the provisions of sub-section (1) of this section a person holding an office specified in the Second column of the Second Schedule to this Act shall, on or immediately after the first day of July, 1960 as may be convenient, take the oath, prescribed for that office in the first column of the said Schedule.” (Emphasis supplied.)

Subsections 3(1) and 3(2) of CA 12 are the same as subsections 3(1) and 3(2) of NRCD 6. The Second Schedule referred to in the just-quoted subsection (3) is the same as the Second Schedule in NRCD 6 and the columns are also identical.

The Oaths Act 1960 (CA 12) was enacted on 29 June 1960 to cater for the requirements of article 45(2) of the 1960 Constitution that:

“(2) Provision shall be made by law for the form and administration of the Judicial Oath which shall be taken by every person appointed as judge of the Supreme Court, or as a Judge of the High Court before the exercise by him of any judicial function.” (Emphasis supplied.)

CA 12 was one of the Acts passed by the Constituent Assembly, along with the constitution, to come into force on the same date as the constitution on 1 July 1960. The idea of article 45(2) of the 1960 Constitution is repeated in section 2 of CA 12, viz.

 “2. A person appointed to an office set out in the second Column of the Second Schedule to this Act shall take the oath specified in the first column of the said Schedule which shall be administered by the authority specified in the third Column of the said Schedule.” (Emphasis supplied.)

The two provisions quoted above will seem to apply to new appointees only after 1 July 1960, until we come to section 3(3) of CA 12 which puts it beyond doubt that those provisions apply also to persons holding the same offices as are specified in section 3 of CA 12, i.e. holding office prior to July 1960. These persons take the same oaths, which are administered by the same authorities as are mentioned in the same 2nd Schedule.

The difficulty seems to have been created when, within barely a week of their seizing power, the NRC, re-enacting NRCD 6 dropped subsection 3 of the earlier Oaths Act 1960 (CA 12) from their own section 3, in all probability as a result of some form of prodding from within the judiciary.

The requirement under section 4 of the Transitional Provisions 1992 that sitting judges must also take the oaths, sends us back to section 3(3) of CA 12, and to the situation as it existed prior to NRCD 6 that both new and old judges must take the same oaths in the 2nd Schedule, to be administered by the same authorities. There was not one regime for new appointees, and another for sitting justices; those “holding over” from one era to the other. If we have problems in handling the new situation, prudence dictates that we look at what it was before 1972.

In Halsbury’s Laws of England Vol 36 3rd ed p 402 para 607 it is stated that:

 “All statutes made in pari materia should be construed together, as one system and as explanatory of each other, so that when there is an ambiguity in one, it may be explained by reference to another statute in the same system. In construing a statute it is therefore legitimate to refer to an earlier statute in pari materia even if it has expired or has been repealed.”

Thus NRCD 6, appropriately amended, as to competent oath administrators, (see article 156(3)) applies to all justices, new and old. It is a contradiction to say that NRCD 6 applies to sitting justices, but that article 156 does not apply to them. NRCD 6 which applies by virtue of section 25 of the Transitional Provisions is not the original, the raw, NRCD 6; it is the one which has been amended, changed or polished by the constitution, which therefore incorporates article 156 inter alia. So that applying NRCD 6 is the same as applying article 156.

The defendants cannot eat their cake and have it: they cannot take the benefit of section 25 of the Transitional Provisions to apply NRCD 6 and at the same time refuse to amend it before applying it by conveniently ignoring article 156. NRCD 6 must be applied “subject to the provisions of the constitution” ( section 25 of the Transitional Provisions).

For this additional reason I am of the opinion that the contention by the defendants that article 156(3) applies only to new judges cannot be seriously persisted in. It is untenable and I reject it.

Further, the provision in the Oaths Act 1960 (CA 12), section 3(3) quoted above, that persons (including judges) holding offices before the constitution came into force on 1/7/1960 “shall take the prescribed oaths on or immediately after the 1st day of July 1960 as may be convenient” gives us a reliable clue as to how to interpret and apply the requirement in the 1992 Constitution, section 4(2) of the Transitional Provisions that sitting justices must take the oath “on the coming into force of this Constitution.”

All else failing, the defendants rely on the footnotes as justifying the act of the 1st defendant. This posture presupposes that the defendants are abandoning reliance on presidential delegated authority.

In the first place, the footnotes, like marginal or side notes, are not part of the legislation. They are not debated by Parliament, (in this case the Consultative Assembly); you will never find them anywhere in the debates of the Consultative Assembly. Side notes are put in by the draftsman, with the best of intentions no doubt, as subject headings, or as quick guides to the subject-matter of the various sections. That is why, on occasions, they may be looked at for interpretation of the sections to which they refer. But the fact remains that they are not part of the statute. So also, in my view, are footnotes.

It was suggested vaguely that these footnotes were put in italics purposely to emphasise their importance as an essential part of the oaths. There can be nothing further from the truth. After all they could have been put in italics to distinguish them from the oaths themselves, and to emphasise that they are not part of the oaths. Besides, if they are part of the oaths, as claimed then one would expect that they will be recited along with the oaths when the oaths were being sworn. But let anyone try to do this at a swearing-in ceremony. He will be taken, at best, to have lost concentration.

The footnotes to the oaths in the 1992 Constitution were simply reproduced by the draftsman from the predecessor constitutions of 1969 and 1979, without much regard to the changes effected in the body of the 1992 Constitution. For instance the footnotes to the Judicial oath in the 1992 Constitution reads:

“To be sworn before the President, the Chief Justice or such other person as the Chief Justice may designate.”

This is the same as appears in the 1969 and 1979 constitutions. But we do know that in each of those constitutions the provision for oath-taking by justices of the superior courts are not the same.

In the 1969 Constitution the oaths were administered by:

“(a) The President in the case of the Chief Justice, and

(b) the Chief Justice in the case of any other such judge…”

 i.e. judge of the Supreme Court, Court of Appeal and High Court: article 118 of the 1969 Constitution.

There was no provision for delegation of functions by any of those two authorities, the President and the Chief Justice.

In 1979 the corresponding provisions were:

“(a) the President, in the case of the Chief Justice and the other Justices of the Supreme Court; and

(b) the Chief Justice, in the case of any other such Justice.”

[i.e. judges of the Court of Appeal and the High Court: article 130 of 1979 Constitution).

Here again there was no provision for delegation of functions by the President or the Chief Justice.

The situation in the 1992 Constitution, as we have already seen, is again quite different (see article 156) i.e. the President swears all justices of the superior courts, i.e. the Supreme Court, Court of Appeal and High Court.

All these differences notwithstanding, we have the same footnotes in all three constitutions, a sure indication that a blind and uncritical application of the footnotes cannot be appropriate. In each case therefore the obvious course is to look at the provisions in the enabling articles themselves, and not footnotes reproduced almost mechanically, if I may say so with respect, from constitution to constitution. I cannot see that the footnotes are any help to the defendants.

It only remains for me to comment very briefly on article 297 of the constitution on implied powers. The defendants have drawn the court’s attention to this article, in particular sub-sections (h), (i) and (j), arguing that the President may lawfully delegate his authority to the Chief Justice under one or the other of these subsections. The subsections are:

 “297. In this Constitution and in any other law

(h) words directing or empowering a public officer to do any act or thing, or otherwise applying to him by the designation of his office, include his successors in office and all his deputies and all other assistants;

(i) words directing or empowering a Minister of State to do an act or a thing, or otherwise applying to him by the designation of his office, include a person acting for him, or if the office is vacant, a person designated to act in that office by or under the authority of an act of parliament and also his successors in office and all his deputies or other assistants;

 (j) where a power is conferred or a duty is imposed on the holder of an office as such, the power may be exercised and the duty shall be performed by the person for the time being charged with the performance of the functions of that office.”

I shall limit myself to very short comments on the above: (a) sub-section (h) provides words applying to an officer by designation of his office “include his successors in office and all his deputies and

 all other assistants.” I have reason to believe that no one will quarrel with an assertion that the Chief Justice is not the “successor in office” to the President, nor his deputy, nor his assistant. The Chief Justice is head of the third arm of state - the judiciary. The President belongs to a different arm of state, the Executive. The Judiciary is “independent and subject only to [the] Constitution” - article 125 (1). The head of this independent body cannot be an assistant to the President; (b) sub-section (i) applies to Ministers of State: article 78. The President is not a Minister of State: article 57; (c) sub-section (j) is not relevant either. The President has always been at post. It has never become necessary for anyone to take over his functions “for the time being.” If this should become necessary, the person to assume his functions will not be the Chief Justice, as already explained in this opinion; (d) I have also looked at sub-section (c) of article 297. I find that for reasons given inter alia in (a) above, it cannot benefit the defendants either.

In my opinion the plaintiffs have made out their case. I agree with them that under article 156 the authority to administer the oaths to justices of the superior courts is the President’s; that this function cannot be delegated to the Chief Justice; that sitting justices under section 4 of the Transitional Provisions must be sworn in the same manner as post-constitution justices, by the President, and not by the Chief Justice.

I will grant the declarations sought, subject only to slight amendment, by deleting “and not before any other person” appearing at the end of the 1st relief. In my view, and as explained above, the oaths may properly be administered by the Vice-President or by the Speaker of Parliament, as the occasion demands, but not by the Chief Justice.

FRANCOIS JSC. “Who swears the judges?” or its variant “Swear them at your peril” might well be apt captions of a melodramatic soap opera. But levity aside, they sadly encapsulate the very serious constitutional issue in this declaratory action.

The plaintiffs who are high office holders of the Ghana Bar Association, invoke the original jurisdiction of this court to seek the following declarations:

“1. A declaration that by the combined effect of article 156(1), (2) and (3), section 4 of the Transitional Provisions (the 1st Schedule) and the 2nd Schedule of the 1992 Constitution of the Republic of Ghana, all justices of the Supreme Court, the Court of Appeal and the High Court in Ghana holding office immediately before the coming into force of the said constitution are obliged to take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the said constitution before the President of the Republic of Ghana only and not before any other person.

2. A declaration that the purported taking and subscribing of the oath of allegiance and the judicial oath by justices of the Supreme Court and the Court of Appeal of Ghana on or about 23rd and 26th February 1993, respectively, before the Chief Justice is null and void and of no effect whatsoever.”

The plaintiffs charge the defendants, the Chief Justice, the Judicial Secretary and the Attorney-General, with violating or permitting the violation of the constitution by disregarding the proprieties duly set out for administering the oath of allegiance and the judicial oath to the Superior Court judges.

The plaintiffs urge that the constitutional requirements in article 156 and section 4 of the Transitional Provisions admit of only one construction namely, that all superior court judges subscribe and have administered to them the oath of allegiance and the judicial oath by only one person, the President. They argue that the manner Superior Court judges subscribe to the constitutional oaths referred to is laid down and circumscribed by article 156(3). They further urge that since article 156 introduced the 2nd Schedule, there could be no proper interpretation of s 4 of the Transitional Provisions in relation to the offspring, the 2nd Schedule without reference to article 156, its procreator. This is the linkage theory.

The plaintiffs warn that what appear at the tail piece of the various oaths in the 2nd Schedule are mere footnotes which should be taken to restrict or modify article 156.

It is the plaintiffs’ view that no distinction is permissible between justices of the superior courts affected by s 4 of the Transitional Provisions and those to be appointed in the future, and the true construction of the constitution affords no warrant for drawing any distinctions.

Turning to the power of the President to administer oaths, the plaintiffs urge that the President has no constitutional power to delegate or designate someone to exercise his power to administer oaths to Superior Court judges. Article 297 which deals with the implied powers of the President, gives no such authority. Even if delegation were at all possible, the argument goes on, the proprieties of delegation which a court could properly countenance had not been observed.

A power of delegation which a court would recognise, must be under the hand and seal of the President, especially as the duty of administering an oath is not an executive exercise or function, but is personal to the President, who occupies the position of a trustee and is the personification of the state.

The Attorney-General challenged the plaintiffs’ interpretation of these provisions of the constitution. He denounces an interpretation that christens imperative directions as “footnotes” and points to an elementary cannon of construction which requires every word of a section to be given equal force. The distinction which article 156 and s 4 of the Transitional Provisions sought to make between serving Superior Court judges and those subsequently to be enrolled was real and could not be ignored. Article 156 (1) and (3) of the 1992 Constitution provide as follows:

“156 (1) A Justice of a Superior Court, the Chairman of the Regional Tribunal, and also a person presiding over a lower court or tribunal, and any other judicial officer or person whose functions involve the exercise by him of judicial power shall before assuming the exercise of the duties of his office take and subscribe the oath of allegiance and the judicial oath set out in the Second Schedule to this Constitution.

(3) The Oath of Allegiance and the Judicial Oath required by this article shall be taken and subscribed-

(a) in the case of the Chief Justice or other Justice of a Superior Court, and a Chairman of a Regional Tribunal, before the President, and

(b) in the case of any other person, before the Chief Justice or before any other Justices of a Superior Court, or Chairman of a Regional Tribunal as the Chief Justice may direct.” (Emphasis supplied.)

There are clearly very important limitations to the operation of article 156 (3). First, it affects only new appointees, that is, those exercising judicial power for the first time. For it states that the oath taking and its subscription must be done “before assuming the exercise of the duties of his office.” Second, the prescribed oaths relate only to conditions stipulated by the article, i.e. limited to article 156. That is the true intendment of the “oath required by this article” in article 156(3). Section 4 of the Transitional Provisions under Part III, which deals exclusively with the judiciary states:

“4. (1) A Justice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under this Constitution.

(2) Any person to whom this section applies shall, on the coming into force of this Constitution, take and subscribe the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.”

In the 2nd Schedule after the wording of the oath of allegiance, are the following words:

“To be sworn before the President, the Chief Justice or such other person as the President may designate.”

The concluding words to the judicial oath are in the following terms:

“To be sworn before the President, the Chief Justice or such other person as the Chief Justice may designate.”

Any attempt to construe the various provisions of the constitution relevant to the present enquiry must perforce start with an awareness that a constitutional instrument is a document sui generis to be interpreted according to principles suitable to its peculiar character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. Though basic rules of statutory construction may provide the first steps, they should strictly be kept at the first rung as servants and never elevated in flight as masters.

This essential pre-requisite is illustrated in a number of cases. In Minister of Home Affairs v Fisher [1979] All ER 21 at 26, Lord Wilberforce delivered himself at the Privy Council as follows:

“A Constitution is a legal instrument giving rise amongst other things, to individual rights capable of enforcement in Court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument”. (Emphasis supplied.)

It appears that the overwhelming imperatives are the spirit and objectives of the constitution itself, keeping an eye always on the aspirations of the future and not overlooking the receding footsteps of the past. It allows for a liberal and generous interpretation rather than a narrow legalistic one. It gives room for a broader attempt to achieve enlightened objectives and tears apart the stifling strait-jacket of legalistic constraints that grammar, punctuation and the like may impose. Moreover it ensures that what has been termed “the austerity of tabulated legalism”, is avoided, as also the dry interpretation of a section with its attendant difficulties. See per Lord Sumner in Inland Revenue Commissioners v Brooks  [1915] AC 478 at 493.

In interpreting the relevant provisions of the constitution we must be very careful to avoid importing into the written document what does not appear therein. For there could be no difficulty, if an extension was intended as a desired result for it to be explicitly expressed, in precise terms. Rules of construction do not permit a passage which has a clear meaning, to be complicated or obfuscated by any interpolation, however well-intentioned.

To borrow from Adegbenro v Akintola [1963] 3 WLR 63 at p 73, the constitution “must be interpreted according to the wording of its own limitations and not to limitations which that wording does not import.” That case dealt with the Nigerian constitution and declared:

“That instrument now stands in its own right; and, while it may well be useful on occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose origins can be traced or to study decisions on the Constitutions of Australia or the United States where Federal issues are involved, it is in the end the wording of the Constitution itself that is to be interpreted and applied, and this wording can never be overridden by extraneous principles of other Constitutions which are not explicitly incorporated in the formulae that have been chosen as the frame of this Constitution.”

For a further example of the principles to be borne in mind, we may turn with profit to our domestic constitutional case of Tuffuor v Attorney-General [1980] GLR 637, SC. There the court said a written constitution embodies the will of a people. Its spirit mirrors the people’s history, aspirations and hopes for the future, and is accordingly a pivotal landmark in their search for progress. It continued:

“Its language therefore 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. 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.” (Emphasis mine.)

Reflecting on the wisdom of Lord Wilberforce, in the Fisher case, supra, and turning to the relevance of history, traditions and usage, a brief diversion may be necessary at this stage to understand the administration of the oaths to superior court judges in the past. Under article 130 of the 1979 Constitution:

“A Justice of the Superior Court of Judicature, shall, before assuming the functions of his office, take and subscribe before–

(a) the President, in the case of the Chief Justice, and the other Justices of the Supreme court; and

(b) the Chief Justice, in the case of any other such Justice,

the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.”

That article dealt with newly enrolled judges, and, in a sense, did not differ from article 156 of the 1992 Constitution.

The question to be asked is how did history deal with judges then already in the Judicial Service and the answer is readily seen in the Oaths Decree 1972 (NRCD 6), specifically s 3 which states:

“3. (1) No person who has duly taken the Oath of Allegiance or the Judicial Oath shall be required again to take that oath on appointment to any other office or on any other occasion.

3(2) No person shall be required to take any oath on appointment to an office unless that oath is different from or in addition to an oath duly taken by him in respect of any other appointment.”

If a change were contemplated by the 1992 Constitution linking those already in the service with newly recruited judges, there would be an express, unambiguous statement to that effect. Tedious though it may appear, one must here repeat the well-known canon of construction that the courts will presume that the lawgiver would use clear and unmistakable words if the intention were to abrogate a long-standing rule of law. See Maxwell on Interpretation of Statues 12 Edition (1969) p 116.

This has been expressed by Devlin J in his inimitable way thus in National Assistance Board v Wilkinson  [1952] 2 All ER 255 at 260:

“It is a well established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion.”

Lord Simon states the consequences of rejecting this principle in search of the esoteric in Black-Clawson International v Papierwerke Waldhof-Aschaffenburg AG (1974)  [1975] 1 All ER 810 at 847 as follows:

“It is refusing to follow what is perhaps the most important clue to meaning. It is perversely neglecting the reality, while chasing shadows. As Aneurin Bevin said: why gaze in the crystal ball when you can read the book. Here the book is already open; it is merely a matter of reading on.”

The only unambiguous constitutional statement of relevance appears in article 156 which limits its application to newly recruited judges who must swear “before assuming the exercise of the duties of office” and further delimits the parameters in article 156(3) as oaths “required by this articles.” Any attempt to extend the scope of article 156 is clearly subversive of this direction restricting its ambit.

Again  section 4 of the Transitional Provisions is a new creature vis-a-vis the 1979 Constitution. It clearly caters for judges already in service, and deals specifically with their continuation in office and the oaths that must be subscribed by them. But for s 4(2) judges in office would not have needed to swear any further oaths; that would have been taken care of by the Oaths Decree. But section 25 of the Transitional Provision amends the Oaths Decree “to have effect subject to the provisions of this Constitution.” This means that the former dispensation or judicial absolution from swearing for judges in office was removed and in its place was introduced a requirement to swear in terms of the Second Schedule. This directive appears in the 1st Schedule dealing with the judiciary whose full force can only be gleaned by a serious consideration of article 299 which states:

“The Transitional Provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.” (Emphasis mine.)

Turning next to the 1969 Constitution, article 118 states:

A Judge of the Superior Court of Judicature shall, before assuming the functions of his office, take and subscribe before

(a)  the President, in the case of the Chief Justice, and

(b)  the Chief Justice, in the case of any other such Judge,

the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.”

Consequently in 1969, and by force of the relevant provision, it was only a Chief Justice who swore before the President. The other superior court judges subscribed their oaths before the Chief Justice.

It should however be pointed out that this article in the 1969 Constitution dealt only with new judges who were to subscribe their oaths “before assuming the functions of [their] office.” To recapitulate then, and bearing in mind Lord Wilberforce’s wise words in the Fisher case, supra, to derive guidance from past history and usage, one can only note that in 1969 superior court judges were sworn-in by the Chief Justice. Judges in office by 1979, when that constitution came into operation did not require any new oaths by force of the Oaths Decree of 1972. Consequently if changes to oaths administration of superior court judges were contemplated ousting completely the Chief Justice’s involvement in the exercise, they would have been expressly stated, especially as an explicit distinction is drawn between judges in office and those newly to be sworn into office.

Counsel for the plaintiffs has referred the court to article 144 of the 1992 Constitution in an inspired bid to compel comparison between the mode of appointment of categories of judicial officers and their respective oath administration. I find this article most unhelpful as it deals solely with officers newly inducted into office whilst the bone of conflict relates to the distinction between serving officers and those yet to be appointed.

The analogy of relevance lies, it seems to me in the modalities for administering oaths to the President and the Vice-President. Even if arguments on article 144 generated any doubts, they are effectively dispelled and positively resolved by a reference to articles 57 and 60. The mystique in oath-taking that has bedeviled the plaintiffs’ perception of the constitutional requirements can be exorcised and laid to rest once and for all by a consideration of these articles.

Article 57(3) states

“Before assuming office the President shall take and subscribe before Parliament the Oath of Allegiance and the Presidential Oath set out in the Second Schedule to this Constitution.”

The modalities for subscribing to this oath are spelt out in the 2nd Schedule, with the following mandatory directions:

“To be administered by the Chief Justice before Parliament.”

Similarly, the oath to which the Vice-President should subscribe is set out in the 2nd Schedule as indicated by article 60(5). This is “to be administered by the Chief Justice before Parliament.” If these directions are capable of effecting the administering of an unimpeachable oath, it appears utterly incomprehensible to me that they stir a hornet’s nest when the procedure is applied to serving judges even though the directions affecting them are in terms similar and bordering on a twin-likeness.

If the 2nd Schedule can be complied with without the aid of any enabling article, then the linkage theory alluded to above, which attempts to extend the ambit of article 156 to the Transitional Provisions is subversive of the constitution which demands that directions to be complied with in the 2nd Schedule created under the 1st Schedule must be given their unalloyed force.

Halsbury’s Laws of England authoritatively asserts that sections of a statute and schedules accompanying the statute are all essential elements of the intended legislation. In paragraph 551 of the 3rd edition, Vol 36 are the following words:

“…a schedule is as much an enactment, as is the section by which it is introduced.”

This is in conformity with the rule of construction that a statute should be construed as a whole. See paragraph 594. It continues in paragraph 601:

“The division of a statute into separate sections or into sections and schedules, is an arbitrary matter of convenience which ought not to affect their construction.”

Consequently where positive directions are given in a schedule as to a mode of performing an act, in the absence of any conflict or repugnancy it would be wrong to amend or add to the directions so expressly given. Moreover, the fact that those directions were sufficient for the legitimate administering of oaths to the President and Vice-President should immediately foreclose any discretion or power to tamper with them, however ingenious the reasoning for the interference. It follows, and must be stressed, that by the canons of construction, the matters set out at the tail end of the oaths in the Second Schedule must be complied with and given effect to and not taken as mere ornamental embellishments or to use counsel’s words, “footnotes”, to which he attempted no legal definition. No sound reasoning compels a different conclusion.

The apt words in the Tuffuor case must again be recalled:

“No person can make lawful what the Constitution says is unlawful. No person can make unlawful what the Constitution says is lawful.”

Draftsmen are the first to acknowledge the effect of bad drafting. Legal authority recognises their efforts in avoiding such results. In construing legislation therefore, it is unacceptable to consign difficulties in construction to the errors of the draftsman unless absurdity and repugnancy are unremitting concomitants.

In the particular circumstances of this case, it cannot be said with any degree of realism that the draftsman could not, in article 156(1), have added “while continuing in office” in order to add or link the second category of serving officers to the newly recruited. The draftsman could surely have omitted the limitation in article 156(3) “the judicial oath required by this article”, to include both categories if he were so minded, and not exclude as he positively did.

Thirdly, he would have removed the specific directions on oath taking appearing in section 4 of the Transitional Provisions, if that were his intention. In this way he could easily have contained in the same pen judges already in office and those to be yoked in the future. This shows the utter futility in reading into section 4 of the Transitional Provisions something more than is actually stated. These extensive references to the constitutional guidelines have become necessary since an essential plank of the plaintiffs’ case is an implicit linkage between article 156 and section 4 of the Transitional Provisions and the issue simply has been whether this linkage is permissible, helpful, or destructive of the legislative intent of the fundamental provisions of our constitution. The answer is obvious.

Drawing again on the amplitude of history and in particular on the perspective that the Oaths Decree 1972 provides, one notes that under that Decree, the Chief Justice leads in the persons listed to administer oaths. As the Oaths Decree 1972 was not abrogated but rather retained by the 1992 Constitution, it cannot be optimistically urged that directions for oath-taking in the 2nd Schedule of the Constitution which repeat what is contained in the Oaths Decree 1972 can be ignored. The fact that an incumbent Chief Justice swears in the President is due acknowledgment of the previous oath taken by the Chief Justice on the assumption of office. The force of this oath is not whittled down by the receipt of a constitutional oath administered by the President in return.

It is the force of this previous oath that underscores the Chief Justice’s competence to swear his colleagues as he did in the past The constitution appears to confer on the Chief Justice the competence and power denied him by the plaintiffs to administer the oath to the highest personality of State whom counsel describes as the personification of the State.

Before I conclude, some assertions of plaintiffs’ counsel must be corrected. It is not accurate to state that article 156 introduced the 2nd Schedule and therefore the latter derives its sustenance from the former. Indeed articles 57 and 60 refer to the 2nd Schedule earlier and clearly expose the error. The mistake was indeed perceived by counsel in the course of his submissions but it failed to halt him in his tracks and did not succeed either to make the slightest dent in the linkage theory he was espousing.

A lot of argument has centered round the President’s power, or lack of it, to delegate or designate, but this issue relates only to the 2nd Schedule and particularly to the directions on the forms of oath-taking. The burden of this judgment is that no word in the 2nd Schedule can be ignored. They are directions to be given the fullest force. Consequently the simple construction to the directions of oath-taking regarding the oath of allegiance is that the President or the Chief Justice may administer the oath while a constitutional power is reserved in the President to designate to some other person, his power of swearing, if he chooses and circumstances so dictate, and with regard to the judicial oath the Chief Justice is similarly empowered to designate.

One has only to contrast the other oaths to see that no choices are given. For instance the oaths to members of the Council of State, the Cabinet Oath and the oath to a Minister of State. It would thus be constitutionally improper for the Speaker to subscribe his oath before any other person than the Chief Justice.

Nothing more need be said to emphasise the force of the directions appertaining to each form of oath in the 2nd Schedule and dispose of the suggestion that directions in the 2nd Schedule are empty, or constitute, “footnotes.”

It seems to me that in any case article 295(7) affords a protective shield over issues such as these so that non-consequential irritants would not affect the true democratic course charted by this constitution. The article states:

“295(7) Where power is vested by this constitution in any person or authority to appoint a person to act in or perform the functions of an office if the holder of the office is unable to perform those functions, the appointment shall not be called in question on the ground that the holder of the office could have performed those functions.”

Article 295(7) is plain enough but I shall spell its meaning in relation to the issues in controversy. As I understand it, whether the President delegated his powers of administering the oath or designated someone to exercise those powers, or expressed his decision through an officer in his office, that appointment cannot be questioned. This ouster epitomises what must be plain, that the Parliament of a country is the master of its own household, to borrow from the Queensland case. The constitution of this land must be the supreme master.

It is clear that I reject the view that the Chief Justice is guilty of a constitutional impropriety in swearing Superior Court justices.

I regret the length of this judgment though unavoidable, even as I regret that time and talent have been remorselessly spent on this matter when the undoubted legal ability that has been demonstrated could have been channeled into more profitable avenues.

My third regret arises from the polemics associated with the dispute with their trappings of contempt for institutions of authority in the country. It seems to me that where the constitution gives the Supreme Court the final say in the interpretation of its provisions, some measure of discourtesy is demonstrated when, far from seeking the court’s interpretation, a partisan view is proclaimed and even extended by a publicity stunt whose objective is to fuel disenchantment and project an impression that a contrary view is at odds with constitutional proprieties.

I can only conclude with the hope that what now appears an arid unrewarding academic exercise, may well be a useful dress-rehearsal, for any real constitutional dispute that may arise in the future, where new perils would not be associated with the swearing of judges but the for-swearing of imperative rules of statutory construction.

AMUA-SEKYI JSC. Article 144 of the 1992 Constitution makes elaborate provisions for the mode of appointment of the Chief Justice and other justices of the superior courts. Article 156(1) requires that when appointed, they take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the constitution. Article 156(3) deals with the person before whom the oaths are to be taken and subscribed. It provides:

 “(3). The Oath of Allegiance and the Judicial Oath required by this article shall be taken and subscribed-

(a) in the case of the Chief Justice or other justice of a Superior Court ...before the President; and

 (b) in the case of any other person, before the Chief Justice or before any other Justice of a Superior Court ... as the Chief Justice may direct.”

Section 4(1) of the Transitional Provisions exempted justices of the superior courts who were in office on the date the constitution came into force from seeking reappointment under the provisions of article 144. However section 4(2) required that they be re-sworn.

The controversy that has arisen is over whether the continuing justices are required to take and subscribe the oaths before the President, as article 156(3)(a) seems to demand, or that it is permissible for them to take and subscribe them before the Chief Justice, as the 2nd Schedule seems to suggest. Before dealing with terms of the constitution, I should like to consider, first of all, the general laws of the land.

At the time the constitution came into force the law that governed oaths was the Oaths Decree 1972 (NRCD 6). In spite of its authoritarian origins, this enactment has been in the books for twenty years. When in 1979 a new constitution was introduced, the Decree was left untouched. As part of the existing law it continued in operation, although the courts were enjoined to construe it and all other existing laws “with such modifications, adaptations and exceptions as [may] be necessary to bring it into conformity with the provisions of the constitution, or otherwise give effect to, or enable effect to be given to, any changes effected by this constitution.”

One of the changes effected by the 1979 Constitution was in the content of the oath of allegiance. Those who were required to take and subscribe the oath were no longer called upon to swear that they would “preserve, protect and defend the Decrees of the National Redemption Council”, but that they would “preserve, protect and defend the constitution.” During the rule of the Provisional National Defence Council, even though the oaths were in practice modified to meet the needs of the time, no enactment was made to amend them.

The 1992 Constitution preserved the Decree as part of the existing law subject to its being construed in such a way as to bring it into conformity with the provisions of the constitution and give effect to, or enable effect to be given to, any changes effected by the constitution. It was for nothing more than the avoidance of doubt that section 25 of the Transitional Provisions stated that: “The Oaths Decree, 1972 (NRCD 6), as amended, shall have effect subject to the provisions of this Constitution.” Even if this reference and formulation had not been made, the Decree would have continued in operation as part of the existing laws under article 11(5), (6).

Sections 1 and 2 of the Decree provide as follows:

“1. The oaths to be taken as occasion may demand shall be the oaths set out in the First Schedule.

2. The oaths specified in the first column of the Second Schedule shall be taken by a person appointed to an office set out in the second column of that Schedule and shall be administered by the authority specified in the third column of that Schedule.”

The oath of allegiance and the judicial oath are among the oaths set out in the 1st Schedule. The 2nd Schedule is divided into three columns; the 1st is headed: “Nature of Oath”, the second: “Person to tender Oath.” Among those mentioned in the second column as being persons who are required to take the oath of allegiance are justices of the superior courts, and the persons authorised to tender it to them are, according to the third column as amended by the 2nd Schedule of the 1979 Constitution, “the President or the Chief Justice or such other person as the President may designate.” For the judicial oath the person authorised to tender it to the justices is “the President, Chief Justice or such other person as the Chief Justice may designate”.

There can be little doubt that even though the Decree relegates the form of the oaths and other details to schedules, these provisions have equal force with the main part of the Decree. The point could not have been better put than it is in Halsbury’s Laws of England, 3 ed Vol 36 para 551 page 374 where the learned authors state:

“To simplify the presentation of statutes, it is the practice for their subjectmatter to be divided, where appropriate, between sections and schedules, the former setting out matters of principle, and introducing the latter, and the latter containing all matters of detail. This is purely a matter of arrangement, and a schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced.”

The combined effect of the directives in the third column of the 2nd Schedule to the Decree is that the oaths may be tendered to the justices of the superior courts by either the President or the Chief Justice but that (a) the oath of allegiance may be tendered by any other person authorised by the President, and (b) the judicial oath may be tendered by any other person authorised by the Chief Justice. We are told the President designated the Chief Justice to tender the oaths. Under the Decree he need not have done so as the Chief Justice is himself mentioned in the third column of the 2nd Schedule as a person who may tender the oaths to the justices.

The 2nd Schedule of the 1992 Constitution states the law in the same terms as it is in the third column of the 2nd Schedule of the Decree, as amended. However in article 130 of the 1979 Constitution and article 156(3)(a) of the 1992 Constitution the law is stated differently. Article 156(3)(a) has already been quoted. Article 130 of the 1979 Constitution stated as follows:

 “130. A justice of the Superior Court of Judicature shall, before assuming the functions of his office, take and subscribe before —

(a) the President, in the case of the Chief Justice and the other justices of the Supreme Court and

(b) the Chief Justice, in the case of any other such justice, the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.”

If this article of the 1979 Constitution meant that only the President could lawfully tender the oaths to the justices of the Supreme Court, and only the Chief Justice could lawfully tender them to the justices of the Court of Appeal and of the High Court, then there was an apparent conflict between it and the 2nd Schedule of that constitution. A similar apparent conflict arises if article 156(3)(a) of the 1992 Constitution is interpreted to mean, as counsel suggests, that the President “and no other person”, may tender the oaths to the justices of the superior courts.

In some respects, the directives in the 2nd Schedule to the 1992 Constitution are inadequate because whereas article 156(3)(b) gives the Chief Justice power to direct, in the case of inferior courts that the oath of allegiance be taken before a justice of the superior court, he is denied that power in the directives which confer the power on the President alone.

These inadequacies notwithstanding, the question is whether the words suggested by counsel may properly be imported into article 156(3)(a). It seems to me that since under the third column of the 2nd Schedule of the Oaths Decree the Chief Justice has power to tender the oaths to justices of the superior courts, this cannot be done unless we find that with the coming into force of the constitution there has been a repeal by implication of the relevant provisions of the Decree.

In Halsbury’s Laws of England, 3 ed Vol 36, para 709, page 465 - 466 we read:

 “Repeal by implication is not favoured by the courts for it is to be presumed that Parliament would not intend to effect so important a matter as the repeal of a law without expressing its intention to do so. If, however, provisions are enacted which cannot be reconciled with those of an existing statute, the only inference possible is that Parliament, unless it failed to address its mind to the question, intended that the provisions of the existing statute should cease to have effect, and an intention so evinced is as effective as one expressed in terms. The rule is, therefore, that one provision repeals another by implication if, but only if, it is so inconsistent with or repugnant to that other that the two are incapable of standing together. If it is reasonably possible so to construe the provisions as to give effect to both, that must be done.”

In conformity with these principles, the rule of construction is that when a later enactment is worded in affirmative terms only, without any negative expressed or implied, it does not repeal the earlier law.

Three cases may be cited by way of illustration. In R v Greenland (1867) 36 LJMC 37 it was held that section 52 of the Stamp Act 1815 which required that affidavits for the verification of accounts be made before the Commissioners of Stamps was not inconsistent with section 7 of the Bank Notes Act 1828 which empowered justices of the peace to administer such oaths. In Muir v Hore (1877) 47 LJMC 17, which was cited with approval by this court in Republic v Circuit Court Judge, Accra, ex parte Sakara [1989-90] 2 GLR 379, it was held that there was no inconsistency and therefore no repeal by implication of an Act which provided that the offence should be tried by the Queen’s Bench or the Assizes by a later act which authorised the quarter sessions to try the same offences. And in Re Ellerton (1864) 33 LJ Bank 32 the court decided that section 109 of the Bankruptcy Act 1861, which gave power to creditors to decide whether any, or what, allowance shall be made to the bankrupt up to the time of passing his last examination, did not repeal section 194 of the Bankruptcy Law Consolidation Act 1849 by which that

 power was given to the court, and held that the former power was still in force and may be resorted to whenever the creditors did not exercise that given them by the later Act.

Article 156(3)(a) is in affirmative terms only, without any negative expressed or implied. It says simply that justices of the superior courts shall take and subscribe the oaths before the President. There is no inconsistency with the Decree, as amended or with the 2nd Schedule of the 1992 Constitution, both of which require that the oath be sworn before the President, the Chief Justice or such other person as the President may designate, in the case of the oath of allegiance, and by the President, the justice or such other person as the Chief Justice may designate in the case of the judicial oath.

Therefore, giving effect to both the constitution and the Decree, I find the law to be that the President has a prior right to administer the oaths to the justices, but that if he does not exercise that right the Chief Justice or any other person designated by the President or the Chief Justice, depending on the oath in question, may do so.

In the matter before us, it is clear that the President waived his right to administer the oaths to the justices, so that it was lawful for the Chief Justice to administer the oaths to them. If, out of abundance of caution, the Chief Justice was issued with a document purporting to come from the President authorising him to administer the oaths that did not take away his right under the law to do so.

For the above reasons, I would dismiss the action.

AIKINS JSC. The plaintiffs, by their writ, are invoking the original jurisdiction of this court under article 2(1)(b) of the 1992 Constitution and are seeking, by virtue of that provision, two declarations in the following terms:

“1. A declaration that by the combined effect of article 156(1), (2) and (3), section 4 of the Transitional Provisions (the 1st Schedule) and the 2nd Schedule of the 1992 Constitution of the Republic of Ghana, all justices of the Supreme Court, Court of Appeal and the High Court in Ghana holding office immediately before the coming into force of the said constitution are obliged to take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the said constitution before the President of the Republic of Ghana only and not before any other person.

2. A declaration that the purported taking and subscribing of the oath of allegiance and the judicial oath by justices of the Supreme Court and the Court of Appeal of Ghana on or about 23rd or 26th February 1993, respectively, before the Chief Justice is null and void and of no effect whatsoever.”

The basis of the plaintiffs’ claim is contained in a statement of their case which accompanied the writ, both of which were filed in this court on 18 March 1993 pursuant to the provisions of rule 46 of the Supreme Court Rules 1970 (CI 13).

The facts of this case as set out by the plaintiffs in paragraph 11 of their statement of case are as follows:

“On or about 23 February and 26 February, 1993 respectively, the justices of the Supreme Court of Ghana and the Court of Appeal whose offices have been continued by section 4 of the 1st Schedule, the Transitional Provisions, of the Constitution, purported to take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the constitution before the 1st defendant in his capacity as the Chief Justice of the Republic of Ghana.”

The defendants disputed the claim to the declarations, and in a statement of their case verified by affidavit and filed on 1 April 1993 replied to the plaintiffs’ case paragraph by paragraph. As regards the facts the defendants admitted as follows:

 “The justices of the superior courts of Ghana whose offices have been continued by the Transitional Provisions took and subscribed to the oath of allegiance and the judicial oath set out in the 2nd Schedule of the constitution before the 1st defendant in his capacity as the Chief Justice of the Republic of Ghana on or about 23 February 1993 respectively.”

Article 2(1) of the 1992 Constitution which empowers the plaintiffs to seek the reliefs itemised in their writ reads 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.”

The pertinent provision is clause (1)(b) of the article which deals with “any act or omission of any person.”

Before proceeding with his main submissions on the claim of the plaintiffs, Mr Peter Adjetey, leading counsel for the plaintiffs raised two preliminary objections, first to the composition of the court and asked for the full complement of the Supreme Court, excluding the Chief Justice (who is the 1st defendant) to sit on this matter to make pronouncements once and for all. He argued, in effect, that it would be preferable that the full complement of the court was empanelled to lay down the law in such critical and vital areas as constitutional interpretation, which would be binding on all members of the court. The second objection is to the role of the Attorney-General, a co-defendant, as counsel for all the three defendants since, according to counsel, there would be conflict of interest, more so that the action was not against the State but against the Chief Justice and his secretary in the performance of their official duties.

We thought that there was no merit in these submissions and accordingly he was overruled. The constitution does not lay down any rule that all the justices in the Supreme Court should be empanelled to adjudicate on any particular issue. The Attorney-General being the principal legal adviser to the Government could properly represent the Chief Justice and the Judicial Secretary.

In this case the plaintiffs are seeking two declarations, and the very nature of the reliefs sought raises an issue as to the interpretation of certain provisions of the 1992 Constitution. The controversy centers upon the taking and subscribing of the oath of allegiance and the judicial oath scheduled to the constitution by justices of the Supreme Court and the Court of Appeal before the Chief Justice, the determination of which depends upon an interpretation of the constitution.

In considering the articles of the constitution and the sections of the Transitional Provisions of the constitution, the interpretation of which gave rise to this controversy, the language therein has to be given its ordinary everyday meaning. If the language is clear and the words used are familiar and are in use, the courts need not proceed further to define them by judicial interpretation. As was stated in Halsbury’s Laws of England, 3rd  ed Vol 36 p 392 para 587:

“Words are primarily to be construed in their ordinary meaning or common or popular sense … [W]here the words used are familiar and are in common and general use in English language, then (1) it is inappropriate to try to define them further by judicial interpretation and to lay down their meaning as a rule of construction, and the only question for a court is whether the words are apt to cover or to describe the circumstances in question in a particular case, and (2) evidence that they are used in some special and peculiar sense is not admissible.”

This court in Tuffuor v Attorney-General [1980] GLR 637 at 647 succinctly put the issue in this way:

“The constitution has its letter of the Law. Equally the constitution has its spirit … Its language, therefore must be considered as if it were 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 narrow 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.”

Arguing in support of the first leg of the claim, leading counsel for the plaintiffs urged that “on a true and proper construction of the combined effect of article 156, section 4 of the 1st Schedule and what have been described as the oath of allegiance and the judicial oath in the 2nd Schedule to the 1992 Constitution, the oath of allegiance and the judicial oath, when taken and subscribed by justices of the Supreme Court, the Court of Appeal and the High Court, whether holding office immediately before the coming into force of the constitution or appointed later, are required mandatorily by the Constitution to be taken before the President of the Republic of Ghana, and that the footnotes to the oath of allegiance and the judicial oath merely mean that these oaths may be taken and subscribed before the President of the Republic of Ghana or before the Chief Justice, depending upon whether it is Superior Court justices who are taking and subscribing the said oaths, or it is ‘any other person’, in the language of article 156(3) of the Constitution.”

Article 156 of the 1992 Constitution provides that:

“(1) A Justice of the Superior Court, the Chairman of a Regional Tribunal, and also a person presiding over a lower court or tribunal and any other judicial officer or person whose functions involve the exercise by him of judicial power shall, before assuming the exercise of the duties of his office, take and subscribe the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.

(2) The President may, on the advice of the Chief Justice, direct that any other person connected with the exercise of judicial power, shall take and subscribe the Judicial Oath.

(3) The Oath of Allegiance and the Judicial Oath required by this article shall be taken and subscribed -

(a) in the case of the Chief Justice or other Justice of a Superior Court, and a Chairman of a Regional Tribunal, before the President; and

(b) in the case of any other person, before the Chief Justice or before any other Justice of a Superior Court or Chairman of a Regional Tribunal as the Chief Justice may direct.” (Emphasis supplied.)

The language of clause (3) of this article, in my opinion, shows clearly that the framers of the constitution intended that the mode of taking and subscribing the oath of allegiance and the judicial oath shall be restricted to justices of the superior court mentioned in clause (1) of article 156, i.e. such justices appointed after the coming into force of the Constitution who are mandated to take the said oaths before assuming the exercise of the duties of their office.

The oath of allegiance and the judicial oath as contained in the 2nd Schedule are in the following terms:

“THE OATH OF ALLEGIANCE

      I, … do (in the name of the Almighty God swear) (solemnly affirm) that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of Ghana; and that I will preserve, protect and defend the Constitution of the Republic of Ghana. (So help me God).

To be sworn before the President, the Chief Justice or such other person as the President may designate. “

“THE JUDICIAL OATH

I, ... having been appointed (Chief Justice/a Justice of the Supreme Court/a justice of the Court of Appeal/a Justice of the High Court of Justice, etc) do (in the name of the Almighty God swear) (solemnly affirm) that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty of the Republic of Ghana; and that I will truly and faithfully perform the functions of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana. (So help me God).

To be sworn before the President, the Chief Justice or such other person as the Chief Justice may designate.”

I will postpone the arguments of counsel touching on the interpretation of the 2nd Schedule and the footnotes, and proceed to comment on section 4 of the Transitional Provisions of the 1992 Constitution since this step, in my view, will lead to a better appreciation of the law involved.

The section deals with the continuance of the appointments of justices of the superior courts. It states:

“4(1) A Jjustice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under this constitution.

(2) Any person to whom this section applies shall, on the coming into force of this Constitution, take and subscribe the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.”

A casual glance at the constitutional history of this country reveals that even though the Constitution, 1969 made provision for taking and subscribing the oath of allegiance and the judicial oath by a justice of the superior courts before assuming office under article 118 of the said constitution, no provision was made either in the body of the constitution itself or in the Transitional Provisions in the 1st Schedule to the constitution for justices holding office immediately before the coming into force of the said constitution. The only provision made for existing officers, which I think includes a justice of the superior courts, is in section 9(1) of the Transitional Provisions of that Constitution which states:

“Subject to the provisions of this section, and save as otherwise provided in this Constitution, every person who, immediately before the coming into force of this Constitution held or was acting in any office established –

(a) by or in pursuance of the proclamation for the constitution of the National Liberation Council for the administration of Ghana and for other matters connected therewith dated the twenty-sixth day of February, 1966, or

(b) in pursuance of a Decree of the National Liberation Council, or

(c) by or under the authority of that Council, shall, as far as is consistent with the provisions of this Constitution, be deemed to have been appointed as from the coming into force of this Constitution to hold or to act in the equivalent office under this Constitution for a period of six months from the date of such commencement, unless before or on the expiration of that date, any such person shall have been appointed by the appropriate appointing authority to hold or act in that office or some other office.”

In a situation like this I think it would be prudent on re-appointment before or on the expiration of the period of six months, as from the coming into force of that constitution, for any such judge of the Superior Court of justice to take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to that constitution in accordance with the provisions of article 118 of the constitution before assuming the functions of his office.

Article 118 reads as follows:

“118. A judge of the Superior Court of Judicature shall, before assuming the functions of his office, take and subscribe before

(a) the President, in the case of the Chief Justice, and

(b) the Chief Justice, in the case of any other such judge,

the Oath of Allegiance and the Judicial Oath set out in the 2nd Schedule to this Constitution.”

The 1979 Constitution, however, made a slight change in the mode of taking and subscribing the oath of allegiance and the judicial oath by other justices of the Supreme Court. Article 130 of that constitution provided that:

“A justice of the Superior Court of Judicature shall, before assuming the functions of his office, take and subscribe before

(a) the President, in the case of the Chief Justice, and the other justices of the Supreme Court; and

(b) the Chief Justice, in the case of other such justice,

the Oath of Allegiance and the Judicial Oath set out in the 2nd Schedule to this Constitution.”

As to a justice already at post before the coming into force of the constitution, clauses (8) and (9) of article 127 of the 1979 Constitution made the following provisions:

“(8) Subject to the provisions of clause (9) of this article, a justice of the Superior Court of Judicature holding office as such immediately before the coming into force of this Constitution shall be deemed to have been appointed as from the coming into force of this Constitution to hold office as such under this Constitution.

(9) A Justice to whom the provisions of clause (8) of this article apply shall, on the coming into force of this Constitution, take and subscribe the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.” (Emphasis supplied).

These provisions were not reproduced in the main body of the 1992 Constitution, but were rather reproduced with certain modifications in the Transitional Provisions of the constitution as section 4. The question is why did the framers of the 1992 Constitution choose to do this and not be content with their reproduction in the main body of the Constitution? The answer is obvious and will be made clear later in this judgment.

In construing the provisions of section 4 of the Transitional Provisions and other articles of the 1992 Constitution, it is pertinent to bear in mind the provisions of article 299 of the constitution. That article states:

“The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

This simply means that the said Transitional Provisions take precedence over the constitution and are superior to the body of the constitution. The language is plain and leads to no controversy. It implies therefore that if by the normal rules of construction there is a conflict between any article of the constitution and a section of the said Transitional Provisions, the latter will prevail. The provisions of section 4(2) of the Transitional Provisions cannot by any stretch of imagination be said to be in accord with those of article 156(3) of the constitution and as long as the inconsistency exists the provisions of section 4(2) prevail and hold sway over article 156(3) which by the terms of its provisions governs the taking and subscribing of the two oaths by a justice before assuming the exercise of the duties of his office.

It is argued that article 156 of the 1992 Constitution introduced the 2nd Schedule to the constitution and that in interpreting section 4 and the 2nd Schedule this court has to have recourse to article 156. For me I find it difficult to appreciate the logic and legal basis of this argument. I reject it. The article does not introduce the 2nd Schedule per se. It merely refers to the forms scheduled to it, and the law is that a scheduled form may be referred to for the purpose of throwing light on the construction of a doubtful or ambiguous enactment. See Thomas v Kelly (1888) 13 App Cas 506, HL at 511 and Halsbury’s Laws of England Vol 36 3rd ed para 603 p 399.

But even in this context it must be remembered that where the words of the statute are in themselves precise and unambiguous it is not necessary to proceed further than expound those words in their natural and ordinary sense which declare the intention of the legislature. As Maxwell states in the opening paragraph of his treatise, Interpretation of Statutes  11 ed:

“A statute is the will of the legislature … in that a statute is to be expounded according to the intent of them that made it.”

I think the construction which counsel seeks to put upon section 4 would nullify in great measure its usefulness.

It is further argued that the footnotes to the forms of oaths prescribed in the 2nd Schedule to the constitution should not be taken to restrict or modify the meaning of article 156. The Attorney-General controverts this contention. The thrust of his argument is that the footnotes form part of the oaths and that they are part of the Schedule. Counsel for both parties seek inspiration from a passage at page 374 para 551 of Halsbury’s Laws of England 3rd ed Vol 36. The passage refers to schedules to a statute and says simply that “a schedule is as much a part of the statute, and as much an enactment, as is the section by which it is introduced.”

I concede that footnotes are not part of the enactment or schedules to an enactment, but I do not see how it can be successfully argued that they do not aid the interpretation of the enactment. They can be used as guides. It is to be observed that the framers of these footnotes and marginal notes are generally persons of good education, intelligence and understanding, and if the framers of the oath of allegiance say that the oath is “to be sworn before the President, the Chief Justice or such other person as the President may designate” and speak also of the Judicial oath that the oath is “to be sworn before the President, the Chief Justice or such other persons as the Chief Justice may designate” why should such notes be completely ignored?

I admit that here in Ghana by virtue of the Interpretation Act 1960 (CA 4) marginal notes, footnotes and references placed at the side of any enactment are meant for convenience of reference only and do not form part of the enactment. But as Collins MR rightly said in Bushell v Hammond [1904] 2 KB 563 at 567, CA, “some help will be derived from the side- note (though of course it is not part of the statute) which shews that the section is dealing with” certain matters.

Be that as it may, it is my view that this court is justified by the very language of section 299 in ignoring the provisions of article 156(3) as far as section 4(2) of the Transitional Provisions are concerned, whatever coherence or symmetry that article 156 may have with the constitution as a whole. The process of swearing the oath of allegiance and judicial oath under section 4 is directly referable to sections 25 and 31 of the Transitional Provisions of the constitution. These sections provide:

“25. The Oaths Decree, 1972 (NRCD 6), as amended, shall have effect subject to the provisions of this constitution …

31. (1) Where any matter that falls to be prescribed or otherwise provided for under this Constitution by Parliament or by any other authority or person, is prescribed or provided for by or under any existing law or is otherwise lawfully prescribed or provided for immediately before the coming into force of this Constitution, that prescription or provision shall, as from the coming into force of this Constitution, have effect with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution as if made under this Constitution by Parliament or, as the case may be, by the other authority or person.

(2) For the avoidance of doubt, and without prejudice to the general effect of subsection (1) of this section, where anything is required or authorised by this Constitution to be prescribed or provided for by or under an Act of Parliament, it shall be deemed to be duly prescribed or provided for, if it has been prescribed or provided for by or under an Act, Decree, or a Law in force immediately before the coming into force of this Constitution.” (Emphasis supplied.)

The Chief Justice is authorised generally to administer any lawful oath or take any lawful affirmation which may be required to be taken or made for the purpose of complying with any law for the time being in force in Ghana or elsewhere, except where such law expressly or by necessary implication excludes such procedure. The provisions of this section, in my view, empowered the Chief Justice to administer the oaths of the President and the Vice-President before Parliament under articles 57(3) and 60(5) of the 1992 Constitution even though no procedure for administering the oaths have been provided in the Constitution except the footnotes (or indicators, if I may term them so) under the said oaths set out in the 2nd Schedule to the constitution.

The words in section 4 are plain, and they mean what they say, and are to be expounded in their ordinary and natural sense. As long as the primary or popular or literal meaning of those words is not disputed, there is no need for the words to be interpreted. Section 4(1) merely says that a justice of the superior courts holding office immediately before the coming into force of the Constitution, shall continue to hold office as if appointed to that office under the constitution. The phrase “as if” as defined by the Advanced Learner’s Dictionary of Current English 2nd ed means simply “as it would be if” or “as though”, and examples are given to explain the meaning in the following terms - “he talks as if he knew all about it” “he looks as if he had seen a ghost.”

The provisions of section 4(1) are differently worded from those of article 127(8) of the antecedent 1979 Constitution. Article 127(8) says that such justice, holding office immediately before the coming into force of the constitution, shall be deemed to have been appointed as from the coming into force of the Constitution to hold office as such under the constitution. As was pointed out by this court in Tuffuor v Attorney-General, supra at p 660 “the phrase, ‘shall be deemed’ is a legislative device which is resorted to when a thing is said to be something else which it, in fact, is not. When a thing is to be “deemed” something else, it is to be treated as that something else with its attendant consequences.”

Perhaps if clauses (8) and (9) of article 127 of the 1979 Constitution had been imported into the main body of the current constitution, the argument of the leading counsel for the plaintiffs that the oaths required to be taken can only be properly taken in accordance with article 156 would have been a bit meaningful.

As it is, I, for my part, seem to agree with the submission of the Attorney-General that the oaths taken before the Chief Justice did not violate the constitution, and I so hold.

The next submission by the leading counsel for the plaintiffs is that, since the President is the legal representative of the State, and the justices of the superior courts take their authority directly from the State, the oaths must be taken before the President, and that the nature of the oaths themselves is such that it is only appropriate that they are taken before the President, and not before any other person, be he the Chief Justice whose relationship with the superior court justices is primus inter pares, and such justices should not take their oath before their “equal.”

I confess I am unable to follow the logic or legal basis of this reasoning. Articles 57(3) and 60(5) enjoined the President, the Head of State, the Head of Government and Commander-in-Chief of the Armed Forces of Ghana and the Vice-President, the two top-most officers of State, to take and subscribe before Parliament the oath of allegiance and the Presidential Oath and also the Vice-Presidential Oath before assuming office. If it was thought fit, convenient and prudent, if not logical for the Chief Justice who is on a lower rung of the ladder of precedence to administer those oaths, no doubt by virtue of section 9 of the Oaths Decree 1972 (NRCD 6) which had been specifically recognised and saved by section 25 of the Transitional Provisions to the 1992 Constitution, not to mention the sacrosanctity of the oaths and the accompanying footnotes (for reference only), I wonder why it should be considered an abomination and a legal perversion for justices to take their oaths before him.

But for the provision of section 4(2) of the Transitional Provisions of the 1992 Constitution, which overrides section 3 of the Oaths Decree 1972, there would have been no need for the sitting justices of the superior courts having taken the two oaths before the coming into force of the 1992 Constitution, to take again those oaths, unless any of the oaths is different from or in addition to that duly taken by them. This is the essence of the provision of section 25 of the Transitional Provisions of the Constitution.

However, though the footnotes or indicators under the oaths set out in the 2nd Schedule to the Oaths Decree 1972 may not form part of the Schedule, the indicators in the 2nd Schedule to the Oaths Decree 1972 do not form part of the Schedule. This is made clear by section 2 of the Decree which states:

“2. The oaths specified in the first column of the Second Schedule shall be taken by a person appointed to an office set out in the second column of that Schedule and shall be administered by the authority specified in the third column of that Schedule.”

The oath of allegiance and the judicial oath are specified in the Second Schedule to the Decree as follows:

Nature of Oath (a) Oath of Allegiance     (b) Judicial Oath

Person to take Oath   Justices of the Superior Court of Judicature     –do–

Person to tender Oath   Chairman of the National Redemption Council or the Chief Justice or such other person as the Chief Justice may designate.   –do–

In my view counsel’s submission is hardly tenable, and I have not the slightest hesitation in rejecting it.

Touching on paragraph 8 of the defendants’ amended statement of case which stated that the President had designated the Chief Justice by letter No OP/S 550 dated 22 February 1993 to administer the oath of allegiance and the judicial oath to justices of the superior courts, leading counsel for the plaintiffs submitted that under the 1992 Constitution the President has no authority to delegate his functions to administer the oaths to the Chief Justice, and that even if the President had such authority no proper delegation had taken place in this case. Counsel further urged that the President is a creature of the constitution and therefore derives all his authority and powers from the constitution, but no article of the constitution gives him power to delegate under such circumstances. He further contended that if the President had authority to delegate, it must be done under his own hand and under the Presidential seal. The letter under consideration was signed by Mr Ato Dadzie “of the President’s Office.”

In reply the Attorney-General argued that any person who writes from the office of the President may be described as an assistant to the President under article 297(h) and (i) and that the letter signed by Mr Ato Dadzie can be classified under clause (i). He urged that under those clauses the President might delegate his power, but in this case, it was not a matter of delegation, but that of designation.

I find it difficult to follow the logic of the Attorney-General’s submission. Article 297(i) contains “words directing or empowering a Minister of State to do an act or a thing” and the designation of the office of a Minister is said to include a person acting for him and also his successors in office and all his deputies or other assistants. There is no evidence on record to show that Mr Ato Dadzie’s is an assistant to the Minister. In any event, Mr Ato Dadzie’s letter indicated that he was working in the office of the President and conveying the authorisation in the name of the President and not that of a Minister of State. In my view, neither clause (h) nor clause (i) of the article supports the Attorney-General’s contention that the said letter is a proper document to delegate presidential authority.

As to the submission by the leading counsel for the plaintiffs that no article gives the President power to delegate, it seems to me that on a closer look at article 297(c) the President had the power to do so. The clause states:

“Where a power is given to a person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given as are necessary to enable that person or authority to do or enforce the doing of the act or thing…”

If counsel’s submission is correct it would seem that the President would be bogged down in his effort to get his instructions carried out as quickly as possible, especially in an emergency.

But the question is: did the letter under reference properly convey the authorisation of the President to delegate or designate the Chief Justice to undertake the assignment? It seems to me that under clause (5) of article 58 that letter, to be legally valid, should have been authenticated by the signature of a Minister of State.

That clause runs thus:

“A constitutional or statutory instrument or any other instrument made, or issued or executed in the name of the President shall be authenticated by the signature of a Minster and the validity of any such instrument so authenticated shall not be called in question on the ground that it is not made, issued or executed by the President.”

I therefore agree with counsel that no proper delegation had taken place by the authority of the letter.

Learned counsel was unable to cite any authority to support his contention that the President can only delegate his authority validly by an instrument under the Presidential seal. No authority has also come my way in support of that contention. I would therefore reject it.

Be that as it may, it is my judgment that the oaths taken by the justices of the superior courts before the Chief Justice or the oaths administered by him, were in order, proper and constitutional, and were not null and void as claimed by the plaintiffs, and I do so hold.

In the result, I would for my part dismiss the plaintiffs’ action because none of the claims for declaration has been made out.

WIREDU JSC. In this action the plaintiffs, representing the Ghana Bar Association are claiming the following declarations:

“1. A declaration that by the combined effect of article 156(1), (2) and (3), section 4 of the Transitional Provisions (the 1st Schedule) and the 2nd Schedule of the 1992 Constitution of the Republic of Ghana, all justices of the Supreme Court, Court of Appeal and the High Court in Ghana holding office immediately before the coming into force of the said constitution are obliged to take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the said constitution before the President of the Republic of Ghana only and not before any other person.

2. A declaration that the purported taking and subscribing of the oath of allegiance and the judicial oath by justices of the Supreme Court and the Court of Appeal of Ghana on or about 23rd or 26th February 1993, respectively, before the Chief Justice is null and void and of no effect whatsoever.”

The 1st plaintiff is the National President of the Association. The second is the National Vice-President and the 3rd is the National Secretary. The 1st defendant is the Chief Justice of Ghana. The 2nd defendant is the Judicial Secretary and the 3rd is the Attorney-General.

The pith of the plaintiffs’ case is that all continuing Superior Court judges are enjoined under the 1992 Constitution by section 4(2) of the 1st Schedule (Transitional Provisions) to take and subscribe the oath of allegiance and the judicial oath as set out in the 2nd Schedule to the constitution in accordance with the mode provided under article 156(3)(a) of the constitution.

The defendants have joined issue with the plaintiffs and, for their part, contended that section 4, 1st Schedule of the Transitional Provisions was silent as to the mode in which such oaths were to be taken and subscribed to and that the swearing-in of the continuing judges of the superior courts, about which the plaintiffs were complaining, was legitimately carried out and was

 not in violation of any provision of the constitution as contended by the plaintiffs.

When hearing commenced before us on April 20 1993, leading counsel for the plaintiffs, Mr Peter Ala Adjetey (SAG), raised two preliminary points for consideration. The first concerned the composition of the court and the second was, in effect, an objection to the Attorney-General, the 3rd defendant, representing the 1st and 2nd defendants.

Learned counsel argued that in view of the important nature of the case, it would be in the public interest if all the justices had the opportunity of pronouncing their opinions on the matter. We summarily dismissed the two points raised and allowed the proceedings to continue. We indicated that we would give our reasons later. I will therefore begin my judgment by expressing my opinion first on the two preliminary points.

Leading counsel for the plaintiffs informed the court in the course of his argument that the plaintiffs had written to the Chief Justice, the 1st defendant, about the issue of the composition of the court and had requested for a full bench but had had no response to their request. He therefore felt it proper to raise the matter in court. A copy of that letter was tendered and accepted as SC1.

In my respectful view the submission made on behalf of the plaintiffs did not persuade me as legally commendable. The right to empanel judges to sit on cases has by convention, use and practice become the exclusive preserve of the Chief Justice. He has constitutional responsibility for the smooth administration and supervision of the Judiciary. He is the constitutional head of the Judiciary. The right to empanel justices by the Chief Justice is in accordance with precedent and authority. He has no power to delegate or waive that responsibility or that duty in favour of any other person whilst in office and able to act. I am sure that the plaintiffs must have realised and recognised this position of the Chief Justice hence their request to him in their letter, exhibit SC1.

It is not being alleged that the Chief Justice had illegally acted or that he was incompetent to empanel the court or that he did so in bad faith or that the court was wrongly constituted which would have given us a cause to examine the issue. The Chief Justice having declined to do what the plaintiffs requested in exhibit (SC1) that brought the matter to an end. In the absence of any cause to justify the court interfering with the exercise of a power which is his exclusive preserve, the matter must rest there.

On the second preliminary point about the propriety of the Attorney-General, the 3rd defendant, representing the 1st and 2nd defendants, on the ground that he himself is a defendant in the case, I am of the respectful view that the Attorney-General should not have been sued. According to the leading counsel for the plaintiffs the present action is not against the State but one personally against the Chief Justice and the Judicial Secretary in the performance of their official duties. One may ask, what part did the 3rd defendant play in the matters complained of by the plaintiffs to make him answerable to a court action. See Rule 57(3) of CI 13.

It will be right to say that this is an action which the Attorney-General has been wrongly made a party and it does not lie in the plaintiffs’ mouth to use this to deny him the right to represent 1st and 2nd defendants, the Chief Justice and the Judicial Secretary, who have been sued in the performance of their official duties. On the face of the plaintiffs’ case, it was incompetent for them to have sued the 1st and 2nd defendants jointly with the Attorney-General. I will not conjecture what arguments the plaintiffs would have urged in respect of this representation if he had not been sued. I will, therefore, rest the matter here.

Now to the main issue in controversy between the parties. I think it will be pertinent at this stage to remind ourselves of the standard of proof required to sustain declarations of the nature being sought by the plaintiffs. In my respectful view the standard of proof is very high since the constitution is the supreme law of the land which the defendants have all sworn to defend and any violation of its provisions is normally punishable. The standard must therefore be equated to that required in penal cases. This would demand that the plaintiffs in order to succeed must rely on the strength of their own case by proving beyond doubt that the actions of the defendants which have provoked their action is unconstitutional. Any weakness therefore in the defence should not avail the plaintiffs.

It was contended on behalf of the plaintiffs that in order to satisfy the constitutional requirement as to the taking of the oath of allegiance and the judicial oath, the provisions of article 156 must be read together with section 4 of the 1st Schedule of the Transitional Provisions of the constitution. According to the leading counsel for the plaintiffs, the combined effect of the two would be the only way by which the constitutional requirement could be satisfied.

The plaintiffs pleaded in paragraphs 13 to 16 of their statement of case as follows:

“13. The plaintiffs will contend that the contention by the 2nd defendant, that because section 4 of the Transitional Provisions did not specify before whom justices holding office immediately before the coming into force of the constitution shall take and subscribe the oath of allegiance and the judicial oath, this leaves room for such justices to take and subscribe such oaths before the Chief Justice, is seriously misconceived and ignores the fundamental requirements with regard to the administration of the oath of allegiance and the judicial oath as contained in section 156 of the constitution.

14.  The plaintiffs further contend that neither the footnotes to the forms of oaths prescribed in the Second Schedule to the Constitution, nor Section 4 of the First Schedule, that is to say, the Transitional Provisions of the Constitution, nor Article 156 of the said Constitution, should be read in isolation from one another.

15. The plaintiffs will contend that on a true and proper construction of the combined effect of article 156, section 4 of the First Schedule and what have been prescribed as the oath of allegiance and the judicial oath in the Second Schedule to the 1992 Constitution, the oath of allegiance and the judicial oath, when taken and subscribed by justices of the Supreme Court, the Court of Appeal and the High Court, whether holding office immediately before the coming into force of the constitution or appointed later, are required mandatorily by the constitution to be taken before the President of the Republic of Ghana and that the footnotes to the oath of allegiance and the judicial oath merely mean that these oaths may be taken and subscribed before the President of the Republic of Ghana or before the Chief Justice, depending upon whether it is superior court justices who are taking and subscribing the said oaths, or it is “any other person” in the language of article 156(3) of the constitution.

16. The plaintiffs will consequently contend that the purported taking and subscribing of the oath of allegiance and the judicial oath before the Chief Justice of the Republic of Ghana, the 1st defendant herein, on 23 and 26 February 1993, by the justices of the Supreme Court and the Court of Appeal, were null and void and of no effect whatsoever and ought to be so declared.”

The defence by paragraphs 4 to 10 of the statement of defence pleaded as follows:

“4. The defendants say that save that the 1st defendant is the Chief Justice of the Republic of Ghana appointed before the coming into force of the Constitution 1992 and whose appointment is continued in force under the Transitional Provisions paragraph 4 of the statement of plaintiffs’ case is denied.

5. The defendants aver that save that justices of the superior courts of Ghana whose office have been continued by the Transitional Provisions took and subscribed to the oath of allegiance and the judicial oath set out in the 2nd Schedule of the constitution before the 1st defendant in his capacity as the Chief Justice of the Republic of Ghana on or about 23 February and 26 February 1993 respectively paragraph 11 of the statement of the plaintiffs’ case is denied.

6. The defendants deny paragraphs 13, 14, 15 and 16 of the statement of the plaintiffs’ case in so far as they allege that the 1st defendant in his capacity as Chief Justice of Ghana violated any provisions of the Constitution 1992 in administering the oath of allegiance and the judicial oath to justices of the superior courts who continue to hold office by virtue of the Transitional Provisions of the constitution.

7. The defendants say in additional denial of paragraphs 14 and 15 of the statement of plaintiffs’ case that the indicators to the forms of oaths prescribed in the 2nd Schedule, and article 156 of the Constitution are not imperative as to the person before whom continuing justices of the superior courts under the Transitional Provisions are to take their oath of allegiance and judicial oath as the Transitional Provisions take effect notwithstanding anything to the contrary in the constitution.

8. The defendants say in further denial of paragraphs 14 and 15 of the statement of the plaintiffs’ case that the 1st defendant as Chief Justice of the Republic is the proper person under section 4 of the Oaths Decree NRCD 6, the constitution and the Transitional Provisions to administer the oath of allegiance and judicial oath to the continuing justices of the superior courts.

9. The defendants say further that the constitutional provisions on the taking and subscribing of the oath of allegiance and the judicial oath in the schedule to the constitution by a justice of a superior court, a chairman of a regional tribunal and other judicial officers and persons before assuming the exercise of the duties of his office do not and cannot be applicable to a justice of the Supreme Court, Court of Appeal or High Court holding office immediately before the coming into force of the constitution who continue to hold office as if appointed to that office under the constitution.

10. The defendants in the premises deny that the plaintiffs are entitled to the reliefs claimed.”

The defendants also amended their statement of case by adding the following:

“The defendants say further or in the alternative that the President properly designated the 1st defendant, the Chief Justice, by letter which is annexed hereto, to administer the oath of allegiance and the judicial oath to the justices of the superior courts whose appointments continued under the Transitional Provisions.”

This letter was with the leave of the court allowed.

A careful examination of the pleadings in this case reveal that there is one area of common agreement among the parties and that is, the view that section 4 of the 1st Schedule (the Transitional Provisions) is relevant to determining the issue joined between them. They part company however, at the point where the plaintiffs contended that section 4 ought to be read together with the provisions of article 156 of the constitution and not in isolation.

According to the plaintiffs when so read their combined effect leaves no doubt that the swearing-in on the days specified in their statement of case were devoid of any legality and are therefore null and void.

To the above, the defence submitted that there was no legal justification for the demand to read section 4 of the 1st Schedule of the Transitional Provisions, together with article 156. According to the Attorney-General, the language of the two does not permit that construction since section 4 makes no reference to article 156 nor does article 156 make reference to section 4 either. According to the Attorney-General, article 156 applied only to superior court justices who are yet to be appointed under article 144 and not to incumbent justices who were continuing their duties of office as was envisaged under section 4. But for the provisions of section 4(2), the latter would not be required under NRCD 6 to take and subscribe the oaths. According to him, the provisions of section 4(2) were fully complied with and that the procedure adopted was and that the plaintiffs’ action should be dismissed as unproved.

I shall now examine the scope of the provisions of the constitution referred to by the learned counsel in their statements of case and submissions in order to determine which of the two rival views is to be preferred, bearing in mind that the burden rests heavily on the plaintiffs to establish their case in view of the grave nature of the indictment against the defendants. Section 4 of the 1st Schedule (the Transitional Provisions) of the constitution provides as follows:

“(1) A justice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under the Constitution.

(2) Any person to whom this section applies shall, on the coming into force of this Constitution, take and subscribe the Oath of Allegiance and the Judicial Oath set out in the 2nd Schedule to the Constitution.”

The 2nd Schedule to the constitution prescribes the following forms for the Oath of Allegiance and the Judicial Oath:

“THE OATH OF ALLEGIANCE

I … do (in the name of the Almighty God swear) (Solemnly affirm) that I will bear true faith and allegiance to the Republic of Ghana as by law established; that I will uphold the sovereignty and integrity of Ghana; and that I will preserve, protect and defend the Constitution of the Republic of Ghana (So help me God)

To be sworn before the President, the Chief Justice or such other persons as the President may designate.

THE JUDICIAL OATH:

I, ... having been appointed (Chief Justice/a justice of the Supreme Court/a justice of the Court of Appeal/justice of the High Court of Justice, etc.) do (in the name of the Almighty God swear) (Solemnly affirm) that I will bear true faith and allegiance to the Republic of Ghana as by law established; and that I will truly and faithfully perform the functions of my office without fear or favour, affection or ill-will; and that I will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana. (So help me God).

To be sworn before the President, the Chief Justice or such other person as the Chief Justice may designate.”

Article 156 of the constitution reads as follows:

“(1) A Justice of a Superior Court, the Chairman of a Regional Tribunal and also a person presiding over a lower Court or Tribunal and any other judicial officer or person whose functions involve the exercise by him of judicial power shall, before assuming the exercise of the duties of his office, take and subscribe the Oath of Allegiance and the Judicial Oath set out in the Second Schedule to this Constitution.

(2) The President may, on the advise of the Chief Justice direct that any other person connected with the exercise of judicial power shall take and subscribe the Judicial Oath.

(3) The Oath of Allegiance and the Judicial Oath required by this article shall be taken and subscribed–

(a) in the case of the Chief Justice or other Justice of a Superior Court and a Chairman of a Regional Tribunal before the President; and

(b) in the case of any other person, before the Chief Justice or before any other justice of a Superior Court or Chairman of a Regional Tribunal as the Chief Justice may direct.”

While the plaintiffs contend that it is the combined effect of section 4 supra and article 156 of the constitution supra which comply with the requirement of the constitution to justify the swearing-in of superior court justices holding office on the coming into force of the constitution, the defence say that all the materials relevant to satisfy the requirement of the constitution in so far as they relate to such justices are contained in the Transitional Provisions with particular references to section 4 and section 25 of the Transitional Provisions without reference to any of the provisions in the main body of the constitution. The Transitional Provisions is the heart of the defendants’ case.

I will first examine the language in section 4 and see whether in its true construction it will be necessary to consider the provisions of article 156 of the constitution. That approach will in my respectful view be in line with the true spirit of the language of article 299 of the constitution. This article gives supremacy to the Transitional Provisions. They are given priority and preference over the other provisions in the body of the constitution. In effect article 299 has placed the Transitional Provisions in a world of its own. It reads:

“299. The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.” (The emphasis is mine.)

A careful examination of the language of section 4(2) of the 1st Schedule of the Transitional Provisions of the constitution clearly reveals (a) the forms of oaths i.e. the oath of allegiance and judicial oath (b) that they are set out in the 2nd Schedule to the constitution.

The next question to answer is which provision of the constitution recognises the forms of oath as are set out in the 2nd Schedule to the constitution? An answer to this question can be found in section 25 of the Transitional Provisions as pleaded by the defendants. This section recognises, by express language the existence of the oaths by giving legal cognisance to the continuity of the Oaths Decree NRCD 6 as amended by the constitution and subject to its provisions. The section reads:

“The Oaths Decree, 1972 (NRCD 6), as amended shall have effect subject to the provisions of this Constitution.”

NRCD 6 as amended by the constitution is to be enforced subject to the provisions of the latter to the extent within the particular context of this case in so far as section 4(2) demands the swearing-in of continuing superior court justices otherwise it would not have been necessary for the incumbent justices of the superior courts to swear the oaths again. See NRCD 6 para 3. It is further amended by the expansion of the language of the oaths.

In order, therefore, to find a correct answer to the issues raised for the determination in this case in spirit with the provision of article 299 of the constitution, one must first exhaust the provisions under the Transitional Provisions, in so far as they relate to justices who are being ushered into the 4th Republic.

Section 4 of the 1st Schedule (the Transitional Provisions) of the constitution makes no mention or reference in its language to article 156 neither does article 156 make reference to section 4. In fact there is no legally acceptable nexus between the two for them to be read together. It is therefore, highly inconceivable how any articulate judicial mind can be persuaded to read the two provisions together.

Section 4 supra is silent as to the mode, manner and the procedure to be followed mandatorily in the taking and subscribing to the oaths therein specified. It prescribes no time limit within which the oaths must be subscribed nor does it provide any procedure to be followed. The language of article 156 however is clear, precise and unambiguous. Under it a mandatory procedure for taking and subscribing to the oath has been prescribed and it is limited to justices covered by that article. Under article 156 the authority mandated to swear-in justices of superior courts cannot be delegated.

The makers of the constitution cannot be said to have been unaware of this provision and the procedure therein spelt out. In fact they are presumed to be aware of it. If they had intended or contemplated that the procedure prescribed under article 156 to govern the requirement envisaged under section 4(2) supra they would have specifically stated so and in no uncertain terms by adding immediately after the phrase “2nd Schedule to the Constitution” the words “as provided under article 156 (3) of this Constitution.” The absence of such clear words to that effect leaves room for any other permissible procedure to be resorted to. In the absence of such clear words, one would be committing fatal violence and would be doing unpardonable injustice to the language and spirit of section 4(2) supra by restricting its legitimate parameters of operation. Moreover, the language of article 156 emphasises the words or the phrase “before assuming the exercise of his duty of office.”

The justices within the contemplation of section 4(2) supra have already assumed the duties of their office and are continuing within the language and spirit of the constitutional provisions under 4(1). If such justices were within the contemplation of article 156, as is being urged on behalf of the plaintiffs, the provision would read as follows: “A justice of a Superior Court… shall before assuming the exercise of the duties of his office under this constitution, take and subscribe… in 156 (1).” (The emphasis is mine.)

The indicators spelt out under the 2nd Schedule to the form of oaths derive their authority from section 25 of the Transitional Provisions. They are not reflections or extensions of the procedure prescribed under article 156. They are part of the general legal forms of oaths under the 2nd Schedule to the Constitution. They are creatures of NRCD 6 and are recognised by section 25 of the Transitional Provisions.

By the 2nd Schedule of NRCD 6, the indicators (with particular reference to the oath of allegiance and the judicial oath) specify the persons authorised to tender or administer them. It will be seen clearly there that the power of the Chief Justice to tender or administer such oaths is second to the President in order of preference. The authority of the Chief Justice, as shown in the indicators, is concurrent and in fact is co-ordinate with that of the President. He has this power in his own right and that power emanates from NRCD 6 itself. Within the particular context of this case, it was exercised outside the provisions of article 156.

The Chief Justice was described in the submission as primus inter pares the other justices of the superior court and therefore incompetent to swear-in his colleagues. With due respect that submission was a complete misconception of the status of the Chief Justice. He is under the constitution, the head of the Judiciary, responsible for the general administration and supervision of the Judiciary - article 125(4). When sitting in the Supreme Court, he is the President of that court - article 128 (2). He is the first judge of all the other superior courts in the country; see articles 136 and 139. He sits in all the other courts in his own right as member of those courts. No Supreme Court judge can sit in any of the other Courts without his written authority. I cannot sit in the Court of Appeal without the authority of the Chief Justice because I am not a member of that court; but I can be invited by the Chief Justice to sit as an additional judge of that court even though the Supreme Court, of which I am a member, is higher than the Court of Appeal in the hierarchy. The Chief Justice is the head of the third organ of State.

The procedure for his appointment, removal and resignation are different from the procedure laid down in the constitution for the appointment removal and resignation of the other superior court justices: see articles 144 and 160. Commonsense therefore dictates that if the President who is the first citizen of the State, the Vice-President and the Speaker of Parliament, in that order of precedence, should be sworn-in by the Chief Justice. One is at a loss with the submission that the Chief Justice could not swear-in other superior court judges who come under the organ of State of which he is the head even in the absence of clear, prohibitive language. The President swears-in members of his cabinet, of which he is the head.

The Speaker of Parliament swears-in members of Parliament who work under his directions. It is therefore, legitimate, in the absence of any mandatory words restraining the Chief Justice, to be competent to swear-in the other justices of the superior courts. Such a prohibition must be specifically proved beyond doubt that the Chief Justice has been restrained by the constitution by express provision to swear-in continuing superior court judges as expressly stated in article 156.

Articles 57(3) and 60(5) enjoin the President and the Vice-President to take and subscribe the oath of allegiance, the oaths for the President and the Vice-President respectively, without prescribing who should administer those oaths. However, the indicators set out in the form of oaths in the 2nd Schedule under which those oaths are set out clearly show who should administer them. It is clear therefore that the indicators set out in the form of oaths in the 2nd Schedule to the constitution are to be read as part of the schedule, as guidelines in themselves and not as footnotes or extensions of provisions in the constitution that refer to the schedule. The schedule is as much a part of the statute and is as much an enactment as any other part; per Brett LJ in Attorney-General v Lamplough (1878) 3 Ex D 214 at 229.

In the absence therefore of any mandatory procedural provision in section 4 of the 1st Schedule of the Transitional Provisions requiring the swearing-in of the justices of the superior court continuing in office under the constitution, what was done was legitimate and permissible and cannot be said to have violated any provision of the constitution.

The law as I understand it is that where a statute, speaking on some points is silent as to others, usage may well supply the defect. There is precedent in the history of our courts under written constitutions where the Chief Justice has had to swear in other justices of the superior courts. See article 118 of 1969 Constitution and also article 130 of the 1979 Constitution; in the latter save Supreme Court justices. The latter were excluded because they were not continuing Supreme Court justices. They were in fact assuming office as such justices of the Supreme Court. It is therefore not unknown in the history of our courts where other justices of superior courts have been sworn-in by the Chief Justice.

The indicators to the forms of oath show that the authority to administer the oath under the 2nd Schedule of the 1969 Constitution, which provides the forms of oath, is similar in all the three constitutions. The argument therefore, that section 25 of the Transitional Provisions is the law which recognises the continuation of NRCD 6 under the 1992 Constitution to support the legality of the forms of oaths set out in the 2nd Schedule, ought to be preferred to the argument that the indicators derive their authority from the article which merely makes mention of them.

Section 9 of NRCD 6, as amended by the constitution under section 25 of the Transitional Provisions, gives the Chief Justice a concurrent authority in his own right to administer the two oaths. In the absence, therefore of any express prohibitive language, to the contrary, in section 4 of the First Schedule, Transitional Provisions against the swearing-in of continuing justices of the superior courts, what was done was legitimate.

An attempt was made to find out why there should be two different modes of administering the oath of allegiance and the judicial oath for continuing justices and those to be appointed under article 154 of the constitution. My short answer is that, in my respectful view, that is the clear and unambiguous language of section 4 of the 1st Schedule (the Transitional Provisions) and article 156 of the Constitution respectively. The language of the two admit of no other interpretation. The two provisions make it clear that the constitution recognises and envisages two kinds of justices of the superior courts i.e. those holding office on the coming into force of the constitution who are to continue under section 4 and those to be appointed under article 154 who are to take and subscribe the oaths before assuming the exercise of their duties of office, as required by article 156. Any attempt to find an answer to that question would be speculative and will throw us into the realm of conjecture.

It is pertinent to note that article 145(1) provides different retiring ages for both Supreme Court and the Appeal Court judges on the one hand and those of the High Court and the chairmen of the Regional Tribunal on the other, although these are all superior court judges. Why the differences? One should not speculate the answer.

The legal force of the submissions on behalf of the plaintiffs, though ingeniously, brilliantly and confidently urged, pale into insignificance when one looks at the mighty force of the language of article 299 which has placed the 1st Schedule of the Transitional Provisions in their own world by clothing them with supremacy over the other provisions in the main body of the constitution.

In other words, where an act can be legitimately done within the framework of the 1st Schedule of the Transitional Provisions, no consideration should be given to any other article in the body of the constitution which runs contrary to the act lawfully done. Sections 4 and 25 of the Transitional Provisions, which in my respectful view are relevant to determining the matter in controversy between the parties, take the swearing-in of continuing justices of the superior courts out of the provisions of other articles in the main body of the constitution.

I hold in my judgment therefore, that the contention by the defence that the Transitional Provisions of the constitution provide sufficient material to justify what was done by the 1st defendant in the view expressed by the 2nd defendant as pleaded in paragraph 13 of the statement of case of the plaintiffs, supra is legal and right. I am also satisfied in my judgment that it is legally unacceptable, in the face of the clear and unambiguous language of section 4 of the 1st Schedule (Transitional Provisions) of the constitution, to read its provision together with article 156 of the constitution which latter provision I find is only applicable to justices to be appointed under the construction and especially in the instant case would do injustice to the spirit and language of article 299 and therefore unacceptable.

In the result, I find in my judgment that the plaintiffs have failed to make out their case against the defendants and I will accordingly dismiss their action.

Before I am done, I would like to make a brief observation on the effect of the annexure to the amended defence pleaded in the alternative, i.e. the letter of 22 February 1993 reference OP/S 500 from the office of the President. The contents of this letter, when read in the light of the 1st defendant’s act which provoked the present action, in its spirit and true intent, can be construed as a letter from the President’s office to the effect that the President, who on the indicators had concurrent authority with the Chief Justice to administer such oaths under section 4(2) of First Schedule of the Constitution, has waived his own right and opted in favour of the 1st defendant to swear-in the continuing justices of the superior courts.

This in my respectful view did not involve a delegation of power. The 1st defendant has under the constitution a concurrent right to administer the oaths in question with the President. He did not

 derive his authority from that letter. In that regard, the letter in effect is otiose. I therefore do not wish to make any further comment on that letter.

In the result, I find in my judgment that the plaintiffs have failed to make out their case against the defendants and I will accordingly dismiss their action.

BAMFORD-ADDO JSC. The plaintiffs in this case have invoked the original jurisdiction of this court and are seeking an interpretation of certain provisions of the 1992 Constitution, under article 2 thereof, by praying for declarations:

(1) that by the combined effect of article 156(1), (2) and (3) of the Transitional Provisions, the 1st Schedule and the 2nd Schedule of the Constitution of the Republic of Ghana 1992, all justices of the Supreme Court, the Court of Appeal and High Court of Ghana, holding office immediately before the coming into force of the said constitution are obliged to take and subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the said constitution, before the President of the Republic of Ghana only and not before any other person.

(2) that the purported taking and subscribing of the oath of allegiance and the judicial oath by justices of the Supreme Court, and the Court of Appeal of Ghana on or about 23 and 26 February 1993 respectively by the Chief Justice of Ghana, is null and void and of no effect whatsoever.

Before going on to argue the substance of the case, senior learned counsel for the plaintiffs, Peter Ala Adjetey Esq, raised two preliminary issues regarding the composition of the court and the position of the Attorney-General in the case as representing the Chief Justice. He submitted in respect of the composition of the court that all the members of the Supreme Court minus the Chief Justice should be empanelled to sit on this case because it is an important constitutional case and the final decision of the court would carry more weight if all judges were given the opportunity to pronounce on the matter.

The Attorney-General in his answer to this submission referred the court to article 128(2) of the 1992 Constitution which said that:

“The Supreme Court shall be duly constituted for its work by not less than five Supreme Court Justices except as otherwise provided in article 133 of this Constitution.”

He submitted that five judges could have legally sat on the case and that by increasing the number to seven, the provisions of article 128(2) have been more than satisfied.

I agree with the Attorney-General. Instead of five, seven judges have been empanelled to sit, and the increase from the normal five to seven is undoubtedly an indication of the importance of the case to the authority empanelling the court. It is also true that the decision of this court would be as authoritative as any given by all the members of the Supreme Court sitting together. Moreover to accede to the plaintiffs’ request to increase the composition of the court would be tantamount to permitting litigants to chose their own judges or allowing them to dictate the manner in which the Chief Justice should perform his duties. This, if permitted would undermine the administration of justice in the country.

The second preliminary issue argued by the plaintiffs’ counsel is that the Attorney-General, being himself the 3rd defendant in this case, cannot appear for the Chief Justice who is the 1st defendant. He submitted also that since the responsibilities of counsel are different from those of litigants there might be conflict of interest if the Attorney-General were permitted to appear not only for himself but also for the Chief Justice.

The answer to this submission, as I see it, is that both the Judicial Secretary and the Attorney-General should not have been made defendants in this case in the first place, but only the Chief Justice, who is alleged to have contravened some provisions of the constitution.

If, as counsel says, the case is not against the Government but against the Chief Justice personally, then he was the proper person to be sued, not the Attorney-General or the Judicial Secretary who played no role in the swearing-in of the judges by the Chief Justice and should therefore be dismissed from the suit. However under the Supreme Court Rules 1970 (CI 13) rule 45(3) even if the Attorney-General is not named specifically as a defendant he should be served with the writ, and under rule 48(3) may, if he chooses, file an answer within fourteen days of the service on him of the statement of the plaintiffs’ case or when ordered by the court to do so. This way, the Attorney-General comes into a constitutional case and can appear for a defendant, in this case the Chief Justice.

It is for the above reasons that I concur with the overruling of the two preliminary issues raised by the plaintiffs.

I now turn to the main substance of the case. Simply put the case of the plaintiffs is that the combined effect of article 156 clauses (2) and (3) and section 4 of the 1st Schedule of the Transitional Provisions to the 1992 Constitution obliges all superior court judges, both those in office immediately before the coming into force of the said constitution and also new judges to be appointed under article 144, to take and subscribe the oath of allegiance and the judicial oath before the President and no other person. Therefore the taking of such oaths by judges of the Supreme Court and the Court of Appeal in February 1993 before the Chief Justice was unconstitutional, null and void and of no legal effect whatsoever.

The opposing view of the Attorney-General is that the said oaths were properly taken before the Chief Justice by virtue of the authority given to the Chief Justice under sections 4 and 25 of the 1st Schedule i.e. the Transitional Provisions and the 2nd Schedule of the 1992 Constitution; that the provisions of article 156 cover only future judges to be appointed under article 144 and do not affect superior court justices holding office immediately before the coming into force of the constitution, who have been referred to in these proceedings as “sitting” judges. Consequently it is the contention of the Attorney-General that the “sitting” judges properly took their oaths before the Chief Justice.

It is a matter of disagreement between the plaintiffs and the defendants on the proper interpretation of the relevant provisions of the 1992 Constitution that we are being called upon to resolve.

Article 2 of the 1992 Constitution has given the Supreme Court the exclusive jurisdiction of interpreting the constitution and in the exercise of this function I would like to refer to the case of Tuffour v Attorney-General [1980] GLR 637 at 647 wherein the nature, sanctity and mode of interpretation of the 1979 Constitution were discussed and which is as relevant today to the 1992 Constitution as it was to the 1979 Constitution. In that case Sowah JSC stated, and I wish to adopt and re-echo those sentiments here:

“A written constitution such as ours is not an ordinary Act of Parliament. It embodies the will of the 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 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 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...” (Emphasis mine.)

I wish to refer to the following case as to how to discharge our duties of statutory interpretation. Denning LJ in Seaford Court Estates v Asher [1949] 2 KB 481 at 498 said:

 “Whenever a statute comes up for consideration it must be remembered that it is not within human power to foresee the manifold sets of acts which may arise and that even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision ... A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that or have been guilty of some other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his arms and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which give rise to it, and of the mischief which it was passed to remedy, and then he must supplement to written words so as to give “force and life” to the intention of the legislature.”

Guided by these principles I shall presently endeavour to interpret the relevant articles mentioned in this case by applying certain relevant canons of construction known to the law.

The first principle of interpretation is to give words in a statute their ordinary meaning. If this yields a reasonable result the matter ends there, if not then one goes on to apply other canons of statutory interpretation. According to Halsbury’s Laws of England 3rd edition Vol 36 p 391 paragraph 584-585:

“It is not competent to any court to proceed upon the assumption that Parliament has made a mistake, there being a strong presumption that Parliament does not make mistakes. If blunders are found in legislation they must be corrected by the legislature, and it is not the function of the court to correct them. Thus while terms can be introduced into a statute to give effect to its clear intention by remedying mere defects in language and to remedy obvious misprints or misnomers no provision which is not in the statute can otherwise be implied to remedy an omission. If there is nothing to modify, nothing to alter, nothing to qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning.” (Emphasis supplied.)

Broadly the general method of interpreting statutes or constitutions is to give words their ordinary meaning and if the ordinary meaning makes sense of the passage then the intention as deduced therefrom must be given effect. It is only when the construction leads to absurdity or is ambiguous that one is required to look elsewhere or to resort to the application of other principles of interpretation in order to ascertain the true meaning and intention of the legislature.

As Tindal CJ said in the Sussex Peerage Case (1844) 11 Cl & Fin 85 HL at 143:

“The only rule for construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver.”

Another important canon of construction which would later be seen to be applicable to this case is the one which requires that every word in a statute has a meaning and must be interpreted to give effect to it. See Halsbury’s Laws of England, 3rd edition Vol 36 para 582 where it is stated:

“A statute must, if possible, be construed in the sense which makes it operative and nothing short of impossibility so to construe it shall allow a court to declare a statute unworkable ... It is not permissible to treat statutory provisions as void for mere uncertainty ...”

Paragraph 583 also states:

“It may be presumed that words are not used in a statute without a meaning and are not tautologous or superfluous, so effect must be given, if possible, to all words used, for the legislature is deemed not to waste its words or say anything in vain.”

An illustration of this principle can be found in R v Bishop of Oxford (1879) 4 QBD 545 at 261 per Cockburn CJ:

 “It was suggested on the part of the bishop that the words “if he shall think fit” in s 3 should be rejected as superfluous. To do this we answer that in so doing we should violate a settled canon of construction, namely, that a statute ought to be construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant.”

In the same vein, in the case of Canada Sugar Refining Co v R (1898) AC 735 at 741 it was stated by Lord Davey that:

 “Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes to the subject-matter.”

I shall examine the words in article 156 and interpret them by giving them their ordinary meaning. As stated in Tuffuor v Attorney-General, supra, holding (5):

 “The duty of the court in interpreting the provisions of article 127(8) and (9) was to take the words as they stood and give them their true construction, having regard to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words the appropriate construction according to the context.”

Counsel for the plaintiffs has invited us to give the provisions of article 156 (3)(a), dealing with the judicial oath of the Superior Court judges therein-mentioned, a broad meaning so as to include also the particular class of judges referred to in section 4 of the Transitional Provisions (the 1st Schedule) of the constitution, namely the superior court judges already at post before the coming into force of the 1992 Constitution.

For ease of reference it would be necessary to set out the provisions of article 156 in full:

“156 (1) A Justice of a Superior Court, the Chairman of a Regional Tribunal and also a person presiding over a lower court or tribunal, and any other judicial officer or person whose functions involve the exercise by him of judicial power shall, before assuming the exercise of the duties of his office take and subscribe the oath of allegiance and the Judicial Oath set out in the Second Schedule to this constitution.

(2) The President may, on the advice of the Chief Justice, direct that any other person connected with the exercise of judicial power, shall take and subscribe the Judicial Oath.

(3) The Oath of Allegiance and the Judicial Oath required by this article shall be taken and subscribed

in the case of the Chief Justice or other Justice or a Superior Court and a Chairman of a Regional Tribunal, before the President; and

(b) In the case of any other person, before the Chief Justice or before any other justice of a Superior Court or Chairman of a Regional Tribunal as the Chief Justice may direct.” (Emphasis supplied.)

To ascertain the ordinary meaning of article 156(3)(a) it is necessary to find out the ordinary meaning of the word “before.” “Before” is defined in the Oxford Advanced Learners Dictionary  as “earlier in time … ahead of”. If this is the meaning to be given to the word “before” in article 156 then the ordinary meaning of clause (3)(a) is that the Chief Justice, or other justices of the Superior Court and chairmen of Regional Tribunals are required to take and subscribe the judicial oath and the oath of allegiance before they can assume their functions as judges. Quite clearly the taking of the oaths is a condition precedent to the assumption of duties as indicated by the word “before.” Further it seems to me that the clear intention is that article 156 should apply to the class of judges mentioned in article 156.

But the plaintiffs’ counsel argues that article 156 should be interpreted to apply to all classes of judges both those in office immediately before the coming into force of the 1992 Constitution or “sitting” or continuing judges as well as all future judges to be appointed under article 144 of the constitution. This interpretation is disputed by the Attorney-General who is of the view that the provisions of sections 3, 4 and 25 of the Transitional Provisions are the proper provisions applicable to the appointment and swearing-in of “sitting” judges.

To arrive at a proper interpretation of the sections referred to in the Transitional Provisions, one must ascertain the intention of the drafters of the constitution as gathered from the ordinary meaning of the words used therein.

Section 3 of the Transitional Provisions states that the Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of the constitution shall be deemed to have been established under the constitution and shall continue to perform the functions of those courts specified in Chapter 11 of the constitution. Section 4 of the Transitional Provisions provides:

“4(1) A Justice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under this Constitution.

(2) Any person to whom this section applies shall, on the coming into force of this Constitution take and subscribe the oath of allegiance and the judicial oath set out in the Second Schedule to this Constitution.”

Section 4 of the Transitional Provisions, unlike article 156 provided no specific point in time for taking the oaths, no mention was made of the President as the only person entitled to administer the said oaths and the list of judges did not include a chairman of a regional tribunal, which is a new post created under the constitution. So then one would ask, before whom are the sitting judges to take their oaths? It is my view that the key to this question can be found in the provisions of section 25 of the Transitional Provisions and the Second Schedule of the 1992 Constitution. According to section 4(2) the oaths of allegiance and judicial oath specified in the Second Schedule are those to be sworn by the “sitting” judges listed in section 4. But section 25 provides also that:

“The Oaths Decree, 1972 (NRCD 6) as amended shall have effect subject to the provisions of this Constitution.”

Since section 25 and every word in that section must be given effect, section 25 must necessarily mean that the Oaths Decree 1972 as amended should be read together with section 4(2). The amendment to NRCD 6 as I see it can be found in section 4(2) which specifies that the oaths to be sworn are in the mode and form set out in the Second Schedule of the constitution, in other words, not those set out in the First Schedule to NRCD 6. The oaths in the Second Schedule of the constitution are longer and more detailed than those in the First Schedule of NRCD 6 and to that extent NRCD 6 has been amended.

In my opinion this is the proper meaning of section 25. It would be unjustified to read sections 4 and 25 in any other way because in my view, to do so would be to give a meaning different from the ordinary meaning of those words. There is a difference between the words “before assuming the exercise of the duties of his office” contained in article 156 and the words “shall continue to hold office” in section 4(1) of the First Schedule, Transitional Provisions.

 Whereas the former phrase implies the time when the oaths are to be taken, as well as the requirement of satisfaction of a precondition by the use of the word “before” the latter implies that the precondition has already been complied with and the office-holder is permitted to “continue” to hold office.

These two provisions are referable to two different classes of judges namely future superior court judges to be appointed under article 144 of the constitution, and those who have already been appointed and exercising judicial functions before the coming into force of the 1992 Constitution. The former class of judges are required under article 156(3)(a) to take and subscribe their oaths before the President, and the latter class in accordance with the provisions of sections 4 and 25 of the Transitional Provisions and the Oaths Decree 1972 (NRCD 6).

Counsel for the plaintiffs is of the view that since section 4(2) did not mention the President as the authority to administer the oaths, as was done in article 156(3)(a), this word “the President” must be implied and that it is the President and President only who can administer the oaths to continuing judges under section 4(2).

I disagree with counsel on this issue, because to accept this view would be to ignore the provision of section 25 and import words not intended into section 4. This would be wrong as it would be contrary to the intention of drafters of the constitution which appears in the provision of section 25. If counsel’s view is correct, why did the constitution specifically mention the President in article 156, but omit him in section 4, and not only that, but went on to make further provision in section 25?

In the absence of section 25, counsel’s view would have been tenable and the inference that the President is the authority to administer the oaths to the class of judges specified in section 4 acceptable. However it is neither the footnotes to the 2nd Schedule of the constitution nor article 156 which designates the authority to administer the oaths for the “sitting” judges, but the cumulative effect of sections 4 and 25 of the Transitional Provisions as well as NRCD 6 that indicates the proper authority namely, the President or the Chief Justice.

Furthermore the rule is that where a later statute incorporates by reference the whole or any part of an earlier statute into the later statute the whole of the provisions in the earlier statute should be read into the later one (in this case as amended) as if set out in full therein. See Re Barker (1881) 17 Ch D 241 CA, per James LJ at 243:

“Here the 8th section of the Partition Act says in so many words that in any sale effected under the authority of that Act, the Court is to deal with the money in exactly the same way as it would be dealt with under the Settled Estates Act – that is to say, we must read the Act of Parliament as if all the 23rd to 25th clauses of the Settled Estates Act were repeated totidem verbes in the Partition Act.”

Applying the principle in the Barker case it is from the Oaths Decree 1972 (NRCD 6) as read together with section 4 that we can find the proper authority to administer the oaths to “sitting” judges.

NRCD 6 states in section 2 that:

“The oaths specified in the first column of the Second Schedule shall be taken by a person appointed to an office set out in the second column of that Schedule and shall be administered by the authority specified in the third column of that Schedule.” (Emphasis mine.)

The 2nd Schedule to section 2 of NRCD 6 specifies that the oath of allegiance and the judicial oath for justices of the Superior Court of Judicature i.e. Supreme Court, Court of Appeal and High Court, shall be taken before “the Chairman of NRC, (now President), the Chief Justice or such other person as the Chief Justice may designate.” It can be seen clearly that either the President or the Chief Justice is entitled to swear-in Superior Court judges. The intention gathered from the language of NRCD 6 is clear to me and, given their ordinary meaning, must be interpreted in the way I have done.

Even though it is the Second Schedule to NRCD 6 that designates the Chief Justice as the officer to administer the relevant oath that schedule must be given the same weight and force as the provision in article 156(3)(a). This designates the President as the one to administer the oath to the class of judges therein-mentioned. This is because a schedule is as much a part of a statute and as ,much an enactment as the section by which it is introduced. In Attorney-General v Lamplough (1878) 3 Ex D 214 at 229 Brett LJ said:

“We come to the remaining part of the schedule. With respect to calling it a schedule, a schedule in an Act of Parliament is a mere question of drafting a mere question of words. The schedule is as much a part of the statute and is as much an enactment as any other part.”

See also Inland Revenue Commissioner v Gittus [1920] 1 KB 563 at 575 and also the case of Panagotis v SS Pontiac [1912] 1 KB 74 at 79 where Farwell LJ stated:

“The Act of 1906 is divided into three parts the 1st part being in the usual form of Act followed by three schedules. I do not know the reason of such division, which is extremely inconvenient for purposes of reference, but in my opinion the schedules must be treated as part of the Act and the Act must be read as if it were divided into parts with sections running on in the usual way. As Lord Asher says in Attorney-General v Lamplough “with respect to calling it a schedule a schedule in an Act of Parliament is a mere question of drafting - a mere question of words. The Schedule is as much a part of the statute and is as much an enactment as any other part.”

Therefore, the fact that the Chief Justice derives his authority to swear in the judges from a schedule does not detract from its binding force but has the same authoritative effect as provisions of article 156(3)(a) of the constitution.

Counsel for the plaintiffs appeared to have excluded the provision of section 25 from his consideration, therefore his attention was drawn to that section. In reply to a question from the court as to the effect of section 25 of the Transitional Provisions he replied that that section was to be treated as superfluous and that in his opinion it made no difference to the interpretation which should be put on article 156, to the effect that that article covers all superior court judges including “sitting judges” mentioned in section 4 of the Transitional Provisions. He argued that section 4 should be read together with article 156(3)(a) to the total exclusion of section 25.

In other words we are being asked to ignore or wish away the provision in section 25 and to impute or supply the absent word namely, ‘President’, into section 4.

I am afraid that in the absence of compelling words to the effect that the President should swear in judges specified in section 4, I cannot accept counsel’s invitation to treat the words in section 25 which provide the key to the proper interpretation of section 4 as superfluous. In an enactment no word is allowed to be ignored, every word has a meaning and must be interpreted to be effective, and nothing short of impossibility would permit a word or provision to be ignored.

Therefore section 25 must be interpreted and made operative by reading it together with the other relevant provisions of the constitution. It is in so doing that the intention or the will of the people becomes crystal clear to the discerning mind.

I am not implying that section 4 wears its meaning on its sleeve, far from that. Its meaning cannot be ascertained at first glance but only after a patient and thorough examination of all the relevant provisions of the constitution that the section yields its secret and the answer leaps out.

Therefore without positive words, I cannot, in the face of clear words, read into section 4 the meaning which counsel seeks to put on it namely, that the provisions of article 156 are by implication applicable to section 4.

Another aspect to which I must avert my mind is the question whether the provisions of article 156 are in conflict or contradict those of section 4. My view is that the two provisions are neither in conflict nor contradictory, the reason being that those two provisions deal with different classes of judges and are contained in different parts. Article 156 deals with those to be appointed under article 144 and section 4 of the Transitional Provisions affects those judges specified in section 4 i.e. “sitting judges.”

But even assuming that they conflict, which I deny, there is a proper and legal way to resolve the conflict. The principle of law is that whenever in an enactment there appears general provisions as well as particular provisions which are contradictory the particular provisions are to be considered as an exception to the general rule, and should be made effective despite the general provisions. In the case of Pretty v Solly 26 Beav 606 at 265 Romilly MR stated thus:

“The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply… Again wherever two parts of the statute are contradictory, the Court endeavours to give a distinct interpretation to each of them looking at the context.”

See also Ebbs v Boulnois 10 Ch 484 to the same effect and Churchill v Crease (1828) 5 Bing 1028 at 1030 per Best CJ:

“… the rule is, that where a general intention is expressed and the act expresses also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception.”

Therefore since article 156 contains general provisions of universal application and section 4 contains particular provisions to be applied to a limited class of judges, section 4 should be considered as an exception to article 156 and be given effect.

It is also pertinent to note the provisions of article 299 namely:

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

Article 299 dispels any doubt that article 156 is not to be read with section 4. This article means that irrespective of anything to the contrary in the constitution, the Transitional Provisions, including sections 4 and 25 are to apply and be made operative. In the face of these clear provisions I do not find myself warranted to hold any other view than that section 4 and 25 of the Transitional Provisions should apply to “sitting” judges.

Another argument advanced on behalf of the plaintiffs why the Chief Justice cannot administer the oaths to the Supreme Court judges is that being equal in all respects it would be discriminatory for the Chief Justice to swear before the President and the other judges to swear before the Chief Justice and for this reason the Chief Justice cannot be the proper authority to administer the relevant oaths to the superior court judges.

With respect I doubt the soundness of this reasoning. An oath is a pronouncement or swearing to the truth of a statement or promise usually by an appeal to God to witness its truth. An oath is taken when it is required by law to be taken by any particular person or official on appointment, usually before assuming office (as stated in article 156 by use of the word “before”). It is the same statute which normally designates the authority to administer the oath and it does not necessarily follow that the designated person should be higher in rank to the official required to take the oath. This is purely a matter of convenience, the important thing is that the oath must be sworn, of course, before the proper person designated.

An example is that the President who is higher in rank than the Chief Justice is required to take the oath of allegiance before the Chief Justice because he cannot administer it to himself. So also the Chief Justice takes the oaths before the President even though he is also a person designated to administer the oaths to all superior court judges including himself under the Oaths Decree 1972 (NRCD 6). In fact he was only complying with the law when he swore in the judges and his action being in conformity with constitutional provisions the swearing-in cannot be said to be null and void; nor can it be said that because he is of the same status and equal in all respects with the other Supreme Court judges, he cannot be a proper person to administer the oaths in the face of clear provisions of section 4 an 25 of the Transitional Provisions as well as NRCD 6 authorising him to do so.

There is another issue worthy of consideration which was raised on behalf of the plaintiffs, even though I think it is irrelevant to the resolution of the dispute in this case. Counsel ably and rightly submitted that the letter written by Mr Ato Dadzie, which the Attorney-General referred to in the statement of defence as amounting to a delegation of power by the President to the Chief Justice to administer the oaths, was of no effect and could not authorise the Chief Justice to administer the oaths. The letter stated that:

“In conformity with section 4 Part III (Transitional Provisions) of the Constitution the President has designated the Chief Justice to swear-in the judges of the superior courts.”

The Attorney-General made a feeble attempt to rely on this letter in an alternative defence and argued that this authorised the Chief Justice to swear in the judges, which attempt I think he rightly abandoned.

If, as I see, the Attorney-General was relying on sections 4 and 25 of the Transitional Provisions as the authority by which the Chief Justice acted, then his alternative defence is not only unnecessary and irrelevant but also misconceived and erroneous because under sections 4 and 25 of the Transitional Provisions and NRCD 6 it is not the President but the Chief Justice who is permitted to designate another person to swear in judicial officers.

Counsel also submitted that in any case the President could not even delegate his functions under article 156(3)(a) to the Chief Justice. After a careful reading of article 297(j) which states:

“Where a power is conferred or a duty is imposed on the holder of an office as such, the power may be exercised and the duty shall be performed by the person for the time being charged with the performance of the functions of that office.”

I am inclined to agree with counsel on this point. It is the duty of the President to perform the swearing-in of the Superior Court judges himself under article 156(3)(a) but in his absence this function can be performed by the Vice-President or any other person when acting as President. It follows that the swearing-in of future judges to be appointed under article 144 must be done by the President himself and that he cannot delegate his powers to the Chief Justice under article 1563)(a) or to any other person other than as specified under article 297(j).

I would like finally to conclude that for the above reasons, I am of the firm view that the Chief Justice rightly swore-in the superior court judges. All the canons of statutory construction lead me to this inevitable conclusion and no amount of logic, inferences or resort to the spirit of the constitution can be allowed to override stout, clear and explicit constitutional provisions, to the effect that under article 156(3)(a) the President should swear-in all future judges of superior courts to be appointed under article 144 of the constitution but that either the President or the Chief Justice can swear in “sitting” judges under section 4 of the Transitional Provisions of the constitution. Therefore the swearing-in by the Chief Justice of the superior court judges holding office immediately before the coming into force of the 1992 Constitution is lawful and not null and void.

I cannot end without commenting on the benefit that, speaking for myself, I have derived from the brilliant exposition of senior counsel for the plaintiffs, Mr Peter Adjetey, and which has aided me in arriving at the view that I have reached. I might also add that in bringing to the Supreme Court this as the first constitutional case under the 1992 Constitution, the Bar Association, through the plaintiffs, has demonstrated its firm resolve to defend the constitution by preventing any breaches of its provisions. Surely this is a positive contribution towards the realisation of the people’s desire to live in peace and harmony under a just constitutional order where the will of the people as contained in the constitution is scrupulously obeyed or enforced.

HAYFRON-BENJAMIN JSC. I have no doubt in my mind that there are serious constitutional issues involved in this case. However, ever since the promulgation of the 1992 Constitution, otherwise  called “the Constitution of the Fourth Republic”, the armchair constitutional experts and the wiseacres have had a field day interpreting in the print and electronic media what they believe to be the true meaning of the provisions of the constitution. Of course the constitution guarantees these “experts” the freedom to express themselves and to air their views.

Unfortunately the plaintiffs, the Ghana Bar Association, fell into this very mould and in the exercise of their undoubted right of freedom of expression presumed to instruct and gratuitously advise His Lordship the Chief Justice, the 1st defendant, in an open letter dated 4 March 1993 that:

“It is therefore clear that the taking and subscribing of the judicial oath before you as Chief Justice, by members of the Supreme Court on 23 February 1993 and the Court of Appeal on 26 February 1993 were unconstitutional and illegal acts, flying in the face of express constitutional provisions.”

Those were strong words, but the plaintiffs were undaunted. They concluded the “open letter” by demanding that His Lordship the Chief Justice should “take rapid steps to rectify the breach of the constitution occasioned by the events of the 23 and 26 February 1993 by ensuring immediate and due compliance with the provisions of article 156 of the constitution in relation to all the members of the superior courts.”

In spite of these presumptuous and gratuitous advice the plaintiffs did not suggest how His Lordship, the Chief Justice, was going to commit the volte-face and comply with article 156 of the 1992 Constitution. No doubt the plaintiffs had at the back of their minds the traditional sankofa principle that if one makes a mistake one could always turn around and do the correct thing; that is in the case of the Chief Justice if he agreed with the views expressed in the open letter of the plaintiffs then His Lordship would arrange for the superior court judges to assemble before His Excellency the President and be re-sworn.

The plaintiffs were not, it seems, aware of the provisions of section 3(1) of the Oaths Decree 1972 (NRCD 6) which states as follows:

“3(1) No person who has duly taken the Oath of Allegiance or the Judicial Oath shall be required again to take that oath on appointment to any other office on any other occasion.”

It must be said in passing that not a single argument was advanced to us by the parties with respect to the NRCD 6 as is referred to in section 25 of the Transitional Provisions which in my