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Practice and Procedure -
Constitutional law --
Interpretation and enforcement
- 1992 Constitution Article 2
- Whether or not Plaintiff has
no locus standi to enforce the
judgment
HEADNOTES
On or
about 14/06/2013, this court
unanimously granted several
reliefs sought on the writ. The
plaintiff/Applicant herein was
dissatisfied with parts of the
judgment and therefore applied
for review of the judgment of
the ordinary bench above
referred to. This court on
29/07/2014 reviewed its decision
of the ordinary bench by a
unanimous decision by a panel of
eleven Justices. It would be
worthwhile to fully state the
orders made by this Court which
has culminated in this
application.
in this case in paying or
ordering the payment by the
Republic of Ghana of claims by
the 3rd Respondent
and Austro-Invest, premised upon
a purported foreign
international agreement dated 26
April 2006, and other
international business
agreements arising out of the
said agreements with the
Government of Ghana which were
never laid before parliament for
approval is inconsistent with
and in contravention of Article
181(5) of the constitution 1992
in terms of the interpretation
already rendered by the ordinary
bench and are accordingly
declared null, void and without
effect whatsoever. A declaration
that the High Court which
purported to and assumed
jurisdiction in the action
commenced by the 3rd
Respondent (as plaintiff) on 19
April 2010 in suit No RPC/152/10
against the 1st
Respondent claiming damages for
breach of contract is an
international business
transaction contrary to Article
181(5) of the Constitution 1992
and entering judgment in default
of defence against the 1st
Respondent, therein, 1st
Defendant, acted without
jurisdiction , consequently
those proceeding and others
consequent upon the said
proceedings and orders of the
High Court are thereby declared
null, void and without effect
whatsoever. An order directed at
the 3rd Respondent
herein to refund to the Republic
of Ghana all sums of money paid
to him upon or as a result of
the unconstitutional conduct of
the 1st Respondent;
therein 1st Defendant
in purported pursuance of the
said inoperative Agreement dated
26 April 2006.
HELD
Given the
circumstances of this case, the
colossal amount of the judgment
debt, and the fact that for more
than two years (since
29/07/2014) no serious effort
has been made to levy execution
and no execution process is
pending in court, I am prepared
to offer an opportunity to the
Plaintiff/Applicant to proceed
accordingly to execute the
judgment as a party who
initiated the action for the
benefit of all the citizens of
Ghana. My liberal approach to
article 2 of the Constitution
1992 would, in my view,
substantially advance the course
of justice in this case. After
all, any money that may be
realized from the execution is
entirely for the Republic of
Ghana and the
Plaintiff/Applicant does not,
indeed, stand to benefit
directly from it. The
application is thus granted and
the 3rd
Defendant/Respondent herein Mr.
Alfred Agbesi Wogome is hereby
ordered to appear before me in
this Court on Thursday, the 24th
of November 2016 at 10.00 in the
forenoon to be examined orally
on oath by the
Plaintiff/Applicant herein.
STATUTES REFERRED TO IN JUDGMENT
High Court Civil Procedure Rules
2004, (CI 47).
1992 Constitution
State Proceedings Act, (Act 555
) 1998
CASES REFERRED TO IN JUDGMENT
Christie v Christie [1873] 8 Ch
App 499
Cashin v Cradock [1876] 3 ChD
376CA.
Boyefio V NTHC Properties Ltd.
[1996-97] SCGLR 531.
Tuffour v Attorney-General
[1980] GLR 637
Atta Kwadwo v Badu [1977] I GLR
CA
BOOKS REFERRED TO IN JUDGMENT
Atkins Encyclopaedia of Court
Forms in Civil Proceedings 2nd
Edition volume 3
DELIVERING THE LEADING JUDGMENT
ANIN YEBOAH JSC:-
COUNSEL
PLAINTIFF/APPLICANT APPEARS IN
PERSON.
DR. DOMINIC AYINE ( DEPUTY
ATTORNEY GENERAL).WITH HIM
STELLA BADU (CHIEF STATE
ATTORNEY) AND ZEINAB AYARIGA
(ASSISTANT STATE ATTORNEY) FOR
THE 1ST
DEFENDANT/RESPONDENT.
KEN ANKU WITH HIM GLORIA DEDE
TEYE FOR THE 3RD
DEFENDANT /RESPONDENT.
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RULING
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ANIN
YEBOAH JSC:-
The plaintiff/Applicant herein
has moved this court on notice
for leave to examine the 3rd
Defendant/Respondent herein
pursuant to the order of this
court dated the 19th
October 2016.
To fully appreciate the basis
for this ruling I have to fully
set out the facts leading to
this application which warranted
this action against the three
defendants for several reliefs
which are not necessary to be
repeated in this ruling for sake
of brevity. The action was
brought under Article 2 of the
1992 Constitution which
obviously invoked our original
jurisdiction for the
interpretation and enforcement
of constitutional provisions,
precisely Article 181 thereof.
On or about 14/06/2013, this
court unanimously granted
several reliefs sought on the
writ. The plaintiff/Applicant
herein was dissatisfied with
parts of the judgment and
therefore applied for review of
the judgment of the ordinary
bench above referred to. This
court on 29/07/2014 reviewed its
decision of the ordinary bench
by a unanimous decision by a
panel of eleven Justices. It
would be worthwhile to fully
state the orders made by this
Court which has culminated in
this application.
BY COURT:
“By unanimous decision of this
court, the application for
review succeeds and is hereby
granted. Consequently, the
applicant is entitled to have
the decision of the ordinary
bench reviewed in the following
terms:
Reliefs 9, 10, 13 and 14 are
granted. Reliefs 6 and 7 are
subsumed in the main ruling of
the court dated the 14 June,
2014.
We therefore make the following
declarations and orders:
(1)
A declaration that the
then Honourable Attorney-General
, the 1st Defendant
Respondent , in this case in
paying or ordering the payment
by the Republic of Ghana of
claims by the 3rd
Respondent and Austro-Invest,
premised upon a purported
foreign international agreement
dated 26 April 2006, and other
international business
agreements arising out of the
said agreements with the
Government of Ghana which were
never laid before parliament for
approval is inconsistent with
and in contravention of Article
181(5) of the constitution 1992
in terms of the interpretation
already rendered by the ordinary
bench and are accordingly
declared null, void and without
effect whatsoever.
(2)
A declaration that the
High Court which purported to
and assumed jurisdiction in the
action commenced by the 3rd
Respondent (as plaintiff) on 19
April 2010 in suit No RPC/152/10
against the 1st
Respondent claiming damages for
breach of contract is an
international business
transaction contrary to Article
181(5) of the Constitution 1992
and entering judgment in default
of defence against the 1st
Respondent, therein, 1st
Defendant, acted without
jurisdiction , consequently
those proceeding and others
consequent upon the said
proceedings and orders of the
High Court are thereby declared
null, void and without effect
whatsoever.
(3)
A declaration that the
conduct of the 3rd
Respondent, therein plaintiff
jointly with Austro-Invest
Management Limited in making
claims upon and including the
issuance of a writ of summons
with the support of the second
defendant therein and receiving
payment premised upon breaches
of the two inoperative
agreements dated 26th
April 2016 between the
Government of Ghana , which are
International business or
economic transaction which had
not been laid and approved by
parliament is inconsistent with
and in contravention of Article
181 (5) of the constitution.
(4)
An order directed at the 3rd
Respondent herein to refund to
the Republic of Ghana all sums
of money paid to him upon or as
a result of the unconstitutional
conduct of the 1st
Respondent; therein 1st
Defendant in purported pursuance
of the said inoperative
Agreement dated 26 April 2006.
After the review application
which the Plaintiff/ Applicant
herein successfully obtained
from this court, the
Attorney-General as the first
Defendant, sought to enforce the
orders referred to above as
order (4). The first attempt to
levy execution from this court
was for garnishee proceedings
which I granted leave and
invited the garnishees to appear
in court which they complied.
Indeed it turned out that the
amount realised from the
garnishee proceedings was
ridiculously low and below the
expectation of the court and the
1st defendant
/Respondent herein who levied
the execution.
On or about the 12/10/2016, the
first defendant /respondent
herein filed a motion ex parte
under Article 129(4) of the 1992
Constitution and Order 46 of the
High Court Civil Procedure Rules
2004, (CI 47). I granted the
leave and fixed the application
for the 10th November
2016 to enable the 3rd
Defendant /Respondent herein to
personally appear before this
court to be examined orally on
oath to assist the
Attorney-General who had sought
to levy execution to know or
ascertain whether the 3rd
Defendant/Judgement debtor has
any property or other means of
satisfying the judgment.
However, on the 31/10/ 2016 the
Attorney-General filed a
Notice of Discontinuance with
Liberty. For a fuller record
and given the magnitude of the
judgment debt, I reproduce the
said notice ad longum:
“NOTICE OF DISCONTINUANCE WITH
LIBERTY
PLEASE TAKE NOTICE that the 1st
Defendant Judgment Creditor
herein has this day discontinued
the present application to
orally examine the 3rd Defendant
Judgment Debtor with liberty to
reapply.
DATED AT THE ATTORNEY-GENERAL’S
CHAMBERS, ACCRA THIS 26TH
DAY OF OCTOBER 2016.”
On 4/11/2016, the
plaintiff/Applicant herein filed
this instant application praying
this court for leave to examine
the 3rd
Defendant/Respondent herein
pursuant to the order of this
Court dated 19th
October 2016 under Articles 2
and 129(4) of the 1992
Constitution and Order 46 of the
High Court Civil Procedure Rules
2004, (CI47).
This application which was duly
served on the defendants was met
with fierce resistance by
affidavits in opposition sworn
to by the Honourable-Attorney
General herself and the 3rd
Defendant herein, Mr. Alfred
Agbesi Woyome.
At the hearing of the
application, the, Deputy
Attorney-General who led for the
first defendant /Respondent
raised legal objections to the
propriety of some paragraphs in
the affidavit in support of the
application sworn to by the
Plaintiff/Applicant himself. He
referred particularly to
paragraphs 8-12 inclusive of the
affidavit in support and
submitted that as the deposition
therein offend Order 20 rule 9
of C.I 47 of 2004 same ought to
be struck out by the court.
I examined the said paragraphs
in detail and in the course of
entertaining his legal
objections as to the propriety
of the depositions in those
paragraphs, I asked learned
counsel (The Deputy
Attorney-General) whether all
the said paragraphs sin against
Order 20 rule 9 which he
answered in the affirmative.
I must confess that I was not
comfortable with some of the
depositions in the paragraphs
under attack. In some of the
depositions, the deponent, a
distinguished member of the bar
did not go further to disclose
his source of information as
required by Order 20 rule 8
which states thus:
8 (1) “An
affidavit shall contain facts
that the deponent can prove,
unless any provision of these
Rules provides that it may
contain a statement of
information or belief thereof.
(2) An
affidavit sworn for the purpose
of being used in interlocutory
proceeding may contain a
statement of information or
belief or both with the source
of the information and the
grounds of the belief.”
It is my thinking that as the
deponent did not disclose his
source of information in
paragraphs 10, 12, 13,16,19 and
the fact that all the said
depositions, in my respectful
view offend Order 20 rule 9 for
being scandalous, I will in the
exercise of the jurisdiction
conferred by the said rule
proceed to strike out the said
depositions. I think a short
passage from Atkins
Encyclopaedia of Court Forms in
Civil Proceedings 2nd
Edition volume 3 at 441
supports my position and same
states as follows:
“The court may order
to be struck out any affidavit
any matter which is scandalous,
irrelevant, or otherwise
oppressive. Matter is scandalous if
it is indecent or offensive, or
is included for the purpose of
abusing or prejudicing the
opposite party or is unduly
lengthy.”
In support of this proposition
of law are cases like
Christie v Christie
[1873] 8 Ch App 499 and
Cashin v Cradock [1876]
3 ChD 376CA. I have observed
that only those paragraphs ought
to be struck out and not the
entire depositions as urged by
counsel for the first defendant.
On the merits of this
application, both counsel for
the defendants/respondent
contended that due process must
be followed in the execution of
the judgment under
consideration. According to the
Deputy Attorney-General, as the
matter under consideration
relates to public funds, the
Attorney-General under Article
88 of the 1992 Constitution and
State Proceedings Act, Act 555
of 1998 is the only person
clothed with power to enforce
the judgment. He contended
further that it is not a
judgment which the
Plaintiff/Applicant has a
personal interest. According to
learned counsel for the third
defendant, Mr. Anku, Article 2
of the 1992 Constitution does
not in anyway mandates
Plaintiff/Applicant to proceed
to levy execution. He submitted
further that the Plaintiff has
no locus standi to enforce the
judgment under Order 46 of C. I.
47 and relied on the case of
Boyefio V NTHC Properties Ltd.
[1996-97] SCGLR 531.
In reply, the
Plaintiff/Applicant contends
that Article 2 of the 1992
Constitution which was invoked
entitles him to enforce the
judgment against the 3rd
Defendant/Respondent herein.
This application was argued on
the 10th of November
2016 and given the novelty
surrounding it, I adjourned the
ruling to consider the legal
points raised.
It must be made abundantly clear
that the Plaintiff/Applicant
herein is not the direct
beneficiary of the judgment debt
which this court ordered the 3rd
Defendant/Respondent to pay to
the Republic of Ghana. He is a
citizen of the Republic of Ghana
who was clothed with locus
standi under article 2 of the
Constitution 1992 to invoke our
original jurisdiction in this
matter. He prosecuted this
action to finality by way of
reviewing our ordinary bench’s
decision. His complaint is that
after two years when the
judgment was delivered, no
serious effort has been made to
execute it. In my respectful
opinion, Article 2 of the 1992
Constitution which was invoked
by the Plaintiff/Applicant must
be given such meaning that will
carry out the aspiration of the
framers of the Constitution
mindful of the fact that the
preamble clearly speaks of
probity and accountability.
A Constitution must be
interpreted in such a way as to
advance the aspirations of the
framers. I remind myself of the
observations of Sowah JSC (as he
then was) in the case of
Tuffour v Attorney-General
[1980] GLR 637 at page 647 as
follows:-
“A written Constitution such
as this is not an ordinary Act
of Parliament. It embodies the
will of a people. It also
mirrors their history. Account,
therefore, needs to be taken of
it as a landmark in a people’s
search for progress. It contains
within it aspirations and their
hopes for a better and fuller
life.”
The learned Judge further
observed at the same page thus:
“It’s 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
consideration to bear, in
bringing it into conformity with
the needs of the time.”
I have observed that article 2
of the Constitution 1992 under
which the action was brought
gives every citizen of Ghana the
right to invoke this court’s
original jurisdiction when the
necessity arises.
This was what the
Plaintiff/Applicant exactly did.
The 1st
defendant/respondent after the
order of this court on 29/7/2014
sought to enforce the judgment
against the 3rd
defendant/respondent herein. The
processes of execution was
placed before me. But on the 10th
of November, 2016 the 1st
defendant by a notice sought
leave to discontinue the
execution process which was in
operation. I granted the
application and accordingly
struck, out the execution
process under Order 46 of C. I.
47. Now before this court, there
is no execution process in
motion for upon the striking out
the first defendant/respondent
is at liberty to either repeat
the application or abandon the
whole execution process
altogether by not coming back to
court. See Atta Kwadwo v
Badu [1977] I GLR CA
which throws light on the effect
of discontinuance of actions and
its revival. It follows that in
the eyes of the law there is no
execution process pending at the
instance of the first
defendant/respondent herein or
any party for that matter, save
this application brought by the
Plaintiff/Applicant.
I have considered the entire
provisions of the State
Proceedings Act, Act 555 of 1998
but find no provision therein
which could support the position
taken by the learned counsel for
both parties opposing this
application.
Given the circumstances of this
case, the colossal amount of the
judgment debt, and the fact that
for more than two years (since
29/07/2014) no serious effort
has been made to levy execution
and no execution process is
pending in court, I am prepared
to offer an opportunity to the
Plaintiff/Applicant to proceed
accordingly to execute the
judgment as a party who
initiated the action for the
benefit of all the citizens of
Ghana. My liberal approach to
article 2 of the Constitution
1992 would, in my view,
substantially advance the course
of justice in this case. After
all, any money that may be
realized from the execution is
entirely for the Republic of
Ghana and the
Plaintiff/Applicant does not,
indeed, stand to benefit
directly from it.
The application is thus granted
and the 3rd
Defendant/Respondent herein Mr.
Alfred Agbesi Wogome is hereby
ordered to appear before me in
this Court on Thursday, the 24th
of November 2016 at 10.00 in the
forenoon to be examined orally
on oath by the
Plaintiff/Applicant herein.
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
COUNSEL
PLAINTIFF/APPLICANT APPEARS IN
PERSON.
DR. DOMINIC AYINE ( DEPUTY
ATTORNEY GENERAL).WITH HIM
STELLA BADU (CHIEF STATE
ATTORNEY) AND ZEINAB AYARIGA
(ASSISTANT STATE ATTORNEY) FOR
THE 1ST
DEFENDANT/RESPONDENT.
KEN ANKU WITH HIM GLORIA DEDE
TEYE FOR THE 3RD
DEFENDANT /RESPONDENT.
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