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RULING
EDWARD WIREDU, AG. CHIEF JUSTICE
This ruling is the outcome of a
preliminary objection raised on
behalf of the Defendants by the
Attorney General on the
following grounds:
(1) This Court lacks
jurisdiction to entertain the
Plaintiffs action against the
Defendants herein;
(2) That no cause of action is
disclosed by Plaintiff's Writ
and the Statement of Case;
(3) That the questions raised in
the Plaintiff's action for
determination are moot; and for
such further or other Orders as
to this Honourable Court may
seem it.
Article 11 of the 1992
Constitution Provides as
follows:—
11. (1) The law of Ghana shall
comprise
(a) this Constitution;
(b) enactment’s made by our
under the authority of the
Parliament established by this
Constitution;
(c) any Orders, Rules and
Regulations made by any person
or authority under a power
conferred by this Constitution;
(d) the existing law; and
(e) the common law.
From the above it will be
observed that there are five
different kinds of laws which
are recognised and enforceable
in the courts of Ghana.
Each Court in Ghana has it's own
jurisdiction prescribed for it
under the laws of Ghana. Some of
these laws are not enforceable
directly by invoking the
original jurisdiction of the
Supreme Court. Save those
specifically provided for under
Article 130 (1) and (2) of the
Constitution which read as
follows:—
ARTICLE 130 (1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in Article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in:—
(a) all matters relating to the
enforcement or interpretation of
this Constitution; and
(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.
(2) Where an issue that relates
to a matter or question referred
to in clause (1) of this Article
arises in any proceedings in a
Court other than the Supreme
Court, that Court shall stay the
proceedings and refer the
question of law involved to the
Supreme Court for determination,
and the Court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court.
That there are different kinds
of laws in Ghana in addition to
the provisions of the
Constitution itself is also
buttressed by Article 1(2) which
states in effect that any law
which is inconsistent with any
provision of this Constitution
is to the extent of such
inconsistency void. See also
Article 2 (1) (a).
The events which have provoked
this case are provided by the
Plaintiff in his Statement of
Claim paragraphs 2 - 7 with
particular reference to
paragraphs 5 & 6.
The said paragraphs read as
follows:—
2. The 1st Defendant is the
President of the Republic of
Ghana and is being sued as a
person whose conduct is
violating the Constitution of
Ghana.
3. The 2nd Defendant is the
Attorney-General and the
Principal Legal Adviser to the
Government who is being sued as
the person against whom all
civil proceedings affecting the
state shall be instituted.
4. The 3rd, 4th and 5th
Defendants are private citizens
of Ghana and members of the New
Patriotic Party (a Political
Party and a corporate body
registered under the laws of
Ghana) who are holding
themselves out as Officers or
Staff in the Office of the
President of Ghana.
5. After the 1st Defendant
assumed office as the President
of Ghana, he purported to
appoint the 3rd, 4th and 5th
Defendants as Chief of Staff,
Presidential Adviser for Public
Affairs and National Security
Adviser respectively.
6. The purported appointment by
1st Defendant of the 3rd, 4th
and 5th Defendants as Staff in
the Office of the President were
done without consultation with
the Council of State as required
by the Constitution and the law
of Ghana. (the emphasis is
mine).
7. The 3rd, 4th and 5th
Defendants have since their
illegal and unconstitutional
appointment by the 1st Defendant
intentionally and deliberately
held themselves out and acted as
Officers of Staff in the Office
of the President.
It is clear from the above that
the 1st Defendant as the
President of the Republic of
Ghana is alleged to have
violated the provisions of the
law governing the appointment of
some members of staff of his
office.
The question then is, what kind
of law is the Plaintiff
complaining about i.e. (the
alleged or the purported
appointments).
The answer to the above question
posed, is in my judgment the
Presidential Office Act 1993
(Act 463). This Act is the
creator of the various positions
and other office holders of the
President's Office. Such
staffers are not the creature of
the Constitution. Nowhere in the
Constitution is mention made of
the positions allegedly held by
the 3rd, 4th and 5th Defendants
as stated in paragraphs 5 and 6
of the Plaintiff's statement of
claim. The positions as
mentioned in paragraphs 5 and 6
supra cannot be the subject
matter of adjudication by
invoking the original
jurisdiction under Article
2(1)(b) of the Constitution on
which the Plaintiff is basing
his claim.
I am of the respectful view
therefore that the alleged
violation of the provision of a
statute such as Act 463 fails
outside a provision of the
Constitution. For an action to
lie in this Court under Article
2 (1) (b) a specific provision
of the Constitution itself must
be the subject for
consideration.
The enforcement and
interpretation of Act 463 of
1993 in this regard lies
elsewhere and not in this Court.
Act 463 is not an extension of
any provision of the
Constitution but a Statute which
deals with the Offices of the
President. Its provisions are
not to be elevated to the status
of a provision of the
Constitution. In my judgment
therefore this Court lacks
jurisdiction to entertain the
Plaintiff's action.
I will now deal with the 1st
Defendant in this case. The 1st
Defendant undisputedly is the
President of Ghana and the
Commander-In-Chief of the Ghana
Armed Forces. In the course of
writing my opinion I received
the opinion of my sister Sophia
Akuffo, J.S.C. She has
exhaustively and eruditely
reviewed the facts of this case
and dealt with the law as far as
the 1st Defendant is concerned.
To avoid repeating the facts and
the law I can say and I say here
that I endorse her views. I
agree that the action by the
Plaintiff against the 1st
Defendant in his personal
capacity is misconceived and
ought to be dismissed.
With regard to the 2nd Defendant
the Attorney-General, I
unfortunately have to part
company with her. I am of the
respectful view that at the time
of filing his writ the Plaintiff
knew well that there was no
Attorney-General at post. I am
of the view that if there was,
the Plaintiff would have been
content with suing the 2nd
Defendant alone as the Defendant
instead of going against the 1st
Defendant also who was
performing his executive
functions. On the arguments put
forward by my sister Sophia
Akuffo, J.S.C. as to joinder of
parties, the rules of Court
presume that the person sought
to be joined must be known to
exist as rightly argued by her.
In the instant case, however the
post of the Attorney General was
vacant and no one had been put
in place, at the time the said
writ was filed. He could not
therefore be joined as a party.
I think in this regard the haste
with which the Plaintiff issued
out his writ ought not be
disregarded. The writ ought to
be struck out as having been
prematurely issued. I hold in my
judgment that the
Attorney-General who under the
Constitution is answerable in
Court for the executive acts of
the 1st Defendant, who had not
been put in place at the time
the Plaintiff issued his writ is
entitled to move for the writ to
be set aside. In my view it is
impossible to join a
non-existing personality.
With regard to the rest of the
Defendants, I associate myself
with her views and ask myself,
following the case of Ghana Bar
Association Vrs. Attorney
General & Abban, S.C. December
5th 1995 unreported, what have
the 3rd, 4th and 5th Defendants
done or omitted to do to make
them answerable in Court under
Article 2 (1) (b) of the
Constitution? Article 2(1)(b)
reads
"(1). A person who alleges that—
(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 above quoted article
presupposes that the person sued
must have done or omitted to do
something in contravention of a
provision of the Constitution
which can provoke an action
under 2(1)(b).
The obvious answer to the above
question is that they have done
nothing on the facts of this
case. Admitting even that the
facts allegedly made by the
Plaintiff are true, they did not
appoint themselves as to make
them answerable for the act of
whoever appointed them. As
pointed out in the able opinion
of my sister Sophia Akuffo they
are the objects of the 1st
Defendant's action.
Finally, the present undisputed
position of the 3rd Defendant at
the date when the submissions
were made in this case was that
he had already been sworn in as
a Minister of State for
Presidential Affairs, the 4th
Defendant as a Minister of State
responsible for Media Relations
and the 5th Defendant as
Security Adviser. The above
appointments are now matters of
public notoriety and it also
shows that none of these
Defendants i.e. 3rd, 4th and 5th
holds any office under Act 463
of 1993 as claimed by the
Plaintiff as specified in his
statement of case.
In BARAKE VRS. BARAKE, High
Court, Accra of 25th June, 1990
unreported Brobbey, J. (as he
then was) had this to say:
“If we should provide any
meaningful service to the people
of this society wherein our
Courts operate, it is imperative
that we in the Courts muster
sufficient courage to take
cognisance of the happenings in
our society and ensure that our
judgments duly reflect facts of
common notoriety. Facts so
notorious that everyone in our
society can be deemed to be
aware of, can be said to be
matters in respect of which
judicial notice can be taken".
On this score I accept the
argument that the case is now
moot and no useful purpose will
be served by going into the
merits. On the present facts
Plaintiff has not been able to
prove that the alleged
appointments complained about
have been made.
MRS. BAMFORD-ADDO, J.S.C.
I agree.
ACQUAH, J.S.C.
My Lords, does this Court have
jurisdiction to entertain a
suit, the subject-matter of
which seeks to challenge an
executive action of the
President of the Republic? The
learned Attorney-General says
that there is no such
jurisdiction, while Mr. Martin
Amidu vehemently contends
otherwise. But first, the facts.
Following the victory of the New
Patriotic Party (NPP) in the
December 2000 parliamentary and
presidential elections, Mr. J.
A. Kufuor was sworn in as the
President of the Republic on 7th
January 2001. Not long
thereafter, a number of persons
were announced as assisting the
President in the performance of
his official duties. Three of
such persons are Mr. Jake
Obetsebi-Lamptey, Elizabeth
Ohene and Joshua Hamidu. Taking
the view that the appointments
of these persons were improper,
Mr. Martin Amidu, filed the
instant action at the Supreme
Court, against Mr. J. A. Kufuor
as 1st defendant, the
Attorney-General as 2nd
defendant, and Jake
Obetsebi-Lamptey, Elizabeth
Ohene, and Joshua Hamidu as 3rd,
4th and 5th defendants
respectively, claiming:
1. A declaration that:
(i) On a true and proper
interpretation of the
Constitution, particularly
articles 58 (1) and (2), 91(1)
and (2), 190 and 295 thereof,
and sections 2, 3, 4 of the
Presidential Office Act 1993
(Act 463) the 3rd, 4th and 5th
defendants cannot be appointed
by the President as staff of the
Presidential office without
consultation with the Council of
State.
(ii) The conduct of the 1st
Defendant President John Agyekum
Kufuor, in appointing 3rd, 4th
and 5th Defendants as staff of
the Presidential office without
consultation with the Council of
State is inconsistent with and
in contravention of the latter
and spirit of the Constitution.
(iii) The conduct of the 3rd,
4th and 5th defendants in
holding themselves out and
action as officers or staff in
the office of the President is
inconsistent with and in
contravention of the
Constitution.
(iv) Accordingly, all acts
undertaken by the 3rd, 4th and
5th defendants as officers or
staff in the office of the
President are inconsistent with
and in contravention of the
Constitution, null, void and
without effect whatsoever.
2. Perpetual injunction
restraining the 1st defendant
President from appointing the
3rd, 4th and 5th defendants as
staff to the Presidential office
without consulting the Council
of State.
3. Perpetual injunction,
restraining the 3rd, 4th and 5th
defendants from continuing to
hold themselves out and acting
as officers or staff in the
office of the President.
4. Such other orders or
directives as the Court may seem
fit to give effect to the above
declaration.
At the time this writ was filed,
Parliament had not yet approved
the nomination of any person to
the office of Attorney-General.
On 9th February 2001 after the
Honourable Nana Akufo Addo had
been sworn into the office as
the Attorney-General, he filed
this motion seeking an order to
set aside the writ and statement
of case on grounds that
i. This Court lacks
jurisdiction to entertain the
plaintiff's action against the
defendants herein.
ii. That no cause of action is
disclosed by plaintiff's writ
and the Statement of Case and
iii. That the questions raised
in the plaintiff's action for
determination are moot.
In an affidavit opposing the
application, Martin Amidu swore,
inter alia,:
"4. The plaintiff/respondent
says that the President of Ghana
in amenable to the jurisdiction
of this court in the exercise of
the executive authority
conferred on him by the
Constitution.
5. The plaintiff/respondent says
further that the purported
appointment of the 3rd, 4th and
5th defendants/applicants as
Chief of Staff, Presidential
Adviser on Public Affairs, and
National Security Adviser
respectively by the 1st
defendant/applicant without
consultation with the Council of
State cannot be said to be an
exercise of the executive
authority conferred on him by
the Constitution.
6. The plaintiff/respondent says
in addition that a declaration
or a declaration in the nature
of quo warranto can be made by
the court against the 1st
defendant/applicant in this
action in addition to an order
of injunction, or mandamus
pursuant to article 2 of the
Constitution.
7. The plaintiff respondent
contends that there are triable
issues between the parties in
this action.
8. The plaintiff/respondent
contends further that the mere
subsequent approval by
Parliament and appointment of
the 3rd and 4th
defendants/applicants as
Ministers of State on 6th
February 2001 does not render
this action moot.
9. The plaintiff/respondent says
that the 2nd defendant/applicant
was used only in a nominal
capacity.
10. The plaintiff/respondent
says further that the fact that
there was no substantive person
appointed as the
Attorney-General at the time the
writ and statement of case were
filed did not mean that no
action could be commenced
against the State in the name of
the Attorney-General.
11. The plaintiff/respondent
maintains that the application
to set aside the writ and
statement of case has no merit
whatsoever."
Moving his motion, the learned
Attorney-General, advanced a
number of arguments. He
contended, inter alia, that
since the complaint relates to
the performance by the President
of his executive function, this
court has no jurisdiction to go
into the matter. He referred to
the doctrine of the separation
of powers underlying the 1992
Constitution, and argued that
any such interference by this
Court would violate this
doctrine. Furthermore, it was
wrong for the President to be
sued since article 57(4) grants
him immunity from legal
proceedings while in office
subject to the operation of the
prerogative writs.
He further contended that since
the institution of his action,
the 3rd and 4th defendants have
been nominated for ministerial
positions, and that Parliament
has approved the said
nominations. Consequently the
plaintiff's actions is now moot
and no more live for
adjudication. He pointed out
that at the time the writ was
issued no one had been appointed
to the office of the
Attorney-General, and that since
the personality of the office is
important, the action cannot be
entertained. He cited in support
of his arguments cases like NPP
vrs. President J. J. Rawlings,
Writ No, 15/9 of 3rd May 1994;
and J. H. Mensah vrs.
Attorney-General (1996-97) SCGLR
320.
Mr. Martin Amidu in his response
to the arguments of the
Attorney-General, vehemently
disagreed with each of the above
arguments. Referring to article
2(1) of the 1992 Constitution he
submitted that this Court has
jurisdiction to entertain his
action. Conceding that his
action is not one seeking a
prerogative order, he
nevertheless argued that the
President was amenable to the
jurisdiction of this Court under
article 2. He said that the
Attorney-General was sued as a
nominal defendant and therefore
the absence of a substantive
Attorney-General at the time he
issued his writ, was immaterial.
He further submitted that
notwithstanding the approval of
the 3rd and 4th defendants by
Parliament, his compliant could
still be heard.
There is no doubt that the 1992
Constitution prescribes a
government consisting of three
branches: the legislative,
executive, and the judicial.
Each playing a distinct role.
Apart from these three branches
of government, the Constitution
also establishes a number of
offices, bodies and
institutions.
Now each of these branches of
government, offices, bodies and
institutions is, of course,
subject to the Constitution, and
is therefore required to operate
within the powers and limits
conferred on it by the
Constitution. And in order to
maintain the Supremacy of the
Constitution and to ensure that
every individual organ of state,
body or institution operates
within the provisions of the
Constitution, authority is given
in article 2 thereof, to any
person who alleges that the
conduct or omission of anybody
or institution is in violation
of a provision of the
Constitution to seek a
declaration to that effect in
the Supreme Court.
Thus so long as an individual,
body, institution or organ of
the government performs its
functions in accordance with the
relevant Constitutional
provisions and the law, the
Supreme Court has no business or
jurisdiction to interfere in the
performance of its functions.
But where it is alleged before
the Supreme Court that any organ
of Government or an institution
is acting in violation of a
provision of the Constitution,
the Supreme Court is duty bound
by articles 2(1) and 130(1) to
exercise jurisdiction, unless
the Constitution has provided a
specific remedy, like those of
articles 33 and 99 for dealing
with that particular violation.
It follows therefore that no
individual nor creature of the
Constitution is exempted from
the enforcement provision of
article 2 thereof. No one is
above the law. And no action of
any individual or institution
under the Constitution is
immuned from judicial scrutiny
if the constitutionally of such
an action is challenged. Thus
the doctrine of the political
question found mainly in the US
Constitutional jurisprudence by
which the courts refuse to
assume jurisdiction in certain
disputes because the
subject-matter of those disputes
are alleged to be “ textually
committed” to that institution,
is inapplicable in our
constitutional law because of
the power granted to any person
in article 2 of our Constitution
to challenge the
constitutionality of any action
or omission of an individual or
institution. For under the 1992
Constitution if even the body in
question is independent from any
other authority, the Courts can
still assume jurisdiction in
disputes alleging that that
institution is acting in
violation of the Constitution.
Because article 295(8) provides:
“No provision of this
Constitution or of any other law
to the effect that a person or
authority shall not be subject
to the direction or control of
any other person or authority in
the performance of any functions
under this Constitution or that
law, shall preclude a court from
exercising jurisdiction in
relation to any question whether
that person or authority has
performed those functions in
accordance with this
Constitution or the law"
(emphasis mine).
Thus in J. H. Mensah vrs.
Attorney-General (1996-97) SCGLR
320 at 368, it was explained:
“... if by the political
question doctrine, it is meant
that where the Constitution
allocates power or function to
an authority, and that authority
exercises that power or function
within the parameters of that
provision and the Constitution
as a whole, a court has no
jurisdiction to interfere with
the exercise of that function,
then I entirely agree that the
doctrine applies in our
Constitutional jurisprudence.
For this is what is implied in
the concept of the separation of
powers. But if by the doctrine,
it is meant that even where the
authority exercises that power
in violation of that
constitutional provision, a
court has no jurisdiction to
interfere because it is the
Constitution which allocated
that power to that authority,
then I emphatically disagree.
For two reasons: First, articles
2(1) and 130(1) of the 1992
Constitution empower this
Supreme Court to declare null
and void not only any enactment
but also any act of omission of
any person which is inconsistent
or in contravention of the
Constitution, Secondly, if even
the power or function is
entrusted exclusively to an
authority ... and in the
exercise that function the
authority is subject to no
direction or control of anybody,
article 295(8) of the 1992
Constitution still empowers the
Ghanaian Courts to enquire into
whether that authority is
exercising that function in
accordance with the
Constitution".
Consequently I hold that this
Court has jurisdiction under
article 2(1) and 130(1) in
respect of suits challenging the
constitutionality of an
executive action of the
President. As to whether the
President should personally be
made a defendant to such an
action is another matter
depending on the scope of the
immunity from legal action
granted to the President while
in office.
Generally speaking, the head of
state, in most jurisdictions, is
granted absolute immunity from
legal proceedings in any civil
or criminal actions while in
office. But the head of state's
immunity from legal proceedings
in respect of actions arising
from the performance of his
official duties while in office,
raises an interesting problem.
A head of state, is certainly
the first citizen of every
state, and as Justice William
Douglas said in Youngstown
Street & Tube Co. vrs. Sawyer
343 US 579 (1952) at 663.
"... represents the people and
is their spokesman in domestic
and foreign affairs. The office
is respected more than any other
in the land. It gives a position
of leadership that is unique.
The power to formulate polices
and mould opinion inherent in
the Presidency and conditions
out national life".
But to grant the President
immunity from such actions may
remove the needed accountability
which he owes to the people whom
he represents. While to allow
him to be subject to such suits
could make the execution of
presidential duties impossible.
The question therefore is
whether the President while in
office should not be granted any
immunity at all from legal
proceedings in respect of
actions arising from the
performance of his official
duties, or be granted qualified
immunity, or absolute immunity.
In the US, the Supreme Court's
first significant venture into
the area of executive immunity
came in the aftermath of the
Civil War. In Mississippi vrs.
Johnson 4 Wall 475 (1867) the
court was asked to enjoin the
president from executing laws
passed by Congress the grounds
that the laws were
unconstitutional the Court
unanimously held that the
president was immune from such
suits.
Kenya, grants absolute immunity
to the President in article
14(2) of the 1992 Constitution
(Revised 1998) in the following:
"No civil proceedings in which
relief is claimed in respect of
anything done or omitted to be
done shall be instituted or
continued against the president
while he hold office or against
any person while he is
exercising the functions of the
office of President."
But in Namibia and Eritrea, the
President has no immunity from
legal proceedings in respect of
acts done in his official
capacity. Thus article 31(1) of
the 1990 Constitution of Namibia
provides:
"No person holding the office of
the President or performing the
functions of President may be
sued in any civil proceedings
save where such proceedings
concern an act done in his or
her official capacity".
(emphasis mine)
Likewise article 43 of the 1996
Constitution of Eritrea too
provides:
"Any person holding the office
of the President may not be sued
in any civil proceedings or
charged for a crime, save where
such proceedings concern an act
done in his official capacity as
President..." (emphasis mine).
What is the position in Ghana?
Article 57(4) and (5) of the
1992 Constitution provide:
"57(4) Without prejudice to the
provisions of article 2 of this
Constitution, and subject to the
operation of the prerogative
writs, the President shall not
while in office, be liable to
proceedings in any court for the
performance of his functions, or
for any act done or omitted to
be done, or purported to be
done, or purported to have been
done in the performance of his
functions, under this
Constitution or any other law.
(4) The President shall not
while in office as President be
personally liable to any civil
or criminal proceedings in
court".
These two provisions are not new
in our Constitutional
jurisprudence. The 1979
Constitution reproduced them in
article 44(9) and (10) thereof
while the 1969 Constitution
reproduced them with some
modifications in its article
36(6) and (7).
Now article 57(5) bars the
institution of civil and
criminal actions against the
President while in office. Such
actions may be instituted within
three years of the President
leaving office: Article 57(6).
Clause (4) of article 57 deals
with legal actions against the
President in the performance of
his duties while in office. The
clause deals with three matters:
first, the provisions of article
2; second, the operations of the
prerogative writs, and finally
immunity from legal proceedings
subject to actions falling under
article 2 and those of the
prerogative writs.
As earlier explained, article 2
empowers any person who believes
that a provision of the
Constitution is being or has
been breached to seek the
relevant declaration from the
Supreme Court. Article 2(3)
directs any individual or
institution in respect of whom
the Supreme Court gives a
direction, to obey and carry out
the terms of the order or
direction. And if the order or
direction is to the President or
Vice-President, then article 2
(4) provides that failure on his
part to comply with such an
order constitutes a high crime
under the Constitution and a
ground for his removal from
office. It stands to reason
therefore that for any such
order or directive to be
meaningful and satisfy the
requirements of audi partem
principle, the President or Vice
President must have an
opportunity in the said suit to
be heard.
The President's immunity is also
subject to the operation of the
prerogative writs. These are
actions for habeas corpus and
orders of mandamus, certiorari,
prohibitions and so on, directed
against the President in the
performance of his official
functions.
Apart from actions under article
2 and those seeking prerogative
orders the President has
immunity from legal proceedings
in the performance of his
functions under the
Constitution.
But it is important to emphasise
that the grant of such immunity
to the President does not mean
that legal proceedings cannot be
instituted for relief arising
from any damage, harm or
otherwise caused to an
individual in the exercise of
the executive authority of the
President. In the event of such
situations, actions, may be
instituted against the
Attorney-General, who as
provided in article 88(5) of the
Constitution:
"shall be responsible for the
institution and conduct of all
civil cases on behalf of the
State; and all civil proceedings
against the State shall be
instituted against the
Attorney-General as defendant".
What the immunity is article
57(4) does is to prevent the
institution of such actions
against the President
personally. Article 57(4) does
not and cannot, under a regime
of the rule of law, forbid legal
actions challenging any conduct
or omission of the executive arm
of the State.
Now the scope of article 57(4)
fell for determination in NPP
vrs. the President of the
Republic of Ghana, Flt. Lt. J.
J. Rawlings and Anor. (supra)
wherein the President was
personally sued on his
nomination for District Chief
Executives of the District
Assemblies. On the issue whether
under article 57(4) the
President could personally be
made a defendant, Amua-Sekyi and
Aikins, JJ.S.C. held that
article 57(4) granted the
President qualified immunity and
that he can be sued personally
in respect of actions under
article 2 and those seeking
prerogative orders. Justice
Abban and Mrs. Bamford-Addo,
JJ.S.C. were positive that the
President could not be
personally sued and that in all
such actions, the
Attorney-General should be the
proper defendant. Ampiah, J.S.C.
on the other hand expressed his
view thus:
"Article 57(4) which exempts the
President from being brought
before the Court personally for
acts done in the exercise of his
functions under the
Constitution, excludes actions
brought under Article 2 and also
proceedings involving
prerogative writs. Any person
alleges that there has been
executive, legislative or
judicial act which is
inconsistent with or in
contravention of the provisions
of the Constitution may bring an
action against any person
(including the President) who is
alleged to have done the act or
authorised the doing of that
act. That action could be
against that person alone or
jointly with the
Attorney-General". (emphasis
mine)
As said earlier on, article
57(4) is a reproduction, word by
word, of article 44(9) of the
1979 Constitution of Ghana. Now
the rationale for granting to
the President, qualified and not
absolute immunity from
proceedings arising in
connection with the performance
of his official duties, was
clearly and unambiguously
articulated at paragraph 122
page of the 1978 Memorandum to
the 1979 Constitution in the
following words:
"We are, however, convinced that
even an executive President
should not be endowed with
unlimited powers nor be immune
from constitutional controls. On
the contrary, we believe that
the President should exercise
the executive power of the State
in accordance with the
Constitution and subject to
conditions clearly stipulated in
that Constitution". (emphasis
mine)
Hence the subjection of the
President's immunity to the
enforcement actions in article 2
of the Constitution. The
language of article 57(4) is so
clear that I cannot bring myself
to agree with my brethren who
hold that the President cannot
be sued personally in actions
under article 2 and those of the
prerogative writs.
But what is meant or implied by
suing the President personally?
Certainly no by using the
personal name of the President,
as is done in this case, but by
naming the Presidency as the
defendant. Like, "His
Excellency, The President of the
Republic of Ghana (Mr. J. A.
Kufuor)." For so long as he is
in office he is entitled to be
addressed properly anywhere he
is or mentioned.
The next objection of the
learned Attorney-General is that
the plaintiff's action is moot
with the approval by Parliament
of the 3rd and 4th defendants as
ministers.
As defined in Black's Law
Dictionary, 6th edition, an
action is generally considered
moot when it no longer presents
a justiceable controversy
because issues involved have
become academic or dead. This
may happen when the matter in
dispute has either been resolved
already and hence no need for
judicial intervention or events
happening thereafter have
rendered the issue no longer
live. In either situation,
unless the issue is a recurring
one and likely to be raised
again between the parties, the
courts would not entertain such
a dead issue. Let me illustrate
with two American cases. First,
the case of De Funis vrs.
Odegaard 416 US 312 (1974).
Rejected for admission to the
University of Washington Law
School, Marco De Funis brought a
personal suit against the
school, alleging that it had
engaged in reverse
discrimination, that it had
denied him a place, but accepted
statistically less qualified
minority students. In 1971 a
trial court found merit in his
claim and ordered that the
University admit him.
While De Funis was in his second
year of law school, the state's
high court reversed the trial
judge's ruling. He then appealed
to the US Supreme Court. By that
time, De Funis had registered
for his final quarter in school.
In a per curiam opinion the
Court refused to rule on the
merits of De Funis's claim,
asserting that it was moot: At
page 319 to 320 the court said:
"Because (De Funis) will
complete his law school studies
at the end of the term for which
he has now registered regardless
of any decision this Court might
reach on the merits of this
litigation, we conclude that the
court cannot, consistently with
the limitations of Art III of
the Constitution, consider the
substantive constitutional
issues tendered by the parties".
In Roe vrs. Wade 410 US 113
(1973) on the other hand the
Court legalized abortions
performed during the first two
trimesters of pregnancy. Norma
McCorvey, also known as Roe, was
pregnant when she filed a class
of action challenging the
constitutionality of the Texas
criminal abortion law, in 1970.
When the Court handed down the
decision in 1973, she had long
since given birth and put her
baby up for adoption. But the
justices did not declare the
case moot. Why? De Funis had
been admitted to law school, and
he would "never again be
required to run the gauntlet".
Roe could become pregnant again;
that is, pregnancy is a
situation capable of repetition
or recurrence.
In Ghana, this Court in J. H.
Mensah vrs. Attorney-General
(supra), relying on US vrs
Concentrated Phosphate Exp Assn
393 US 201, and US vrs. W. T.
Grant & Co. 345 US 629, held
that if the question though
moot, was certainly not likely
to re-occur, the courts would
not waste their time to
determine dead questions and
issues. And that for the court
to decline deciding a moot
question it must be established
that subsequent events had made
it absolutely clear that the
alleged wrong behaviour could
not reasonably be expected to
occur. I still hold that this
holding represents the correct
statement of the law.
In the instant case, does the
approval of Parliament, render
the plaintiff's action moot or
pointless for adjudication?
From his reliefs and statement
of case the gravamen of
plaintiff's case is that the
alleged appointment of the 3rd,
4th and 5th defendants to the
offices of Chief of Staff
Presidential Advisor for Public
Affairs and National Security
Adviser respectively without
consulting the Council of State
was contrary to the Constitution
and the Presidential Office Act
1993 (Act 463). Thus in
paragraphs 5 and 6 of his
statement of cases the plaintiff
pleaded:
"5. After the 1st defendant
assumed office as the President
of Ghana he purported to appoint
the 3rd, 4th and 5th defendants
as Chief of Staff, Presidential
Advisor for Public Affairs, and
National Security Adviser
respectively".
6. The purported appointment by
1st defendant of the 3rd, 4th
and 5th defendants as staff in
the office of the President were
done without consultation with
the Council of State as required
by the Constitution and Laws of
Ghana".
Now neither does Act 463 nor the
Constitution create any office
called Chief of Staff,
Presidential Adviser for Public
Affairs and National Security
Adviser, to require the Council
of State's consultation in the
appointment of person to them.
Sections 3 and 4 of Act 463
provide.
"3(1) The Presidential Officer
shall be made up of—
(a) persons appointed as
presidential staff under this
Act one of whom shall be
appointed as head of the office;
and
(b) such other public officers
as may be seconded or
transferred to the office.
(2) subject to section 2 members
of the office shall be assigned
such duties as the President may
determine.
4(1) The President shall, acting
in consultation with the Council
of State appoint such persons as
he considers necessary to hold
office as presidential staff in
the office.
(2) The number of person that
may be appointed under
subsection (1) of this section
and the grade of the officers
shall be determined by the
President."
It is clear from the above
provisions that it is the
President's prerogative to
determine the number and
designation of persons he
desires to appoint as his
staffers, and that those
appointed under section 4(1) are
required to be so appointed in
consultation with the Council of
State. Thus the alleged offices
of the 3rd, 4th and 5th
defendants must be shown to be
offices coming under section
4(1) of Act 463 to support any
allegation that such
appointments require the Council
of State's consultation.
But with the Parliamentary
approval of the offices of the
3rd and 4th defendants, is
Council of State's consultation
still needed to perfect these
appointments? If the answer to
the question is in the negative,
as it certainly is, what then is
left in the plaintiff’s action
worthy of adjudication? Which
provision in the Constitution
and Act 463 requires the
President to consult the Council
of State in nominating people
for ministerial positions.
Indeed if the plaintiff had not
hurriedly rushed to issue this
writ, he would have realized
that the offices he was
complaining of were not
contemplated by the President to
be offices under Act 463, and
consequently did not require
consultation with the Council of
State.
The plaintiff thought the
offices were those under section
4(1) of Act 463, but events
thereafter have shown that they
are not.
In respect of the 5th defendant
there is similarly nothing to
show that it is an office under
Act 463.
I think it is important to
appreciate that it is notevery
appointment by the President
that requires the consent of a
Council of State, or Parliament.
For example, appointments under
section 7 of Act 463 do not need
the consent nor consultation of
any body.
Whoever therefore alleges that a
particular Presidential
appointment requires the consent
of another body, must clearly
demonstrate the relevant law and
regulation showing that that
particular appointment indeed
requires that approval.
In the instant case I am fully
satisfied that the subsequent
approval by Parliament had
unequivocally shown that the
offices complained of were not
those contemplated under Act
463, and that the said
Parliamentary approval had
glaringly exposed the fallacy
underlying the plaintiff's
action and rendered same
pointless for adjudication. The
plaintiff's action is nothing
but an exercise in futility. I
would accordingly uphold the
preliminary objection and
dismiss the action.
ATUGUBA, J.S.C.
As the facts of this matter have
been stated in the rulings that
have preceded mine I would not
repeat them except where
necessary.
As to the first contention that
"this court lacks jurisdiction
to entertain the Plaintiff's
action against the Defendants
herein", the same is partially
well founded. The first
defendant is the President of
Ghana and it was the contention
of the Honourable
Attorney-General, Nana
Akufo-Addo that he enjoys
immunity from suit or court
proceedings generally under
article 57(4) which provides:
"(4) without prejudice to the
provisions of article 2 of the
Constitution, and subject to the
operation of the prerogative
writs, the President shall not,
while in office, be liable to
proceedings in any court for the
performance of his functions, or
for any act done or omitted to
be done, or purported to be done
in the performance of his
functions, under this
Constitution or any other law".
(emphasis supplied).
The proper construction of this
provision is quite a vexed
question. I must confess that if
it were open to me so to hold, I
would have eagerly held that the
President could be sued in the
performance or purported
performance of his functions
under the constitution, since
that would advance
constitutionalism, the rule of
law and the negation of the
bemoaned days of Re Akoto & Ors.
But as was aptly put by Smith,
J. in BALOGUN V. EDUSEI (1958) 3
WALR 547 at 553: "The Courts of
Justice exist to fulfil, not to
destroy the law…”.
It does not appear that there is
any real controversy over the
fact that article 57(4) does
confer some immunity from court
process on the President, but it
is the extent of it, that is
said to fall short of actions
under article 2 and the
prerogative writs. Thus in
BILSON V. APALOO (1981) GLR 24
at 54 S.C. Anin J.S.C.
delivering the judgment of
himself and that of Sowahand
Charles Crabbe JJ.S.C. said:
"It would be noticed that
article 44(9) relied on by the
plaintiff, itself does not
create a right of action; it
merely confers a qualified
immunity from suit on the
President while in office but
significantly saves actions
brought under article 2 and by
the prerogative writs... "
It is noticeable that article
44(9) of the 1979 Constitution
which was thus construed is in
the ipsissima verba of article
57(4) of the 1992 Constitution.
Counsel for the plaintiff
naturally relied on this
decision for his contention that
his suit against the President,
is proper.
This contention has the support
of the wellsettled principle of
construction as stated by James
L.J. in Ex Parte Campbell; Re
Cathcart (1870) I.R. 5 Ch. App
703 at 706 that:
“Where once certain words in an
Act of Parliament have received
a judicial construction in one
of the Superior Courts and the
Legislature has repeated them
without any alteration in a
subsequent statute… the
Legislature must be taken to
have used them according to the
meaning which a court of
competent jurisdiction has given
to them.” (emphasis supplied).
See also ATTORNEY-GENERAL OF NEW
ZEALAND V. ORTIZ (1983) 3 All ER
C.A. It is a trite law, as laid
down in TUFFOUR V.
ATTORNEY-GENERAL (1980) GLR 637
C.A. SAM V. ATTORNEY-GENERAL,
S.C. Writ No. 5/98 dated 10th
May, 2000 and others, that a
written national Constitution
ought not to be construed
according to the ordinary rules
of construction of statutes. But
that does not mean that they can
be excluded altogether from the
construction of such a
Constitution. Sowah, C.J. (as he
later became), the chief
protagonist of this principle in
the Tuffour case, later stated
in THE REPUBLIC V. HIGH COURT,
ACCRA Ex Parte ADJEI (1984-86) 2
GLR 511, S.C. that whether these
ordinary rules of construction
do or do not apply to the
construction of the Constitution
depends on the particular
circumstances of each case.
After all these rules of
construction are part of the
common law which is part of the
existing law under article 11(5)
of the 1992 Constitution and are
therein allowed to operate
unless they are inconsistent
with the Constitution.
Accordingly, they have been
applied, sometimes extensively
in constitutional cases, see
KUENYEHIA V. ARCHER, 25th May,
1993, NEW PATRIOTIC PARTY V.
ATTORNEY-GENERAL (the 31st
December case), 8th March, 1994,
etc.
However the principle about the
prior construction of similar
statutory words, supra, is a
rebuttable presumption. In
DIRECTOR OF PUBLIC PROSECUTIONS
V. LUFT (1976) 3 WLR 32 H.L. at
41 the House of Lords held that
a long standing wrong
construction of the words of a
statute in pari materia is no
bar to its correction.
If the President can be sued in
respect of the performance of
his functions, actual or
purported, under the 1992
Constitution, such action can be
brought under articles 2 and 130
of the Constitution. But if that
is so then it would mean that
the immunity from suit granted
to the President under article
57(4) in respect of the
performance of his functions,
actual or purported, has been
negated completely. That would
mean that those provisions
purporting to confer the said
immunity on him have been
rendered meaningless or useless.
It is however a settled rule of
construction that all statutory
provisions ought, if possible,
to be given effect, whether
those provisions are in the same
statute or in different
statutes, which conflict, and
may therefore imply a repeal of
the earlier one by the later
statute. I reiterated this
principle in NATIONAL MEDIA
COMMISSION V. ATTORNEY-GENERAL,
SUIT No. 2/96 dated 26th
January, 2000, S.C. In PATTINSON
V. FINNLUGLEY DRAINAGE BD (1970)
2 WLR 622 at 624 Bean J, quoted
the following passage from
Maxwell on the interpretation of
statutes, 12th edition (1969)
with approval. "A later statute
may repeal an earlier one either
expressly or by implication. But
repeal by implication is not
favoured by the courts.
‘Forasmuch', said Coke, ‘as Acts
of Parliament are established
with such gravity, wisdom and
universal consent of the whole
nation, for the advancement of
the commonwealth, they ought not
by any constrained construction
out of … general and ambiguous
words … to be
abrogated"(emphasis supplied)
This is particularly, true of a
written national constitution.
As my learned and respected
brother Acquah J.S.C. aptly put
it in NATIONAL MEDIA COMMISSION
V. ATTORNEY-GENERAL, supra, "But
to begin with, it is important
to remind ourselves that we are
dealing with our National
Constitution not an ordinary Act
of Parliament. It is a document
that expresses our sovereign
will and embodies our soul. It
creates authorities and vests
certain powers in them. It gives
certain rights to persons as
well as bodies of persons. And
imposes obligations as much as
it confers privileges and
powers. All these duties,
obligations, powers, privileges
and rights must be exercised and
enforced not only in accordance
with the letter but also with
the spirit of the Constitution.
The parts must fit together
logically to form a rational,
internally consistent framework.
And because the framework has a
purpose, the parts are also to
work together dynamically, each
contributing something towards
accomplishing the internal goal.
Each provision must therefore be
capable of operating without
coming into conflict with any
other”.
Applying this salutary
principle, I would hold that the
way to avoid a conflict between
the provisions conferring
immunity from suit on the
President and article 2 of the
Constitution is to hold that the
President’s immunity shields him
from suit in respect of the
performance of his functions,
actual or purported under the
Constitution but his acts in
those respects can still be
challenged by suing the
Attorney-General under article
88, particularly under clause 5
thereof, which provides:
“(5) The Attorney-General shall
be responsible for the
institution and conduct of all
civil cases on behalf of the
State and all civil proceedings
against the State shall be
instituted against the
Attorney-General as the
defendant”.
This is because the acts of the
President in the discharge of
his constitutional functions are
acts of the government or the
state. This, mutatis mutundis,
is substantially what this court
decided in THE REPUBLIC V. HIGH
COURT, ACCRA, Ex Parte,
ATTORNEY-GENERAL; [Delta Food
case] (1998-1999) SCGLR 583 S.C.
After all, such an action would
still be governed by article 2.
This is further buttressed by
the Report of the Committee of
Experts (Constitution) on
Proposals for a Draft
Constitution of Ghana. At page 3
the Committee stated in
paragraph 3 thereof as follows:
“3. The Committee operated on
the cardinal principle that we
should not re-invent the wheel.
Accordingly whenever we found
previous constitutional
arrangements appropriate, we
built on them. In this
connection, we relied
substantially on some of the
provisions of the 1969 and 1979
Constitutions of Ghana to the
extent that they are relevant to
the general constitutional
structure proposed in this
report". (emphasis supplied).
Then at page 22 paragraph 34,
the committee clearly and
unambiguously stated as follows:
“34. The Presidential immunity
from legal proceedings provided
in Article 44 clauses 9 - 11 of
the 1979 Constitution of Ghana
is meant to preserve the dignity
of the office of the President,
but should not preclude
proceedings against the state in
appropriate cases. The proper
procedure in such cases is to
institute proceedings against
the Attorney-General, as the
official representative of the
Republic" (emphasis supplied)
It is quite clear therefore that
the Committee, though sub
silento, endorsed the
construction of the President's
immunity from suit as expounded
by Archer, Sowah and Apaloo
JJ.A. (as they then were) in
SALLAH V. ATTORNEY-GENERAL
(1970) 2 G&G 493, at 493, 502
AND 507 respectively. They had
to construe articles 36(7) (8)
and 47 of the 1969 constitution,
the provisions of which, save as
the substitution of article 2
for article 47, are
substantially the same as those
under the 1979 and 1992
Constitution. In my view the
substitution of article 2 for
article 47 was to make it clear
that where actions can’t lie
against the President they may
lie against the State under that
article.
Indeed since the same acts of
the President can be challenged
under article 2 against the
state rather than against the
President, it is difficult to
think that article 2 suffers any
real prejudice by reason of the
Presidential immunity from suit.
This court has often upheld the
clear intention of the framers
of the Constitution wherever
revealed by the Committee of
experts’ reports on the matter.
Indeed resorting to the
appropriate passages of the said
Report, this court departed from
the requirement of locus standi
for Ghanaian citizens for the
purposes of constitutional
actions under article 2, even
though previous decisions,
inclusive of this court’s own
decisions and some earlier dicta
required the contrary, see
BILSON V. ATTORNEY-GENERAL, S.C.
12th December 1994. However,
compare NEW PATRIOTIC PARTY V.
ATTORNEY-GENERAL (CIBA CASE)
(1996-1997) S.C. GLR 796, and
SAM V. ATTORNEY-GENERAL, supra.
Indeed it is refreshing to note
that BILSON V. APALOO (1981) GLR
24 S.C. relied on by the
Plaintiff, was before that, one
of those decisions which
required locus standi generally,
for actions under the 1992
Constitution.
It is true that in LETANG V.
COOPER (1964) 3 WLR 573 C.A. at
578 Lord Denning M.R. cautioned
against too much adherence to
committees' memoranda because
the Legislature might as well
use language that departs from
their recommendations; but as
shown supra, the Committee of
experts recommendations on the
presidential immunities,
referred to the ipsissima verba
provisions of the 1979
Constitution.
I would therefore hold that the
Plaintiff’s action against the
President in this case flies in
the face of his constitutional
immunity from suit and cannot be
entertained. I however refrain
from saying that in other
proceedings against the State,
an order cannot be made against
the President. After all the
Constitution omnia potest. It is
for these reasons that I support
the majority decision of this
court in NEW PATRIOTIC PARTY V.
THE PRESIDENT OF GHANA & ANOTHER
dated 3rd May, 1994, despite the
views of Adade J.S.C. and others
in NEW PATRIOTIC V.
ATTORNEY-GENERAL (31st December
case) supra, which tend to
support the view that the
President can be sued under
article 2 of the 1992
Constitution.
As to whether the action
properly lies against the 3rd to
4th defendants, I doubt whether
the decision in Ghana Bar
Association v. Attorney-General
& Abban S.C. December 5th 1995,
is not open to divergent views.
A person wrongly appointed to an
office and acting in it can be
sued, see GHANN V. TAMAKLOE
(1957) 2 WALR 353, ADEGBENRO V.
AKINTOLA (1963) 3 WLR 63 P.C.
and NINGKAN V. GOV’T OF MALAYSIA
(1970) A.C. 379 P.C. I would
therefore not say that they have
been wrongly sued.
As to whether the action is now
moot because the appointments
impugned have, as at now been
regularly made, it was held by
this court in J. H. MENSAH V.
ATTORNEY-GENERAL (1996-97) SCGLR
320 that if the matter could
still arise in future then the
action is not moot. Similarly in
MERRICKS V. NOTT-BOWER (1964) 2
WLR 702 C.A. at 707 Denning M.R.
said:
"if a real question is involved,
which is not merely theoretical,
and upon which the court’s
decision gives practical
guidance then the court in its
discretion can grant a
declaration". (emphasis
supplied)
In EASTHAM V. NEW CASTLE UNITED
FOOTBALL CLUB (1963) 3 WLR 574
even though the transfers of the
policemen who were plaintiffs
had long taken place and would
not be reversed, it was held
that the action would still
serve a useful purpose to the
various police authorities as to
the scope of their powers.
Similarly there is no indication
that the President has
exhaustively made all his
necessary appointments. In fact
some are still going on. A
declaration on the issue could
still be useful to the President
and other relevant officials,
like the Council of State. In
TUFFOUR V. ATTORNEY-GENERAL,
supra, it was held that since a
citizen has the duty to defend
the Constitution, he can bring
an action, (if there is a
controversy), for an
interpretation simpliciter, even
though no further relief be
sought by him. Indeed, since, as
was held in the said TUFFOUR
case a Constitution is a living
organic document which mirrors
the experiences of its people in
the past and their aspirations
for the future, then interest in
a constitutional matter would be
a recurrent affair and therefore
not moot; especially as similar
appointments would fall to be
made virtually every 4 years. It
has also been said in OKORIE @
OZUZU V. THE REPUBLIC (1974) 2
GLR 272 C.A. that the question
whether a breach of the
constitution causes some injury
such as miscarriage of justice
is irrelevant since the mere
breach of the constitution
carries with it the stigma of
illegality, impropriety, etc. It
seems to me therefore that the
upholding of the supremacy of
the Constitution is itself of
great constitutional utility.
This action is therefore not
moot. The declaratory
jurisdiction of this Court is
not discretionary or the same as
a declaratory action at common
law as BILSON V. APALOO (1981)
GLR 24 S.C. would seem to
conceive it to be.
However, the ground on which I
concur in upholding the
preliminary objection,
generally, is that the
plaintiff's action arises under
certain clauses of the
Constitution as well as under
ordinary legislation; namely,
the Presidential Office Act,
1993 (Act 463). Section 4(1)
thereof provides:
"4(1) The President shall,
acting in consultation with the
Council of State appoint such
persons as he considers
necessary to hold office as
presidential staff in the
office". (emphasis supplied.).
On the other hand article 70(1)
provides:
“70(1) The President shall,
acting in consultation with the
Council of state, appoint-
X
X X
(e) the holders of such other
offices as may be prescribed by
this Constitution or by any
other law not inconsistent with
this Constitution”. Article 91
similarly provides: "91(1) The
Council of State shall consider
and advise the President or any
other authority in respect of
any appointment which is
required by this Constitution or
any other law to be made in
accordance with the advice of,
or in consultation with, the
Council of State". (emphasis
supplied).
By virtue of these provisions, I
think that a default in an
appointment under Section 4(1)
of the said Presidential Office
Act, 1993 (Act 463) can be
challenged, as here, under these
provisions in this Court. In NEW
PATRIOTIC PARTY V. NATIONAL
DEMOCRATIC CONGRESS, 21st
November 2000, S.C. I concurred
in dismissing the plaintiff's
action in that case because it
was one that could be instituted
either under article 94(3)(b) of
the Constitution or under
section 9 of the Representation
of the People Law, 1992 PNDCL
284. In such a situation since
the action could have been
instituted in the High Court
which, apart from the
Fundamental Human Rights, can
enforce ordinary legislation or
the common law, the Plaintiff's
action, straightaway in this
Court, without first resorting
to the High Court violated
paragraph 6 of the Practice
Direction of this Court as
published in 1981 GLR 1. The
Plaintiff's action in this case
suffers, in consimili casu with
the NPP v. NDC case, supra, the
defect of violating the said
Practice Direction,
No compelling reasons, or at
all, have been given for this
violation. Consequently I have
no grounds for waiving
non-compliance with the said
Practice Direction under rule 79
of the Rules of this Court, C.I.
16.
I do not consider it necessary
to deal with the other
submissions.
I would therefore also strike
out the Plaintiff's action for
want of jurisdiction.
SOPHIA A. B. AKUFFO, J.S.C.
By a writ issued by the
Plaintiff/Respondent
(hereinafter referred to as 'the
plaintiff') against the
Defendants/Applicants
(hereinafter referred to as 'the
defendants') the plaintiff,
pursuant to the powers of this
court under article 2 of the
Constitution seeks the following
declarations:—
1. That on a true and proper
interpretation of articles 58
(1) and (2), 190 and 295 of the
Constitution, and sections 2, 3
and 4 of the Presidential Office
Act, 1993 (Act 463) the 3rd, 4th
and 5th defendants cannot be
appointed by the President as
staff of the Office of the
President without consultation
with the Council of State.
2. That the conduct of the 1st
defendant in appointing the
above-mentioned defendants as
staff of the Presidential Office
without prior consultation with
the Council of State is
inconsistent with and in
contravention of the letter and
spirit of the Constitution.
3. That the conduct of the 3rd,
4th and 5th defendants in
holding themselves out and
acting as staff of the Office of
the President is inconsistent
with and in contravention of the
Constitution.
4. That all acts undertaken by
the said three defendants are
void and of no effect.
In this application, the
Attorney General, the 2nd
defendant in the said writ,
prays this court, to set aside
the plaintiff's writ or strike
out the action, on the ground
that this court lacks
jurisdiction to entertain the
Plaintiff's action, because:—
1. The writ and statement of
claim disclose no cause of
action based on Article 2(1) of
the Constitution.
2. The questions raised for
determination by the plaintiff's
action are moot.
The plaintiff, in his affidavit
in opposition herein, urges the
court to decline the application
for the reasons that:—
1. The 1st defendant, as the
President of the Republic of
Ghana is amenable to the
jurisdiction of the court in the
exercise of the executive
authority conferred on him by
the Constitution.
2. The appointment of the 3
officials, by the 1st defendant,
without prior consultation with
the Council of State cannot be
said to be a constitutionally
sanctioned exercise of executive
authority.
3. Under Article 2 of the
Constitution, the court has the
power, to entertain his action
and to make declarations in the
nature of quo warranto, as well
as injunction or mandamus.
4. There are triable issues
raised by the plaintiff's action
and moreover, the matter had not
been rendered moot merely by the
subsequent appointment of the
3rd and 4th defendants as
Ministers of State.
5. Since the 2nd defendant was
sued in a nominal capacity, the
fact that, as at the date of the
filing of the writ, there was no
substantive Attorney General
does not mean that no action
could be commenced against the
state in the name of the
Attorney General.
During the hearing of the
application, the Attorney
General, relying on the
authority of The New Patriotic
Party v. The President, Flt. Lt.
(Rtd.) J. J. Rawlings and the
Attorney General, unreported
S.C. Judgment dated 3rd May
1994, J. H. Mensah v. The
Attorney General, (1996-97)
SCGLR 320, submitted that: —
1. The writ against the
President, in his personal
capacity, is improper.
2. By virtue of article 57(4),
executive actions by the
President cannot be questioned
in this manner.
3. The writ is defective because
at the time it was issued there
was no substantive Attorney
General in office.
4. The matters giving rise to
the action have been overtaken
by events and the action is,
therefore, moot.
The plaintiff, on the other
hand, contended that the
precedents cited by the Attorney
General rather supported his
case since Article 57(4) is
subjected to Article 2 and
prerogative writs. Furthermore,
according to the plaintiff,
under Article 2, this court has
the power to make whatever
orders it sees fit, therefore,
in matters of this nature, the
proper approach must be to take
each writ on a case-by-case
basis. He further contended that
the decision in J. H. Mensah v.
the Attorney General (supra) did
not operate to suspend the
operation of the Constitution,
nor did it oust the possibility
of making the Attorney General a
nominal defendant pursuant to
article 88(5). On the issue of
mootness, the plaintiff argued
that the cause of his action is
still alive and must be
determined. He, therefore,
submitted that the writ was
properly issued against the
defendants and that it does
disclose triable issues.
Before tackling the issues that
properly arise from this
application, I wish to touch
upon the submission that, since
the writ predates the
appointment of a substantive
Attorney General, it is
defective. In J. H. Mensah V.
the Attorney General, the
question arose as to whether or
not an action may be instituted
against the Attorney General
when Parliament has not
previously given its approval to
any person to act or hold
himself out as such. This court
held that, because it is
stipulated under article 88(1)
that the Attorney General shall
be a Minister of State and the
principal legal advisor to the
government, the individual
personality of the office holder
is paramount. I see no reason to
depart from this conclusion.
Does it then follow that, for
this reason alone, the writ
herein is so incurably bad that
it must be struck out? I do not
think so. Part IV of the Supreme
Court Rules, 1996 (Cl 16) spells
out the procedure applicable to
actions, brought under article
2, to invoke the original
jurisdiction of the Supreme
Court. In Rules 45(3) and (4),
it is provided as follows:—
“(3) A copy of the writ shall be
served on each of the parties
mentioned in the writ as
directly affected who shall be
considered as the defendants,
and on the Attorney General, if
not named specifically as a
defendant.
(4) The Court may, at any time
on its own motion or on the
application of a party order
that any other person shall be
made a party to the action in
addition to or in substitution
for any other party."
In my opinion, the clear intent
of these rules of procedure is
to assure that, in all actions
to invoke the original
jurisdiction of the court,
effect is duly given to article
88(5), firstly, by requiring the
service of a copy of the writ on
the Attorney General, and
secondly, by empowering the
court to order the addition or
substitution of any other
person, which 'any other person'
presumably includes the Attorney
General. The rationale for these
rules is quite obvious; actions
to invoke the original
jurisdiction of this court are
presumed to be of crucial
importance to the enforcement of
the supreme law of the land, the
Constitution, and it is,
therefore, in the interest of
the public that such actions not
be defeated merely by the
non-joinder or misjoinder of any
party, including the Attorney
General. Indeed, even in
ordinary civil actions before
the High Court, Rule 6 of the
High Court (Civil Procedure)
(Amendment) (No. 2) Rules, 1977
(LI 1129) affords litigants and
interested persons a similar
safeguard and empowers the High
Court, either on its own motion,
or on application, to order the
striking out of a party or the
joinder of another person in the
suit, so as to ensure that the
matters in issue are thoroughly
determined and finally disposed
of.
Consequently, although at the
time the writ herein was issued
against the Attorney General no
person had been approved by
Parliament to occupy the
position, the writ is not
thereby rendered so incurably
defective as to dictate that it
is struck out. All that needs to
be done is to order that the
Attorney General, now that
Parliament has duly granted its
approval, be deemed to have been
properly joined as a defendant.
Turning now to the matter at
hand, clearly this application
raises two fundamental issues:—
a. Whether or not the writ
discloses any cause of action
properly arising under Article
2(1)? And if so
b. Whether or not the
plaintiff's action is in any
case moot?
In dealing with issue (a) I will
first consider the question of
whether the 1st, 3rd, 4th and
5th defendants have been
properly brought before this
court. I will then consider
whether, in the circumstances of
this case, it was proper for the
plaintiff to have brought his
action under Article 2(1).
It is presumed that every word
contained in the Constitution
was placed therein after the
utmost deliberation.
Consequently in the construction
and enforcement of the
Constitution, it is necessary to
read and apply each provision in
such a manner as would not do
injury to any provision merely
for the sake of upholding
another provision therein.
Therefore, within the context of
this matter, we need to consider
the cumulative effect of
Articles 2(1), 57(1) and (4) and
88.
Article 57(1) states that:—
"There shall be a President of
the Republic of Ghana who shall
be the Head of State and Head of
Government and
Commander-in-Chief of the Armed
Forces of Ghana."
According to Article 57(4):—
"Without prejudice to the
provisions of Article 2 of this
Constitution, and subject to the
operation of the prerogative
writs, the President shall not,
while in office, be liable to
proceedings in any court for the
performance of his functions, or
for any act done or omitted to
be done, or purported to be
done, or purported to have been
done or purporting to be done in
the performance of his
functions, under this
Constitution or any other law."
(My emphasis)
And Article 88(5) stipulates
that:—
"The Attorney General shall be
responsible for the institution
and conduct of all civil cases
on behalf of the State; and all
civil proceedings against the
State shall be instituted
against the Attorney General as
defendant." (My emphasis)
Under article 2 clause (1)(b), a
person who alleges that any act
or omission of any person is
inconsistent with or in
contravention of a provision of
the Constitution may bring an
action in this court for a
declaration to that effect.
Therefore, since the plaintiff
issued his writ pursuant to
article 2, does that mean that
it was proper for him to have
made the President a defendant
therein. The answer is 'no'. In
the case of the New Patriotic
Party v. the President of Ghana,
Flt. Lt. (Rtd.) J. J. Rawlings
(unreported S.C. Judgment dated
3rd May 1994,), it was held, by
a majority of this court, that,
although the President has
procedural immunity from civil
proceedings, his official
actions may be challenged
through prerogative writs or
action brought pursuant to
article 2. However, the Attorney
General would be the only proper
defendant in any such challenge.
That was a case wherein the New
Patriotic Party sued the then
President of Ghana, together
with the Attorney General, for a
declaration that the appointment
of District Secretaries by the
said President was inconsistent
with and in contravention of the
Constitution. The then Attorney
General raised the issue of
whether or not, under the
Constitution, the President is
personally amenable to suit and,
whereas Amua-Sekyi and Aikins,
JJ.S.C., were of the opinion
that he is, Abban, J.S.C., (now
C.J), Bamford-Addo and Ampiah,
JJ.S.C., were of the contrary
view. His Lordship Abban
expressed himself thus:—
"Article 57(5) and (6) of the
1992 Constitution gives complete
immunity in civil and criminal
proceedings to the President
while in office. But it seems to
me that the immunity which
article 57(4) of the
Constitution grants to the
President is not absolute. That
is, article 57(4) does not
confer substantive immunity in
so far as prerogative writs and
actions brought under article 2
of the Constitution are
concerned. "Thus, official acts
of the President can be
challenged either by means of
prerogative writs or by
instituting action in the
Supreme Court under article 2 of
the Constitution. However, I am
of the view that in such cases,
it would not be right to make
the President a defendant. By
virtue of article 57(1) of the
1992 Constitution, the President
is not only the Head of State
but also the Head of Government;
and article 58(1) vests the
executive authority of Ghana in
the President. So whenever the
President carries out executive
duties vested in him by the
Constitution or by any other
law, he does so as a government
of Ghana. "... In the particular
circumstances of the present
case, the suit herein should be
brought against the Attorney
General only as defendant for
and on behalf of the Government
of Ghana, in accordance with
article 88(5) of the
Constitution. That is, the
Attorney General is the proper
defendant and not the
President."
Elsewhere in his learned
opinion, His Lordship continued
as follows:—
"There is therefore no doubt
that the official acts of the
President can be questioned in
the Supreme Court under Article
2 of the Constitution and also
through the use of prerogative
writs. But as I have already
stated, in such case, as in the
present one, only the Attorney
General should appear in the
suit as defendant for and on
behalf of the government or the
state for that matter ......
In the writ issued by the
plaintiff herein, the conduct at
the root of the complaint is the
action of the President in
making staff appointments to the
Office of the President. If this
is not an act done or purported
to be done by the President
officially and in his capacity
as President, then I cannot
imagine what else could be.
Therefore, to borrow the words
of my learned sister Mrs.
Bamford-Addo, J.S.C., in the
above-mentioned NPP case, if the
President, according to article
57, is the Head of State and has
acted in his official capacity
in appointing or purporting to
appoint the 3rd, 4th and 5th
defendants, which action is
alleged to be unconstitutional,
then, it is not the Head of
State himself who should be
sued, but the Attorney General,
as dictated by article 88(5).
That this was the intent of the
framers of the Constitution is
evidenced by paragraph 34 of the
Report of the Committee of
Experts (Constitution) on
Proposals for a Draft
Constitution of Ghana, wherein
it is explained that:—
"The Presidential immunity from
legal proceedings provided in
Article 44 clauses 9-11 of the
1979 Constitution of Ghana is
meant to preserve the dignity of
the office of the President, but
should not preclude proceedings
against the state in appropriate
cases. The proper procedure in
such cases is to institute
proceedings against the Attorney
General, as the official
representative of the Republic."
Consequently, I have no
hesitation in concluding that
the President is not a proper
party to the plaintiff's suit
and he must be struck out as a
defendant. In arriving at this
conclusion, I am not unmindful
of the concern expressed by
Amua-Sekyi, J.S.C., in the
aforementioned NPP case, to the
effect that since, under Article
2(4), failure by the President
to obey or carry out the terms
of an order or direction
addressed to him by the Supreme
Court, in the exercise of its
powers under Article 2(2) to
issue consequential orders or
directions, would constitute a
ground for removal from office,
to hold that the President
cannot be made a party to an
action under Article 2 would
offend against the audi alteram
partem rule. However, it is my
view that the regime created by
Article 2 constitutes an
exception to this rule, since
the mere existence of such a
ground for removal would not
automatically remove the
President, for the Constitution
provides specific procedures for
the removal of a President.
What about the propriety of the
inclusion of the 3rd, 4th and
5th defendants as parties to the
suit? The plaintiff issued his
writ because he claims that the
appointment of the 3rd, 4th and
5th defendants as staff in the
Office of the President is
unlawful and unconstitutional.
Clearly, therefore, they have
been included in the suit only
because of their alleged
appointments and not because of
any unconstitutional acts, they
themselves, may have committed.
They did not appoint themselves
and, as such therefore, what
provision of the Constitution
has any of them contravened and
what acts on their parts might
we legitimately declare
unconstitutional pursuant to
article 2? As was stated by
Hayfron Benjamin, J.S.C, in the
case of Ghana Bar Association v.
the Attorney General & Abban,
S.C judgment dated December 05,
1995, wherein the Ghana Bar
Association, in a suit against
the Attorney General challenging
the constitutionality of the
appointment of Justice I. K.
Abban to the office of Chief
Justice, joined Justice Abban as
2nd defendant:—
“At a glance, it is obvious that
the 2nd Defendant – the object
of the power conferred on the
PRESIDENT – cannot be involved
in this case. He has not
committed any infraction with
respect to the Constitution and
no action can be brought against
him which can be founded on
Article 2 of the Constitution.”
The same may be said of the 3rd,
4th and 5th defendants in the
plaintiff’s suit; they are
merely the objects of the
President’s action. Therefore,
their names must be struck out
as defendants to the plaintiff’s
writ.
In view of the foregoing,
assuming there is proper cause
of action raised by the
plaintiff’s writ, the only
proper defendant would be the
Attorney General.
However, there remains the
question of whether or not the
executive action complained of
by the plaintiff may be
subjected to judicial scrutiny
by way of a writ under article
2. There is no doubt that as
already discussed above,
executive action is subject to
judicial scrutiny, provided the
writ is one properly issued
pursuant to Article 2, or is a
prerogative writ. In Ghana, the
Constitution is the supreme law
and every act performed by the
President in the exercise of his
executive authority, must be
referable to the word or spirit
of the Constitution, or a law
properly existing under the
Constitution. However, a writ,
such as the Plaintiff's, issued
under Article 2(1)(b), must
necessarily show that the act
complained of is in
contravention of a provision of
the Constitution.
Although there are several
provisions in the Constitution
governing appointments into
certain positions by the
President, these do not include
of staff appointments to the
Office of the President. Rather,
the latter appointments are
governed by the Presidential
Office Act, 1993 (Act 463). If
it is alleged that any
appointments are in breach of
this legislation, there are
other legal processes by which
such appointments may be
challenged and the proper course
of action for the plaintiff is
to pursue such processes, not to
seek to enforce such legislation
by way of a writ under Article
2.
Consequently, it is my view
that, indeed, the plaintiff's
writ does not disclose a proper
cause of action under article 2
and must, therefore, be struck
out. Hence I do not see the need
to advert my mind to the issue
of mootness.
LAMPTEY, J.S.C.
I agree that the plaintiff's
writ and statement of case be
struck out and the action be
dismissed against all the five
defendants. I wish however to
express my opinion on some of
the issues raised.
I must preface my opinion with
the unambiguous statement that
this court has no jurisdiction
to hear and determine the plaint
before it. I agree with and
adopt the opinions expressed so
clearly and succinctly by the
majority of this court on the
issue of jurisdiction.
The action of the plaintiff
cited Mr. John Agyekum Kufuor as
the 1st defendant. The address
for service was stated as
"office of the President State
House Accra." The plaintiff in
providing the address of 1st
defendant referred to and
described 1st defendant as
"President of Ghana”. Since the
plaintiff commenced the action
on relying on the power and
right guaranteed to him, among
others, on article 2(1)(a) and
(b) of the Constitution I
reproduce in particular article
2(1)(b) as follows:
"2(1) A person who alleges that
(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 ......"
Is it the intention of the law
makers that the "person" whose
act or omission of the alleged
breach should and must be sued
in his person. The answer in my
views is and must be in the
positive. Prima facie the
plaintiff must be right in law
to sue Mr. John Agyekum Kufuor,
as the 1st defendant in the
instant case. However the
plaintiff at paragraph 2 of his
statement of case averred as
follows:
“2. The 1st defendant is the
President of Ghana and is being
sued as person whose conduct is
violating the Constitution of
Ghana."
Further and better particulars
of the conduct of 1st defendant
were stated at paragraphs 5, 6
and 8. These are:
“5. After the 1st defendant
assumed office as the President
of Ghana he purported to appoint
the 3rd, 4th and 5th defendants
as Chief of Staff, Presidential
Adviser for Public Affairs and
National Security Advisor
respectively.
6. The purported appointment by
the 1st defendant of the 3rd,
4th and 5th defendants as staff
in the Office of the President
were done without consultation
with the Council of State as
required by the Constitution and
laws of Ghana.
8. By virtue of the conduct of
the defendants state resources
are being misappropriate and
misapplied by the defendants
without any constitutional
authority whatsoever."
In my view the statement of case
shows and establishes that the
conduct complained of was the
conduct of the President of
Ghana. The action must not be
mounted against Mr. John Agyekum
Kufuor. In my understanding of
the Constitution and the facts
stated by the plaintiff the
proper and lawful party to sue
is the President of Ghana and
not John Agyekum Kufuor.
In further support and
explanation of my view, I cite
Article 60(9) and (12) of the
Constitution as follows:
"60(9) The Vice-President shall,
before commencing to perform the
functions of the President under
clause (6) of this article, take
and subscribe the oath set out
in the second schedule to this
Constitution in relation to the
office of President.
(12) The Speaker shall, before
commencing to perform the
functions of the President under
clause (11) of this article take
and subscribe the oath set out
in relation to the office of
President."
I must point out and draw
attention to the fact that the
Constitution enjoined the
Vice-President and the Speaker
each to take and subscribe the
respective oaths of their
offices before they each assumed
that office. The Constitution at
article 60(9) and (12) imposed a
legal obligation on the Vice
President and the Speaker to
each take and subscribe the oath
of a President before they each
assumed office as President. My
understanding of these
Constitutional provisions is
that the office of President is
not personal to the holder for
the time being in office. In my
view the President of Ghana is
the person who at any point in
time has taken and subscribed
the oath of President.
I find further support for my
view on article 58(1) of the
Constitution. This provision
reads as follows:
"58(1) The executive authority
of Ghana shall rest in the
President and shall be exercised
in accordance with the
provisions of this
Constitution."
The Constitution in clear and
plain language spelt out the
functions and duties of the
Vice-President at article 60(1)
and of the Speaker at article
101 of the Constitution. Thus
when the Speaker, acting legally
and constitutionally as
President of Ghana, is alleged
to have violated and breached a
provision of the Constitution a
plaintiff cannot sue the Speaker
by his or her true name, or sue
him or her as "Speaker" or as
"acting President" because it
would be wrong in law to sue in
the name of the person for the
time being occupying the high
office of President. I agree
with and accept the opinion that
in cases of this nature, that
is, when the exercise of the
executive authority and power is
alleged to be unconstitutional,
the proper and lawful party to
sue is the Attorney-General. On
this issue article 88(5) of the
Constitution provides:
"88(5) The Attorney-General
shall be responsible for the
institution and conduct of all
civil cases on behalf of the
State; and all civil proceedings
against the State shall be
instituted against the
Attorney-General as defendant."
This provision clearly makes the
Attorney-General the party to
sue in civil proceedings against
the President when he has
exercised executive power of
state.
The provision at article 57(5)
of the Constitution is in
language following:
"57(5) The President, shall not
while in office as President, be
personally liable to any civil
or criminal proceedings in
Court".
In my opinion, the above
provision clearly and plainly
guaranteed to the President
while in office qua President,
total and complete immunity from
the jurisdiction of the courts,
in simpler language, the
President cannot be sued in the
civil courts and or criminally
prosecuted in the criminal
courts. This legal immunity is
intended to continue for a
period of three years only after
the President leaves office as
President. In my view this
constitutional provision gives
further support to my opinion
that it was wrong to sue Mr.
John Agyekum Kufuor as 1st
defendant.
The Hon. Attorney-General and
the plaintiff each addressed us
on the issue whether or not the
plaintiff's writ and statement
of case disclosed a cause of
action. I must preface this
opinion with the statement that
as at the date of considering
the arguments and submission of
counsel for parties the
plaintiff failed and omitted to
provide further and better
particulars called for by the
statement of case filed on
behalf of the defendants. I
received a copy of the
memorandum of issues filed by
the plaintiff on the 2nd April
2001. The defendant caused to be
filed the memorandum of issues
on 19th March 2001.
To deal carefully and critically
with the claim of the plaintiff
before the court, I again refer
to the statement of case of
plaintiff as I have reproduced
same elsewhere in this Ruling,
in particular, paragraphs 5, 6
and 8. In reply to the averments
cited therein the defendants
caused to be filed a statement
of case.
I reproduce the relevant
paragraphs as follows
“7. In answer to paragraph 5 of
the plaintiff's statement of
case, the 3rd, 4th and 5th
defendants aver that the 1st
defendant exercising his
executive authority called in
aid the expertise of the 3rd,
4th and 5th defendants to assist
him in the performance of his
functions as advisers and
spokesperson to the 1st
defendant.
9. In further answer to
paragraph 6 of the plaintiff's
statement of case, the
defendants aver that the
plaintiff has not shown any
evidence to indicate that the
1st defendant has appointed the
3rd, 4th and 5th defendants as
staff in the office of the
President."
There can be no doubt that
paragraph 9 of the defendants'
statement of case raised a
serious issue, namely that the
case put forward by the
plaintiff was not supported and
or verified by further and
better particulars. The
defendants specifically disputed
and denied the substance of
plaintiff's case at paragraphs
6, 7 and 9 as follows:
“6. The 3rd, 4th and 5th
defendants admit that they are
citizens of Ghana and members of
the New Patriotic Party but deny
they are holding themselves out
as staff in the office of the
President.
7. In answer to paragraph 5 of
the plaintiff's statement of
case, the 3rd, 4th and 5th
defendants aver that the 1st
defendant exercising his
executive authority called in
aid the expertise of the 3rd,
4th and 5th defendants to assist
him in the performance of his
functions as advisers and
spokesperson to the 1st
defendant.
(9) In further answer to
paragraph 6 of the plaintiff's
statement of case the defendants
aver that the plaintiff has not
shown any evidence to indicate
that 1st defendant has appointed
the 3rd, 4th and 5th defendants
as staff in the office of the
President".
The substance of the defendant's
case as I understand it is a
complete and total denial of
plaintiff's case. They have
denied and challenged their
appointment as staff in the
Office of the President. In my
view there must be evidence from
the plaintiff to establish and
support his case. I do not find
such material before the court.
Be that as it may, I proceed to
consider whether or not the
plaintiff has a cause of action
against the defendants because
the defendants admit
unequivocally that 1st defendant
appointed them “to assist him in
the performance of his functions
as advisers and spokesperson to
the 1st defendant”.
The case of the plaintiff simply
put is that the appointments
were made and announced without
the prior consultation with the
Council of State. The conduct of
the defendants breached and
violated the Constitution. I
note that the plaintiff did not
cite article 70 (1)(e) to
support his case. I find it
relevant and helpful. Article 70
(1)(e) provides:
"70(1) The President shall,
acting in consultation with the
Council of State appoint ----
(e) the holders of such other
offices as may be prescribed by
this Constitution or by any
other law not in consistent with
this Constitution"
Pursuant to the above provision
the Presidential Office Act,
1993 (Act 463) was passed into
law.
I must now turn to Act 463 which
provided the plaintiff the
reason and genesis of his case.
S.4(1) provides as follows:
"4(1) The President acting in
consultation with the Council of
State shall appoint such persons
as he considers necessary to
hold office as presidential
staff in the Office".
It is accepted by all the
parties that as at the date of
the writ and statement of case
of the plaintiff a Council of
state was not in being and
existence. It therefore cannot
be controverted that any
purported appointments made
pursuant to S.4(1) of Act 463
would be unlawful, that is, the
appointment(s) is or are in
flagrant breach of Act 463. The
case of the defendants, simply
expressed, is that the
appointments were in the
capacities of "advisers and
spokesperson" respectively to
the 1st defendant. They stated
further they were chosen for
their "expertise". Finally they
challenged the plaintiff to
produce evidence of their
appointments as "Chief of
Staff", "Presidential Adviser
for Public Affairs" and
"National Security Adviser". In
view of the issue raised by the
parties I must examine Act 463
to ascertain what positions or
offices have been created by it.
S.4(1) provided for the
appointment of presidential
staff. The appointment as
Presidential Staff must be in
writing. The plaintiff failed
and or omitted to establish and
prove his case by supplying
copies of the warrants or
letters of appointment in
respect of 3rd, 4th and 5th
defendants. He failed and
omitted to explain his default
in this matter. In my view, the
omission and failure to provide
the court with the supportive
documents was fatal to his case
in the light of S.7 of Act 463.
This section provides as
follows:
"7. The President may appoint
for specified periods such
consultants or experts as he may
require for any specific
assignments".
In the instant case, the
defendants claimed that they
were appointed because of their
"expertise". I must point out
that the President in exercising
the power and right to appoint
under S.7 of Act 463 does not
need to consult with the Council
of State. It would be seen that
the appointments complained of
may lawfully be made pursuant to
S.7 of Act 463 bearing in mind
the uncontroverted defence put
forward in the statement of
case.
I find further that the
plaintiff did not in his
statement of case indicate that
the post of "Chief of Staff",
"Presidential Adviser for Public
Affairs" and "National Security
Adviser" are all offices created
under S.3(1)(a) of Act 463. In
my opinion since the defendants
disputed and denied the
averments contained in the
statement of case and in the
absence of material supportive
of his case, the plaintiff's
writ and statement of case did
not disclose a cause of action.
Another serious issue raised for
determination by the plaintiff
would be found at paragraph 8 of
his statement of case. It reads—
"8. By virtue of the conduct of
the defendants state resources
are being misappropriated and
misapplied by the defendants
without any constitutional
authority whatsoever".
There can be no doubt in any
one's mind that the above
averment needs to be proved and
supported by material in the
statement of case. The
defendants denied paragraph 8 of
the statement of case at
paragraph 11 of their statement
of case as follows:
"11. The defendants
categorically deny paragraph 8
of the Statement of case of
plaintiff and aver that it is
without foundation."
It cannot be disputed that the
plaintiff was enjoined to file
such other statement or
documents as would seek to
support and establish the
averment at paragraph 8 of his
statement of case. This Court is
therefore confronted with the
bare assertion of the plaintiff
that State resources are being
misapplied and misappropriated
by the defendants. When it is
pointed out that the allegation
of misappropriation of State
funds, prima facie, constitute
on accusation that crime is
being committed by the
defendants, this court was
entitled to receive such
material as would enable it to
rule that plaintiff has a cause
of action against the
defendants. It seems to me that
the plaintiff failed and or
omitted to provide the court
with material to support his
claim and case against each and
every one of the defendants that
they had each misapplied and
misappropriated State resources.
In the absence of material from
the plaintiff, it is difficult
if not impossible for me to
venture to think what
declaration this court would
make on this very serious issue
of misapplication and
misappropriation of State funds.
I do not have a shred of
evidence of misapplication and
or of misappropriation before me
to support and buttress the case
of the plaintiff. I am satisfied
that the plaintiff's writ and
statement of case did not
disclose a cause of action for
this further reason.
AMPIAH, J.S.C.
This is an application by the
Defendants to have set aside the
Writ filed against them by the
Plaintiff.
In his writ, filed on 29th
January, 2001 to invoke the
original jurisdiction of this
Court, the plaintiff claims
against the Defendants—
(1) A declaration that:
(i) On a true and proper
interpretation of the
Constitution, particularly
articles 58(1) and (2), 91(1)
and (2), 190 and 295 thereof,
and Sections 2, 3 and 4 of the
Presidential Office Act, 1993
(Act 463) the 3rd, 4th and 5th
Defendants cannot be appointed
by the President as Staff of the
Presidential Office without
consultation with the Council of
state.
(ii) The conduct of the 1st
Defendant, President John
Agyekum Kufuor, in appointing
3rd, 4th and 5th Defendants as
Staff of the Presidential office
without consultation with the
Council of State is inconsistent
with and in contravention of the
letter and spirit of the
Constitution.
(iii) The conduct of the 3rd,
4th and 5th Defendants in
holding themselves out and
acting as Officers or Staff in
the Office of the President is
inconsistent with and in
contravention of the
Constitution.
(iv) Accordingly, all acts
undertaken by the 3rd, 4th and
5th Defendants as Officers or
staff in the Office of the
President are inconsistent with
and in contravention of the
Constitution, null, void and
without effect whatsoever.
(2) Perpetual injunction
restraining the 1st Defendant
President from appointing the
3rd, 4th and 5th Defendants as
Staff to the Presidential Office
without consulting the Council
of State.
(3) Perpetual injunction,
restraining the 3rd, 4th and 5th
Defendants from continuing to
hold themselves out and acting
as Officers or Staff in the
Office of the President.
(4) Such other orders or
directives as to the Court may
seem fit to give effect to the
above declaration."
Before process in this action
could come to a close, the
Applicants herein filed this
application contending inter
alia that,
“(1) This Court lacks
jurisdiction to entertain the
Plaintiff's action against the
Defendants herein;
(2) ... No cause of action is
disclosed by Plaintiff's Writ
and the Statement of Case;
(3) ... The questions raised in
the Plaintiff's action for
determination are moot; and for
such further or other orders to
this Honourable Court may seem
fit".
An application for interim
injunction to restrain the
Defendants from exercising the
functions of whatever office
they were holding seemed to have
outlived its purpose, by the
available evidence on record, as
at 6th February, 2001,
Parliament had approved the
nominations of the 3rd and 4th
Defendants as substantive
Ministers of State.
The Writ and the Statement of
Case of the Plaintiff, as well
as the Statement of Case of the
Defendants were not attached to
the application. It is required
that in such applications all
the necessary documents and
orders upon which the applicant
relies must be attached or
exhibited. For a fuller
understanding and appreciation
of the nature of issues posed in
his application however, I would
look at these writ and statement
of cases if only to do justice
in the case.
The Plaintiff in this action
seeks a declaration as to the
true and proper interpretation
of the Constitution in
particular, Articles 58(1) and
(2), 91(1) and (2), 190 and 295,
and also Sections 2, 3, 4 of the
Presidential Office Act, 1993
(Act 463). He contends that in a
true and proper interpretation
the appointment of the 3rd, 4th
and 5th Defendants as Staff of
the Presidential Office, without
consulting the Council of State
was inconsistent with and in
contravention of the letter and
spirit of the Constitution. To
my mind, the claim calls for the
interpretation of provisions of
the Constitution.
The Applicants contend that the
writ discloses no cause of
action and that the Court lacks
jurisdiction to entertain the
action.
Article 2(1) (b) of the
Constitution provides:—
"A person who alleges that—
(a) X X X X
(b) any act or omission of any
person is inconsistent with, or
is in contravention of a
provision of this Constitution,
may bring an action in the
Supreme Court for a declaration
to that effect." (emphasis
supplied).
Also, Article 130(1) of the
Constitution gives exclusive
jurisdiction to the Supreme
Court in “all matters relating
to the enforcement or
interpretation of the
Constitution."
It is therefore only the Supreme
Court which can interpret a
provision of the Constitution
when that question arises. And
when that issue becomes
contentious in any other Court,
that Court "shall stay the
proceedings and refer that
question of law involved to the
Supreme Court for determination;
and the Court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court"-
vide Article 130(2) of the
Constitution.
Thus, where in this action the
Plaintiff seeks a declaration on
the interpretation of a
provision of the Constitution,
and alleges that someone's
conduct is inconsistent with, or
in contravention of a
Constitutional provision, it
cannot be said either that there
is no cause of action or that
the Court lacks jurisdiction to
entertain the action.
The allegation may not be true,
but it remains an issue to be
determined one way or another.
And, the interpretation must be
done as requested. The Supreme
Court is the only Court to do
that.
It is a cardinal principle of
law that when an issue of
jurisdiction is raised, it is
not proper for the Court to
decide on the merits of the
case; this may prejudice a
subsequent hearing of the case.
It must be noted that all the
issues raised in this
application, have been set down
for determination in the
Memorandum of Issues filed on
behalf of the Defendants. I
will therefore as much as
possible refrain from going into
the merits of the issues raised
in this writ.
CAN THE PRESIDENT BE SUED
PERSONALLY?
Article 57(4) of the
Constitution provides—
"Without prejudice to the
provisions of article 2 of this
Constitution, and subject to the
operation of the prerogative
writs, the President shall not,
while in office, be liable to
proceedings in any court for the
performance of his functions, or
for any act done or omitted to
be done, or purported to be
done, or purported to have been
done or purporting to be done in
the performance of his
functions, under this
Constitution or any other law."
And sub-clause (5) of this
article provides further—
"The President shall not, while
in office as President be
personally liable to any civil
or criminal proceedings in
Court."
'The Attorney-General shall be
responsible for the institution
and conduct of all civil cases
on behalf of the State; and all
civil proceedings against the
State shall be instituted
against the Attorney-General as
Defendant' - vide Article 88(5)
of the Constitution.
It follows therefore that save
for matters or acts done within
article 2 of the Constitution or
matters or acts for which a
prerogative writ could be
issued, all other actions
against the President, while in
office, shall be brought against
the Attorney-General on behalf
of the State as the Principal
Legal Adviser to the Government.
I had an occasion to give an
opinion on this issue in the NPP
vrs the President of the
Republic of Ghana, Flt. Lt.
(Rtd) J. J. Rawlings and the
Attorney-General, S.C.
(unreported) dated 3rd May,
1994. In that case, I stated
inter alia that no action could
be brought against the President
in his personal capacity. That
was a case under Article 2 of
the Constitution. I have since
reconsidered my opinion. I am in
agreement with my learned
brother Amua Sekyi, J.S.C. (now
retired), in that case, that if
the action fell within article 2
or prerogative proceedings were
brought against the President,
the President could be sued in
his personal capacity.
In this action, the
Attorney-General has been sued
as "..the person against whom
all civil proceedings affecting
the state shall be instituted".
It is being contended that since
there is no substantive holder
of that office, there could not
be a defendant in the action. I
do not think that it is
necessary to have a substantive
holder of that office before
that office is made a defendant.
If that were so, it would mean
that since all actions against
the State should be brought in
the name of the
Attorney-General, no action
could be brought against the
State until such time that a
holder of that office is
appointed. Where an action is
brought against the
Attorney-General or the
Attorney-General sues and the
incumbent dies or vacates his
office, there is no application
for substitution because that
office as long as it exists
could be represented in the
action and whoever takes over
that position subsequently,
continues with the action. The
Attorney-General need not
prosecute or defend the action
personally. It is different
where the Attorney-General is
sued or brings an action in his
personal capacity. In which
case if he vacates his office or
dies, there should be
substitution, if the case
persists. I do not think the
joinder of the Attorney-General
in these proceedings would in
any way invalidate the
proceedings as the Court would
have to determine the issues or
questions in dispute so far as
they affect the rights and
interests of all persons who are
parties to the proceedings.
With regard to the other
Defendants (ie. 3rd, 4th & 5th)
it cannot be said that they are
not interest in the issues to be
determined, if there is a cause
of action. They are alleged to
be beneficiaries of the acts of
the 1st Defendant. It would be
against the rules of natural
justice if they were not heard
before they were condemned or
commended. The Court would have
to determine the issues as they
affect them. I think they are
necessary parties to the action.
What is the cause of action?
All citizens of Ghana have the
constitutional right and duty at
all times to defend the
Constitution. (See Article 3(4)
of the Constitution). Article 2
empowers any person to bring an
action in the Supreme Court for
a declaration as to whether any
person has acted or omitted to
act consistently with, or in
contravention of a provision of
the Constitution. And, the court
shall for that purpose, make
such orders and give such
directions as it may consider
appropriate for giving effect or
enabling effect to be given to
the declaration. No one can deny
any person his right to seek
such a declaration.
The Plaintiff in the instant
case alleges that the 1st
Defendant as President has
appointed the 3rd, 4th and 5th
Defendants to positions namely,
Chief of Staff, Presidential
Adviser for Public Affairs and
National Security Adviser
respectively in the Office of
the President without
consultation with the Council of
State, an act, which violates
the Constitution. He wants a
declaration to that effect. The
Applicants contend that,
"...The 1st Defendant in
exercising his executive
authority called in aid the
expertise of the 3rd, 4th and
5th Defendants to assist him in
the performance of his functions
as Adviser and Spokesperson to
the 1st Defendant." (See
paragraph 7 of the Statement of
Case of the Defendants).
And that,
"... 1st Defendant had raised
the Status of the 3rd and 4th
Defendants by nominating them as
Ministers designate." (See
paragraph 17 of the Defendants'
Statement of Case).
Thus, an issue has been joined
as to whether or not there have
been such appointments. The
Applicants contend that there
has been no statutory
publication of such appointments
and that no evidence has been
led to establish that. Newspaper
publications cannot, they
submit, be used to establish
that fact.
That no Council of State has yet
been put in place is not denied.
It is a notorious fact that such
appointments have been made;
this was published in the local
newspapers. Of course since
processes for the commencement
of hearing of the action had not
been concluded, it is difficult
to determine what evidence would
be given to establish these
appointments, save from the
publications in the newspapers.
As to whether these alleged
appointments qualify as
'Presidential Staff' as defined
under Section 16 of the
Presidential Office Act, 1993
(Act 463), is also an issue to
be determined. Until then
however, Section 156 of the
Evidence Decree, 1975 (NRCD 323)
provides that—
"Printed materials purporting to
be newspapers or periodicals are
presumed to be authentic."
Section 4(1) and (2) of the
Presidential Office Act, 1993
(Act 463) provides—
"(1) The President shall acting
in consultation with the Council
of State appoint such persons as
he considers necessary to hold
office as Presidential Staff in
his Office.
(2) The number of persons that
may be appointed under
sub-section (1) of this Section
and the grade of the Officers
shall be determined by the
President." (emphasis supplied).
And, "The Presidential Office
shall be made up of—
(a) Persons appointed as
Presidential Staff under this
Act one of whom shall be
appointed head of the office;
(b) Such other public officers
as may be seconded or
transferred to the office". (See
Section 3(1) of Act 463).
Thus in so far as the
appointment of the Presidential
Staff is concerned, Section 4(1)
of Act 463 must be complied
with.
Article 70(1) of the
Constitution provides—
"(1) The President shall, acting
in consultation with the Council
of State appoint—
(a) X X X X X
(b) X X X X X
(c) X X X X X
(d) X X X X X
(e) the holders of such other
officers as may be prescribed by
this Constitution or by any
other law not inconsistent with
the Constitution." (emphasis
mine).
In fact it is in the letter and
spirit of the Constitution that
Act 463 was enacted.
Section 2 of Act 463 provides—
"The function of the Office is
to provide the President and the
Vice President such services as
they may require for the
efficient and effective
implementation of the executive
functions of the President and
Vice President under the
Constitution, or any other law."
And, Article 91(1) of the
Constitution states—
"The Council of State shall
consider and advise the
President or any other authority
in respect of any appointments
which is required by this
Constitution or any other law to
be made in accordance with the
advice of, or in consultation
with the Council of State."
It cannot be said that the
Presidential Act, 1993 (Act 463)
is inconsistent with the
Constitution. The "such other
officers" include the
Presidential Staff as prescribed
by Act 463 and, "such other
officers" must be appointed in
consultation with the Council of
State. An appointment without
such consultation is
inconsistent with and in
contravention of not only Act
463 but also Article 70(1) of
the Constitution, by which
authority the appointments are
to be made. The Presidential
Staff are there to assist the
President in the effective and
efficient performance of his
functions. Naturally the
President would need some expert
advisers. It cannot be said that
the three Defendants are the
only advisers he has, but the
fact remains that the three
Defendants are the only persons
he has so far named and
appointed as his expertise
advisers to assist him in the
performance of his functions in
his Office as President. The
question is, who are these
officers who have been so
appointed? The Plaintiff claims
that they are members of the
Presidential Staff. The
Defendants say that they are
only advisers. An issue is
therefore joined for the
determination of the Court.
The Applicants say that the
issue is moot as these
appointees have since been
'raised' in their status and
have been nominated as Ministers
designate. The Writ for the
action was filed on 29th
January, 2001. A motion ex-parte
for interim injunction to
restrain further commission of
the alleged violation of the
Constitution and to prevent the
alleged appointees from acting
was filed on 29th January 2001,
the same day the Writ was filed.
This could not come on. However,
a repeat application, this time,
on notice for interim injunction
was filed on 2nd February, 2001.
This also could not come on
because of the instant
application by the Defendants to
have the Writ set aside.
Meanwhile on 6th February, 2001,
the "raised" status of the 3rd
and 4th Defendants was put
before Parliament and approved.
It is therefore not correct to
say that at the time the Writ
was issued, the issue was moot.
Be that as it may, I am of the
opinion that there exist issues
which are capable of
determination for future conduct
of the framers of the
Constitution, the Legislature
and the Executive- see US vrs.
Concentrated Phosphate Exp.
Assn. 393 US 201 and US vrs.
W.T. Grant Co. "345" US 629.
In conclusion, I am satisfied
that a cause of action is
established on the face of the
records. Pertinent issues have
been raised and the Court would
have to determine these issues.
This Court has jurisdiction to
determine these issues. It would
fail in its duties if it does
not determine the declaration
sought. I would accordingly
dismiss the application and set
the action down for
determination on the merits.
KPEGAH, J.S.C.
I will preface this ruling with
the words of Lord Delvin in his
book entitled, THE JUDGE, Oxford
University Press, 1979 at page 4
where he said:—
"If a judge leaves the law and
makes his own decision, even if
in substance they are just, he
loses the protection of the law
and sacrifices the appearance of
impartiality which is given by
adherence to the law. He
expresses himself personally to
the dissatisfied litigant and
exposes himself to criticism.
But if the stroke is inflicted
by law, it leaves no sense of
individual injustice; the losing
party is not a victim which had
been singled out; it is the same
for everybody, he says. And how
many a defeated litigant has
salved his wounds with the
thought that the law is an ass."
These words of wisdom were
quoted by Aikins, J.S.C. in the
case of J. H. MENSAH VRS.
ATTORNEY-GENERAL (1996-97) SCGLR
320. Like him, I will allow
myself to be guided by these
words of wisdom from a man who
can easily be rated as one of
the best jurists of his time.
Coupled with this is the
traditional saying among the
legal fraternity that the Bench
is not for timorous souls.
Every student of the
Constitutional Law of Ghana
might have felt, after reading
the celebrated case of IN RE
AKOTO (1961) 2 GLR 523, that if
the decision had gone the other
way the political and
constitutional development of
Ghana would have been different.
"Different" in the sense that
respect for individual rights
and the rule of law might have
been well entrenched in our
land, and we who now occupy this
Court would have had a
well-beaten path before us to
tread on in the discharge of the
onerous responsibilities imposed
upon us by the Constitution of
this country.
In this action, Mr. Martin Amidu
is complaining that certain
appointments made or purported
to have been made by the
President, Mr. John Agyekum
Kufuor to the Office of the
President contravenes or is a
violation of some provisions of
the Constitution; and he seeks a
declaration to the effect that,
by appointing Mr. Jake
Obetsebi-Lamptey to the Office
of the President as Chief of
Staff, Ms. Elizabeth Ohene as
Spokesperson in the Office of
the President and Lt. General
(Rtd) Joshua Hamidu as National
Security Advisor to the
President without first
consulting with the Council of
State is a violation of the
letter and spirit of the
Constitution. Mr. Amidu
(hereinafter referred to as the
Plaintiff) argues that by the
said appointments President
Kufuor (hereinafter referred to
as the 1st Defendant) acted in
breach of Sections 3 and 4 of
the Presidential Office Act,
1993, (Act 463) and article 91
of the Constitution. He,
therefore invoked our original
jurisdiction under Articles
2(1)(b) and 130(1)(a) of the
Constitution and sought a
declaration that:—
(i) On a true and proper
interpretation of the
Constitution, particularly
articles 58(1) and (2), 91(1)
and (2), 190 and 295 thereof;
and sections 2, 3 and 4 of the
Presidential Office Act, 1993
(Act 463) the 3rd, 4th and 5th
Defendants cannot be appointed
by the President as Staff of the
Presidential Office without
consultation with the Council of
State.
(ii) The conduct of the 1st
Defendant, President John
Agyekum Kufuor, in appointing
3rd, 4th and 5th Defendants as
Staff of the Presidential office
without consulting with the
Council of State is inconsistent
with and in contravention of the
letter and spirit of the
Constitution.
(iii) The conduct of the 3rd,
4th and 5th Defendants in
holding themselves out and
acting as Officers or Staff in
the Office of the President is
inconsistent with and in
contravention of the
Constitution."
The Plaintiff further asked for
a declaration that all acts done
or undertaken as Staff in the
President's office are null and
void. He, also asked for the
ancillary reliefs of injunction,
or such orders or directions as
this Court may deem fit or
appropriate.
In a statement of case filed on
behalf of the Defendants, the
Solicitor General, raised a
number of factual and legal
issues upon which the
application to set aside the
Plaintiff's writ and statement
of case is premised. The
relevant averments in the
Defendants' statement of case
are:—
“3. The Defendants aver that the
executive authority of this
nation resides in the 1st
Defendant and in the exercise of
this authority this Court lacks
jurisdiction to entertain the
Plaintiff's claim against the
Defendant.
X
X
X
X
5. The 2nd Defendant admits
paragraph 3 of the Plaintiff's
statement of case but denies
that he could be sued at the
point of time that the Writ and
Plaintiff's statement of case
were issued and filed.
X
X
X
X
7. In answer to paragraph 5 of
the Plaintiff's statement of
case the 3rd, 4th and 5th
Defendants aver that the 1st
Defendant exercising his
executive authority called in
aid the expertise of the 3rd,
4th and 5th Defendants to assist
him in the performance of his
function as advisers and
spokesperson to the 1st
Defendant.
X
X
X
X
9. In further answer to ....
the Plaintiff's statement of
case the Defendants aver that
the Plaintiff has not shown any
evidence to indicate that the
1st Defendant has appointed the
3rd, 4th and 5th Defendants as
Staff in the Office of the
President.
X
X
X
X
17. The Defendants aver that
before the Plaintiff filed his
Writ and the statement of case,
the 1st Defendant had raised the
status of the 3rd and 4th
Defendants by nominating them as
Ministers designate.
18. The Defendants say further
that since the nomination of the
3rd and 4th Defendants,
Parliament had as of 6th
February 2001 approved the
appointment of the 3rd and 4th
Defendants as Ministers and have
been sworn in as such Ministers.
19. Regarding the position of
the 5th Defendant the Defendants
say that his position or status
is not contemplated under the
Constitution and therefore no
provision of the Constitution is
violated.
20. It is further averred by the
Defendants that the appointments
of the 3rd, 4th and 5th
Defendants by the 1st Defendant
and, which is the subject of
attack by the Plaintiff, is a
prerogative of the 1st Defendant
and this Court lacks or any
other Court jurisdiction to
entertain any action brought
against the 1st Defendant in
this regard.
21. The Defendants aver that the
action brought by the Plaintiff
is frivolous and an abuse of
this Court's process."
On the very day that the
Defendants statement of case was
filed, the Solicitor General
immediately proceeded to file a
motion seeking to set aside the
Plaintiff's writ and statement
of case on three main grounds;
namely,
(i) that this Court lacks
jurisdiction to entertain the
Plaintiff's action against the
Defendants;
(ii) that the Plaintiff's writ
and statement of case disclose
no cause of action; and
(iii) that the questions raised
in the Plaintiff's action for
determination have become moot.
Before proceeding any further I
would like to deal with an issue
which is germane to this case.
The point was raised in
argument, based on paragraph 9
of the Statement of Defendants'
case, that the Plaintiff's
failure to exhibit the letters
of appointment is fatal to his
case since the Defendants had,
in the said paragraph 9, denied
his averments.
The Plaintiff countered this
argument by submitting that the
fact of the said appointments
are common knowledge having been
so published by both the
electronic and print media to
which there had not been any
official denial. Fortunately,
Section 156 of the Evidence
Decree, 1975, (NRCD 323)
provides:
"Printed materials purporting to
be newspaper or periodicals are
presumed to be authentic."
My brother Acquah, J.S.C. in the
case of NPP VRS. NDC & ORS.
(2000) SCGLR 461 at page 508
commenting on the efficacy of
the said section 156 in judicial
proceedings said:
"[T]he law recognises the
existence of newspapers as
sources of information, and
accordingly, provides in section
156 of the Evidence Decree, 1975
(NRCD 323) that:
'Printed materials purporting to
be newspapers or periodicals are
presumed to be authentic.'
This does not mean that whatever
is stated in a newspaper is
true. What the provision does is
to give recognition to the
existence of a newspaper. It
would certainly be outrageous in
my view, for anyone to make
capital out of the fact that the
source of the Plaintiff's
information is a newspaper when
even the Courts rely on
publications in newspapers for a
variety of purposes including
substituted services, as
authentic means of giving notice
to those entitled to be given
such notices. It would be
unfathomable for this Court to
refuse to assume jurisdiction on
grounds inter alia, that the
Plaintiff's source is the
newspaper.” (emphasis supplied).
Concluding his discourse on
section 156 of the Evidence
Decree, Acquah, J.S.C. said:
"After all, instances abound
where parties to suits have
relied on newspaper publications
in support or defence of their
case."
He then cautioned that
"no fetish should be made of the
fact that the Plaintiff's source
of information is THE GHANAIAN
TIMES."
Section 156 of the Evidence
Decree entails more than merely
give recognition to a
newspaper. The important words
in the provision are "presumed
to be authentic". The word
"authentic" is defined in the
Chambers Dictionary (New
Edition) as "genuine;
authoritative; true, entitled to
acceptance, of established
credibility". Used in relation
to writing it means
"trustworthy, as setting forth
real facts".
We should be wary of setting
aside a Plaintiff's Writ and
Statement of Case for failing to
disclose evidence of a pleaded
fact, which is denied, when
there is a legal presumption,
though rebuttable, in the
Plaintiff's favour in respect of
that fact. It will certainly be
a thin ground on which to
decline jurisdiction and set
aside the writ and statement of
case in an important
constitutional case which, in my
view, involves so much law.
The Plaintiff's action was
provoked by various
announcements in both the
electronic and print media that
the 1st Defendant had appointed
the 3rd, 4th and 5th Defendants
to certain staff positions in
the Office of the President when
the Council of State has not
been constituted because in such
appointments the Council of
State must be consulted. In
respect of the 3rd Defendant for
example, it was carried in both
the print and electronic media
on the 8th and 9th of January,
2001 that he had been appointed
the Chief of Staff in the
President's Office. This was how
the "Daily Graphic” of 9th
January, 2001 presented the news
of the 3rd Defendant’s
appointment: "JAKE MADE CHIEF OF
STAFF". The story that followed
was:
"The President, Mr. John Agyekum
Kufuor, has appointed Mr. Jake
Obetsebi-Lamptey as Chief of
Staff, Office of the President."
The same news item was carried
in the EVENING NEWS of the
previous day.
In respect of the 4th Defendant,
Ms. Elizabeth Ohene, her
appointment was on the 4th day
of January, 2001 and carried in
the DAILY GRAPHIC of 5th
January, 2001. The caption read:
"ELIZABETH OHENE NAMED PUBLIC
AFFAIRS ADVISER" with the
following story:
"The President-elect, Mr. John
Agyekum Kufuor, has appointed
Ms. Elizabeth Ohene, one-time
Editor of the Daily Graphic as
his Advisor on public affairs. A
press release issued from the
Office of Mr. Kufuor yesterday,
said in her capacity as Public
Affairs Advisor, Ms. Elizabeth
Ohene will be responsible for
all media-related activities of
the President-elect. The release
signed by Mr. Jake
Obetsebi-Lamptey, Campaign
Manager of Mr. Kufuor, said Ms.
Ohene would also be responsible
for all statements issued on
behalf of the President-elect."
This story was also carried by
the other print and electronic
media. It does seem, therefore,
that Ms. Ohene's appointment was
made by the President even
before he assumed office on the
7th January, 2001. The 1st
Defendant, therefore, could not
have been exercising his
executive authority, not having
been vested with such authority,
to call in aid the expertise of
the 4th Defendant as
Spokesperson to assist him in
the performance of his functions
as pleaded in the Statement of
Defendants' case. The release
which announced the appointment
of the 5th Defendant, Lt. Gen.
Joshua Hamidu, as the National
Security Advisor to the
President was signed by the 4th
Defendant in her appointed
capacity. The appointment of the
5th Defendant was captioned in
the DAILY GRAPHIC of 12th
January, 2001 thus: "HAMIDU MADE
NATIONAL SECURITY ADVISER". The
story under this headline was:
"The President, Mr. J. A.
Kufuor, has appointed Lt. Gen.
Joshua Hamidu as National
Security Advisor, a press
release signed by Ms. Elizabeth
Ohene, Presidential Advisor of
Public Affairs announced
yesterday. Lt. Gen. Hamidu is a
former Chief of Defence Staff."
In moving the motion to set
aside the Plaintiff's writ and
statement of case, the learned
Attorney-General, Nana
Akufo-Addo raised a number of
issues. First, that the 1st
Defendant as President of Ghana,
being vested with the executive
authority of the state is not
amenable to the jurisdiction of
any court in the exercise of
that authority. For this
submission he relied on the
decision of this Court in the
case NPP VRS. FLT. LT. (RTD) J.
J. RAWLINGS & ANOR. Suit No.
15/93 (Unreported) dated 3/5/94
where by a 3-to-2 majority this
Court held that the President
was not amenable to court
proceedings for the performance
of his official functions whilst
in office. Thus, the per curiam
decision placed the President,
in the due exercise of his
powers, whether constitutional
or statutory, political or
otherwise, beyond the reach of
judicial proceedings. The J. J.
RAWLINGS' case will be examined
in greater detail in this
ruling. However, it is worth
mentioning at this stage that
the court failed to consider the
issue whether a President can
under any circumstances be
compelled through the judicial
process to perform a purely
ministerial act under a positive
law otherwise for impeachment
under article 2(4).
The second point raised in
support of the motion was that
there being no substantive
Attorney-General when the writ
was issued the joinder of the
2nd Defendant (Attorney-General)
as a party was improper and the
writ against him was null and
void. Third, that by the
nomination of the 3rd and 4th
Defendants by the President as
Ministers of State and their
subsequent approval by
Parliament as Ministers of
State, the questions raised by
the Plaintiff's action had
become moot and this court
should accordingly decline
jurisdiction. Admittedly, the
function of a Court of law in
our jurisdictions is to
determine issues of law and fact
when properly raised before it
in a dispute between parties.
The question then is, how far
does the American principle of
mootness based on the "case" and
"controversy" requirement of
Article III (2) of their
Constitution and as applied in
the case of DEFUNDIS VRS.
ODEGAARD, 416 U.S. 312, apply
under Article 2 of our
Constitution, if it does at all.
The assault on the competence of
this Court to adjudicate the
Plaintiff's case is based on the
above basic grounds. There are
other strands to the challenge
raised in argument which will be
considered in the course of this
opinion.
The Plaintiff on the other hand
urged us to reject the
Attorney-General's position
because the action is brought
under Article 2 of the
Constitution; that in such a
situation the President, while
in office, can be sued
personally for infractions of
any constitutional provision in
the discharge of his executive
functions. As to the second
point, the absence of a
substantive Attorney-General,
the Plaintiff argued that the
Attorney-General was sued only
as a nominal Defendant and the
fact that nobody had then been
appointed to the position was
not a sine qua non. And on
mootness the Plaintiff argued
that the principle of mootness
is not contemplated in respect
of actions brought under Article
2 of the Constitution.
The last two points were
considered in the case of J. H.
MENSAH VRS. ATTORNEY-GENERAL
(1996-97) SCGLR 320. The then
Attorney-General, Dr. Obed
Asamoah together with his
Deputy, the present Plaintiff,
raised preliminary objections to
the Plaintiff's action. First,
that the issues which fell for
determination had become moot;
and secondly, that on the basis
of the Plaintiff's own showing,
the action could not be
maintained against the
Attorney-General because, he
too, like the retained
Ministers, had not been approved
by Parliament. The present
Attorney-General who then
appeared for the Plaintiff in
the J. H. MENSAH's case resisted
the application on the ground
that the Attorney-General was
sued as a nominal defendant.
This argument was accepted by
the court. At this point I crave
indulgence to digress and
indicate some aspects of this
ruling in advance.
In this ruling apart from
answering the major questions
raised, I may also consider
other points indirectly raised
in the course of argument:
How far American principles of
judicial self-restrain can be
applied in our Constitutional
adjudications, particularly the
political question doctrine and
the principle of ripeness.
This discussion will dove-tail
into a consideration of the plea
of mootness, its origin and
scope, since it is raised in
this case. I intend to do this
because we have not been
consistent in our applications
of these principles. In some
cases there are dicta suggesting
that American doctrines of
judicial self-restrain developed
as a result of the "case" and
"controversy" requirement of
article III (2) of the American
Constitution are not applicable
in our circumstances. But in
other cases, some of the
principles are given tacit
approval or applied. These
principles have been developed
by American Courts as a
convenient way of avoiding
jurisdiction in certain cases.
One of these principles, the
mootness doctrine, has now been
pleaded in bar to our
jurisdiction in this case.
I think this offers us an
opportunity to confront once and
for all these discretionary
avoidance principles of American
jurisprudence and determine how
relevant they are to our
circumstance instead of the
selective approach we have been
adopting so far; otherwise such
approach will deprive our
jurisdictional decisions of any
principled content or basis.
A review of some of the cases in
which these doctrines have been
applied or rejected may help
illustrate our ambivalence
towards these principles. For
example, in the recent case of
NPP VRS. NDC & ORS. (SUPRA) at
505-506, the following words of
caution were given against these
discretionary avoidance
principles:
"Generally an action is
speculative if it is not
grounded on real situations but
on conjectures and therefore not
ripe for adjudication. In United
States constitutional
jurisprudence, such an action is
discussed under the doctrine of
ripeness. For article III of the
United States Constitution
requires a court to consider
whether a case has matured or
ripened into a controversy
worthy of adjudication before it
can be determined."
After this preliminary
observation the caution was
sounded thus:
"Now a close study of the United
States Constitutional
jurisprudence vis-a-vis the
language and provisions of our
1992 Constitution, clearly shows
that the United States doctrine
of ripeness, like most of their
principles of judicial
self-restraint, is inappropriate
in the interpretation of our
Constitution. In J. H. MENSAH
VRS. ATTORNEY-GENERAL (1996-97)
SCGLR 320 this Court finally
decided that the political
question doctrine as applied in
the United States was
inapplicable in our
jurisprudence."
But, in J. H. MENSAH VRS.
ATTORNEY-GENERAL (1996-97) SCGLR
320 the Court, while rejecting
the political question doctrine,
one of the principles of
judicial self-restraint,
proceeded to apply the doctrine
of mootness another principle of
judicial self-restrain which had
been developed in the United
States specifically because of
the "Case" and "Controversy"
requirement of Article III(2) of
their Constitution. The first
holding in the J. H. MENSAH VRS.
ATTORNEY-GENERAL (SUPRA) states:
"The preliminary objection by
the Defendant would be
dismissed: (a) the principle
guiding the court in refusing to
decide moot questions was quite
settled. If the question, though
moot, was certainly not likely
to re-occur, the courts would
not waste their time to
determine dead questions and
issues. Thus for the court to
decline deciding a moot
question, it must be established
that subsequent events had made
it absolutely clear that the
alleged wrong behaviour could
not reasonably be expected to
occur. Where it was not so
established (as in the instant
case) the court would go into
the question to forestall a
multiplicity of suits."
The court, for the above
holding, relied on two United
States Supreme Court decisions;
namely U.S. VRS. CONCENTRATED
PHOSPHATE EXP. ASSN. 393 U.S.
201; and U.S. VRS. W.T. GRANT &
CO. 345 US 629.
It does appear from the first
holding, does it not, that the
court approved the doctrine of
mootness as applicable to our
Constitutional adjudications but
only found it inapplicable to
the case before it for, in the
words of Aikins, J.S.C., "the
issue in the instant case is
still alive".
The other so-called American
doctrine often applied with some
inconsistency is the political
question doctrine the
development of which is based on
the doctrine of separation of
powers which underpins the
American Constitution, like
ours, rather than any specific
provision in the American
Constitution. It was applied in
the case of TUFFOUR VRS.
ATTORNEY-GENERAL (1980) GLR 632
without the court specifically
saying so; but the principle was
rejected in the case of NPP VRS.
ATTORNEY-GENERAL (THE 31ST
DECEMBER CASE) Suit No. 18/93
(unreported) dated 8/3/94. The
issue again arose in the case of
G.B.A. VRS. ATTORNEY-GENERAL &
ANOR. (THE ABBAN CASE) Suit No.
8/95 (unreported) dated 5/12/95
where THE 31ST DECEMBER CASE was
criticised and the doctrine
applied in the ABBAN case. This
is what Hayfron-Benjamin, J.S.C.
said in his supporting opinion:
"This leads me to a
consideration of the second of
what I have termed the twin
pillars constituting
jurisdiction. Whether this
action can be maintained, or
more properly, whether this
Court can clothe itself with
jurisdiction to hear and
determine the matter. I have
already referred to the opinion
of my learned and respected
brother Kpegah, J.S.C. in
particular and to the concurring
opinion of my learned and
respected sister and brethren. I
do not think it is necessary for
me in this opinion to discuss
the principle of the
non-justiciable political
question. It is certainly one of
the grounds upon which the
jurisdiction of this Court may
be ousted". (emphasis supplied).
One of the grounds on which the
Court declined jurisdiction in
the Abban case therefore was
non-justiciable political
question doctrine. And
commenting on the case of
TUFFOUR VRS. ATTORNEY-GENERAL
(SUPRA) in ABBAN CASE,
Hayfron-Benjamin, J.S.C. said:
"In my respectful opinion in the
case of TUFFOUR VRS.
ATTORNEY-GENERAL (1980) GLR 639,
this Court discussed in full the
scope and limits of our
jurisdiction with respect to
dealings with other arms of
government. Although in the
TUFFOUR case, Supra, their
Lordships did not use the term
- non-justiciable political
question, I think they reached
conclusions, which accord with
JUSTICE BRENNAN'S dictum in the
American case of BAKER VRS.
CARR, 369, US, 186 (1962)".
This was not to be the end of
the matter. In the case of J. H.
MENSAH VRS. ATTORNEY-GENERAL
(1996-97) SCGLR 320 the Court
rejected the avoidance principle
of political question doctrine
and held that the court had
jurisdiction to determine
political questions. It is
interesting that the ABBAN CASE
which disapproved of NPP VRS.
ATTORNEY-GENERAL (31ST DECEMBER
CASE) was not referred to but
rather the latter was relied
upon although it was severely
criticised in the ABBAN CASE
which, as indicated, the Court
never referred to in J. H.
MENSAH VRS. ATTORNEY-GENERAL
(SUPRA). The argument could
therefore be made that this case
was decided per incuriam.
It seems to me, therefore, that
this Court had not been
consistent in its application of
the so-called American
principles of political question
doctrine to our circumstance.
One may therefore legitimately
ask to what extend such
applications or rejections of
these so-called discretionary
avoidance principles of the
American jurisprudence have been
based on principled grounds, or
to what extend they were AD HOC
invocations or applications of
prudential judgments. I find it
irresistible to consider some of
these principles for fear that
such an inconsistent approach by
this Court may deprive our
jurisdictional decisions of any
principled basis; especially
when one of these principles
have been cited in bar to our
assumption of jurisdiction in
the instant case.
I will be discussing these
concepts and their relevance to
our circumstance and finally
link the discussion with what we
actually mean and must do in our
jurisprudence when a defendant
moves a court to have the
plaintiff's writ and statement
of claim set aside for "failing
to disclose any cause of
action”. What factors or
considerations must a court take
into account before granting or
refusing such a request will be
part of the burden of this
opinion.
After this self-explanation why
I will be delving into areas
which may “appear", I use the
word advisedly, to some as not
really necessary for the
decision, I will revert to a
consideration of some of the
legal issues raised.
THE IMMUNITY OF THE PRESIDENT
WHILE IN OFFICE
It is trite learning that a
court can be said to lack
jurisdiction either because it
has no jurisdiction over the
subject-matter of a claim, or
over any of the parties. The
learned Attorney-General's
contention is that since the 1st
Defendant, His Excellency
President J. A. Kufuor, was
exercising his executive
authority he is not amenable to
the jurisdiction of this court
or any other court while in
office. He supported his
argument with the decision of
this court in the case of NPP
VRS. FLT. LT. (RTD) J. J.
RAWLINGS & ANOR. Suit No. 15/93
(unreported) dated 3rd May, 1994
where this court in a 3 to 2
majority decision interpreted
article 57(4) to mean that the
President, while in office, is
immuned from any judicial
proceedings in the performance
or purported performance of his
official functions. Article
57(4) of the Constitution
states:
"Without prejudice to the
provisions of article 2 of this
Constitution, and subject to the
operations of the prerogative
writs, the President shall not,
while in office, be liable to
proceedings in any court for the
performance of his functions, or
for any act done or omitted to
be done, or purported to be
done, or purported to have been
done or purporting to be done in
the performance of his
functions, under this
Constitution or any other law."
That the executive authority of
Ghana vests in the President of
the Republic is very clear from
the language used in article
58(1) of the Constitution.
However, this same article doth
enjoin the President that while
exercising his undoubted
executive authority he must do
so in accordance with the
provisions of the Constitution.
It states:
"The executive authority of
Ghana shall vest in the
President and shall be exercised
in accordance with the
provisions of this
Constitution." (emphasis
supplied).
So that article 58(1) not only
grants executive power to the
President but also imposes a
mandatory duty on him to do so
in accordance with the
provisions of the
Constitution. This duty is
enforceable because "any act or
omission of any person" which is
alleged to be inconsistent with,
or to be in contravention of a
provision of the Constitution
can be challenged in the Supreme
Court under Article 2 to which
the immunity of the President is
made subject. As was poignantly
pointed out by Amua-Sekyi,
J.S.C. in the RAWLINGS case,
"If words have any meaning, the
term 'any person' must include
the President of the Republic;
and, if it does, then there is
no reason why he cannot be
called upon to answer for
alleged infringements of
constitutional provisions."
The submission that article
58(1) while vesting the
President with executive
authority also, expressly, or at
least by necessary implication,
imposes an enforceable duty on
him to observe the provisions of
the Constitution in the process,
is underscored by the provisions
in clause 2 of the said article
58 which makes it clear that the
President's executive authority
"shall extend to the execution
and maintenance of the
Constitution and all laws made
under or continued in force by
this Constitution".
It does appear, therefore, that
there is sufficient internal
evidence in article 58 not only
of the vesting of the executive
authority in the President, but
also the imposition of a duty on
him to exercise those powers in
accordance with the provisions
of the Constitution and any
other law made or continued
under the Constitution. This
duty is enforceable, and can be
enforced by recourse to our
enforcement jurisdiction under
article 2 of the Constitution to
which the President's immunity
from judicial proceeding is made
subject.
I have read the case of NPP VRS.
FLT. LT. (RTD) J. J. RAWLINGS &
ANOR. (SUPRA) several times and
find that the views and
sentiments expressed by
Amua-Sekyi, J.S.C. in his
minority opinion accords with
those of my own. This is what he
said:
"Although the President is the
first citizen, he is not above
the law. The medieval fiction
that the 'king can do no wrong',
which the sophist interpreted to
mean that if the action was
wrong, then it was not that of
the king, has no place in a
republican setting which prides
itself on all citizens being
equal under the law and
therefore obliged to act in
conformity with it. We recognise
that an executive President
being the most powerful person
in the State is the one who has
the greatest capacity for
wrong-doing. We do not need a
Petition of Right or a notional
defendant like the
Attorney-General before we can
exercise our democratic right of
calling an erring President to
order under Article 2 which not
only commands him to obey any
order or directions this court
may give, but also makes his
failure to obey any order or
direction a ground for his
removal from office."
What happens when the President
refuses to perform a public duty
imposed on him by a Statute. He
must, like anybody, be amenable
to the prerogative writ of
MANDAMUS to compel him to
discharge the duty. As was
observed by Apaloo, J.A. (as he
then was) in the case of SALLAH
VRS. ATTORNEY-GENERAL (1970) 2 G
& G 493,
"It ought, however, to be borne
in mind that the immunity from
legal proceedings granted to the
President in the performance or
purported performance of his
constitutional or other legal
duty is not absolute. His
immunity from Court proceedings
does not extend to proceedings
taken against him by any of the
prerogative writs. It would
follow from this that if the
President failed or neglected to
perform a public duty imposed on
him by law, a person affected by
his failure can compel him in
Court by the prerogative order
of Mandamus."
The above dictum of Apaloo, J.A.
(as he then was) implies the
submission that the order could
be enforced if the President
deliberately refuses to comply.
Such an order can only be
enforced by contempt
proceedings, which proceedings
being quasi-criminal are
inappropriate for the citation
of a "nominal contemptnor" like
the Attorney-General; personal
demand is required before such a
procedure can be invoked.
And for a contempt proceeding to
be successful the party
proceeded against must be proved
to have been guilty of a wilful
or intentional, or deliberate
disobedience of the order, and
if this is not fully and
satisfactorily made out, the
Court will refuse to commit. The
words "wilful", "intentional" or
"deliberate" require a
particular state of mind on the
part of the person alleged to be
in contempt. Can this necessary
state of mind be attributed to
"a nominal defendant" like the
Attorney-General for him to be
committed. For all we know, he
might have advised the President
to obey the order.
Also, an application for
contempt can result in the
contemptnor being committed to
prison. Will a "nominal
contemptnor" like the
Attorney-General go to prison
instead of a recalcitrant and
obstinate President?
Should we decline to over-rule
the RAWLINGS' case and hold that
the President is not amenable to
any judicial proceedings even
if, in the performance of his
duties he breaches the
Constitution, we may possibly be
condemning the citizens of this
country to the calamity which
befell the nation after the RE:
AKOTO case. And this Court would
have reneged on one of its
functions - the maintenance of
the culture of
Constitutionalism. In my
dissenting opinion in the case
of YEBOAH VRS. J. H. MENSAH
(1998-99) SCGLR 492 at page 517,
I said:
"The Constitution is the Supreme
Law of the land, and, all person
must look at it and adjust their
actions or conduct accordingly.
And it has to be emphasised that
one of the primary functions of
the Supreme Court, apart from
adjudication of constitutional
matters, is promoting and
safe-guarding constitutional
values." (emphasis supplied)
I cannot conclude this aspect of
my opinion without again calling
in aid the words of my brother
Amua-Sekyi, J.S.C. in the
RAWLINGS case (Supra):
"In the light of the foregoing,
I am of the opinion that
whenever it is alleged that the
President acted in a manner
inconsistent with or in
contravention of a provision of
the Constitution, an action may
be brought against him under
Article 2 for a declaration to
that effect, and for
consequential orders, including
an injunction. President
Rawlings was, therefore,
properly made a defendant in
this suit."
For the name "President
Rawlings" substitute the name
"President Kufuor" and this will
adequately reflect my humble
view in this case.
ATTORNEY-GENERAL
The point was also raised that
since there was no substantive
Attorney-General before the writ
was issued, the writ against the
2nd Defendant is null and void
and should be dismissed
accordingly. This argument was
earlier made in the recent case
of J. H. MENSAH VRS.
ATTORNEY-GENERAL (SUPRA) by the
then Attorney-General but the
present Attorney-General, Nana
Akufo-Addo, who then appeared
for the Plaintiff countered this
line of argument by submitting
that the Attorney-General was
sued as a nominal defendant.
This argument found favour with
the Court which held that the
Plaintiff was right in
contending that the
Attorney-General was
constitutionally a nominal
Defendant in the action.
Currently, this is the view I
hold and the case of J. H.
MENSAH VRS. ATTORNEY-GENERAL
(SUPRA) should lay to rest the
contention of the Honourable
Nana Akufo-Addo that the writ
was void against the 2nd
Defendant because he had not
been appointed before the writ
was issued. In any case the
point could not defeat the
action as the non-joinder or
mis-joinder of a party cannot
defeat an action.
APPLICATION OF AMERICAN CONCEPTS
OF JUDICIAL SELF-RESTRAIN AND
OTHER PRINCIPLES TO OUR
CONSTITUTIONAL ADJUDICATION
(a) POLITICAL QUESTION-AKIN TO
AMERICAN CONSTITUTION OR
INHERENT IN DOCTRINE OF
SEPARATION OF POWERS
Our Constitution, like the
American Constitution, is a
written Constitution underpinned
by the doctrine of the
separation of powers. And it is
important to say that being a
written Constitution, it has,
like the American Constitution,
certain fundamental or basic
attributes. The first is that
the people of Ghana VOLUNTARILY,
in the words of the Preamble "do
hereby adopt, enact and give to
ourselves this Constitution".
And under the Constitution the
people of Ghana have exercised
their "natural and inalienable
right to establish a framework
of government". The second
attribute is that the form of
government envisages three
important branches or arms of
government - that is the
EXECUTIVE, LEGISLATURE and
JUDICIARY. The third attribute
is that these various
departments of government have
their respective powers laid
down with limits not to be
infringed or transgressed by any
arm of government. But these
limits, expressed in a written
Constitution, would be
meaningless and serve no purpose
if freely ignored or infringed
by the organs intended to be
restrained. Although power is
dispersed among the various
organs of government, it should
not be at the expense of harmony
and governance.
In the American case of
YOUNGSTOWN SHEET & TUBE CO. VRS.
SAWYER (STEEL SEIZURE CASE) 343
U.S. 579, Justice Jackson said
of the doctrine of the
separation of powers:
"While the Constitution diffuses
power the better to secure
liberty, it also contemplates
that practice will integrate the
dispersed powers into a workable
government. It enjoins upon its
branches separateness but
interdependence, autonomy but
reciprocity".
Our Constitution, unlike the
American Constitution, is
expressed to be "the Supreme Law
of Ghana and any other law found
to be inconsistent with any
provision of this Constitution
shall, to the extent of the
inconsistency, be void". Despite
this provision there is inherent
or internal evidence in our
Constitution that the policy
which informs or should inform
an Act, and the desirability of
enacting such a law are matters
for the Executive and
Legislature to decide. But the
interpretation of the law, its
enforcement and matters relating
to the validity of the law
enacted by Parliament fall
within the adjudicatory
functions of the Courts. So that
when we decide the validity of
an Act of Parliament, we are not
descending to the well of
Parliament and thereby
interfering with its work. We
are empowered by the
Constitution to so declare if
Parliament transgresses the
Constitutional limitation placed
on its legislative powers.
Therefore, the issue whether an
Act or any of its provisions are
constitutionally valid or not,
is not a question of a political
nature and this Court cannot
refrain from deciding same.
Because in doing so the Court is
not encroaching any particular
function or privilege of
Parliament. This distinction is
important and must be
maintained. The principle of
non-justiciable political
question did not evolve in
American jurisprudence due to
the fact that the Courts were
not endowed with the power of
judicial review in the
Constitution. Although it was
the case of MARBURY VRS. MADISON
1 Cranch 137 which formally
broke the ground for judicial
review in America, earlier
jurists have anticipated and
read into the Constitution such
a power. For example, Hamilton
in his THE FEDERALIST No. 78
(Modern Library ED. 1937) at
page 506 wrote:
"The interpretation of the laws
is the proper and peculiar
province of the Courts. A
Constitution, is, in fact, and
must be regarded by the Judges,
as a fundamental law. It
therefore belongs to them to
ascertain its meaning, as well
as the meaning of any particular
act proceeding from the
legislative body. If there
should happen to be an
irreconcilable variance between
two, that which has the superior
obligation and validity ought,
of course, to be preferred; or,
in other words, the Constitution
ought to be preferred to the
Statute, the intention of the
people to the intention of their
agents".
Some are of the view therefore
that Chief Justice Marshall only
gave philosophical justification
to the concept of judicial
review in the MADISON case. It
is not primarily because of the
absence of the power of judicial
review in the American Courts
that the principle of
non-justiciable political
question was evolved. It is a
necessary derivative from the
doctrine of separation of
powers. Justice Brennan in BAKER
VRS. CARR 369 U.S. 186 (1962) at
page 682 said:
"The non-justiciability of a
political question is primarily
a function of the separation of
powers".
I think it is this basic
distinction which Archer, C.J.
in the case of NPP VRS.
ATTORNEY-GENERAL (31ST DECEMBER
CASE) (supra), where the issue
was raised, recognised or
acknowledged and meant when he
cautioned, thus:
"The Constitution gives the
Judiciary power to interpret and
enforce the Constitution and I
do not think this independence
enables the Supreme Court to do
what it likes by undertaking
incursions into territory
reserved for Parliament and the
Executive. This Court should not
behave like an octopus
stretching its eight tentacles
here and there to grab
jurisdiction not
constitutionally meant for it”.
The above dictum by Archer, C.J.
was given some approval, in
another direction, in the J. H.
MENSAH CASE (supra). One may be
tempted to ask what
philosophical considerations
might have informed this dictum
of Archer, C.J. He was
considering the applicability of
the political doctrine to our
circumstance, which the majority
rejected in that case (i.e. 31st
December Case) (supra) as
inapplicable in our
Constitutional adjudications.
And Sowah, J.S.C. (as he then
was) in the case of TUFFOUR VRS.
ATTORNEY-GENERAL (1980) GLR 637
after examining the question of
how far the courts can question
what, under our Constitution,
had been done in, and by
Parliament, said at page 651
thus:
"These Courts cannot therefore
enquire into the legality or
illegality of what happened in
Parliament. In so far as
Parliament has acted by virtue
of the powers conferred upon it
by the provisions of clause (1)
of Article 91, its actions
within Parliament are a closed
book."
The Court then proceeded to
discharge the Speaker as the 1st
Defendant because he ought not
to have been joined as a party.
The rationale for the Court's
decision that proceedings in
Parliament are a closed book and
cannot be subjected to judicial
review is the concept of
separation of powers and its
necessary implication of
non-justiciability of
proceedings of Parliament.
And in the ABBAN case I
cautioned against the relentless
use of our power of judicial
review as follows:
"I do not think the framers of
our Constitution intend to
anoint and enthrone the
Judiciary. The political
question is one basic virtue to
emanate from the concept of
separation of powers. This Court
must apply it in an endeavour to
find its proper place within the
Constitutional structure".
THE BRITISH CONCEPT AND RECENT
DEVELOPMENTS
In British Constitutional law,
the "traditional view" is that
Parliament is Supreme. Some of
its proponents had been Dicey
and Blackstone Coke. The concept
of supremacy implied that
Parliament could enact laws on
any topic affecting any persons,
and there are no laws which
Parliament is impotent to repeal
or amend. In this context
Parliament means "the crown in
Parliament" - that is, the
combined effect of the Queen,
House of Lords and the House of
Commons. Under the British
domestic law, the efficacy of
the laws passed by Parliament
may be challenged, but the power
to make such a law has never
been challenged. But some of the
assumptions which flow from the
theory of supremacy of
Parliament in British
Constitutional Law, are slowly
coming under stress by certain
realities of the modern state
and relations between other
states. Although the British
Constitution is not written, the
non-justiciability of certain
types of actions, perhaps on
grounds previously unknown or
unacceptable, has started to
creep in. In the recent case of
BLACKBURN VRS. ATTORNEY-GENERAL
(1971) 1 WLR. 1037, the
Plaintiff brought two actions
against the Attorney-General
seeking a declaration that the
effect of signing the Treaty of
Rome (which would permit Britain
to join E.E.C. and some of its
organs) would be irreversibly to
surrender in part the
Sovereignty of the Crown in
Parliament and that,
accordingly, Her Majesty's
government will be acting in
breach of the law. The Court of
Appeal held that the Courts
could not impugn the
treaty-making powers of the
Crown. Lord Denning, M.R said:
"The treaty-making powers of
this country rests not in the
Courts, but in the Crown; that
is Her Majesty acting upon the
advice of her Ministers. When
her Ministers negotiate and sign
a treaty, even a treaty of such
paramount importance as this
proposed one, they act on behalf
of the country as a whole. They
exercise the prerogative of the
Crown. Their action in so doing
cannot be challenged or
questioned in these Courts".
Lord Salmon in his opinion on
the issue of jurisdiction said:
"Whilst I recognise the
undoubted sincerity of Mr.
Blackburn's views, I deprecate
litigation the purpose of which
is to influence political
decisions. Such decisions have
nothing to do with these Courts.
Nor have the Courts any power to
interfere with the treaty-making
power of the sovereign..."
Lord Justice Stamp was more
forthright in his opinion. This
is what he said:
"I agree that the appeal should
be dismissed; but I would
express no view whatever upon
the legal implications of this
country becoming a party to the
Treaty of Rome. In the way Mr.
Blackburn put it I think he
confused the division of powers
of the Crown, Parliament and the
Courts. The Crown enters into
treaties; Parliament enacts
laws; and it is the duty of this
Court in proper cases to
interpret those laws when made;
but it is no part of this
Court's function or duty to make
declarations in general terms
regarding the power of
Parliament ... Nor ought this
Court at the suit of one of Her
Majesty's subjects to make
declarations regarding the
undoubted prerogative powers of
the Crown to enter into
treaties".
The second point taken by the
Plaintiff in the BLACKBURN CASE
is that if Parliament should
implement the Treaty of Rome by
enacting an Act of Parliament
for the purpose, it would try to
do the impossible; in that it
will be trying to bind its
successors since it is a term of
the Treaty that once it is
signed, then Britain would be
committed irrevocably. For this
view point, the Plaintiff relied
on the principle that no
Parliament can bind its
successor, and that no Act of
Parliament is irreversible. In
support of this argument the
Plaintiff relied on the comment
of Professor Maitland on the Act
of Union between England and
Scotland. At page 332 of his
"Constitutional History of
England" he said:
“We have no irrepealable laws;
all laws may be repealed by the
ordinary legislature, even the
conditions under which the
English and Scottish Parliaments
agreed to merge themselves in
the Parliament of Great
Britain".
Responding to this argument Lord
Denning said:
"We have all been brought up to
believe that, in legal theory,
one Parliament cannot bind
another and that no Act is
irreversible. But legal theory
does not always march alongside
political reality. Take the
Statute of Westminster 1931,
which takes away the power of
Parliament to legislate for the
Dominions. Can anyone imagine
that Parliament could or would
reverse that statute? Take the
Acts which have granted
independence to the Dominions
and territories overseas. Can
anyone imagine that Parliament
could or would reverse those
laws and take their
independence? Most clearly not.
Freedom once given cannot be
taken away. Legal theory must
give way to practical politics.
It is well to remember the
remark of Viscount Sankey, L.C.
in BRITISH COAL CORP. VRS. THE
KINGS (1935) A.C. 500 at 520:
‘…. The Imperial Parliament
could, as a matter of abstract
law, repeal or disregard section
4 of the Statute of Westminster.
But that is theory and has no
relation to realities.
It seems to me that some of the
traditional concepts underlying
the British Constitution are
being imperceptibly pecked at by
the realities of modern
political considerations.
Otherwise, the suit of Blackburn
could have been dismissed on
traditional ground that the
"Queen can do no wrong" and the
"Queen cannot be sued in her own
Court”. Instead the law Lords
have started deprecating
litigation which are intended to
influence political decisions
which have nothing to do with
the Courts; that legal theory
does not always march alongside
political reality, or that
theory has no relation to
realities. More importantly, the
British courts, which operate an
unwritten Constitution, have
started talking about a
Plaintiff being confused about
the division of powers between
the Crown, Parliament and the
Courts.
To me, it is significant that
the British Court of Appeal
declined jurisdiction and
dismissed the suit on the ground
that the issue for determination
was a “political decision” and
that “such decisions have
nothing to do with these
Courts”. Even if it is argued
that our Constitution does not
recognise the doctrine of
separation of powers in its
absolute rigidity, the functions
of the different branches of
government have been
sufficiently demarcated and
consequently it can very well be
said that our Constitution does
not contemplate assumption, by
one arm or branch, functions of
state which essentially belong
to another branch.
Any blanket rejection of the
principle of non-justiciable
political question will, in my
humble view, create
jurisdictional problems in the
future. It is not a concept
developed from any particular
provision of the American
Constitution, but is a concept
which is inherent in the
doctrine of separation of
powers, which concept underpins
our Constitution also. The fact
that it was developed and so
named within American
jurisprudence should not give us
goose pimples and make us averse
to its application to our
Constitutional adjudication.
After all, what is in a name? A
rose will always smell sweet
even if it is called "ammomia".
To emphasise a point I would
like to relate the Blackburn
Case to our current situation.
What will be the attitude of
this Court if a citizen should
bring an action seeking a
declaration that the recent
decision of His Excellency the
President for Ghana to join the
Highly Indebted Poor Countries
(HIPC) is against both the
spirit and letter of the
Constitution on the ground that
it is not in the interest of
Ghanaians "in whose name and for
whose welfare," in the words of
Article 1(1) of the
Constitution, "the powers of
government are to be exercised";
and arguing in the process that
the HIPC initiative will not
lead to a realisation of the
economic objectives anticipated
under Article 35 of the
Constitution of Ghana.
I asked this question because
under Article 75 it is the
President's prerogative to enter
into treaties, agreements, or
conventions subject to
ratification by Parliament
through an Act of Parliament, or
by a resolution supported by the
vote of more than one-half of
all Members of Parliament. And
the HIPC has been adopted in the
BUDGET Statement which has been
approved by Parliament. What
will be the jurisprudential
considerations which will
influence our determination
whether we are clothe with
jurisdiction to determine such
matters.
Should we decline jurisdiction
what will be the philosophical
or the jurisprudential
justification for such a
decision? And should we decide
we have jurisdiction to
entertain such an action shall
we not be interfering with the
functions of both the Executive
and Parliament? Or shall we not
appear to be pronouncing on
matters of policy, or
substituting our own notions of
what is wise and politic for
that of the Executive and
Parliament. I do not think the
judicial power we enjoy under
the Constitution authorises the
Courts to sit in judgment on the
wisdom of what Parliament and
the Executive branches do.
Fortunately, the American
principle of non-justiciable
political question can be
invoked to assist us avoid such
a temptation. The fact that it
is American jurists who have
identified the concept of
non-justiciable political
question as inherent in the
doctrine of separation of powers
and named it as such does not
make the principle a virogene to
our Constitution, and for which
reason, we must avoid its
application in our
constitutional adjudication.
There are, however, other
principles of American
jurisprudence which have been
evolved as a result of specific
provisions of their Constitution
but are finding acceptance in
our Constitutional
adjudications. It is rather some
of these principles which have
found favour with us. Some of
these concepts are MOOTNESS and
RIPENESS of a case.
(b) MOOTNESS
As has been pointed out earlier
in this opinion, the doctrine of
mootness is an American concept
derived from the "case" and
“controversy" requirement of
Article III (2) of the U.S.
Constitution. This article is
peculiar to the United States of
America and it limits the
jurisdiction of the federal
Courts to "cases' and
“controversies". The essence of
this doctrine is that although a
case might present all the
attributes for litigation, it
could at a certain point lose
some of the attributes of
justiciability and become moot.
This is because of the American
rule that an actual controversy
must exist at all stages, both
the trial and appellate
considerations, and not simply
at the date of the commencement
of the action. According to this
principle an action can become
moot due to a change in the law,
or in the status of the parties;
or it could become moot by some
actions of one of the parties to
the litigation which tends to
terminate or remove the
controversy.
In his book, CONSTITUTIONAL LAW
(12th Ed.), Prof. Gerald Gunther
of Stanford University had this
to say at page 1628"
"The mootness cases involve
litigants who clearly had
standing to sue at the outset of
the litigation. The problems
arise from events occurring
after the lawsuit has gotten
under way - changes in the facts
or in the law - which deprive
the litigant the necessary stake
in the outcome. The mootness
doctrine requires that 'an
actual controversy must be
extant at all stages of review,
not merely at the time the
complaint is filed'. The modern
Court has repeatedly insisted
that the mootness doctrine is an
aspect of the Article III case
or controversy requirement".
Although the mootness doctrine
has a Constitutional basis, yet
the U.S. Courts now tend to
relax their application of the
mootness barrier to adjudication
or the assumption of
jurisdiction, and have created
several exceptions. The real
legal question is whether the
mootness doctrine can be said to
have been anticipated under
Article 2 of the Constitution by
the framers to enable us adopt
this concept which is based
solely on a specific
constitutional requirement of
article III(2) of the American
Constitution; or put in another
way, does Article 2 require that
there must be a continuing
breach before the Courts can act
under the said article; or this
Court must, once a breach of the
Constitution is brought to its
notice, even if the alleged
conduct is terminated whether
before or after a writ is issued
under Article 2, we still have
the bounden duty to make a
declaration to that effect, if
only to preserve the sanctity of
the Constitution. We cannot
apply the doctrine to the
instant case unless we answer
these questions. It is therefore
necessary to examine the
provisions or Article 2 in some
detail. Article 2 provides:
"(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".
For example, is it a necessary
requirement under article
2(1)(a) that there should be a
case and controversy in respect
of an enactment considered to be
inconsistent with a provision of
the Constitution before an
action can be brought for it to
be so declared? I do not think
so because an enactment which
falls into disuse can be a
subject of an action under
article 2(1)(a) due to its
potential to be used in the
future. Even if we rejected such
a writ it would be on ground
that it presented a hypothetical
question. And if we look at the
provisions of article 2(1)(b)
all that is required to ground
an action in this Court is an
"act or omission of any person"
which is inconsistent with or is
in contravention of any
provision of the Constitution.
The "act" or the "omission" need
not be a continuing one before
an action can be brought. Indeed
even a threat to breach the
Constitution is enough.
In the case of YEBOAH VRS. J. H.
MENSAH (1998-99) SCGLR 492, a
case in which I dissented, I
said at page 517-518 thus:
“[I]t should be possible for any
person who fears a threatened
breach of the fundamental law to
invoke our enforcement
jurisdiction in a sort of QUIA
TIMET action to avert the
intended or threatened
infringement of the
Constitution. This is because
our enforcement jurisdiction is
premised upon the consideration
that, to quote from the
Memorandum on the 1969
Constitution, 'any person who
FEARS a threatened infringement
or ALLEGES an infringement of
any provision of the
Constitution' should be able to
seek redress in this Court ...
so that if the act or conduct of
any person threatens the breach
of the Constitution, it is the
duty of this Court to
immediately intervene ... with
the sole objective of preventing
such unconstitutional conduct”.
And my brother Acquah, J.S.C. in
his dissenting opinion in NPP
VRS. NDC & ORS. (already cited)
said:
“In other words, the plaintiff
sees from the activities of the
1st and 3rd defendants, a
threatened breach of the
Constitution, and therefore
comes to Court to prevent them
from breaching the law. On this,
the principle is too trite to
require an authority in support
that where one discovers from
the acts and omissions of others
that same constitute a threat to
a breach of the Constitution and
the law, that person has right
of access to the Courts to
forestall the said threat. If
the said acts and omissions are
against a provision of the
Constitution, then, as Azu
Crabbe J.A as he then was, said
in Gbedemah vrs.
Awoonor-Williams (1969) 2 G & G
438 of 440, it becomes 'the
inescapable duty of the Supreme
Court to suppress it by
enforcing the Constitution'."
In YEBOAH VRS. MENSAH (Supra)
where I had the occasion to
consider whether a period of
limitation, or a plea of laches
can apply when a breach of any
provision of the Constitution is
alleged, I had this to say at
page 524-525:
“The answer should be obvious.
The Supreme Court has exclusive
jurisdiction to enforce the
Constitution against any person
whose act or conduct is an
infringement of any provision of
the Constitution, and the fact
that the jurisdiction was not
invoked for several years should
make no difference to the
jurisdiction. And any limitation
on a citizen's constitutional
right to enforce any provision
of the Constitution cannot be
permitted unless expressly
stated by the Constitution
itself."
The enforcement of the
fundamental law is not the same
as enforcement of personal
rights or private litigation.
To read the doctrine of mootness
into Article 2 of the
Constitution will be a dangerous
step to take. A breach of the
Constitution cannot be
countenanced under any
circumstances; nor can any plea
of extenuating circumstances be
allowed to prevail. A
Constitution cannot be operated
and defended by such
considerations, lest we put
expediency above
constitutionalism. The mootness
can easily expose the
Constitution to frequent
breaches resulting in subsequent
loss of sanctity. A Constitution
must be a sacrosanct document
and must remain so in all
situations or circumstances. And
it cannot remain inviolate as a
sacred document if certain
alleged infringements are denied
judicial attention because there
are extenuating or special
circumstances justifying such a
breach. There cannot be any plea
of justification when a breach
of the Constitution is alleged;
otherwise this Court could be
accused of casting an indulgent
judicial eye on certain
breaches, by certain persons, of
the fundamental law.
This is the sort of approach
which, that jewel that once
adorned the judicial crown of
this country, Apaloo, C.J., had
in mind when in the case of
KWAKYE VRS. ATTORNEY-GENERAL
(1981) GLR 994 at 958 said:
"In the exercise of the
interpretative jurisdiction of
this Court, it is obvious we
should go beyond statutory
interpretation since we are
concerned with the most
fundamental issues of our
jurisdiction. We must have
regard to the terms of our
particular Constitution where
specific reference points are
largely unique to our national
history. In this area, more than
other, judicial pronouncements
in other jurisdictions on the
particular facts of their
experience are not likely to be
of much assistance; the range of
judicial wisdom embodied in them
will, of course, influence our
judicial reflections. I think
originality is required of us in
the exercise of our original
jurisdiction if we are to attend
to the letter and spirit of the
Constitution as a basic law of
our land. That originality must,
of course, be judicial and must
not do damage to the plain and
obvious meaning of the words
used nor is it the province of
this Court to be astute to find
some reason or other for
depriving the constitutional
provision of an effect clearly
intended".
If this Court had, in the case
of J. H. MENSAH VRS.
ATTORNEY-GENERAL (already
cited), considered the language
of Article 2 of the Ghana
Constitution as against that of
Article III of the American
Constitution it would have come
to the conclusion that the
American doctrine of mootness
has its origin in their Article
III and inapplicable to Article
2 of our Constitution.
I must admit that in the case of
BILSON VRS. ATTORNEY-GENERAL
Suit No. 12/93 (unreported)
dated 12th December, 1994, I
made certain statements which
could be interpreted to mean an
application of the doctrine of
ripeness to that case.
This is what I said:
"Although it may be right to say
that there is no law which
inhibits the jurisdiction of
this court in matters involving
the interpretation of the
Constitution, 1992 I think it
will be worthwhile applying the
concept of judicial
self-governance or
self-restraint in such matters.
The judicial authority of which
this court is the beneficiary or
endowed with is essentially a
jurisdiction to deal with real
or substantial disputes which
affect the legal rights or
obligations of parties who
appear before us, and whose
interests are adverse to each
other. These competing interest
will necessarily call for
specific reliefs through
conclusive and certain judicial
decree or decrees. In these
circumstances the matter could
be said to be justiciable and
not otherwise. The principle of
justiciability precludes us from
giving advisory opinions based
on hypothetical facts which are
not part of an existing
controversy."
I have had second thought about
the above dictum and I am
prepared to abandon my views.
However, I must say I would have
reached the same conclusions on
some other ground, that the
plaintiff's case be dismissed;
possibly because it discloses no
cause of action.
THE PRESIDENTIAL OFFICE ACT,
1993 (ACT 463)
AND
ARTICLE 70(1)(e) OF THE
CONSTITUTION
It needs no reminder that this
litigation has been sparked off
by certain appointments alleged
to have been made by the
President, His Excellency John
Agyekum Kufuor, to the Office of
the President as established
under the Presidential Office
Act, 1993 (Act 463). Those who
can work in this office as
Presidential Staffers are
specified in Section 3 of the
said Act. And those who so
qualify under the said Section 3
are categorized into two groups;
firstly, persons appointed under
the Act; and secondly, persons
who are public officers and have
either been seconded or
transferred to the Presidential
Office. The Act is specific that
it is only one of the persons
appointed under the Act, or who
belong to the first category of
persons that can be appointed by
the President to head the
office. For avoidance of doubt I
will quote Section 3 in full. It
provides:
"3(1) The Presidential Office
shall be made up of—
(a) persons appointed as
Presidential Staff under this
Act one of whom shall be
appointed as head of the Office;
(b) such other public officers
as may be seconded or
transferred to the office".
From the above provision it is
patently clear that only persons
who belong to the first category
and are appointed under the Act
that can be appointed by the
President to head the
Presidential Office. Therefore,
the argument hardly need be made
that those persons who belong to
category two and have either
been seconded or transferred
from the public service cannot
be appointed to head the
Presidential Office; that is to
say public office holders,
seconded or transferred to the
Presidential Office. Not even a
Minister of State, not having
been appointed under the
Presidential Office Act, 1993
(Act 463), can be appointed to
head the office.
In respect of those who are
appointed under the Presidential
Office Act, one of whom is
eligible to head the said
office, the procedure for such
appointment is provided for in
Section 4 of the Presidential
Office Act. This is what the Act
says in Section 4 (1):
"The President shall, acting in
consultation with the Council of
State appoint such persons as he
considers necessary to hold
office as Presidential Staff in
the office".
It is therefore a requirement of
the Presidential Office Act,
1993 (Act 463), which Act
certainly cannot be held to be
inconsistent with any provision
of the Constitution, that any
appointment under the Act should
be made in consultation with the
Council of State. Article 70 of
the Constitution which regulates
Presidential appointments to
certain para-statal
organisations provides in clause
(1)(e) as follows:
“The President shall, acting in
consultation with the Council of
State, appoint—
X
X
X
X
(e) the holders of such other
offices as may be considered by
this Constitution or by any
other law not inconsistent with
this Constitution".
Unless it is the contention of
the Learned Attorney-General
that the Presidential Office Act
is inconsistent with the
Constitution, then the
requirement of the Act that
appointments made under it must
be done in consultation with the
Council of State has to be
complied with in order not to
infringe Article 70 of the
Constitution. That the previous
Council of State ceased to exist
is clear from the provisions of
Article 89(1)(5) of the
Constitution which provides that
the term of office of a member
is co-terminous with that of a
President.
So that if there is a general
duty to consult the Council of
State before an appointment, the
particular question arises
whether in the circumstances
averred (the non-establishment
of the Council of State), that
general duty to consult was
excluded by the fact that the
Presidency must be seen to be
working and not come to a
standstill. I do not think so
because it would amount to
putting expediency above
constitutionalism. This is
because just as a Tribunal may
lack jurisdiction if it fails to
observe certain essential
preliminaries to the assumption
of jurisdiction, so also if the
exercise of an endowed or vested
authority or power is dependent
on the existence of a state of
facts, or on the occurrence of
an event then, its exercise,
without satisfying the
conditions so specified, would
be unlawful and illegal. And the
violation of such a
constitutional requirement
cannot be excused under any
circumstances whatsoever.
The instant case can be
distinguished from that of J. H.
MENSAH VRS. ATTORNEY-GENERAL
(already cited) because the
latter involved only the
interpretation of certain
provisions of the Constitution
rather than an alleged conduct
of a person being an
infringement of the
Constitution. When the positive
conduct of a person, be it an
act or an omission, is said, to
be in breach of the
Constitution, I cannot
countenance any submission which
will mean giving judicial
blessing to the alleged
infringement because there are
good reasons or reasonable
grounds for the person's
conduct. Our oath to defend the
Constitution neither permits nor
gives us the discretion not to
defend the Constitution when we
feel there are extenuating
circumstances for the alleged
breach.
The next point I would like to
deal with is whether a Minister
of State, being a public office
holder, can be appointed to head
the Presidential Office? I do
not think so for the person who
is eligible to be appointed to
head the Presidential Office
must come from among "persons
appointed ... under this Act".
It is from this group of persons
that "one ... shall be appointed
as head of the office". There is
therefore also the issue whether
the 3rd Defendant, Mr. Jake
Obetsebi-Lamptey, who has been
appointed under the Constitution
as Minister of State for
Presidential Affairs, can hold
the position of Chief of Staff
in the Presidential Office;
unless, of course, we are told
that the Chief of Staff is not
the head of the office. These
are some of the important
issues, with profound
implications for our
constitutional law, which will
have to be resolved at a full
trial and should militate
against the summary dismissal of
this case.
NON-DISCLOSURE OF REASONABLE
CAUSE OF ACTION BY PLAINTIFF'S
WRIT AND STATEMENT OF CASE
This should bring me to a
discussing of what we mean and
must look for in our
jurisprudence when we have an
application that a writ and
statement of claim be dismissed
for disclosing no reasonable
cause of action. I do not intend
to go into lengthy discourse on
this issue. But I must say that
we cannot appreciate the nature
of such an application unless we
have a clear understanding of
what a cause of action means
within our jurisdiction. Simply,
put, it means the entire set or
combination of facts that gives
rise to an enforceable claim.
SEE SPOKESMAN (PUBLICATIONS)
LTD. VRS. ATTORNEY-GENERAL
(1974) 1 GLR 88 at page 91 and
92, C.A. (Full Bench).
And in the case of LETANG VRS.
COOPER (1965) 1 Q.B. 232 Lord
Diplock offered a very
beneficial clarification of the
term "cause of action". His
Lordship said at pages 242-243
as follows. "A cause of action
is simply a factual situation
the existence of which entitles
one person to obtain from the
Court a remedy against another
person". Under what
circumstances can a pleading be
struck out for disclosing no
cause of action?
In the case of GHANA MUSLIMS
REPRESENTATIVE COUNCIL VRS.
SALIFU (1975) 2 GLR 246, C.A.
The respondent brought an
application to strike out the
applicant's pleading was made
under ORDER 25 R.4 of the HIGH
COURT (CIVIL PROCEDURE) RULES,
1954, (which this Court can
apply by virtue of Article
129(4) of the Constitution), and
under the inherent jurisdiction
of the Court. It was pointed out
that the difference in practice
under the rule and under the
inherent jurisdiction of the
Court is well established. See
the case of LAWRENCE VRS. LORD
NORREYS (1890) 15 Appeal Case
210 at p. 219, where Lord
Herschell described the practice
under the inherent jurisdiction
of the Court. This practice,
which is different, was
explained by Danckwerts, L.J. in
WENLOK VRS. MOLONEY (1965) 2 All
E.R. 871.
However, speaking about the
exercise of the power under the
rule, Azu Crabbe, C.J. said in
GHANA MUSLIMS REPRESENTATIVE
COUNCIL VRS. SALIFU (SUPRA) at
page 261:
"It is clearly a matter in the
judicial discretion of the
judge, and a pleading will only
be struck out under the rule in
a plain and obvious case, where
it is apparent that even if the
facts are proved, the plaintiff
is not entitled to the relief he
seeks".
In the same case His Lordship
said at page 264:
"This Court will not permit a
plaintiff to be 'driven from the
judgment seat', without
considering his right to be
heard, 'excepting in cases where
the cause of action is obviously
and almost incontestably bad';
per Fletcher Moulton L.J. in
DYSON VRS. ATTORNEY-GENERAL
(1911) I K.B. 410 at page 419,
C.A. And again, as the Lord
Justice said later in the same
case at page 420: 'an order of
this kind ought not to be made
where there is any reasonable
ground for argument as to the
maintainability of the action'."
The headnote to the DYSON case
is specific about the fact that
Order 25 r.4 which enables the
Court or judge to strike out any
pleading in the ground that it
discloses no cause of action,
was never intended to apply to
any pleading which raises a
question of general importance,
or serious questions of law.
This was a case in which
COZENS-HARDY M.R. found himself
faced with a situation where
important questions of law,
raised in the plaintiff's
pleadings were sought to be
disposed of summarily by
recourse to an application to
strike out the pleadings under
Order 25. r.4. He recorded his
reaction at page 414 thus:
"It might be sufficient to say
that Order xxv.., r.4 ... ought
not to be applied to an action
involving serious investigation
of ancient law and questions of
general importance, and on this
ground alone I think the
plaintiff is entitled to have
the action proceed to end in the
usual way.."
The question then is should an
alleged infringement of the
fundamental law in circumstances
indicated in this opinion be
given a judicial hush through a
summary dismissal of the
plaintiff's case? I do not think
so unless, of course, it is very
clear that the action is not
maintainable on some good legal
ground, or that it would be
improper for this Court to
exercise its jurisdiction in the
matter.
In the case of the 5th Defendant
Lt. Gen. Joshua Hamidu, for
example, a case can be made that
the writ and statement of case
disclose no cause of action
against him because his
appointment is to be made under
the SECURITY AND INTELLIGENCE
AGENCIES ACT, 1996 (ACT 526).
This Act does not require any
consultation with the Council of
State. The position of the 5th
Defendant can conveniently be
brought under Section 18(1) of
Act 526 which requires the
advice of the National Security
Council. It provides:
"There shall be appointed by the
President in accordance with the
advice of the Council given in
consultation with the Public
Service Commission an officer to
be designated as National
Security Co-Ordinator referred
to in this Act as 'the
Co-Ordinator'."
I take it that the presidency
can only be blamed for a case of
misnomer as the 5th Defendant is
currently being referred to as
"National Security Adviser"
instead of "National Security
Co-Ordinator". I am therefore of
the view that the Defendants'
application to summarily dismiss
this case can only succeed in
respect of the 5th Defendant,
Lt. Gen. Hamidu. Save the above
I will dismiss the application.
ADJABENG, J.S.C.
I agree with my Brothers, Ampiah
and Kpegah, JJ.S.C., that the
application must be dismissed. I
have had the privilege of
reading the opinion of my
Brother, Kpegah, J.S.C., just
read and I agree with his
reasoning. I do not think that
it is fair and or advisable that
this important constitutional
matter should be dismissed
summarily. This is so,
especially, when this
application was filed at a time
when the plaintiff/respondent
did not have an opportunity to
react to the applicants'
statement of case in response to
the one filed by the respondent,
as this application was filed by
the defendants/applicants herein
the same day their statement of
case was filed. And, also, both
sides were yet to file, at the
time, a memorandum of agreed
issued to be determined in the
plaintiffs' substantive action.
The defendants/applicants'
application or motion prays for
"an order of this Court to set
aside the plaintiff's writ and
statement of case or to strike
out the action by the plaintiff
on the grounds that:
(1) this Court lacks
jurisdiction to entertain the
Plaintiff's action against the
Defendants herein;
(2) that no cause of action is
disclosed by Plaintiff's writ
and statement of case;
(3) that the questions raised in
the Plaintiff s action for
determination are moot;.."
In a rather short affidavit in
support of the application, it
is deposed on behalf of the
defendants/applicants as
follows:
“2. I have the authority of the
Attorney-General and other
Defendants to swear to this
affidavit on their behalf.
3. I am informed by Counsel and
verily believe the same to be
true that this Court lacks the
jurisdiction to entertain the
Plaintiff's action against the
Defendants on the grounds that:
(1) the Plaintiff's Writ and
Statement of Case disclose no
cause of action based on Article
2(1) of the Constitution;
(2) that the questions raised in
the Plaintiffs' action for
determination are moot."
The plaintiff/respondent filed
an affidavit in opposition to
the application.
In paragraphs 3 to 11 of the
affidavit in opposition, the
respondent deposed as follows:
“3. I deny paragraph 3 of the
Defendants/Applicants' affidavit
in support of their application.
4. The Plaintiff/Respondent says
that the President of Ghana is
amenable to the jurisdiction of
this Court in the exercise of
the executive authority
conferred on him by the
Constitution.
5. The Plaintiff/Respondent says
further that the purported
appointments of the 3rd, 4th and
5th Defendants/Applicants as
Chief of Staff, Presidential
Adviser on Public Affairs, and
National Security Adviser
respectively by the 1st
Defendant/Applicant without
consultation with the Council of
State cannot be said to be an
exercise of the executive
authority conferred on him by
the Constitution.
6. The Plaintiff/Respondent says
in addition that a declaration
or a declaration in the nature
of quo warranto can be made by
the Court against the 1st
Defendant/Applicant in this
action in addition to an order
of injunction, or mandamus
pursuant to Article 2 of the
Constitution.
7. The Plaintiff/Respondent
contends that there are triable
issues between the parties in
this action.
8. The Plaintiff/Respondent
contends further that the mere
subsequent approval by
Parliament, and appointment of
the 3rd and 4th
Defendants/Applicants as
Ministers of State on 6th
February, 2001 does not render
this action moot.
9. The Plaintiff/Respondent says
that the 2nd Defendant/Applicant
was sued only in a nominal
capacity.
10. The Plaintiff/Respondent
says further that the fact that
there was no substantive person
appointed as the
Attorney-General at the time the
writ and statement of case were
filed did not mean that no
action could be commenced
against the State in the name of
the Attorney General.
11. The Plaintiff/Respondent
maintained that the application
to set aside the writ and
statement of case has no merit
whatsoever."
Even though none of the parties
filed a statement of case in
support of his case, they were
allowed by the Court to offer
oral arguments in respect of
their respective cases.
The Honourable Attorney-General,
Nana Akufo-Addo, on behalf of
the defendants/applicants moved
the motion to set aside the
plaintiff's writ and statement
of case. He first submitted that
the Court lacked jurisdiction to
entertain the action. He argued
that the 1st Defendant, as the
President of Ghana, cannot be
questioned in respect of the
exercise of his executive power
or authority. He is, therefore,
not amenable to the Court's
jurisdiction. The Honourable
Attorney-General cited in
support the case of NPP vrs. The
President of Ghana, J. J.
Rawlings, unreported, Suit No.
15/93, dated 3rd May, 1994. He
submitted that this decision in
which this Court ruled that the
President was not amenable to
the Court's jurisdiction is
binding on the Court. The
Honourable Attorney-General also
referred to Bimpong-Buta's Law
of Interpretation in Ghana, page
345. He submitted, therefore,
that the plaintiff’s writ which
brings the President into the
suit as a defendant is
incompetent. The Court,
therefore, has no power to
entertain the action against the
President.
Secondly, it was submitted by
the Honourable Attorney-General
that at the time this action was
filed, there was no
Attorney-General at post as he
had not then been appointed. And
as such it was wrong to make the
Attorney-General the 2nd
defendant in the action. He
relied on J. H. Mensah vrs.
Attorney-General [1996-97] SCGLR
320.
In respect of the 3rd and 4th
defendants, it was submitted by
the Attorney-General that at the
time the writ was filed, these
defendants had been nominated by
the President as Ministers of
State, and had since been so
approved, and sworn in.
Consequently, the questions
raised in respect of them had
become moot.
For the above reasons, the
Honourable Attorney-General
prayed this Court to dismiss the
plaintiff’s action.
In reply, the
plaintiff/respondent invited the
Court to dismiss the
application. He argued that the
case of NPP vrs. The President
(J. J. Rawlings), cited by the
Honourable Attorney-General in
support of his contention that
the President is not amenable to
the jurisdiction of the Court,
did not in fact decide that the
President cannot be sued in all
cases. In his view, the
President can be sued under
Article 2 of the 1992
Constitution, and also in
respect of prerogative writs.
The plaintiff/respondent cited
in support the case of Bilson
vrs. Apaloo[1981] GLR.
The plaintiff/respondent also
submitted that the President has
violated Article 70(1)(e) of the
Constitution, and also Section
2, 3 and 4 of the Presidential
Office Act, 1993 (Act 463).
He submitted that the J. H.
Mensah case (supra) did not
decide that the office of the
Attorney-General cannot be sued
when there is no substantive
Attorney-General. In his view,
the Attorney-General is a
nominal party in the present
action.
The plaintiff/respondent finally
submitted that the action
against the 3rd and 4th
defendants was not moot.
He therefore, prayed that the
motion to set aside the writ and
statement of case should be
dismissed and the matter gone
into on its merits.
Article 70(1)(e) of our
Constitution provides as
follows:
"70(1) The President shall,
acting in consultation with the
Council of State, appoint-
(e) the holders of such offices
as may be prescribed by this
Constitution or by ay other law
not inconsistent with this
Constitution."
And sections 2, 3 and 4 of the
Presidential Office Act, 1993
(Act 463) also provide as
follows:
"2. The functions of the Office
is to provide the President and
the Vice-President such services
as they may require for the
efficient and effective
implementation of the executive
functions of the President and
Vice-President under the
Constitution and any other law.
3. (1) The Presidential Office
shall be made up of—
(a) persons appointed as
presidential staff under this
Act one of whom shall be
appointed as head of the office;
and
(b) such other public officers
as may be seconded or
transferred to the office.
(2) Subject to section 2 members
of the office shall be assigned
such duties as the President may
determine.
(4) (1) The President shall,
acting in consultation with the
Council of State appoint such
persons as he considers
necessary to hold office as
presidential staff in the
office.
(2) The number of persons that
may be appointed under
sub-section (1) of this section
and the grade of the officers
shall be determined by the
President."
The complaint of the
plaintiff/respondent, as
disclosed in his writ, statement
of case, and in his arguments
before us in this application,
is simply that His Excellency,
the President, in appointing the
3rd, 4th and 5th
defendants/applicants herein
violated the Constitution,
particularly article 70(1)(e)
thereof, and also sections 2, 3
and 4 of the Presidential Office
Act, 1993, all quoted above, by
not consulting the Council of
State as he is required to do by
the Excellency indeed violated
the Constitution as alleged.
Attempting to answer this
question will be going into the
merits of the matter.
The Attorney-General says that
we cannot go into the matter
because we have no jurisdiction
to do so. This is because
according to him, His Excellency
the President cannot be sued.
Secondly, that the plaintiff's
action has not disclosed any
cause of action. And, thirdly,
that the questions raised are
moot.
In my humble opinion, the last
two grounds ought to be rejected
at once as being without merit.
An issue involving the violation
of the Constitution cannot, in
my view, be said to be an issue
disclosing no cause of action,
or that it is a question which
is moot.
The argument that the President
cannot be sued as he is not
amenable to the jurisdiction of
this Court, however, needs
scrutiny. Article 57(4) which
gives to the President immunity
from liability for proceedings
in any Court for the performance
of his functions, while in
office, provides as follows:-
"57(4) Without prejudice to the
provisions of article 2 of this
Constitution, and subject to the
operation of the prerogative
writs, the President shall not,
while in office, be liable to
proceedings in any Court for the
performance of his functions, or
for any act done or omitted to
be done, or purported to be
done, or purported to have been
done, or purporting to be done
in the performance of his
functions, under this
Constitution or any other
law."(emphasis mine).
Article 2 of the Constitution
also provides as follows:
"2 (1) A person who alleges
that—
(a) an enactment or anything
contained in or done under the
authority of that or any other
enactment; or
(b) any act or omission of any
person is inconsistent with, or
is in contravention of a
provision of this Constitution,
may bring an action in the
Supreme Court for a declaration
to that effect.
(2) The Supreme Court shall,
for the purposes of a
declaration under clause (1) of
this article, make such orders
and give such directions as it
may consider appropriate for
giving effect, or enabling
effect to be given, to the
declaration so made.
(3) Any person or group of
persons to whom an order or
direction is addressed under
clause (2) of this Article by
the Supreme Court, shall duly
obey and carry out the terms of
the order or direction.
(4) Failure to obey or carry out
the terms of an order of
direction made or given under
clause (2) of this article
constitutes a high crime under
this Constitution and shall, in
the case of the President or
Vice-President, constitute a
ground for removal from office
under this Constitution.
(5) A person convicted of a high
crime under clause (4) of this
article shall—
(a) be liable to imprisonment
not exceeding ten years without
the option of a fine; and
(b) not be eligible for
election, or for appointment, to
any public office for ten years
beginning with the date of the
expiration of the term of
imprisonment."(emphasis mine).
It is very clear from the
above-quoted articles of the
Constitution, articles 57(4) and
2(1-5), that the President is
not immune to proceedings in
Court in respect of allegations
involving the contravention or
violation of the Constitution.
Any decision to the contrary
must, therefore, be wrong. The
Constitution indeed crystal
clear on the point.
It must be noted that our 1992
Constitution has firmly
established the rule of law in
this country. The Constitution
makes it clear that everybody in
this country, including His
Excellency the President, is
under the Constitution and the
law. This clearly is what we
mean by the rule of law. It is
heartening that governance by
the rule of law is one of the
cornerstones of the policies of
the present Government. And I
have no doubt that adherence to
this policy will indeed bring
about real democracy in this
country and therefore real
freedom, justice and prosperity.
In conclusion, I must say that
an allegation involving the
violation of our Constitution is
a very serious matter which must
be dealt with on its merits.
Article 2 of the Constitution
shows clearly how seriously such
a matter is viewed. It is
therefore not a matter which
should be summarily dismissed on
a technical ground.
It is clear from what I have
said earlier in this opinion
that it would be wrong to grant
the application to dismiss the
plaintiff's writ at this stage.
I think that the matter should
be heard on its merits. I would
refuse the application of the
defendants/applicants. It is
accordingly dismissed.
COUNSEL
Mr. Martin Alamisi Amidu,
Plaintiff/Respondent in person.
Nana Akufo-Addo,
Attorney-General, with him Mr.
S. Y. Anim, Mrs. Quansah,
Mr. Kuwornu and Mrs. Owusu-Adjei
for the Defendants/Applicants.
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