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Constitutional law - 1992
Constitution - Article 93 (2)
- Law Review Commissioner Act
562/1998 - Whether or not the
power granted the Commissioner
to, ‘make adaptations of and
amendments to Acts does not
include the power to make
alterations of substance, and
therefore the omission of
marital consent as a defence for
the use of force in section 42
(g) of the Criminal Offences
Act, 1960, (Act 29) is null,
void - Whether or not the
legislative action taken by
Parliament was clearly outside
the legislature’s Constitutional
power
HEADNOTES
.
Following the adoption of the
Constitution of Ghana in 1993,
it was considered necessary to
clean the statute books of
obsolete and unwanted pieces of
legislation and to among others,
rationalize the titling of
legislation in order to bring
them in line with the new
constitutional democracy. The
Statute Law Revision
Commissioner (SLRC) (hereafter
simply referred to as
Commissioner) was given very far
reaching powers to rewrite all
the laws in plain English, to
bring the language in line with
current usage and to be in
conformity with the Constitution
Ten years after the initiation
of the project, seven revised
volumes of the ‘Laws of Ghana
(Revised Edition)’ were put
before Parliament and adopted en
masse or en bloc on 14th
December 2006. They are however
deemed to have come into force
on 31st December 2004
Since the adoption of the new
volumes, the plaintiff herein
has some misgivings about
certain changes in the resultant
compilations. The plaintiff
consequently issued a writ on 9th
January 2015 invoking this
court’s original jurisdiction
for the redress of his concerns
HELD
Consequently, having juxtaposed
the reliefs sought by the
plaintiff with the powers
granted the Commissioner under
Act 562 of 1998 and having
examined the process followed by
Parliament in adopting the
outcome of the whole exercise,
we have come to the conclusion
that the Commissioner performed
his mandate according to the
powers granted him. The
resultant product, same being
the seven volumes of the Laws of
Ghana (Revised Edition) having
been approved and adopted by
Parliament are now the product
or handiworks of Parliament, to
all intents and purposes. The
Plaintiff is therefore not
entitled to relief one.For the
same reasons as for relief (i),
reliefs (ii), (iii) and (iv)
also fail as the actions of the
Commissioner pursuant to the
wide powers conferred on him by
sections 2, 3, 4 and 8 of Act
562/1998 were duly exercised in
accordance with the law
culminating in the adoption of
the resultant outcome by
Parliament on 14th
December 2006.
STATUTES REFERRED TO IN JUDGMENT
Criminal Offences Act, 1960,
(Act 29
Interpretation Act, 2009, (Act
792),
Sexual Offences (Amendment) Act
1976
CASES REFERRED TO IN JUDGMENT
Ghana Bar Association v
Attorney-General, (1994-95) Part
2 GBR 290
Kuenyehia v Archer, [1993-94] 2
GLR 525,SC
Trop v Dulless 356 US 86 (1958)
at 120
Ghana Bar Association vs
Attorney General [2003-2004]
SCGLR, 250
Ekene Anozie v The Republic,
Criminal Appeal No. J3/6/2014,
13th May 2015 SC,
Republic vs Augustine Abu, No
Acc 15/2010 delivered on
23/12/2009 (Unreported)
Regina and R. (H.L) 1992 A.C.
599
Edusei vs Attorney General
(1996-97) SCGLR 1
BOOKS REFERRED TO IN JUDGMENT
The Oxford Modern English
Dictionary edited by Julia
Swannell
The Oxford Modern English
Dictionary, Edited by Julia
Swannell (1995 Reprint)
Black’s Law Dictionary, Eight
Edition, by Bryan A. Garner
DELIVERING THE LEADING JUDGMENT
AKAMBA,
JSC:
COUNSEL
MR. MARTIN KPEBU ESQ. FOR
HIMSELF.
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
VICTORIA ADORTEY (ASSISTANT
ATTORNEY) FOR THE DEFENDANT
--------------------------------------------------------------------------------------------------------------------------------------------
JUDGMENT
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AKAMBA, JSC:
BACKGROUND
Following the adoption of the
Constitution of Ghana in 1993,
it was considered necessary to
clean the statute books of
obsolete and unwanted pieces of
legislation and to among others,
rationalize the titling of
legislation in order to bring
them in line with the new
constitutional democracy.
This was the justification for
the bill by which the Statute
Law Revision Project (SLRP) was
passed in 1998. (See Vol 20 No
23 Parliamentary Debates of 18th
December 1998). The Statute Law
Revision Commissioner (SLRC)
(hereafter simply referred to as
Commissioner) was given very far
reaching powers to rewrite all
the laws in plain English, to
bring the language in line with
current usage and to be in
conformity with the
Constitution. The full extent of
the powers given the
Commissioner would be discussed
in this judgment. Ten years
after the initiation of the
project, seven revised volumes
of the ‘Laws of Ghana (Revised
Edition)’ were put before
Parliament and adopted en masse
or en bloc on 14th
December 2006. They are however
deemed to have come into force
on 31st December 2004
as indicated in Volume 1 of the
Laws of Ghana (Revised Edition).
Since the
adoption of the new volumes, the
plaintiff herein has some
misgivings about certain changes
in the resultant compilations.
The plaintiff consequently
issued a writ on 9th
January 2015 invoking this
court’s original jurisdiction
for the redress of his concerns
as per the reliefs sought.
The reliefs sought by the plaintiff
are as follows:
(i)
“A declaration that the
powers granted the Law Review
Commissioner under section 2 of
the Laws of Ghana (Revised
Edition) Act, 1998 (Act 562) to
“make adaptations of and
amendments to Acts in order to
bring those Acts into conformity
with the Constitution of Ghana,
1992” does not include the power
to make alterations of
substance, and therefore the
omission of marital consent as a
defence for the use of force in
section 42 (g) of the Criminal
Offences Act, 1960, (Act 29) is
null, void and of no effect for
being contrary to article 93 (2)
of the Constitution, 1992.
(ii)
A declaration that the
Constitution (1992) vests
legislative power in Parliament
and the amendment made to
section 42 (g) of Act 29 is
null, void and of no effect as
it usurps the powers that the
1992 Constitution expressly,
exclusively and specifically
conferred to Parliament under 93
(2) of the 1992 Constitution.
(iii)
A declaration that the
statement by the Statute Law
Revision Commissioner in the
Laws of Ghana Revised Volume 3
page 111-1731 [Issue 1] footnote
16 that the exception under
Section 42 (g) was omitted for
being unconstitutional amounts
to a usurpation of the judicial
power which is solely vested in
the Judiciary as provided by
Article 125 (3) of the
Constitution of Ghana, 1992 and
is therefore null, void and of
no effect.
(iv)
A declaration that section
42 (g) of Act 29 can be amended
only in accordance with the
express provisions of Section 3
(2) (a) and (b) of the Laws of
Ghana [Revised Edition] Act,
1998 (Act 562) and that the
Commissioner’s role is to
prepare a Bill setting out the
alteration or amendment for
introduction into Parliament
where such amendment is
required.”
Section
42 (g) of the Criminal Offences
Act, 1960 (Act 29) which is at
the centre of the present
impasse, prior to the
undertaking by the Statute Law
Revision Commission, provided as
follows:
“42. The
use of force against a person
may be justified on the ground
of his consent, but –
(g) a
person may revoke any consent
which he has given to the use of
force against him, and his
consent when so revoked shall
have no effect for justifying
force; save that the consent
given by a husband or wife at
marriage, cannot be revoked
until the parties are divorced
or separated by a judgment or
decree of a competent court.”
The Laws
of Ghana (Revised Edition) has
however amended/changed the
wording of s. 42 (g) of Act 29
by dropping the exception. The
new formulation for s. 42 (g) is
as follows:
“42. The
use of force against a person
may be justified on the ground
of consent, but,
(g) a
person may revoke a consent
which that party has given to
the use of force against that
person, and the consent when so
revoked shall not have effect or
justify force.”
What was
the extent of the assignment
given to the Statute Law
Revision Commissioner (SLRC)
under the enabling Act 562/1998
and whether or not the resultant
outcome was mandated by the
powers granted the Commissioner?
The Commissioner was granted very wide
functions and powers. This is
captured in section 2 of Act
562/ 1998 as follows:
“2.
Functions and powers of
Commissioner
(1)
In the preparation of the
Revised edition, the
Commissioner
(a)
shall omit
(i)
all Acts or parts of Acts
which have been expressly or
specifically repealed or which
have expired, become spent or
ceased to have effect;
(ii)
all repealing enactments
contained in Acts and tables and
all lists of repealed enactments
whether contained in Schedules
or otherwise;
(iii)
all preambles to Acts where the
Commissioner considers that the
omission can conveniently be
made;
(iv)
all enactments prescribing the
date on which an Act or
part of an Act is to come into
force where the Commissioner
considers that the omission can
conveniently be made;
(v)
all amending Acts or parts of
amending Acts where the
Commissioner has incorporated
the amendments in the Acts to
which the amendments relate;
(vi)
all enacting clauses;
(b)
shall make adaptations of
and amendments to Acts in order
to bring those Acts into
conformity with the Constitution
of Ghana, 1992;
(c)
may arrange any Act in
such groups and sequence that
may be convenient irrespective
of the date of arrangement;
(d)
may alter
i.
the order of sections in any Act
and renumber the sections;
ii.
the form or arrangement of any
sections by transferring words,
by combining any sections or
other sections, or by dividing
any sections into two or more
subsections;
(e)
may transfer an enactment
contained in an Act from that
Act to any other Act to which
that enactment properly belongs;
(f)
may omit a chart, map or
plan annexed to an Act;
(g)
may divide Acts into parts
or other suitable divisions;
(h)
may alter the short title
of an Act or add a short title
to an Act which may require a
short title;
(i)
may re-designate Legal
Notices as statutory
instruments;
(j)
may supply or add head
notes;
(k)
shall convert marginal
notes to head notes;
(l)
shall correct all
grammatical, typographical and
similar errors in the Acts and
for that purpose the
Commissioner may effect such
alterations that are necessary
whilst not affecting the meaning
of any Act:
(m)
may alter names,
localities, offices, forms and
methods in order to bring an Act
into conformity with the
circumstances of the country or
the Commonwealth; and
(n)
may do all other things
relating to form and method that
the Commissioner considers
necessary to make perfect the
Revised Edition.
(2)
Despite subsection (1) the
Commissioner may omit from the
Revised Edition an Act which is
in force on the 1st January,
2005,3(3) but which is repealed
before the coming into force the
Revised Edition.
3. No
power to make alteration of
substance
(1)
The functions of the
Commissioner contained in
section 2 does not include a
power to make an alteration or
amendment in the matter or
substance of an Act.
(2)
Where the Commissioner considers
(a)
that an alteration or amendment
in the matter or substance of an
Act is desirable , or
(b)
that an Act requires
considerable alteration or
amendment involving the entire
recasting of the Act,
the
Commissioner shall prepare a
Bill setting out the alteration
or amendment or the recasting of
the Act for introduction into
Parliament.
4.
Power to omit specific
enactments
The
Commission may, where the
Commissioner considers it
appropriate, exclude from the
Revised Edition
(a)
An Act of a personal nature;
(b)
An Act of a temporary nature,
which can
in the opinion of the
Commissioner be conveniently
omitted.”
It is
thus in the context of the
powers conferred on the
Commissioner under the project
(supra) that the issues raised
in this presentation can be
resolved as to whether the
deletion of the consent element
in section 42 (g) of Act 29 was
sanctioned under Act 562 of
1998.
ANALYSIS OF RELIEFS
The first
relief sought by the Plaintiff
is that the power granted the
Commissioner to, as it were,
‘make adaptations of and
amendments to Acts in order to
bring those Acts into conformity
with the Constitution of Ghana,
1992’ does not include the power
to make alterations of
substance, and therefore the
omission of marital consent as a
defence for the use of force in
section 42 (g) of the Criminal
Offences Act, 1960, (Act 29) is
null, void and of no effect for
being contrary to article 93 (2)
of the Constitution, 1992’.
In any
case reliefs (ii), (iii) and
(iv) are so closely related to
issue (i) and involve the same
fact material that we would
determine all of them together.
What is
meant by the two expressions,
‘adaptation and amendment’?
Adaptation, as
defined by the Oxford English
Dictionary, has a plurality
of meanings and applications,
most of which allude to the
process of changing to suit an
alternative purpose, function,
or environment; the alteration
of one thing to suit another.
The Oxford Modern English
Dictionary, Edited by Julia
Swannell (1995 Reprint)
defines the verb ‘adapt’ to
mean, ‘adjust (one thing to
another); make suitable for a
purpose; alter or modify (esp. a
text). The same dictionary
defines ‘amend’ as ‘(v) make
minor improvements in (a text or
a written proposal); correct an
error or errors in (a document);
make better; improve.”
Article
93 (2) of the Constitution, 1992
states as follows:
“2. Subject to the provisions of
this Constitution, the
legislative power of Ghana shall
be vested in Parliament and
shall be exercised in accordance
with this Constitution.”
The
Interpretation Act, 2009, (Act
792), provides in its section 10
some very useful guides to the
interpretation of statutes which
are deemed ambiguous or obscure.
The
relevant parts of Section 10
read as follows:
“Aids to interpretation or
construction
10.
(1) Where a Court is concerned
with ascertaining the meaning of
an enactment, the Court may
consider
(a)
the indications provided by the
enactment as printed, published
and distributed by the
Government Printer; ………….
(2) A Court may, where it
considers the language of an
enactment to be ambiguous or
obscure, take cognisance of
(a)
the legislative antecedents of
the enactment;
(b)
the explanatory memorandum as
required by article 106 of the
Constitution and the arrangement
of sections which accompanied
the Bill; ……..
(e)
the parliamentary debates prior
to the passing of the Bill in
Parliament.
(3) Subject to article 115 of
the Constitution, a Court shall
have recourse to parliamentary
debates under subsection (2),
where the legislative intention
behind the ambiguous or obscure
words is clearly disclosed in
the parliamentary debate.”
We begin
the resolution of the issues by
considering the nature of the
assignment granted the
Commissioner. The words used in
the statute assigning the work
to be undertaken by the
Commissioner must first be
understood by the ordinary
meanings of the words used.
Where the
meaning of the words used is
plain and obvious, there is no
need to resort to any other aids
of interpretation unless the
resort to that would be at
variance with the intention of
the lawmakers or lead to some
absurdity. Abban, JSC (as he
then was) in Ghana Bar
Association v Attorney-General,
(1994-95) Part 2 GBR 290 at 294
at stated thus:
“It must also be borne in mind
that in construing any statute,
for that matter any of the
provisions of the Constitution,
the first duty of the court is
to stick to the ordinary meaning
of the actual words used. After
ascertaining the general purport
and the meaning of the provision
in question from the words used,
effect must be given to it,
unless by so doing it would be
at variance with the intention
of the law makers or could
result in or lead to some
obvious absurdity.”
A cursory
look at the catalogue of
assignments entrusted to the
Commissioner under the Act 562
reveals the obvious huge volume
of work and demands placed upon
the Commissioner, yet very much
was equally expected from him.
As part of the huge expectation
from him, the Commissioner is
given the sole discretion to
determine certain matters in the
course of carrying out the
assignment. Black’s Law
Dictionary, Eight Edition, by
Bryan A. Garner defines
discretion to mean ‘Individual
judgment; the power of free
decision-making’. Sole
discretion is also defined as
‘an individual’s power to make
decisions without anyone else’s
advice or consent’. The Oxford
Modern English Dictionary edited
by Julia Swannell also defines
discretion to mean, ‘the freedom
to act and think as one wishes,
usually within legal limits.’
Section 3
of Act 562 of 1998 (supra) in
particular confers upon the
Commissioner the sole discretion
to determine whether an
alteration or amendment in the
matter or substance of the Act
is desirable. The section enacts
that ‘where the Commissioner
considers that an alteration or
amendment in the matter or
substance of an Act is desirable
or that an Act requires
considerable alteration or
amendment involving the entire
recasting of the Act’ he shall
prepare a bill to be put before
Parliament.
When
therefore the Commissioner
determines that an alteration or
amendment in the matter or
substance under consideration is
desirable he shall prepare a
bill setting out the alteration
or amendment for introduction to
Parliament pursuant to Article
106 of the Constitution. This
therefore also means that when
the Commissioner arrives at a
contrary view on a matter or
substance the need for
preparation of a bill for
introduction before Parliament
does not arise. Certainly this
amounts to the grant of
discretion to the Commissioner
to exercise in accordance with
law.
It is
therefore obvious and beyond
conjecture that the
Commissioner’s failure to, or
refrain from, introducing a bill
in Parliament under article 106,
in this case, is in exercise of
his discretion to the contrary.
To borrow the words of
Francois, JSC, in
Kuenyehia v Archer, [1993-94]
2 GLR 525,SC at 562, ‘rules
of construction do not permit, a
passage which has clear meaning,
to be complicated or obfuscated
by any interpolation, however
well intentioned.’
The
Commissioner acted within the
powers conferred by the enabling
statute and could not be faulted
in his election. Provided also
that the Commissioner exercised
his discretion fairly and
candidly in accordance with
article 296 of the Constitution
1992, he was within his powers
to determine whether or not to
resort to the process of
introducing a bill in Parliament
on any alteration or amendment.
What
would be the basis for this
court to hold that the changes
made to s 42 (g) of Act 29/1960
are undesirable or unwarranted?
The
Plaintiff has not alluded to any
cause in his written submissions
to enable us determine that the
amendment/alteration to s. 42
(g) in question, is substantial
for us to substitute same for
the election made by the
Commissioner under the
circumstance. The Commissioner’s
discretion on the amendment was
still subject to Parliamentary
consideration.
The
opportunity came when
Parliament, which granted the
Commissioner the power to
undertake the revision exercise
was presented with the concluded
works. Significantly,
Parliament did not complain
about any of the matters
presented to them, (including
the amendment to s. 42 (g) of
Act 29/1960) albeit en masse,
and gleefully approved them
pursuant to s.8 of Act 562/1998
and Article 106 of the
Constitution, 1992.
Besides,
the plaintiff has also not
demonstrated to us that the
legislative action taken by
Parliament was clearly outside
the legislature’s Constitutional
power.
Section 8
of Act 562/1998 states as
follows:
“8. Effective date of Revised
Edition.
(1)
As soon as practicable after the
completion of the Revised
Edition, the Commissioner shall
submit a set in bound book form
to the Minister who shall lay
it before Parliament.
(2)
Parliament shall on a resolution
passed for the purpose and
supported by the votes of the
majority of the members present
and voting approve the Revised
Edition to come into force on a
date that the President may by
executive instrument published
in the Gazette specify.
(3)
From the date specified as the
date of the coming into force of
the Revised Edition under
subsection (2), the Revised
Edition shall have the force of
law as the sole Statute Book in
respect of the Acts in force on
the 1st January, 2005.”
[Emphasis mine]
It is
therefore clear in the light of
s. 8 (above) that Parliament
acted within its powers when it
duly adopted and passed the
seven volumes of the Laws of
Ghana (Revised Edition) on 14th
December 2006 and thereby
assumes responsibility for
them. In the result, the fact
narrative surrounding the
adoption of the seven volumes of
the Laws of Ghana (Revised
Edition) detracts from it being
contrary to article 93 (2) of
the Constitution 1992. In other
words there is no factual basis
before us, to support the claim
that the seven volumes were not
the making of Parliament. Thus,
the omission or deletion of
marital consent as a defence for
the use of force in section 42
(g) of the Criminal Offences
Act, 1960, (Act 29) having been
adopted pursuant to the approval
of Parliament, even if
considered an alteration or
amendment of substance, cannot
be attributed to the
Commissioner but to Parliament.
The law aids the vigilant, not
those who sleep (Vigilantibus et
non dormientibus juras
ubveniunt).
It is
however a sad commentary that
Parliament failed to live up to
the trust reposed in them by the
people of Ghana by their failure
to be the true watchdog in such
crucial matter. This is because
the deliberations on the
adoption of the seven volumes of
the Laws of Ghana (Revised
Edition) were hasty, superficial
and lacked any commitment.
There was
no indication of any elaborate
study and scrutiny of the
volumes for any informed
contributions by members who
were just satisfied to pass
them. The result is the
unraveling, too late in the day,
of far reaching changes that
perhaps were never contemplated.
Some of
the changes or amendments have
far reaching consequences for
our criminal justice system and
are already unsettling decisions
fashioned over the years by our
courts. Yet Parliament approved
them all, and takes full
responsibility for them all.
Besides, even if there had been
any mistakes, this court cannot
correct them. Let me conclude
this point by referring to the
words of the champion of the
philosophy of judicial self
restraint, Justice Frank
further, in his dissenting
opinion in the case of Trop v
Dulless 356 US 86 (1958) at 120
cited in part by Kpegah, JSC in
Ghana Bar Association vs
Attorney General [2003-2004]
SCGLR, 250 at 309 as
follows:
“Rigorous observance of
the difference between limits of
power and wise exercise of power
-- between questions of
authority and questions of
prudence -- requires the most
alert appreciation of this
decisive but subtle relationship
of two concepts that too easily
coalesce. No less does it
require a disciplined will to
adhere to the difference. It is
not easy to stand aloof and
allow want of wisdom to prevail,
to disregard one's own strongly
held view of what is wise in the
conduct of affairs. But it is
not the business of this Court
to pronounce policy. It must
observe a fastidious regard for
limitations on its own power,
and this precludes the Court's
giving effect to its own notions
of what is wise or politic. That
self-restraint is of the essence
in the observance of the
judicial oath, for the
Constitution has not authorized
the judges to sit in judgment on
the wisdom of what Congress and
the Executive Branch do.”
SOME DECISIONS ON AMENDED LAW
There is
no doubt from our analysis of
events above that this court’s
decision in the unreported case
of Ekene Anozie v The
Republic, Criminal Appeal No.
J3/6/2014, SC, delivered on 13th
May 2015 which expresses a
contrary position was given per
in-curiam hence we would depart
there from, pursuant to article
129 (3) of the Constitution. In
the Ekene Anozie case (supra) we
utterly failed to consider
whether the changes resulting
from the Commissioner’s
adaptations/amendments on the
law on conspiracy fell within
the mandate granted him, and
thereby fell into the error of
merely upholding the decision of
the Court of Appeal without due
consideration and thus endorsing
the impression that the
Commissioner’s amendments were
void.
In this
vein, the decision of the High
Court, Accra, coram, Marful Sau,
J.A, sitting as an additional
High Court judge in the case of
Rep vs Augustine Abu, No Acc
15/2010 delivered on 23/12/2009
(Unreported) which acquitted
the accused persons on two
counts of conspiracy to commit
robbery was correct. The High
court reasoned that the new
formulation by the Commissioner
had changed the old law on
conspiracy such that proof of
prior agreement to act together
with a common purpose is now a
new and necessary ingredient
that must be proved by the
prosecution, failing which the
charge must fail. This is a
correct position of the law on
conspiracy as it accords with
our conclusion that the
Commissioner’s seven volumes of
the Laws of Ghana (Revised
Edition) having received the
necessary Parliamentary approval
and adoption, every statement of
the law therein contained is the
correct position thereof unless
pronounced otherwise.
RELEVANCE OF ENGLISH CASE
Just
before we adjourned this matter
for a decision, the plaintiff
brought to our attention the
English case of Regina and R.
(H.L) 1992 A.C. 599 for our
consideration.
Owing to
the high premium the Plaintiff
attaches to the case I would
recount the facts briefly here
below: The defendant married his
wife in 1984. As a result of
matrimonial difficulties the
wife left the matrimonial home
in 1989 and returned to live
with her parents, informing the
defendant of her intention to
petition for divorce. The
defendant also communicated to
the wife his intention to ‘see
about a divorce’. While the wife
was staying at her parents’
house, the defendant forced his
way in and attempted to have
sexual intercourse with her, in
the course of which attempt he
assaulted her. He was charged on
indictment with rape and assault
occasioning actual bodily harm.
The judge rejected his
submission that by virtue of
section 1 (1) of the Sexual
Offences (Amendment) Act 1976
the offence of rape was one
which was not known to the law
where the defendant was the
husband of the alleged victim.
He thereupon pleaded guilty to
attempted rape and assault
occasioning actual bodily harm
and was convicted.
On the
defendant’s appeal against his
conviction of attempted rape,
the Court of Appeal (Criminal
Division) dismissed the appeal.
On further appeal by the
defendant it was held dismissing
the appeal, that there was no
longer a rule of law that a wife
was deemed to have consented
irrevocably to sexual
intercourse with her husband;
and that, therefore, a husband
could be convicted of the rape
or attempted rape of his wife
where she had withdrawn her
consent to sexual intercourse;
that section 1 (1) of the Sexual
Offences (Amendment) Act 1976
did not give statutory
recognition to and perpetuate
the former rule; and that,
accordingly, the defendant’s
conviction would be upheld.
It is
baffling that the plaintiff was
so delighted in drawing our
attention to the above
referenced English case which
has no relevance to the issues
in contention before us.The
question before the English
judge was whether in those
circumstances, despite the
wife’s refusal to consent to
sexual intercourse, the wife
must be deemed by the fact of
marriage to have consented.
This
raised the further question
whether there is any basis for
the principle, long supposed to
be part of the common law, that
a wife does by the fact of
marriage give an implied consent
in advance for the husband to
have sexual intercourse with
her; assuming that principle at
one time existed, it still
represents the law in either a
qualified or unqualified form.
These questions are far at
variance with the issues praying
for our resolution in this
present matter.
CONCLUSION
The
reasoning in Edusei vs
Attorney General (1996-97) SCGLR
1 concerning the discernment
of the true nature of the claim
from the pleadings and reliefs
as concisely stated by Bamford
Addo, JSC holds good. Therefore
gleaning from the reliefs sought
by the plaintiff, it is clear
that he is praying for
declarations to the effect that
the powers granted the
Commissioner to revise the laws
of Ghana did not extend so far
as to authorize him to omit s.
42 (g) of Act 29 from the
Criminal Code. In other words
this court should declare that
the Commissioner acted in excess
of the powers conferred upon
him.
Consequently, having juxtaposed
the reliefs sought by the
plaintiff with the powers
granted the Commissioner under
Act 562 of 1998 and having
examined the process followed by
Parliament in adopting the
outcome of the whole exercise,
we have come to the conclusion
that the Commissioner performed
his mandate according to the
powers granted him. The
resultant product, same being
the seven volumes of the Laws of
Ghana (Revised Edition) having
been approved and adopted by
Parliament are now the product
or handiworks of Parliament, to
all intents and purposes. The
Plaintiff is therefore not
entitled to relief one.
For the
same reasons as for relief (i),
reliefs (ii), (iii) and (iv)
also fail as the actions of the
Commissioner pursuant to the
wide powers conferred on him by
sections 2, 3, 4 and 8 of Act
562/1998 were duly exercised in
accordance with the law
culminating in the adoption of
the resultant outcome by
Parliament on 14th
December 2006.
EPILOGUE
According to Walter Benjamin
in his book, ‘Illustrations’
(New York, Schocken Books 1968,
223-5) and Hutcheon, ‘A
Theory of Adaptations’ 4,
173,): “The test of a good
adaptation is one which achieves
repetition without replication,
- rather than being a mere copy
which sheds its Benjaminian
aura, the adaptation both evokes
and is amplified by a user’s
experience of the original,
while also taking on distinct
qualities of its own. A
successful adaptation balances
“the comfort of ritual and
recognition with the delight of
surprise and novelty”, not only
carrying aura with it, but
contributing to its continued
expansion.”
In
conclusion let me commend the
Plaintiff for his bold
initiative in filing this action
which has brought clarity to
this matter. Despite the outcome
of the initiative which did not
favour him, it should propel a
closer study and identification
of individual pieces and areas
of the laws that were affected
by the mass adoption, for
rectification by specific
amendments by Parliament at the
initiative of the Attorney
General so as to rectify
excesses or shortcomings.
The need
for such an initiative is
prompted by our conclusion by
this decision, that the seven
volumes of the Laws of Ghana
(Revised Edition) constitute the
current state of the law
contained therein.
Failure
to embark upon the initiative
for specific amendments will
result in continued difficult
times particularly for our
criminal justice system, as was
encountered in the Augustine Abu
case (supra), among others. In
setting out areas of concern,
care must however be taken not
to rope in areas that were
deliberately changed in order to
align with new trends. As the
old order of dealing with
society changes under our eyes,
there is need to keep our laws
in pace with these changes but
this must be undertaken with
great caution to keep in line
with the laudable objectives set
under the Constitution 1992.
In the
result all the declarations
sought by the plaintiff are
denied. The plaintiff’s writ is
dismissed.
Before I am finally done, My
Lady Chief Justice, Presiding,
my lords and lady, this being my
ultimate judgment on the bench
after almost forty years of
service, indulge me one more
time, to take the liberty to
wish for the bench and bar in
particular the continued support
and co-operation necessary for
nurturing our nascent democracy
to the highest level deserving
of the people of Ghana in
integrity, competence,
efficiency and effectively. It
is for this confidence that the
people of Ghana have entrusted
to the Judiciary the power to
administer justice on their
behalf. The very success of our
democracy depends upon a strong
competent and impartial
judiciary which has been the
case over the years and must be
sustained. The bar has this
duty, being officers of the
court, to always work for the
success of this confidence and
to sustain the symbiotic
relation to each other.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
(SGD) G. T. WOOD (MRS)
CHIEF JUSTICE
(SGD) S. O. B.
ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
MR. MARTIN KPEBU
ESQ. FOR HIMSELF.
MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY) WITH HER
VICTORIA ADORTEY (ASSISTANT
ATTORNEY) FOR THE DEFENDANT |
