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Notwithstanding the well-known
dictum of Bannerman C.J. in the
Supreme Court case of Republic v.
Maikankan1 as to when an issue was
properly referable to the Supreme
Court for interpretation, doubts
still prevail in the minds of some
members of the Bench and Bar as to
when a lower court is to submit
for determination by the Supreme
Court, the issue whether a matter
relates to “the enforcement or
interpretation of any provision of
the Constitution” within the
meaning of article 118 (1) (a) of
the Constitution, 1979.2 In view
of the frequency with which the
issue arises in the High Court,
the Review deems it appropriate
and desirable to draw the
attention of the members of the
Bench and Bar to the decision of
the Court of Appeal in Republic v.
Special Tribunal; Ex parte
Akosah.3 Having considered the
previous case law on the issue4
the court held per Anin J.A. that
an issue of enforcement or
interpretation of a provision of
the Constitution, 1979, art. 118
(1) (a) would arise in any of the
following eventualities:
"(a) where the words of the
provision are imprecise or unclear
or ambiguous. Put in another way,
it arises if one party invites the
court to declare that the words of
the article have a double meaning
or are obscure or else mean
something different from or more
than what they say;
(b) where rival meanings have been
placed by the litigants on the
words of any provision of the
Constitution;
(c) where there is a conflict in
the meaning and effect of two or
more articles of the Constitution,
and the question is raised as to
which provision shall prevail; and
(d) where on the face of the
provisions, there is a conflict
between the operation of
particular institutions set up
under the Constitution, and
thereby raising problems of
enforcement and of
interpretation."
The court further held that there
would be no case of enforcement or
interpretation within the meaning
of article 118(1) (a) where the
language of the article was clear,
precise and unambiguous. In such
an eventuality, the aggrieved
party might appeal in the usual
way to a higher court against what
he might consider to be an
erroneous construction of those
words.
The court concluded by pointing
out that where counsel made a
submission relating to no more
than a proper application of the
provisions of the Constitution to
the facts in issue, that was to be
a matter for the trial court to
deal with and not a case of
interpretation by the Supreme
Court in the exercise of its
original jurisdiction under
article 118.
FOOTNOTES
1
[1971] 2 G.L.R. 473 at p. 478.
2
For a similar provision: see art.
106 (1) (a) and (b) of the
Constitution, 1969.
3
Court of Appeal, 15 May 1980 to be
reported in [1980] G.L.R. digested
in [1980]G.L.R. D. 67.
4
The Court referred to Republic v.
Maikankan [1971] 2 G.L.R. 473 at
p. 478; Gbedemah v. Awoonor-Williams,
Supreme Court, 30 October 1969,
unreported; digested in (1970)
C.C. 12; (1969) 2 G. & G. 438 and
Tait v. Ghana Airways Corporation,
Supreme Court, 29 July 1970,
unreported: digested in (1970) 2
G. & G. 527. |
