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Constitutional law – Amendment -
Law making power - Parliament -
Subsidiary legislation under
article 11(7), 93(2) of the 1992
Constitution - 1992 Constitution
– Whether or not there is no
authority in Parliament in the
course of considering any Order,
Rule or Regulation so laid
before it under the said article
to purport to amend the
instrument – Whether or not the
Local Government (Atwima
Kwanwoma District Assembly
(Establishment) Instrument LI
1853 which came into force on 29
February 2007 was made in
contravention of Article 11(7)
of the 1992 Constitution -
Whether or not that the District
capital or the principal offices
of the Atwima District Assembly
is Twedie as contained in LI
1853 which was published in the
Gazette on 16 November 2007 and
not Foase as contained in Local
Government (Atwima District
Assembly Establishment)
Instrument, LI 1853 of 2007
which came into force on 29
February 2008.
HEADNOTES
On 16
November 2007, the Minister for
Local Government in the exercise
of the powers conferred on him
under section 3(1) of the
Local
Government Act, 1993(Act 462)
caused to be laid before
Parliament an instrument
numbered as LI1853. In
compliance with legal
requirements, the instrument was
published in the Gazette on the
same date. The said instrument
was headed Local Government
(Atwima Kwanwoma District
Assembly) (Establishment)
Instrument, 2007 and by its
designation dealt with the
creation of a new District
Assembly and related matters. In
particular, by regulation 6 of
the instrument so laid and In
our view having regard to the
nature of the dispute, the
question for our decision is
simply whether the instrument
which was laid before Parliament
on 16 November 2007 and
published on the same date in
the Gazette as required by law
is the same instrument that came
into force after the expiry of
the twenty-one working days of
Parliament on 29 February 2008
as LI 1853 Whiles the plaintiffs
contended the negative of the
question, the defendant on the
other hand contended that
although there was a change in
the instrument that became law
on 29 February 2008 in terms of
the location of the district
capital or to use the words of
the instrument the “ principal
office“, this was as a result
of the withdrawal of the
instrument by which Twedie was
designated as the capital and
the substitution of a new one
namely Foase therefor as appears
in the instrument that came
into force in February 2008.
HELD
The
cumulative effect of the above
sections of the Evidence Act is
that the instrument was indeed
made on 16 November 2007.
The case of the
defendant having thus crumbled,
the instrument which came into
force on 29 February 2008 as LI
1853contained an offending
provision, which is the
substitution for Twedie with
Foase as the location of the
principal offices or district
capital of the Assembly. The
said substitution was in excess
of the powers conferred on
Parliament under article 11 (7)
of the Constitution. It being
so, there is no discretion in us
than to expunge it from LI
1853-exhibit AKDA 5 in
accordance with article 2(1) of
the 1992 Constitution. The said
change was illegal and we refuse
to sanction it. In view of the
illegality of that insertion, it
is annulled with the result that
we have no discretion in the
matter than to yield to all the
reliefs claimed by the
plaintiffs in the action herein.
STATUTES
REFERRED TO IN JUDGMENT
Local
Government Act, 1993(Act 462)
Evidence Act,
NRCD 323
CASES
REFERRED TO IN JUDGMENT
Nii Bortey
Okane v The Attorney General,
Suit No J1/2/201123 June 2011
Nii Tetteh
Opremeh v the Attorney-General
and Others, Suit No J1/3/2010
dated 07 December 2011
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
AYIKOI OTOO
(WITH HIM WILSON JONES) FOR THE
PLAINTIFFS.
SYLVESTER
WILLIAMS (PRINCIPAL STATE
ATTORNEY ) FOR THE DEFENDANT.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
GBADEGBE JSC:
The question
for our decision in this case
turns on the
law making power of Parliament
in relation to the bringing into
being of subsidiary legislation
under article 11(7) of the 1992
Constitution by which it is
provided thus:
“Any Order,
Rule or Regulation made by a
person or authority under a
power conferred by this
Constitution or any other law
shall-
(a)
be laid before Parliament;
(b)
be published in the Gazette on
the day it is laid before
Parliament; and
(c)
come into force at the
expiration of twenty-one sitting
days after being so laid unless
Parliament, before the
expiration of twenty-one days,
annuls the Order, Rule or
Regulation by the votes of not
less than two-thirds of all the
members of Parliament.”
The scope of
the power conferred on
Parliament under article 11 (7)
of the Constitution has been the
subject of previous
determinations of this court in
the unreported cases of Stephen
Nii
Bortey Okane v The Attorney
General, numbered as J1/2/2011
dated23 June 2011 and Nii Tetteh
Opremeh v the Attorney-General
and Others, Suit No J1/3/2010
dated 07 December 2011. By
the said decisions, this court
held that
there is no authority in
Parliament in the course of
considering any Order, Rule or
Regulation so laid before it
under the said article to
purport to amend the instrument.
By
amendment, we meant the
doing of any act by Parliament
that has the effect of effecting
any change whatsoever in the
instrument so laid before it in
terms of the content as there is
no such authority discernible
from a fair reading of article
11(7) of the Constitution by
which the power is conferred on
the legislature in regard to the
making of subsidiary
legislation. The restricted
scope of Parliament’s authority
is inherent in the fact of the
instrument that subsequently
comes into law bearing the same
number as that which was laid
before it. The practice of the
instrument that subsequently
becomes law bearing the same
title and number is clearly
supportive of the constitutional
intendment of the legislature
not making any changes and or
additions to what is laid before
it although it does not take
away Parliament’s authority to
annul it. The instrument can
thus be said to have been made
by the minister or other
authority and submitted to
Parliament as the law making
body to give its assent to it as
it is the sole body
constitutionally charged under
article
93(2) of the 1992 Constitution
with the exercise of
legislative power. The
circumstances in which our
jurisdiction was invoked in the
matter herein follow shortly.
On 16
November 2007, the Minister for
Local Government in the exercise
of the powers conferred on him
under section 3(1) of the Local
Government Act, 1993(Act 462)
caused to be laid before
Parliament an instrument
numbered as LI1853. In
compliance with legal
requirements, the instrument was
published in the Gazette on the
same date. The said instrument
was headed Local Government
(Atwima Kwanwoma District
Assembly)(Establishment)
Instrument, 2007 and by its
designation dealt with the
creation of a new District
Assembly and related matters. In
particular, by regulation 6 of
the instrument so laid,
it was provided as follows:
“The Assembly
shall have its principal offices
at Twedie where meetings of the
Assembly shall be held”.
At the
expiration of the twenty-one
days provided in article 11(7)
of the Constitution when by
operation of law, the instrument
acquired the attribute of law
there was a noticeable change in
regulation 6 as laid before
Parliament by the substitution
of Foase for Twedie. Basing
themselves on the said change in
the location of the principal
offices of the Assembly, the
plaintiffs took out the instant
writ herein seeking the
following reliefs:
(a)
A declaration that
the Local
Government (Atwima Kwanwoma
District Assembly
(Establishment) Instrument LI
1853 which came into force on 29
February 2007 was made in
contravention of Article 11(7)
of the 1992 Constitution.
(b)
An order declaring the said
Local Government (Atwima
District Assembly
(Establishment) Instrument LI
1853 which came into force on 29
February 2008 to the extent that
it amended the district capital
or the principal offices of the
Atwima District Assembly from
Twedie to Foase as null and void
and of no effect.
(c)
A declaration
that the
District capital or the
principal offices of the Atwima
District Assembly is Twedie as
contained in LI 1853 which was
published in the Gazette on 16
November 2007 and not Foase as
contained in Local Government
(Atwima District Assembly
Establishment) Instrument, LI
1853 of 2007 which came into
force on 29 February 2008.”
In our view having regard to the
nature of the dispute, the
question for our decision is
simply whether the instrument
which was laid before Parliament
on 16 November 2007 and
published on the same date in
the Gazette as required by law
is the same instrument that came
into force after the expiry of
the twenty-one working days of
Parliament on 29 February 2008
as LI 1853?
Whiles
the plaintiffs contended the
negative of the question, the
defendant on the other hand
contended that although there
was a change in the instrument
that became law on 29 February
2008 in terms of the location of
the district capital or to use
the words of the instrument the
“ principal office“, this was
as a result of the withdrawal of
the instrument by which Twedie
was designated as the capital
and the substitution of a new
one namely Foase therefor as
appears in the instrument that
came into force in February
2008.
For the defendant’s contention
in the matter to be good, there
must be evidence that indeed the
original instrument was
withdrawn by the maker- the
Minister for Local Government
and that subsequently a new one
containing Foase as the district
capital was laid before
Parliament on a different date
and published in the Gazette on
the same date that it is laid.
Unfortunately, in the course of
these proceedings, learned
counsel for the defendant was
unable to call in aid of his
contentions any evidence that
would tend to give his
submissions legitimacy. In an
apparent attempt to extricate
himself from thisdifficulty, by
an amended statement of case
that was filed on 8 March 2012,
the defendant sought to assert
that the date which appears on
the instrument that came into
force on 29 February 2008 as the
date of the notification in the
gazette is not 16 November as
indicated thereon at page 10 but
a different date - 30 November
2007. As the date of the
instrument is the effective date
from which the twenty-one days
provided in article 11(7) for it
to mature into law, the said
submission is not in keeping
with the practice of the
bringing into being subsidiary
legislation, it looks quite
surprising that this contention
should be urged on the court but
as said earlier this must have
been an attempt by the defendant
to be wiser after the event.But
unfortunately, the rules of
evidence constrain us from
giving consideration to this
assertion. Reference is made in
this regard to
section
154 of the Evidence Act, NRCD
323 as follows:
“ All proclamations, Acts of
State, whether legislative or
executive, nominations,
appointments, and other official
documents, and other official
communications appearing in the
Ghana Gazette are prima facie
evidence of any fact of a public
nature which they are intended
to notify.”
By section 19
of the Evidence Act, the fact of
the said notification in the
Ghana Gazette created a
rebuttable presumption and
therefore it placed a burden on
the defendant to introduce
evidence that would persuade us
that the presumed fact-16
November 2007 does not exist.
But unfortunately, the defendant
did not lead any contradictory
evidence to defeat the effect of
the date appearing on the
instrument as the effective date
of its publication. For a better
understanding of the effect of
the presumption created under
section 19 of the Evidence Act,
we refer to sections 19-21 (a)
of the Evidence Act:
“19. An
enactment providing that a fact
or group of facts is prima facie
evidence of another fact creates
a rebuttable presumption.
20. A
rebuttable presumption imposes
upon the party against whom it
operates the burden of producing
evidence and the burden of
persuasion as to the
non-existence of the presumed
fact.
21(a) In an
action where proof by a
preponderance of probabilities
is required a rebuttable
presumption requires the
tribunal of fact to assume the
existence of the presumed fact
unless and until the party
against whom the presumption
operates proves the
non-existence of the presumed
fact is more probable than its
non-existence.”
The
cumulative effect of the above
sections of the Evidence Act is
that the instrument was indeed
made on 16 November 2007.
The case of
the defendant having thus
crumbled, the instrument which
came into force on 29 February
2008 as LI 1853contained an
offending provision, which is
the substitution for Twedie with
Foase as the location of the
principal offices or district
capital of the Assembly. The
said substitution was in excess
of the powers conferred on
Parliament under article 11 (7)
of the Constitution. It being
so, there is no discretion in us
than to expunge it from LI
1853-exhibit AKDA 5 in
accordance with article 2(1) of
the 1992 Constitution. The said
change was illegal and we refuse
to sanction it. In view of the
illegality of that insertion, it
is annulled with the result that
we have no discretion in the
matter than to yield to all the
reliefs claimed by the
plaintiffs in the action herein.
[SGD] N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD] W. A.
ATUGUBA
ACTING CHIEF JUSTICE
[SGD] S. A. B.
AKUFFO (MS.)
JUSTICE OF THE SUPREME COURT
[SGD] S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
[SGD] J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD] S. O. A.
ADINYIRA (MRS.)
JUSTICE OF THE SUPREME COURT
[SGD] ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD] P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
[SGD]
V. AKOTO- BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL:
AYIKOI OTOO
(WITH HIM WILSON JONES) FOR THE
PLAINTIFFS.
SYLVESTER WILLIAMS ( PRINCIPAL
STATE ATTORNEY ) FOR
THE
DEFENDANT.
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