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GHANA BAR REPORT 1993 -94 VOL 1

New Patriotic Party v Electoral Commission and another (No 2)

SUPREME COURT

ABBAN, AMUA-SEKYI, AIKINS, WIREDU, AMPIAH JJSC

16 SEPTEMBER 1993

Local Government - District Chief Executive - Appointing authority - PNDCL 207 providing for the appointment of district chief executives by district assemblies - 1992 Constitution art 243(1) providing for appointment by President with approval of the district assemblies - PNDCL 306 enabling existing district assemblies to continue to perform their functions pending election of new assemblies under the Constitution - Whether existing assemblies competent to appoint district chief executives - Local Government (Amendment) Law 1993, (PNDCL 306) - Constitution of Ghana 1992, art 242 - Constitution of Ghana 1992, Transitional Provisions, s 31(2).

Constitutional law - Constitution of Ghana - Enforcement - Plea of estoppel by acquiescence and inaction not to be allowed to prevent citizens from enforcing constitutional rights - Constitution of Ghana, art 2(1).

By the Local Government (Interim Administration) Law 1982 (PNDCL 14) the system of local government set up previously under the Local Government Act 1971 (Act 359) was replaced by various district councils with management committees appointed by the central government. The Local Government Law 1988 (PNDCL 207) repealed Act 359 and PNDCL 14 and set up district assemblies composed of (a) district secretaries (b) one person from each electoral area within the district elected directly by the electorate and (c) not more than one-third of the total membership of the assembly appointed by the Provisional National Defence Council. The district secretaries were also to be appointed by the assemblies. The 1992 Constitution provided for the election of district assemblies composed of one person from each electoral area within the district, elected by universal adult suffrage, members of parliament whose constituencies fell within the area of authority of the assembly as non-voting members, the District Chief Executive and appointees of the President. The District Chief Executive was to be appointed under article 243(1) by the President with the prior approval of not less than two-thirds majority of members of the assembly present and voting at the meeting. At the date of the action by the plaintiff the district assemblies envisaged by the Constitution had not yet been established. However the President announced the appointment of certain persons by him to fill the posts of District Chief Executives. Following this announcement, the Electoral Commission, the 1st defendant, announced dates on which the approval of the assemblies established under Law 207 would be sought for the presidential nominees. The plaintiff, a registered political party, issued a writ of summons in the Supreme Court for a declaration that the proposed election of District Chief Executives was illegal and a contravention of the Constitution and sought an injunction against the commission. The plaintiff contended that the assemblies provided for under article 242 of the Constitution were different entities from those established under PNDCL 207 and that the elections of district chief executives could be made only under article 243 by the assemblies created under article 242 of the Constitution. Therefore the proposed elections would violate the letter and spirit of the Constitution.

The defendants contended that by the combined effect of PNDCL 306, article 11(4) of the Constitution and section 31(2) of the Transitional Provisions of the Constitution the assemblies in existence before the coming into force of the Constitution continued in existence with the powers and functions as envisaged under the Constitution until elections were held under article 246(1) of the Constitution. They contended further that in the exercise of their functions under the Constitution, the district assemblies had elected their representatives to the Council of State under article 89(2)(c) without objection from the plaintiff and that the plaintiff was estopped by inaction and acquiescence from contending that the district assemblies could not discharge the functions of district assemblies under the Constitution.

Held - (1) Under the Local Government (Amendment) Law 1993, (PNDCL 306), as continued in existence by the Transitional Provisions of the 1992 Constitution, s 31(2), members of the district assemblies as at the coming into force of the Constitution on 7 January 1993 were to continue in office as assembly-men and to perform the functions in section 6 of PNDCL 207 pending the election of new assembly-men. Those functions did not include the holding of elections to give approval to candidates for appointment as district chief executives. Under the Constitution there were no district secretaries and the district assemblies established by PNDCL 207 were completely different bodies or entities from the district assemblies to be established under article 242 of the Constitution. That being the case, the district assemblies, as presently constituted, could not decide a matter reserved for district assemblies envisaged under article 242 of the Constitution. The intended elections would therefore violate the letter and the spirit of the Constitution and would be unconstitutional.

(2) Estoppel by acquiescence and inaction, as argued by the learned Attorney-General, must not be allowed to operate as a shield to prevent a citizen from ventilating and enforcing his constitutional rights under article 2(1) of the Constitution. Otherwise sooner or later the good intentions of the framers of the Constitution, as enshrined in the provision, would be defeated. If estoppel was allowed to operate as suggested, it would whittle down this constitutional right. If a provision of the Constitution was violated but no citizen took an action in the Supreme Court that would not mean that if on another occasion a public-spirited citizen brought an action he could be met with those equitable defences. Those equitable defences should have no place when it came to the interpretation and enforcement of the provisions of the Constitution. Tuffuor v Attorney-General [1980] GLR 637 approved, Nartey v Mechanical Lloyd Assembly Plant [1987-88] 2 GLR 314 distinguished.

Per Amua-Sekyi JSC. If the defendants were right, then it was not only the plaintiffs who were estopped from raising the issue of the legality of the proposed vote by the members of the district assemblies, but each and every one of the 15 million people of this country. Elections to a purely advisory body like the Council of State may have seemed so unimportant that no one cared whether the members of the electoral college were qualified to undertake the task. The position of a District Chief Executive was different; he was the representative of the central government in the district and performed executive and administrative functions. Like everyone else, the plaintiffs were free to choose when to go to court to challenge infractions of the Constitution.

Cases referred to:

Allotey v Quarcoo [1981] GLR 208, CA.

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, [1956] 2 WLR 81, [1955] 3 All ER 864; 120 JP 54, 100 SJ 32, 54 LGR 91, HL.

Grundt v Great Boulder Pty Gold Mine Limited (1937) 59 CLR 641, 11 ALJ 272.

Moorgate Mercantile v Twitchings [1975] 3 All ER 314, [1975] 3 WLR 286, 119 Sol Jo 559, [1976] QB 225, [1976] RTR 437, CA; revsd [1977] AC 890, [1976] 2 All ER 641, [1976] 3 WLR 66, 120 Sol Jo 470, [1976] RTR 437, HL.

Nartey v Mechanical Lloyd Assembly Plant [1987-88] 2 GLR 314, SC.

Tuffuor v Attorney-General [1980] GLR 637, SC.

ACTION by the plaintiff in the Supreme Court for a declaration that the proposed election of district chief executives was illegal and a contravention of the Constitution and for an injunction against the 1st defendant.

Anthony Forson, Attorney-General (with him Mrs Adusa-Amankwah) for the defendants.

Nana Akufo-Addo (with him Philip Addison and Alex Quaynor) for the plaintiff.

ABBAN JSC. The plaintiff is a registered political party. The first defendant, the Electoral Commission, by virtue of Electoral Commission Act 1993 (Act 451), has been charged with the responsibility of conducting and supervising all public elections and referenda in the country. The second defendant, the Attorney-General, was sued as the legal representative of the Government of Ghana.

In its statement the plaintiff pleaded, inter alia, that the first defendant, acting through its Executive Secretary, on the 14th of August 1993, issued written directives to all the district assemblies in the country urging them to hold elections in order to elect district chief executives for each district assembly in accordance with article 243 of the 1992 Constitution and that the elections should take place between 18th and 30 August 1993. The defendants averred in paragraph 1 of their amended defence that the facts so far stated supra were correct.

It may be recalled that the present district assemblies were established by the Local Government Law 1988 (PNDCL 207) (as amended). Elections were held under that Law to elect assembly-men to all the district assemblies. By section 3(3) of PNDCL 207, elections to the district assemblies were to be held every three years. But this section was later amended by the Local Government (Amendment No 3) Law 1992, (PNDCL 272) which extended the three years to four years. That is, the amendment provided that elections to “district assembly shall be held once every four years”. There was further amendment made on 4 January 1992. This was by the Local Government (Amendment) Law 1993 (PNDCL 306). We will here quote the full text of the amendment:

 “District assemblies in existence on the coming into force of this Law shall continue in existence until such time as new Assembly members are elected.”

In other words, those who were members of the district assemblies at the time the Constitution came into force on 7th January 1993 were to continue to serve as assembly-men pending the election of new assembly-men. Thus the present assembly-men derive their right to be members of the district assemblies from the Local Government (Amendment) Law 1993 (PNDCL 306).

In paragraphs 6 and 7 of the statement of the plaintiff’s case, the plaintiff summed up the basis upon which it sought the reliefs. They read as follows:

 “6. Plaintiff contends that the assemblies provided by article 242 of the Constitution are different entities in their character, composition and term from those established pursuant to the Local Government Law 1988 (PNDCL 207).

7. Plaintiff further contends that the elections of the district chief executives pursuant to article 243 of the Constitution shall be made only by the assemblies provided for by article 242 thereof.”

The defendants, in their amended statement of case, denied paragraphs 5, 6 and 7 of the plaintiff’s statement of case and averred that PNDCL 272 did not offend any statutory provisions and that “although the district assemblies as presently constituted were not established under the Constitution of the 4th Republic, yet certain provisions of the said Constitution saved the district assemblies as presently constituted”. The pivot of the defence could be found in paragraphs 4, 5 and 6 of the amended statement of case which we quote:

“4. In answer to the said paragraphs, the defendants contend that the combined effect of the Local Government (Amendment) Law 1993 (PNDCL 306), article 11(4) of the Constitution and section 31(2) of the Transitional Provisions of the Constitution is to make the assemblies in existence before the coming into force of the Constitution of the 4th Republic to continue in existence with powers and functions as envisaged under the Constitution until elections are held under article 242 of the Constitution.

5. In further answer to the said paragraphs the defendants contend that in exercise of their functions under the Constitution, the said district assemblies in accordance with article 89(2)(c) elected their representatives to the Council of State. The plaintiff during the said elections did nothing to prevent the elections from going ahead.

6. The defendants therefore contend that the plaintiff is estopped by inaction and acquiescence from contending that the district assemblies as presently constituted are not properly constituted for the discharge of the functions of the district assemblies under the Constitution.

7. The defendants finally contend that the holding of elections conducted by the lst defendant of the district chief executives by the assemblies as presently constituted is proper and in conformity with the letter and spirit of the Constitution.”

Leading counsel for the plaintiff, Nana Akufo-Addo, submitted that the authority to give approval to appointment of district chief executives under article 24 of the Constitution could only be given by the district assemblies to be established under the Constitution and that the present district assemblies do not have the mandate or constitutional authority to give approval of nominations of district chief executives.

He further contended that the statutory functions conferred on district assemblies by PNDCL 207 did not extend to giving such approval. It was also submitted that there was a significant difference between the composition of the district assemblies established by PNDCL 207 and the district assemblies as envisaged under the Constitution. Thus the existing district assemblies cannot exercise the powers granted to the district assemblies to be established under article 242 of the Constitution.

The learned Attorney-General made reference to the provisions of article 299 of the Constitution and submitted that on the authority of that article the validity of the Transitional Provisions are not in doubt and so section 23(1) of the Transitional Provisions validly provided for the continuation of the existing laws and regulations relating to district assemblies. In the circumstances, the provisions of PNDCL 207 and PNDCL 306 are operative until the establishment of new district assemblies under article 242 of the Constitution.

In that respect, contended the Attorney-General, the district assemblies as presently constituted can exercise all the functions of the district assemblies as envisaged under the Constitution and that those functions include approval of candidates for appointment as district chief executives. He therefore submitted that what the district assemblies had intended to do was in consonance with the existing law.

Learned Attorney-General again submitted that the plaintiff was estopped from challenging the competence of the present district assemblies to hold the said elections since the plaintiff did nothing when the present district assemblies elected their representatives to the Council of State under article 89(2)(c) of the Constitution and that this court should not follow the decision in Tuffuor v Attorney-General [1980] GLR 637 with regard to estoppel. He urged the court to take a second look at the decision in that case and review it having regard to the changing circumstances, and to hold that the plaintiff is estopped by inaction and acquiescence from disputing the authority of the district assemblies to hold elections under article 243(1) of the Constitution.

We should observe that an unfortunate impression was created during the arguments that the present members of the district assemblies had no mandate of the people. We think that is not correct. They did have the people’s mandate and they could or can validly exercise the functions spelt out for them under section 6 of the Local Government Law 1988 (PNDCL 207) until new assembly-men are elected under article 242 of the Constitution.

However, the main issue here is whether the present district assemblies, in addition to their functions as set out in section 6 of PNDCL 207, have also the authority to approve candidates for appointment as district chief executives under article 243 (1) of the Constitution.

It seems on this issue the contentions of leading counsel for the plaintiff are right. It is significant to note that despite their divergent views or opinions about PNDCL 207, 272 and 306 as expressed in their pleadings, all the parties accepted the validity of these laws. At any rate, no oral arguments were put forward by leading counsel for the plaintiff, Nana Akufo-Addo, to support the contention in paragraph 4 of the statement that PNDCL 272 was promulgated “in contravention of an existing statutory provision”.

In any case, we hold that PNDCL 272, PNDCL 207 and PNDCL 306 all form part of the existing law by virtue of article 11(4) of the 1992 Constitution, and that they have not been affected by the coming into force of the Constitution. Thus, by the provisions of PNDCL 306, until new assembly-men are elected under article 242 of the Constitution, the members of the district assemblies at the time the Constitution came into operation were and are to continue as assembly-men and to perform the functions which have been clearly spelt out in section 6 of PNDCL 207.

We share the view of leading counsel for the plaintiff that those functions did not include the holding of elections to give approval to candidates for appointment as district chief executives. Under PNDCL 207, the district assemblies are not empowered to approve candidates for appointment as district secretaries. Under the 1992 Constitution we do not have district secretaries. We have district chief executives who, although will perform practically the same functions as those of the district secretaries appointed under section 1 of PNDCL 207, the procedure for appointing a person to the office of District Chief Executive is quite different. Article 243(1) of the Constitution provides:

 “There shall be a District Chief Executive for every district who shall be appointed by the President with the prior approval of not less than two-thirds majority of members of the Assembly present and voting at the meeting.”

Article 242 of the Constitution has provided for the composition of the district assemblies. That composition differs in substance and in form from the composition of the present district assemblies as established under section 3(1) of PNDCL 207. For example, under article 242 of the Constitution, members of parliament from the constituencies “that fall within the area of authority of the district assembly” are also made members of the district assembly.

Further those members of the district assembly to be appointed by the President under article 242(1) of the Constitution should not be more than “thirty per cent of all the members of the district Assembly”; while under section 3(1)(c) of PNDCL 207 the appointed members presently in each district assembly do not exceed “one-third of the total membership of the Assembly”.

Consequently, as we have already stated, the present district assemblies as established by PNDCL 207 are completely different bodies or entities from the district assemblies to be established in future under article 242 of the Constitution. That being the case, the district assemblies, as presently constituted, cannot take a decision on a matter which has been specially preserved for differently constituted district assemblies as envisaged under article 242 of the Constitution. That is, the district assemblies, as presently composed, are not competent to hold elections for the purpose of approving candidates for appointment to the office of District Chief Executive. Any election intended to be held in the present district assemblies for that purpose would be contrary to the letter and the spirit of the Constitution. In short, it would be unconstitutional.

Leading counsel for the plaintiff, in the course of his argument introduced an issue which did not seem to have arisen on the face of the pleadings and which did not also relate to matters in controversy. That is, he contended that the President has no role in initiating the appointments of the district chief executives, and that it is the district assemblies which must sponsor the candidates and approve of them before the President comes in to appoint. As already observed, this never formed part of the issues and since full argument was not addressed to the court on the matter, it would not be right to make any authoritative pronouncement on it at this time.

The issue of estoppel by acquiescence and inaction argued by the learned Attorney-General will be dealt with briefly. Our first re-action is that such equitable defences - acquiescence and inaction or conduct - must not be allowed to operate as a shield to prevent a citizen from ventilating and enforcing his constitutional rights. Otherwise, sooner or later, the good intentions of the framers of the Constitution, as enshrined in article 2(1) of the Constitution, will be defeated. The said article provides:

 “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.”

If estoppel is allowed to operate in the way as it was suggested, it will surely whittle down the efficacy of the above provision. If a person violates a particular provision of the Constitution and which violation becomes well known to the public, but no citizen brings that conduct to book by bringing “an action in the Supreme Court for a declaration to that effect”, does that mean that on another occasion that some person violates the same or another provision of the Constitution, any public-spirited citizen who, this time, brings an action in the Supreme Court in respect of the second violation will successfully be met with the equitable defence of acquiescence and inaction, simply because he did not challenge the first violation? We think equitable defences should have no place when it comes to the interpretation and enforcement of the provisions of the Constitution.

In the present case, the failure of the plaintiff to question the propriety of the present district assemblies in electing representatives to the Council of State under article 89(2)(c) of the Constitution cannot prevent the plaintiff from seeking in this court the correct interpretation and enforcement of the provisions of the Constitution which relates to the district assemblies. As already demonstrated, the conduct of the Electoral Commission in attempting to hold elections in the district assemblies, as presently constituted, for the purpose of approving candidates for appointment as district chief executives was contrary to the provisions of the Constitution and therefore unlawful; such unlawful conduct cannot be validated by “equitable doctrines of estoppel”; see Tuffuor v Attorney-General [1980] GLR 637. In the course of the judgment in that case, the Supreme Court said:

 “The decision of Mr Justice Apaloo to appear before Parliament cannot make any difference to the interpretation of the relevant article under consideration unless that decision is in accordance with the postulates of the Constitution ... This court does not think that any act or conduct which is contrary to the express or implied provisions of the Constitution can be validated by equitable doctrines of estoppel. No person can make lawful what the Constitution says is unlawful. No person can make unlawful what the Constitution says is lawful. The conduct must conform to due process of law as laid down in the fundamental law of the land or it is unlawful and invalid.”

With respect to the learned Attorney-General, the decision in Tuffuor’s case is still good law and no good reasons have been canvassed to persuade this court to review it. The invitation of the learned Attorney-General is therefore declined.

It was for the above reasons that this court on the 16th of September 1993, entered judgment for the plaintiff and made the declaration and orders as contained in the said judgment.

 (sgd) WIREDU JSC.

 (sgd) AMPIAH JSC.

AMUA-SEKYI JSC. When the Provisional National Defence Council came to power, the system of local government was that set up under the Local Government Act 1971 (Act 359), as amended. The Local Government (Interim Administration) Law 1982 (PNDCL 14) replaced the various district councils with management committees appointed by the central government. The Local Government Law 1988 (PNDCL 207) repealed Act 359 and PNDCL 14 and set up district assemblies composed of (a) the district secretary (b) one person from each electoral area within the district elected directly by the electorate (c) not more than one-third of the total membership of the assembly appointed by the Provisional National Defence Council. The district secretary was also to be appointed by the Council.

The Constitution of Ghana, 1992 provided for district assemblies composed of (a) one person from each electoral area within the district elected by universal adult suffrage (b) the members of parliament whose constituencies fall within the area of authority of the assembly as non-voting members (c) the District Chief Executive (d) not more than 30% of the total membership of the assembly appointed by the President. The District Chief Executive is, in the words of article 243(1), appointed by the President with the prior approval of not less than two-thirds majority of members of the assembly present and voting at the meeting. The district assemblies envisaged by the Constitution have not yet been established.

Sometime in August an announcement was made from the office of the President that certain persons had been nominated by him to fill the posts of District Chief Executive. Following this announcement, the defendant-commission fixed dates on which, it said, the approval of members of the assemblies established under Law 207 would be sought to the nominations made by the President. The plaintiffs then issued this writ asking for a declaration that the proposed election of district chief executives was illegal and a contravention of the Constitution, and seeking an injunction. The grounds of their complaint will be found in paragraphs 6 and 7 of their statement of case where they state:

 “6. Plaintiff contends that the assemblies provided for by article 242 of the Constitution are different entities in their character, composition and term from those established pursuant to the Local Government Law 1988 (PNDCL 207).

7. Plaintiff further contends that the elections of district chief executives pursuant to article 243 of the Constitution shall be made only by the assemblies provided for by article 242 thereof. Plaintiff therefore says that the holding of elections, conducted by lst defendant, of district chief executives by the assemblies established under the Local Government Law 1988 (PNDCL 207) is a violation of the letter and spirit of the Constitution, and is therefore unconstitutional, illegal and unenforceable.”

In their statement of case the defendants denied paragraphs 6 and 7 and averred as follows:

“4. In answer to the said paragraphs, the defendants contend that the combined effect of the Local Government (Amendment) Law 1993 (PNDCL 306), article 11(4) of the Constitution and Section 31(2) of the Transitional Provisions of the Constitution is to make the assemblies in existence before the coming into force of the Constitution of the 4th Republic to continue in existence with the powers and functions as envisaged under the Constitution until elections are held under article 246(1) of the Constitution.”

Thus the issue for determination is whether the district assemblies set up under Law 207 are competent to carry out the constitutional duty of giving approval to the appointment by the President of district chief executives.

Under section 3(3) of Law 207, elections to district assemblies were required to be held every three years. The Local Government (Amendment) (No 3) Law 1992 (PNDCL 272) altered the law by requiring that elections be held every four years. Then came the Local Government (Amendment) Law 1993 (PNDCL 306) which said simply:

 “District Assemblies in existence on the coming into force of this Law shall continue in existence until such time as new Assembly members are elected.”

Article 11(4) of the Constitution makes PNDCL 207 and PNDCL 306 part of the laws of Ghana. Section 31(2) of the Transitional Provisions has the same effect and declares that “where anything is required or authorised by this Constitution to be prescribed or provided for by or under an Act of Parliament, it shall be deemed to be duly prescribed or provided for, if it has been prescribed or provided for by or under an Act, Decree, or Law in force immediately before the coming into force of this Constitution”. With these must be read section 23(1) of the Transitional Provisions which deals specifically with district assemblies. It provides:

 “23(1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.”

The position, therefore, is that the present district assemblies continue to exercise the powers given them by Law 207, as amended, until such time that the district assemblies envisaged by the Constitution have been established. This is a far cry from saying that they are entitled to exercise powers that are to be found only in the Constitution.

In paragraphs 5 and 6 of their statement of case, the defendants stated:

 “5. In further answer to the said paragraphs, the defendants contend that in exercise of the functions under the Constitution, the district assemblies in accordance with article 89(2)(c) elected their representatives to the Council of State. The Plaintiffs during the said elections did nothing to prevent the elections from going ahead.

6. The defendants therefore contend that the plaintiff is estopped by inaction and acquiescence from contending that the district assemblies as presently constituted are not properly constituted for the discharge of the functions of the district assemblies under the Constitution.”

If the defendants are right, then it is not only the plaintiffs who are estopped from raising the issue of the legality of the proposed vote by the members of the district assemblies, but each and every one of the 15 million people of this country. Elections to a purely advisory body like the Council of State may have seemed so unimportant that no one cared whether the members of the electoral college were qualified to undertake the task. The position of District Chief Executive is different: he is the representative of the central government in the district and performs executive and administrative functions. Like everyone else, the plaintiffs are free to choose when to go to court to challenge infractions of the Constitution.

The defendant-commission ought to have known that they were embarking on an illegal and unconstitutional act. Law 207 gave members of district assemblies no power to give approval to the appointment of district secretaries by whatsoever name called; the office of District Chief Executive was created by the Constitution, not Law 207; the composition of district assemblies under the Constitution is different from that under Law 207; under the Constitution the term of office of an assembly member is limited to four years, whereas that of the assembly members elected under Law 207 has already extended beyond four years. In sum, there is, really, no legal basis for appointing district chief executives before the district assemblies have been established. A District Chief Executive must have the confidence of the members of the assembly. If he were to be appointed before the members of the assembly have themselves been elected into office, they will effectively have been denied the opportunity of expressing an opinion on his suitability for the office.

Article 243(1) leaves me in no doubt that the course taken by the defendant commission is illegal and unconstitutional. It is the duty of this court so to declare and restrain them from contravening the clear provisions of the Constitution.

It was for those reasons that I concurred in the orders made.

AIKINS JSC. I have had the advantage of reading in draft the judgment of my learned brother Abban JSC, and have no hesitation in stating that I agree with his conclusion that the order of injunction requested by the plaintiff should be granted. The case is of such public importance that I feel obligated to add a few words.

Both parties agree, and there is no doubt at all about it, that the district assemblies in existence now are different from those envisaged by article 242 of the Constitution, 1992. This article gives the composition of a district assembly as -

“(a) one person from local government electoral area within the district elected by universal adult suffrage:

(b) the member or members or Parliament from the constituencies that fall within the area of authority of the district assembly as members without the right to vote;

(c) the District Chief Executive of the district; and

(d) other members not being more than thirty per cent of all the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district.” (Emphasis supplied.)

However, section 3(1) of the Local Government Law 1988 (PNDCL 207) gives the composition of the district assembly as follows:

(a) the District Secretary;

(b) one person from each electoral area within the District who shall be elected directly by the electorate in accordance with regulations made in that behalf by the National Commission for Democracy;

(c) such persons ordinarily resident in the district not exceeding one-third of the total membership of the Assembly as may be appointed by the Council acting in consultation with the traditional authorities and organised productive economic groupings in the District.”

It is clear from the two compositions that (i) whereas under section 3(1)(b) of Law 207 a person from each electoral area within the district was elected in accordance with regulations made by the National Commission for Democracy, such person envisaged by article 242(a) of the Constitution, 1992 is to be elected by universal adult suffrage; (ii) whereas under section 3(1)(c) of Law 207 not more than one-third of the total membership of the assembly being persons ordinarily resident in the district were appointed, the percentage under article 242(d) is not more than thirty; (iii) the appointment under Law 207 was made by the Council (i.e. PNDC), whereas those under article 242 are to be appointed by the President alone; (iv) furthermore, the appointment under Law 207 apart from being made in consultation with the traditional authorities as under article 242, it should also be made in consultation with “organised productive economic groupings in the district” which is different from what is to be done under article 242, i.e. “other interest groups in the district”; (v) whereas the duration of the district assembly under Law 207, s 3(3) is pegged at three years though this has been extended indefinitely by the Local Government (Amendment) Law 1993 (PNDCL 306) “until such time as new assembly members are elected”, article 246(1) of the Constitution directs elections to the district assemblies to be held every four years - this is mandatory.

In spite of the glaring difference of the two bodies outlined above the learned Attorney-General urged that until Parliament takes steps to get a new assembly in place the district assembly as presently constituted has the mandate to carry out the constitutional functions for the appointment of district chief executives under article 243(1) to prevent a vacuum being created. Learned counsel for the plaintiff, Nana Akufo-Addo contends otherwise. He argues that the present district assemblies do not have the constitutional authority to approve district chief executives under article 243(1) of the Constitution, and that whatever power they have is restricted to the performance of their administrative function under existing laws regulating their operations as provided under section 23(1) of the Transitional Provisions of the Constitution, 1992. I think I agree with learned counsel for the plaintiff on these issues. First, the submission that a vacuum will be created is misconceived because the local government administration is a continuing system of government and district assemblies can continue to function under existing laws and secondly, the district assemblies as presently constituted have no moral or political or constitutional mandate to undertake the duty imposed on the district assemblies as envisaged under article 243(1), i.e. the approval of candidates for the post of district chief executives for appointment by the President.

The learned Attorney-General further submitted that the combined effect of the Local Government (Amendment) Law 1993 (PNDCL 306), article 11(4) of the Constitution and section 31(2) of the Transitional Provisions of the Constitution is to make the existing assemblies continue in existence with the powers and functions as envisaged under the Constitution until elections are held under article 246(1) of the Constitution. Law 306 which was enacted on 4 January 1993, three days before the 4th Republic came into existence, and gazetted on 5 February 1993, extended the existence of the district assemblies created by Law 207 until such time as the new assembly members are elected. Article 11(4) refers to the existing law as comprising the written and unwritten laws of Ghana as they existed immediately before the coming into force of the Constitution, and “any Act, Decree, Law or statutory instrument issued or made before that date, which is to come into force on or after that date”. Section 31 of the Transitional Provisions deals with continuation, in effect, of matters prescribed by existing law. Subsection (2) states:

 “(2) For the avoidance of doubt, and without prejudice to the general effect of subsection (1) of this section, where anything is required or authorised by this Constitution to be prescribed or provided for by or under an Act of Parliament, it shall be deemed to be duly prescribed or provided for, if it has been prescribed or provided for by or under an Act, Decree, or a Law in force immediately before the coming into force of this Constitution.”

And subsection (1) states:

 “(1) Where any matter that falls to be prescribed or otherwise provided for under this Constitution by Parliament or by any other authority or person, is prescribed or provided for by or under any existing law or is otherwise lawfully prescribed or provided for immediately before the coming into force of this Constitution, that prescription or provision shall, as from the coming into force of this Constitution, have effect with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with this Constitution as if made under this Constitution by Parliament or, as the case may be, by the other authority or person.”

Though Law 306 extends the existence of district assemblies, there is nothing in section 31 that empowers existing district assemblies to continue to perform the functions and have the powers of district assemblies as envisaged under the Constitution. No existing law contains any provisions empowering current district assemblies to approve candidates for appointment as district chief executives. What the Constitution requires Parliament to do is to enact laws regulating the operation of district assemblies. But under section 23(1) of the Transitional Provisions until Parliament provides such laws, district assemblies are just empowered to operate under existing laws, and as stated above, no existing law empowers district assemblies to approve candidates as envisaged under article 243(1).

In my judgment the proper body to undertake this assignment is the district assembly as envisaged under article 242 of the Constitution which is yet to come into existence. I am fortified in this view by the averment in paragraph 3 of the plaintiff’s statement of case which is admitted by the defendants, that the lst defendant in a statement signed by its Executive Secretary on 14th August 1993 issued directives pursuant to article 243 of the Constitution, to all district assemblies about the holding of elections to the office of District Chief Executive for each district between 18 August and 30 August 1993.

One issue that featured rather prominently during the course of arguments before us was whether the President has a mandate under article 243(1) of the Constitution to initiate the appointment of district chief executives. Learned counsel for the plaintiff submitted that under article 234(1) the proper body to initiate the appointment of a District Chief Executive is the district assembly, and that upon a strict interpretation of the article the President has no authority whatsoever to initiate the appointment of the District Chief Executive. His only role, according to counsel, is to appoint the District Chief Executive after the assembly had given its approval of the candidate. He urged that if the President is allowed to initiate the appointment he would be undermining the concept of non-partisanship in the Local Government structure, i.e. the concept of insulating the Local Government system from party-political involvement, because those that the President will nominate will just be members of his political party. The learned Attorney-General controverted this submission. He was of the view that by virtue of article 243(2)(a) which stipulates that the District Chief Executive shall be the chief representative of the central government in the district the President has the power to nominate a candidate for the office, and that it will be out of place to say that the assembly should initiate the appointment.

The arguments raise a very significant constitutional issue, and one would have expected that the plaintiff would plead the issue to give fair notice of its case to the defendants. It will be a denial of justice for the defendant to be taken unawares. See the case of Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at pp 238-239. They must not have the misfortune of being adjudged on a new issue not previously pleaded by the plaintiff, and must not be condemned without being afforded an opportunity to prepare to face the issue - see also Allotey v Quarcoo [1981] GLR 208 at 213. The importance of the issue notwithstanding I would refrain from expressing any opinion on it. It seems to me that other relevant, crucial and vital legal issues are involved which have not been adequately ventilated, and I would not like to hazard an opinion that may pre-empt a well-reasoned judgment on the issue.

The defendants raised an issue of estoppel by conduct. They contended in paragraph 6 of their statement of case that “the plaintiff is estopped by inaction and acquiescence from contending that the district assemblies as presently constituted are not properly constituted for the discharge of the functions of the district assemblies under the Constitution”. The learned Attorney-General argued that the plaintiff stood by unconcerned when the district assemblies elected their representatives to the Council of State in accordance with article 89(2)(c), and is therefore estopped from now contending that the assemblies cannot discharge any duty under the Constitution. In support of this contention the Attorney-General relied on the case of Nartey v Mechanical Lloyd Assembly Plant [1987-88] 2 GLR 314. I think this line of argument, with all due respect, is as misconceived as the Nartey case is irrelevant, and I shall proceed to show why presently.

Nartey v Mechanical Lloyd Assembly Plant was a case where lands at Fafraha attached to the La Stool remained in the care and possession of the stool’s sub-stool at Fafraha. The La Mantse was alleged to be the true owner of the lands, but had intentionally for very many years led the general public by its deliberate omission or failure to assert its ownership, to believe that the Agbawe family of Fafraha were the owners of the lands. This court held, as the head note put it, that:

 “... the stool had by its inaction permitted the general public including the appellant and even the government to believe that it had no objection to the conveyances made by the Agbawe family. In the circumstance the stool could not now assert any title against an innocent purchaser who had dealt with the Agbawe family following the La Stool’s inaction and acquiescence. Consequently, as against the appellant, the La stool was estopped by conduct from impugning the appellants’ title which had been perfected by registration and his possessory acts.”

Now touching on the irrelevancy of Nartey to the present case I would say that section 26 of the Evidence Decree 1975 (NRCD 323) has a vivid exposure of the issues of estoppel in pais. The section states:

 “Except as otherwise provided by law including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest.”

The learned Attorney-General is saying that the New Patriotic Party stood by unconcerned when the district assemblies elected their representatives to the Council of State in accordance with article 89(2)(c), and is therefore estopped from challenging the assemblies going ahead in approving district chief executives in accordance with article 243 (1) of the Constitution. One would ask, what part did the New Patriotic Party play letting the district assemblies elect their representatives to the Council of State? Did that party intentionally and deliberately cause or permit the assemblies to believe in any particular state of affairs or that what they were doing was correct before they embarked on the election of their representatives? Or did they act on any act or omission on the part of the New Patriotic Party to believe that what they were doing was constitutional for the correctness of that act or thing to be conclusively presumed against the New Patriotic Party or its successors in interest in any constitutional proceedings between the New Patriotic Party and the district assemblies or the government of the National Democratic Congress? Does there exist any sufficient relationship of proximity or neighbourhood or community of interest between the New Patriotic Party and the district assemblies or the National Electoral Commission such that in the reasonable contemplation of the New Patriotic Party, silence or acquiescence on its part may be likely to induce the latter to think that the New Patriotic Party approves of the action taken by them? The answer is definitely no. Is the learned Attorney-General saying that by the New Patriotic Party looking on unconcerned when the district assemblies were acting in a manner they thought was in accordance with the spirit and letter of the Constitution, the New Patriotic Party is now estopped from challenging them on another issue of this nature?

Estoppel in pais, referred to as estoppel by conduct, is a well-known legal concept. In the English case of Moorgate Mercantile v Twitchings [1975] 3 WLR 286, Lord Denning MR explained the concept at pp 296-297 thus:

 “Estoppel ... is a principle of justice and equity. It comes to this: when a man, by his words or conduct, has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so.”

What assumption of fact has the New Patriotic Party caused the district assemblies or the National Electoral Commission to adopt or accept for the purpose of whatever legal relations that exist between the two parties? Did the New Patriotic Party by their conduct permit the district assemblies to elect their representatives to the Council of State, or assured them that what the assemblies were doing was constitutionally valid for the New Patriotic Party to be estopped from challenging the steps the assemblies want to take now? In this context the Australian case of Grundt v Great Boulder Pty Gold Mine Limited (1937) 59 CLR 641 comes to mind. In Moorgate Mercantile v Twitchings at p 297 Lord Denning quoted with approval the opinion of Dixon J in Grundt v Great Boulder Pty Gold Mine Limited at p 674 as indicating the equitable grounds on which estoppel by conduct is based. The passage said:

 “The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations.”

Lord Denning continued:

 “... the principle ... [at] any rate, ... applies to an assumption of ownership or absence of ownership. This gives rise to what may be called proprietary estoppel. There are many cases where the true owner of goods or of land had led another to believe that he is not the owner, or, at any rate, is not claiming an interest therein, or that there is no objection to what the other is doing. In such cases it has been held repeatedly that the owner is not to be allowed to go back on what he has led the other to believe. So much so that his own title to the property be it land or goods, has been held to be limited or extinguished, and new rights and interests have been created therein. And this operates by reason of his conduct — what he has led the other to believe — even though he never intended it ... [W]hen a man by his words or by his silence, or acquiescence, leads another to believe that he is not the owner and has no interest in the goods, whereupon the other buys them or sells them to an innocent purchaser ... [it] is held that the true owner cannot afterwards assert that they were his. The title to the goods is transferred to the buyer...”

The Master of Rolls further said:

 “Those cases have their parallel in equity when the owner of land, by his conduct, leads another to believe that he is not the owner, or, at any rate, that the other can safely spend on it. It is held that he cannot afterwards assert his ownership so as to deprive the other of the benefit of that expenditure.”

I would in the context of the case before us say that these cases do not have their parallel in constitutional cases. Estoppel deals with private rights not constitutional rights. The silence of the New Patriotic Party to challenge the district assemblies from electing representatives to the Council of State cannot make any difference to the interpretation of article 89(2)(c) of the Constitution unless that decision is in consonance with the postulates of the Constitution. As was rightly pointed out by this court in the case of Tuffuor v Attorney-General [1980] GLR 637 at p 656:

 “This court does not think that any decision which is contrary to the express or implied provisions of the Constitution can be validated by equitable doctrines of estoppel. No person can make lawful what the Constitution says is unlawful. No person can make unlawful what the Constitution says is lawful. The conduct must conform to the due process of law as laid down in the fundamental law of the land or it is unlawful and invalid.”

The learned Attorney-General has urged this court to revisit the Tuffuor case with a view to reversing it to suit his line of thinking, but it seems to me that his argument has no justification on any reasonable principle, and can only be described as capricious. In effect he is urging this court to use its power under article 129(3) of the Constitution to depart from a previous decision of this court when it appears to it right to do so. This will involve a departure from the Tuffuor case or overruling it. I expected that having thus urged this court to undertake such assignment the learned Attorney-General would advance cogent reasons and convince this court of the steps he wishes it to take, but throughout his submission he never suggested any reasons. Perhaps he relied on this court to make the necessary research in his favour. I have given due consideration to the reasoning of this court in the Tuffuor case and have reached the conclusion that the proper exercise of judicial functions requires this court to resist any departure from it in so far as it affirmed that any decision which is contrary to the express or implied provisions of the Constitution cannot be validated by equitable doctrines of estoppel.

Furthermore, since Nartey v Mechanical Lloyd Assembly Plant Ltd, a private land case decided on the equitable doctrine of estoppel, is based on section 26 of the Evidence Decree, 1975 (NRCD 323) and cases like Moorgate Mercantile v Twitchings (supra) and Grundt v Great Boulder Pty Gold Mines Ltd (supra) the learned Attorney-General cannot seek refuge under that case.

It is for these reasons that I opted to go along with my learned brothers that the order of injunction requested by the plaintiff should be granted.

Injunction granted accordingly.