|
ATUGUBA, JSC
On 20/3/2013 the plaintiffs
issued a writ J1/10/2013 against
the Attorney-General claiming as
follows:
“1. A declaration that on
a true and proper interpretation
of Articles 4 and 11(4A)(5)(6)
of the 1992 Constitution,
Akuse which formed an integral
part of the erstwhile Osudoku
Local Council constitutes
part of the Greater Accra
Region, vide the Greater Accra
Region Law, 1982, PNDCL 26 as
amended by the Greater Accra
Region (Amendment) Law, PNDCL 28
and Executive Instrument 30
of 1969.
2. An order directing the
Ministry of Local Government and
Rural Development and the Lands
Commission to re-define the
existing boundary map for the
Greater Accra Region to conform
precisely with PNDCL 26 as
amended by PNDCL 28.
3. A declaration that LI
1983 of 19th October,
2010, which seeks to place Akuse
within the Eastern Region of the
Republic of Ghana is in
violation or inconsistent with
the letter and spirit of
Articles 4, 11(4)(5)(6) and
PNDCL 26 as amended by PNDCL 28
and to the extent of the
inconsistency is null and void.)
4. Any further reliefs or
directions which the court may
deem appropriate to give full
effect or to enable effect to be
given to the letter and spirit
of the 1992 Constitution in this
matter generally and
particularly Articles 4(1) and
11(4)(5)(6) of the
Constitution.”
Upon application the 2nd
to 6th defendants
were joined by this court to the
said writ.
However on 7/3/2014 the 2nd,
5th and 6th
defendants filed the following
preliminary objection to the
said writ:
“TAKE
NOTICE
that the above-named 2nd,
5th and 6th
defendants intends at the
hearing of the instant action,
to rely on the following
preliminary objection viz:
The very question or issue
raised for consideration by the
instant action has already been
determined by the Court in a
case binding on plaintiffs and
therefore, the suit is
incompetent and must be
dismissed in limine.
AND TAKE NOTICE
that the grounds of the
objection are as follows:
1.
The substance of the Plaintiffs’
action seeks to raise
substantially the same questions
as were adjudicated upon in the
case of Charles Mate Kole &
Azago Kwesitsu I vrs Electroal
Commission & Attorney-General
[2012] SCGLR 244.
2.
The subject matter (status of
Akuse whether as an Osudoku or
Manya Krobo town) is the same.
3.
The judgment of this Honourable
Court in the case of Charles
Mate Kole & Azago Kwesitsu I vrs.
Electoral Commission &
Attorney-General (supra) being a
constitutional matter is binding
on all citizens of Ghana
including plaintiffs herein.
4.
Even though article 2 of the
Constitution empowers a person
who alleges that an enactment or
anything contained in or done,
under the authority of that or
any other enactment; or any act
or omission of any person to be
in violation of the
Constitution, to bring an action
in this Honourable Court to that
effect, same does not warrant
the repeated filing of the same
or similar actions which raise
the same legal point(s),
especially where the subject
matter is the same.
5.
The instant action is therefore
an abuse of the process of the
Court. Plaintiffs herein do not
have either the right or
capacity to raise for
determination by the Court the
same issues or questions as were
resolved in the “Mate Kole &
Azago Kwesitsu” case.”
The plank upon which the
plaintiffs seek to revisit this
matter is evidenced by
paragraphs 6 to 10 of their
statement of case as follows:
“6.
By the provisions of The Greater
Accra Region Law, 1982 (PNDCL
26), the Greater Accra Region
was created and by S.2 of PNDCL
26, the newly created Greater
Accra Region compromised solely
of the areas of authority of the
Councils specified in the first
column of the first schedule of
the law and more particularly
described in the 2nd
schedule of the law and
delineated in the 3rd
schedule of PNDCL 26. The first
schedule comprised of the
following councils:
“(a) The earstwhile Accra
Municipal Council
(b) The Tema District
Council
(c) Erstwhile Ada Local
Council
(d) Erstwhile
Ga-Adangbe-Shai Local Council
Please see Exhibit “PO”
7. Subsequently, PNDCL 26
was amended by the Greater Accra
Region (Amendment) Law, 1982, (PNDCL
28) which sought to include the
“Erswhile Osudoku Local Council”
as part of the Greater Accra
Region. Unfortunately, PNDCL 28,
was not as detailed as PNDCL 26
but there is no dispute about
the fact that PNDCL 28, expanded
the boundaries of the Greater
Accra Region with the inclusion
of the area of jurisdiction then
known as the Osudoku Local
Council. Please see exhibit
“PO1”.
8. the Osudoku Local
Council was itself established
by the Local Government
Ordinance 1951 (No. 29 of 1951)
and its area of jurisdiction was
defined as “The area of the
Osudoku state but not East of 0o20'
East Longitude of Greenwich”.
Thus the area known as the
Osudoku Local Council can be
determined by the survey and
mapping of the area described in
the said Local Government
Ordinance which seeks to exempt
the E of 0o20' East
Longitude of the Greenwich.
Please see Exhibit “PO2”.
9. By the provisions of
the State Lands (Akuse-Asutuare
Sugar Project) instrument, 1969
(E.I.30), the then National
Liberation Council acquired land
described in the schedule
therein in the “Yilo Krobo
Osudoku District” which included
Akuse Lands. Please see exhibit
“P03”.
10. An interpretation of the
schedule contained in E.1.30 as
shown on plan No. L.D.714/39102
indicates that the town of Akuse
is located as having National
Coordinates of 520000 Northings
and 1310000 Eastings within the
Osudoku Traditional Area. This
places Akuse within the area of
jurisdiction of the erstwhile
Osudoku Local Council set up by
the Local Government Ordinance
(1951). These findings have
recently been confirmed by the
Survey and Mapping Division of
the Lands Commission, in their
letter dated the 15th
of January, 2013. Please see
Exhibit “PO4.”
However this court had earlier
in Charles Mate Kole and
Azago Kwesitsu I vrs. Electoral
Commission & Attorney-General
[2012] SCGR 244 held as
follows... “whether Akuse fell
within the Greater Accra Region
or Eastern Region, could not be
resolved by the Supreme Court
without resolving the nature,
extent and area of the Osudoku
State, an issue which clearly
evinced a cause or matter
affecting chieftaincy.”
The crucial provisions of the
“INSTRUMENT ESTABLISHING THE
OSUDOKU LOCAL COUNCIL” made
under s.3 of the Local
Government Ordinance 1951 (No.
29 of 1951) are ss.5 and 9 of
the said Instrument as follows:
“3. From and after the tenth
day of November 1952, there
shall be a council to be known
as the Osudoku Local Council for
the area specified in section 6
of this instrument.
x x x
5. The area of authority
of the council shall be the area
of the Osudoku State but not
East 0.20o East
longitude of Greenwich”
It is quite clear from the
foregoing that the constitutive
Instrument of the erstwhile
Osudoku Local Council which by
PNDCL 28 amending PNDCL 26 was
brought into the Greater Accra
Region has not set out the
territorial areas of the Osudoku
State. An indication as to some
of those areas is disclosed by
the electoral wards set out in
the Schedule referred to in s.9
thereof. There is no reflection
of Akuse therein. But what is
clear is that those wards are
expressed to be part of the said
Osudoku state.
Quite clearly then the complete
ascertainment of the nature,
extent and composition of the
said Osudoku state is, as a
customary state, a matter for
the chieftaincy tribunals.
It follows therefore that the
plaintiffs’ new plank that Akuse
is not beyond East 0.20o
East Longitude of
Greenwich does not necessarily
per se mean that Akuse is within
the Osudoku State. It may or
may not be depending on the
decision of the relevant
competent Chieftaincy Tribunal
and the cartographical
limitation of East of 0.20o
East longitude of
Greenwich.
It follows that we are driven
back to the position taken by
this court in the aforementioned
earlier ruling of this court in
Charles Mate Kole & Azago
Kwesitsu I vrs Electoral
Commission & Attorney-General,
supra.
For all the foregoing reasons
the preliminary objection is
upheld and the plaintiffs’ writ
is accordingly struck out.
(SGD)
W . A. ATUGUBA
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)
N.
S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO- BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
J.
B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
OSAFO BUABENG
(WITH HIM YAW TWUMASI AND
WILLIAM TETTEH FOR
PLAINTIFFS/RESPONDENTS.
SYLVIA ADUSU
(CSA) WITH HER KOFI AMETEPE
FOR THE 1ST
DEFENDANT/RESPONDENT.
GODFRED
YEBOAH DAME (WITH BOYE AGYEKUM)
FOR 2ND, 5TH
AND 6TH
DEFENDANTS/APPLICANTS.
CHRISTOPHER
KOFI KOKA FOR THE 4TH
DEFENDANT/RESPONDENT
|
