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Constitutional law –
Interpretation - Supreme Court -
Invoke our original jurisdiction
- General Legal
Council - Professional Law
Course – Qualifying Law
Certificate of Examination -
Whether the Plaintiff has met
the pre-condition for the
exercise of the exclusive
original enforcement and
interpretive jurisdiction of the
Supreme Court - Whether there is
a real or genuine issue of
enforcement and interpretation
of the Constitution - Whether
the instant action is a public
interest action - Whether the
General Legal Council, through
Regulations 1 and 2 of LI 2355,
has created a monopolist
provider of the Professional
Course -
HEADNOTES
The
Plaintiff’s case simply is that
the 2nd Defendant has
created a monopoly over the
provision of
Professional Law Course at
the Ghana Law School in
violation of Article 25 (1) (b)
and that the distinction between
the
Professional Law Course, run by
the Ghana School of Law, and the
Academic Law Course, run by
approved Universities is
arbitrary and a violation of
Article 296 (b) of the 1992
Constitution. The Defendants
on the other hand contend that
the writ issued by the Plaintiff
disclosed no cause of action in
the sense that it is not an
action for which the original
jurisdiction of this court under
Article 2 (1) and 130 (1) of the
1992 Constitution should be
invoked, The Defendants have
argued that the General Legal
Counsel in particular has not
violated the 1992 Constitution
in executing its mandate under
the Legal Profession Act, Act 32
to provide and regulate legal
education in Ghana and the
Plaintiff in this action are all
clear and call for no
interpretation. The Defendants
accordingly urged this court to
dismiss the Plaintiff’s action.
HELD
since
the said reliefs 4, 5, 6, 7, and
8 are not cognizable under our
original jurisdiction under
Articles 2 (1) and 130 (1) of
the Constitution they are all
struck out.
Now regarding reliefs
1, 2, and 3 endorsed on the
writ, we come to the firm
conviction, after our evaluation
of same, that this Court’s
jurisdiction to interpret or
enforce the Constitution under
Articles 2(1) and 130 (1) has
not been properly invoked and
for that matter the action
commenced by the Plaintiff ought
to be dismissed. This Court has
resisted the abuse of its
exclusive original
interpretative and enforcement
jurisdiction; and its laudable
policy not to assume
jurisdiction in actions that
fall short of the measuring
threshold, such as in this case,
should not be compromised or
lowered in any way. Now, having
so held that this Court’s
original jurisdiction has been
wrongly invoked by the
Plaintiff, we deem it
unnecessary to address issues b,
c, d, e, and f of the Joint
Memorandum of Issues as agreed
by the parties. The entire
action of Plaintiff is
accordingly dismissed.
STATUTES
REFERRED TO IN JUDGMENT
1992 Constitution
Legal Profession Act, Act 32
Legal Profession(Professional
and Post- Call Law Course)
Regulations, 2018 (L.I 2355).
CASES REFERRED TO IN JUDGMENT
Republic
v. Special Tribunal; Ex-parte
Akosah{1980} GLR 592
Ghana Bar Association v.
Attorney –General and Another (Abban
Case) [2003-2004] 1SCGLR 250;
Osei Boateng v. National Media
Commission and Appenteng [2012]
SCGLR 1038;
Bimpong- Buta v. General Legal
Council [2003-2004] 2SCGLR 1200
Daasebre Asare Baah III & 4
Others v. The Attorney- General
{2010} SCGLR 463
James Kwabena Bomfeh Jnr. v.
Attorney-General, Writ No
31/14/17 judgment of 23rd
January 2019:
National Democratic Congress v.
Electoral Commission [2001-2002]
SCGLR 954
Adjei
Ampofo v. Attorney –General
[2003-2004] SCGLR 411
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
MARFUL-SAU,
JSC: -
COUNSEL
KOFI BENTIL FOR THE PLAINTIFF.
SYLVESTER WILLIAMS, CHIEF STATE
ATTORNEY WITH AURIEL ASARE
BOATENG, PRINCIPAL STATE
ATTORNEY FOR THE 1ST
DEFENDANT.
NANA YAW NTRAKWA WITH PAULINA
AKOSUA DANSO FOR THE 2ND
DEFENDANT
MARFUL-SAU, JSC: -
The Plaintiff before us is
described in his writ as a
concerned citizen of the
Republic of Ghana who is
interested in upholding
compliance with the
1992 Constitution
and the Rule of Law. In this
action he seeks to
invoke
our original jurisdiction
against 1st and 2nd
Defendants alleging that the 2nd
Defendant in particular is
engaged in activities that are
inconsistent with Articles
25 (2)
and 296 (b) of the 1992
Constitution. What are these
activities the subject of
Plaintiff’s complainant? The
Plaintiff’s case simply is that
the 2nd Defendant has
created a monopoly over the
provision of Professional Law
Course at the Ghana Law School
in violation of
Article
25 (1) (b) and that the
distinction between the
Professional Law Course, run by
the Ghana School of Law, and the
Academic Law Course, run by
approved Universities is
arbitrary and a violation of
Article 296 (b) of the 1992
Constitution. Based on these
facts the Plaintiff claims the
following reliefs per his writ:-
1. A declaration that
the current monopoly enjoyed by
the Ghana School of Law in the
provision of Professional and
Post- Law Courses that prepare
candidates for the Qualifying
Certificate of Examination
violates Article 25(2) of the
1992 Constitution.
2. A declaration that
pursuant to Article 25 (2) of
the Constitution,
accredited public and private
universities have the right, at
their own expense, to establish
and maintain Law Faculties to
offer the Professional Law
Course that prepares students
for the
Qualifying Law Certificate of
Examination.
3. A declaration that
the distinction between the
Professional Law Course, run by
the Ghana School of Law, and the
Academic Law Course, run by
approved universities, is
arbitrary and capricious and
done only to further the
monopoly power of the Ghana
School of Law in violation of
Article 296(b) of the
Constitution.
4. An order directing
the
General Legal Council to
provide regulations that allow
approved law faculties and other
private institutions to provide
the Professional Course, or
otherwise integrate this course
in their curriculum, the
completion of which entitles
students to take the Qualifying
Certificate Examination or
Examinations, pursuant to
Section 13 of Act 32.
5. An order of
interlocutory injunction to
restrain the Defendants whether
by themselves, their agents,
assigns, privies, servants and
whomsoever of whatever
description from causing the
School of Law to be opened for
new students, pending the final
determination of the substantive
suit.
6. Any other reliefs
that this Court deems necessary
in exercise of its legal and
equitable powers.
7. Costs for any court
expenses and counsel fees.
8. An expedited and
immediate hearing of the cause
taking into account the
significant public interest in a
timely resolution and the
necessity of preserving the
value of the aforementioned
reliefs.
The Defendants on the other hand
contend that the writ issued by
the Plaintiff disclosed no cause
of action in the sense that it
is not an action for which the
original jurisdiction of this
court under Article 2 (1) and
130 (1) of the 1992 Constitution
should be invoked.
The
Defendants have argued that the
General Legal Council in
particular has not violated the
1992 Constitution in executing
its mandate under the Legal
Profession Act, Act 32 to
provide and regulate legal
education in Ghana. The 2nd
Defendant in particular posited
that if Plaintiff’s case is that
the Council had acted contrary
to the Legal Professional Act,
Act 32, the remedy was for the
Plaintiff to vindicate his case
at the High Court. The
Defendants further argued that
the two Constitutional
provisions relied upon by
the
Plaintiff in this action are all
clear and call for no
interpretation. The Defendants
accordingly urged this court to
dismiss the Plaintiff’s action.
On the 9th of June
2020, this Court and the parties
by consent adopted the
Memorandum of Issues filed
jointly by the Plaintiff and the
2nd Defendant on the
28th February, 2020.
The issues adopted were as
follows:-
a.
Whether
the Plaintiff has met the
pre-condition for the exercise
of the exclusive original
enforcement and interpretive
jurisdiction of the Supreme
Court?
b.
Whether
there is a real or genuine issue
of enforcement and
interpretation of the
Constitution?
c.
Whether
the instant action is a public
interest action?
d.
Whether
the General Legal Council,
through Regulations 1 and 2 of
LI 2355, has created a
monopolist provider of the
Professional Course?
e. If the General Legal
Council has created a monopolist
provider of the Professional
Course, whether that creation
violates Article 25 (2)?
f. Whether the
bifurcation of legal education
into an ‘’ academic course’’ and
a ‘’professional course’’ where
the latter can be taught only at
the Ghana School of Law is
arbitrary and capricious in
violation of Article 296 (b)?
We intend to address issue (a)
of the Joint Memorandum of
Issues stated above since it is
very fundamental in nature. The
issue is whether the Plaintiff
has met the pre-condition for
the exercise of the exclusive
original enforcement and
interpretative jurisdiction of
the Supreme Court. The Plaintiff
endorsed his writ issued on the
8th of October 2019
as invoking the original
jurisdiction of this Court,
under Articles 2 (1) and 130(1)
of the 1992 Constitution. The
said provisions of the
Constitution are reproduced
below:-
“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.
130 (1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in---
(a) all matters relating to the
enforcement or interpretation of
this Constitution; and
(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution”
Now, the Defendants have argued
that the constitutional
provisions relied upon by the
Plaintiff in this action does
not call for any interpretation
and neither has he demonstrated
and proved the allegation that
the 1st Defendant has
breached any provision of the
Constitution for which the
enforcement jurisdiction of this
Court should be invoked.
This Court has in several cases
determined or defined the
circumstances under which its
original jurisdiction under
Articles 2 (1) and 130 (1) could
be invoked. The Court has
consistently held that where
words or provisions of the
Constitution are plain, clear
and unambiguous and there is no
genuine dispute as to their
meaning, no constitutional
interpretation arises and the
Court would decline any
invitation, however attractive,
to embark upon any exercise of
interpretation in the
circumstances. In much the same
way, Article 2(1) of the
Constitution empowers this Court
to monitor and ensure compliance
of the Constitution and for that
matter a person who alleges
non-compliance and invokes the
said Article 2 (1) must
demonstrate clearly that the
acts or omission complained of
are inconsistent with particular
provisions of the Constitution.
In other words, the
inconsistency of the act or
omission must be plain and clear
from the constitutional
provisions.
In the oft cited case of
Republic
v. Special Tribunal; Ex-parte
Akosah{1980} GLR 592 at 605,
the pre-requisite for invoking
the original jurisdiction of
this Court was stated thus:
(a) where the words of the
provision are imprecise or
unclear or ambiguous. Put in
another way, it would arise if
one party invites the court to
declare that the words of the
article had double meaning or
were obscure or else mean
something different from or more
than what they say;
(b) where a rival meaning
have been placed by the
litigants on the words of any
provision of the Constitution;
(c) where there was a
conflict in the meaning and
effect of two or more articles
of the Constitution, and the
question was raised as to which
provision should prevail;
(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 interpretation.
This Court has consistently, in
a plethora of cases followed the
above principle of law and in
these proceedings, we do not
intend to depart from the
decisions in the line of cases
including,
Ghana Bar Association v.
Attorney –General and Another (Abban
Case) [2003-2004] 1SCGLR 250;
Osei Boateng v. National Media
Commission and Appenteng [2012]
SCGLR 1038; Bimpong- Buta v.
General Legal Council
[2003-2004] 2SCGLR 1200.
What it means is that a
Plaintiff seeking to invoke the
original jurisdiction of this
Court under Articles 2 (1) and
130 (1) must satisfy at least
one of the threshold
requirements listed above.
Now, in determining whether the
plaintiff is properly before
this court, we need to examine
the reliefs so endorsed on the
writ. In the case
of
Daasebre Asare Baah III & 4
Others v. The Attorney- General
{2010} SCGLR 463, this
Court speaking through
Georgina Wood, CJ, stated thus
“to identify the real substance
of actions brought before the
court, we have observed that the
proper approach is to examine
the writ as well as the
pleadings; in this type of
litigation, the reliefs and the
facts verified by affidavit……’’
We therefore begin with reliefs
1 and 2 since they all relate to
the issue alleging a monopoly
created by the 2nd
Defendant in providing
Professional and Post Call
Courses at the Ghana School of
Law, which according to the
Plaintiff is contrary to Article
25 (2) of the Constitution. We
deem it necessary to re-produce
the said Article 25 of the
Constitution below:
‘’25. (1) All persons shall have
the right to equal educational
opportunities and facilities and
with a view to achieving the
full realization of that right—
(a) basic education shall be
free, compulsory and available
to all;
(b) secondary education in its
different forms, including
technical and vocational
education, shall be made
generally available and
accessible to all by every
appropriate means, and in
particular, by the progressive
introduction of free education;
(c) higher education shall be
made equally accessible to all,
on the basis of capacity, by
every appropriate means, and in
particular, by progressive
introduction of free education;
(d) functional literacy shall be
encouraged or intensified as far
as possible;
(e) the development of a system
of schools with adequate
facilities at all levels shall
be actively pursued.
(2) Every person shall
have the right, at his own
expense, to establish and
maintain a private school or
schools at all levels and such
categories and in accordance
with such conditions as may be
provided by law.’’
The Plaintiff’s claim is that
the provision of Professional
and Post- Call Law Course by the
2nd Defendant only at
the Ghana School of Law creates
a monopoly and as such
contravenes Article 25 (2) of
the Constitution quoted above.
We hold that the said Article 25
(2) is very clear and admits of
no ambiguity and as such does
not call for any interpretation,
neither does the provision of
the Professional and the
Post-Call Law Courses by the 2nd
Defendant at the Ghana School of
Law, amounts to a monopoly since
no such evidence has been
demonstrated by the Plaintiff.
We therefore fail to see any
violation of Article 25 (2) of
the constitution by the 2nd
Defendant to give rise for an
enforcement order under Article
2 (1) of the Constitution.
We observed that in his
Statement of Case learned
Counsel for Plaintiff sought to
argue that the provision of
Professional Law Course is also
envisaged under Article 25 (2)
of the Constitution, which
argument was rejected by Counsel
for the 2nd Defendant in his
Statement of Case. Counsel for
the Plaintiff therefore argued
that since the Plaintiff and the
2nd Defendant are not
ad idem on the true meaning of
the phrase ‘’ school or schools
at all levels and categories’’
in Article 25 (2), the Plaintiff
has properly invoked the
interpretative jurisdiction of
this court and as such, is
properly before this court. We
regard this argument as very
fanciful and we would not be
lured by same to invoke our
interpretative jurisdiction just
because a party places an absurd
meaning on words or phrases on
constitutional provisions.
We do remind ourselves of what
Adinyira (Mrs.), JSC stated in
the case of
James
Kwabena Bomfeh Jnr. v.
Attorney-General, Writ No
31/14/17, unreported judgment of
Supreme Court dated 23rd
January 2019:
‘’ A Constitutional issue is not
raised on account of a
Plaintiff’s absurd, strained and
farfetched understanding of
clear provisions in the
Constitution. For a person to
assert a manifestly absurd
meaning contrary to the very
explicit meaning and effect of
clear words in the Constitution
does not mean that a genuine
issue of interpretation of some
relevant Constitutional
provision has arisen.’’
Again, as we have observed in
this judgment, no evidence has
been adduced in these
proceedings that the 2nd
Defendant has prohibited any
citizen or body from
establishing a private school or
schools of any level or category
contrary to Article 25 (2), for
which our jurisdiction under
Article 2 (1) could be invoked
by the Plaintiff. We wish to
recall the dictum of Wiredu JSC
(as he then was) in
National Democratic Congress v.
Electoral Commission [2001-2002]
SCGLR 954 @
958. The learned jurist
delivered thus:
‘’ where an act or omission of
any person is challenged under
article 2 of the 1992
Constitution, such an act or
omission must be shown to have
taken place, and it must be
shown that such act or omission
falls foul of a specific
provision of the Constitution,
or at the very least, the spirit
of an actual provision.’’
We will now address relief 3 as
endorsed on the Plaintiff’s writ
in our assessment as to whether
the Plaintiff has properly
invoked our original
jurisdiction as set down in
issue (1) of the agreed joint
Memorandum of Issues. Relief (3)
complains that the distinction
between the Professional Law
Course run by the Ghana School
of Law, and the Academic Law
Course, run by approved
universities is arbitrary,
capricious and done only to
further the monopoly power of
the Ghana School of Law in
violation of Article 296 (b) of
the 1992 Constitution.
Article 296 (b) of the
Constitution provides thus:
“the exercise of the
discretionary power shall not be
arbitrary, capricious or biased
either by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law.’’
We note that the separation of
the Professional Law Course run
by the Ghana School of Law and
the Academic Law Course run by
approved universities are all
grounded in substantive law and
not mere discretions exercised
by the 2nd Defendant
and the various approved
universities.
The provision of the
Professional Law Course
separately at the Ghana School
of Law is a product of the Legal
Profession Act, 1960, Act 32 and
the Legal
Profession(Professional and
Post- Call Law Course)
Regulations, 2018 (L.I 2355).
The Academic Law Courses are
provided separately not by the
discretion of the 2nd
Defendant but by the Statutes of
the various Universities that
have been approved to offer the
course. For the Plaintiff
therefore to argue that the
provision of the two courses at
different levels and by
different institutions is aimed
at furthering the monopoly of
the Ghana School of law and as
such contrary to Article 296 (b)
is very far-fetched and
untenable. The laws that govern
the operations of the two
courses have designated them as
‘’Professional’’ and
‘’Academic’’ and have nothing to
do with a discretion exercised
by the 2nd Defendant.
Clearly, we find the arguments
advanced by the Plaintiff on
this relief as very much
misconceived and without any
legal basis.
The rest of Plaintiff reliefs
namely, reliefs 4, 5, 6, 7 and 8
do not make reference to any
provision of the 1992
Constitution and we fail to see
how our original jurisdiction
under Articles 2 (1) and 130(1)
of the Constitution could be
invoked by the Plaintiff. The
Plaintiff’s failure to refer to
specific provisions of the
Constitution, which has been
breached by the Defendants,
clearly send his case outside
cases which can be brought under
the interpretative and
enforcement jurisdiction of this
Court. The Plaintiff cannot also
be seen as invoking the spirit
of the Constitution in seeking
the said reliefs as endorsed on
his writ, for the simple reason
that the spirit of the
Constitution must follow the
letter. Put differently, where
there is no letter there can be
no spirit. This Court, speaking
through Sophia Akuffo, JSC
(as she then was) in the
case of
Adjei
Ampofo v. Attorney –General
[2003-2004] SCGLR 411,
reiterated this position of
the law as follows:
‘’And although we wholehearted
acknowledge that a constitution,
as a living document, has in
addition to its written words,
also a spirit, when called upon
to exercise our jurisdiction to
the constitution, we must first
be referred to a specific
provision therein.’’
Accordingly,
since the
said reliefs 4, 5, 6, 7, and 8
are not cognizable under our
original jurisdiction under
Articles 2 (1) and 130 (1) of
the Constitution they are all
struck out.
Now regarding reliefs 1, 2, and
3 endorsed on the writ, we come
to the firm conviction, after
our evaluation of same, that
this Court’s jurisdiction to
interpret or enforce the
Constitution under Articles 2(1)
and 130 (1) has not been
properly invoked and for that
matter the action commenced by
the Plaintiff ought to be
dismissed. This Court has
resisted the abuse of its
exclusive original
interpretative and enforcement
jurisdiction; and its laudable
policy not to assume
jurisdiction in actions that
fall short of the measuring
threshold, such as in this case,
should not be compromised or
lowered in any way. Now, having
so held that this Court’s
original jurisdiction has been
wrongly invoked by the
Plaintiff, we deem it
unnecessary to address issues b,
c, d, e, and f of the Joint
Memorandum of Issues as agreed
by the parties. The entire
action of Plaintiff is
accordingly dismissed.
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
PROF. N. A. KOTEY
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KOFI BENTIL FOR THE PLAINTIFF.
SYLVESTER WILLIAMS, CHIEF STATE
ATTORNEY WITH AURIEL ASARE
BOATENG, PRINCIPAL STATE
ATTORNEY FOR THE 1ST
DEFENDANT.
NANA YAW NTRAKWA WITH PAULINA
AKOSUA DANSO FOR THE 2ND
DEFENDANT.
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