Constitution Law - Legal
Profession Act, (Act 32)
-Section 11 (7), 18(2), 296 (a)
and (b) and 297 of the
Constitution of 1992 -
Professional Law Course
Regulations, 1984, LI 1296
- Whether
the General Legal Council’s
imposition of an entrance
examination and interview
requirements for the
Professional Law Course violates
the 1992 Constitution- Whether
Regulation 3(b) of LI 1296 is
void for vagueness and is
therefore facially
unconstitutional -
HEADNOTES
The substance of the claim
before us is that students who
pursue courses of study leading
to the award of LL.B degrees by
the UG and other universities or
institutions approved by the
Council are entitled to be
admitted into the School at
Makola without any examination
or interview contrary to the
practice which has come into
being since 2015. The plaintiff
contends that the said
conditions which were introduced
by the Council, do not derive
their legitimacy from either Act
32 or LI 1296 and to that extent
are impositions and
unconstitutional. The submission
regarding the plaintiff’s
position is based essentially on
sections 13 and 14 of Act 32 and
regulations 2 and 3 of LI 1296.
According to the plaintiff, the
power conferred on the Council
to make arrangements for legal
education in sections 13 and 14
of Act 32 places an obligation
on it to do so by a statutory
instrument as was done by LI
1296. That having by means of
the required legislation,
enacted regulations that grant
opportunity to graduates of the
UG and other approved
universities or institutions
approved by it to study law,
such students are entitled under
the statutory framework to be
admitted to the School without
the existing conditions of a
qualifying examination and an
interview. Closely linked to
this is the urging that
administrative fiat cannot
co-exist as qualification
requirements for admission into
the School. In the view of the
plaintiff, examinations are only
provided for in respect of
non-law graduates who desire to
pursue a course of study to
enable them obtain qualifying
certificates to be enrolled at
the Ghana Bar. In so contending,
the plaintiff relies on
regulation 16 of LI 1296.
According to the plaintiff, a
similar provision is made in
regulation 23 regarding persons
who are qualified to practice
law in countries other than
Ghana but seek to be enrolled in
Ghana. -
HELD
:- By virtue of and in
accordance with article 2 (2) of
the Constitution, it is hereby
ordered that the Council puts in
place a mechanism that would
enable it to make changes to LI
1296 in terms of what it thinks
appropriate in order to properly
exercise its mandate under Act
32 having regard in particular
to sections 1, 13 and 14 by
putting in place a system of
legal education in terms of
articles 11(7) and 297 of the
constitution. As preparations
towards admissions in October
2017 have already been initiated
and bearing in mind that persons
who would avail themselves of
such opportunities are qualified
within the scope of regulations
2 and 3 as pronounced in this
judgment, we do not think it is
in the public interest to
interfere with such
arrangements. It is hereby
further ordered that the new
system should be in place within
6 months from today such that
admissions into the professional
law course in October 2018 shall
not be conducted under the
system which has informed the
declaration to which the
consequential orders herein
relate.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution. Articles
11(7), 297(d),23, 296(a), 296(b)
and 18(2)
PROFESSIONAL LAW COURSE
REGULATIONS, 1984 (LI 1296).
3(b)
Supreme Court Rules, 1996, CI
16, rule 46(1), 2 (a)
LEGAL PROFESSION ACT section 13
West Africa Examinations Council
Law, 1991 (PNDCL 255).
Evidence Act, NRCD 323
CASES REFERRED TO IN JUDGMENT
Sumaila Bielbiel v Dramani
[2011] 1 SCGLR 132;
Emmanuel Noble Kor v The
Attorney- General; an unreported
judgment in case number
J1/16/2015 dated 03 March 2016
Abu Ramadan (No 2) v Electoral
Commission and Another, an
unreported judgment in case
number J1/14/2016 dated May 05,
2016
Awuni v WAEC [2003-2004]1SCGLR
471,
Schechter v Canada [1992] 2 SCR
679
De Burca v Attorney- General
[1976] IR 38 (IESC),
The State (Byrne) v Frawley
[1978] IR 326 (IESC)
Carter v Canada (A-G) [2016] 1
SCR 679 (SCC).
Board of Regents v Roth 408
U.S. 564 (1972)
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:-
COUNSEL.
MS OFOSUA AMAGYEI FOR THE
PLAINTIFF
MRS DOROTHY AFRIYIE ANSAH FOR
THE 1ST DEFENDANT
KIZITO BEYUO FOR THE 2ND DEFENDANT
JUDGMENT
GBADEGBE JSC:-
We have before us in the
exercise of the original
jurisdiction a claim by which
the following reliefs are
sought:
1.
A declaration that the
General Legal Council’s
imposition of an entrance
examination and interview
requirements for the
Professional Law Course violates
Articles 11(7), 297(d),23,
296(a), 296(b) and 18(2) of the
1992 Constitution.
2.
A declaration that
Regulation 3(b) of LI 1296 is
void for vagueness and is
therefore facially
unconstitutional and a further
declaration that the Council
applied it to disqualify
eligible students who had
qualified under Regulation 2 of
LI 1296 for admission to pursue
the Professional Law Course.
3.
A declaration that
pursuant to Regulation 2 of LI
1296, a person is qualified for
admission to pursue Professional
Law Course at the Ghana School
of Law or other alternative
places of instruction specified
by the General Legal Council if
(a) he is of good behavior; (b)
he has a degree conferred on him
by the University of Ghana or
any other University or
Institution approved by the
Council, and (c) has passed the
examination in the list of 7
subjects specified at Regulation
2 (c).
4.
A declaration that the
General Legal Council’s
exclusion of persons who have
qualified under Regulation 2 of
LI 1296 from pursuing the
Professional Law Course violates
Articles 11(7),297(d), 23, 296
(a), 296(b) and 18 (2) of the
1992 Constitution.
5.
A declaration that the
General Legal Council’s failure
to specify alternative places
and mode of instruction for all
persons who meet the Requirement
for mandatory admission in
Regulation 2 of Li 1296, when
taken in the light of the
Council’s duty under section 13
of ACT 32, violates Articles 296
(a), 296(b) and 297(b) of the
1992 Constitution.
6.
A declaration that the
General Legal Council’s policy
on reviewing examination scripts
and quota violates Articles
23,296(a) and(b) and 18(2) of
the 1992 Constitution.
7.
An order directing the
General Legal Council to specify
within 60 days alternative
places and modes of instruction
that afford all persons meeting
the requirement in Regulation 2
of LI 1296 an opportunity to
pursue the professional
component of the legal
education, the completion of
which entitles them to take the
qualifying certificate
examination or examinations, as
determined by the Council
pursuant to section 13(e) of ACT
32.
8.
Any other remedies that
this Court deems necessary in
the exercise of its legal and
equitable powers.
For reasons of
convenience, we shall hereafter
in this delivery except where
reference to the bodies
mentioned are contained in a
statute or quotation refer to
them as follows:
General Legal Council -
(the Council), Ghana School of
Law - (the School), and
University of Ghana- (UG). As
the term Professional Law Course
may also feature extensively in
the judgment, we shall for like
reasons conveniently refer to it
as (PLC). Before proceeding
further, it is observed that the
practice whereby the plaintiff
exhibited certain documents to
the statement of case filed by
him in the matter herein is a
departure from the requirements
of the Supreme Court Rules,
1996, CI 16 in respect of the
original jurisdiction. In
particular, by rule 46(1), 2 (a)
of the Supreme Court Rules,
1996, CI 16, the plaintiff’s
obligation in terms of the
filing of a statement of case is
expressed in the following
words:
“(1) the
plaintiff may file a statement
of case for the plaintiff with
the writ or within fourteen days
of the filing of the writ file
the statement of the plaintiff’s
case.
(2) The statement of the
plaintiff’s case shall state,
(a)
The facts and particulars,
documentary or otherwise,
verified by an affidavit, on
which the plaintiff seeks to
rely;”
In our opinion, the better
practice is to state the effect
of the facts in the statement of
case and by means of an
affidavit state precisely the
facts giving rise to the action
together with exhibits (if any)
which lend credence to the facts
on which the plaintiff relies to
sustain the cause of action.
Where in the affidavit, the
facts on which reliance is
placed are not from the personal
knowledge of the plaintiff, then
he may refer to the source of
his information and by the
settled practice of the court in
regard to such matters depose to
them subject to the use of the
technical words or the accepted
term of art for example in
reference to documents as
follows that:
“I have before me a series of
correspondence exchanged between
the1st defendant and the 2nd
defendant concerning the matters
in issue before the court which
are contained in a bundle of
documents exhibited hereto and
marked as GB1 and GB 2
respectively and I am advised by
my counsel and verily believe
the same to be true that these
documents evince a clear
violation of article 187 of the
constitution which requires to
be pronounced upon by the court
in the exercise of its original
jurisdiction.”
A statement of case
within the context of the rules
seems to be different from the
current practice in some
jurisdictions such as England
where what was formerly known as
statement of claim has come to
be known as statement of case.
In our view, the use of the word
statement of case in rule 46
appears to be synonymous with
the requirement in the High
Court (Civil Procedure Rules),
2005, CI 47 regulating
applications for judicial review
under order 55 rule 6 and order
25 rule 3 regarding applications
for injunctions. In this regard,
a statement of case may be
likened to an address or speech
made by counsel to the court by
which are highlighted
consequences of law arising from
contentious or established facts
in respect of which the court’s
decision is sought. Thus, it is
permissible to refer in outline
to the effect of the facts but
not the material facts which
should be contained in the
affidavit so that if the
defendant desires to deny the
said facts, he may do so by an
affidavit filed by him setting
out his version of the facts
which establish his defence to
the action.
A statement of case, it
seems from a fair consideration
of the rule under reference is
not the process by which
contested facts are set out; for
there can be no effective denial
of such matters. As affidavits
are used in specified instances
when so authorised by rules of
court to prove factual matters,
the requirement regarding the
use of a verifying affidavit is
to afford parties the
opportunity of dealing with
factual matters solemnly with
the added sanction of perjury
which is not available if they
were proceeding for example by
way of a statement of claim. the
usual way of placing a
plaintiff’s plaint before the
High Court. As proceedings
herein have been contested by
the parties without regard to
the strict requirements of the
rules the observations are
intended for future guidance
only.
In order to fully
appreciate the rival contentions
of the parties in the action
herein, it is important to set
them out. The plaintiff’s case
from the processes filed is
anchored substantially on
sections 13 and 14 of the Legal
Profession Act, (Act 32) and
regulations 2 and 3 of
Professional Law Course
Regulations, 1984, LI 1296.
Considering the cumulative
effect of these provisions in
the light of specified
provisions of the constitution,
he contends that the present
system of legal education
operating in the country
regarding admission requirements
into the Law School by persons
who have obtained LL.B degrees
from UG and other approved
institutions of learning is
inconsistent with articles 11
(7), 18(2), 296 (a) and (b) and
297 of the Constitution of 1992
(hereinafter referred to as the
Constitution).In particular, he
argues that the new requirements
introduced by the Council
requiring such law graduates to
write an examination and attend
an interview before being
admitted into the School is
unconstitutional. Based on the
said premise, he seeks 7
declaratory reliefs from us. In
order to better appreciate the
import of the contentions placed
before us by the plaintiff,
reference is made in extenso to
some of the said statutory and
constitutional provisions. As
the plaintiff’s cause of action
is derived primarily from Act 32
and LI 1296, the relevant
provisions are set out before
the constitutional provisions.
It is hoped that the order of
listing these provisions in the
judgment would not be
misconstrued as disrespecting
the hierarchy of laws in article
11 of the constitution.
By section 13 of Act 32,
it is provided thus:
“(1) it shall be the duty
of the General Legal Council to
make arrangements-
(a)
For establishing a system
of legal education,
(b)
For selecting the
subjects in which those seeking
to qualify as lawyers are to be
examined,
(c)
For establishing courses
of instruction for students and
generally, for affording
opportunities for students to
read and to obtain practical
experience in the law,
(d)
For regulating the
admission of students to pursue
courses of instruction leading
to qualification as lawyer and
(e)
For holding examinations
which may include preliminary
and intermediary examinations as
well as final qualifying
examinations.”
Section 14 of the Act
also provides:
“The General Legal Council may
by legislative instrument, with
the approval of the Minister
make regulations concerning all
matters connected with legal
education and in particular
concerning
(a)
The conduct of
examinations, and the fees to be
charged to those sitting for the
examinations,
(b)
Admission to practice as
a lawyer, and
(c)
The issue of diplomas to
persons who have passed
examinations held by them.”
In the exercise of the
authority conferred on the
Council under section 14 of Act
32, LI 1296 was made on January
18, 1984. By regulation 1 of the
said legislative instrument, it
is provided in regulations 1, 2
and 3 in the following words:
“(1)
No person shall obtain the
Qualifying certificate referred
to in section 13 (3) of the Act,
unless he-
(a)
has pursued an appropriate
course of study in approved
subjects extending over not less
than two years at the Ghana Law
School, Accra,
(b)
has satisfied the
examiners at the Part 1 and Part
11 of the Qualifying Certificate
Examination.
2.
(1) A person shall qualify for
admission to the Professional
Law Course at the Ghana Law
School, if-
(a)
he is of good behavior;
(b)
he has a degree conferred
by the University of Ghana or
any other University or
Institution approved by the
Council; and
(c)
he has passed final
examinations in the following
subjects;
(1)
Law of Contract;
(2)
Law of Tort;
(3)
Criminal Law;
(4)
Law of Immoveable
Property;
(5)
Constitutional Law;
(6)
The Ghana Legal System and
its History; and
(7)
Equity and Succession.
(1)
For the purposes of this
regulation “final examinations”
means the final examination held
by the University of Ghana or by
any other University or
Institution approved by the
General Legal Council.
(2)
A person shall not be eligible
for admission to the
Professional Law Course if-
(a)
he is engaged in any
occupation which in the opinion
of the Council is incompatible
with the position of a student
seeking enrolment to be called
to the Ghana Bar;
(b)
he is for any reason
considered by the Council to be
unsuitable for admission.”
The relevant provisions of
the Constitution are:
Article 18(2):
“No person shall be subjected to
interference with the privacy of
his home, property,
correspondence or communication
except in accordance with the
law as may be necessary in a
free and democratic society for
public safety or the economic
well-being of the country, for
the protection of health or
morals, for the prevention of
disorder or crime or for the
protection of the rights r
freedom of others”
Article 11(7) provides
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) shall be published in the
gazette on the day it is laid
before Parliament; and
(c) come into force at the
expiration of the twenty-one
sitting days after being so laid
unless Parliament, before the
expiration of the twenty-one
days, annuls the Order, Rule or
Regulation by the votes of not
less than two-thirds of all the
members of Parliament.”
Article 23 provides:
“Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal.”
Article 296 (a) and (b)
also provide as follows:
“Where in this Constitution or
in any other law discretionary
power is vested in any person or
authority
(a)
The discretionary power
shall be deemed to imply a duty
to be fair and candid;
(b)
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.”
Article 297 (b) and (d)
further provide:
In this Constitution and
in any other law-
(b) Where a power is conferred
or a duty is imposed, the power
may be exercised and the duty
shall be performed, from time to
time, as occasion requires;
(c)
Where a power is
conferred to make any
constitutional or statutory
instrument, regulation or rule
or pass any resolution or give
any direction, the power shall
be construed as including the
power, exercisable in the same
manner, to amend or to revoke
the constitutional or statutory
instrument, regulation, rules or
direction as the case may be.”
It is observed that the
constitutional provision in
article 23 regarding the
exercise of discretionary power
is regulated by article 296 and
that whenever a violation of the
right granted in article 23 is
alleged, the proponent must call
in aid by way of proof one or
more of the incidents specified
in article 296 (a) or (b) in
order to succeed. Thus when one
is considering a breach of the
right to administrative justice,
the incidents which might bear
it out may be discerned from
article 296 in terms of its
candor, fairness, or absence of
arbitrariness, caprice, and or
bias. In the circumstances,
whenever a breach is alleged of
the right conferred in article
23, the trier of fact is
required to measure the act or
omission on which the allegation
is based against the parameters
mentioned in article 296 for the
purpose of making a
determination whether indeed,
there has been a breach within
the contemplation of article
2(1) of the Constitution.
Therefore, a consideration of
article 23 implies a
consideration of the
constitutional standards set out
in article 296. The
observations made in relation to
articles 23 and 296 apply with
equal force to the power
conferred on persons under
article 11 (7) to make
constitutional and statutory
instruments which power is
regulated by article 297 as is
the power conferred on the
Council under section 14 of Act
32. In considering therefore any
allegation touching and
concerning breach of article
11(7) of the constitution or the
power to make instruments under
any other law, the incidents of
breach may be inferred from
article 297 as it is the
provision which all such
instruments must conform to in
order to have the attribute of
legitimacy.
PLAINTIFF’S CASE.
The substance of the claim
before us is that students who
pursue courses of study leading
to the award of LL.B degrees by
the UG and other universities or
institutions approved by the
Council are entitled to be
admitted into the School at
Makola without any examination
or interview contrary to the
practice which has come into
being since 2015. The plaintiff
contends that the said
conditions which were introduced
by the Council, do not derive
their legitimacy from either Act
32 or LI 1296 and to that extent
are impositions and
unconstitutional. The submission
regarding the plaintiff’s
position is based essentially on
sections 13 and 14 of Act 32 and
regulations 2 and 3 of LI 1296.
According to the plaintiff, the
power conferred on the Council
to make arrangements for legal
education in sections 13 and 14
of Act 32 places an obligation
on it to do so by a statutory
instrument as was done by LI
1296. That having by means of
the required legislation,
enacted regulations that grant
opportunity to graduates of the
UG and other approved
universities or institutions
approved by it to study law,
such students are entitled under
the statutory framework to be
admitted to the School without
the existing conditions of a
qualifying examination and an
interview. Closely linked to
this is the urging that
administrative fiat cannot
co-exist as qualification
requirements for admission into
the School. In the view of the
plaintiff, examinations are only
provided for in respect of
non-law graduates who desire to
pursue a course of study to
enable them obtain qualifying
certificates to be enrolled at
the Ghana Bar. In so contending,
the plaintiff relies on
regulation 16 of LI 1296.
According to the plaintiff, a
similar provision is made in
regulation 23 regarding persons
who are qualified to practice
law in countries other than
Ghana but seek to be enrolled in
Ghana.
The gravamen of the
plaintiff’s complaint regarding
the requirements of examination
and interview is that the new
requirements for admission to
the School published to students
in the media and through other
means of communication is
unconstitutional. In his
contention, for such directives
to be lawful they must be made
in the same form as employed in
regard to LI1296 by virtue of
the statutory authority
conferred on the Council under
section 14 of Act 32.he failure
by the Council to enact the
appropriate regulations is said
to be in violation of articles
297 (b) and (d), the essence of
which provision is to enable the
Council to amend or revoke LI
1296 when the need arises for
the purpose of making
arrangements for legal education
in Ghana and consequently a
violation of articles 11(7), and
297 of the constitution.
The plaintiff also
contends that regulation 3(b) of
LI 1296 is vague and permits the
Council by resort to it to
prevent qualified students from
pursuing the PLC. In the words
of the plaintiff, the said
provision has been used as an
excuse, so to say, to deny
access to the School of
qualified students who have
finished the first stage of a
two stage training program to
become lawyers in Ghana by
terminating their legitimate
expectations arising from the
bifurcated approach inherent in
the system of legal education
set up under Act 32 and LI 1296
thereby depriving them of the
opportunity of entering the
School for the purpose of
pursuing the practical component
of the law course. Regarding
such deprivation, the plaintiff
alleges that it constitutes a
violation of their rights under
article 18 (2) of the
constitution.
The plaintiff further
complains about the failure of
the Council to make arrangements
in compliance with section 13
of Act 32 and regulation 2 of LI
1296 to establish a system of
legal education that would
enable students to be admitted
to institutions other than the
School to further their
education beyond graduation.
According to the plaintiff, the
words by which regulation 2 (1)
(b) of LI 1296 are expressed
envisages a situation in which
as a result of large numbers of
students who have pursued a
course of study leading to LLB
degrees in UG and other approved
institutions but who are unable
due to space constraints to
enter the School to continue
with the second stage of the
training in other universities
or institutions other than the
School in order that they can
subsequently be enrolled at the
Ghana Bar. This contention, the
plaintiff makes by virtue of the
fact the new requirements have
been made to control the
admission of a large number of
graduating students from UG and
other approved institutions; a
practice which it is alleged is
contrary to articles 23 and 296
of the Constitution as the means
employed namely an examination
and interview result in
admissions being based on a
rigid quota regime that is
unfair. The plaintiff reasons
that it is a dereliction of duty
on the part of the Council to
approve several institutions for
the training of students in the
first stage of the bifurcated
legal education program without
giving due regard to available
facilities in the School. This
dereliction of duty according to
the plaintiff has compelled the
Council to introduce the new
requirements since 2015 to stem
the tide of large numbers of
LL.B graduates who are produced
yearly from institutions
approved by it. The failure of
the Council to make arrangements
for all students who
successfully complete the first
stage of the two stage program
to continue the professional
course is an omission within the
scope of article 297 of the
constitution , which requires to
be remedied by an order directed
at the Council to specify within
a specified period alternative
places and modes of instruction
to enable those who cannot by
virtue of space constraints be
admitted into the School to
pursue the professional
component of legal education in
the country.
Yet, another aspect of
the plaintiff’s case regarding
section 13 (1) (a) is that by
establishing a two-tier system
of legal education in the
country, the Council has
created in the minds of students
who gain admission into UG and
other approved institutions, an
expectation that upon the
successful completion of the
academic component of the
course of study, they will be
entitled to be admitted into
approved institutions to enable
them complete the professional
course in order to be admitted
to the Ghana Bar. Such an
expectation derived reasonably
from the nature of the
bifurcated system of legal
education in the country, has
the effect of creating in them a
property interest that cannot be
interfered with without
reasonable notice and the
opportunity of being heard
before changes are made in the
arrangements. Reliance in this
regard is placed on a decision
of the Supreme Court of the
United States in Board of
Regents v Ruth [408] US 364
(1972. Such an interference in
the rights of students affected
by the changes made to the
arrangement provided for legal
education violates article 18(2)
of the Constitution and must be
struck down.
Continuing further, the
plaintiff makes the assertion
that the grading and quota
policies inherent in the
administrative changes made to
the system of legal education
are arbitrary and short of the
most primitive conception of due
process. The pith of plaintiff’s
argument in support of this
complaint is that until after
the examinations, students do
not know the pass mark and are
at a loss as to what it takes to
gain admission into the School
contrary to the clear statutory
provisions contained in
regulations 2and 3 of LI 1296.
Also complained of is the denial
of the right of students
pursuing the PLC to see their
examination scripts and the
right to have a re-marking in
order to prevent examiners from
engaging in prejudicial and
capricious grading in violation
of due process requirements in
articles 23 and 296 of the
Constitution.
1ST DEFENDANT’S CASE:
In response to the
plaintiff’s case, the 1st
defendant raised the question of
jurisdiction which is to the
effect that there is no issue of
interpretation or enforcement
before the court in order to
have our original jurisdiction
properly invoked. Also, it was
urged that the plaintiff not
being a person who has been
affected by the new
requirements, he is not vested
with a cause of action to
complain of breach or breaches
of article 23 which is
available only to “persons
aggrieved by the exercise of
such acts and decisions.”
The 1st
defendant then proceeded to
contend that having regard to
the large numbers of students
seeking admission to the School,
the Council had to introduce the
entrance exams and interview, a
decision which was communicated
clearly to the various
institutions that had been
approved in the first stage of
the system of legal education.
Additionally, the 1st
defendant submitted that to set
a pass mark for the examinations
would defeat the very reason for
the institutionalization of the
new qualification requirements
as the School can only take 250
students. The said defendant
also contends that section 14(b)
of Act 32 deals with the
admission to the Ghana Bar,
while section 13(d) of the Act
deals with admission of students
into the School. It is the case
of the 1st defendant
by way of further answer to the
plaint with which we are
concerned in these proceedings
that since section 13 deals with
admission of students, the
Council is not required to make
the arrangements specified in
section 14.
The 1st
defendant by way of objection to
the claim of the plaintiff
further contends that the word
“may” utilized by the law-maker
in section 14 of the Act is
permissive and not mandatory and
that the true meaning of the
section is the conferment on the
Council of the discretion of
proceeding either
administratively or by
legislation as was done with the
passage of LI 1296 and not for
any other person to direct. The
1st defendant submits
that faced with the dramatic
rise in persons seeking
admission to the School, the
decision by the Council to
introduce the examinations and
interview is borne out of
necessity and is within the
powers conferred on it for the
purpose of upholding high
standards in the legal
profession.
2ND DEFENDANT’S CASE
Then comes the
contentions of the 2nd
defendant, the body charged with
responsibility for regulating
legal education under Act 32. It
is the contention of the 2nd
defendant that the
responsibility placed on it
under Act 32 is to make such
arrangements as it thinks fit
for the purpose of establishing
a system of legal education in
the country. The Council was
authorised by section 14 of Act
32 to provide through
legislative instrument matters
concerning legal education and
in particular the conduct of
examinations and the fees to be
charged and the admission of
persons to practice as lawyers
at the Ghana Bar. That the
enactment of LI 1296 was done to
fulfil the said statutory
objective by setting out the
general entry requirements for
the various categories of
persons seeking to pursue the
professional course in order to
be enrolled as lawyers in the
country. Over the years, however
as a result of a dramatic rise
in the numbers and in keeping
with its mandate, the Council
approved new campuses at GIMPA
in Accra, and KNUST, Kumasi to
afford opportunities to
graduating law students from UG
and other approved tertiary
institutions to pursue the
professional component of their
legal education.
The 2nd
defendant proceeds further to
contend that in the exercise of
the powers conferred on it by
section 13 of Act 32 to
“regulate the admission of
students to pursue courses of
instruction leading to
qualification as lawyers”, it
introduced additional entry
requirements in 2015 for
admission into the School by
which holders of LL.B are to
pass a written examination and
interview to be conducted by it
and to pay the appropriate fees
contained in LI 2216. The 2nd
defendant contends that the
introduction of the examination
and interview is lawful being
permissible under sections 13
(1) (d) and 14 of Act 32 and
regulations 2 and 3 of LI 1296,
and accordingly invites us to
dismiss the action herein. The 2nd
defendant also contends that the
Council’s non-publication of a
legislative instrument to govern
the exercise of its
discretionary power to regulate
admission to the law school did
not render the conduct of
examinations and interview for
admission into the School
unlawful.
The 2nd
defendant then raised the
absence of jurisdiction in the
court to determine the matter
herein by virtue of the
plaintiff failing to show that
there is any ambiguity or rival
meanings being placed on a
provision of the Constitution
and that accordingly the court’s
enforcement jurisdiction has not
been properly invoked. Pausing
here, it is observed that while
the defendants are all seeking
to defend the same acts which
have given rise to the action
herein, there is a remarkable
shift in their respective
contentions particularly turning
on the right of the Council to
introduce examinations and
interview as requirements for
admission into the practical
component of the law course. The
shift is concerning as the 1st
defendant is a member of the
Council.
ISSUES FOR DETERMINATION:
Having set out the rival
contentions of the parties to
these proceedings, we pause to
consider the fundamental point
of jurisdiction raised by the
defendants and set out as issue
(5) in the memorandum of agreed
issues. Should the position
contended by the defendants find
favor with the court, then the
plaintiff’s action must suffer
the fate of dismissal. In doing
so the court has to consider the
plaintiff’s writ and
accompanying processes for the
purpose of determining the
jurisdictional point raised in
common by the defendants. In
keeping with the settled
practice of the court in such
matters, the issue of primacy is
the jurisdictional question
namely whether the court has
jurisdiction to determine the
plaint before it. Had the action
herein not dragged for a
considerable time from its
filing in 2016 necessitating the
court to adopt an expeditious
mode of disposal that required
that the question of
jurisdiction be dealt with in
the course of the judgment, it
would have been dealt with
before now.
After giving anxious
consideration to the issue of
jurisdiction raised by the
defendants, we have come to the
decision that the issue before
us relates to matters of public
interest and the plaintiff need
not demonstrate a personal
interest in the subject matter.
As the Supreme Court has made
definitive pronouncements on
this aspect of its original
jurisdiction in several cases,
we desire not to detain the
precious time of the court by
reference to any previously
decided case in support of the
said proposition. Secondly, this
court has reiterated in several
decisions that its enforcement
jurisdiction can be invoked
independently of the
interpretative jurisdiction as
the right to seek a remedy under
article 2 (1) is disjunctive and
not conjunctive. The said
position was pronounced upon in
the cases of Sumaila Bielbiel v
Dramani [2011] 1 SCGLR 132;
Emmanuel Noble Kor v The
Attorney- General; an unreported
judgment in case number
J1/16/2015 dated 03 March 2016
and Abu Ramadan (No 2) v
Electoral Commission and
Another, an unreported judgment
in case number J1/14/2016 dated
May 05, 2016. Having surmounted
the jurisdictional hurdle, we
direct our energies to a
consideration of the action
herein on the merits.
After carefully
attending to the case of the
parties in these proceedings, we
are of the opinion that the
fundamental question for our
decision is that set out
distinctly as Issue (1) in the
“Memorandum of Agreed Issues”
filed by the parties on April
11, 2017 as follows:
“Whether or not the General
Legal Councils imposition of new
admission requirements violates
Articles 11(7), 297 (d), 23 and
18(2) of the 1992 Constitution”
In our view, by the
provisions of sections 13 of Act
32, the Council is endowed with
the power to make arrangements
for the establishment of legal
education in the country and in
particular to specify the
subjects in which those seeking
to qualify as lawyers are to be
examined and among others
regulating the in-take of
students into the School and
affording the opportunity of
acquiring practical experience
in the law as part of their
professional law course. The
Council as the regulatory body
is also empowered to conduct
examinations- preliminary,
intermediate and final
qualifying examinations. In
order to achieve the objectives
of section 13 of Act 32, section
14 enables the Council by
legislative instrument with the
approval of the appropriate
Minister to make regulations
concerning the conduct of
examinations and fees to be paid
and the courses of instruction
to be pursued by those seeking
to be admitted to the Ghana Bar
to practice as lawyers as well
as the issue of diplomas to
persons who have successfully
passed its final examinations.
Although the parent Act was
passed in 1960, nothing was done
by the Council to regulate the
exercise of the power conferred
on it under section 14 of Act 32
to make regulations until
sometime in 1984 when LI 1296
was passed. The said legislative
instrument provided for the type
of examinations to be conducted
and how admissions into the
School are to be made. In the
regulations, separate provision
was made for those who pursue
courses of study in UG or some
other institution approved by
the Council and obtained LLB
degrees for the purpose of
undergoing practical experience
in the professional program and
those who had degrees in
subjects other than law but
desire to pursue a course of
instruction in order to be
enrolled as lawyers. There was
provision also made for persons
who had qualified to practice as
lawyers outside the jurisdiction
but desired to be enrolled in
Ghana. Accordingly, the
contention pressed on us that
the regulations made for
preliminary examinations extends
to all categories of students
seeking admission into the law
school is rejected as not
arising from a fair construction
of the relevant laws. The
provision in section 13 of the
Legal Profession Act, (Act 32)
on which reliance is placed to
sustain the argument of the 1st
defendant only authorised the
Council by statutory instrument
to make arrangements for the
holding of examinations which
may include preliminary
examinations but in exercising
its power under section 14 to
make LI 1296, the Council
provided no such examination in
respect of LL.B graduates but
limited it to non-law graduates.
Indeed, the words preliminary
course and examinations appear
for the first time in part 2 of
the regulations dealing with
non-law graduates in regulations
16 and 17.The better view,
therefore is that separate
provision was made for each of
the 3 categories of students-
graduating law students from UG
and other approved institutions,
persons who had degrees in
subjects other than law and
persons who after having pursued
a course of instruction in
jurisdictions other than Ghana
were enrolled as lawyers but
desired to be enrolled at the
Ghana Bar. This view of the
matter is freely borne out by
the separate provisions
contained in regulations 2, 16
and 23 of LI 1296.
The contention regarding
the precatory nature of the
power conferred on the Council
in section 14 of Act 32 by the
use of the words “may by
legislative instrument” is also
rejected as arising from a
strained interpretation of the
provision read together with the
other provisions. The power
conferred on the Council is to
be actually exercised by means
of statutory instruments and not
by means of administrative fiat
or executive fiat since it
confers discretion exercised
within the framework of
statutory provisions and
requires to have the attribute
of law in order to ensure its
compatibility with the
constitution. The making of the
very first regulations by means
of a statutory instrument is
significant in pointing to the
understanding which the Council
had of the power conferred on it
and having so acted, it is
difficult to accept the argument
to the contrary; as a matter of
basic legal proposition quite
apart from the requirements of
the constitution, requirements
issued administratively cannot
co-exist with those issued
statutorily. When so
considered, the defendant’s
submissions pales into
insignificance.
Proceeding further, it is
observed that while regulations
2 and 3 of LI 1296 concerning
the admission to the School by
graduates of law subject to
their obtaining passes in seven
specified subjects made no
mention of a requirement
regarding examinations, that in
relation to persons who have
degrees in subjects other than
law are required by regulation
16 to take an entrance
examination. The said provision
states:
“(1) A person who has obtained a
degree in a subject other than
law at the University of Ghana
or institution approved by the
Council may be admitted to the
Professional Law Course -
(a)
If he is of good
character;
(b)
If he has passed an
entrance examination conducted
by the Board;
(c)
and if he has successfully
completed a preliminary law
course in the following
subjects…”
The subjects specified are
the same in number and content
as those required by law
graduates in regulation 2 to
pursue in the University of
Ghana or other approved
institution. Reading these two
provisions as part of the same
document, it is clear that the
two regulations deal with
different categories of persons
who might seek admission to the
School and accordingly, the
interpretation urged on us by
the 1st defendant is
rooted in error. The fact that
the non- law graduates are to
pursue courses in the seven
specified subjects and pass them
is to enable them to have
grounding in the same subjects
as law graduates. It is noted
that for some time now there
have been no admissions into the
School of non-law graduates
within the contemplation of
regulation 16 of LI 1296
rendering the said provision
extinct. Admissions into the
School have involved only LL.B
graduates from institutions in
Ghana and elsewhere approved by
the Council and those admitted
under regulation 23 of LI 1296.
Until 2015 admission to the
School of law graduates from UG
and approved universities was
made with reference to
regulation 2 of LI 1296 only.
Indeed, the defendants have been
frank in their submissions to
say that the new requirements
came into being from 2015 having
been necessitated by a dramatic
and or huge rise in the numbers
of students seeking admission
into the School. That assertion
is a clear admission that over
the years as the Council
approved institutions other than
UG to admit persons to pursue
courses of instruction leading
to the award of degrees in law
as part requirement of the two
stage system of legal education
that it had put in place, not
much attention appeared to be
given to the rise in the numbers
of persons likely to be turned
out in relation to classroom
spaces in the School contrary to
the clear statutory provision in
section 13 of Act 32 when read
in the light of regulation 2 of
LI 1296. The situation which
according to defendants
compelled the Council to
introduce the new requirements
could in all sincerity have been
avoided if the Council had given
careful thought and
consideration to the likely
impact of the huge numbers of
law graduates on the facilities
available in in the School. A
proper discharge of the power
conferred on the Council under
regulation 2 (1) (b) to approve
other universities or
institutions to pursue degrees
for the purpose of meeting part
of the requirements for
admission into the School
requires that the approvals be
not open-ended but made having
regard to the facilities
available for their use in the
professional law course. This
calls for the allocation of for
example quotas to UG and other
universities and or institutions
to which approval have been
given to offer law degrees for
the purpose of enabling students
to be admitted to the School for
their practical training in
order to qualify for enrolment
as lawyers. While not taking
the view that this is the only
means by which legitimate
controls may be exercised on
admissions into the School, it
is strongly recommended that the
Council give consideration to
this option in the future as
part of its regulatory
mechanism.
The defendants’
contends also that in issuing
new requirements for
qualification into the School,
the Council was within its
lawful mandate and that the mere
failure by it to publish a
legislative instrument to
provide for the additional
requirements as provided for in
articles 23, 296 and 297 does
not render the exercise of its
discretion unconstitutional.
The question for our
decision in regard to issue (1)
turns mainly upon a
consideration of the
constitutionality of the
introduction of requirements for
admission into the School by
graduating law students outside
that contained in regulation 2
of LI 1296. The passage of LI
1296 under the powers conferred
on the Council by section 14 of
Act 32 does not only make those
regulations the lawful criteria
for admission of such students
into the School but actually
estops the Council from seeking
to contend to the contrary
notwithstanding a huge rise in
the number of students. It
appears that the answer of the
defendants to the issue arising
from the administrative
directions does not in the
slightest degree advance its
case at all as it is settled law
that administrative directions
or fiat cannot override
statutory provisions. By the
making of LI 1296, the clear
position regarding admissions
into the School is that from the
date of its making the admission
of students who had graduated in
law from UG and other approved
institutions to be good must be
derived from the said
legislative instrument.
Therefore, it is wrong for the
Council without utilizing the
appropriate mechanism provided
by law in article 297 of the
Constitution to purport to bring
about a change in the admission
requirements. The introduction
of the new criteria which came
into effect in 2015 is thus not
only in violation of article 297
of the constitution but devoid
of any force at all. It is
observed that while the
provisions of LI1296 are
enforceable those issued
administratively are without
effect in the eyes of the law.
Judicial notice is also
taken of the fact that the
recent guidelines contained in a
publication in the media
authored by a body described as
the Independent Examinations
Board, an entity unknown either
to Act 32 or LI 1296 has made
changes to the existing format
of the examination to be taken
by graduating law students. The
requirement in section 14 of Act
32 to the Council to proceed by
regulations is to ensure
certainty, a characteristic
feature of laws as opposed to
administrative fiat which may be
issued from time to time and
results in prejudicing the
reasonable expectations of
persons that the format of the
examination would be as was the
case in 2015 and 2016. Reference
in this regard is made to the
observations of Sophia Akuffo
JSC (as she then was) in the
case of Awuni v WAEC
[2003-2004]1SCGLR 471, wherein
she said of WAEC’s power in
relation to examinations that it
can only be justly carried out
if regulations were made under
the authority conferred under
the West Africa Examinations
Council Law, 1991 (PNDCL 255).
We think that as was observed by
the learned justice, proceeding
by regulations would foster
constitutionalism and legality.
We refer to the words of Sophia
Akuffo JSC in the said Awuni
case at 521, wherein she
delivered herself thus:
“However, the enviable
standing of WAEC can be
sustained only by ensuring that
its administrative processes,
including the exercise of its
powers remain just. In our view,
this can only be achieved
through patent constitutionalism
and legality rather than through
capacity and arbitrariness.
Towards this end, it will inure
to the benefit of both WAEC and
public interest, as well as
foster the sustenance of the
rule of law, if the Minister for
Education were to exercise the
power given by section 12 of
West Africa Examinations Council
Law, 1991(PNDCL 255), and enact
regulations to guide, inter
alia, procedure for the exercise
of WAEC’s powers under sections
3-10 of the Law.”
It is clear from the
above speech that where power is
conferred on an authority to
make regulations dealing with
its powers then that mode of the
exercise by it of its powers
must be preferred. We think that
a similar observation can be
made of the power conferred on
the Council under section 14 of
Act 32.
The question which then
arises is what consideration
must have informed the Council
to effect a change in the format
of the examination as notified
to the public in an
advertisement recently. Although
we have no doubt that the
Council would have acted in the
best interest of furthering its
powers derived from Act 32, we
think that had there been
regulations spelling out the
circumstances in which such a
change for example might be
made, and it would better serve
the requirements of fairness. In
any case, it is evident that
administrative instructions
cannot be issued in
contravention of article 11(7)
of the constitution and
statutory rules cannot be set at
naught by administrative fiat
for the simple reason that rules
made statutorily have the force
of law while administrative
instructions are not
enforceable. Thus, LI 1296 which
has not been proved to be in
conflict with the parent Act,
(Act 32) remains in force
despite the administrative
directions issued by the Council
as they cannot operate to add to
or alter the statutory
instrument. But that is not the
end of the consideration of the
new requirements in terms of
issue (1).
It is observed that when
administrative bodies which
have been endowed with
discretion under statutes to
regulate a system that they are
authorised to put in place have
done so in the first instance by
a legislative instrument , then
when there are changed
circumstances that render
carrying out the regulations
made by them impossible such as
contended by the defendants
when there was an increase in
the number of students seeking
admissions into the law school,
the correct thing to do having
regard to the fact that there
is a subsisting regulation
passed in 1984, LI 1296 is to
take advantage of the
constitutional provisions
contained in article 297 (b) and
(d) to amend, or revoke the
existing legislation and
substitute it with a new one. A
reference to the said
constitutional provisions puts
the matter beyond argument.
Article 297 (b) and (d) provide
as follows:
“In this constitution and any
other law-
(b) where a power is conferred
or a duty is imposed, the power
may be exercised and the duty
shall be performed, from time to
time, as the occasion requires.
(d) where a power is conferred
to make any constitutional or
statutory instrument, regulation
or rule or pass any resolution
or give any direction, the power
shall be construed as including
the power, exercisable in the
same manner, to amend or to
revoke the constitutional or
statutory instrument,
regulation, rules or resolution
or direction as the case may
be.”
We make bold to say that
at law when there is the need
for an existing statutory
instrument such as LI 1296 to be
changed to meet new
circumstances, the mode to be
employed is to make a new
instrument in the manner clearly
laid down in article 11(7) of
the constitution. Of statutory
instruments, it can be said that
they are easier to make than
statutes because they are
intended to cater for changed
circumstances and may in this
context be described as
ambulatory. And the process
involved in the making of a
legislative instrument which
requires it to be laid before
parliament for 21 days and
mature into law if before the
expiry of twenty-one
parliamentary sitting days, it
has not been annulled is to
ensure that such proposed
regulations conform with not
only the enabling Act, Act 32
but the fundamental law of the
land, the 1992 Constitution.
Inherent in article 11(7)
regarding the making of
statutory instruments is the
power of the legislative body to
scrutinize instruments laid
before it to bypass the
constitutional mode provided is
clearly in breach of the
doctrine of separation of powers
and an affront to the exclusive
domain of Parliament to make
laws. The requirement of
publication of such an
instrument in the gazette is
also an additional safety net
which informs the entire
citizenry of the contents of the
law by way of guidance.
Consequently, the
plaintiff describes the
introduction of the new
qualification requirements as
“impositions”. “Imposition” (the
singular of “impositions”) bears
the following meaning in the
Oxford Advanced Learners
Dictionary (Seventh Edition) at
page 749:
“an unfair or unreasonable thing
that somebody expects or asks
you to do.”
Considering the
existence of LI 1296, the new
guidelines for admission are
clearly unfair and constitute an
imposition as persons to whom
regulations 2 and 3 of LI 1296
apply have no option than to
yield to the directions if they
seek to be enrolled at the Ghana
Bar. Since there were existing
regulations before the new
requirements were introduced,
the Council ought to have acted
fairly in compliance with the
obligation imposed on
administrative bodies in article
23 of the constitution by which
it is provided as follows:
“Administrative bodies and
administrative officials shall
act fairly and comply with the
requirements imposed on them by
law and persons aggrieved by the
exercise of such acts shall have
the right to seek redress before
a court or other tribunal.”
Since the constitution has
made elaborate provisions for
making changes to statutory
instruments, the failure by the
Council to employ the
constitutional mode in the
introduction of the new
requirements is an instance of a
failure to act with the
requirements imposed on them by
law. By side stepping the
procedure provided for in
article 11(7), as authorised by
article 297(b) and (d), there is
a clear violation of the
relevant provisions which is an
instance of inconsistency of an
act or conduct within the
contemplation of article 2(1) of
the constitution. Non-compliance
with the relevant constitutional
provisions can be explained as
constituting not treating
persons affected by the new
directives reasonably, a
consideration which is inherent
in the use of “fairly” in
article 23. To treat people in a
manner that derogates from their
statutory rights available to
them under regulation 2 of LI
1296 is without doubt
inappropriate.
In the determination of
issue (1), regard was had to the
plaintiff’s contention regarding
article 18 (2) of the
Constitution that it had created
a property right in persons
pursuing law degrees in UG and
other approved Universities and
institutions who have
successfully completed courses
of instruction and qualify in
terms of regulation 2 of LI
1296. In pressing his arguments
under the said article, the
plaintiff placed great reliance
on decisions from the United
States of America which though
raising interesting points have
not had the desired persuasive
effect to enable us yield
thereto.
The next issue for our
decision in these proceedings is
that which is numbered as (2)
and formulated thus:
“Whether or not Regulation
(3)(b) of LI 1296 is void
–for-vagueness and is facially
unconstitutional and whether the
General Legal Council
unconstitutionally applied it to
disqualify eligible students who
had qualified for admission to
pursue the Professional Law
Course”
Regarding this issue, it
is observed that it raises two
separate issues and should have
been so set out to reflect
firstly the alleged
unconstitutionality of the
regulation and then a separate
issue had in regard to its
application by the Council to
disqualify students. Having had
the issue as formulated to
proceed to trial without any
objection being taken thereto by
the defendants, we are hopeful
as we observed earlier of the
nature of verifying affidavits
that in future parties would
separate for the decision of the
court each question or issue
that turns on the case. In the
instant case, while the first
part of the composite issues
deals with a question of law,
the second part raises a mixed
question of fact and law
requiring the proponent to lead
credible evidence on the factual
component in order to satisfy us
on the evidential burden for a
determination of the alleged
unconstitutionality to be made.
We have read the considerable
submissions filed by the
plaintiff in support of issue 2
and have reached the opinion
that the impugned regulation
deals with questions of
unsuitability of students who
having obtained their LLB
degrees seek admission to the
School and is in its nature free
from any allegation of
vagueness. In our opinion, as a
provision touching and
concerning suitability, it has
been expressed in a manner that
would enable the Council to
apply different criteria of
unsuitability to students in a
flexible manner. Again, when
the sub-regulation is read
together with that which
precedes it, the alleged
vagueness wanes into thin air as
it is then patently clear that
it relates to incompatibility
of a person who seeks to be
enrolled subsequently as a
lawyer and must be read as
being subject to the
constitutional requirement
regarding the exercise of
discretionary power in articles
23 and 296 of the Constitution
and thus imposing the concept of
reasonableness, fairness and
absence of caprice or
arbitrariness in the Council.
The regulation in
question was intended by the
law-maker not to tie the hands
of the Council but to free its
hands in order that specific
cases of unsuitability might be
dealt with taking into account
for example the ethical
standards required of a lawyer.
Indeed, the very fact that the
plaintiff is unable to cite any
instance on which such a
provision was applied to
disqualify a student who has met
the qualification criteria spelt
out in regulations 2 of LI 1296
seems to be supportive of the
fact that it has never been
applied as alleged by him. The
consideration of issue 2 ends
with the statement that where
from the nature of case asserted
by a party, there is likely to
be some evidence to sustain a
matter of fact but that has not
been tendered then the trier of
fact can legitimately reach the
conclusion that the failure to
lead the alleged evidence arises
from its non-existence as is
statutorily provided for in
section 11 of the Evidence Act,
NRCD 323 of 1975. Reference is
made in particular to section
11(1) as follows:
“(1) For the purposes of this
Decree, the burden of producing
evidence means the obligation of
a party to introduce sufficient
evidence to avoid a ruling
against him on the issue.”
Then comes for our
consideration, issue 3 which
reads thus:
“Whether or not the General
Legal Council’s failure to
specify alternative places and
mode of instruction for all
persons who meet the requirement
in Regulation2 of LI 1296, when
taken in the light of Section 13
of Act 32, violates Articles 296
(a) (b) and 297 (b) of the 1992
Constitution.”
We are of the view from
a fair reading of section 13 of
Act 32 against the background
that before the date of the
issue of the writ of summons
herein, the Council had
approved the use of campuses
other than that commonly
referred to as Ghana School of
Law, a fact admitted to by the
plaintiff in its case, there can
be any real issue that there
has been a violation of the
mandate imposed on it under the
law in relation to the
articles of the constitution
mentioned in the formulation of
the third issue. The plaintiff
is unable by reference to
numbers to show that the
additional campuses approved by
the Council when taken together
cannot meet the space
requirements of persons seeking
to be admitted into the
professional course. The
direction in respect of
alternative places also has
financial and budgetary
constraints which are not within
our knowledge and prevents us
from fairly considering the case
made by the plaintiff in support
of this issue. Then there is the
issue of the availability of
lecturers to teach in those
approved institutions, which
appears not to have been
addressed by the plaintiff.
These factors are matters which
the plaintiff who bears the
initial burden of introducing
evidence in terms of section
11(4) of the Evidence Act, NRCD
323 ought to have placed before
us and not having made the
slightest effort to do so must
fail .The section provides as
follows:
“(4) In all other circumstances
the burden of producing evidence
requires a party to produce
sufficient evidence so that on
all the evidence a reasonable
mind could conclude that the
existence of the fact was more
probable than its
non-existence.”
The next Issue to be
addressed is (IV), which is
expressed thus:
“Whether or not the General
Legal Council’s policy on
reviewing examination scripts
and quota admissions violates
articles 23, 296 (a) (b) and 18
(2) of the 1992 Constitution”
Again, we have before us
two different contested facts
that have been lumped together
as an issue for our decision
contrary to the settled practice
of the court. Having held
earlier on in the course of this
judgment that the introduction
of examination is inconsistent
with the constitution, there is
in reality no need for a
decision to be delivered on
aspects of the examination more
importantly when no specific
instances have been alleged and
or proven before us. Again, in
the case of Awuni v WAEC
[2003-2004] 1SCGLR 471, a
similar submission that the
scrutiny of examination scripts
implies procedural fairness was
rejected by the court. However,
we think that as the purpose of
the new requirements of an
examination and interview were
according to the defendants
informed by the need to control
the number of graduating law
students entering the School, it
is essentially a quota based
admission policy that not having
been introduced by means of a
statutory instrument violates
articles 11(7) and 297 (b) and
(d) of the Constitution. The
pronouncement in regard to issue
(1) on the status of the
examinations and interview
applies to the arrangement put
in place whereby admissions to
the School are apportioned in
relation to the available
facilities in the school with no
pass mark being set in advance
and applied in a manner that
deprives students who have met
the qualification provided in
regulation 2 of LI 1296 from
pursuing their practical
training course; a process which
has inherent in it attributes
of unfairness contrary to
articles 23 and 296 of the
Constitution.
Then comes issue (5) by
which the question of
jurisdiction of this court has
already been determined so we
turn to issue (6). That issue
raises a matter which hinges on
the consideration of issue (1)
as is the issue numbered (7). In
our view, the decision on issue
(1) having substantially
disposed of the questions on
which issues (6) and (7) turn,
it is unnecessary that we
proceed to determine these other
issues. Issue (8) also raises
questions which the
determination of issue (3) has
rendered unnecessary. In fact,
in considering issue (3), the
entire allegation concerning the
Council’s failure was considered
on the basis that it had power
to specify alternative places
for instruction for students who
satisfy the requirements
contained in regulation 2 of LI
1296. In the circumstances the
consideration of issue (3)
necessarily involved a
consideration of issue (8) which
looks narrower in scope that the
one before it, and therefore it
would be repetitive embarking on
a separate consideration of
issue (8).
The result is that the
plaintiff’s action succeeds in
part only. In particular, we
make an order in terms of
reliefs (1) (3) and (4) of the
writ of summons. Relief 6 is
granted in part (limited to the
second part of the issue only).
Reliefs (2), (5) part of relief
6(limited to the first part
dealing with review of
examination scripts) and (7) are
dismissed.
Having dealt with the
fate of the action in terms of
the reliefs sought, there is the
need to consider the making of
consequential reliefs under
article 2 (2) of the
Constitution by which we are
authorised as follows:
“The Supreme Court shall, for
the purposes of a declaration
under clause (1) of this
article, make such orders and
give such directions
as it may consider appropriate
for giving effect, or enabling
effect to be given, to the
declaration made.”
These are extensive
powers intended to uphold the
supremacy of the Constitution.
This power was recently used by
us in the case of Abu Ramadan
(No 2) V the Electoral
Commission and Another (supra).
In our opinion, the discretion
conferred on this court
following a declaration of
inconsistency of an act with the
provisions of the constitution
enables it to take all the
circumstances which arise from
the evidence tendered before it
in order to make orders that
would not create hardship,
inconvenience and or result in
unwinding actions taken when the
administrative directions which
have given rise to the action
herein were thought to be
lawful. It is important to say
that the authority conferred on
the court is express unlike that
pertaining to for example in the
United States of America where
there are no clear words
conferring the power of judicial
review on the Supreme Court
which has tended over the years
to exercise that power dating
from the landmark case of
Marbury v Madison 5 US (1 Cranch)
137, (1803). By the said
decision, the United States
Supreme Court assumed the power
of judicial review for the
purpose of upholding the
supremacy of the constitution
and to check as a balance of
power in preventing the
executive and legislative arms
from exceeding their limits of
authority. Article 2(2), however
is an express constitutional
mandate conferred on us to
uphold constitutional theory
while avoiding chaos or
injustice. The authority
conferred on us by article 2(2)
is intended to be exercised
creatively in order to enable us
do justice on case by case
basis. Ordinarily declarations
of inconsistency result in
avoiding acts and or omissions
founded thereon. What this means
is that once a declaration of
invalidity has been made in
relation to the examination and
interview, then all things done
based on the conduct of such
acts from 2015 must be struck
down. Such a direction would
have a retrospective effect and
have exceptional prejudicial
effects on persons who relied on
the directions which have been
declared unconstitutional in
these proceedings. It would be
unprecedentedly detrimental to
the students concerned if we
should make an order that would
invalidate admissions offered
into the School as those likely
to be affected by such an order
satisfied the additional
requirements which are exterior
to LI 1296. Indeed, some of
these students have since
October 2015 been on the program
and are now in the final phase
of the program preparatory
towards being enrolled at the
Ghana Bar in October 2017 while
others are about to finish the
first of the two years and have
finished writing the
examinations of the first
semester. To make an order
annulling admissions founded
upon the examination and
interview that such students
were compelled to take at the
direction of the Council would
result in occasioning uncommon
inconvenience and hardship to
them and result in a miscarriage
of justice. In the case of In re
Spectrum Ltd (In Liquidation)
[2005] UKHL 41, para 40, Nichols
LJ faced with a similar
situation observed in a
persuasive manner when he said:
“there could be circumstances in
this country where prospective
overruling would be necessary to
serve the underlying objective
of the courts of this country:
to administer justice fairly and
in accordance with the law.”
On the evidence placed
before us, we are faced with a
similar situation that requires
that prospective overruling be
preferred in the matter herein
in order as Nichols LJ put it in
the course of the In re Spectrum
case (supra) to avoid a decision
which:
“would have such gravely unfair
and disruptive consequences for
past transactions or happenings
that this House would be
compelled to depart from normal
principles.”
We think that the path of
prospectivity would better serve
the needs of justice as we are
authorised to do by article 2
(2) of the constitution. And in
seeking to adopt this approach,
we are not altogether without
precedent in the jurisdiction.
As was sated in the preceding
paragraph, we adopted this
course in Abu Ramadan (No 2)
supra) for the purpose of not
depriving voters of their
registration under a provision
of the law which was struck down
in a previous decision when a
challenge was mounted to the
validity of persons who had
utilized national health
insurance cards to register. A
similar course was adopted by us
in the case of Martin Kpebu v
Attorney General in an
unreported judgment of the court
in Suit Number J1/13/2015 dated
05 May 2016 wherein we struck
down certain restrictions on the
grant of bail by courts
contained in the Criminal and
Other Offences (Procedure Act)
on the ground of their
inconsistency with the
constitution. Other
jurisdictions confronted with
problems similar to ours arising
from legitimacy declarations
have adopted the prospective
approach. Reference is made to
the common law jurisdiction of
Canada, where courts have
developed a practice that allows
the suspension of declarations
of unconstitutionality in
appropriate cases to avoid
consequences adverted to by
Nichols LJ in the In re Spectrum
case (supra). By so proceeding,
Canadian courts afford
opportunity to the appropriate
authority within a specified
period of time to remedy the
defect in order to avoid chaos,
injustice or inconvenience and
hardship to those affected by
the declaration of invalidity.
An exposition of the Canadian
approach is manifest in
Schechter v Canada [1992] 2 SCR
679 and Carter v Canada (A-G)
[2016] 1 SCR 679 (SCC).
Similarly, there is emerging in
Ireland, the practice whereby in
order to avoid invalidating
convictions based on a Juries
Act that was declared
unconstitutional, prospective
effect was given to the prior
decision in De Burca v Attorney-
General [1976] IR 38 (IESC),
when a convicted person basing
himself under the said judgment
challenged his trial and
conviction. In its judgment in
the subsequent case entitled The
State (Byrne) v Frawley [1978]
IR 326 (IESC) which was a
collateral attack on the trial
in which the plaintiff was
convicted, the court in its
decision rejected an invitation
to declare the trial invalid
saying that it was not in the
public interest to set aside the
trial. O’ Higgins CJ in the
course of his judgment said that
it would: “follow with
inexorable logic’’ that each
jury trial based on the impugned
legislation would be nullified
rendering the sentences founded
thereon without legal authority.
Dealing with the case
before us, there is also the
consideration that all those
students had before satisfying
the additional requirements
imposed by the Council satisfied
the qualification requirement
contained in regulations 2 and 3
of LI 1296 which has been given
effect to in this judgment and
accordingly to deprive them of
the admissions which were
offered to them would undermine
the declaration made regarding
the extraneous requirements that
they had to satisfy. Such a
direction therefore would be
contrary to reasonableness and
not derived from the
pronouncement made regarding
these additionally imposed
requirements.
By virtue of and in accordance
with article 2 (2) of the
Constitution, it is hereby
ordered that the Council puts in
place a mechanism that would
enable it to make changes to LI
1296 in terms of what it thinks
appropriate in order to properly
exercise its mandate under Act
32 having regard in particular
to sections 1, 13 and 14 by
putting in place a system of
legal education in terms of
articles 11(7) and 297 of the
constitution. As preparations
towards admissions in October
2017 have already been initiated
and bearing in mind that persons
who would avail themselves of
such opportunities are qualified
within the scope of regulations
2 and 3 as pronounced in this
judgment, we do not think it is
in the public interest to
interfere with such
arrangements. It is hereby
further ordered that the new
system should be in place within
6 months from today such that
admissions into the professional
law course in October 2018 shall
not be conducted under the
system which has informed the
declaration to which the
consequential orders herein
relate.
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
ANIN
YEBOAH
(JUSTICE OF
THE SUPREME
COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
V.
AKOTO-BAMFO (MRS)
(JUSTICE OF
THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
PWAMANG, JSC:-
I had the privilege of
reading beforehand the erudite
and exhaustive judgment of my
worthy brother Gbadegbe JSC and
I agree that the claims of the
plaintiff be granted in part in
the terms stated in the lead
judgment. I am in agreement with
the plaintiff that the
administrative directives which
sought to substantially vary
the qualification criteria set
out in LI 1296 for a student who
obtained LLB to be considered
for admission into the
professional law course at the
Ghana School of Law is
inconsistent with Articles 23
and 296(b) of the Constitution.
I have not been persuaded by the
arguments of the defendants that
after initially exercising its
functions under s.13 of the
Legal Professional Act, 1960
(Act. 32) through a statutory
instrument, the 2nd defendant is
at liberty subsequently to
exercise them in the form of
administrative instructions.
The due process of law required
by Article 296 (b) for the
exercise of discretion appears
to me to be undermined by this
argument of the defendants.
On my part, the aspect of
the plaintiff’s case I referred
to above was solidly grounded on
the provisions of the 1992
constitution and the relevant
cases decided by the Supreme
Court of Ghana cited by the
plaintiff and there was no need
for him to seek to also rely on
doctrines and case law from
other jurisdictions. Those
doctrines and cases are based on
constitutional provisions of
those jurisdictions which,
though appear similar to
provisions of our constitution,
contain significant differences.
For instance, the plaintiff
argued that the 2015
administrative directives of the
2nd defendant had the effect of
depriving LLB holders of
property rights that they
acquired in professional law
education and that such
deprivation can only be done in
compliance with due process of
law. He referred to the U.S.
Supreme Court case of Board
of Regents v Roth 408 U.S. 564
(1972). In that case the
board of regents of states
colleges sought a review of a
decision from the Court of
Appeals for the Seventh Circuit,
which held that the respondent
professor was wrongfully
terminated from his teaching job
in violation of his Fourteenth
Amendment right to due process.
The U S Supreme Court reversed
the Court of Appeal on the
ground that the professor was
not entitled to Fourteenth
Amendment protection. Plaintiff
at the same time relied on
Article 18(2) of our
Constitution to support his
argument that property rights
cannot be taken away without due
process as if it is the
equivalent of the Fourteenth
Amendment of the American
Constitution. Article 18 (2) of
our Constitution talks of
privacy of property which is the
right of a person to be left
alone on his property and the
exclusive enjoyment of same. It
is rather Article 20 of the
Ghana Constitution that deals
with deprivation of property but
its provisions are significantly
different from those of the
Fourteenth Amendment. In my
considered opinion, the due
process provisions of our
constitution that are applicable
on the facts of this case are
those contained in Articles 23
and 296(b).
The 1992 Constitution of
Ghana contains elaborate and
progressive provisions covering
a wide range of matters that are
litigated upon in our courts and
I will urge parties and lawyers
in such cases to concentrate on
its provisions so that we
develop our constitutional
jurisprudence along the lines of
the structure of our
constitution and not in
alignment to the structure of
other constitutions, no matter
how celebrated they may appear
to be. Of course, we frequently
make references to appropriate
case law from other
jurisdictions for persuasive
reasoning but where such a case
was decided on the basis of a
statutory regime different from
what pertains in our
jurisdiction, then its
usefulness becomes doubtful.
Before reference is made to a
constitutional law doctrine or
case from outside, due
consideration must be had to the
grounds upon which it was
evolved or decided. Save for the
above observations, I endorse
the reasoning and conclusions in
the lead judgment.
G. PWAMANG
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
MS OFOSUA AMAGYEI FOR THE
PLAINTIFF
MRS DOROTHY AFRIYIE ANSAH
FOR THE 1ST DEFENDANT
KIZITO BEYUO FOR THE 2ND
DEFENDANT
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