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Constitutional law - 1992
Constitution - Interpretation -
Articles 25 (1) (a) and 38 (2) -
Wether or not the Government has
failed to delivered to the
Ghanaian Children of School
going age free, compulsory and
universal basic education -
Wether or not section 2 (6) of
Education Act, 2008, (Act 778)
as amended, is inconsistent and
in contravention of the
Constitution
HEADNOTES
The
plaintiffs’ submissions are
embodied in their supporting
statement of case filed on 31st
March 2014. Among others, the
plaintiffs submitted that the
people of Ghana envisioned in
the 1992 Constitution to build a
free democratic state in which
basic education would be free,
compulsory and universal to all
persons. Consequently, when the
Constitution came into force on
1st January 1993, the
Government of Ghana was tasked
to draw up a program within two
years after their
Parliamentarians first met to
ensure implementation of these
aspirations and will of the
people. This was to have
commenced on 7th
January 1993 when Parliament
first met. The deadline for
drawing up this program was
January 1995. However, when the
deadline was not met, the
implementation was extended to
March 1996 at which time the
Government of Ghana drew up the
program entitled “Republic of
Ghana The Programme for Free
Compulsory Universal Basic
Education (fCUBE) by the year
2005, The Plaintiffs’ next issue
was with the Education Act of
2008, Act 778 which, according
to counsel, was legislated to
give meaning to the program for
ensuring a free, compulsory and
universal basic education.
Counsel submits that the
Government of Ghana failed to
adhere to the constitutional
deadlines for drawing up the
necessary programs for attaining
the objectives for a free,
compulsory basic education By
the present liberal provisions
of the Education Act the
Government has reneged from
employing force and or coercion
to compel children of school
going age who refuse or fail to
so attend instructions at the
basic education level. The
Defendant’s case is that the
plaintiffs have wrongfully
invoked the exclusive original
jurisdiction of this court as
their plaint does not raise any
genuine or real issue of
interpretation or enforcement of
any provision of the 1992
Constitution. They further
contend that there is no
constitutional duty on the
Government of Ghana to
forcefully compel children of
school going age to attend
school.
HELD :-
From the
nature of the action, the
reliefs sought and the pleadings
filed in contention it is
obvious to us that the present
action has the characteristics
of a camouflage to invoke our
original jurisdiction. We would
decline such an invitation since
there is a more appropriate
forum to deal with such matters
as raised herein. For the
foregoing reasons the
application is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Education Act,
2008, (Act 778)
Presidential office Act, 1993
(ACT 463)
CASES REFERRED TO IN JUDGMENT
Bimpong Buta vs General
Legal Council (2003-2004) SCGLR,
1200
Tuffuor v Attorney General
(1980) GLR 637, SC
Sam (No 2) vs
Attorney-General (2000) SCGLR
305.
New Patriotic Party v
Attorney-General (CIBA Case)
(1996-97) SCGLR 729.
Edusei v Attorney General
(1996-97) SCGLR 1
Edusei (No 2) v
Attorney-General (1998-99) SCGLR
753
Adjei-Ampofo v
Attorney-General, (2003-2004)
SCGLR 411
Yiadom I v Amaniampong
(1981) GLR 3, SC
Ghana Bar Association v
Attorney-General (Abban Case),
Supreme Court, 2003-2004) SCGLR
250;
Edusei (No 2) v
Attorney-General (supra); and
Aduamoa II v Twum II (2000)
SCGLR 165.”
Osei Boateng v National
Media Commission [2012] SCGLR
1038 at 1041
Republic v Special
Tribunal; Ex Parte Akosah (1980)
GLR 592
Federation of Youth
Associations of Ghana (FEDYAG)
(No 2) v Public Universities of
Ghana & Ors [2011] 2 SCGLR 1081
Edusei (No 2) v Attorney
General [1998-99] SCGLR 753
Amidu v President Kufuor
(2001-2002) SCGLR 86
Ghana Bar Association v
Attorney General & Anor (Abban
Case) [2003-2004] SCGLR 250
Republic v High Court
(Fast Track) Division, Accra; Ex
Parte Electoral Commission
(Mettle-Nunoo & Ors Interested
Parties) (2005-2006) SCGLR
514.
BOOKS REFERRED TO IN JUDGMENT
United Nations Universal
Declaration of Human Rights,
1948
DELIVERING THE LEADING JUDGMENT
AKAMBA,
JSC:
COUNSEL
A. A. SOMUAH ASAMOAH ESQ. WITH
HIM DENNIS OFOSUAPEA AND
KINGSLEY AMOAKWA BOADU FOR THE
PLAINTIFF.
HON. DOMINIC AYINE (DEPUTY
ATTORNEY GENERAL) WITH HIM
EFUAH ABBAM (PRINCIPAL STATE
ATTORNEY) FOR THE DEFENDANT.
AKAMBA, JSC:
On 14th
May 2015 this Court unanimously
dismissed the above writ, but we
reserved our reasons. We now
proceed to indicate the reasons
for the said decision.
The
Plaintiff is a duly established
political party in Ghana. The
Defendant is the nominal
representative of the Republic.
Plaintiff issued a writ in this
Court on 31st March
2014 seeking seven reliefs.
RELIEFS SOUGHT
The
reliefs were fashioned as
follows:
“(a) A declaration that on the
true and proper interpretation
of articles 25 (1) (a) and 38
(2) of the 1992 Constitution,
Government of Ghana had only
twelve years commencing from
January 7, 1993 to January 6,
2005 to have delivered to the
Ghanaian Children of School
going age free, compulsory and
universal basic education and
that the Government has failed
in discharging the said
constitutional duty imposed on
her by the people of Ghana.
(b) A
declaration that on the true and
proper interpretation of
articles 14 (1) (e), 25 (1) (a)
and 38 (2) of the 1992
Constitution, the Government of
Ghana has a constitutional duty
to compel children of school
going age within the Republic
who refuse and or fail so to do
to be at school without fail and
that Ghana Government failure to
so act thereto constitutes an
omission that is inconsistent
with the Constitution.
(c) A
declaration that section 2 of
Education Act, 2008, (Act 778)
as amended, to the extent that
it fails to provide for
compulsion on the children of
school going age who refuse and
or fail to attend basic
education instructions, to so
attend, and also to provide for
the law and procedure within
which to exercise that
compulsion, is an omission, that
is inconsistent with and in
contravention to articles 14 (1)
(e), 25 (1) (a) and 38 (2) of
the 1992 Constitution and that
consequently, to the extent of
such inconsistency, the said
section 2 of the Education Act,
2008 (Act 778) is void and of no
effect.
(d) A
declaration that section 2 (6)
of Education Act, 2008, (Act
778) as amended, to the extent
that it derogates from 25 (1)
(a) and 38 (2) of the 1992
Constitution, is inconsistent
and in contravention of the
Constitution and that
consequently, to the extent of
such inconsistency, the said
section 2 (6) of Education Act,
2008 (Act 778) as amended is
void and of no effect.
(e) An
order directed at Government of
Ghana to take steps forthwith to
compel children of school going
age within the Republic who
refuse and or fail to attend a
course of instructions at the
basic school, to attend basic
school instructions, including
legislating to lay bare the laws
and procedure thereto within
which such compulsion is to be
exercised.
(f) An
order directed at Government of
Ghana to take steps forthwith
leading to the amendment of
section 2 (6) of the Education
Act making same imperative and
mandatory instead of permissive
and empowering.
(g) Any
other order the Court so desires
to make and or directions for
giving effect or enabling effect
to be given to the declarations
so made.”
The
parties subsequently filed their
respective statements of case in
accordance with the rules of
this court.
PLAINTIFF’S SUBMISSIONS
The
plaintiffs’ submissions are
embodied in their supporting
statement of case filed on 31st
March 2014. Among others, the
plaintiffs submitted that the
people of Ghana envisioned in
the 1992 Constitution to build a
free democratic state in which
basic education would be free,
compulsory and universal to all
persons. Consequently, when the
Constitution came into force on
1st January 1993, the
Government of Ghana was tasked
to draw up a program within two
years after their
Parliamentarians first met to
ensure implementation of these
aspirations and will of the
people. This was to have
commenced on 7th
January 1993 when Parliament
first met. The deadline for
drawing up this program was
January 1995. However, when the
deadline was not met, the
implementation was extended to
March 1996 at which time the
Government of Ghana drew up the
program entitled “Republic of
Ghana The Programme for Free
Compulsory Universal Basic
Education (fCUBE) by the year
2005.”
It was
obvious from page 1 of the
‘fCUBE’ that the constitutional
injunction to implement the
drawn program within ten years
was not lost on Government or at
all. This is evidenced in the
statement to the effect that,
“The Government is committed to
making schooling from Basic
stage1 through 9 free and
compulsory for all school age
children by the year 2005.”
The
Government of Ghana was also
tasked to implement this drawn
up program within ten years
immediately upon the two years
from January 1995 to January
2005. Twenty one years down the
line, the Government of Ghana
has failed in living within the
Constitutional injunction
imposed on her.
The
Government’s own reports and
laws show that basic education
is not free nor is it
compulsory. Counsel for the
Plaintiff further submitted that
as at year 2006, as many as
500,000 children of school going
age were outside school.
Presently almost 300,000
children are still outside
school yet the Government of
Ghana has no intention of
compelling them to be in school
as intended by the Constitution
1992. The result of the failure
on the part of Government has
been the street children, head
porters (kayayei), children in
fishing, children in begging
children in cocoa farms and
children in the high seas, inter
alia. These lapses on the part
of government derail efforts at
achieving the objectives of
ensuring a safe and sound future
for our children. The
Plaintiffs gave a breakdown of
facts from the Ministry of
Education Sector Report for July
2013 in support of the number of
out- of- school children.
The
Plaintiffs’ next issue was with
the Education Act of 2008, Act
778 which, according to counsel,
was legislated to give meaning
to the program for ensuring a
free, compulsory and universal
basic education. Counsel submits
that the Government of Ghana
failed to adhere to the
constitutional deadlines for
drawing up the necessary
programs for attaining the
objectives for a free,
compulsory basic education. For
instance Government took three
years instead of two to draw up
the policy i.e. fCUBE. Then
after, Government took sixteen
years to back up the policy with
legislation, the same being the
Education Act 2008, Act 778. The
entire fCUBE program fails to
explain what compulsory basic
education means. It simply fails
to meet the constitutional
intendment within the meaning of
articles 14 (1) (e), 25 (1a) and
38 (2) of the 1992 Constitution.
This is particularly so because
there is no provision within
section 2 of the Education Act
(2009) which makes Government
the ultimate person to compel
children who refuse and or fail
to attend a course of
instruction at the basic
education level. By the present
liberal provisions of the
Education Act the Government has
reneged from employing force and
or coercion to compel children
of school going age who refuse
or fail to so attend
instructions at the basic
education level. This is
contrary to the intendment of
Constitution for ensuring a
free, compulsory universal basic
education.
DEFENDANT’S SUBMISSIONS
The
Defendant’s case is stated in
the written submissions filed on
15th July 2014. In it
they contend primarily that the
plaintiffs have wrongfully
invoked the exclusive original
jurisdiction of this court as
their plaint does not raise any
genuine or real issue of
interpretation or enforcement of
any provision of the 1992
Constitution. They further
contend that there is no
constitutional duty on the
Government of Ghana to
forcefully compel children of
school going age to attend
school.
ISSUES AGREED FOR DETERMINATION
Before us
in this application, six issues
were agreed upon by both parties
as filed in their joint
memorandum of agreed issues of
14th November 2014
for trial, namely:
1.
“Whether or not the Plaintiff’s
action raises any real or
genuine issue of interpretation
or enforcement of any provision
of the 1992 Constitution.
2.
Whether or not articles 14 (1)
(e), 25 (1) (a), and 38 (2) of
the 1992 Constitution impose any
duty on Government of Ghana to
compel children of school going
age who fail or refuse to be in
school to attend school.
3.
If the answer to Issue No. 2
above is in the affirmative,
then the question for
determination by this court is
whether the Government of Ghana
has failed to discharge the duty
imposed on it by Articles 14 (1)
(e), 25 (1) (a) and 38 (2) of
the 1992 Constitution.
4.
Whether or not Government of
Ghana has failed to discharge
the duty imposed on her by
articles 14 (1) (e), 25 (1) (a),
and 38 (2) of the 1992
Constitution.
5.
Whether or not section 2 of the
Education Act, 2008 (Act 778),
is inconsistent with and in
contravention of articles 14 (1)
(e), 25 (1) (a), and 38 (2) of
the 1992 Constitution.
6.
Whether or not Government of
Ghana failed to deliver to
Ghanaian children of school
going age Free, Compulsory
Universal Basic Education within
the constitutional timeframe of
January 7, 1993 to January 6,
2005.”
JURISDICTION
The
Plaintiffs’ by their writ are
invoking this court’s original
jurisdiction, as it were, under
articles 2 (1) and 130 of the
Constitution 1992 for the
enforcement of the reliefs
endorsed therein. The Defendant
however holds the view that the
invocation of our jurisdiction
in this context is wrongful.
This being the situation we are
obliged to ascertain whether or
not our jurisdiction under the
said articles 2 (1) and 130 (1)
(a) has been properly invoked.
Does the Plaintiffs’ writ
properly raise any real issues
of interpretation or enforcement
of the Constitution that can
only be resolved by this court
exercising our original
jurisdiction? An issue on
jurisdiction is a fundamental
issue to be resolved before
tackling any other questions
posed for our determination.
Articles 2 (1) and 130 (1) (a)
respectively, provide as
follows:
“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 amendment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.”
CONSIDERATION BY COURT
What
indeed is the exact scope of
this court’s original
jurisdiction under article 2 and
130 (1) of the 1992
Constitution? This question has
been ably answered by this court
per my respected sister Sophia
Akuffo in the case of Bimpong
Buta vs General Legal Council
(2003-2004) SCGLR, 1200. At
page 1216 this court summed up
the numerous outcomes of
opportunities availed this court
to define the scope of this
jurisdiction. In order not to
reinvent the wheel, I quote the
summary thereof as follows:
“ (1) A person
bringing an action under article
2 need not demonstrate that he
has any personal interest in the
outcome of the of the suit; that
he is a citizen of Ghana
suffices to entitle him to bring
the action. (Tuffuor v Attorney
General (1980) GLR 637, SC and
Sam (No 2) vs Attorney-General
(2000) SCGLR 305.
(2) The ‘person’
referred to in the context of
article 2 includes both natural
persons and corporate bodies (cf
New Patriotic Party v
Attorney-General (CIBA Case)
(1996-97) SCGLR 729.
(3) The Supreme
Court’s power of enforcement
under article 2, by exercise of
original jurisdiction, does not
cover the enforcement of the
individual’s human rights
provisions; that power, by the
terms of articles 33 (1) and 130
(1), is vested exclusively in
the High Court (cf Edusei v
Attorney General (1996-97) SCGLR
1; Edusei (No 2) v
Attorney-General (1998-99) SCGLR
753 and Adjei-Ampofo v
Attorney-General, Supreme Court,
Writ No3/2003. 25 November 2003;
reported in (2003-2004) SCGLR
411
(4) Regardless of the
manner in which they are
clothed, where the real issues
arising from a writ brought
under article 2 or 130 (1) are
not, in actuality of such
character as to be determinable
exclusively by the Supreme
Court, but rather fall within a
cause of action cognizable by
any other court or tribunal of
competent jurisdiction, this
court will decline jurisdiction
(cf Yiadom I v Amaniampong
(1981) GLR 3, SC; Ghana
Bar Association v
Attorney-General (Abban Case),
Supreme Court, Writ No 8/ 95, 5
December 1995; reported in
2003-2004) SCGLR 250; Edusei (No
2) v Attorney-General (supra);
and Aduamoa II v Twum II (2000)
SCGLR 165.”
The 1992
Constitution has conferred on
this court the special exclusive
jurisdiction to interpret the
constitution. Article 130 (1)
captures it as follows:
“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 persons by law or
under this Constitution.”
Article 2 (1) of
the Constitution also provides
as follows:
“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
…..”
In the
instant application, what case
of interpretation or
enforcement, if any, is raised
by the plaintiff for
determination by this court? The
plaintiff has listed articles 14
(1) (e); 25 (1) (a) and 38 (2)
of the Constitution and stated
that on a true and proper
interpretation of the
Constitution, the Government of
Ghana has failed to discharge
its constitutional obligation of
providing free, universal basic
education.
This
submission does not call for an
interpretation as would be
obvious here below, since it
relates to a proper application
of the provisions of the
Constitution to the facts which
have been strenuously listed and
this of course is a clear matter
for a trial court to deal with
and no case of interpretation
arises. The plaintiff made no
effort to demonstrate any
ambiguity, absence of clarity or
imprecision in respect of the
articles relied upon which calls
for our interpretive or
enforcement intervention. This
is a necessary precondition to
the invocation of our
interpretive and enforcement
jurisdiction. In our recent
majority (6-3) decision in
Osei Boateng v National Media
Commission [2012] SCGLR 1038
at 1041 this point was
brought to the fore in holding 2
as follows:
“the
requirement of an ambiguity or
imprecision or lack of clarity
in a constitutional provision
was as much a precondition for
the exercise of the exclusive
original enforcement
jurisdiction of the Supreme
Court as it was for its
exclusive interpretation
jurisdiction under articles 2
(1) and 130 of the 1992
Constitution; that was clearly
right in principle since to hold
otherwise would imply opening
the flood gates for enforcement
actions to overwhelm the Supreme
Court. Accordingly, where a
constitutional provision was
clear and unambiguous any court
in the hierarchy of court might
enforce it and the Supreme
Court’s exclusive original
jurisdiction would not apply to
it.”
In
Republic v Special Tribunal; Ex
Parte Akosah (1980) GLR 592 at
605 quoted with approval in
the Osei Boateng case
(supra), the Court of Appeal
summarized the case law on the
enforcement or interpretation of
a provision of the Constitution.
It arises in any of the
following eventualities listed
at page 605 of the decision:
“(a) Where the words of the
provision are imprecise or
unclear or ambiguous. Put in
another way, it arises if one
party invites the court to
declare that the words of the
article have a double-meaning or
are obscure or else mean
something different from or more
than what they say;
(b) Where rival meanings
have been placed by the
litigants on the words of any
provision of the Constitution;
(c) Where there is a
conflict in the meaning and
effect of two or more articles
of the Constitution, and the
question is raised as to which
provision shall 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 of
interpretation.
On the
other hand, there is no case of
‘enforcement or interpretation’
where the language of the
article of the Constitution is
clear, precise and
unambiguous.”
It does
appear that the plaintiff is
either unaware or feigned
ignorance of the fact that
articles 25 (1) (a) and 38 of
the Constitution 1992 have
already received judicial
interpretation by this court in
the case of Federation of
Youth Associations of Ghana
(FEDYAG) (No 2) v Public
Universities of Ghana & Ors
[2011] 2 SCGLR 1081. Owing
to the relevance and importance
of the decision to the present
application I will quote the
holdings (1) and (2) of the
decision as follows:
“(1) in
construing article 25 of the
1992 Constitution, guided by
article 38 of The Directive
Principles of State Policy and
as required by article 34, the
court would hold that there was
a difference between article 26
(1) of the United Nations
Universal Declaration of Human
Rights, 1948 stating that
“Everyone has a right to
education” and article 25 (1) of
the 1992 Ghana Constitution,
providing that: “All persons
shall have the right to equal
educational opportunities and
facilities..” The difference was
mainly due to the experiences,
challenges and weaknesses in
Ghana’s educational system and
economic imbalances, which
needed to be addressed to
prevent the erosion of the gains
that had so far been made. There
was the need to address the
imbalances in the
infrastructural development of
educational facilities in the
country and the urgency to
improve the quality of
education, particularly in the
field of science and technology
for effective national
development. Thus each word used
in article 25 was intended to
have some effect or be of some
use. And whilst the word
“opportunities” in article 25
(1) might be defined as a
favourable or advantageous
circumstance or combination of
circumstances or a good chance
for advancement or progress, or
simply an advantage, the phrase
‘equal educational
opportunities’ might be defined
as a situation in which people
had the same chance or advantage
in life as other people without
being treated in an unfair way
because of their race, colour,
ethnic origin, religion, creed
or social or economic status.
Edusei (No 2) v Attorney General
[1998-99] SCGLR 753 (per Charles
Hayfron-Benjamin JSC at 756)
cited
(2) The
court would therefore hold that
the effect of article 25 (1) of
the 1992 Constitution, was to
confer on every Ghanaian the
right to have the same or
equivalent chance and
opportunities for educational
advancement; and also the right
to the same educational
facilities in which to achieve
that purpose regardless of
his/her social or economic
status, place of origin, sex or
religion. However, there were
inherent limitations, regulating
and controlling the enjoyment of
the right to equal educational
opportunities and facilities.
That right was subject to the
capacity on the part of the
student and the availability of
educational facilities to be
provided by the State. In the
same article 25 (1), the right
was qualified by clauses (a),
(b) and (c) by the controlling
words: “with a view to achieving
the full realization of that
right.” Thus under the following
clauses: (a) basic education
should be free and compulsory
and available to all; (b)
generally available and
accessible at secondary,
technical and vocational level;
and (c) in respect to university
or higher education, equally
accessible to all on the basis
of merit of the students and
capacity of the institution;
and, in particular by
progressive introduction of free
education at all levels. The
ultimate objective of article 25
(1) was to make education free
by a gradual and progressive
introduction to free education
at all levels. And since the
right to education was for every
person, article 25 (1) (d)
required that functional
literacy be encouraged and
intensified for those who for
one reason or other would be
unable to pursue formal
education. And under article 25
(2), persons had the right to
run private schools at all
levels but at their own expense.
It was therefore the duty of the
State to formulate and execute
policies to achieve that
purpose. However, under article
38 of the Constitution those
educational objectives could
only be implemented by the
availability of resource.”
In the
light of the above cited
decision in which articles 25
(1) and 38 of the Constitution
1992 have received judicial
interpretation by this court,
what further ambiguity or
imprecision or lack of clarity
about those articles arises for
another interpretation of the
self same articles to warrant
the plaintiff asking this court
for “a declaration that on a
true and proper interpretation
of articles 25 (1) (a) and 38
(2) of the 1992 Constitution,
Government of Ghana had only
twelve years commencing from
January 7, 1993 to January 6,
2005 to have delivered to the
Ghanaian Children of School
going age free, compulsory and
universal basic education and
that the Government has failed
in discharging the said
constitutional duty imposed on
her by the people of Ghana.”
What is left for a party in
these circumstances is to seek
to enforce the outcome of the
court’s interpretation, in the
FEDYAG (No 2) (supra) decision
or for stated good reasons to
call for a departure from our
earlier decision and not to call
for another interpretation
simpliciter, as the plaintiff
sought to do by the present
writ. Reliefs (b) and (c) are
no different as to what they ask
for. They obviously do not raise
any issues of interpretation as
with enforcement which is the
domain of another forum.
There is
equally no relief in the
conjoint issue which seeks the
enforcement and interpretation
of section 2 of the Education
Act 2008 (Act 778), a statute.
The reason for this can be
discerned from the respectful
view of Edward Wiredu, Acting CJ
when he stated in Amidu v
President Kufuor (2001-2002)
SCGLR 86 thus:
“I am of
the respectful view therefore
that the alleged violation of
the provision of a statute such
as Act 463 falls outside the
provisions of Article 2 of the
Constitution. For an action to
lie in this court under article
2 (1) (b), a specific provision
of the Constitution itself must
be the subject for the
consideration. The enforcement
and interpretation of Act 463 of
1993 in this regard lies
elsewhere and not in this court.
Act 463 is not an extension of
any provision of the
Constitution but a statute….In
my judgment therefore this court
lacks jurisdiction to entertain
the plaintiff’s action.”
The
overall submissions made by the
plaintiffs relate to no more
than a proper application of the
relevant provisions of the
Constitution to the facts in
issue. This obviously is a
matter for an appropriate trial
court to deal with.
It is
the duty of this court to decide
on the true nature of a claim,
however camouflaged or disguised
in another form, in order to
decide whether or not it is
clothed with the requisite
jurisdiction to entertain a case
under article 130 and other
provisions of the Constitution.
(See Ghana Bar Association v
Attorney General & Anor (Abban
Case) [2003-2004] SCGLR 250).
No matter the nature of the
fancy dressing a party gives to
his reliefs, it has to pass the
scrutiny of this court as to
whether it is an appropriate
matter that invokes our
jurisdiction.
We
venture to make one observation.
The Plaintiffs’ by their plaint
are seeking to enforce a human
rights provision of the
Constitution dressed up in the
garb of interpretation and
enforcement. In our thinking the
real question arising from the
invocation of this court’s
jurisdiction is whether on the
facts of the case as presented,
real or genuine interpretative
issues arise for determination.
The answer would depend, among
others, upon the nature of the
action, reliefs sought, the
pleadings and whether or not the
action is one which is
camouflaged or dressed up to
look like one in which the
original jurisdiction of this
court is required. See per
Wood, CJ, in Republic v High
Court (Fast Track) Division,
Accra; Ex Parte Electoral
Commission (Mettle-Nunoo & Ors
Interested Parties) (2005-2006)
SCGLR 514.
From the
nature of the action, the
reliefs sought and the pleadings
filed in contention it is
obvious to us that the present
action has the characteristics
of a camouflage to invoke our
original jurisdiction. We would
decline such an invitation since
there is a more appropriate
forum to deal with such matters
as raised herein.
For the
foregoing reasons the
application is accordingly
dismissed.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE
SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD) A.
A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
A. A. SOMUAH ASAMOAH ESQ. WITH HIM
DENNIS OFOSUAPEA
AND KINGSLEY AMOAKWA BOADU FOR THE
PLAINTIFF.
HON. DOMINIC AYINE (DEPUTY ATTORNEY
GENERAL) WITH HIM
EFUAH ABBAM (PRINCIPAL STATE
ATTORNEY) FOR THE
DEFENDANT.
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