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CONSOLIDATED JUDGMENT
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GBADEGBE JSC:
The questions for our decision
in the consolidated actions
herein by which our interpretive
and enforcement jurisdiction is
sought arises out of the refusal
by the Speaker of Parliament
(hereinafter conveniently
referred to as the Speaker), to
subscribe to the oath of the
President when both the
President and the Vice-
President were out of the
country on November 5, 2014 and
November 7, 2014 respectively.
Subsequently, the plaintiffs in
the consolidated actions, at
different times caused the writs
herein numbered as J1/4/2015 and
J1/20/2015 to issue seeking
reliefs, which concern the said
refusal. At the hearing of the
respective actions, in view of
the fact that they raised common
questions for our decision and
arise from the same transaction,
we made an order consolidating
them for trial. In making the
order of consolidation, we were
guided by Order 31 rule 2 of the
High Court (Civil Procedure
Rules) of 2004, (CI 47) by which
it is provided:
……“Where two or more causes or
matters are pending in the same
Court and it appears to the
Court
(a)
That some common question of law
or fact arises in both or all of
them, or
(b)
That the rights to relief
claimed are in respect of or
arise out of the same
transaction or series of
transactions or
(c)
That for some other reason it is
desirable to make an order under
this rule……”
The said common questions of law
are the true meaning of article
60 (11) and (12) of the 1992
Constitution. Beyond this
question, we have to decide
other questions, which though
turning on the said refusal are
not common to both actions. One
such question is whether the
Speaker has violated his oath of
office; the other being whether
he is a necessary and proper
party in suit number
J1/4/2015.As the questions for
determination arise from the
same act, we are obliged to
dispose of the common questions
of law or rights to relief
claimed in both actions at the
same time. See: (1) Daws v
Daily Sketch and Sunday Graphic
Ltd [1960] 1 All ER 397; (2)
Beardsall v Cheetham,(1858)
EB & E 243.
The plaintiff in suit number
J1/4/ 2015 seeks the following
reliefs:
(a)
declaration that upon a true and
proper construction and or
interpretation of articles 60
(11) and 60 (12) of the
Constitution of 1992 of the
Republic of Ghana, the Speaker
of Parliament shall, always,
before assuming the functions of
the President where the
President and the Vice-
President are unable to perform
their functions, take and
subscribe the oath set out in
relation to the office of
president.
(b)
An order restraining the Second
Defendant from holding himself
out as President of Ghana
without first complying with
article 60 (12).
(c)
Any other order or orders
consequential to the enforcement
of the provisions of articles 60
(11) and 60 (12) of the 1992
Constitution of the Republic of
Ghana.
The following reliefs were also
sought in suit number
J1/20/2015:
1.
A declaration that the Speaker
of Parliament’s refusal to take
and subscribe the oath set out
in relation to the office of the
President on November 5, 2014
when the President and Vice-
President were both unable to
perform the functions of the
President violated Article 60
(11) of the 1992 Constitution.
2.
A declaration that Speaker of
Parliament’s refusal to take and
subscribe to the oath set out in
relation to the President on
November 5, 2014 when the
President and the Vice-
President were both unable you
perform the functions of the
President violated article 60
(11) of the 1992 Constitution.
3.
A declaration that the Speaker
of Parliament’s refusal to take
and subscribe to the oath set
out in relation to the office of
the President on November 5,
2014 when the President and the
Vice- President were both unable
to perform the functions of the
President violated the Speaker’s
oath as set out in the Second
Schedule of the 1992
Constitution which requires him
to uphold, preserve, protect and
defend the Constitution of
Ghana.
4.
A declaration that the Speaker
of Parliament’s refusal to take
and subscribe to the oath set
out in relation to the office of
the President on November 5,
2014 when the President and the
Vice- President were unable to
perform the functions of the
President violated this court’s
order in Asare Attorney-General
[2003-4] SCGLR 823 which
obligates the Speaker to perform
the functions of the President
where both the President and
Vice- President are absent from
Ghana.
5.
A declaration that Speaker of
Parliament’s violation of this
Court’s order in Asare Attorney-
General [2003-4] SCGLR 823 on
November 5, 2014 constitutes a
high crime under the 1992
Constitution.
6.
A declaration that Speaker of
Parliament’s refusal to take and
subscribe the oath set out in
relation to the office of the
President on November 7, 2014
when both the President and the
Vice- President were unable to
perform the functions of the
President violated article 60
(11) of the Constitution.
7.
A declaration that the Speaker
of Parliament’s refusal to take
and subscribe the oath set out
in relation to the office of the
President on November 7, 2014
when both the President and
Vice- President were unable to
perform the functions of the
President violated article 60
(12) of the 1992 Constitution.
8.
A declaration that the Speaker
of Parliament’s refusal to take
and subscribe the oath set out
in relation to the office of the
President on November 7, 2014
when the President and Vice-
President were both unable to
perform the functions of the
President violated the Speaker’s
oath as set forth in the Second
Schedule of the 1992
Constitution which requires him
to uphold, preserve, protect and
defend the Constitution of
Ghana.
9.
A declaration that Speaker of
Parliament’s refusal to take and
subscribe to the oath set out in
relation to the office of the
President on November 7, 2014
when the President and Vice-
President were both unable to
perform the functions of the
President violated this Court’s
order in Asare v Attorney–
General [2003-4} SCGLR 823 which
obligates the Speaker to perform
the functions of the President
where both the President and
Vice- President were absent from
Ghana.
10.
A declaration that Speaker of
Parliament’s violation of this
Court’s order in Asare Attorney
– General [2003-4] SCGLR 823 on
November 7, 2014 constitutes a
high crime under the 1992
Constitution.
11.
An order directing the Speaker
of Parliament or his successors
to permanently cease and desist
from violating articles 60 (11)
- (12), his oath of office and
this court’s order in Asare v
Attorney- General [2003-4} SCGLR
823.
12.
Such further or other orders as
the honourable court will deem
fit.
13.
Costs for court expenses and
counsel fees.
In view of the fact that the
plaintiffs seek the
determination of common
questions of law in the separate
actions filed by them, we
propose in our consideration of
those questions to refer to the
parties as plaintiffs and
defendants. However, in
considering the questions, which
are not common to both actions,
we shall refer to the parties as
plaintiff and defendant(s). In
making out their claims, the
plaintiffs placed great reliance
on the decision of this court in
Asare v Attorney-General
[2003-2004] SCGLR 823, which
pronounced that when the
President and the Vice-President
are absent from the country, the
Speaker is required to assume
the office of the President.
According to the plaintiffs,
that decision, which construed
the scope of article 60 (11) is
binding and effect must be given
to it in these proceedings.
The plaintiffs contend that
following the decision in the
Asare case (supra) to the
effect that when both the
President and Vice-President are
absent from the country, the
Speaker is obliged to perform
the functions of the President,
he must before assuming such
office subscribe to the
Presidential oath as provided
for in article 60 (12) of the
constitution. The plaintiffs
also assert that subscription to
the oath of President is a
condition precedent to the
exercise by the Speaker of the
functions of President which he
assumes by virtue of article 60
(11) of the constitution and
obligated on each such occasion
to take and subscribe to the
oath of President. The plaintiff
in J1/20/2015 also contends that
the refusal of the Speaker to
take the oath prescribed in
article 60 (12) of the
constitution, constitutes a
violation of his oath of office
by which among others he swore
to “uphold, preserve, protect
and defend the Constitution of
the Republic of Ghana.….” as
well as a high crime and
additionally seeks an order
directing the Speaker or his
successors to permanently cease
and desist from violating
articles 60 (11)and 60 (12) of
the Constitution. The plaintiff
in J/1/14/2015 pre-emptively
raised the question whether or
not the Speaker who is sued as 2nd
defendant is a necessary and
proper party to the action. In
suit number J1/14/2015, the
plaintiff seeks a determination
whether the joinder of the
Speaker to the action as 2nd
defendant is proper in view of
article 88 of the constitution.
On the other side of the aisle,
so to say, the learned
Attorney- General contends
that the Speaker acted properly
and that the framers of the
constitution did not intend him
to subscribe to the oath of the
President each time that he
assumes the functions of the
President under article 60 (11)
of the constitution and that in
particular, the previous
decision of this court in the
case of Asare v Attorney
– General ( supra)was not
correctly decided and
consequently urges us in these
proceedings to depart from the
said decision as indeed, we are
enabled by article 129 of the
constitution in appropriate
instances when so satisfied to
do. In support of this
assertion, the learned Attorney-
General invites us to consider
what he described as
parliamentary precedent in the
practice of the first Speaker of
the fourth Republic when he
declined to swear on two
occasions when he assumed office
under article 60 (11) of the
constitution.
The learned Attorney- General
contends further that the said
decision does not make the law
accord with changing
circumstances that sees the
President and Vice-President
having to travel on several
occasions and sometimes for
relatively short periods of time
such that to require the Speaker
whenever the President and his
vice are out of the country to
subscribe to the oath of
President provided for in
article 60 (12) of the
constitution would render the
requirement of oath taking
absurd. In the view of the
learned Attorney - General, the
requirement in article 60 (12)
is satisfied when the Speaker
swears to the oath of the
President on the first occasion
that he assumes that office
under article 60 (11). That
argument seems to take its root
from purposivism, a mode of
interpretation that seeks to
construe legislation to keep
pace with the times. Such an
approach enables legislation
passed previously to be
interpreted to apply to changed
circumstances prevailing at the
time of the decision being
rendered. For example in the
case of R v Misic [2001]
NZLR 1, the word “documents”
appearing in a statute made
before the advent of internet
technology was construed to
include computer programs. See
also: R v Fellows [1997]
2All ER 548. Whiles the
purposive approach allows for
the law to take into account the
social and economic context in
which it should now operate
relative to those at the time
the enactment was passed, such
an approach to construction
should not take precedence over
the clear meaning of the words.
The learned Attorney - General
then proceeded to argue that the
case of Asare v A-G
(supra) only decided the
question relating to the
constitutionality of the
swearing of the Speaker in the
absence of both the President
and Vice-President and that the
question of his subscription to
the oath of President in the
event of such assumption of the
office of President was not
decided by the Supreme Court in
that case and appears to be an
issue for our decision in these
proceedings. Accordingly, so the
learned Attorney - General
contends, there cannot be a
violation of the orders and or
directions made by this court in
the Asare case (supra)
such to bring the conduct of the
Speaker within the designation
of a high crime under the
constitution.
On the question of the
violation of the oath of office
by the Speaker, the learned
Attorney- General denies that
the refusal to swear to the oath
in the circumstances of this
case constitutes a violation and
in regard to the question
whether the Speaker was properly
sued as 2nd defendant
in J1/4/2015, he responded that
the said question should receive
a negative answer by virtue of
article 88 of the constitution.
From the pleadings before us in
the consolidated actions herein,
the issues for our determination
appear to be as set out in the
respective memorandum of issues
filed by the parties prior to
the making of the order of
consolidation as they did not
file an agreed memorandum of
issues. Before proceeding with a
consideration of the issues for
our determination, we would like
to comment on a matter of
procedure which appears to be of
some importance in the
preparation of constitutional
actions for trial before the
Supreme Court. In our opinion,
nearly two decades after the
coming into force of the Rules
of the Supreme Court in 1996 by
the enactment of CI 16, parties
to constitutional disputes, it
is surprising that parties to
such disputes fail to submit a
joint memorandum as required by
Rule 50 of the Supreme Court
Rules.
The observation is made that the
said provision is a case-
management technique that
affords the parties the
opportunity of reaching
agreement on the questions for
our determination and indeed, in
appropriate instances narrowing
down the contested issues and
thus moving the action in
respect of which such an
initiative is taken closer
towards disposition. Where the
parties file a memorandum of
agreed issues, we are prevented
from considering the different
formulations that are intended
to raise for our determination
the same questions and enhances
our understanding of the issues.
Considering the fact that
constitutional issues turn on
provisions of the constitution,
and for that matter not based
entrenched positions of
interest of parties that is
common to ordinary actions where
their competing interest come up
for determination by a court of
law, we are unable to
comprehend whatever
difficulties that parties have
in complying with rule 50 of
CI16 as the filing of separate
memorandum appears from the
reading of rule 50 of the
Supreme Court Rules and in
particular sub-rule 3 not to be
as of right but subsequent to a
demonstration that although they
endeavored to comply with the
rule, they were unable to reach
an agreement on the issues hence
the need for the filing of
separate memorandum of issues.
It is hoped that counsel will in
future endeavor to comply with
the provision by endeavoring to
file a memorandum of agreed
issues. This procedural lapse
was recently discussed by my
able brother Dotse JSC in his
unreported judgment in case
number J1/15/2015 entitled
Professor Stephen Kweku Asare v
the Attorney- General
delivered on October 14, 2015.
We are of the opinion that the
time has come for us about two
decades since the coming into
force of the Supreme Court
Rules, CI 16 to determine the
appropriate practice to be
followed by parties in relation
to the submission of a
memorandum of agreed issues.
The questions that we have to
decide in these proceedings are
both substantive and procedural.
The substantive questions are
whether the Speaker is required
to subscribe to the oath of
President each time that the
President and the Vice-President
are out of the country. Closely
linked to the first question is
whether by his refusal to take
the said oath he has violated
his oath of office and lastly
within the context of the
admitted facts in the actions
herein, he has conducted himself
in a manner that constitutes a
high crime under the
constitution. While the first
substantive question for our
decision is common to both
actions, the second one applies
only to J1/20/2015. The
procedural question, which
relates only to Suit Number
J1/4/2015 is whether the Speaker
is a necessary and proper party
to the action entitled: Samuel
Atta Mensa v. (1). The Attorney-
General and (2) The Honourable
Edward Doe Adjaho (The
Speaker). In this judgment, we
shall first consider the
substantive issues commencing
with that which is common to the
consolidated actions herein and
thereafter proceed to deal with
the procedural question.
We have had the advantage of
very detailed arguments upon
what seemed to be an important
question in this case relating
to the previous decision of this
court in the Asare case (supra)
and have come to the opinion in
relatively few words that the
learned justices expounded the
law correctly in that case
(supra) and find no reason to
yield to the invitation urged on
us by the learned Attorney -
General to depart there from. We
venture to say that the
discretion conferred on us under
article 129 of the constitution
to depart from previous
decisions is to be used rarely
and sparingly and with great
circumspection. The power is not
intended to be exercised merely
because a different panel of
judges think that the issues
that they are confronted with
can be resolved differently from
the previous panel. The doctrine
of precedent exits to affirm
certainty and avoid the danger
of unsettling existing
arrangements.
Learned counsel for the
plaintiffs was right when they
invited us to accept the said
decision which forms the fulcrum
of their claims as having been
correctly decided. In our
opinion, the absence of both the
President and Vice-President
from the jurisdiction triggers
the requirement imposed on the
Speaker upon whom power is then
conferred to assume the office
of President until such time
that he is relieved from such a
responsibility by the return to
Ghana of either the President or
the Vice-President. The
assumption of the office of
President by the Speaker is
intended to avoid a vacuum being
created by the absence of both
the President and the Vice -
President from the country and
to ensure that the
organizational machinery of the
state is kept on-going at all
times. In this regard, the
practice of the first Speaker of
the Fourth Republic to which
reference was made appears from
the available facts to have
been eroded as a precedent, so
to say by his successors who
acted differently when they
assumed the office of the
President under article 60 (11).
Having reached this view of the
matter as we are, indeed in
principle bound to be having
regard to the decision in
Asare v Attorney- General
(supra), the next question of
relevance for our decision is
whether on each occasion that
the Speaker steps into the high
office of President, he must
before exercising the functions
of the office of President
subscribe to the Presidential
oath. It appears from a
consideration of the Asare
case (supra), that the said
question was neither decided nor
was an issue that the parties
could have raised for a decision
of the court and consequently
the parties are not precluded
from raising it before us in
these proceedings for our
binding pronouncement thereon.
In order to better appreciate
the question raised under
article 60 (12), it is important
to understand that the office of
the Speaker as created by the
1992 constitution relates to the
functions of the legislature and
accordingly when the occupant of
the office is required by the
constitution under article
60(11), to assume the functions
of the President, he temporarily
occupies an office which is
outside the purview of the
legislature. Therefore, in order
to assume that new office, which
he assumes by operation of law,
he must for such assumption to
be effectual subscribe to the
oath of the President. The
language of the relevant
constitutional provisions
contained in articles 60 (11)
and 60 (12) compel us to the
view that the obligation imposed
on the Speaker when both the
President and his vice are
unable to perform the functions
of the office of President, the
Speaker must subscribe to the
oath spelt out in article 60
(12) to enable him exercise the
functions of the President. When
the Speaker is either not sworn
in or refuses to be sworn in as
the circumstances of this case
point to, then notwithstanding
his assumption of office as
contemplated by article 60 (11),
he cannot exercise any function
that pertains to the office of
the President.
The position, which the learned
Attorney-General has pressed on
us to the contrary, has the
effect of inviting us to shut
our eyes to the essential
differences in the nature and
functions of the office of the
President and that of the
Speaker. While the office of the
President has a wider
constituency and indeed extends
beyond the narrow frontiers of
Parliament and carries a greater
and more onerous responsibility,
that of the Speaker is limited
in its scope to the legislature
and the requirement to subscribe
to the oath whenever he assumes
the office of President is not a
mere formality but intended to
remind him of his added
responsibilities and also serve
as notice to the entire
citizenry that the Speaker,
though for a limited period has
assumed the office of the
President. Perhaps, it can be
said that as the assumption of
office by the Speaker under
article 60 (11) is known to the
framers of the constitution, if
they intended that he swears
only once during the tenure of
Parliament specific provision
would have been made to that
effect. As it is, the failure to
make any such provision renders
the interpretation urged on us
by the learned Attorney -
General unattractive and the
same is rejected. A careful
consideration of the provisions
of the constitution on which the
consolidated actions herein turn
informs us that the assumption
of office of President by the
Speaker is not intended to be a
matter of routine but one that
arises in situations of exigency
when neither the President nor
his vice are within the country
and therefore unable to perform
the functions of the President.
The occasions on which such a
situation arise must in the
contemplation of the framers of
the constitution be rare indeed,
hence the requirement in article
60 (11) regarding the swearing
by the Speaker of the oath of
President whenever he assumes
that office. Any other
interpretation of the provisions
would not only be contrary to
the clear provisions of the
constitution but equally an
assault on the spirit of the
constitution.
In reaching this opinion, we
have given careful consideration
to the arguments canvassed
before us by the learned
Attorney- General that to
require the Speaker to take an
oath whenever he assumes the
high office of President will
create a situation in which we
have two Presidents, one
exercising his functions extra
territorially and the other
exercising his functions within
the jurisdiction. That argument,
however disregards the fact that
by the decision in the Asare
case (supra), the presence
in Ghana of the President is a
condition precedent to the
exercise of the functions
conferred on him under the
constitution. But that is not
all. When article 60(12) of the
constitution is read together
with article 60 (11), it is
quite clear that the requirement
to swear to the oath of the
President relates to each
occasion that both the President
and the Vice – President are out
of the country and indeed, to
accept the position of the
learned Attorney - General will
constitute the Speaker into an
alternate president. As
hereinbefore discussed, we are
of the opinion that the Speaker
is obliged by the requirements
of the constitution to subscribe
to the oath each time that he
assumes the onerous
responsibility as President in
order to exercise the functions
of that office. Judicial notice
is taken of the fact that such
oaths are by practice recorded
in a special book known as the
“Oaths Book” and that when sworn
to by the Speaker is an act that
validates his assumption of the
office of President, and also
serves as a permanent record to
which easy reference can be made
in the event of there being any
question regarding any such
assumption of office by him.
Then there is the point raised
by the learned Attorney- General
in support of the refusal by the
Speaker to swear to the oath of
the President, which turns on
the Oaths Act, NRCD 6 of 1972 as
follows. It was urged in that
behalf that by swearing the
Presidential oath on September
19, 2014 the Speaker had
satisfied the requirement of the
constitution and relies for this
proposition on section 3(1) and
(2) of NRCD 6, the Oaths Act
which is reproduced hereunder as
follows:
(1) “A person who has duly taken
the Oath of Allegiance or the
Judicial Oath shall not be
required again to take that oath
on appointment to any other
office or on any other occasion.
(2) A person shall not be
required to take an oath on
appointment to an office unless
the oath is different from or in
addition to an oath duly taken
by that person in respect of any
other appointment”
The above provisions do not
advance the case of the learned
Attorney- General as the office
of the President which the
Speaker assumes under article 60
(12) of the constitution is not
one to which he was appointed
and the oath seems to be one
required of him in respect of an
additional office. In this
regard the case of
Kuenyehia v Archer
[1993-94] 2 GLR 525 which was
cited to us by the learned
Attorney- General appears not to
be applicable as the
pronouncement of the court on
the question of judges repeating
the oaths, which they had
previously taken before the
appointing authority after they
had entered upon their offices
as judges before the coming into
force of the 1992 Constitution
is covered by section 3 (1) of
the Oaths Act, NRCD 6.It seems
to us from a fair reading of the
applicable statutory provisions
that the requirement precluding
the taking of a new oath appears
to be in relation to those who
would have previously taken
oaths in respect of the same
office, a view of the matter
that tends to reinforce the
point that the Speaker is
obliged to swear the oath each
time that he assumes the office
of President under the 1992
Constitution.
Indeed, a careful reading of
article 60 (12) of the
constitution in relation to
article 156 (1) which was
construed in the case of
Kuenyehia v Archer (supra)
reveals that the words “shall,
before commencing the functions
of the President under clause
(11) of this article” is
followed by words which negate
the meaning placed on the phrase
contained in article 156(1)
which reads “shall, before
assuming the exercise of the
duties of his office”. In
any event, there seems not to be
any ambiguity in the meaning of
article 60 (12) to enable us
embark as it were on a journey
of discerning its meaning by
resorting to the rule of “in
parimateria.”
Having resolved the question as
to the true meaning of article
60 (12), we now turn our
attention to consider the vexed
question whether by refusing to
take the oath of President on
the two dates with which this
action is concerned, the Speaker
has violated his oath of
office. From the admitted facts,
the Speaker swore to the oath of
the resident on September 19,
2013 when he was required to
assume the office of President
but declined to do so on
November5 and 7, 2014 on the
ground that he had previously
taken the said oath and that it
was unnecessary for him to
subscribe to another oath.
Although the Speaker provided an
explanation which raises a
probable case for
interpretation, by articles 1(2)
and 2(1) of the constitution we
are required by the constitution
to measure acts of
constitutional office holders
with provisions of the
constitution for the purpose
giving effect to the provisions
of the constitution, and having
carefully considered his refusal
to swear to the oath of
President on the dates relevant
to the proceedings herein, we
think that it constitutes an act
that contravenes the
constitution.
A declaration that the refusal
to swear to the oath of
President contravenes the
provisions of the constitution
necessarily has the effect of
rendering that conduct into an
act that violates his oath as
the word “violation” is
synonymous with “contravention”.
As the constitution is the
fundamental law of the land, our
decision has retrospective
effect with the contravention
dating back to November 5, 2014
when following the absence of
the President and Vice-
President from the country, he
was obliged under article 60
(11) to assume the functions of
President and subscribe to the
oath in terms of article 60
(12).We are of the opinion that
to constitute a violation of an
oath, one needs not to prove
that the refusal was done for
the purpose of undermining the
constitution and that even an
error of judgment which
contravenes a provision of the
constitution will suffice to
establish a violation as in this
case. The violation need not in
our opinion be culpable.
This leads us to the next
question for determination,
which touches and concerns the
allegation of a high crime
committed by the Speaker when he
refused to subscribe to the oath
of President on two dates -
November 5, 2014 and November 7,
2014. The offence of a high
crime is created in article 2
(4) and (5) of the 1992
Constitution in the following
words:
“(4) Failure to obey or carry
out the terms of an order or
direction made or given under
clause (2) of this article
constitutes a high crime under
this constitution.
(5) A person convicted of
high crime under clause (4) of
this article shall
(a) be liable to imprisonment
not exceeding ten years without
the option of a fine and
(b) not eligible for election,
or for appointment to any public
office for ten years beginning
with the date of the expiration
of the term of imprisonment”
We are in great difficulty in
the face of the clear provisions
of article 2 (4) and (5) of the
constitution, the purpose for
which our jurisdiction was
invoked in respect of an
allegation, proof of which
constitutes a crime. In any
event, even if we had
jurisdiction to inquire into the
allegation of a high crime, it
cannot be tried together with
our interpretive function which
is purely civil. That aside, the
mode for the initiation of
criminal proceedings is at the
instance of the Attorney-General
and not a private person as we
have before us in the matter
herein. In the circumstances,
the said question is not
properly before us for
determination and we proceed to
have it struck out. We are of
the opinion that as a high crime
raises the question of personal
liability for a crime, the
Speaker ought to have been
joined to suit number J1/20/2015
irrespective of whether our
jurisdiction has been wrongly
invoked in relation to it.
The last question for our
decision is in regard to the
competency of the Speaker being
a party to the action herein
which was raised by the
plaintiff in Suit Number J1/4/
2015. For emphasis, the
allegation of a high crime was
not raised in this action and as
such the statements made in the
preceding paragraph on the
question of the Speaker being a
party to that action must be
limited to J1/20/2015.Weaccept
the argument of the learned
Attorney - General that the
refusal of the Speaker to swear
to the oath of President
concerns a constitutional office
holder and is not personal to
the individual occupant and as
such the proper party to answer
for the said act is the
Attorney- General by virtue of
article 88 of the constitution.
In our opinion, when the
constitution imposes an
obligation on a constitutional
office holder, the performance
of that obligation is an act
that is not personal to him but
properly belongs to those acts
which are performed on behalf of
the state and come within the
purview of matters in respect of
which the Attorney- General is
by article 88(5) of the
constitution responsible for.
The qualification made in
respect of article 88(5) of the
constitution by this court in
relation to the Attorney-
General in the case of
Amegatcher v the Attorney-
General and others [2012]
SCGLR 679 is clearly
inapplicable to the
circumstances of this case as
the position of the 1st
defendant in J1/4/2015 is
coterminous with that of the
Speaker. There is no reason in
principle why an act or omission
by some other public officer
creates a liability in the
Attorney- General under article
88 whiles that of the Speaker
does not. Accordingly, the 2nddefendant
who was improperly joined to the
said action is hereby struck out
on grounds of misjoinder.
N.
S.
GBADEGBE
JUSTICE
OF THE SUPREME COURT
S.
A. B. AKUFFO
(MS)
JUSTICE
OF THE SUPREME COURT
J.
ANSAH
JUSTICE OF THE SUPREME COURT
S.
O. A. ADINYIRA
(MRS)
JUSTICE
OF THE SUPREME COURT
V.
J. M.
DOTSE
JUSTICE
OF THE SUPREME COURT
ANIN
YEBOAH
JUSTICE
OF THE SUPREME COURT
V.
AKOTO BAMFO (MRS)
JUSTICE
OF THE SUPREME COURT
A. A.
BENIN
JUSTICE
OF THE SUPREME COURT
J. B. AKAMBA
JUSTICE
OF THE SUPREME COURT
COUNSEL
YAW OPPONG ESQ. WITH HIM CHRIS
OSEI- YEBOAH, NII APPATU –PLANGE
AND LAWRENCE AKAPAME FOR
SAMUEL ATTA- MENSAH.
ERIC DELANYO ALIFO ESQ. FOR
PROF. STEPHEN KWEKU ASARE.
HON. DR. DOMINIC AKURITINGA
AYINE ESQ. DEPUTY ATTORNEY
GENERAL FOR THE DEFENDANTS IN
BOTH CASES.
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