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Constitutional law - Original
jurisdiction - Articles 2 and
130 of the Constitution –
Interpretation – articles 168,
23 and 296 of the Constitution -
Enforcement of a human right -
locus standi -
HEADNOTES
The
plaintiff, by a writ filed on 26th
October 2011, sought to invoke
the original jurisdiction of
this Court for:“Enforcement of
the constitution by:a
declaration that on a true and
proper interpretation of
articles 168, 23 and 296 of the
Constitution, the National Media
Commission cannot appoint one of
its members to the position of
Director General of Ghana
Broadcasting Corporation without
affording other qualified
Ghanaians the opportunity to
apply for the position and that
the appointment of the 2nd
defendant, a member of the
National Broadcasting
Corporation, without offering
other qualified Ghanaians the
opportunity to apply for the job
contravenes the letter and
spirit of articles 23 and 296 of
the 1992 constitution but
defendants are of the view that
Supreme Court does not have
original jurisdiction to hear
this action as the action is
premised on article 23 of the
Constitution, 1992, a human
rights provision. Thus, while
dressed up as a constitutional
issue, the action in fact
involves the enforcement of a
human right provision which by
virtue of the combined effects
of Article 33(1), 130(1) and
140(2) is a matter that the High
Court and not the Supreme Court
has original and exclusive
jurisdiction over
HELD
In
conclusion, the point that I
wish to make on this stare
decisis issue is that this court
is not absolutely bound by the
decision in the Captan case and
therefore the correct
interpretation of “discretionary
power” remains open, so far as
this Court is concerned.
Accordingly, that is a further
reason why the preliminary
objection cannot succeed. It
cannot be legitimately asserted
that the meaning of
“discretionary power” has
already been authoritatively and
conclusively determined and
therefore there is no issue left
for interpretation.
In sum, I find the
three grounds of the preliminary
objection unmeritorious and they
are thus dismissed.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
1969
Constitution
1979
Constitution
CASES
REFERRED TO IN JUDGMENT
Edusei v.
Attorney-General [1996-97] SCGLR
1
Gbedemah v.
Awoonor-Williams (1970) 2 G&G
438
Tait v. Ghana
Airways Corporation (1970) 2 G&G
527
Ditcher v.
Dension (1857) 11 Moo PCC 324
National
Media Commission v.
Attorney-General [2000] SCGLR 1,
Agbevor v.
Attorney-General [2000] SCGLR
403
Adofo v.
Attorney-General [2005-2006]
SCGLR 42.
Nana Yiadom
v. Nana Maniampong (1981) GLR 3
Republic v.
Special Tribunal, Ex parte
Akorsah (1980) GLR 592
Yiadom I v
Amaniampong [1981] GLR 3, SC;
Ghana Bar
Association v Attorney General
[1995-96] 1 GLR 589 SC;
[2003-2004] 1 SCGLR 250;
Yeboah v
Mensah [1998-99] SCGLR 492
Ahumah-Ocansey v Electoral
Commission; Centre for Human
Rights & Civil Liberties
(Churcil) v Attorney-General &
Electoral Commission
(Consolidated) [2010] SCGLR 575
Bimpong-Buta
v General Legal Council & Others
[2003-2004] SCGLR 1200,
Captan v
Minister for Home Affairs
(Minister of Interior) G & G, 2nd
Edition, Vol. 2, Part 2, 2233
R v Askew
(1768) 4 Burr. 2186 at 2189.
Abel Edusei
(No. 2) v Attorney-General
[1998-99] SCGLR 753
Yiadom I v
Amaniampong [1981] GLR 3
Ghana Bar
Association v Attorney-General
[1995-96] 1 GLR 589 SC;
]2003-2004] SCGLR 250
Sam (No. 2) v
Attorney-General [2000] SCGLR
305
FEDYAG v
Public Universities of Ghana
[2010] SCGLR 265
Adjei-Ampofo
v Accra Metropolitan Assembly
[2007-2008] SCGLR 611
BOOKS
REFERRED TO IN JUDGMENT
The Role of
the Supreme Court in the
Development of Constitutional
Law in Ghana Dr. Bimpong-Buta
Samuel
Okudjeto Ablakwa & Anor v. The
Attorney-General & Another,
J1/4/2010 dated 10/11/2011.
De Smith,
Woolf and Jowell, Judicial
Review of Administrative Action,
Fifth Edition, London, Smith &
Maxwell, pages 298
Oppon v.
Attorney-General [2003-2004] 1
SCGLR 376,
Republic v
Special Tribunal; Ex parte
Akosah [1980] GLR 592
Republic v
National House of Chiefs; Ex
parte Odeneho Akrofa Krukoko II
(Osagyefo Kwamena Enimil VI,
Interested Party [2010] SCGLR
134,
In Re
Agyepong; Donkor v Agyepong
[1973] 1 GLR 326
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
AKWESI OPOKU
FOR THE PLAINTIFF.
AKOTO – AMPAW
FOR THE DEFEDANTS.
R U L I N G
___________________________________________________________________
ATUGUBA,
J.S.C:
I have had
the advantage of reading the
characteristic masterly opinion
of my brother Dr. Date-Bah
J.S.C. I agree with much of it
and its conclusion.
However, I
perpetually disagree, with
global respect to him, in so far
as he holds that this court’s
enforcement jurisdiction does
not arise unless an issue of
interpretation arises. The
original
jurisdiction of this court
stems from
articles
2 and 130 of the Constitution.
One of its most essential
components is the enforcement of
the Constitution as an item of
jurisdiction in its own right
and though it may arise jointly
with an issue of
interpretation its existence
and invocation cannot be
inextricably linked to the
incidence of an interpretative
issue, as a sine qua non
prerequisite.
It is common
knowledge that the original
jurisdiction of this court has
been conferred in almost
identical language in the
1969 and
1979 past Constitutions of
Ghana and has been consistently
interpreted in the same manner
by the Supreme Court.
Thus in
Edusei v.
Attorney-General [1996-97] SCGLR
1 at 51 Kpegah JSC recalled
the earliest authoritative
construction of the original
jurisdiction of this court thus:
“
In the case of
Gbedemah
v. Awoonor-Williams (1970) 2 G&G
438 at 439 the Court of
Appeal, sitting as the Supreme
Court, stated the parameters
within which the original and
exclusive jurisdiction can be
invoked thus:
“It seems to
us that for a plaintiff to be
able to invoke the original and
exclusive jurisdiction of the
Supreme Court his writ of
summons or statement of claim or
both must prima facie raise an
issue relating to:
(1)
the
enforcement of a provision of
the Constitution; or
(2)
the
interpretation of a provision of
the Constitution; or
(3)
a
question whether an enactment
was made ultra vires Parliament,
or any other authority or person
by law or under the
Constitution.” (e.s)
The above
dictum was approved and applied
in Tait
v. Ghana Airways Corporation
(1970) 2 G&G 527 where the
plaintiff’s case was held to be
essentially one of wrongful
dismissal and rejected the
contention of counsel for the
plaintiff that the court was
being called upon to interpret
and enforce articles 138(b) and
140(2) of the 1969
Constitution.”
So entrenched
is this construction that in
Edusei v. Attorney-General
(1997-98) 2 GLR 1 at 43 Acquah
JSC (as he then was) robustly
said:
“The word
“exclusive” was not used in
article 130(1) of the
Constitution, 1992 without
significance. And an
interpretation which fails to
bring out the meaning and effect
of the word “exclusive” would be
myopic. For as the Privy Council
cautioned in
Ditcher
v. Dension (1857) 11 Moo PCC 324
at 337:
“It is also a
good general rule in
jurisprudence that one who reads
a legal document, whether public
or private, should not be prompt
to ascribe, should not without
necessity or some sound reason,
impute to its language tautology
or superfluity, and should be
rather at the outset inclined to
suppose each word intended to
have some effect, or to be of
some use.” (e.s.)
The word
“exclusive” in article 130(1) of
the Constitution, 1992 was
therefore not put down for fun
but intended to vest in the
Supreme Court a jurisdiction not
to be shared with any other. Not
surprisingly therefore, the
unanimous decision in Gbedemah
v. Awoonor-Williams (supra), as
already pointed out, came to the
conclusion as I have done when
in defining the exclusive
original jurisdiction in the
enforcement of the provisions of
the Constitution, 1969 and the
Court stated at 440 that the
Supreme Court’s power of
enforcement “ ... means the
enforcement of the provisions of
the Constitution, other than the
provisions of article 12 to 27”
[ie those on fundamental human
rights.].” ” (e.s.)
Actions in
which this court has exercised
its exclusive original
jurisdiction in respect of clear
and unambiguous provisions
include
National Media Commission v.
Attorney-General [2000] SCGLR 1,
Agbevor v. Attorney-General
[2000] SCGLR 403 and Adofo v.
Attorney-General [2005-2006]
SCGLR 42. Indeed in Nana Yiadom
v. Nana Maniampong (1981) GLR 3
at 7-8 Apaloo C.J.
delivering the judgment of the
Supreme Court preserved the
independent identities of this
court’s interpretative and
enforcement jurisdictions when
he said:
“
Article 161 and section 7(1) of
the transitional provisions seek
to continue in office after the
promulgation of the
Constitution, 1979, all holders
of public and other offices on
the eve of the coming into force
of the Constitution. It is not
suggested that either provision
is ambiguous or give rise to any
problem of interpretation. It is
difficult to see how either of
these provisions shed any light
on the question in controversy
in this case, namely, whether or
not the first defendant is still
in lawful occupation of the
paramount stool of Mampong,
Ashanti.
If the
plaintiff’s case for
interpretation is tenuous, her
plea for enforcement is even
more so. To enforce a provision
of the Constitution is to compel
its observance. The plaintiff
was not able to point to any
provision of the Constitution
which the first defendant has
breached, or threatens to
breach.” (e.s.)
The locus
classicus of Anin J.A. (as he
then was), in
Republic
v. Special Tribunal, Ex parte
Akorsah (1980) GLR 592 at
605 summed up in his statement
that “there is no case of
“enforcement or interpretation”
where the language of the
article of the Constitution is
clear, precise and unambiguous”
needs restatement. It certainly
cannot, with tremulous respect
to him, be right to the extent
that this court’s enforcement
jurisdiction only arises where
the article that falls to be
enforced is not devoid of
ambiguity. No court other than
the Supreme Court has
jurisdiction to entertain an
ACTION to enforce any article of
the Constitution even if its
clarity is brighter than the
strongest light. However, when
an enforcement ISSUE
coincidentally arises in any
court and the article involved
is crystal clear such court may
apply the Constitution to it.
This means
that for example if the
President appoints a superior
court judge of the High Court or
Court of Appeal without the
advice of the Judicial Council
as required by article 144(3) of
the Constitution he would have
acted in clear breach of that
provision. That provision is one
of the clearest in the world and
runs thus:
“(3) Justices
of the Court of Appeal and of
the High Court and the Chairmen
of Regional Tribunals shall be
appointed by the President
acting on the advice of the
Judicial Council.” (e.s.)
An action to
enforce the Constitution for the
breach of this provision by way
of declaration and ancillary
reliefs can only be brought in
the Supreme Court under articles
2 and 130 and in no other court.
However, if
in an action in a court other
than the Supreme Court relating
to title to land a party relies
on a grant that contravenes
article 266(5), for example,
which converts previous
tenancies of land to non
citizens exceeding 50 years to a
term of 50 years, such a court
can apply such a provision which
also arose incidentally in that
court.
The point
that the enforcement
jurisdiction of this court does
not have to depend upon the
incidence of an ambiguous
constitutional provision has
been stressed by
Dr.
Bimpong-Buta at 529-530 of
his celebrated book,
The Role
of the Supreme Court in the
Development of Constitutional
Law in Ghana. This view has
been indorsed by this court in
its Ruling on a preliminary
objection to its jurisdiction in
Samuel
Okudjeto Ablakwa & Anor v. The
Attorney-General & Another,
J1/4/2010 dated 10/11/2011.
Subject to
this caveat and leaving open the
question of stare decisis in
this court relating to the pre
1992 Constitution decisions of
the previous Supreme Courts, I
would also overrule the
preliminary objection.
(SGD) W. A. ATUGUBA
ACTING CHIEF JUSTICE
AKUFFO [MS.],
JSC:
For the
reasons stated by my esteemed
brother Atuguba, I agree that
the objection be overruled.
(SGD) S. A. B.
AKUFFO [MS.]
JUSTICE OF THE SUPREME COURT
DR. DATE-BAH
JSC:
The
plaintiff, by a writ filed on 26th
October 2011, sought to invoke
the original jurisdiction of
this Court for:
“Enforcement
of the constitution by:
1.
A declaration that on a true and
proper interpretation of
articles 168, 23 and 296 of the
Constitution, the National Media
Commission cannot appoint one of
its members to the position of
Director General of Ghana
Broadcasting Corporation without
affording other qualified
Ghanaians the opportunity to
apply for the position.
2.
A declaration that the
appointment of the 2nd
defendant, a member of the
National Broadcasting
Corporation, without offering
other qualified Ghanaians the
opportunity to apply for the job
contravenes the letter and
spirit of articles 23 and 296 of
the 1992 constitution.
3.
Any other consequential orders
as to the Honourable Court will
seem meet.”
The writ was
accompanied by the usual
Statement of Case of the
plaintiff, verified by an
affidavit, all filed on the same
day. After
the
defendants had been served,
they filed their Statement of
Case in response on 11th
November, 2011. On 17th
February, 2012, the defendants
filed notice of their intention
to rely on a preliminary legal
objection. The notice listed
the grounds of the objection as
follows:
1.
“The
Supreme Court does not have
original jurisdiction to hear
this action as the action is
premised on Article 23 of the
Constitution, 1992, a human
rights provision. Thus, while
dressed up as a constitutional
issue, the action in fact
involves the enforcement of a
human right provision which by
virtue of the combined effects
of Article 33(1), 130(1) and
140(2) is a matter that the High
Court and not the Supreme Court
has original and exclusive
jurisdiction over. Abel
Edusei v Attorney General
[1996-97] SCGLR 1; Abel Edusei
(No. 2) v Attorney General
[1998-99] SCGLR 753. The instant
action is no more than one to
enforce a human rights provision
of the Constitution dressed up
in the garb of interpretation
and enforcement of the
Constitution. See
Yiadom I
v Amaniampong [1981] GLR 3, SC;
Ghana Bar Association v
Attorney General [1995-96] 1 GLR
589 SC; [2003-2004] 1 SCGLR 250;
Yeboah v Mensah [1998-99] SCGLR
492. What is more, in order
successfully to bring an action
to enforce a human rights
provision, the
Plaintiff/Respondent
(hereinafter referred to as “the
Plaintiff”) ought to have a
“personal interest” in the
outcome of the litigation.
Plaintiff however has no such
right in this case and
accordingly lacks
locus
standi to bring an action to
enforce Article 23.
2.
Article 168 of the Constitution
the interpretation of which
Plaintiff seeks does not raise
any question of interpretation
as same is clear, precise and
unambiguous, admitting of no
controversy as to its meaning.
Ahumah-Ocansey v Electoral
Commission; Centre for Human
Rights & Civil Liberties
(Churcil) v Attorney-General &
Electoral Commission
(Consolidated) [2010] SCGLR 575
at 673; Bimpong-Buta v General
Legal Council & Others
[2003-2004] SCGLR 1200,
Holding 1. Article 168 is
straightforward and to the
point: “The Commission (i.e.
the National Media Commission)
shall appoint the chairmen and
other members of the governing
boards of the public
corporations managing the
state-owned media in
consultation with the
President.” What is more
Plaintiff has not, by his
pleadings, demonstrated in any
way that Article 168 of the
Constitution has been breached
or otherwise violated by the 1st
Defendant in any manner to
sustain a claim based on breach
and/or enforcement of Article
168 of the Constitution, 1992.
Accordingly, the Supreme Court,
with respect, lacks jurisdiction
to entertain the instant writ
invoking the Court’s original
jurisdiction under Article 2(1)
and Article 130(1) of the
Constitution.
3.
The sort of discretionary powers
contemplated by Article 296 of
the Constitution, 1992, are
those that arise when the
legislature or executive or
other arm of government
constitutes an administrative
agency or other authority with
power to adjudicate
quasi-judicially on
administrative matters. Captan
v Minister for Home Affairs
(Minister of Interior) G & G, 2nd
Edition, Vol. 2, Part 2, 2233 at
2234; R v Askew (1768) 4 Burr.
2186 at 2189. De Smith, Woolf
and Jowell, Judicial Review of
Administrative Action, Fifth
Edition, London, Smith &
Maxwell, pages 298 to 299. The
function of the National Media
Commission challenged in this
suit, the power to appoint the
Director General of the Ghana
Broadcasting Corporation, does
not partake of any such
adjudication of a quasi-judicial
matter and accordingly the
institution of the action in the
Supreme Court based on Article
296 is misconceived and without
merit.”
The notice of
preliminary objection was
accompanied with written
submissions in support of the
objection. Counsel for the
plaintiff in turn responded to
these written submissions with
his own written submissions
rejecting the defendants’
preliminary objection.
This ruling
is thus a determination of
whether the preliminary
objection raised by the
defendants is justified. It
will, of course, consider the
defendants’ arguments and the
plaintiff’s counterarguments,
before coming to a decision.
Ground 1
The
defendants’ argument on ground 1
is that plaintiff’s action is
founded on Article 23 of the
1992 Constitution, a human
rights provision contained in
Chapter 5 of the Constitution.
It is their contention that it
is the High Court, not the
Supreme Court, which has
jurisdiction to enforce such
fundamental human rights
provisions of the Constitution.
They cite in support of this
argument Abel Edusei v
Attorney-General [1996-97] SCGLR
1 which held that the effect of
articles 33(1), 130(1) and
140(2) of the 1992 Constitution
was to vest in the High Court,
as a court of first instance, an
exclusive jurisdiction in the
enforcement of the fundamental
human rights and freedoms of the
individual and that the Supreme
Court had only an appellate
jurisdiction in such matters.
They also cite
Abel
Edusei (No. 2) v
Attorney-General [1998-99] SCGLR
753 in support of this
proposition of law.
The
defendants therefore submit that
though the plaintiff has couched
his sought relief in respect of
article 23 in terms that invite
this Court to interpret article
23, it is no more than an
endeavour to invoke the original
jurisdiction of this Court to
enforce article 23. They
maintain that this Court has
been consistently vigilant in
identifying and striking down
writs that invoke the original
jurisdiction of this Court to
enforce article 21(1) of the
Constitution, but which are in
substance actions for which the
Constitution has provided other
fora for their determination.
They point out in effect that
suits dressed up in the garb of
actions for the interpretation
and enforcement of the
Constitution will not be
countenanced by this Court when
they can be remedied by other
types of action. They give the
following examples:
Yiadom I
v Amaniampong [1981] GLR 3
(a chieftaincy dispute couched
as a writ to invoke the original
jurisdiction of this Court under
article 2(1);
Ghana Bar
Association v Attorney-General
[1995-96] 1 GLR 589 SC;
]2003-2004] SCGLR 250 (an
action primarily aimed at
removing the Chief Justice from
office clothed in the garb of an
action for the interpretation
and enforcement of the
Constitution under article 2(1);
and Yeboah v Mensah [1998-99]
SCGLR 492 (an election petition
dressed up as a writ for the
interpretation and enforcement
of the Constitution).
The
defendants further point out
that to enforce a human rights
provision, the plaintiff has to
prove a “personal interest” in
the outcome of the litigation.
They cite
Sam (No. 2) v Attorney-General
[2000] SCGLR 305 as
authority for this. In that
case, this Court interpreted the
words “in relation to him” and
“that person” in article 33(1)
to mean that a plaintiff must
have a personal interest in
litigation brought pursuant to
article 33(1), whereas in
litigation brought under article
2(1) any citizen of Ghana
irrespective of personal
interest can seek an
interpretation and enforcement
of the Constitution.
Accordingly, the defendants
submit that since the plaintiff
does not demonstrate either by
his pleadings or otherwise any
breach of his fundamental human
right under article 23 or any
threat of such breach, he has no
locus standi to bring the
present action, which, in their
view, is really a suit to
enforce Article 23.
In response
to these arguments, the
plaintiff asserts that he does
not seek to enforce a
fundamental human right in
relation to himself. Rather,
his suit is based on the “public
interest” leg of article 2(1),
in contradistinction from the
personal interest leg provided
for in article 33(1). He
contends that the substance of
his case is that the plaintiff
is complaining as citizen of
Ghana that the National Media
Commission, a creature of the
Constitution, has exercised its
constitutional mandate in a
manner that sins against the
Constitution. He draws
attention to the clear
distinction made in Sam (No. 2)
v Attorney-General [2000] SCGLR
305 between this Court’s
jurisdiction in respect of
article 2(1) and 33(1). This
Court there held that its
jurisdiction under article 2(1)
is a special one available to
only citizens of Ghana
irrespective of personal
interest, which entitles them to
seek an interpretation and
enforcement of the Constitution,
in furtherance of the duty
imposed on all citizens “to
defend the Constitution” under
articles 3(4)(a) and 41(b). He
further cites
FEDYAG v
Public Universities of Ghana
[2010] SCGLR 265 which also
makes the distinction between
public interest actions (under
article 2(1)) and personal
interest actions under article
33(1). The only locus standi
needed under article 2(1) is
citizenship of Ghana.
In response
to the defendants’ point that
the plaintiff’s action is a
human rights action dressed up
in the garb of an action for
interpretation or enforcement of
the Constitution, the plaintiff
counters by indicating that in
the Yiadom case (supra) the
Court was of the view that the
House of Chiefs was the
appropriate forum, while in the
Yeboah v Mensah case (supra) the
Court decided that the High
Court was the appropriate forum
since the suit was in substance
an election petition. He then
poses the question: what other
forum will be available to the
plaintiff on the facts of this
case, where the plaintiff has no
personal interest in the suit?
Clearly that forum will not be
the High Court because of the
lack of personal interest. He
therefore argues that this Court
has jurisdiction since in any
case he is not relying
exclusively on article 23, but
also alleging breach of article
296, in both reliefs 1 and 2 of
his writ. He also invokes the
“spirit” of the Constitution to
buttress his claim.
I think that
the plaintiff’s response to the
defendants’ objection on this
ground is sound and must be
upheld. His point is made
eloquently for him by the
Supreme Court in
Adjei-Ampofo v Accra
Metropolitan Assembly
[2007-2008] SCGLR 611 where
the Court said (at pp. 621-622):
“Although the High Court’s
jurisdiction in Article 140(2)
appears to be very broad, the
provision is nothing more than a
practical restatement of the
exception to the Supreme Court’s
jurisdiction, as defined by
article 130(1) in cases brought
under article 2(1). The High
Court’s enforcement power is
therefore to be exercised within
the scope of article 33(1), the
language of which is clear.
Hence the emphasis we must not
loose sight of in article 33(1)
is the phrase “in relation to
him”. In other words, in the
High Court, the actual, ongoing
or threatened contravention of
the fundamental human right or
freedom must be in relation to
the plaintiff and no one else.
However where the human right or
freedom sought to be enforced is
not in relation to the
plaintiff’s personal rights and
freedoms, but for the purpose of
enforcing a provision of the
Constitution under article 2
(1), the proper court is the
Supreme Court. In the latter
case, such a plaintiff would not
have access to the High Court
for lack of locus standi.
Likewise the former would not
have access to the Supreme Court
because he or she would be
seeking to invoke the original
jurisdiction of the High Court
to enforce his or her personal
fundamental right or freedom.
Thus the two jurisdictions are
not concurrent. The jurisdiction
of the Supreme Court is not
ousted simply because of the
provision sought to be enforced.
The court’s jurisdiction in such
a case is determined by whether
or not the plaintiff is pursuing
a personal interest (as in the
Edusei and Bimpong –Buta
cases as well as the case of
Oppon
v. Attorney-General [2003-2004]
1 SCGLR 376, for
example), or the enforcement of
a provision of the Constitution
in interest of the public good
(as in the CIBA case and
Sam (No. 2) v. Attorney
–General.”
The view of
the law expressed above is now
settled law, having been
re-affirmed by the majority
decision in FEDYAG v Public
Universities of Ghana [2010]
SCGLR 265. Thus, even if the
plaintiff were relying on
article 23 alone, this Court
would still have jurisdiction
because he would be relying on
article 23, not in his own
personal interest, but in order
to test the constitutionality of
the defendants’ action in the
public interest. The
plaintiff’s case is even
stronger because he is claiming
to enforce a further provision
other than one in Chapter 5,
namely, article 296.
Ground 2
Under ground
2, the defendants argue that
article 168, pursuant to which
the first defendant made the
second defendant’s appointment,
is clear and unambiguous and
therefore does not raise any
question of interpretation.
They further argue that no
question of enforcement arises,
since an examination of the
plaintiff’s Statement of Case
shows that he does not aver that
the first defendant breached the
provisions of article 168 in
appointing the second
defendant. The defendants
contend that no question of
offering other qualified
Ghanaians the opportunity to
apply for the position arises
from the text of article 168 and
that if this Court were to so
hold it would be substituting
for, or adding to, the express
and clear words of article 168.
They buttress this point by
quoting the words of Apaloo JA,
as then was, in Awoonor Williams
v Gbedemah, G & G, 2nd
Edition, Vol. 2, Part 2, 1184 at
1190 that:
“We
think therefore the words
‘adjudge or declare’ have no
technical connotation and in the
context of Article 72(2)(b) mean
the Commission of inquiry ‘found
or pronounced’ that a person
acquired assets unlawfully,
etc. To accede to the
interpretation put on behalf of
the defendant, it would be
necessary to substitute for the
words ‘report of a Commission of
Inquiry’ the words by a Court as
a result of the finding of a
Commission of Inquiry’. In our
judgment, this would be an
amendment, not an interpretation
of the article. To do so, would
be anything but our duty.”
Responding to
this argument, the plaintiff
concedes that article 168 is
clear and unambiguous, but
contends that the crux of his
case is that in the exercise of
its duty under article 168 the
first defendant owed a duty to
be open, transparent, unbiased
and fair. The plaintiff states
that this duty is imposed by
articles 23, 296 and the spirit
of the Constitution. The
plaintiff further makes the
point that the jurisdictions of
this Court with respect to
interpretation and enforcement,
respectively, are separate.
While it may be necessary to
show some ambiguity in relation
to a provision before the
interpretation jurisdiction is
invoked, they contend that in
relation to the jurisdiction to
enforce, there is no need to
identify any ambiguity before
the court’s jurisdiction is
invoked. In support of this
proposition, it cites
Adjei-Ampofo v Accra
Metropolitan Assembly
[2007-2008] SCGLR 611, quoting
Holding 1, which is as follows:
“the
objective of article 2(1) of the
1992 Constitution was to foster
the enforcement of all
provisions of the Constitution
by encouraging all Ghanaians
(whether natural persons or
corporate) to access the
original jurisdiction of the
Supreme Court in the interest of
the general polity. Whilst the
outcome of an action under
article 2(1) was invariably,
primarily of benefit to the
citizenry in general, it might
not necessarily inure to the
direct or personal benefit of
the plaintiff therein. The
objective of article 2(1) was to
encourage all Ghanaians to help
ensure the effectiveness of the
Constitution as a whole, through
legal action in the Supreme
Court. Therefore, every
Ghanaian, natural or artificial,
had locus standi to initiate an
action in the Supreme Court to
enforce any provision of the
Constitution.”
A moment’s
reflection on the last sentence
in the above quotation should
lead to the conclusion that it
cannot be entirely correct. If
it were right, it would mean,
for instance, that any person
who is falsely detained in
Ghana, instead of suing in the
tort of false imprisonment,
could bring an action to enforce
article 21(1)(g), which
guarantees the right to freedom
of movement. It is to prevent
such an outcome that Anin JA, in
Republic
v Special Tribunal; Ex parte
Akosah [1980] GLR 592 at
605, said of a previous
provision in pari materia with
the current provisions that:
“From the foregoing dicta, we
would conclude that an issue of
enforcement or interpretation of
a provision of the Constitution
under article 118(1)(a) arises
in any of the following
eventualities:
(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
the 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
should prevail;
(d)
where
on the face of the provisions,
there is a conflict between the
operation of particular
institutions set up under the
Constitution, and thereby
raising problems of enforcement
and 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.
In such an eventuality, the
aggrieved party may appeal in
the usual way to a higher court
against what he may consider to
be an erroneous construction of
those words; and he should
certainly not invoke the Supreme
Court’s original jurisdiction
under article 118. Again, where
the submission made relates to
no more that a proper
application of the provisions of
the Constitution to the facts in
issue, this is a matter for the
trial court to deal with; and no
case for interpretation arises.”
Thus, Anin
JA, in this locus classicus on
the exclusive original
jurisdiction of the Supreme
Court under the previous
equivalent of the current
articles 2(1) and 130 of the
1992 Constitution, asserted
that the requirement of an
ambiguity or imprecision or lack
of clarity applied as much to
this Court’s enforcement
jurisdiction as it did to its
interpretation jurisdiction.
This is clearly right in
principle since to hold
otherwise would imply opening
the floodgates for enforcement
actions to overwhelm this
Court. Accordingly, in my view,
where a constitutional provision
is clear and unambiguous any
court in the hierarchy of courts
may enforce it and this Court’s
exclusive original jurisdiction
does not apply to it.
Accordingly,
for this Court to accept to
exercise its exclusive
enforcement jurisdiction in this
case, the plaintiff has to
comply with the threshold
requirement of identifying at
least one of the four
eventualities listed by Anin JA
as existing in relation to the
constitutional provisions in
issue. I think that at least
one of those eventualities
exists in this case. Clearly
the interpretation put on
article 296 by the defendants,
relying on Akufo-Addo CJ’s
interpretation of a provision in
pari materia (article 175 of the
1969 Constitution) in Captan v
Minister for Home
Affairs(Minister of Interior)
(supra) is different from that
put forward by the plaintiff.
While the Akufo-Addo view is
that the discretionary power
referred to in article 296 is
only that exercised by an
administrative agency or some
other authority with power to
adjudicate quasi-judicially on
administrative matters or with
power of legislation delegated
to it, the plaintiff contends
that the express language of
article 296 does not restrict
the discretionary power as used
there to only quasi-judicial
matters. We thus have a
situation in this case where
“rival meanings have been placed
by the litigants on the words of
[a] provision of the
Constitution,” in the words of
Anin JA. To conclude on ground
2, it should be stressed that
ambiguity or imprecision or lack
of clarity in a constititutional
provision is as much a
precondition for the exercise of
the exclusive original
enforcement jurisdiction of this
Court as it is for its exclusive
original interpretation
jurisdiction.
To sum up, if
one accepts the view that the
function exercised by the first
defendant under article 168 Is
to be carried out in accordance
with the standard set in article
296, then the seemingly clear
and unambiguous language of
article 168 is infected by the
uncertainty in meaning
afflicting article 296 and that
infection imported into article
168 thus makes that article a
fit object for the enforcement
or interpretation jurisdiction
of this Court.
Ground 3
As already
adumbrated above, the
interpretation of article 296 on
which the third ground of the
preliminary objection is based
is contested by the plaintiff.
The defendants’ submission is
that the function of the first
defendant that is challenged by
the plaintiff is not in the
nature of an adjudication of a
quasi-judicial matter, nor is it
the exercise of the type of
discretionary power contemplated
by article 296. Accordingly,
they contend that the
institution of the plaintiff’s
action in the Supreme Court
based on article 296 is
misconceived and without merit.
The plaintiff retorts, in its
written submission in response
to the preliminary legal
objection that:
“Indeed, whether the function of
the NMC in appointing the
Director General of the Ghana
Broadcasting Corporation is one
that should be governed by
Article 296 is one of the issues
that this court must consider in
the substantive matter. It is
not an issue that goes to the
jurisdiction of the court or the
capacity of the Plaintiff to
bring this action. It therefore
cannot be a reason for the court
to refuse the Plaintiff a
hearing.”
As already
argued above, the fact that the
parties to this suit have
competing interpretations of
what “discretionary power” means
in the context of article 296
and whether it applies to the
exercise of the first
defendant’s power under article
168 is a reason for this Court
to exercise its exclusive
original jurisdiction, rather
than the contrary. There is
clearly a dispute as to the
meaning of a constitutional
phrase that justifies this
court’s exercise of its
enforcement or interpretation
jurisdiction.
One other
issue arises from the
defendants’ submission on this
ground. It relates to the
doctrine of stare decisis and
whether this Court is absolutely
bound by the Captan case
(supra) or not. In
Republic
v National House of Chiefs; Ex
parte Odeneho Akrofa Krukoko II
(Osagyefo Kwamena Enimil VI,
Interested Party [2010] SCGLR
134, the majority of this
Court held that decisions of the
Superior Courts established
before those under the Fourth
Republic were binding on the
Fourth Republic courts,
depending of course on the
position of a particular court
in the hierarchy of courts. This
is how Dotse JSC, speaking for
the majority of the Court,
expressed it:
“The
above provisions give the
clearest indications that the
framers of the Constitution did
not intend to be any vacuum
between the Superior Courts of
judicature in existence before
the coming into force of the
Constitution 1992 on 7th
January, 1993 and those in
existence after the constitution
1992.
If my
analysis is correct, then there
should be continuity in the
jurisdiction, composition,
functions and scope of the
Superior Courts from the pre
January 7th 1993 to
post 7th January
1993. In other words, the
constitution 1992 does not admit
of any difference in the Courts
structure, jurisdictional powers
and composition.
That being
the case, the provisions of
Article 136 (5) of the
Constitution 1992 would apply
equally to all decisions of the
Court of Appeal prior to January
7th 1993 and the
principle of Judicial precedent
established therein would apply
equally. This means that all the
decisions of the court of Appeal
pre-January 1993 would also be
binding not only on the Court of
appeal itself, but also on all
Courts below the Court of
Appeal.”
However, this
view, with respect, was
expressed per incuriam of a
decision which, by Dotse JSC’s
own formulation, he was bound
by. In
In Re Agyepong; Donkor v
Agyepong [1973] 1 GLR 326,
Apaloo JA, as he then was, said
(at p. 331):
“We are then
squarely faced with the question
whether a pre-1960 decision of
the then Court of Appeal binds
any court after the Republican
Constitution in 1960. We think
not. Since 1960, there has been
a completely new constitutional
set-up with a fresh hierarchy of
courts. Before the Republican
Constitution of 1960, the
highest court in the land was
the Privy Council. Its
decisions were binding on the
then Court of Appeal whose
decision in turn was binding on
all other courts on points of
law. With the promulgation of
the 1960 Constitution, the
Supreme Court, a completely new
institution became the final
Court of Appeal. Appeals to the
Privy Council were stopped and
Court of Appeal which fathered
Nimoh v Acheampong (supra) was
abolished. The Supreme Court
was not made a successor of any
of the previous courts. In so
far as the 1960 took any
cognisance of the cherished
principle of stare decisis,
article 42(4) provides that:
“The Supreme
Court shall in principle be
bound to follow its own previous
decisions on questions of law,
and the High Court shall be
bound to follow previous
decisions of the Supreme Court
on such questions, but neither
court shall be otherwise bound
to follow the previous decisions
of any court on questions of
law.” “
The logical
implication of the Republic v
National House of Chiefs; Ex
parte Odeneho Akrofa Krukoko II
(Osagyefo Kwamena Enimil VI,
Interested Party Republic v
National House of Chiefs; Ex
parte Odeneho Akrofa Krukoko II
(Osagyefo Kwamena Enimil VI,
Interested Party is that the
Court of Appeal is absolutely
bound by the previous decision
of itself and all its
predecessor courts. Yet Apaloo
JA, as he then was, sitting in
one of these predecessor courts
expressed the contrary view that
the decision of the Court of
Appeal before 1960 was not
binding on a post 1960 Court of
Appeal. With respect, this
contrary view was one that, by
Dotse JSC’s own showing in his
judgment, was binding on the
Court of Appeal under the Fourth
Republic whose decision he was
considering. Accordingly, the
majority’s decision was per
incuriam for not having taken
Apaloo JA’s view into account
before reaching its decision.
In other words, if Justice
Apaloo’s binding view had been
adverted to by Justice Dotse and
the majority of the Court, they
may well have reached a
different decision. The
authority of the majority view
is thus diminished and should
not necessarily be followed by
this Court.
In my view,
the preferable position for this
Court to adopt is that whilst
the decisions of courts
established under previous
Republics are of a highly
persuasive nature, none of them
is of an absolutely binding
nature on Superior Courts
established under the Fourth
Republic, since those courts are
new courts. This is the view
that I expressed in a dissent to
Dotse JSC’s view in the Ex parte
Krukoko case and I would like to
re-iterate it here. I said then
that:
“To rephrase
the issue, the question for
consideration is this: is the
Court of Appeal under the 1992
Constitution bound by its
previous decisions without
exception or are the exceptions
formulated by the Bristol
Aeroplane case applicable to its
decisions? Secondly, is the
Court bound by its decisions
given since the coming into
force of the Constitution in
January 1993 only or is it bound
by all appellate courts that
have exercised jurisdiction in
relation to the territory of
Ghana? When I refer to
“bound”, I mean a binding
precedent, as opposed to a
persuasive precedent. It is
reasonable to contend that the
only binding precedents are
those handed down subsequent to
1993 and that the previous
decisions are merely persuasive,
although they carry a high
degree of persuasiveness. Such
a view of the operation of the
doctrine of precedent in our
jurisdiction would make for
greater flexibility in adapting
the law to social change and
make the need to resort to the
principles of the Bristol
Aeroplane case less frequent,
assuming that they have any
applicability to the existing
courts of Ghana.
Addressing
the second issue first, I think
that the doctrine of precedent
established by article 136(5)
applies only to the Court of
Appeal and the lower courts
established by the 1992
Constitution. I consider that
the pre-1993 cases are
persuasively binding, but they
do not fall into the strict
doctrine of precedent underlying
article 136(5).”
In
conclusion, the point that I
wish to make on this stare
decisis issue is that this court
is not absolutely bound by the
decision in the Captan case and
therefore the correct
interpretation of “discretionary
power” remains open, so far as
this Court is concerned.
Accordingly, that is a further
reason why the preliminary
objection cannot succeed. It
cannot be legitimately asserted
that the meaning of
“discretionary power” has
already been authoritatively and
conclusively determined and
therefore there is no issue left
for interpretation.
In sum, I
find the three grounds of the
preliminary objection
unmeritorious and they are thus
dismissed.
(SGD) DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
ANSAH JSC;
I had the
privilege of reading the
opinions of my learned brethren
Atuguba and Dr. Date-Bah JJSC
before hand and I agree with the
opinion, reasons and conclusion
of Dr. Date-Bah JSC. I have
nothing to add to it.
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
ADINYIRA,(MRS) JSC
I also agree
that the preliminary objection
is without merit and is hereby
overrule.
(SGD) S. O. A.
ADINYIRA [MRS].
JUSTICE OF THE SUPREME COURT
OWUSU (MS.)
JSC;
I have had
the opportunity to read the
Judgment of my respected
Brother and I
am in full agreement with the
conclusion arrived at by him.
I have also
looked at the Judgment of the
respected president on the issue
of interpretation and
enforcement Jurisdiction of the
Supreme Court and I seem to
agree with the distinction made
by him that the enforcement
jurisdiction can be enforced
without necessarily having to
interprets.
(SGD) R. C.
OWUSU [MS].
JUSTICE OF THE SUPREME COURT
BONNIE JSC;
I have had
the benefit of reading
beforehand the two main opinions
read by my esteemed brothers
Atuguba, Ag. CJ and Date-Bah
J.S.C. I also agree that the
preliminary legal objection
should be over-ruled.
(SGD) P.
BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
GBADEGBE JSC;
I have had
the advantage of reading
beforehand the draft of the
opinions just delivered by my
worthy brothers and I also agree
that the preliminary objection
be overruled.
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
BAMFO [MRS.]
JSC;
I had the
opportunity of reading
before-hand the well reasoned
opinion of my respected
brethren, Atuguba, Acting Chief
Justice and Prof. Date-Bah, JSC.
I agree with
their conclusions that the
objection be overruled.
I therefore
have nothing useful to add.
(SGD)
V. AKOTO-BAMFO [MRS.]
JUSTICE OF THE SUPREME COURT
COUNSEL:
AKWESI OPOKU
FOR THE PLAINTIFF.
AKOTO – AMPAW
FOR THE DEFEDANTS. |
