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JUDGMENT
AMPIAH, J.S.C.:
On 11th February, 2002, this
Court by a majority of 5 to 4
gave judgment for the plaintiff
herein in a suit entitled, "Tsatsu
Tsikata vrs.
Attorney-General"—Writ No.
2/2002. Whereupon the
Attorney-General, the defendant
in that suit filed a Motion for
Review of the decision of the
Court. The Motion for Review is
yet to be heard but the
plaintiff herein in the interim
has filed this instant writ
invoking the Court's original
jurisdiction under Articles 2(1)
and 130(1) of the Constitution.
In this Writ the plaintiff seeks
interpretation and Enforcement
of the Constitution by—
"1. A Declaration that on a true
and correct interpretation of
Articles 125(4), 128(1) and
128(2) of the Constitution all
available Justices of the
Supreme Court do not have 'a
constitutional right to sit'
'where practicable and
especially in constitutional
matters', nor do 'at least seven
(7) Justices of the Supreme
Court' have such a right as
purportedly conferred on them by
a Practice Direction of His
Lordship the Acting Chief
Justice (as he then was) Mr.
Justice Wiredu dated 10th
January, 2001.
2. A Declaration that the 10th
January, 2001 Practice Direction
of His Lordship the Acting Chief
Justice (as he then was) Justice
Wiredu is null and void being
contrary to Articles 128(2) and
125(4) of the 1992 Constitution.
3. A Declaration that on a true
and correct interpretation of
Article 133(2) of the 1992
Constitution there is no
constitutional requirement for
there to be a panel of eleven
justices of the Supreme Court to
hear a review of a decision by a
panel of nine justices of the
Supreme Court.
4. A declaration that, on a true
and correct interpretation of
Article 133(2) of the 1992
Constitution, except in the case
by a panel of five justices of
the Supreme Court, there is no
requirement for His Lordship,
the Chief Justice to add two
additional Justices of the
Supreme Court to hear an
application for review of a
Supreme Court decision.
5. A declaration that the power
of the Chief Justice under
Article 125(4) of the 1992
Constitution to empanel the
Supreme Court to hear cases is a
discretionary power to be
exercised in accordance with
Article 296(a) and (b).
6. An Order of injunction
directed to His Lordship the
Chief Justice, Mr. Justice
Wiredu restraining him from
acting on the basis of the said
Practice Direction of 10th
January, 2001 in empanelling
Justices of the Supreme Court
for the hearing of cases.
7. A direction to His Lordship,
the Chief Justice, Justice
Wiredu that he empanel Justices
of the Supreme Court for cases
to be heard by the Court on the
basis of Articles 128(2) and
133(2) and having due regard to
Articles 125(4) and 296(a) and
(b).
8. A declaration that on a true
and correct interpretation of
Article 128(1) of the 1992
Constitution, there is no
'Ordinary Bench' nor is there a
'Full Bench', of the Supreme
Court as existed under the 1992
Constitution and the 1971 Courts
Act, (Act 372).
9. A declaration that on a true
and correct interpretation of
Article 128(1) of the 1992
Constitution, at the time the
application for review in Suit
No. C.M. 6/2002 was filed the
number of Justices of the
Supreme Court was in conformity
with Article 128(1) of the 1992
Constitution on the composition
of the Supreme Court."
The plaintiff brings this action
in his capacity as a citizen of
Ghana and has sued the 1st
defendant as the Chief Justice
and Head of the Judiciary. The
2nd defendant has been sued as
the Principal Legal Adviser to
the Government and the person
responsible for the institution
and conduct of all civil cases
on behalf of the State; and
against whom all civil
proceedings against the State
shall be instituted.
The defendants resist the claim
by the plaintiff.
On the statements filed, the
following issues arise for
determination—
1. Whether or not the 10th
January, 2001 Practice Direction
of the Acting Chief Justice,
Justice Wiredu (as he then was)
is null and void.
2. Whether or not there is a
constitutional requirement for
there to be a panel of eleven
justices of the Supreme Court to
hear a review of a decision by a
panel of nine justices of the
Supreme Court.
3. Whether or not on a true and
correct interpretation of
Article 133(2) of the
Constitution there is a
requirement for the Chief
Justice to add two additional
justices of the Supreme Court to
hear an application for review
of a Supreme Court decision.
4. Whether or not the Chief
Justice can be directed to
exercise his discretionary power
in a particular way.
The action was set down for
hearing on 14.5.02. But before
the hearing date, the plaintiff
filed notice of preliminary
objection. His objection was
that the 1st defendant herein
cannot be represented by the
Attorney-General. The grounds
for this objection were
contained in the affidavit
attached to the Notice.
Hearing of the action could not
come on on 14.5.02 as it was
further adjourned to 21.5.02.
On the date of hearing the
plaintiff orally raised yet
another objection. This time it
was against the Chief Justice's
power to empanel the bench to
hear the case. As this was
fundamental to the proceedings,
we decided reluctantly to hear
the applicant though prior
notice had not been given either
to the Court or the other party.
The plaintiff/applicant argued
that since the Chief Justice was
a party to the action, it would
be wrong for him to empanel the
bench which was to hear the
case. As a necessary party, he
was biased and this would be
against the rules of natural
justice as it would amount to a
person being a judge in his own
case—Nemo judex in causa sua. By
choosing judges to sit on a case
in which he is a party, the
Chief Justice would more or less
be sitting on his own case; this
would be unfair. Counsel for the
defendant who is also one of the
parties in the case contended
that the authority to empanel a
bench to hear a case is the
statutory responsibility of the
Chief Justice and no one else.
He submitted that where power to
act is given to a person by
statute he would have to perform
that duty no matter what. Both
Counsel referred to the
provisions of Article 144(6) and
the case of Kuenyehia & Ors.
Vrs. Archer and Ors.(1993-94) 2
GLR 525; also Akufo-Addo & Ors.
Vrs Quashie-Idun & Ors. (1968)
GLR 67, in support of their
stand.
Article 144(6) of the
Constitution provides—
"144(6) Where the office of the
Chief Justice is vacant, or
where the Chief Justice is for
any reason unable to perform the
functions of his office—
(a) until a person has been
appointed to, and has assumed
the functions of, that office;
or
(b) until the person holding
that office has resumed the
functions of that office; as the
case may be,
those functions shall be
performed by the most senior of
the Justices of the Supreme
Court."
The applicant contended that
since the Chief Justice is being
accused of bias, he has become
disabled or is unable to perform
the functions of his office and
therefore the most senior of the
Justices of the Supreme Court
should perform his functions, in
this case, the empanelling of
the bench to sit on the action.
It has not been demonstrated
convincingly to us that the
Chief Justice is unable to
perform his functions. We do not
think an allegation of bias
should in the circumstances make
the Chief Justice unable to
perform his functions. Who
determines whether he is able or
unable to perform his functions
and when does he resume the
functions of that office? We
know as a fact that he is still
performing the functions of his
office!
In Akufo-Addo vrs. Quashie-Idun
(supra) the Court held inter
alia,
"The functions of the Chief
Justice was to constitute
benches of the Court of Appeal.
As long as he remained in office
and in the country he performed
that as part of his
administrative duties. The only
situation in which another might
be nominated to perform his
functions were given by the
Courts Decree, 1966 (NLCD 4)
paragraph 3(2), namely, where he
was ill or absent from the
country. Where a statute
enjoined a person to perform an
act he had to do it even if its
performance conflicted with the
strict rules of natural justice
. . ."
The Court that gave judgment was
the Court of Appeal (full
bench). At that time, like the
Supreme Court now, it was the
highest Court on the land. That
decision is binding on us unless
it could be shown why we should
depart from it. None has been
shown! However, the Constitution
does not provide for the most
senior of the justices of the
Supreme Court performing the
functions of the Chief Justice
when the Chief Justice is
outside the country. (contrast
the position of the Vice
President when the President is
outside the country—Article
60(8) of the Constitution.
Be that as it may, in the recent
case of Kuenyehia & Ors. Vrs.
Archer & Ors. (supra) the
Supreme Court re-affirmed the
decision in the Akufo-Addo case,
holding that,
". . . Furthermore, the power or
the right to empanel the Supreme
Court was, under the law and the
practice of the Court, the
prerogative of the Chief Justice
with the consequence that unless
there were very good reasons for
seeking a change on grounds such
as legal bias, the Court would
be loathe to interfere with the
Chief Justice's exercise of his
prerogative . . ."
In the instant case, we see no
legal bias shown by the Chief
Justice so as to disqualify him
from exercising his prerogative.
To accede to the request of the
applicant on the bare fact that
the Chief Justice is a party to
the action and therefore should
not empanel the bench would be
unjust.
Again we must stress the fact
that the decision in the
Kuenyehia case is binding on us
since we do not have any good
cause to depart from it.
Article 129(3) of the
Constitution states—
"129(3) The Supreme Court may,
while treating its own previous
decisions as normally binding,
depart from a previous decision
when it appears to it right to
do so; and all other courts
shall be bound to follow the
decisions of the Supreme Court
on questions of law".
It was for these reasons that we
dismissed the oral preliminary
objection by the applicant.
The first but second preliminary
objection of the
plaintiff/applicant to be ruled
on, concerned the representation
of the Chief Justice by the
Attorney-General. The applicant
contended that on the principle
of separation of powers it
should not be seen or appear to
be seen that the executive organ
of government was interfering
with the Judiciary. He contended
further that though both the
Attorney-General and the Chief
Justice have been sued in this
action, the acts complained of
against the Chief Justice were
done in his personal capacity
and therefore the
Attorney-General has no
responsibility to defend him; it
follows then that the affidavit
verifying the contents of the
statement of case filed by the
defendants should have been
sworn to personally by the Chief
Justice and not by a
representative from the
Attorney-General's office.
In fact we do not see what acts
were done by the Chief Justice
in his personal capacity. It is
true that certain statements
were made by the Chief Justice
on radio, the press, gatherings,
etc. but nowhere was the Chief
Justice described otherwise than
as the Chief Justice. The
applicant may think otherwise of
the statements made, but that
would not make the statements
non-official. All declarations
sought in the Writ were against
the Chief Justice in his
official capacity.
Article 88(5) of the
Constitution provides that,
"88(5) The Attorney-General
shall be responsible for the
institution and conduct of all
civil cases on behalf of the
State; and all civil proceedings
against the State shall be
instituted against the
Attorney-General as defendant."
There is no doubt as to the
position of the Chief Justice.
He is a public officer appointed
by the President acting in
consultation with the Council of
State and with the approval of
Parliament. It is not disputed
that his official acts i.e. acts
performed in pursuance of the
functions of his office are
official acts. Under Article
88(5) therefore any attack on
him in the performance of his
duties need be defended by the
Attorney-General on behalf of
the State. Article 293(5) of the
Constitution provides—
"293(5) Where functions are
conferred or imposed on an
officer of the Government as
such officer either by a rule of
the common law or by statute and
that officer commits tort while
performing or purporting to
perform those functions, the
liabilities of the Government in
respect of the tort shall be
what they would have been if the
functions had been conferred or
imposed solely by virtue of
instructions lawfully given by
the Government".
As stated before the Chief
Justice has not been sued in his
personal capacity. Whether it
was necessary to join him in
this action when the
Attorney-General is a defendant,
is not fatal here as this would
enable the Court determine the
issues more effectively and
effectually as between the
parties. In Writ No. 2/2002, the
plaintiff therein who is
plaintiff in the instant case
commenced civil proceedings
against the Chief Justice in the
name of the Attorney-General. He
found nothing wrong with that.
We think in the instant case,
the Attorney-General is a proper
defendant and that although the
Chief Justice has been joined in
the action, the
Attorney-General's office has
every right to swear to the
affidavit verifying the facts
deposed to in the Defendants'
Statement of Case. The
preliminary objection is
therefore unmeritorious and it
is overruled.
The action was brought under
Articles 2(1) and 130(1) of the
Constitution. Article 2(1)
states—
"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."
And, Article 130(1) states—
"130(1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms as provided in Article
33 of this Constitution, the
Supreme Court shall have
exclusive original jurisdiction
in—
(a) all matters relating to the
enforcement or interpretation of
this Constitution; and
(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution."
The plaintiff asks for the
interpretation and enforcement
of certain provisions of the
Constitution. Perhaps to
understand and appreciate the
issues raised in this matter, it
would be desirable to deal
separately with the declarations
sought. But before then, we
would like to have a look at
"the 10th January, 2001 Practice
Direction of His Lordship the
Acting Chief Justice (as he then
was)". This Practice Direction
is contained in pages 586-587 of
the Supreme Court of Ghana Law
Reports (2000) SCGLR.
In the exercise of the functions
of his office under Articles
125(4) and 144(6) of the
Constitution, His Lordship,
Justice E.K. Wiredu, as Acting
Chief Justice, then, (now Chief
Justice) purported to have
directed per his letter dated
10th January, 2001, addressed to
all the Justices of the Supreme
Court and copied to the Judicial
Secretary and the Registrar of
the Supreme Court that,
"In order to minimize the
mounting criticisms and the
persistent public outcry against
the Judiciary in our justice
delivery and to restore public
confidence, it is my desire that
where practicable and especially
in constitutional matters, all
available Justices of the
Supreme Court have a
constitutional right to sit or
at least seven (7) justices of
the Court.
In view of the above and in the
instant case [i.e. Republic vrs.
High Court, Bolgatanga and Hajia
Fati Seidu, Ex parte Hawa Yakubu,
Civil Motion No. 2/2001] by
virtue of the powers conferred
on the Chief Justice by Article
125 and on me by Article 144(6),
I have decided that Hon. Justice
Sophia Akuffo and myself, i.e.
Hon. Justice E.K. Wiredu, Ag.
Chief Justice, be added to the
justices already panelled."
The letter was signed by the
Hon. Mr. Justice E. K. Wiredu,
Acting Chief Justice.
Article 125(4) provides that,
"The Chief Justice shall,
subject to this Constitution, be
the Head of the Judiciary and
shall be responsible for the
administration and supervision
of the Judiciary."
And Article 144(6) states,
"Where the office of Chief
Justice is vacant, or where the
Chief Justice is for any reason
unable to perform the functions
of his office—
(a) until a person has been
appointed to, and has assumed
the functions of, that office;
or
(b) until the person holding
that office has resumed the
functions of that office; as the
case may be,
these functions shall be
performed by the most senior of
the Justices of the Supreme
Court."
The two cases of Akufo-Addo vrs.
Quashie-Idun and Kuenyehia vrs.
Archer (already referred to in
this judgment) vest power in the
empanelling of Justices to sit
on a case, in the Chief Justice.
If the Acting Chief Justice, as
the most senior of the Justices
of the Supreme Court is to
perform the functions of the
Chief Justice in the absence of
the Chief Justice, then such
power as was is vested in the
Chief Justice to empanel
justices to sit on a case vested
in him. It was not necessary for
the Acting Chief Justice to
direct what in law he is
entitled to do. The Practice
Direction as contained in the
letter dated 10th January, 2001
does not fetter the discretion
of the Chief Justice, or whoever
is performing his functions, in
any way. He has a discretion
administratively to empanel
judges to sit on cases in the
Supreme Court. Article 128(2)
only provides that in the
exercise of his power to empanel
the judges, he shall empanel not
less than five (5) judges for
its work and that in Review
proceedings the Court shall be
constituted by not less than
seven (7) justices of the
Supreme Court—vide Article
133(2).
The Practice Direction is not
binding on any judge or persons;
it was an intention only of the
Chief Justice or whoever was
temporarily performing the
duties or functions of the
Office of the Chief Justice as
to how he was going to exercise
the discretion given him under
the Constitution. There is no
constitutional provision which
prevents him from so acting
except that that discretionary
power shall be deemed to imply a
duty to be fair and candid. The
exercise of that power shall not
be arbitrary, capricious or
biased either by resentment,
prejudice or personal dislike
and shall be in accordance with
due process of the law—See,
Article 296 of the Constitution.
The fact that additional or new
judges are to be appointed to
swell the panel for the
determination of a case, be it
original or on review, does not
make any empanelling arbitrary,
capricious or biased. Other
persons may have made
pronouncements as to how and why
a panel should be constituted
but that cannot in any way
fetter the constitutional power
given the Chief Justice to
empanel all or the available
justices of the Supreme Court to
sit on a case. Consequently, we
cannot declare the 10th
January, 2001 Practice Direction
as null and void as it does not
in any way infringe Articles
125(4) and 128(2) of the
Constitution.
The next declaration sought
under this Writ, is for this
Court as constituted, to declare
that ". . . there is no
constitutional requirement for
there to be a panel of eleven
justices of the Supreme Court to
hear a review of a decision by a
panel of nine justices of the
Supreme Court". Of course there
is no such provision in the
Constitution. What the
Constitution says is that in the
hearing of a review application,
the Court shall be constituted
by not less than seven justices
of the Supreme Court —vide
Article 133(2). It does not
however give the maximum number
of judges that can sit. Any
attempt outside the Constitution
by any statute or authority to
direct what is to be done would
be a fetter on the authority
vested in the Chief Justice.
That of course would be an act
inconsistent with the provisions
of the Constitution and would be
null and void. The Chief Justice
has power, outside any purported
Practice Direction, to empanel
judges of uneven number but not
less than seven to sit on a
Review application. The
declaration sought under
paragraph 4 of the Writ is not
only uncalled for but it is also
speculative since we do not know
at this stage how many judges
the Chief Justice intends to put
on the Review application.
The other declaration sought is
to place an injunction on the
Chief Justice, “restraining him
from acting on the basis of the
said Practice Direction of 10th
January, 2001". We have already
said the Practice Direction is
not binding on any body. In fact
in the exercise of the powers
vest in him, the Chief Justice
may ignore the Practice
Direction and exercise his
discretion to empanel any number
of justices, he intends to put
on the Review application.
As was said in the Akufo-Addo
vrs. Quashie-Idun case (supra),
"Where a statute enjoins a
person to perform an act he had
to do it even if its performance
conflicted with the strict rules
of natural justice."
We cannot therefore grant any
injunction against the Chief
Justice in the exercise of his
discretionary powers. To grant
that request, to quote from the
dictum in the Kuenyehia vrs.
Archer case (supra); “. . .
Would be to set an unhealthy
precedent whereby the Court
would be ceding to litigants the
right to dictate the strength of
the panel of the Court at any
time”. (Dicta) of Amissah, J.A.
in Akufo-Addo vrs. Quashie-Idun
(supra).
Similarly, we cannot direct the
Chief Justice as to how he
should exercise his discretion
as sought in paragraph 7 of the
plaintiff's writ.
That there is no 'ordinary
bench' or 'full bench' of the
Supreme Court is an undisputed
fact; there is no need for us to
make a declaration to that
effect. The 'ordinary bench' and
'full bench' existed only under
the 1969 Constitution and the
Courts Act 1971 (Act 372) as
correctly stated by the
plaintiff himself.
In conclusion we think the Writ
is speculative and unmeritorious
and it is accordingly dismissed.
A.K.B. AMPIAH
JUSTICE OF THE SUPREME COURT.
G.K. ACQUAH
JUSTICE OF THE SUPREME COURT.
W.A. ATUGUBA
JUSTICE OF THE SUPREME COURT.
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT.
G.L. LAMPTEY
JUSTICE OF THE SUPREME COURT.
COUNSEL
Prof. E.V.O. Dankwah for the
plaintiff.
Nana Akuffo-Addo, Attorney
General with Mrs. Gloria Akuffo
DPP and Mr. S.Y. Anim C.S.A. for
the Defendants. |
