|
Judicial review - Legislation -
Whether or not the authority
given by Parliament to the
Minister to amend Act 793 was
unconstitutional.- Whether or
not Legislative Instruments made
by the Minister for Finance were
void - proper construction or
interpretation of Article 267(3)
of the Constitution - Whether or
not the annual ground rent
payable by holders of mining
concessions granted over stool
lands is inconsistent with and
in contravention of articles
1(2), 11(1), 93(2) and 267(3) of
the 1992 Constitution as well as
sections 23 of the Mineral and
Mining Act, 2006 (Act 703
HEADNOTES
Pursuant to Section 2(2) of Act
793, the Minister for Finance
made the Fees and Charges
(Amendment) Instrument, 2012 (L.I.
2191) and added the Office of
the Administrator of Stool Lands
Act, 1994 (Act 481) to the
enactments covered by Act 793.
He proceeded to determine and
fix ground rent payable in
respect of lands subject to a
mineral right. The ground rent
as fixed in L.I. 2191 was
changed by the Minister for
Finance in 2013 and 2014 by the
making of L.I. 2206 and L.I.
2216 respectively. All the above
Legislative Instruments were
duly laid in parliament as
required by Article 11(7) of the
Constitution and came into
force. Basing itself on the
above Legislative Instruments,
the Office of the Administrator
of Stool Lands calculated ground
rent payable by plaintiff in
respect of five mining leases it
owns and served invoices on it.
Plaintiff refused to pay the
amounts claimed because,
according to him, the
Legislative Instruments made by
the Minister for Finance were
void as the authority given by
Parliament to the Minister to
amend Act 793 was
unconstitutional.
HELD
We dismiss relief 1.
Relief 2 is dismissed
for the reason that the extent
of Parliament’s authorization
was clear and did not extend
beyond the enactments listed in
the first column of the Schedule
to Act 793.Subject to our
decision that the inclusion of
the Office of the Administrator
of Stool Lands Act, 1994, Act
481 in L.I. 2191 of 2012, L.I.
2206 of 2013 and L.I. 2216 of
2014, is ultra vires,
unconstitutional, null and void,
relief 3 is dismissed.Relief 4
is dismissed for the reason that
as public servants, the
Administrator and the staff
working in his office are bound
by Article 23 of the 1992
Constitution to work with every
law in force in the country that
relates to their operations or
which they are enjoined to
apply.For reasons advanced in
this decision, reliefs 5, 6. 7
and 8 are granted. The Minister
responsible for Mines is hereby
ordered to take steps to fix the
fees and charges under sections
23 and 110(1) of the Minerals
and Mining Act, 2006 (Act 703),
including arrears, lest the
State and other legitimate
beneficiaries should lose
revenue that they are entitled
to by law.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Fees and Charges (Miscellaneous
Provisions) Act, 2009 (Act 793).
Fees and Charges (Amendment)
Instruments namely L.I. 2191 of
2012,
Office of the Administrator of
Stool Lands Act, 1994 (Act 481)
Regulation 20 of the Financial
Administration Regulations, 2004
(L. I. 1802)
CASES REFERRED TO IN JUDGMENT
PROFESSOR STEPHEN KWAKU ASARE
VS. THE ATTORNEY-GENERAL; Writ
No. J1/15/2015, dated 29th
October 2015, unreported
FLOOR v. DAVIS (INSPECTOR OF
TAXES) (1980) 3 All ER 39,
A-G v. LAMPLOUGH (1878) 3 Ex. D
214
FLOWER FREIGHT CO. LTD. v.
HAMMOND (1963) 1 QB 275.
R. v. LEGAL AID COMMITTEE NO. 1
(LONDON) LEGAL AID AREA; EX
PARTE RONDEL (1967) 2 QB 482.
METROPOLITAN POLICE COMMISSIONER
v. CURRAN (1976) 1 WLR 87 HL.
JOHN AKPARIBO NDEBUGRE v. THE
ATTORNEY-GENERAL & 2 ORS, Writ
J1/05/2013 dated 20th
April 2016, unreported
J.W. HAMPTON, Jr. & CO. v.
UNITED STATES, 276 U.S.394
(1928).
YAKUS v. UNITED STATES, 321 U.S.
414 (1944)
PANAMA REFINING CO. v. RYAN, 293
U.S. 388 (1935).
SCHECTER POULTRY CORP. v. UNITED
STATES, 295 U.S. 495 (1935).
OPREMREH v. ELECTORAL COMMISSION
& ANOR. (2011) 2 SCGLR 1159,
JATINDRANATHGUPLA v. THE
PROVINCE OF BAHIR (1949) FCR
595,
Privy Council in KING EMPEROR v.
BEONARILALSAMA (1945) FCR 161
In Re BERREY, LEWIS v. BERREY
(1936) Ch. 274 at page 279.
WEST HAM CHURCH WARDENS AND
OVERSEERS v. FOURTH CITY MUTUAL
BUILDING SOCIETY (1892) 1 QB 654
MORNAH v. ATTORNEY-GENERAL
(2013) SCGLR (Special Edition)
502
GARNETT v. BRADLEY (1877-78) 3
App. Cas. 944
HEADLAND v. COSTER and Another
(1905) 1 K.B. 219;
In re CHANCE (1936) 1 Ch. 266
BOOKS REFERRED TO IN JUDGMENT
Bennion on Statutory
Interpretation, 5th
edition,
DELIVERING THE LEADING JUDGMENT
BENIN, JSC
COUNSEL
INNOCENT AKWAYENA FOR THE
PLAINTIFF.
MRS. DOROTHY AFRIYIE ANSAH (CSA)
WITH HER ZENAB AYARIGA (ASA) LED
BY DR. DOMINIC AYINE, DEPUTY
ATTORNEY GENERAL FOR THE
DEFENDANT.
--------------------------------------------------------------------------------------------------------------------
JUDGMENT
--------------------------------------------------------------------------------------------------------------------
BENIN, JSC
The facts of this case are quite
straight forward but the
Plaintiff introduced a lot of
material that is irrelevant for
the exercise of our jurisdiction
for judicial review of
legislation that has been
properly invoked. Accordingly we
shall trim the facts to those
required for the purpose of
determining the real issue
before the court.
In 2009, the Parliament of Ghana
passed into law the Fees and
Charges (Miscellaneous
Provisions) Act, 2009 (Act 793).
It is a short piece of
legislation with only three
Sections as follows;
“Specified enactments
1. For the enactments
specified in the first column of
the Schedule and in relation to
the revenue items specified in
the second column of the
Schedule, there is substituted
for the fees and charges
specified in the third column of
the Schedule, the fees and
charges specified in the fourth
column of the Schedule.
Transfer of power
2. (1) The authority
conferred under the enactments
set out in the first column of
the Schedule to determine fees
and charges is hereby
transferred to the Minister
responsible for Finance and
Economic Planning and
accordingly those enactments are
hereby amended.
(2) The Minister for Finance and
Economic Planning may by
Legislative Instrument amend the
Schedule to this Act.”
Pursuant to Section 2(2) of Act
793, the Minister for Finance
made the Fees and Charges
(Amendment) Instrument, 2012
(L.I. 2191) and added the Office
of the Administrator of Stool
Lands Act, 1994 (Act 481) to the
enactments covered by Act 793.
He proceeded to determine and
fix ground rent payable in
respect of lands subject to a
mineral right. The ground rent
as fixed in L.I. 2191 was
changed by the Minister for
Finance in 2013 and 2014 by the
making of L.I. 2206 and L.I.
2216 respectively. All the above
Legislative Instruments were
duly laid in parliament as
required by Article 11(7) of the
Constitution and came into
force.
Basing itself on the above
Legislative Instruments, the
Office of the Administrator of
Stool Lands calculated ground
rent payable by plaintiff in
respect of five mining leases it
owns and served invoices on it.
Plaintiff refused to pay the
amounts claimed because,
according to him, the
Legislative Instruments made by
the Minister for Finance were
void as the authority given by
Parliament to the Minister to
amend Act 793 was
unconstitutional. Plaintiff
therefore brought the instant
action for the following
reliefs:
i.
A declaration that on a
true and proper construction or
interpretation of Article 267(3)
of the Constitution, the Office
of the Administrator of Stool
Lands has no legal power or
authority under the 1992
Constitution, and the Office of
the Administrator of Stool Lands
Act 1994 (Act 481) to prescribe
the annual ground rent payable
by holders of mineral rights,
commonly referred to as mining
concessions granted over stool
lands by the Government acting
through the Minister for Lands
and Natural Resources pursuant
to the Mineral and Mining Act,
2006 (Act 703).
ii.
A declaration that the
purported grant of power and
authority by Parliament to the
Minister for Finance under
sections 2(1) and (2) of the
Fees and Charges (Miscellaneous
Provisions) Act 2009 (Act 793)
to amend the Schedule to the Act
which authority, the said
Minister purportedly exercised
under the Fees and Charges
(Amendment) Instrument 2012
(L.I. 2191), the Fees and
Charges (Amendment) Instrument
2013 (L.I. 2206) and the Fees
and Charges (Amendment)
Instrument 2014 (L.I. 2216) to
prescribe annual ground rent
payable by holders of mining
concessions granted over stool
lands is inconsistent with and
in contravention of articles
1(2), 11(1), 93(2), 106 and
267(3) of the 1992 Constitution
as well as sections 23 of the
Minerals and Mining Act 2006
(Act 703) and to that extent
such grant of authority is ultra
vires, null and void.
iii.
A declaration that the
purported exercise by the
Minister for Finance of the
authority and power purportedly
conferred on him under section
2(2) of the Fees and Charges
(Miscellaneous Provisions) Act
2009, (Act 793) to prescribe
through the three Fees and
Charges (Amendment) Instruments
namely L.I. 2191 of 2012, L.I.
2206 of 2013 and L.I. 2216 of
2014 the annual ground rent
payable by holders of mining
concessions granted over stool
lands is inconsistent with and
in contravention of articles
1(2), 11(1), 93(2) and 267(3) of
the 1992 Constitution as well as
sections 23 of the Mineral and
Mining Act, 2006 (Act 703) and
to that extent the said
prescriptions of annual ground
rent by the Minister for Finance
are ultra vires, null and void.
iv.
A declaration that the
conduct of officers of the
Office of the Administrator of
Stool Lands in relying on the
said prescription by the
Minister for Finance of annual
ground rent payable by holders
of mining concessions granted
over Stool Lands in the said
Fees and Charges (Amendment)
Instruments, namely L.I. 2191 of
2012, L.I. 2206 of 2013 and L.I.
2216 of 2014 to raise invoices
based on the said prescribed
rents, serve same on the holders
of mining concessions granted
over stool lands, and demanding
payment of such prescribed rents
is also conduct that is
inconsistent with and in
contravention of articles 1(2),
11(1), 93(2) and 267 of the 1992
Constitution and to that extent
such conduct is also ultra
vires, null and void.
v.
A declaration that the
failure or omission of the
Minister for Lands and Natural
Resources to exercise the
discretionary power and
authority duly conferred upon
him under section 23 of the
Minerals and Mining Act, 2006
(Act 703) to prescribe by
Legislative Instrument the
annual ground rent payable by
holders of mining concessions is
failure or omission which is
inconsistent with or is in
contravention of the
constitutional duties imposed on
the said Minister as an
Administrative Official or
public officer pursuant to
Articles 23 and 296(c) of the
1992 Constitution and to that
extent such failure or omission
on the part of the said Minister
constitutes a fragrant violation
of articles, 23 and 296(c) of
the Constitution.
vi.
An order declaring as
null, void and of no effect the
prescriptions by the Minister
for Finance of annual ground
rent GH₵36.50 per acre contained
in the Fees and Charges
(Amendment) Instrument 2012
(L.I. 2191), the Fees and
Charges (Amendment) Instrument
2013 (L.I. 2206) as well as the
prescription of GH₵15.00 per
acre contained in the Fees and
Charges Instrument 2014 (L.I.
2216) as having been made in
contravention of articles 1(2),
11(1), 93(2), 106 and 267 of the
1992 Constitution.
vii.
An order directing the
Minister for Lands and Natural
Resources to comply with the
provisions of Articles 23 and
296(c) of the 1992 Constitution
and power and authority to
prescribe by Legislative
Instrument the annual ground
rent payable by holders of
mining concessions granted by
the Government over stool lands
under the Minerals and Mining
Act, 2007 (Act 703).
viii.
Perpetual injunction
against the Office of the
Administrator of Stool Lands,
its officers and agents or any
person acting for or on their
behalf from relying on the said
Fees and Charges (Amendment)
Instruments 2012 (L.I. 2191),
2013 (L.I. 2206) and 2014 (L.I.
2216) to demand or enforce
against the plaintiff payment of
the prescribed ground rent
contained in the said
Instruments which prescriptions
are inconsistent with and in
contravention of articles 1(2),
11(1), 93(2), 106 and 267(3) of
the 1992 Constitution.
ix.
Any further or other
consequential orders as shall be
deemed meet by the Supreme
Court.
The parties agreed on six issues
for the court’s determination.
The first two were expressed in
the alternative. The issues will
be discussed seriatim.
Issue 1. Whether or not the
Office of the Administrator of
Stool Lands has authority and
power under Article 267(2) of
the 1992 Constitution to
prescribe annual ground rent
payable by holders of mineral
rights granted over stool lands
by the Minister for Lands and
Natural Resources pursuant to
the Minerals and Mining Act,
2006 (Act 703).
OR
Issue 2. Whether or not the
Administrator of Stool Lands,
being a head of department, can
participate in the mandatory
review exercise under Regulation
20 of the Financial
Administration Regulations, 2004
(L. I. 1802) and, if so, whether
such participation amounts to
prescribing annual ground rent
payable by 7mineral right
holders and contravenes Article
267(2) of the 1992 Constitution.
Issues 1 and 2 have a common
strand running through them and
it is whether the Administrator
of Stool Lands, hereafter called
the Administrator, legally has
any role to play in fixing
annual ground rents for mineral
rights granted over stool lands.
This issue has arisen in respect
of the functions assigned to the
Administrator under Article
267(2) of the Constitution, 1992
which provides:
There shall be established the
Office of the Administrator of
Stool Lands which shall be
responsible for
(a)
the establishment of a stool
land account for each stool into
which shall be paid all rents,
dues, royalties, revenues or
other payments whether in the
nature of income or capital from
the stool lands;
(b)
the collection of all such
rents, dues, royalties, revenues
or other payments
whether in the nature of
income or capital, and to
account for them to the
beneficiaries specified in
clause (6) of this article; and
(c)
the disbursement of such
revenues as may be determined in
accordance with clause (6) of
this article.
The functions assigned to the
Administrator are clear and not
ambiguous and do not require any
arguments. From these issues the
plaintiff is clearly saying that
the Administrator has exceeded
his statutory functions by,
either suo motu or in
conjunction with others, fixing
the rates payable by holders of
mineral rights created over
stool lands. But the facts do
not support this assertion. The
plaintiff’s own case was that
the Administrator wrote to
demand payments in accordance
with the rates determined by the
Minister of Finance under
various Legislative Instruments.
The Administrator on his own
accord did not fix the rates.
Issue number 1 thus has no
factual basis and is accordingly
rejected.
In the alternative, parties set
down issue 2 that the
Administrator was part of a
review team that recommended
adjustments to the annual rates.
This is contained in a letter
purported to have been sent to
the plaintiff by the Eastern
Regional Office of the
Administrator. This letter is
found in paragraph 4.6 of the
plaintiff’s statement of case
and it reads in relevant part
thus:
“…………the Office of the
Administrator of Stool Land is
part of a committee of
technocrats and stakeholders
including Chamber of Mines and
Small Scale Miners working with
the Ministry of Finance for a
review of the current rate
GH₵36.50 per acre per annum. We
have been informed by our Head
Office that they have agreed on
GH₵15.00 per acre for 2013 and
2014.”
It is noted that this
recommendation for a downward
adjustment of the 2012 rate was
acted upon by the Minister of
Finance by L.I. 2206 of 2013 and
L.I. 2216 of 2014. It is crystal
clear from this letter and the
issuance of the Legislative
Instruments by the Minister of
Finance that the Administrator,
in conjunction with others, only
plays an advisory role to the
Minister of Finance. This does
not derogate from his core
functions as set out in article
267(2) of the 1992 Constitution.
An advisory opinion is not
binding on the Minister of
Finance so it has no force of
law. It is noted that
participation in such committee
work by the Administrator is
purely administrative, which the
Constitution is not required to
spell out. It is an incident of
the functions of the
Administrator who is responsible
for all royalties and other fees
accruing to stool lands and this
places him in the position to
offer expert advice on matters
pertaining to stool lands. The
Minister of Finance who has
acted under Act 793 to fix the
rates may thus seek the advice
of the Administrator, among
other persons, in deciding on
what rate to fix. The process of
seeking advice before acting is
purely administrative and is
inherent in and derives from the
power conferred by the statute,
which also derives its source
from the Constitution, 1992.
This was one of the reasons why
the setting up of a
Constitutional Review
Implementation Committee by the
President of the Republic was
held to be legal as same was
purely an administrative body to
help the President to carry out
a constitutional function. That
was in the case of PROFESSOR
STEPHEN KWAKU ASARE VS. THE
ATTORNEY-GENERAL; Writ No.
J1/15/2015, dated 29th
October 2015, unreported.
Therefore the Administrator did
not commit any violation of
Article 267(2) of the
Constitution by participating in
the fee-fixing review process.
Issue 3. Whether or not the
grant of power and authority by
Parliament to the Minister for
Finance under sections 2(1) and
(2) of the Fees and Charges
(Miscellaneous Provisions) Act,
2009 (Act 793) to amend the
Schedule to the Act is
inconsistent with or in
contravention of articles 1(2),
11(2), 93(2) and 267(3) of the
1992 Constitution and section 23
of the Minerals and Mining Act,
2006 (Act 793).
This issue questions
Parliament’s decision to confer
on the Minister of Finance power
and authority to amend the
Schedule to the Act in question,
namely Act 793, section 2
thereof, supra.
The issue throws up for
discussion several important
legal questions. In the first
place, what is the status of a
Schedule to an enactment? Is it
legally permissible to amend a
Schedule to an Act of Parliament
by way of a Legislative
Instrument and for that matter a
subordinate legislation? To what
extent, if at all, may
Parliament delegate its power of
legislation to another person?
Has section 2 of Act 793
transferred the function of
prescribing fees under section
23 of Act 703 to the Minister of
Finance? Has Section 2 of Act
793 impliedly repealed section
23 of Act 703?
What then is a Schedule to an
Act? Bennion on Statutory
Interpretation, 5th
edition, published by LexisNexis
at page 721 says “A Schedule is
an extension of the section
which induces it. Material is
put into a Schedule because it
is too lengthy or because it
forms a separate document (such
as a treaty).” The learned
author goes on to explain that
it is a convenient way of
incorporating part of the
operative provisions of an Act
in the form of a Schedule. And
as further explained by Lord
Wilberforce in the case of FLOOR
v. DAVIS (INSPECTOR OF TAXES)
(1980) 3 All ER 39, when
speaking of the Finance Act of
1965, that a Schedule is a
technique which Parliament
employs to place most of the
working and detailed provisions
in the Act.
The upshot of the foregoing is
that once the intent is clear
the Schedule is part of the Act
and must thus be construed as
one whole document. In the case
of A-G v. LAMPLOUGH (1878) 3 Ex.
D 214 at 229 Brett LJ said that
“A Schedule in an Act is a
mere question of drafting, a
mere question of words. The
Schedule is as much a part of
the statute, and is as much an
enactment as any other part.”
See also these cases: FLOWER
FREIGHT CO. LTD. v. HAMMOND
(1963) 1 QB 275. R. v. LEGAL AID
COMMITTEE NO. 1 (LONDON) LEGAL
AID AREA; EX PARTE RONDEL (1967)
2 QB 482. METROPOLITAN POLICE
COMMISSIONER v. CURRAN (1976) 1
WLR 87 HL.
Thus a Schedule forms an
integral part of an Act. The
next obvious question is whether
a Schedule to an Act may be
amended by subordinate or
subsidiary legislation. The
plaintiff is challenging the
power conferred by Parliament on
the Minister of Finance to amend
the Schedule to Act 793 by
Legislative Instrument as being
inconsistent with and in
contravention of articles 1(2),
11(1), 93(2) and 267(3) of the
1992 Constitution, as well as
section 23 of Act 703. These
constitutional provisions are:
1(2)
The Constitution shall be the
supreme law of Ghana and any
other law found to be
inconsistent with any provision
of this Constitution shall, to
the extent of the inconsistency,
be void.
11(1) The laws of Ghana shall
comprise
(a)
this Constitution;
(b)
enactments made by or under the
authority of the Parliament
established by this
Constitution;
(c)
any Orders, Rules and
Regulations made by any person
or authority under a power
conferred by this Constitution;
(d)
the existing law; and
(e)
the common law.
93(2) Subject to the provisions
of this Constitution, the
legislative power of Ghana shall
be vested in Parliament and
shall be exercised in accordance
with this Constitution.
267(3) There ahall be no
disposition or development of
any stool land unless the
Regional Lands Commission of the
region in which the land is
situated has certified that the
disposition or development is
consistent with the development
plan drawn up or approved by the
planning authority for the area
concerned.
It is clear that article 267(3)
has no bearing on this case. The
issue raised herein is one of
revenue accruing to, and not
disposition or development of,
stool land. The relevant
provision is article 93(2) of
the Constitution which has
vested Parliament with the
legislative power of the state.
Any Act of Parliament takes
precedence over provisions in a
subordinate legislation passed
pursuant to an Act of
Parliament; therefore any such
subordinate legislation or
provision thereof which is
inconsistent with and in
contravention of an Act of
Parliament is void to the extent
of the inconsistency. Parliament
itself has the responsibility to
pass Acts of Parliament, whereas
subordinate legislation may be
passed by other persons outside
Parliament but must be laid
before Parliament to give same
legal validity. Thus an Act of
Parliament may only be amended
by another Act duly passed by
Parliament. That is the general
principle which ensures that
Parliament’s mandate under the
principle of separation of
powers is adhered to. Thus prima
facie an Act of Parliament may
not be amended by a subordinate
legislation.
But this is not an invariable
rule when it comes to the
Schedule to an Act. The Schedule
sometimes includes forms, or
transitional provisions which
remain in force until the main
provisions in the Act may be
brought into force, or an
International Treaty whose terms
may be renegotiated without
reference to Parliament, or fees
that may be charged by an
institution or a person for some
service rendered to the public.
In such instances it is possible
for the parent Act to entrust
the responsibility of revising
the forms or fixing the fees to
a body or person outside
Parliament. For now let
me refer to the view expressed
by Justice G. P. Singh in his
book Principles of Statutory
Interpretation, 13th
edition published in 2012 by
LexisNexis at page 215. Whilst
making reference to the 5th
and 6th Schedules to
the Constitution of India and
also the 1st Schedule
to the Code of Civil Procedure,
1908, the learned author and
jurist said a Schedule may “contain
such rules and forms which can
be suitably amended according to
local or changing conditions by
process simpler than the normal
one required for amending other
parts of the statute.”
In the specific case under
consideration, Parliament
entrusted the power to amend the
Schedule in relation to fees and
charges, to the Minister of
Finance through the passage of
Legislative Instrument. The
revision of fees upwards or
downwards is a constant thing.
It is a revenue matter which the
Constitution has entrusted to
Parliament to raise. Thus only
Parliament may authorize another
person or body to act on its
behalf. Such power has been
entrusted to several bodies and
persons to charge fees by
subsidiary legislation and this
process enables Parliament to
exercise its oversight
responsibility. Thus whether a
Schedule to an Act may be
amended by subsidiary
legislation depends on the
subject of the legislation and
whether the power to amend has
been expressly given by
Parliament not being
inconsistent with the
legislative function conferred
upon it by article 93(2) of the
1992 Constitution.
That brings us to a discussion
on the extent of Parliamentary
delegation of its legislative
functions. In the case of JOHN
AKPARIBO NDEBUGRE v. THE
ATTORNEY-GENERAL & 2 ORS, Writ
J1/05/2013 dated 20th
April 2016, unreported, we had
occasion to talk about this
question. After examining cases
from US Jurisprudence, we came
to the conclusion that “in
view of the fact that it is
almost impossible and
impracticable for Parliament to
oversee all the activities and
functions that fall within its
domain, it is appropriate that
it delegates some of these
functions which do not involve
law-making to others to execute
the policies it has set out,
within the framework and the
policy outlined in the law. This
does not infringe the principle
of separation of powers. Thus
the principle of delegation is
permissible if it does not
infringe the power granted to
Parliament to make laws for the
country under article 93(2) of
the Constitution.”
We will refer to some cases
decided by the US Supreme Court
which are of persuasive
influence. The first case is
J.W. HAMPTON, Jr. & CO. v.
UNITED STATES, 276 U.S.394
(1928). The President was
empowered and directed by The
Tariff Act of 1922 to increase
or decrease duties imposed by
the Act so as to equalize the
differences which, upon
investigation, he finds and
ascertains between the costs of
producing at home and in
competing foreign countries the
kinds of articles to which such
duties apply. The Act laid down
certain criteria to be taken
into consideration in
ascertaining the differences,
fixed certain limits of change
and made an investigation by the
Tariff Commission, in aid of the
President, a necessary
preliminary to any proclamation
changing the duties. The court
held that the delegation was not
unconstitutional and that a
valid delegation must establish
“an intelligent principle to
which the person or body
authorized to take action is
directed to conform……….The true
distinction, therefore, is,
between the delegation of power
to make the law, which
necessarily involves discretion
as to what it shall be, and
conferring an authority or
discretion as to its execution,
to be exercised under and in
pursuance of the law. The first
cannot be done; to the latter no
valid objection can be
made.” The court’s view was
that Congress had not delegated
any authority or discretion as
to what the law shall be, which
would not be allowable, but had
merely conferred an authority
and discretion, to be exercised
in the execution of the law by
Congress, and authorize the
application of the congressional
declaration, to enforce it by
regulation equivalent to law.
The second case is YAKUS v.
UNITED STATES, 321 U.S. 414
(1944). In this case, the
plaintiff challenged provisions
in the Emergency Price Control
Act, which allowed the office of
Price Administration to issue
regulations fixing the maximum
prices of commodities and rents.
The Act declared that prices
were to be fixed to effectuate
the Act’s policy of preventing
wartime inflation, directed the
Administrator to give
consideration to prevailing
prices and mandated that the
prices set be “fair and
equitable.” The court held that
the delegation did not involve
an unconstitutional delegation
to the Price Administrator of
the legislative power of
Congress to control commodity
prices in time of war. This is
what the court said: “The
essentials of the legislative
function are the determination
of the legislative policy and
its formulation and promulgation
as a defined and binding rule of
conduct-here the rule, with
penal sanctions, that prices
shall not be greater than those
fixed by maximum price
regulations which conform to
standards and will tend to
further the policy which
Congress has established. These
essentials are preserved when
Congress has specified the basic
conditions of fact upon whose
existence or occurrence, as
ascertained from relevant data
by a designated administrative
agency, it directs that its
statutory command shall be
effective.”
On the contrary, the same court
rejected Congressional
delegation in the case of PANAMA
REFINING CO. v. RYAN, 293 U.S.
388 (1935). The court
invalidated a provision of the
National Industrial Recovery
Act, 1933 which delegated to the
Executive the authority to
prohibit the interstate
transportation of oil violating
state mandated production
quotas. The court held that the
vagueness of the statute did not
sufficiently direct the
Executive’s action and therefore
impermissibly delegated
legislative discretion to the
President. See also SCHECTER
POULTRY CORP. v. UNITED STATES,
295 U.S. 495 (1935).
When Parliament acts in excess
of the power vested in it by
Article 93(2) of the
Constitution this court would
intervene, so there is nothing
like parliamentary sovereignty
in the sense as known in
Britain. See the case of
OPREMREH v. ELECTORAL COMMISSION
& ANOR. (2011) 2 SCGLR 1159, per
Dotse JSC at 1174. The Indian
case of JATINDRANATHGUPLA v. THE
PROVINCE OF BAHIR (1949) FCR
595, presents another useful
reference point. In that case
the Governor of the Province of
Bahir was given authority under
an Act of Parliament to extend
the operation of the Act with
such modifications as may be
specified. The Supreme Court of
India in an Advisory Opinion and
basing itself on a case that
went on appeal before the Privy
Council held that the provision
giving authority to the Governor
to extend the Act with
modifications was ultra vires
the power of the legislature.
Kania C.J. said at page 620 of
the report that: “It was
observed by their Lordships of
the Privy Council in KING
EMPEROR v. BEONARILALSAMA (1945)
FCR 161 that; ‘It is undoubtedly
true that the Governor-General
acting under s. 72 of Schedule
LX must himself discharge the
duty of legislation there cast
on him, and cannot transfer it
to other authorities.’ That
observation applies with equal
force to cases of legislative
authorities. They are not
allowed to transfer to others
the essential legislative
function with which they are
invested………The distinction
between the power to make the
law which necessarily involves a
discretion as to what it shall
be and conferring discretion or
authority as to its execution to
be exercised under and in
pursuance of the law is a true
one and has to be made in all
cases where such a question is
raised. The provision which has
been assailed, judged from the
above test, comes within the
ambit of delegated legislation
and is thus an improper piece of
legislation.”
In the instant case Act 793,
section 2 thereof entrusted the
power to fix charges to the
Minister responsible for Finance
and Economic Planning. The Act
merely transferred that
responsibility which hitherto
existed under various enactments
to the Minister of Finance. The
policy underpinning this
legislation is clear that the
Minister of Finance should be
solely responsible for fixing
revenue charges which would
otherwise have been done by
several other persons or bodies.
The underlying policy is also
reflected in the memorandum
accompanying the Bill that
culminated in the passage of Act
793, which has been quoted below
in this decision. The Act did
not set the parameters to guide
the Minister in fixing the
charges. But the Constitution
itself has in-built mechanism to
guide a person in the exercise
of authority based on
discretion. Article 296 provides
that:
Where in this Constitution or in
any other law discretionary
power is vested in any person or
authority,
(a)
that discretionary power shall
be deemed to imply a duty to be
fair and candid;
(b)
the exercise of the
discretionary power shall not be
arbitrary, capricious or biased
either by resentment, prejudice
or personal dislike and shall be
in accordance with due process
of law; and
(c)
where the person or authority is
not a Justice or other judicial
officer, there shall be
published by constitutional
instrument or statutory
instrument, Regulations that are
not inconsistent with the
provisions of this Constitution
or that other law to govern the
exercise of that discretionary
power.
Section 2 of Act 793 has
invested the Minister of Finance
with authority and discretion in
respect of rates chargeable for
certain issues. By the
provisions of article 296 of the
Constitution, a duty is cast on
the Minister to act fairly and
consult with stakeholders; the
due process requirement and the
duty not to act arbitrarily
ensure fairness. He is also
required to act by a Legislative
Instrument in each case to
guarantee Parliamentary
involvement. And once the
Minister fixes the charge by way
of a Legislative Instrument, it
has the force of law amending
the Schedule to the Act. So
whether the Act empowers him to
amend the Schedule of fees or
not the action has that effect
in law. This is permissible
within the Constitutional
framework for he would not be
making any new law but would
just be carrying out the
function imposed upon him by law
to fix the rates.
The next question is whether
section 2 of Act 793 has
transferred the function of
prescribing fees under section
23 of Act 703 to the Minister of
Finance. The said section 23
provides:
(1)
A holder of a mineral right
shall pay an annual mineral
right fee that may be
prescribed.
(2)
Payments of annual ground rent
shall be made to the owner of
the land or successors and
assigns of the owner except in
the case of annual ground rent
in respect of mineral rights
over stool lands, which shall be
paid to the Office of the
Administrator of Stool Lands,
for application in accordance
with the Office of Administrator
of Stool Lands Act, 1994 (Act
481).
This section should be read
together with sections 111 and
110(1). Section 111 assigns the
functions under the legislation
to the Minister responsible for
Mines and by section 110 the
Minister is required to publish
Regulations by way of a
Legislative Instrument to carry
into effect the functions
assigned to him under the
legislation. It means that the
right to prescribe fees for
holders of mineral rights over
stool lands is the
responsibility of the Minister
responsible for Mines. But
according to the parties herein
this function has been
transferred to the Minister of
Finance by Act 793, section 2.
Both Act 703 and Act 793 are the
creatures of Parliament.
Therefore Parliament would be
perfectly justified in the
exercise of its constitutional
mandate in transferring the
fixing of charges for mineral
rights to the Minister of
Finance. But that intention must
be clearly stated in the
subsequent Act or by repealing
the earlier provision expressly
or impliedly. When the intention
is clearly expressed that Act
cannot be questioned by this
court.
We first have to consider
whether Act 793, being a
subsequent legislation, could be
said to have impliedly repealed
section 23 of Act 703. The
principle of implied repeal is
well grounded in the law. “It
is well settled that the Court
does not construe a later Act as
repealing an earlier Act unless
it is impossible to make the two
Acts or the two sections of the
Act stand together, i.e. if the
section of the later Act can
only be given a sensible meaning
if it is treated as impliedly
repealing the section of the
earlier Act”….per
Farwell J. in In Re BERREY,
LEWIS v. BERREY (1936) Ch. 274
at page 279.
The learned author Bennion in
his book referred to above
states the principle at page 304
thus: if a later Act makes
contrary provision to an
earlier, Parliament (though it
has not said so) is taken to
intend the earlier to be
repealed……The principle is a
logical necessity, since two
inconsistent laws cannot both be
valid without contravening the
principle of contradiction.
According to A.L. Smith J., in
the case of WEST HAM CHURCH
WARDENS AND OVERSEERS v. FOURTH
CITY MUTUAL BUILDING SOCIETY
(1892) 1 QB 654 at 658, “The
test of whether there has
been a repeal by implication by
subsequent legislation is this:
are the provisions of a later
Act so inconsistent with, or
repugnant to, the provisions of
an earlier Act that the two
cannot stand together?”
However, this principle raises
only a rebuttable presumption
that the subsequent legislation
has repealed an earlier
inconsistent one. It may be
rebutted when for instance the
maxim ‘generalia
specialibus non derogant’ is
successfully raised. Counsel for
the plaintiff argued that Act
703 is a special legislation so
the general provisions in Act
793 cannot override the
provisions of Act 703. The
applicable law is that where a
general enactment covers a
situation for which a specific
provision has been made by an
earlier enactment, it is
presumed that the situation was
intended to continue to be dealt
with by the specific provision
rather than the later general
one. Therefore the earlier
specific provision is not
treated as impliedly repealed.
Act 703 makes elaborate
provisions to govern operations
in the minerals and mining
industry and entrusts the
responsibility of ensuring
compliance with these
provisions, including the fixing
of fees, to the Minister
responsible for Mines. On the
other hand, Act 793 is a general
provision which put together a
number of enactments that dealt
with fixing of fees and charges
and entrusted future
responsibility of fixing the
charges to the Minister
responsible for Finance and
Economic Planning. Parliament
excluded Act 703 from the
enactments covered by Act 793.
Their intention was very clear
to exclude the provisions of Act
703 from the operation of Act
793 where the affected
enactments were carefully set
out. The principle of ‘expressio
unius est exclusio
alterius’ is equally
applicable. By excluding Act
703, Parliament’s clear
intention was that all the
provisions of that Act should
continue to apply. This
principle will be addressed in a
little detail later in this
decision.
Issue 4. Whether or not all the
three Fees and Charges
Instruments made by the Minister
for Finance pursuant to
authority conferred under Act
793, namely L.I. 2191 of 2012,
L.I. 2206 of 2013 and L.I. 2216
of 2014, are inconsistent with
and in contravention of Articles
1(2), 11(1), 93(2) and 267(3) of
the 1992 Constitution as well as
section 23 of the Minerals and
Mining Act, 2006 (Act 703).
In order to resolve this issue
it is necessary to determine the
extent of the power and
discretion given to the Minister
of Finance by Act 793. For
emphasis section 2 of Act 793 is
repeated. It provides:
(1)
The authority conferred
under the enactments set out in
the first column of the Schedule
to determine fees and charges
is hereby transferred to
the Minister responsible for
Finance and Economic Planning
and accordingly those enactments
are hereby amended. (emphasis
supplied)
(2)
The Minister for Finance and
Economic Planning may by
Legislative Instrument amend the
Schedule to this Act.
The two subsections must be read
conjunctively. Subsection 1
makes it clear what power was
given to the Minister; it is the
power to determine fees and
charges under the enactments
listed in the first column of
the Schedule. The same
subsection transferred the
authority granted to other
persons to fix fees and charges
in the listed enactments to the
Minister of Finance; that is the
extent of the authorization.
Therefore when in the next
subsection Parliament gave the
Minister power to amend the
Schedule, it was in reference to
what he is empowered by
subsection 1 to do and that is
to fix the fees and charges in
respect of the bodies listed in
the first column of the
Schedule. It did not empower the
Minister to alter the list in
the first column of the
Schedule. Such authorization
would amount to amending the
main Act and that would be
contrary to Article 93(2) of the
Constitution, for the Minister
would be legislating instead of
Parliament. Adding to or
subtracting from the list in the
first column of the Schedule is
a pure legislative function.
Revising the fees and charges in
respect of the bodies listed in
the Schedule is an executive act
carrying into effect the
dictates of the legislation,
which as pointed out has the
force of law amending the
Schedule.
This reasoning finds support
from the explanatory memorandum
to Act 793 which counsel for the
defendant quoted in their
statement of case. It provides:
‘The authority to prescribe fees
and charges in respect of sale
of goods, services or licences
and other matters is contained
in various enactments. This Bill
seeks to regulate those fees and
charges under one enactment and
for budgetary purposes, make it
easier for the necessary changes
to be made. Although certain
fees are imposed by Legislative
Instruments, these Legislative
Instruments have not been
referred to in the Schedule,
rather the substantive laws
under which the Legislative
Instruments were made are stated
in the first column of the
Schedule. the reason for this is
that the delegated authority of
Parliament for subsidiary
legislation to be made is found
in the substantive Act.
Under clause 2 of the Bill
the authority to determine the
fees and charges in the
various enactments is being
transferred to the Minister
responsible for Finance and
Economic Planning.’
(emphasis supplied)
From this memorandum the
intention of Parliament is made
manifestly clear. It intended
that the only given to the
Minister responsible for Finance
is to amend the Schedule when it
fixes the fees and charges in
respect of the various wnctments
listed in the first column of
the Schedule through its
delegated power of passing
subsidiary legislation.
In this connection it is
necessary to refer to this
court’s decision in the case of
MORNAH v. ATTORNEY-GENERAL
(2013) SCGLR (Special Edition)
502 which both lawyers in this
case relied on. Whereas the
plaintiff believes the court in
that case had made it clear that
a substantive Act cannot be
amended by subsidiary
legislation, the defendant said
this could be done by express
authorization. That case dealt
with this court’s review
jurisdiction which the Rules of
Court Committee had amended by
subsidiary legislation but the
court held it had no such power
or authorization to do that.
Counsel for the defendant was
interested in the point the
court made that the power to
amend the substantive law could
be exercised if it was expressly
conferred by the Constitution or
other enabling law. That is the
true position of the law. The
Constitution empowers only
Parliament to amend substantive
Acts. And the Constitution also
enables Parliament to empower
another person to perform
certain tasks by way of
subordinate legislation, for
instance to fix fees and charges
and thereby effectively amend
part of an Act in order to carry
into effect or execute the
legislative action. That
decision did not say that
Parliament could on its own
empower another person to
legislate an amendment to a
substantive law. It is strictly
limited to subsidiary
legislation which in some cases
may have the effect of amending
part of an Act, notably the
Schedule. There is no law
whereby Parliament could
authorize the Rules of Court
Committee to amend the review
jurisdiction of this court which
has been given by the
Constitution. That decision
should therefore be understood
in context that whatever
legislative function any person
exercises must be duly
authorized by the Constitution
or Statute. Whatever it is there
must be no infraction of the
Constitution in order to render
such authorization valid.
In the light of the foregoing,
the Minister has no power under
Act 793 to add to the list.
Hence his inclusion of the
Office of the Administrator of
Stool Lands Act, (Act 481) was a
clear breach of Article 93(2) of
the Constitution. This is
because he had effectively
amended sections 1 and 2(1) of
Act 793 by subordinate
legislation when he was only
authorized to amend the
Schedule. He has also impliedly
taken over the function given to
the Minister of Mines under Act
703 through an implied repeal of
section 23(1) of the said Act.
And indeed such authorization
could not even be given by
Parliament which is under a duty
to perform its task under the
Constitution. Consequently
whilst L.I. 2291 of 2012, L.I.
2206 of 2013 and L.I. 2216 of
2014 are valid in so far as they
seek to fix charges and fees in
respect of the bodies listed in
the first column of Act 793,
they are inconsistent with the
letter and spirit of Article
93(2) of the Constitution with
regard to the inclusion of the
Office of the Administrator of
Stool Lands Act, Act 481 and to
that extent only null and void.
Indeed these LI’s also run
counter to section 2 of Act 793
as the Office of the
Administrator of Stool Lands is
not included in the Schedule
thereto. As these LI’s also have
the effect of impliedly amending
section 23(1) of Act 703 by
assuming the power given to the
Minister responsible for Mines
it is legally wrong. The
principle is that that when the
new Act, in this case Act 793,
contains a repealing section
mentioning the Acts which it
expressly repeals, the
presumption against implied
repeal of other laws becomes
fortified on the principle
‘expressio unius est exclusio
alterius’. In the words of
Lord Blackburn in the case of
GARNETT v. BRADLEY (1877-78) 3
App. Cas. 944 at 965 “Inasmuch
as there are certain statutes
enumerated which are repealed,
expressio unius est exclusio
alterius, and accordingly those
statutes and those alone are
repealed….” See also
HEADLAND v. COSTER and Another
(1905) 1 K.B. 219; In re CHANCE
(1936) 1 Ch. 266 at 268.
Issue 5. Whether or not the
power conferred on the Minister
for Lands and Natural Resources
under section 110(1) of the
Minerals and Mining Act, 2006
(Act 703) has been transferred
to the Minister of Finance under
the Fees and Charges
(Miscellaneous Provisions) Act,
2009 (Act 793).
From the earlier discussions we
can conclude that there has been
no such transfer of power.
Section 110(1) of Act 703
provides that The Minister
may, by legislative instrument,
make Regulations for the purpose
of giving effect to this Act.
Briefly stated, a transfer of
the power conferred on the
Minister of Mines under section
110(1) of Act 703 could only be
accomplished through an
amendment, express or implied.
Act 793 did not purport to amend
section 110(1) of Act 703 in any
manner especially having regard
to the fact that all the
functions assigned to the
Minister responsible for Mines
under Act 703 remain intact.
There is nothing said in Act 793
which can even remotely be said
to be a re-enactment of section
110(1) of Act 703.
Issue 6. Whether or not the
failure or omission by the
Minister for Lands and Natural
Resources to exercise the
discretionary power and
authority conferred upon him
under sections 23 and 110(1) of
the Minerals and Mining Act,
2006 (Act 703) to prescribe
annual ground rent payable by
holders of mineral rights
granted by Government over stool
lands is conduct which violates
Articles 23 and 296(c) of the
1992 Constitution.
Article 23 of the 1992
Constitution provides:
Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal.
Article 296(c) has been quoted
earlier in this judgment. The
Minister responsible for Mines
has the right, to the exclusion
of every other person, to
prescribe annual ground rents
for holders of mineral rights
granted over stool lands since
there is no implied repeal of
section 23(1) of Act 703 by
section 2 of Act 793. So by
Articles 23 and 296 of the
Constitution, the Minister
responsible for Mines would have
failed in his duty for not
complying with the provisions of
section 110(1) and 23(1) of Act
703.
It is observed that parties
herein used the Minister for
Lands and Natural Resources when
making references in Act 703. It
may be that currently he is the
Minister responsible for Mines,
but it is appropriate at all
times to refer to the Minister
responsible for Mines as the
right person to deal with
matters under Act 703. That
responsibility may be passed on
to another Minister by the
President as he pleases. Hence
as section 111 of the said Act
has given the responsibility for
matters arising under the Act to
the Minister responsible for
Mines it should be addressed as
such in all matters that pertain
to the Act.
Conclusion
We dismiss relief 1 for the
reason that the Administrator’s
role in the determination of the
fees and charges pertaining to
mineral and mining leases
granted over stool lands was
purely advisory.
Relief 2 is dismissed for the
reason that the extent of
Parliament’s authorization was
clear and did not extend beyond
the enactments listed in the
first column of the Schedule to
Act 793.
Subject to our decision that the
inclusion of the Office of the
Administrator of Stool Lands
Act, 1994, Act 481 in L.I. 2191
of 2012, L.I. 2206 of 2013 and
L.I. 2216 of 2014, is ultra
vires, unconstitutional, null
and void, relief 3 is dismissed.
Relief 4 is dismissed for the
reason that as public servants,
the Administrator and the staff
working in his office are bound
by Article 23 of the 1992
Constitution to work with every
law in force in the country that
relates to their operations or
which they are enjoined to
apply.
For reasons advanced in this
decision, reliefs 5, 6. 7 and 8
are granted.
The Minister responsible for
Mines is hereby ordered to take
steps to fix the fees and
charges under sections 23 and
110(1) of the Minerals and
Mining Act, 2006 (Act 703),
including arrears, lest the
State and other legitimate
beneficiaries should lose
revenue that they are entitled
to by law.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME COURT
(SGD) G.
PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
INNOCENT AKWAYENA FOR THE
PLAINTIFF.
MRS. DOROTHY AFRIYIE ANSAH (CSA)
WITH HER ZENAB AYARIGA (ASA) LED
BY DR. DOMINIC AYINE, DEPUTY
ATTORNEY GENERAL FOR THE
DEFENDANT
|
