NUTCASES

CONSTITUTIONAL LAW OF GHANA

 1. CONSTITUTIONAL LAW AND INTERNATIONAL LAW

International law is that body of rules that concern the relationship

between States. It is mainly about how the States relate to one another.
The main sources of International law are treaties or conventions,
customary law, decisions of International Court of Justice and works or
writings of respected persons. International law itself can be classified as
Public International Law or Private International Law.

International law deals with cases of border disputes, crimes against

humanity, acts of genocide and delimitation of territorial waters, among
others. To David Harris1, International law is hardly broken unlike
municipal law. International law is therefore seen as the law of the
nations.

On the other hand, Constitutional law is the set of rules that govern the
activities of a group of people who make up a State. Constitutional Law is
also called Municipal law or Domestic law. This means that it is intra-State
rules which are enforceable at the courts. In Ghana for instance, the
sources of Municipal law include the Constitution, 1992, Acts of
Parliament, the rules of regulations of a person or a body conferred with
such authority under the Constitution, existing laws before the coming
into force of the 1992 Constitution, Common law and customary law.
Municipal law is therefore confined to a particular State.

The relationship that exists between International law and Municipal law
brings about the concept of Dualism and Monism. States that are dualist
do not immediately see International law as part of their Municipal law.
Before a dualist State accepts and incorporates and International law,
there must be a form of ratification. For example, in the case of North Sea
Continental Shelf,2 it was held by the International Court of Justice that the
Federal Republic of Germany had not domesticated the equidistance
delimitation into their Municipal law so they could not be bound by it. It
means that dualists need local approval in order to accept International
law as part of their Municipal law. But monist States do not only see
International law as automatically part of their Municipal law but also,
once their leaders sign on to treaties or conventions, among others, they
become part of their laws. Hence, this represents the general relationship
between International Law and Municipal law of Constitutional law.

The Constitution, 1992 provides in Article 75 that any treaty, agreement

or convention signed by the President or any other person with the
1
David Harris
2
North Sea Continental Shelf

1
authority of the President shall be subject to parliamentary ratification. In
this light, Ghana is seen as a dualist State. The case below illustrates this
position.

Key principle: A treaty or agreement or convention signed by the

President or anyone under his authority must be ratified by Parliament
before it becomes constitutional.

Mrs Margaret Banful & Henry Nana Boakye v. The Attorney-

General & The Ministry of Interior3

Statement of Facts: There was an agreement made in 2016 between

the Government of the United States of America and the President of
Ghana. This sought to transfer to Ghana for settlement two Yemeni
citizens formerly held in detention by the United States of America at its
facilities at Guantanamo Bay. The said persons were in all material
moment in Ghana.

The applicants invoked the original jurisdiction of the Supreme Court

pursuant to articles 2(1)(b) and 130(1) of the 1992 Constitution of Ghana
and rule 45 of the Supreme Court Rules, 1996 (C.I. 16).

The applicants sought a declaration that on a true and proper

interpretation of article 75 of the 1992 Constitution of Ghana, the
agreement between the Government of United States of America and the
President of the Republic of Ghana required ratification by an Act of
Parliament or a resolution of Parliament supported by the votes of more
than one-half of all members of Parliament.

The applicants also sought the declaration that the President acted
unconstitutionally in his failure to obtain the requisite ratification of
Parliament.

They averred that as a dualist state, Ghana’s consent to be bound by an

international agreement is only deemed to have been properly secured
after the same has been approved or ratified by Parliament.

They argued therefore that the National Security Council might not in any
instance derogate from the power of Parliament under article 75(2) of the
1992 Constitution. Hence, approval of all agreements is the sole
prerogative of Parliament.
3
Mrs Margaret Banful & Henry Nana Boakye v. The Attorney-General & The Ministry of Interior Unreported
Supreme Court Writ No. J1/7/2016 22nd June 2017

2
But the respondents submitted that the said agreement is not of the type
of agreement contemplated by article 75. They argued that article 75
covers only treaties, agreements and conventions but not diplomatic
notes. Therefore, there was no need for parliamentary approval.

It was the case of the respondents also that the matter affected national
security and the entire National Security Council established by the
Constitution has not suggested by any means that the security of the
country has been endangered by the action of bringing the ex-detainees
from Guantanamo Bay to Ghana.

The Court subsequently ordered the production of a copy of the said

agreement.

Issue: Whether or not the document or instrument made between Ghana

and the United States of America is in the category of ‘agreement’
contemplated by article 75 of the 1992 Constitution, which, therefore,
ought to have been placed before Parliament for ratification?

Held: The document is in the category of ‘agreement’ contemplated by

article 75 of the 1992 Constitution which ought to have been placed
before Parliament for ratification.

Reasoning: Article 75 of the 1992 Constitution provides that a treaty,

agreement or convention executed by or under the authority of the
President shall be subject to ratification by an Act of Parliament or a
resolution of Parliament supported by the votes of more than one-half of
all the members of Parliament.

The Constitution, 1992 also provides in article 73 that the Government of

Ghana shall conduct its international affairs in accordance with the
accepted principles of public international law which also is in line with the
interest of Ghana.

The Court reasoned that since the 1992 Constitution does not distinguish
between executive agreements which require no approval of Congress
such as the American situation and treaties that require same, all
agreements signed between the Government of Ghana and another State
require parliamentary approval.

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The Court held therefore that “the arrangement, unique as it is, cannot be
made without parliamentary ratification.”

It was held consequently that “upon a true and proper interpretation of

article 75 of the 1992 Constitution of Ghana, the President of the Republic
of Ghana, in agreeing to the transfer of Mahmud Umar Mohammed Bin
Atef and Khalid Muhammad Salih Al-Dhuby to the Republic of Ghana,
required the ratification by an Act of Parliament or a resolution of
Parliament supported by the votes of more than one-half of all the
members of Parliament and by virtue of the failure to obtain such
ratification the agreement is unconstitutional.”

Conclusion: The agreement required parliamentary ratification. And

failure of which makes it unconstitutional.

Per Sophia Akuffo, JSC (as she then was):

2. CONSTITUTIONALISM

Constitutionalism is the concept of putting limitation on the power given

to people in authority. To Fulham 4, “…Government officials are not free to
anything they please in any manner they choose…” They must submit to
a higher authority. Whatever public officials do must be subjected to law.

There are three main mechanics to limit the powers of officials in power.
These are institutional, substantive and procedural limitations. For
institutional limitation, it is observed that the Constitution does not only
establish the government with its departments but also creates powers for
it and the various departments. The Constitution creates the executive,
legislature and judiciary.

The Constitution therefore creates these divisions in the government and

affords each some powers. The limitation is that the Constitution does not
place all powers into one arm of government but shares the powers for
them: the executive gets the executive power; the legislature gets the
legislative power; and the judiciary gets the judicial power of the State.

4
David Fulham

4
Substantive limitation refers to the law itself; the content of the law; what
the law should be. It is the limitation placed within the law given to an arm
of government or official of government. For instance, Parliament does not
have the power to enact laws to make Ghana a one party state.

And the procedural limitation prescribes the processes a person must go

through to get certain things done. For example, Parliament has to go
through procedures to exercise their powers given them by the
Constitution. Again, the President can sack the Justices of the Supreme
Court or the Chairperson of the Electoral Commission but he needs to go
through the processes enshrined in the 1992 Constitution.

Constitutionalism can be expressed in many ways. These include

constitution, rule of law, separation of powers, checks and balances,
judicial review, human rights, democracy, inter alia.

SEPARATION OF POWERS
One of the measures to ensure constitutionalism is separation of powers.
The whole idea is that there is an attempt to limit or deal with the
overconcentration of power in one arm of government. If Parliament
makes an Act, the agents of government have the mandate to implement
it. If there is a dispute in the implementation and interpretation, the
judiciary comes in to interpret it.

There are two arguments. One is of the view that separation of powers is
achieved with the mandate given to the arms of government. The second
view is that there must be distinct members of all the arms of government
in order to achieve separation of powers.

Some jurisdictions have strict separation of powers where the arms of

government are independent of one another. But in Ghana, some
members of the legislature are members of the executive; hence, there is
no strict separation of powers under the Constitution, 1992.

Key principles: Separation of powers, judicial review, rule of law

Marbury v. Madison5

Statement of facts: William Marbury, who was nominated as a justice of

the peace of the District of Columbia (also nominated were Dennis
Ramsay, Robert Townsend Hooe and William Harper), brought a case in
the Supreme Court against James Madison, Secretary of State of the
United States.
5
Marbury v. Madison 5 US 137 (1803) (Cranch)

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Mr Adams, the late President of the United State of America, made the
said nomination for the Senate advised and consented and the Secretary
of State affixed the seal of the United States but the commission were not
delivered to the applicant.

The applicant requested Mr Madison to deliver the commission to him but

he did not comply. He then made application to his office for information
whether the commission were signed and sealed as mentioned.
Satisfactory information was not given. A similar request was made on the
Secretary of the Senate but he did not give out such information.

Consequently, the counsel for the applicant moved the court for a rule to
James Madison to show cause why a mandamus should not issue
compelling him to cause to be delivered to the applicant his commission
as justices of the peace of the District of Columbia.

Issues:

1. Whether or not the applicant has a right to the commission he

demands?

2. Whether or not, if such right is violated, the laws of his country

afford him a remedy?

3. Whether or not mandamus may issue from the Supreme Court?

Held:

1. The applicant has a right to the commission.

2. The laws of his country offered the applicant a remedy if his right is
violated.

3. Mandamus may issue but not from the Supreme Court.

Reasoning: An act of Congress provided for justices of the peace to be

appointed from time to time by the President of the United States. Such
persons had five years to continue in office.

Per the law, the president had the mandate to nominate and appoint such
officers based on the advice and consent of the Senate. He shall
commission all the officers.

By law, the Secretary of State kept the seal of the United State and he
was mandated to affix the seal on such commissions after the president
had signed the commission.

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It is known that the president made his nomination and the Senate
consented. The Secretary of State affixed the seal but refused to deliver
to the applicant.

The Court reasoned that delivery, transmission and acceptance of the

commission were no necessary conditions to make the commission valid.
It was therefore held that Mr Marbury was appointed since the
appointment was signed by the President and the seal affixed by the
Secretary of State. He therefore had the right to hold office as justice of
peace for five years. The appointment was not revocable.

Further, it is settled law and an invariably principle in law that every right,
when withheld, must have a remedy and every injury must have its proper
redress.

The law also provides that where there is a legal right, there is also a legal
remedy by suit of action at law whenever that right is invaded.

The court reasoned that the worthlessness of the thing pursued cannot
make an injured party be of no remedy. That is, whether or not an injured
party has a remedy or not does not depend on whether the thing pursued
is worthless or not.

Acts of officers appointed by the president are the President’s acts. When
they act based on the will of the President, they are not answerable in
court. Where the constitution gives him discretion, such acts are
examined politically. But if the law assigns specific duties to an officer
appointed by the President, he is amenable to the laws for his conduct.
And when a specific duty is assigned by law and individual rights depend
upon the performance of that duty, it seems equally clear that the
individual who considers himself injured has a right to resort to the laws of
his country for remedy.

The nomination to the Senate and the appointment are political powers to
be exercised by the President- which is a legal discretion. However, the
office of the justice of the peace of the District of Columbia is not an office
revocable by the executive. The president does not have the discretion to
remove an officer in that position. The officer now acquires rights
protected by the law.

Mr Marbury is appointed to that office for a space of five years and having
this legal title to the office, he has a consequent right to the commission.
A refusal to deliver the commission is a plain violation of that right for
which the laws of his country afford him a remedy.

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On the issue of the remedy sought, it depends on the nature of the writ
applied for and the power of the present court.

Blackstone, 3 vol defines mandamus to be ‘a command issuing in the

King’s name from the court of King’s bench to any person, corporation or
inferior court of judicature within the King’s dominion, requiring them to
do some particular thing therein specified which appertains to their office
and duty and which the court of King’s bench has previously determined,
or at least supposes, to be consonant to right and justice.”

Lord Mansfied stated in the King v. Baker6 that, the court ought to assist
by mandamus if a person is kept out of possession or dispossessed of a
right owed to him.

The court held that the circumstance espoused by Blackstone and Lord
Mansfield are present in the instant case. However, to render mandamus
a proper remedy depended on two things: the officer to whom it is to be
directed must be one to whom, on legal principles, such writ may be
directed; and the person applied for it must be without any other specific
and legal remedy.

The court has no jurisdiction to question the executive over things that
are political and that they have legal discretion. But the court has the
right to question particular acts set by Congress and the general
principles of law. It is not by the office of the person to whom the writ is
directed but the nature of the thing to be done that the propriety or
impropriety of issuing a mandamus is to be determined. But mandamus
cannot issue if the applicant has no legal right to make that application.

The present case presents a plain case of a mandamus, either to deliver

the commission or a copy of it from the record. Mr Marbury has legal right
to the commission so it is appropriate for a mandamus to issue.

The Court took the view that even though the applicant has right to the
commission and failure of which mandamus is proper; it could not be
issued by the Supreme Court because it did not have original jurisdiction
but an appellate one.

The Court held that there was an Act of Congress which sought to
establish judicial courts of the United States which gave the Supreme
Court the power to issue writs of mandamus to persons, courts or persons
holding office under the authority of the United States.

The Secretary of States qualified under this. But the Supreme Court could
not issue the mandamus because the provision of the Act offended the
6
The King v. Baker et all (1266) 3 Burrows

8
Constitution of the United States which gave the Supreme Court appellate
jurisdiction in such a matter.

If an Act conflicts with the Constitution and both apply to the same case,
the Constitution must govern the case to which they both apply.
Therefore, if an enactment is in contravention of the Constitution, that
enactment is void. The Constitution is supreme to any act.

Conclusion:

Key principle: Separation of powers, judicial review

Re Akoto and 7 Others7

Statement of Facts: The appellants were arrested and detained under

the Preventive Detention Act, 1958 issued by the Governor General and
signed by the minister of interior. They brought a cased before the High
Court for writs of Habeas corpus and Subjiciendum but the High Court
refused them. They therefore appealed against the decision of the High
Court at the Supreme Court.
Baffour Osei Akoto, Senior Linguist to the Asantehene, and the 7 others
acting through their counsel, J. B. Danquah, sought the following
declarations:

That the High Court Judge acted in excess of jurisdiction without making
an order for a formal return; that by virtue of the Habeas Corpus Act,
1816, the Court is required to look into the truth of the facts leading to the
arrest and detention of the appellants; that the minister of the interior
who signed the order on behalf of the Governor General acted out of
malice; and that the grounds upon which the appellants were detained do
not fall within the meaning of the expression “Acts prejudicial to the
security of the State.”

They further prayed the Court to so declare: that the Governor General is
precluded from exercising the powers conferred on him by the Preventive
Detention Act, 1958 to make an order for the arrest and detention of the
appellants without trial- except in accordance with the Criminal Procedure
Code, 1960; that the Preventive Detention Act by virtue of which the
appellants were detained is in excess of the powers conferred on
Parliament by the Constitution of Ghana, specifically article 13(1) or it is
contrary to the solemn declaration of fundamental principles made by the
President on the assumption of office; and that the PDA not having been
7
Re Akoto and 7 Others (1961) GLR 523-535

9
passed under a declaration of emergency is in violation of the Constitution
of the Republic of Ghana.

Issues:

1. Whether or not a formal return is necessary?

2. Whether or not the Court was bound to enquire into the truth of the
facts alleged for the detention?

3. Whether or not the minister of the interior acted out of malice?

4. Whether or not the grounds upon which the appellants were

detained fall under the PDA?

5. Whether or not the Governor General was precluded from exercising

the powers conferred on him by the PDA?

6. Whether or not the PDA was enacted in excess of powers conferred

on Parliament by the Constitution of Ghana?

7. Whether or not the PDA not having been passed under a declaration
of emergency is in violation of the Constitution?

Held:

1. A formal return was unnecessary.

2. The Court could not enquire into the truth of the facts.

3. The allegation of malice could not be supported.

4. The security of the state does not only mean defence of Ghana
against foreign powers.

Reasoning: Rule 14 of Order 59 of Supreme Court Civil Procedure Rules,

1954 provided that the judge may in his discretion, upon hearing of the
application, order the release of the person restrained and the gaoler or
constable shall cause the release of the person under restraint.

The law does not make it compulsory for the judge to order a formal
return in every case. Since it is at the discretion of the judge, a formal
return was unnecessary.

Although, the Habeas Corpus Act, 1816 permitted the Court to enquire
into the truth of the facts contained in the return, there is an exception.

10
The exception is when the detention order is made for the security of the
State and the administrative discretion is vested in the person making the
order as decided in Liversidge v. Anderson.8 The PDA vests the discretion
into the person who is making the order.

It was held that the Court could not enquire into the truth of the fact
because the detention is at the discretion of the president in accordance
to the PDA supported by the Habeas Corpus Act, 1816 which exempted an
equiry which involves detention relating to the security of the State.

If a person alleges that the minister acted out of malice, the burden of
proof is upon the person who alleges. The ground upon which the
allegation was made was an advice given promptly by the minister. The
appellants even acted on that advice. Although they could not get a
release upon acting on the advice does not mean the minister acted out of
malice. The evidence could not support the allegation of bad faith. And
the court could not look into allegations of bad faith because of lack of
positive evidence in the case.

Section 2 of the PDA gives power to make a detention order not limited to
the defence of Ghana against foreign powers. But it includes - the defence
of Ghana; the relations of Ghana with other countries; the security of the
State.

The Court took the position that the counsel for the appellants placed a
narrow interpretation on the purpose of the PDA. The offences listed under
Part IV, chapter 1 of the Criminal Code, 1960 or under title 23 of the
Criminal Code, Cap 9, now repealed provides that “offences against the
safety of the State” include a large number of offences which have
nothing to do with the defence of Ghana or with foreign countries but the
Governor General may make an order under the PDA if he is satisfied that
the order is necessary.

The object of the Act is to prevent people from committing crimes which
may endanger public order and the security of the State. If the Governor
General would be justified to activate the powers under the PDA to
prevent persons whom he is satisfied there are attempts to cause
disruption in the governance of the State. Therefore, the counsel for the
appellant interpretation that security of the state means defence of Ghana
against foreign powers is a narrow one.

Conclusion

8
Liversidge v. Anderson

11
Key principles: Separation of powers, judicial review

Tuffour v. Attorney-General9

Statement of Facts: With the coming into force of the 1979

Constitution, the incumbent Chief Justice, Mr Justice Fred Kwasi Apaloo,
was purported to be nominated as Chief Justice by the President of the
Republic of Ghana in consultation with the Judicial Council. Parliament
purported to ‘vet’ the said Mr Apaloo in Parliament and subsequently
rejected his nomination.

The plaintiff, Dr Kwame Amoako Tuffour, invoked the original jurisdiction

of the Supreme Court under the article 118(1)(a) of the 1979 Constitution.
The plaintiff sought a declaration that upon the coming in force of the
1979 Constitution, Mr Apaloo was deemed to have been appointed Chief
Justice of the Republic and as such became president and member of the
Supreme Court.

He also sought a declaration that the purported nomination by the

President, the purported vetting and rejection by Parliament were each
act affected in contravention of the Constitution and were therefore all
null, void and of no effect. And he sought a declaration that Mr Apaloo
remained Chief Justice of the Republic and President of the Supreme
Court.

But the Attorney-General raised preliminary objection that the Court

lacked jurisdiction; the plaintiff did not have capacity; and the speaker of
Parliament could not be joined to the suit.

He argued that any matter coming under Article 2 of the Constitution was
to be determined by the Supreme Court properly so called and properly so
constituted but no by a Court of Appeal sitting as a Supreme Court.

He further averred that the plaintiff dis not have capacity because anyone
coming under Article 118 must have a cause of action for which a relief
could be granted. The plaintiff had no relief claimed for himself. And a
person invoking Article 118 must have a personal cause of action and in
this case, it is the incumbent Chief Justice that had a cause of action but
not he plaintiff.

On the competency of the Speaker of Parliament as the first defendant,

the Attorney-General argued that neither this Court nor any other Court
had power to call in question any proceedings of Parliament.

9
Tuffour v. Attorney-General [1980] GLR 637-667

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The counsel for the plaintiff argued however that, the nature of the
plaintiff’s writ was an action seeking an interpretation and enforcement of
certain provisions of the Constitution. The matter of the tenure of office of
the Chief Justice was of interest to every Ghanaian and so the plaintiff has
capacity to bring this action. Since the Constitution itself did not say a
person should have an interest.

He further argued that the Court had jurisdiction since it was a Court of
Appeal exercising the jurisdiction of the Supreme Court by virtue of the
provisions of Section 3 of Part III of the First Schedule to the Constitution
relating to Articles 51, 117 and 118 and that Article 2 directly referred to
Article 118.

Again, he argued that the Speaker of Parliament is properly sued because

to say the Speaker could not be brought to Court was to say that the
actions of Parliament could not be challenged.

The Court made pronouncement on the preliminary objections and the

case proceeded.

On the substantive matter, the lead counsel for the plaintiff submitted
that on the coming into force of the 1979 Constitution, a new order was
created. And for there to be continuity between the old and new orders
the framers put in place schemes by which certain office holders were
deemed to have been appointed into the equivalent offices upon the
coming into force of the Constitution.

To him, one such scheme was article 127(8) and (9). And he forcefully
argued and urged upon the Court that upon a true and proper
construction of article 127, those Justices of the Superior Court of
Judicature who held office on 23rd September 1979 retained their offices
upon their taking the oaths referred to in the Second Schedule.

He argued that Mr Justice Apaloo who was the Chief Justice of the Republic
became the Chief Justice under the 1979 Constitution. And thus, having
been pronounced Chief Justice by the Constitution itself, it was
incompetent for him to be nominated, endorsed and subjected to
parliamentary approval.

On the other hand, the Attorney-General conceded Mr Apaloo was Chief

Justice but he submitted that the Courts he presided over were different
from which the new Constitution created; in that a new Supreme Court
had been superimposed on to the hierarchy of courts.

Since there was no Supreme Court, no Justice could be holding office of a

justice of the Supreme Court. He averred that Mr Apaloo was a Chief

13
Justice of the Court of Appeal. To qualify him to be Chief Justice now, he
must be a member of the Supreme Court. And he must go through the
procedure under article 127(1).

He equally argued that in any event by Mr Apaloo subjecting himself to

the parliamentary vetting, he had waived off his immunity the
Constitution provided. This means that with his own conduct, Mr Apaloo,
his privies and those claiming interest were estopped from challenging the
consequences of that conduct.

Issues:

1. Whether or not the plaintiff has capacity to institute the instant

action?

2. Whether or not the Court has jurisdiction to entertain the instant

action?
3. Whether or not the Speaker of Parliament can be joined to the suit?

4. Whether or not the incumbent Chief Justice waived off any immunity
provided by the Constitution by his conduct?

5. What was the status of the Chief Justice before the coming into force
of the Constitution, 1979?

Held:

1. The plaintiff has capacity.

2. The court has jurisdiction to entertain the present matter.

3. The Speaker of Parliament cannot be joined in the suit.

4. The rights of the Chief Justice could not be waived off by his
conduct.

5. The Chief Justice was the Chief Justice of the Republic of Ghana.

6. The incumbent Chief Justice became the Chief Justice after the
coming into force of the Constitution, 1997.

Reasoning: The Constitution confers on every citizen of Ghana by Article

1(3) the right to resist anyone who tries to abolish the Constitution or a
part of it. One method by which the right could be enjoyed is to seek
interpretation of certain provisions of the Constitution which goes to
determine whether a person is trying to abolish the Constitution. This right

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is cast upon every citizen of Ghana. In such matters the plaintiff need not
have a personal interest but the interest of the general public.

The Court has jurisdiction to determine matters that come under Article
118 such as the present matter. This jurisdiction is given to the Court of
Appeal awaiting the properly constituted Supreme Court as enunciated in
Section 3 of Part III of the First Schedule of the 1979 Constitution.

The Court reasoned that the Courts do not and cannot inquire into how
Parliament went about its business. Article 96, 97, 99, 103, and 104 of the
Constitution, 1979 conferred on Parliament freedom of speech, of debate
and of proceedings in Parliament. And that freedom shall not be
questioned in any court or place out of Parliament. “In so far as Parliament
has acted by virtue of the powers conferred upon it by the provisions of
article 91(1), its actions within Parliament are a closed book.”

The Court was of the considered view that no person in authority can
clothe himself with a conduct which the Constitution has not mandated.
For example, a judge of the Superior Court who is dismissed by the
Judicial Council is not estopped to challenge that decision because he
earlier accepted the dismissal.

The question whether an act is repugnant to the Constitution can only be

determined by the Supreme Court. It is that court which can pronounce on
the law. The court therefore though that any act or conduct which is
contrary to the express or implied provisions of the Constitution cannot be
validated by equitable doctrines of estoppel.

With the status of Mr Justice Fred Apaloo, the court reasoned that he was
the Chief Justice of the Republic of Ghana according to his warrant of
appointment. There was nothing as Chief Justice of the Court of Appeal or
transitional Chief Justice. He was a member and President of the Superior
Court of Judicature as a composite entity but not a department of it. He
was the head of the judiciary.

The Court considered the interpretation of the phrase “shall be deemed”

contained in clause (8) of Article 127. The Court took the view that their
first duty was to give the words their true construction always preferring
the natural meaning of the words involved, but also giving the words their
appropriate construction according to the context as enunciated in
Barnard v. Gorman.10

To the Court, “shall be deemed” was a legislative device used to say a

thing is something else which it, in fact, is not. Its definition is contained in

10
Barnard v. Gorman [1941] A.C. 378

15
the case of St. Aubyn v. Attorney-General. 11 The Constitution, 1979
employed such phrase to give the first President and the first Parliament
of the third Republic their legitimacy under the 1979 Constitution as
though they were elected under the Constitution. And this was true of
public officers holding public offices.

It is this phrase that the 1979 constitution used in Article 127(8) to hold
that the Chief Justice was appointed as Chief Justice under the 1979
Constitution as if he went through the process laid down in it. This was the
intention or purpose of the framers of the constitution. Therefore, Mr
Justice Fred Kwasi Apaloo was the Chief Justice of the Republic of Ghana
under the 1979 constitution, he automatically became a member of the
Superior Court (and therefore any court) and the head of the judiciary.

Conclusion: Mr Justice Fred Kwasi Apaloo is declared the Chief Justice

under the Constitution, 1979.

Per Sowah, JSC at pp. 647 and 648: “A written Constitution such as
ours is not an ordinary Act of Parliament. It embodies the will of a people.
It also mirrors their history. Account, therefore, needs to be taken of it as
a landmark in a people's search for progress. It contains within it their
aspirations and their hopes for a better and fuller life.

The Constitution has its letter of the law. Equally, the Constitution has its
spirit. It is the fountain-head for the authority which each of the three
arms of government possesses and exercises. It is a source of strength. It
is a source of power. The executive, the legislature and the judiciary are
created by the Constitution. Their authority is derived from the
Constitution. Their sustenance is derived from the Constitution. Its
methods of alteration are specified. In our peculiar circumstances, these
methods require the involvement of the whole body politic of Ghana. Its
language, therefore, must be considered as if it were a living organism
capable of growth and development. Indeed, it is a living organism
capable of growth and development, as the body politic of Ghana itself is
capable of growth and development. A broad and liberal spirit is required
for its interpretation. It does not admit of a narrow interpretation. A
doctrinaire approach [p.648] to interpretation would not do. We must take
account of its principles and bring that consideration to bear, in bringing it
into conformity with the needs of the time.

11
St. Aubyn v. Attorney-General [1952] A.C. 15

16
And so we must take cognisance of the age-old fundamental principle of
constitutional construction which gives effect to the intent of the framers
of this organic law. Every word has an effect. Every part must be given
effect. Perhaps it would not be out of place to remember the injunction of
St. Paul contained in his First Epistle to the Corinthians, Chapter 12,
verses 14-20 (King James Version):

"For the body is not one member, but many. If the foot shall say, Because
I am not the hand, I am not of the body; is it therefore not of the body?
And if the ear shall say, Because I am not the eye, I am not of the body; is
it therefore not of the body? If the whole body were an eye, where were
the hearing ? If the whole were hearing, where were the smelling . . . ?

But now are they many members, yet but one body." (The emphasis is
ours.)

And so a construction should be avoided which leads to absurdity. And

when a particular interpretation leads to two, shall we say "inconsistent"
results, the spirit of the Constitution would demand that the more
reasonable of the two should be adhered to. We must have recourse to
the Constitution as a whole.”

At pp. 650 and 651: “This then brings us to the question of how far the
courts can question what, under our Constitution, has been done in, and
by, Parliament? There is a long line of authorities which establishes two
important principles governing the relationship that subsists or should
exist between Parliament and the courts: (a) that the courts can call in
question a decision of Parliament; but that the courts cannot seek to
extend their writs into what happens in Parliament; and (b) that the law
and custom of Parliament is a distinct body of law and, as constitutional
experts do put it, "unknown to the courts."

And therefore the courts take judicial notice of what has happened in
Parliament. The courts do not, and cannot, inquire into how Parliament
went about its business. These constitute the state of affairs, as between
the legislature and the judiciary which have been crystallized in articles
96, 97, 98, 99, 103 and 104 of the Constitution. Of particular importance
to us are the provisions of article 96 of the Constitution. They confer on
Parliament freedom of speech, of debate and of proceedings in
Parliament. The article also states categorically: "that freedom shall not
be impeached or questioned in any Court or place out of Parliament." The
courts cannot therefore inquire into the legality or illegality of what
happened in Parliament.

17
In so far as Parliament has acted by virtue of the powers conferred upon it
by the provisions of article 91 (1), its actions within Parliament are a
closed book.”

And at pp. 654- 656: “Turning to the next leg of his submission, the
Attorney-General contends that whether or not Mr. Justice, Apaloo is Chief
Justice is a private right; the plaintiff is therefore incompetent to maintain
this action. This court has, in its ruling on jurisdiction, rejected this line of
argument and has explicitly pronounced upon the interest of the plaintiff
which in our view is a constitutional right exercisable by all citizens of
Ghana by virtue of article 1 of the Constitution.

The Attorney-General then propounds this thesis that if this court should
find that Fred Kwasi Apaloo remains Chief Justice of Ghana then he by his
conduct in accepting the nomination and appearing before Parliament
must be deemed to have waived any immunity the Constitution provided
and must accept the consequences of his own conduct.

The plaintiff, says the Attorney-General, has a community of interest with

Mr. Justice Apaloo, thus every defence available to him against the
"transitional Chief Justice" is in law maintainable against the plaintiff; and
the defence is mounted upon the equitable principle of estoppel by
election. The conduct relied upon, was that the Chief Justice had in
correspondence with the President and the learned Attorney-General
asserted that upon a true interpretation of article 127 (8) and (9) he had
been appointed Chief Justice by the Constitution when he took the oath of
office before the President. On the other hand, the President upon advice,
and the Attorney-General by himself had contended that in order to
qualify Mr. Justice Apaloo as the Chief Justice, the provisions of article 127
(1) must be complied with. Very much aware of the two legal but different
interpretations, Mr. Justice Apaloo accepted nomination (which was
endorsed by the Judicial Council) and he appeared before Parliament
which did [p.655] not approve of his appointment. Conformably with his
own conduct, Mr. Justice Apaloo, his privies and those claiming in the
same interest are estopped from challenging the consequences of that
conduct.

The authorities cited range from conduct of a beneficiary accepting

benefits in a will and in the next breath reprobating it—In re Lart;
Wilkinison v. Blades [1896] 2 Ch. 788 to the doctrine of estoppel by
election. One of the classical expositions of it is in United Australia, Ltd. v.
Barclays Bank, Ltd. [1941] A.C. 1 per Lord Atkin at p. 30, H.L.:

18
“On the other hand, if a man is entitled to one of two inconsistent rights it
is fitting that when with full knowledge he has done an unequivocal act
showing that he has chosen the one he cannot afterwards pursue the
other, which after the first choice is by reason of the inconsistency no
longer his to choose. Instances are the right of a principal dealing with an
agent for an undisclosed principal to choose the liability of the agent or
the principal: the right of a landlord where forfeiture of a lease has been
committed to exact the forfeiture or to treat the former tenant as still
tenant and the like. To those cases the statement of Lord Blackburn in
Scarf v. Jardine ( (1882) 7 [Link]. 345, 360) applies 'where a man has an
option to choose one or other of two inconsistent things when once he has
made his election it cannot be retracted’.”

Before the court enters upon the interpretation of the relevant provisions
it would dispose of the arguments relating to the doctrines of estoppel
urged upon it. The very first principle that is enshrined in the Constitution
is in article 1 (2) which provides:

“(2) This 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 and of no effect.”

This is the constitutional criterion by which all acts can be tested and their
validity or otherwise established. A plaintiff under article 1 (2) of the
Constitution need not have any community of interest with any person or
authority. His community of interest is with the Constitution.

Neither the Chief Justice nor any other person in authority can clothe
himself with conduct which the Constitution has not mandated. To
illustrate this point if the Judicial Council should write a letter of dismissal
to a judge of the Superior Court of Judicature and that judge either
through misinterpretation of the Constitution or indifference signifies
acceptance of his dismissal, can it be said that he cannot subsequently
resile from his own acceptance or that having accepted his dismissal, he is
estopped by conduct or election from challenging the validity of the
dismissal? This court certainly thinks not. The question whether an act is
repugnant to the Constitution can only be determined by the Supreme
Court. It is that court which can pronounce on the law.

The decision of Mr. Justice Apaloo to appear before Parliament cannot

make any difference to the interpretation of the relevant article under
consideration unless that decision is in accordance with the postulates of
the Constitution. It is indeed the propriety of the decision which is under
challenge. This court does not think that any act or conduct which is
contrary to the express or implied provisions of the Constitution can be

19
validated by equitable doctrines of estoppel. No person can make lawful
what the Constitution says is unlawful. No person can make unlawful what
the Constitution says is lawful. The conduct must conform to due process
of law as laid down in the fundamental law of the land or it is unlawful and
invalid.

The exhibits tendered to the court do indicate that Mr. Justice Apaloo,
though modest enough to admit that on matters of interpretation the best
of legal brains can differ, protested at the legal interpretation being
proffered by the Attorney-General on the various clauses dealing with his
status in the Constitution. Before the Appointments Committee of
Parliament he again protested and the chairman said:

"The position is that this committee is acting on behalf of Parliament. We

are not a judicial body and we are not in a position to pronounce on the
legal question you are raising. In other words, as to your status. All that I
can say is that my invitation as chairman of the committee was addressed
to you on the strength of a letter addressed by the President to the
Speaker, which was referred to this committee and that letter did say that
you have been nominated for appointment to two positions-first as Chief
Justice and second as a member of the new Supreme Court. It is on the
basis of that I addressed this letter to you. I would say that the committee
is not in a position to pronounce on the legality of your status."

The court is unable to accept the submission of the Attorney-General

regarding estoppel by election and accordingly dismisses it.

Key principles: Separation of powers, judicial review

New Patriotic Party v. Attorney-General12 (31st December Case)

Statement of fact: The Government of the National Democratic

Congress on 19th December 1993 announced the observation of 31st
December 1993 as a public holiday under an existing law, the Public
Holidays Law, 1989 (PNDCL 220). This holiday was in commemoration of
the 31st December 1981 revolution which overthrew the Constitution,
1979 and the Government of Dr Hilla Limann.

This invoked the wrath and indignation of interested sections of the public
who were vehemently opposed to coups. The New Patriotic Party, a
registered political party, issued a writ invoking the original jurisdiction of

12
New Patriotic Party v. Attorney-General [1993- 94] 2 GLR 35—192

20
the Supreme Court under articles 2(1) (b) and 130 (1) of the Constitution,
1992 under rule 45 of the Supreme Court Rules, 1970 (C.I. 13).

The plaintiff sought a declaration that the public celebration of the

overthrow of the legally constituted Government of Ghana on 31
December 1981, and the financing of such celebration from public funds is
inconsistent with or in contravention of the letter and spirit of the
Constitution, 1992 and more particularly articles 3(3), (4), (5), (6) and (7),
and 35(1) and 41(b) thereof.

The plaintiff also sought an order directing the Government of Ghana to

cancel all preparations for the celebration of the overthrow of the legally
constituted Government of Ghana on 31 December 1981 aforesaid and to
refrain from carrying out any such celebration financed from public funds.

Thus, the plaintiff challenged the constitutionality of the celebration of a

coup d’ etat with the argument that it offended the letter and spirit of the
Constitution, 1992.

The defendant argued that the court cannot inquire into the legality or
constitutionality of the event of 31 December. Secondly, that the orders
sought by the plaintiff, especially in its claim (2), are in the nature of an
injunction against the President or the State, and that this court has no
jurisdiction to issue such an injunction. Thirdly, that the question whether
31 December should be celebrated or not is a political question, which this
court is not entitled to decide. This should be left to coordinate arms of
government to deal with.

The defendant, on the other hand, contended that questioning the

constitutionality of the celebration of 31 st December as a public holiday
amounted to the questioning of the constitutionality of the 31 st December
1981 coup. This kind of exercise is against section 34 of the Transitional
Provision of the Constitution, 1992.

Issues:

1. Whether or not the Court had jurisdiction to adjudicate the matter?

2. Whether or not the Court could issue an injunction against the President
or the State?

3. Whether or not the case is a political one which ought not to be

entertained by this Court?

4. Whether or not the Directive Principles of State Policy are justiciable?

21
5. Whether or not the celebration of 31 st December is inconsistent with the
Constitution, 1992?

Held:

1. The Court has jurisdiction to entertain the present matter.

2. This Court can issue injunction against the President and even
Parliament.

3. The Supreme Court ought to entertain the case.

4. The Directive Principles of State Policy are justiciable.

5. Celebration of 31st December is inconsistent with the Constitution,

1992.

Reasoning: The defendant’s argument that the action of the plaintiff

sought to question the constitutionality of the coup of 31 st December 1981
is untenable. Coup by itself is an illegal act and as such no one would
spend precious time questioning that which was an illegality and
treasonable.

The reliefs sought do not question the legality or otherwise of the 31 st

December 1981 coup. The reliefs sought to question the anniversary of
31st December with State money beyond 7 th January 1993. To this, the
Court has jurisdiction to entertain the case of the plaintiff.

Also, the Court is clothed with the power to issue injunctions against the
President and even against Parliament. Pursuant to Articles 1 and 2 of the
Constitution, 1992, once an Act offends the Constitution, it is null and
void. Should the President or the executive enforce or obey it, the court
has jurisdiction to restrain him or her.

The Supreme Court is the ultimate interpreter of the Constitution, 1992.

Issues of constitutional interpretation are justiciable only by the Supreme
Court.

The Constitution in its entirety is justiciable. If there is a portion that is not

justiciable, the Constitution would have said so. Again, article 2(1) of the
Constitution, 1992 says inconsistency with or contravention of ‘a provision
of the Constitution’; if there were exceptions, it would have been
mentioned. By virtue of the tradition (because there was none
contradicting) of Constitution, 1979 which had Chapter 4 justiciable, the
Chapter 6 of the Constitution, 1992 is also justiciable. The Directive
Principles of State Policy is therefore justiciable.

22
Celebrating 31st December will be an insidious and surreptitious way of
undermining the Constitution. Laying out money and resources to play up
the idea of coups is well-knowing to undermine the Constitution, 1992
which frowns on coups.

By precedent, coup days declared as public holidays were abolished with

successive military or civilian governments so by logic, 31 st December
should not be carried into the new dispensation after 7 th January 1993.

Those who were pardoned for the coup cannot turn back and celebrate
what for which they had been pardoned. This offends, if not the letter, the
spirit or the conscience of the Constitution, 1992. As unjustifiable as the
celebration of 31st December is, any public money spent is also
unjustifiable.

What section 34 of the Transitional Provision of the Constitution, 1992

does is to give pardon to all coup makers even before 1981 so if we are to
celebrate 31st December then all the other military coups must be
celebrated as such.

Conclusion: The celebration of 31st December as a public holiday is

inconsistent with the letter and spirit of the Constitution, 1992 and that it
should not be observed as a holiday and with State money.

Per Adade, JSC (Majority view) at pp. 60- 66: “From the reasons
given, I am satisfied that the objection to the court's jurisdiction is, with
respect, misconceived. First, the action here does not seek to question the
legality of the 31 December coup. Indeed, it is unnecessary for anyone to
mount an action for that purpose. A coup d'etat is, by definition, an illegal
act; it is treason. It is therefore needless, and a waste of everybody's time,
for anyone to ask a court to declare that an act admitted to be a coup
d'etat, is illegal.

Section 34 of the transitional provisions of the Constitution, 1992 relied on

for the argument, takes the fact of the coup and its illegality as data. It is
on the basis of this data that the immunity is conferred by that section.
The section does not seek to stop anyone from questioning its legality. No
Illegality is presumed. What the section does is to free the persons
covered by it from punishment or from paying compensation to anyone.
Even so, in a disputed case, it is for the court to determine whether the
defendant is covered by the section or whether the relief sought should or
should not be granted, having regard to the tenor of section 34 of the

23
transitional provisions of the Constitution, 1992. It is a misconception to
allege that the suit here seeks to question legality or otherwise. The
action is not harking back to 31 December 1981, and asking the court to
declare the coup illegal.

It is looking forward from 7 January 1993, and saying that whatever the
nature of the event, legal or illegal, its anniversary after 7 January 1993
should not be celebrated out of public funds and other resources. In
particular, the action here does not relate to the overthrow of the
Government of the Third Republic, nor to the abrogation of the
Constitution, 1979. Accordingly, section 34(2) of the transitional
provisions of the Constitution, 1992 is of no assistance to the defendant.

Secondly, the defendant contends that ordering that 31 December be not

observed as a public holiday, and celebrated out of public funds, is
tantamount to issuing all injunction against the President or the State, and
that this court cannot, and should not, issue such an injunction…

If I seem to have quoted these passages too extensively, it is because

without such detail we may be unable to readily see the dangers inherent
in uncritically receiving and applying foreign decisions. Assisted by this
detail, it becomes only too apparent that, given our Constitution, 1992,
and in particular articles 1 and 2 thereof, this court can issue injunctions
against the President, and even against Parliament. The fears expressed
by the United States court will appear to be groundless in our situation.
Once an Act offends the Constitution, 1992, it is null and void—as
provided by article 1. And once it is null and void, the President or the
executive can be restrained from enforcing or obeying it. Besides, by our
Constitution, 1992, the executive can be restrained by injunction from
doing any act which is not in conformity with the Constitution, 1992.
Therefore the United States decision in State of Mississippi v Johnson
(1867) 71 US 475 has no relevance whatever in the case before us. It is
only to be hoped that passages from it may not be taken out of context,
and flung at unsuspecting persons, making it appear that in issuing
injunctions or making other orders against the President, this court is
exceeding the limits of its jurisdiction: it is not. The Constitution, 1992
allows it.

In this connection, I agree with Mr Adjetey that the President's immunities

under the Constitution, 1992 are of a limited and qualified nature, and
that cases coming under article 2 of the Constitution, 1992 are, by
necessary implication, excepted and not covered by any immunities…

Thus it would seem that even in the United States the doctrine of "political
question" does not apply to the United States Supreme Court, the

24
"ultimate interpreter of the Constitution", as our Supreme Court too is the
"ultimate interpreter" of our Constitution, 1992. In any case, by articles 1
and 2 of the Constitution, 1992, that doctrine cannot have any application
to us here in Ghana. With us, issues of constitutional interpretation are
justiciable only by the Supreme Court, and not by any other court: see
particularly, article 130 of the Constitution, 1992.

Then also it must be remembered that questions of human rights tend to

have large components of political issues. Yet in our Constitution, 1992
these questions are reserved for or to the High Court in the first instance
"without prejudice to any other action that [may be] lawfully available", to
a litigant: see article 33 of the Constitution, 1992.

Similarly, chieftaincy disputes almost always involve local, and often

national, politics. But these disputes are cognisable only by "chieftaincy
tribunals" in the first instance; the Supreme Court coming in only as a
court of last resort: see chapter 22 of the Constitution, 1992.

The conclusion is inescapable, that in this country we have no doctrine of

"political question" such as exists in the United States. What we have is a
written Constitution, 1992 to be interpreted and enforced, with the result
that in Ghana, courts and tribunals much lower in the hierarchy, than the
Supreme Court may lawfully decide cases which may involve "political
questions."

In further reaction to the defendant's argument that the issue is a political

one, it must be understood that the Constitution, 1992 itself is essentially
a political document. Almost every matter of interpretation or
enforcement which may arise from it is bound to be political, or at least,
to have a political dimension…

Therefore to refuse to do a constitutional case on the ground that it is

political is to abdicate our responsibilities under the Constitution, 1992
and to breach, in particular, articles 2 and 3 thereof. Thus the invitation
to decline jurisdiction on that account is an invitation to this court to act
unconstitutionally, which invitation must itself be unconstitutional, as it
cannot but be subversive of the Constitution, 1992. I must reject that
invitation.

There is another matter which must be disposed of along the way. As

stated earlier, the plaintiff relies, inter alia, on articles 35 and 41 of the
Constitution, 1992. Both these articles come under chapter 6 of the [p.66]
Constitution, 1992 titled: "The Directive Principles of State Policy." It has
been maintained in certain quarters that these directive principles are not
justiciable, and therefore cannot avail the plaintiff.

25
I am aware that this idea of the alleged non-justiciability of the directive
principles is peddled very widely, but I have not found it convincingly
substantiated anywhere. I have the uncomfortable feeling that this may
be one of those cases where a falsehood, given sufficient currency,
manages to pass for the truth.

I do not subscribe to the view that chapter 6 of the Constitution, 1992 is

not justiciable: it is. First, the Constitution, 1992 as a whole is a justiciable
document. If any part is to be non-justiciable, the Constitution, 1992 itself
must say so. I have not seen anything in chapter 6 or in the Constitution,
1992 generally, which tells me that chapter 6 is not justiciable. The
evidence to establish the non-justiciability must be internal to the
Constitution, 1992, not otherwise, for the simple reason that if the
proffered proof is external to the Constitution, 1992, it must of necessity
conflict with it, and be void and inadmissible: we cannot add words to the
Constitution, 1992 in order to change its meaning.

Secondly, notice that article 1(2) of the Constitution, 1992 speaks of

inconsistency with "any provision of this Constitution, 1992"; and article
2(1) of the Constitution, 1992 makes reference to inconsistency with or
contravention of "a provision of this Constitution." None of these articles
expresses an exception in favour of chapter 6. Does it not follow that
chapter 6 too, along with the rest of the Constitution, 1992, is in the
contemplation of articles 1 and 2 of the Constitution, 1992?

Thirdly, the very tenor of chapter 6 of the Constitution, 1992 supports the
view that the chapter is justiciable.”

Key principle: Separation of powers

Ghana Bar Association v. Attorney-General and Abban13

Kpegah, JSC

Statement of fact: The President of the Republic of Ghana nominated Mr

Justice Isaac Kobina Abban, a justice of the Supreme Court for approval by
Parliament as the Chief Justice. This was done in anticipation of the
retirement of the then Chief Justice, Mr Justice P. E. N. K. Acher.

13
Ghana Bar Association v. Attorney-General and Another [ 1995-96] 1GLR 598-662

26
Parliament gave the approval and Mr. Abban took the oath of office before
the President as required by the Constitution, 1992.

The Plaintiff Association invoked the original jurisdiction of the Supreme

Court challenging the constitutionality of the appointment of the second
defendant by the President.

The plaintiff argued that the second defendant was not a person of high
moral character and proven integrity as required by the 1992
Constitution.

The defendant on the other hand contended that the Supreme Court
lacked jurisdiction to entertain the action of the plaintiff. Read the case of
the defendant and type it here. Write about their argument.

Issue: Whether or not the Supreme Court has jurisdiction to entertain the
present action?

Held: The Supreme Court lacks jurisdiction to entertain the matter.

Reasoning: Unlike Adade, JSC in the case of the New Patriotic Party v.
Attorney-General (31st December Case), who asserted that the doctrine of
political question does not apply under the Constitution, Kpegah, JSC
believes it applies. Political question is rooted in the doctrine of separation
of powers.

The appointment of the Chief Justice is committed to other agencies of

government- Executive and Legislature.

Therefore, inviting the Supreme Court into this matter is like going
somewhere one ought not to go. This invitation, like in the words of Chief
Justice John Marshall, does not only amount to “an absurd and excessive
extravagance” but also usurpation of the constitutional functions of both
the Executive and Legislature.

The act of the President was to nominate which he did. The act of the
Council of State was to advise which they did. The act of Parliament was
to give approval, which they did. These acts are not inconsistent with the
Constitution.

The Constitution is silent on who “a man of high moral character and

proven integrity” is. The framers have therefore left this decision to be
made by the President, Council of State and Parliament. Therefore, the
plaintiff cannot ask the court to do what another arm of government is
clothed with power to do.

27
Conclusion: The Supreme Court lacks jurisdiction to declare the
appointment of the Chief Justice as null and void.

Per Kpegah, JSC at pp. 644-646: “With great respect to my learned

brother, I think this a very simplistic way to consider a serious and deep
legal concept like the "political question." I have always been of the view
that the principle of political question is something which is inherent in the
concept of separation of powers where certain functions are committed to
a specific branch of government. In such a situation a political question
cannot evolve into a judicial question.

Adade JSC refused the invitation to decline jurisdiction in the case of New
Patriotic Party v Attorney-General (supra) for he was of the view that the
invitation was being extended to the court, on the grounds that, in his own
words, "the case is a political one." As I have pointed out elsewhere in this
ruling, "a political question" is different from "a political case." The former
concept has a strong jurisprudential connotation and is rooted in the
doctrine of separation of powers.

“To demonstrate that the principle of non-justiciable political question is

the product of the concept of the separation of powers, I will refer to some
judicial opinions. In the celebrated case of Baker v Carr (supra) which was
relied on by him, Justice Brennan said at 210 thus: "The non-justiciability
of a political question is primarily a function of the separation of powers."
And in the same Baker case (supra) at 242, Justice Douglas in a separate
opinion stated the problems of political question as "involving the
distribution of power between the Court, the Congress, and the Chief
Executive."

“The political question principle is a tool for the maintenance of

governmental order. Therefore, to make such an emphatic statement as
my brother Adade JSC did in New Patriotic Party v Attorney-General
(supra), when considering a written constitution, the underlying
jurisprudential consideration of which is the separation of powers is, in my
view, too far-fetched and of doubtful validity. It is however legitimate to
say that the mere fact that a suit seeks the protection of a political right
does not mean that it presents "a political question" and therefore non-
justiciable.

“Justice Brennan in his contribution in the Baker case (supra) brings out
the distinction, unlike my brother in New Patriotic Party v Attorney-
General (supra). Justice Brennan said at 217:

28
"The doctrine of which we treat is one of ‘political questions', not one of
'political cases.' The courts cannot reject as 'no law suit' a bona fide
controversy as to whether some action denominated ‘political' exceeds
constitutional authority." (The emphasis is mine.)

“The very essence of the guarantee of fundamental human rights consists

in the right of the individual to seek redress from the courts and claim
protection of the law whenever he receives or perceives an injury to his
rights. The courts have never denied redress, on grounds of non-
justiciability, to anybody who asserts that his rights have been breached.
This has always been a traditional subject of judicial intervention.

“I do not, therefore, think it right to assert that the doctrine of political

question does not apply under our Constitution, 1992 because questions
of human rights tend to have "large components of political issues" and
yet they are justiciable. The term "political question" as we have seen is
not used in its popular sense but in a technical legal sense; in a
philosophical or jurisprudential sense. The assertion that the doctrine does
not apply under our Constitution, 1992 without any attempt at a definition
is unfortunate.

“The Ghanaian Constitution, 1992 has been influenced not only by our
past experiences but also by thinkers like Montesquieu, in the allocation of
state power to the three branches of government—the executive, the
legislature and the judiciary. The adoption of the concept of separation of
powers by the framers of our Constitution, 1992 aims not only at the
prevention of the exercise of arbitrary power with its attendant tyranny,
but also aims at the promotion of efficiency and avoidance of friction or
conflict between the various arms of government. See the case of Tuffuor
v Attorney-General (supra) where the Court of Appeal sitting as the
Supreme Court declined jurisdiction to examine proceedings in Parliament
and consequently struck out the [p.646] Speaker of Parliament as the first
defendant. And in the case of Youngstown Sheet & Tube Co v Sawyer (The
Steel Seizure Case), 343 US 579 at 635 (1952), Justice Jackson said of the
concept of the separation of powers:

"While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a
workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity."

“There are local judicial statements against the view of Adade JSC
expressed in New Patriotic Party v Attorney-General (supra). The
celebrated case of Tuffuor v Attorney-General (supra) offers the first

29
example. In this case, one of the reliefs the plaintiff was claiming was a
declaration that:

"[T]he purported nomination by the President of the Republic of Fred

Kwasi Apaloo for approval by Parliament of his appointment as Chief
Justice of the Republic and member of the Supreme Court and his
purported vetting and rejection by Parliament as such on 16 August 1980
were each acts effected in contravention of the Constitution and laws of
the Republic and were therefore all null and void and of no effect."

“The Speaker of Parliament was made the first defendant in this suit. The
court considered the impropriety of joining the Speaker of Parliament and
decided to strike out the Speaker as a defendant. This is what the court
said at 650:

"This then brings us to the question of how far the courts can question
what, under our Constitution, has been done in, and by, Parliament? There
is a long line of authorities which establishes two important principles
governing the relationship that subsists or should exist between
Parliament and the courts:

(a) that the courts can call in question a decision of Parliament; but that
the courts cannot seek to extend their writs into what happens in
Parliament; and

(b) that the law and custom of Parliament is a distinct body of law and, as
constitutional experts do not put it, ‘unknown to the courts."'

At pp. 650-653: “My Lords, having identified the characteristics, I think it

will be appropriate now to confront the ultimate question; whether the
criteria we have identified as to what constitutes a non-justiciable
"political question" brings the instant case under the umbrella of the said
doctrine. The natural beginning, as was pointed out in the Baker case
[p.651] (supra), is to note whether any of the common characteristics
which we have been able to identify are present.

“My Lords, every element is present in the case before us. To the first
question, whether the appointment of the Chief Justice is constitutionally
committed to other agencies of government, I will answer in the
affirmative. “By the provisions of article 144(1) of the Constitution, 1992
this function is specifically committed to both the executive and the
legislature; and to accept the invitation which is being extended to us and
exercise jurisdiction in the matter, we shall be behaving like an unruly dog
which has refused to be chained to its own kennel but wanders to places
where it ought not to be. Any attempt by the Supreme Court to claim a
power to be able to declare null and void the appointment of the Chief

30
Justice made by the President, in consultation with the Council of State
and with the approval of Parliament as provided in the Constitution, 1992
could not only correctly or justly be characterised, in the words of Chief
Justice Marshall, as "an absurd and excessive extravagance" but also as
usurpation of the constitutional functions of both the executive and the
legislature. As a fall out, we shall be deliberately courting confrontation
not only with the executive, but also with Parliament whose proceedings
we have no power to scrutinise.

“If the President, in consultation with the Council of State and with the
approval of Parliament makes an appointment in compliance with the
Constitution, 1992, his authority, in the words of Justice Jackson, "is at its
maximum." Because in such circumstances, his authority includes all that
he possess under the Constitution, 1992 plus all that Parliament, the
people's direct representatives, has. When the President gets the support
of Parliament in the discharge of a constitutional duty, he can in such
circumstance be described not only as close to personifying the sovereign
people of Ghana, but also doing their will.

“If the President's act is held to be unconstitutional in these

circumstances, then it means that the Government of Ghana, in the words
of Gunther, "as an undivided whole lacks power." For, as was pointed out
by Professor Edward S Corwin, quoted by Professor H J Abraham in his
book, The Judicial Process (6th ed) at p 358 the principle of,

"a political question relates to the possession of political power, [p.652] of

sovereignty, of government, the determination of which is vested in
Congress and the President, and whose decisions are binding on the
Courts."

“The appointment of the Chief Justice is vested in the President, the

Council of State and Parliament, ipso facto the determination of who is a
person "of high moral character and proven integrity." Their decision in
this regard is binding on the courts. It is important that we show decent
respect for the wisdom, integrity and patriotism of the President and
Parliament. It was Justice Felix Frankfurter who wrote "even the most
rampant worshipper of judicial supremacy admits that wisdom and justice
are not the test of constitutionality."

“In assuming jurisdiction to adjudicate in the matter, we shall certainly be

entering upon policy determinations for which judicially manageable
standards are not available. How do we probe what factors influenced the
President, the Council of State and Parliament in nominating, advising and
approving the second defendant as the Chief Justice of Ghana? By what

31
judicial standard shall we be ascertaining the role of these agencies of
government in the appointment of the second defendant?

“The Constitution, 1992 is silent on who "a man of high moral character
and proven integrity” is and the factors to be taken into account in finding
such a person for appointment as the Chief Justice of Ghana. The framers
of the Constitution, 1992 have deliberately left these matters to the good
sense of the President, the Council of State, and Parliament which
personifies the sovereign people of Ghana, being their direct
representatives. Can we substitute our notions of "a man of high moral
character and proven integrity" for theirs without appearing to be, or
actually, appointing the Chief Justice instead of the accredited organs?
Shall we not be granting this court the power to veto the appointment? I
do not think the framers of our Constitution, 1992 intend to anoint and
enthrone the judiciary. The political question principle is one basic virtue
to emanate from the concept of separation of powers. This court must
apply it in an endeavour to find its proper place within the constitutional
structure.

“It has already been pointed out that there is no means for effective
judicial relief. The Supreme Court is of course not a platform for political
debate, nor can we turn ourselves into parliamentarians. In the Baker case
(supra) at 267 Justice Frankfurter in his minority opinion [p.653] has these
words of caution: "The Court's authority—possessed of neither the purse
nor the sword—ultimately rests on sustained public confidence in its moral
sanction. Such feeling must be nourished by the Court's complete
detachment, in fact and in appearance, from political entanglements and
by abstention from injecting itself into the clash of political forces in
political settlements." (The emphasis is mine.)”

Key principle: Separation of powers

Professor Stephen Kwaku Asare v. Attorney-General (CRC/ CRIC

Case)14

Statement of Fact: In 2010, the President of Ghana, invoking the

powers in him pursuant to article 289 of the Constitution, 1992 set up a
ten member Constitution Review Commission under the Constitution
Review Commission of Inquiry Instrument, 2010 (C.I. 64). The Commission

14
Professor Stephen Kwaku Asare v. Attorney-General Writ Number J1/15/2015 October 14, 2015

32
was to ascertain from the people of Ghana their views on the strengths
and weakness of the operation of the Constitution, 1992.

The Commission was to make recommendations to the government for

consideration for possible amendments to the Constitution, 1992. In 2012,
the government issued a white paper on the report and accepted almost
all the recommendations.

The Government then set up another five member Constitution Review

and Implementation Committee (CRIC). The Committee was tasked to
implement in strict compliance with Chapter 25 of the Constitution, 1992
the recommendation that the Government has accepted.

The Plaintiff found the number of actions taken by the CRIC to be

inconsistent with Parliament’s role as the Legislative authority exclusively
vested with power to effect constitutional amendments. He then invoked
the original jurisdiction of the Supreme Court in the present case to seek a
declaration, inter alia, that CI 64 is void and of no effect as it contravenes
the letter and spirit of Article 289(1) of the Constitution, 1992.

He contended that the President does not have the power to appoint a
commission of inquiry to start a constitutional amendment process. And
that amount to usurpation of the power of Parliament.

He further argued that it was Parliament that has the exclusive power to
amend the Constitution, 1992. Write the argument of the defendant here

Issues:

1. Whether or not the President can appoint a commission of inquiry in

relation to constitutional amendment?

2. Whether or not Parliament’s power to amend the Constitution is plenary

and exclusive?

Held:

1. C.I. 64 is not unconstitutional and does not amount to the usurpation of

the power of Parliament.

2. It cannot be justified for Parliament to have been reposed in them pre-

legislative amendment activity to the total exclusion of any other person
or organization when it is not expressly stated.

33
Reasoning: The mandate of the CRC is of extreme public interest.
Although the use of Commission of Inquiry for an exercise such as the
amending of the Constitution is not an appropriate tool to be used. But its
impropriety must not be equated to unconstitutionality.

Again, since it is not expressly written that Parliament has the exclusive
mandate to do the pre-legislative activities that lead to a constitutional
amendment, the power of Parliament has not been usurped.

The President is clothed with discretionary powers under article 278(1) so

he has not breeched or violated any provision of the Constitution or other
legal requirements proven in the exercise of his lawful authority (unless
extreme or exceptional cases)

Additionally, the 1992 Constitution, unlike the Kenyan 2010 Constitution,

does not mention who should have the authority to initiate the pre-
legislative amendment activity. Conventions in this area should be
allowed to be formed. The works of CRC and CRIC are not
unconstitutional.

Conclusion: The setting up of the CRC and CRIC passes the constitutional
test.

Key principle: Separation of powers, judicial review

Professor Stephen Kwaku Asare v. Attorney-General (Dual

Citizenship)15

Statement of Fact: The Constitution of the Republic of Ghana

(Amendment) Act, 1996 (Act 527) which received Presidential assent in
1996 sought to amend the Constitution, 1992. Section 1 of Act 527
repealed Article 8 of the 1992 Constitution by inserting a clause that gave
room for dual citizenship. But it went ahead to put restrictions on such
dual citizens.

The plaintiff invoked the original jurisdiction of the Supreme Court and
contended that the inserted Article 8(2) was unconstitutional. He further
argued that if Article 8(2) was not held to be void and unconstitutional, it
would have the effect of amending Articles 15(1), 17 and 55(10) of the
1992 Constitution without following the prescribed procedure.

15
Professor Stephen Kwaku Asare v. Attorney-General

34
He submitted that Parliament, not following the procedure to amend an
entrenched provision, had exceeded its authority in enacting Article 8(2)
and therefore the provision was dead at birth.

Also, it was the case of the plaintiff that Parliament had no express or
implied right by the Citizenship clauses of the Constitution to extinguish,
interfere, curtail or diminish the rights of citizens.

Pursuant to Act 527, the Citizenship Act, 2000 (Act 591) was enacted. The
plaintiff argued that Section 16(2) of the Citizenship Act, 2000 (Act 591)
which sought to place restrictions on dual citizens offended Articles 15
and 17 of the 1992 Constitution and therefore was not only void but also
of no effect.

The defendant, on the other hand, argued that under the Ghana
Nationality Act, 1971 (Act 371) and under the original Article 8 of the 1992
Constitution, dual nationality with a few minor exception was proscribed.
But the inserted Article 8 opened up the space of dual citizenship.

Issues:

1. Whether or not the inserted article 8 is unconstitutional?

2. Whether or not section 16(2) of Act 591 is unconstitutional?

Held:

1. The inserted article 8 is not unconstitutional.

2. Section 16(2) (m) of Act 591 is unconstitutional.

Reasoning: Article 8(2) rather reserves for dual citizens certain rights
which were not available to them with the old provision contained in
article 8(1) which is repealed. It has indeed created dual citizenship which
hitherto was sole citizenship. So the amendment, thus Act 527 rather
expands the fundamental rights of a Ghanaian who is a dual citizen.

The law cannot treat all human beings in Ghana equally- this will rather
lead to inequality at the end. Therefore, “discrimination on the ground of
social status is not unlawful simpliciter. It is unlawful if it is not for a lawful
and legitimate purpose.”

The Supreme Court held that the framers of the inserted Article 8(2)
sought to remedy the mischief of disloyalty and infidelity, for instance, of
a Colonel in the Ghana Army who is also a Nigerian and has to fight on
behalf of Ghana or a High Commissioner to the UK, who is also a UK
citizen, which the defendant argued of.

35
The purpose Parliament to discriminate between sole citizenship and dual
citizenship relating to restriction of the latter is a justifiable discrimination.

The issue of the political rights of dual citizens in taking up public office as
contended by the plaintiff is not absolute. The Court is of the considered
view that disqualification of dual citizens from holding offices of
Ambassador or High Commission, Secretary to Cabinet, Chief of Defence
Staff, IGP, etc, does not constitute such denudation of their political rights
as to infringe their right pursuant to article 55 (10).

The Court also decided that section 16(2) (m) of Act 591 is
unconstitutional because Parliament cannot delegate the powers which
had been delegated to it to the Minister. This provision offends article 8(2)
(g) of the 1992 Constitution.

Conclusion: The inserted article 8(2) is not unconstitutional. But section

16 (2) (m) of Act 591 is not constitutional.

JUDICIAL REVIEW

The concept touches on the authority and independence of the judiciary.

The judiciary asserts its authority. The judiciary is able to render an act of
Parliament or an executive action unconstitutional. The Constitution, 1992
gives exclusive original jurisdiction to render an act of Parliament or
executive action as unconstitutional.

Kumado16 identifies two forms of judicial review. To him judicial review is

the power to declare an enactment of Parliament as unconstitutional.
Also, judicial review is the power to place strict interpretation on an
enactment of Parliament.

Judicial review gives the Supreme Court the power to declare as

unconstitutional some legislative acts and executive actions. It also helps
the concept of checks and balances. It is the Supreme Court that is ceased
with the power to exercise the power of judicial review. Again, it has the
power to settle disputes between the arms of government. The following
cases [also see Tuffour v. Attorney General, NPP v. Attorney-General (31 st
December Case), and Professor Stephen Kwaku Asare v. Attorney-General
(CRC/CRIC Case)] outline this principle.

Key principle: judicial review

16
Kumado, Judicial Review

36
Ware v. Ofori-Atta & Others17

Statement of Facts: The Statute Law (Amendment) (No 2) Bill was

introduced in the National Assembly. Four days later, the second reading
was done and eleven days later, the Governor-General gave it the Royal
Assent.

The Act, inter alia, gave the Minister power to authorise any person to
take possession of a stool property when a chief is deposed.

But Section 35 of the Ghana (Constitution) Order-in-Council provided that

any bill which related to chieftaincy must be referred to the House of
Chiefs of the affected Region and all Houses of Chiefs if it affected the
whole country. And the Bill must not be read a second time until after
three months after the first reading.

At the time when the Statute Law (Amendment) (No 2) Act, 1957 was
passed, the House of Chiefs had not been established.

Subsequently, the Ejisu Stool Property Order, 1958 was made. It sought to
authorise the fourth defendant to take possession of the stool property
pertaining to the Ejisu Stool.

The plaintiff, Gyasehene of Ejisu filed the present motion at the Divisional
Court, Kumasi. It was contended on his behalf that the Gyasehene was a
chief and the Statute Law Act directly affected him. Further, it was
contended that the custody of stool property after the deposition of a
chief was the traditional function or privilege of another chief and that the
Act directly affected those functions.

He also contended that the Statute Law did not go through the procedure
laid down in Section 35 of the Ghana (Constitution) Order-in-Council,
1957.

But it was argued on behalf of the defendants that it was accidental that
the Act affected chiefs. Its objective was to promote peace, order and
good government.

Their counsel contended further that the functions of the Gyasehene could
be decoupled from the taking of possession of stool property. He went on
that when there is a deposition of a chief; the stool property may go to a
person whether or not he was a chief.

Issues:

17
Ware v. Ofori-Atta & Others [1959] GLR 181-187

37
 1. Whether or not the Act directly affected the traditional function or
privileges of a chief?

2. Whether or not Section 35 of the Ghana (Constitution) Order-in-

Council was complied with?

Held:

1. The Act directly affected the traditional function or privileges of a

chief.

2. Section 35 of the Ghana (Constitution) Order-in-Council was not

complied with.

Reasoning: The Act directly affected the functions or privileges of a

chief. And that is the only necessary thing that the plaintiff needed to
establish in order to put the Act in the ambit of the Constitution.

Since it was established that the Gyasehene was the traditional custodian
of the stool property whether or not the chief was around and the fact that
the Gyasehene was a chief, the Act passed related to chieftaincy.

Since the Act related to chieftaincy, Section 35 of the Ghana (Constitution)

Order-in-Council, 1957 must have been complied with in the enactment of
the Statute Law (Amendment) (No 2) Act, 1957. In the absence of that,
the Act is null and void.

The order that emanated from the Act is equally invalid.

Conclusion: The Act affected chieftaincy. The constitutional provision

was not complied with; therefore, the Act is invalid. And the order is
equally invalid.

Per Murphy, J at p. 183: “In this judgment the Ghana (Constitution)

Order-in-Council, 1957, the Statute Law (Amendment) (No. 2) Act, 1957,
and the Ejisu Stool Property Order, 1958, will be referred to as the
Constitution, the Act and the Order respectively.

By Section 31(5) of the Constitution the Supreme Court is vested with

original jurisdiction in cases in which the validity of a law is called in
question. The main ground upon which the validity of the Act is attacked
is that it was passed into law without the requirements of section 35 of
the Constitution having been complied with.

“It has not been argued on behalf of the defendants that the non-
existence of Houses of Chiefs could excuse non-compliance with section

38
35 of the Constitution, if the Bill was one affecting the traditional functions
or privileges of a Chief. In the absence of any express proviso modifying
the terms of section 35, it is clear that no such legislation could be passed
until there was a House of Chiefs to which it could be referred. In any
event, the section also provided for a lapse of three months between the
introduction of the Bill and its second reading, and this requirement was
not complied with in the case of the Bill then under consideration.

“The question to be answered, then, is whether the Act is one affecting

the traditional functions or privileges of a Chief. In its preamble the Act is
described as "An Act to impose additional penalties upon failure to deliver
up Stool or Skin properties upon the deposition of a Chief." An
examination of the Act itself shows this to be only a partial description of
its purpose. (His lordship referred to those sections of the Act set out in
the Headnote and preceded)

“A comparison of these provisions with previous legislation, to which I

shall refer later, shows that the Act goes farther than merely imposing
additional penalties, as indicated in the preamble, and provides a new
procedure for the custody of Stool property after the deposition of a
Chief. Under section 4, the Minister may authorise any person to take
possession of the property; under section (5(1), he may direct that the
property be held by a local government council; and under section 6, the
property may be disposed of in such manner as he may direct. On behalf
of the plaintiff it is contended that the custody of Stool property after the
deposition of a Chief is one of the traditional functions or privileges of
another Chief, and that the Act directly affects these functions or
privileges.”

At pp. 186 and 187: “I do not find the comparison with the powers of
federal and state (or provincial) legislatures very exact. In Ghana there is
only one Legislature, and all laws passed by it are presumed to be for
peace, order and good government, in accordance with section 31 (1) of
the Constitution. Obviously the fact that a law is so passed cannot alone
exclude it from the ambit of section 35. Since, if this were so, section 35
would not have applied to any law. The only criterion, in my view, was
whether a Bill directly affected the traditional functions and privileges of a
Chief. If it did so, the procedure laid down in section 35 had to be
followed, whatever other purpose the proposed legislation might have…

“For the reasons I have given I find that the Act does directly affect the
traditional functions of a Chief, that is to say (as appears from this action)
the Gyasehene of Ejisu as the customary custodian of Stool property.
Since the procedure laid down in section 35 of the Constitution was not

39
followed before the Act was passed, I must therefore hold that the Act is
invalid. It follows that the Order, which was made under the Act, is also
invalid.”

Key principles: judicial review, separation of powers

Lardan and Another v. Attorney-General and Others18

Smith, J

Statement of fact: A deportation order was issued against two persons.

They then went to court to set aside the order on the basis that they were
Ghanaians.

In the course of the case, Parliament passed the Deportation (Othman

Lardan and Amadu Baba) Act, 1957. This Act, inter alia, stated that the
two men were to be deported and that any Court proceedings challenging
their deportation must come to an end.

The plaintiffs argued that the Act did not affect them because they were in
court asserting or proving their nationality as Ghanaians but not to
challenge the deportation order.

They also challenged the constitutionality of the Act to the effect that it
was discriminatory and that it offended the Ghana (Constitution) Order in
Council.

They also contended that Parliament had to enact laws that will promote
peace, order and good government.

The Attorney-General argued that Parliament has plenary powers to pass

legislation under section 31 (1), and that it is not for the court to inquire
into such legislation and that the validity of any Act can only be
challenged in a court of law on the ground that it infringes section 31 (2)
or (3).

Issues:

1. Whether or not the case was affected by the Deportation (Othman

Lardan and Amadu Baba) Act, 1957?

18
Lardan v. Attorney-General and Others (N02) (1957) 3 WLR, High Court Asante Division

40
 2. Whether or not the Act was discriminatory and unconstitutional?

3. Whether or not the Court had power to question the plenary powers
of Parliament to enact laws?

Held:

1. The Act affected the present case.

2. The Act was not discriminatory and therefore not unconstitutional.

3. The power of Parliament to enact laws cannot be questioned by the

Court.

Reasoning: The plaintiffs were proving their Ghanaian citizenship

but the main objective was to say that they could not be deported. On
that basis, their action in Court is to challenge the deportation order made
in respect of the two persons. And the action in Court must come to an
end since the Act had determined the matter already.

On the face of the Act, there was nothing discriminatory because the Act
did not say they were been deported because of their tribes. Therefore, it
did not offend the Ghana (Constitution) Order in Council and it could not
be unconstitutional.

Additionally, Parliament had complete power to legislate. The provision

that says the laws of parliament must be to promote peace, order and
good government leaves Parliament with a vast space to enact laws
without naming specific area within which the law must be.

The power of Parliament to make laws cannot be questioned by any court

unless provision of the Act contravened a provision of the Constitution.

Conclusion: The court cannot question Parliament when it does it lawful

duties.

Per Smith, J: “I have considered all the other authorities cited to me and
they illustrate the same point that 'the words "peace, order and good
government" with no reservation attached, no restriction as to specific
subjects and without qualification, give to any country 'the same plenary
powers as are possessed by the Imperial Parliament in England. It was
conceded that this Act of Deportation and that was a momentary
indulgence in fantasy, if passed by the Imperial Government would be a
matter for Parliament only and the English courts would be powerless to

41
interfere. If, as I hold, the words" peace, order and good government,"
unqualified in any way, are plenary powers possessed by Parliament and
no less than the powers possessed by the Imperial Parliament, then it
follows just as it would in England that the court here has no power to
inquire into such an Act.

“I consider, therefore, that any law which comes within the ambit of the
Ghana (Constitution) Order in Council, s. 31, and which does not
contravene any other provision in the constitution can only be challenged
in a court of 1aw if it violates or purports to violate subsection (2) or (3) of
the section.

“On that view, the Act deporting these two persons, not being in
contravention of any expressed limitation in the Ghana (Constitution)
Order in Council, 1957, is a matter for Parliament.

“It is the same position in the case of South Africa, where the Constitution
provides 'that Parliament shall have" full powers to make laws for the
peace, order and good government of the Union." It has been held in the
case of Ndlwana v. Hofmeyer N. O. (11)" Parliament's will, therefore, as
expressed in an Act of Parliament, cannot now in this country, as it cannot
in England, be questioned by court of law whose function it is to enforce
that will, not to question it."

“In conclusion, there are two passages I will quote. One is from May's
Parliamentary Practice, and the other from Lord Wright's speech in
Liversidge v. Anderson (12), which I think are appropriate. The former is
that:

"The Constitution has assigned no limits to the authority of Parliament

over all matters and questions within its jurisdiction. A law may be unjust
and contrary to the principles of sound government. But Parliament is not
controlled in its discretion, and when it errs its errors can be corrected by
itself."

“The second quotation, from Liversidge v. Anderson (12), is: "All the
courts today, and not least this House, are as jealous as they have ever
been in upholding the liberty of the subject .... In the constitution of this
country there are no guaranteed or absolute rights. The safeguard of
British liberty is in the good sense of the people and in the system of the
representative and responsible government which has been evolved."

“In England it is not open to the court to invalidate a law on the ground
that it seeks to deprive a person of his life or liberty contrary to the court's
notions of justice and, so far as the Ghana (Constitution) Order in Council,
s. 31 (1), is concerned, that is the position in which I find myself.

42
“For 'these reasons I hold that it is not for the court to inquire into this
particular Act and the pending actions before the Kumasi Divisional Court
are determined under the provisions of section 4 (2) of the Act.”

Key principle: Judicial Review

Balogun and Others v. Edusei and Another19

Statement of Fact:

Wahabi Balogun and three other men against whom deportation orders
had been made were arrested on 18th October 1958. Since the 19th was a
Sunday, they filed a writ of Habeas Corpus on Monday, 20 th October.

Nevertheless, their Counsel duly wrote on Sunday to inform the

respondents, the Minister of Interior, Mr Krobo Edusei, and the Acting
Commissioner of Police, Mr Madjitey about the writ which was going to be
filed.

The ex parte application was heard on 20 th October and a notice of

hearing fixed for 30th October was ordered to be served on the
respondents. But the first respondent went ahead and deported the
applicants to Nigeria before he was served with the writ even though he
had fore knowledge of it.

The case which came up on 30th October had to be struck out because
there was no alternative in law.

The first respondent in the known of the writ made special arrangement of
Air Liban service to deport the applicants when he found that the ordinary
aeroplane service to Nigeria was going to delay.

The Solicitor-General contended on behalf of the respondents that the

Minister of Interior had a duty to carry out the Governor-General’s
deportation order as soon as possible unless he received a Court order or
instructions from the Governor-General to the contrary.

Issues:

1. Whether or not actual service of a Court order is the only order

properly so called?

2. Whether or not the respondents were liable to contempt of Court?

19
Balogun and Others v. Edusei and Another [1958] 3WLR

43
 3. Whether or not certiorari was an appropriate method of trial of the
issue of Ghanaian citizenship at the position the case had reached?

Held:

1. Actual service of a Court order is not the only order properly so

called: a true knowledge of it is also as valid as the order itself.

2. The respondents were liable to contempt

3. Certiorari is inappropriate.

Reasoning:

Since the first respondent was duly informed of the writ, it could be
inferred from his actions that he wanted to carry out the deportation
before formal service of the motion could be effected.

Actual service is not necessary before there can be attachment and

committal for contempt. The only action left for the applicant was the
motion filed in Court.

The respondents were liable to contempt because the act of deportation

summarily brought the proceedings in Court to an end and this amounted
to bringing the administration of law into disrepute.

Relying on the general principle stated in Oswald on Contempt, Bernardo

v. Ford20 that a mere apprehension, not necessarily a formal order is
enough to exonerate the action of person cited for contempt.

It was the principle in United Telephone Company v. Dale 21 that if a person

has had notice of an order, not the proper order, he ought to know that
the plaintiff intended to enforce it.

In applying this principle to the present fact, since the first respondent
knew and admitted to have had fore knowledge of the motion but went
ahead to deport the four persons amounted to interference in the
administration of the law and with the parties litigant (Chief witnesses)
who could have given evidence. In this regard the respondents were liable
to contempt.

Relying on the principle in R. v. Fulham, Hammersmith and Kensington

Rent Tribunal, Ex parte Zereck22, certiorari is inappropriate when there is a
question of fact.

20
Bernardo v. Ford
21
United Telephone Company v. Dale
22
R. v. Fulham, Hammersmith and Kensington Rent Tribunal, Ex parte Zereck

44
Conclusion:

The finding of contempt stands.

Balogun and Others v. Minister of Interior23

Ollennu, J

Statement of Fact: See Balogun and Others v. Edusei and Another

[1958] 3WLR (supra)

Issues:

1. Whether or not the plaintiffs were Ghanaian citizens?

2. Whether or not the deportation orders were valid?

Held:

1. The four persons were Ghanaian citizens.

2. The deportation orders were null and void.

Reasoning:

From the evidence given in Court on behalf of the four persons, it was
known that they were all Ghanaian citizens. Three of them were
registered voters and the first respondent had himself contested an
election as member to the Accra Municipal Assembly.

The Court relied on Section 3(1) of the Deportation Act (No. 14 of 1957)
which provided that no citizens of Ghana shall be liable to deportation
under the Act. Therefore, the orders for the deportation of the four
persons made on 17th October 1958 were null and void.

Conclusion:

The plaintiffs were Ghanaian citizens and the orders deporting them were
null and void.

Key principle: judicial review

23
Balogun and Others v. Minister of Interior [1959] GLR 452-456

45
Kwakye v. Attorney-General24
Apaloo, CJ

Statement of Fact:

On 21st September 1979, the Armed Forces Revolutionary Council (AFRC)

announced on radio that 68 persons had been tried and sentences in
absentia. On the next day, it was published in the national press. it was
announced that the trial was done by the Special Court established under
the AFRC (Special Court) Decree, 1979 (AFRCD 3).

The plaintiff was listed as one of the persons to tried and sentenced in
absentia. In accordance with rule 46 of the Supreme Court, the plaintiff
invoked the original jurisdiction of the Court for a declaration that the
plaintiff was never tried, convicted or sentenced by any Special Court.

And he also argued that the purported sentence of 25 years imprisonment

was and infringement of his fundamental human rights which is
inconsistent with Chapter 6 of the Constitution, 1979, therefore, void and
of no effect.

The Attorney-General did not file his case but contended that the case
was not properly brought since he was not notified one month before the
suit pursuant to the State Proceedings Act (Amendment) Decree, 1969
(NLCD 352).

He further averred that on the strength of Sections 15 and 16 of the

Transitional Provisions of the Constitution, 1979, the action was
misconceived and must be struck out.

Issues:

1. Whether or not the action was irregularly brought?

2. Whether or not Section 15(2) and (3) of the Transitional Provisions

of the 1979 Constitution enjoined the Court to decline jurisdiction?

Held:

1. The action was properly brought before the Court.

2. The Court is unable to determine the matter.

Reasoning:

Article 2(1) (b) provides that a person who finds an act of omission of a
person to be inconsistent with or in contravention of any provision may

24
Kwakye v. Attorney-General [1981] GLR 9

46
bring an action in the Supreme Court for such declaration. In this vein,
time is of the essence.

If he waits until one month of notice to the Attorney-General, the object or

purpose of the Article 2(1) (b) would be defeated. Consequently, when a
person is coming to the Supreme Court under Article 2(1) (b), the
provision of one month notice to the Attorney-General contained in the
State Proceedings Act (Amendment) Decree, 1969 (NLCD 352) is
ineffective and is voided by Article 1(2).

However, the Court is unable to determine the substantive matter since

the defendant who has the possession of facts to support or deny the
contention of the plaintiff, but who had not submitted same to the Court.

Conclusion:

Defendant was ordered to file a statement of his case within seven days.

Key principle: judicial review

Mensah v. Attorney-General25
Aikins JSC

Statement of Facts:

When the first President of the Fourth Republic was re-elected and sworn
in as president on 7 January 1997, he sought to retain some of his
ministers and deputy ministers who were previously approved by the First
Parliament of the Fourth Republic. This time, those retained appointees
were going to do their work without prior approval by the Second
Parliament of the Fourth Republic.

The Minority Leader of Parliament filed the instant case at the Supreme
Court and contended that both old and new minister nominees had to be
prior approved by the Second Parliament. He further contended that
without that, nobody could act as minister. It was his case that vetting
was the consideration for the prior approval by Parliament.

But the Attorney-General contended the declaration sought by the

plaintiff. He argued to the effect that a minister or deputy minister’s term
did not end with that of the President.

Issues:

25
Mensah V. Attorney-General [1997-98] 1 GLR 227

47
 1. Whether or not the term of ministers and deputy ministers
appointed by the First President of the Fourth Republic ended on 6th
January 1997?

2. Whether or not prior approval of the Second Parliament of the

Fourth Republic is required before a minister or deputy minister
appointed by the First President of the Fourth Republic can legally
act or hold himself out as such?

3. Whether or not the necessary incidents of prior approval are the

consideration and vetting of each nominee for ministerial
appointment by the Second Parliament of the Fourth Parliament?

4. Whether or not the requirement of prior parliamentary approval

extends to all persons, whether new or retained as ministers or
deputy ministers?

5. Whether or not Parliament can manipulate its own procedure and

refuse to grant prior approval in a manner in which the elements of
consideration and vetting of each nominee are excluded?

Held:

1. The term of office of a minister or a deputy minister comes to an

end with the term of office of the President and that Parliament.

2. Prior approval by the Second Parliament of the Fourth Republic is

needed before anyone can act as minister or deputy minister.

3. Consideration and vetting are not the necessary incidents of prior

approval.

4. The requirement of prior approval by Parliament extends to both

new and retained ministers and deputy ministers.

5. Parliament cannot amend its procedure to offend the constitution.

Reasoning:

Parliament has a mandate to provide prior approval of minister and

deputy minister nominees- whether new or retained. The elements of the
prior approval are consideration and vetting. For that reason the action of
the Appointment Committee of Parliament recommending to the house of
not subjecting retained ministers and deputy minister nominees to a
process of prior approval on the basis that they had been so approved by
a previous Parliament and the adoption of same resolution and the

48
subsequent communication to the President of such a resolution is
unconstitutional.

In other words, Parliament cannot shed off its responsibility of considering

and vetting both new and retained ministers or deputy minsters as part of
the mandatory process of prior approval as stipulated in the Constitution,
1992. Such attempt which has happened in the present case is
unconstitutional, null and void, and of no effect.

Conclusion:

The Court finds judgement for the plaintiff.

Comment: If parliament obeys the Constitution and the regulation that

govern its activities, all acts done in the house cannot be questioned by
any court (Tuffour v. Attorney – General) 26. But if Parliament refuses to
obey its own rules and this disobedience offends the 1992 Constitution,
the Supreme Court under Articles 2 and 130 can declare such an action as
unconstitutional (Mensah v. Attorney-General) 27.

RULE OF LAW
This is the doctrine that says man should be governed by law. That is, the
situation where laws are allowed to govern the activities of mankind.
There are five components of this doctrine.

Supremacy of the law is seen in Article 1(2) of the 1992 Constitution (See
the 31st December supra and Mensima v Attorney-General Cases).

Equality before the law provided by Article 17(1), (2), and (3) of the 1992
Constitution (See Nartey v. Gati).

Predictability of the law: where laws do not take retrospective effect seen
in Article 19(5).

Certainty of the law is that laws should be accessible to everyone. Article

106 of the 1992 Constitution provides that laws enacted by Parliament
must be gazetted. Also, laws enacted must not be ambiguous and not
contradictory.

And the last component is the respect for human rights provided for by
Chapter 5 of the 1992 Constitution.

26
Tuffour v. Attorney-General
27
Mensah V. Attorney-General [1997-98] 1 GLR 227

49
Key principle: rule of law, citizenship

Shalabi & Another v. Attorney-General28

Hayfron-Benjamin, J

Statement of Fact:

The plaintiffs were partners in Messrs Shalabi Transprot Service in Accra.

Their parents were Lebanese, but they were born in the Gold Coast and
they were British subjects. They had British passports.

With the coming into force of the Ghana Nationality Decree, 1967 (NLCD
191), they renounced their British nationality and applied and obtained
Ghanaian passports.

The Ghanaian Business (Promotion) Act, 1970 (Act 334) was passed with
the aim of promoting Ghanaian indigenous business by restricting aliens.

Also, the Ghanaian Nationality Amendment Decree, 1969 (NLCD 333) was
introduced to amend NLCD 191.

The plaintiffs sought and obtained information from the authorities to the
effect that they were not Ghanaians and neither were they British citizens:
they were Lebanase.

They filed a writ at the High Court for a declaration that they were
Ghanaians and as such they could do their transport business without any
hindrance.

The defendant contended that the NLCD 333 sought to correct an obvious
mistake made by NLCD 191. It was the case of the defendant that the
NLCD 333 required that the plaintiff should have had one of the parents
also born in the Gold Coast before 6 th March 1957. And that the Ghana
Nationality and Citizenship Act, 1957 (No. 1) required a person born in
Ghana to have one parent born also in Ghana.

Issues:

1. Whether or not the amendment of NLCD 191 by NLCD 333 does

affect or is intended to affect those who had already acquired
citizenship under the Decree No. 191?

2. Whether or not citizenship once conferred can be withdrawn by

processes other than those specifically mentioned at the time of the
acquisition of such citizenship?
28
Shalabi & Another v. Attorney-General (1972)

50
Held:

1. The NLCD 333 cannot affect those who had already acquired
citizenship under a different law.

2. Citizenship once conferred can only be lost by the processes

specifically stated in the instrument conferring that citizenship.

Reasoning:

When the NLCD 191 was introduced, the clause that a person needs one
of his parents to have been born in the Gold Coast was taken off until in
1969 when the NLCD 333 was introduced to “correct an obvious mistake”.

The Court was of the view that the NLCD 333 did not contain evidence to
that effect. It could not have been admitted that it sought to correct a
mistake after two full years. In that, the NLCD 191 was used in a decided
case when NLCD 333 had been passed yet the National Liberation Council
did not find if fit to appeal that decision.

Since the NLCD 333 did not have a statement to the effect that any
person who had Ghanaian citizenship under NLCD 191 had been revoked,
it was untenable for the defendant to argue that the NLCD 191 would
leave people to be citizens when they were not wanted to be so.

The Court also took the position that the citizenship was not any ordinary
thing that can be lost by ambiguity. The NLCD 333 cannot replace NLCD
191 as if the latter never existed.

Once a citizen had acquired his citizenship under a legislation, that same
legislation mush show how such conferred citizenship can be lost. This is
not the work of a different legislation.

Conclusion:

The NLCD 333 could not revoke the citizenship of plaintiffs when they
acquired their citizenship under NLCD 191.

Key principle: rule of law, judicial review

Sallah v. Attorney-General29
Statement of fact:

29
Sallah v. Attorney-General

51
The plaintiff, Sallah, was the manager of GNTC from 16 th October 1967
until his termination on 21 February 1970 by the Presidential Commission
acting in pursuance of the 1969 Constitution, Schedule I, S. 9(1).

He filed a case in the Supreme Court challenging his termination. He

contended that his office did not fall within the category of public offices
to which Section 9(1) applied. His Counsel argued on his behalf that the
use of ‘established’ in the Constitution should be given its ordinary
meaning listed in the dictionary.

Further, he contended that establishing a new legal order was not the
same as establishing new offices. And he explained that there was a
distinction between ‘establish’ and ‘continue in being’.

On the other hand, the respondent argued that the National Liberation
Council Proclamation abrogated the 1960 Constitution and thus brought
all laws and offices that took their power from the Constitution to an end.

For the effect of the Proclamation, all laws and offices existing now came
to take their powers from the new legal order.

He further argued that the word ‘establish’ should be given the technical
meaning and ‘any office establishes’ should mean any office that derived
its power from the NLC.

Issues:

1. Whether or not the President can be sued?

2. Whether or not the effect of NLC Proclamation abrogated all existing

laws?

3. Whether or not the word ‘establish’ should be given its ordinary

meaning or a technical meaning?

Held:

1. The official acts of the President can be sued but he cannot be made
a defendant in the proceedings.

2. The Proclamation did not repeal, revoke or abrogate the 1960

Constitution; it merely suspended it.

52
 3. Where the words of a statute are themselves precise and
unambiguous, they must be expounded in their ordinary and natural
sense.

Reasoning:

By virtue of Article 36(7) and (8), the President’s personal civil and
criminal liability is suspended while he holds office but the liability can be
prosecuted within three years after ceasing to hold office.

His official acts are liable but he must be represented by the Attorney-
General but not himself personally.

The NLC made it clear at the beginning that it reserved the right to alter
all existing laws by decree. The existing laws such as the Constitution,
1960 were only suspended.

Again, the 1960 Constitution recognised certain laws such as the Common
Law and Customary Law which did not take their validity from it. Laws
could exist without taking its source from the NLC Proclamation.

The word ‘establish’ should be given its dictionary meaning which means
to found, create or bring into being. Since the office to which the plaintiff
held was created by an Executive Instrument in 1961 (EI 203) and the
existence of such post continued in a subsequent instrument (LI 395), the
plaintiff fell outside the purview of Section 9(1).

Section 9(1) means persons whose offices were set up by either the NLC
Proclamation, a decree or under the authority of the NLC.

Conclusion:

The Court entered judgement for the plaintiff.

Key principle: rule of law (equality before the law), human rights

Nartey v. Gati30

Date- Bah

Statement of Facts:
30
Nartey v. Gati [2010] SC GLR 745

53
The plaintiff, a lawyer, brought an action at the Circuit Court against the
defendant to recover his legal fees of 15% of an estimated amount of
Ghc15,000. He obtained a default judgement.

The defendant subsequently brought an action at the Circuit Court to the

effect that the plaintiff did not comply with Section 30 of the Legal
Profession Act, 1960 (Act 32). The said section provides the time frame
after which a lawyer may bring an action in Court to recover his legal fees.

The plaintiff raised a matter of constitutional interpretation and

enforcement. Consequently, the matter was referred to the Supreme
Court for determination. And the plaintiff therefore argued that Section 30
of Act 32 was discrimination to his human rights and as such was
inconsistent with Article 17(1) of the Constitution, 1992.

Issues:

1. Whether or not Article 17(1) makes all persons equal before the
law?

2. Whether or not Section 30 of Act 32 is inconsistent with Article 17(1)

of the 1992 Constitution?

Held:

1. A strict interpretation of Article 17(1) to mean all people are equal

before the law will result in inequality.

2. Section 30 of Act 32 is not inconsistent with Article 17(1) of the

1992 Constitution.

Reasoning:

The Court was of the opinion that Article 17(1) read in consonance with
the entire Article does not mean that every person in Ghana must have
exactly the same rights as all other persons in the jurisdiction.

The equality referred to in Article 17(1) is about freedom from unlawful

discrimination and that there may be grounds for lawful discrimination
provided by Article 17. It was averred that “if the law were to treat all
human beings rigidly equally, it would in fact result in unequal outcomes.
Rigid equal treatment would often result in unfair and equal results. It is

54
widely recognized that equality before the law requires equal treatment of
those similarly placed, implying different treatment in respect of those
with different characteristics”.

The Court explained that to achieve fairness and equality of opportunity

the law must be able to differentiate between unequals and accord them
the differentiated treatment.

Also, Act 32 seeks to regulate the legal profession and Section 30

specifically seeks to protect clients of lawyers from surprises. It does not
prohibit a lawyer from suing to recover his legal fees but only to give a
thirty day prior notice to his client before any court action is commenced.

Conclusion:

A strict interpretation of all persons being equal before the law will lead to
unfairness. Also, to the extent that Section 30 of Act 32 only provides how
a lawyer can commence a suit against his client, it is not inconsistent with
Article 17(1) of the 1992 Constitution.

Comments: The Court in relying on the dictum of Anin JA (as he then

was) in the locus classicus in Republic v. Special Tribunal, Ex Parte
Akosah31 at p. 604 (in relation to the 1979 Constitution) set the conditions
for the issue of enforcement or interpretation.

a. Where the words of the provision are imprecise or unclear or

ambiguous.

b. Where rival meanings have been placed by the litigants on the

words of any provision of the constitution.

c. Where the meanings of two or more provisions are conflicting and

an issue of which one should prevail arises.

d. Where on the face of the provision, there is a conflict between the

operation of particular institutions set up under the constitution and
thereby raising a problem of enforcement and of interpretation.

Where these conditions are absent, the High Court has jurisdiction to
enforce the Constitution

Key principle: rule of law (Supremacy of the law)

31
Republic v. Special Tribunal, Ex Parte Akosah [1980] GLR 592

55
Mensima v. Attorney-General

3. NATURAL JUSTICE
The doctrine of natural justice dictates procedural fairness. The doctrine
consists of some rules that are inherent in human-kind. And it does not
only apply to judicial proceedings but also quasi-judicial proceedings.

The doctrine of natural justice is made up of two rules or principles. There

are Audi Alteram Partem principle and Nemo Judex In Causa Sua principle.

Audi Alteram Partem Principle

This principle means every party should be given the opportunity to
present his case in full. The Constitution, 1992 gives backing to this rule.
Article 19 provides for the right to fair hearing and before a competent
court. The story of Adam and Eve and the eating of the forbidden fruit is
narrated to illustrate the inception of the rule of natural justice.

There are three issues to address under the principle of audi alteram
partem. The issue of notice has it that in criminal proceedings, an accused
is told of what he is been charged with. He is then given the chance to
state his side of the case (See Articles 14 and 19 of the 1992
Constitution). Also in civil proceedings, a party commences an action by
writ of summons, inter alia, which is served on the other party (See Ex
Parte Bannerman,32 Boye-Doe v. Teye and Awuni v. WAEC 33). But the
exception is the Ex Parte service.

The second issue is to give the other party the opportunity to rebut or
challenge the evidence or claim from the other side (See L’Air Liquide
Ghana Ltd. v. Anin and others34 and Darkwa v. The Republic35).

The third issue is a right to disclosure or recovery. The parties are

required to exchange evidence. The rules of court set out these.

Nemo Judex In Causa Sua Principle

This principle means that a man must not be a judge in his own cause.
The rule of nemo judex in causa sua is also known as the rule against
judicial bias. To Lord Hewart in R v. Sussex Magistrates 36 asserted that
justice should not only be done but is should manifestly be seen to be
done. A judicator or judge should be unbiased or disinterested in the case.
The rule requires that the process is fair to all parties. (See L’Air Liquide

32
Ex Parte Bannerman
33
Awuni v. WAEC
34
See L’Air Liquide Ghana Ltd. v. Anin and others
35
Darkwa v. The Republic
36
R. Sussex Magistrate: Ex Parte McCarthy

56
Ghana Ltd. v. Anin and Others supra, Kwami v. Quanor 37, and Attorney-
General v. Sallah38).

However, the nemo judex in causa sua principle has three exceptions.
First, there is statutory exception. This means that where a person is
enjoined by statute to perform an action, it does not matter if the
performance of same will offend the natural justice principle (See Akufo-
Addo and others v. Quarshie-Idun and others 39 and Tsatsu Tsikata v. CJ
and Attorney-General40).

The second exception is necessity. This is when it becomes necessary for

the rule of natural justice to be set aside for the wheel of justice to grind
than for it to come to a halt (See Bilson v. Apaloo 41).

The third exception is waiver where a party decides to waive his right to
natural justice (See R. Sussex Magistrate: Ex Parte McCarthy 42).

Key principle: natural justice, judicial review

Republic v. State Fishing Corporation Commission of Enquiry (Chairman); Ex

Parte Bannerman43
Statement of Facts:

The National Liberation Council appointed by an executive instrument, a

commission of inquiry to inquire into the management and other matters
relating to the State Fishing Corporation. The terms of reference of the
commission were set out in the Commission of Enquiry (State Fishing
Corporation) Instrument, 1967 (E.I 6).

During the sittings of the commission, the assistant marketing officer of

the corporation made an allegation of a very serious nature against Mr V.
O. Bannerman, the applicant. It was alleged that Mr Bannerman and one
Mr Quaye stole 1,100 cartons of fish from the cold store of the
Corporation.

Mr Bannerman was not invited by the Commission to state his side of the
allegations levelled against him. Consequently, by a letter signed by the

37
Kwami v. Quanor
38
Attorney-General v. Sallah
39
Akufo-Addo and others v. Quarshie-Idun and others
40
Tsatsu Tsikata v. CJ and Attorney-General
41
Bilson v. Apaloo
42
R. Sussex Magistrate: Ex Parte McCarthy
43
Republic v. State Fishing Corporation Commission of Enquiry (Chairman); Ex Parte Bannerman [1967] GLR
536-547

57
chairman of the commission Mr Bannerman was purported to have been
suspended. A copy of the letter was sent to the Secretary of the National
Liberation Council and others. The NLC subsequently wrote a letter
purporting to suspend the applicant and three other officers of the
corporation.

Mr Bannerman therefore initiated the present action at the High Court for
writs of certiorari to quash the decision of the commission to suspend him.
And he prayed the Court for prohibition to prevent the chairman of the
commission from suspending, dismissing, interdicting or in any such
manner interfering with his performance of duties as distribution
marketing manager of the State Fishing Corporation.

The applicant contended that the Commission of Enquiry (State Fishing

Corporation) nor its chairman did not have jurisdiction to suspend,
dismiss, interdict or interfere with his service contract.

He further contended that the commission breached the rules of natural

justice in that he was not summoned to appear before it to justify his
continued employment by the corporation.

Although the chief state attorney, counsel for the respondent quite frankly
conceded the grounds for the reliefs sought, he contended that the letter
signed by the chairman was not a speaking order since it did not contain
any reason for the suspension.

He further argued that the letter was meaningless, valueless and of no

effect: since it was not written on the basis of the proceedings of the
commission. He therefore referred the Court to the letter that was rather
written by the NLC.

Issues:

1. Whether or not the Commission of Enquiry (State Fishing

Corporation) or its chairman was conferred with jurisdiction to
suspend the applicant?

2. Whether or not the rule of natural justice was breached?

3. Whether or not the NLC had power to suspend the applicant?

Held:

1. The Commission of Enquiry (State Fishing Corporation) or its

chairman was not conferred with jurisdiction to suspend the
applicant.
58
 2. The rule of natural justice- audi alteram partem- was breached.

3. The NLC lacked the power to suspend the applicant.

Reasoning:

The proposition that the commission or its chairman did something of an

administrative nature was hard to be accepted by the Court. There was no
doubt that the commission had been exercising judicial functions. The
administrative duties of the commission or its chairman were stated in
Section 6 of the Commission of Enquiry Act, 1964 (Act 250). They included
enforcement of attendance of witnesses, production of documents and
taking of evidence on commission or by request.

The Court found it difficult to see how the chairman, in writing the
suspension letter could be said to be acting administratively when his
administrative functions did not include suspension of persons that
worked in the corporation. The Court therefore took the view that the only
motivation for the writing of the suspension letter was the allegation
made against the applicant.

As a matter of fact the commission or its chairman in suspending the

applicant acted in excess of their jurisdiction having regard to the terms of
reference in E.I 6. The purported decision to suspend the applicant was
ultra vires the commission or its chairman.

If even the chairman was acting administratively in suspending the

applicant, it was incumbent upon him to adhere to the content of natural
justice expounded by Lord Selborne in Spackman v. Plumstead District
Board of Works.44

The trial Judge quoted Lord Selborne to the extent that “…He is not a
judge in the proper sense of the word; but he must give the parties an
opportunity of being heard before him and stating their case and their
view…There would be no decision within the meaning of the statute if
there were anything of that sort done contrary to the essence of justice.”

Further, the Court asserted that the principle of natural justice is usually
referred to as audi alteram partem rule and that “even God himself did
not pass sentence upon Adam, before he was called upon to make his
defence.”

In Wood v. Woad,45 the audi alteram partem rule was explained as “…not
confined to the conduct of strictly legal tribunals, but is applicable to

44
Spackman v. Plumstead District Board of Works (1885) 10 App. Cas 229
45
Wood v. Woad (1874) L.R. 9 Exch. 190

59
every tribunal or body of persons invested with authority to adjudicate
upon matters involving civil consequences to individuals.”

Therefore, since the activities of the commission involved judicial function

and there was non-compliance with the principles of natural justice,
certiorari can issue to quash the decision contained in the suspension
letter.

Although the State Fishing Corporation Instrument, 1965 (L.I. 397) gave
the NLC power to suspend, transfer or dismiss any of the employees of the
corporation; the condition precedent was for the NLC to assume control
and management of the corporation. Once there was no evidence to show
that the NLC assumed such control, its letter to affirm the suspension of
the applicant is ultra vires the NLC which acted in excess of its power.

Conclusion:

The commission of Enquiry (State Fishing Corporation) and its chairman

acted ultra vires and therefore the suspension letter is quashed. The
Commission or its chairman is prohibited from suspending, dismissing,
interdicting or any way interfering with the applicant in the performance
of his duties.

The NLC acted ultra vires its powers.

Key principle: natural justice

Boye-Doe and Another v. Teye and Another46

Baddoo JA

Statement of Facts:

On 10th March 1988, the plaintiff-respondent issued a writ against

defendant- appellant praying for damages for trespass, declaration of title
to the land in dispute, an order of perpetual injunction against the
defendant, his agents, servant and assign, and costs.

One other person filled to join the case as a co-defendant and another
filled to join as co-plaintiff.

46
Boye-Doe and Another V. Teye and Another [1997-98] I GLR 997

60
The case travelled as expected until 16th June 1992, when the counsel for
the defendant discontinued and so the case was adjourned to 20th July
1992, for the defendant to secure the service of another counsel.

The new counsel filed a motion staying proceedings pending a petition

before the Chief Justice, which alleged that the plaintiff was servicing the
car of the trial Judge and that he was boasting he had won the case in
advance.

The trial Judge dismissed the motion and the case went on. At the next
adjourned date, the defendant and his counsel did not show up based on
a letter written by the counsel to the registrar of the court. He informed
the registrar that he would not be available during that year’s legal
vacation so the case could commerce after the vocation. The case
proceeded following direction from the Chief Justice.

On 18th August 1992, when the case was called the defendant and his
counsel were absent but the defendant’s representative was there. The
second defendant – appellant was also represented. The case proceeded.

When it was time for written addresses, the defendant-appellant did not
file any but the plaintiff – respondent filed his. On 14th September 1994,
the judgement was read by Asare Korang J because the trial Judge had
retired. The judgement upheld the claims of the plaintiff-respondents.
Costs were awarded against the defendant – appellants.

Dissatisfied with the judgement, the defendant–appellants filed the

current appeal praying the Court that the judgement was wrong in law
and offended the rules of natural justice. They argued to the effect that
they were not given a hearing. They further contended that the case could
not be heard during the vocation, inter alia.

The plaintiff-respondents, on the other hand, argued that the other parties
were given a hearing.

Issues:

1. Whether or not the principle of natural justice has been breached to

cause the ruling of the trial Court null and void?

Held:

1. The principle of natural justice was not breached

Reasoning:

The audi alteram partem rule does require a party to be notified

adequately. If he refuses to show up without reasonable cause the case
61
must go on without him. The defendant-appellants participated until it was
time for them to enter into the witness box. It is a fact that one of the
defendant-appellants was represented by another party at times. And it
was only the lawyer of the defendant-appellants who did not show up and
also refused to submit his written address. Therefore, the defendant-
appellants were never denied the opportunity to be heard.

According to Gyambiby v. Gyambiby47 and Omaboe v. Kwame,48 where

notice has been given to a party and he is represented in Court except his
lawyer because of a legal vacation, the case could proceed without the
counsel.

Conclusion:

The rules of natural justice were not breached; therefore, the appeal is
dismissed.

Key principle: natural justice

L’Air Liquide Ghana Ltd v. Anin and Others49

Ofori-Boateng, JA

Statement of Fact:

Some three persons were caught with three pieces of carbide and they
mentioned the three plaintiffs-respondents as those who sold the carbide
to them.

The respondents were arrested and kept overnight by the police on the
orders of the defendants- appellants (technical and depot managers). The
next day, the respondents were discharged with n charges preferred
against them. The appellants were advised to take a departmental action
rather than a criminal action through the Courts.

A disciplinary inquiry was conducted by the appellants with the technical

manager as chairman. The deport manager and a member each of the
local union of the TUC and the Committee for the Defence for the
Revolution to were members of the disciplinary committee to investigate
the alleged stealing charge.

Following the inquiry, the respondents were summarily dismissed.

47
Gyambiby v. Gyambiby [1961]
48
Omaboe v. Kwame (1978)
49
L’Air Liquide Ghana Ltd. v. Anin and Others [1991] 1 GLR 460-466

62
Aggrieved, they brought an action at the Circuit Court, Accra for unlawful
dismissal on the ground that the inquiry violated the principles of natural
justice because they were not given a hearing.

The court gave judgement for the plaintiffs- respondents. The defendants-
appellant appealed in the present case at the Court of Appeal, Accra.

The appellant canvassed that there was evidence the respondents were
identified by the three persons as the culprits who sold the carbide to
them. And there was also evidence that the respondents confessed before
witnesses during an inquiry that they were compelled to steal the carbide
because of financial difficulties and apologised for their offence.

On the other hand, the respondents countered the arguments of the

appellant that there was no proper identification parade at which anybody
identified them as culprits.

Also, during the inquiry proceedings the appellants did not call a single
witness to substantiate the allegation that there was an identification
parade.

Again, the three persons to whom the carbide was supposed to have been
sold were also not called to give evidence for the appellants. They
therefore contended that the so called inquiry was just a farce that
violated the principles of natural justice.

Issues:

1. Whether or not the investigation conducted into the charges against

the respondents by the appellant can be sustained in law following
the principle of natural justice: that a man may not be condemned
unheard (audi alteram patem)?

2. Whether or not the principle of a man must not be a judge of his

own cause violated (nemo judex in causa sua)?

Held:

1. They were not given a proper hearing; hence the audi alteram
patem principle was violated.

2. The principle of nemo judex in causa sua was violated.

Reasoning:

When a committee of inquiry is to investigate the commission of a crime

and the first question the suspect is asked is why he committed the crime,
the perpetration of which is being investigated, it is obvious that the

63
committee is biased and whatever hearing the suspect gets is a sham
hearing and not a fair one.

For a committee member to threaten the suspects with incarceration by

the police unless he heard them give the sort of answers he expected to
hear disqualifies the inquirer as a proper person for the inquiry. He was
not a person to give fair hearing to the suspects.

Furthermore, the suspects were not given the chance to confront their
accusers. No one given such a hearing can seriously be said to have been
heard.

On the leg of nemo judex in causa sua, the men who investigated and
caused the arrest of the respondents were the depot manager and the
technical manager. The technical manager served as the chairman of the
committee of inquiry and the depot manager served as a member. The
TUC and the Committee for the Defence of the Revolution representatives
were also employees under the managers.

In the City of London v. Wood, 50 Holt CJ said that any act of Parliament
that made a person both a party and a judge is a void Act of Parliament.

Also, in R v. Sussex Justices: Ex parte McCarthy, 51 it was held that the

solicitor could not be a judge in the affair of his own client. This principle
gives the famous statement that “Justice should not only be done but
should manifestly and undoubtedly be seen to be done.”

In Cooper v. Wilson,52 a police Sergeant was dismissed by the Chief

Constable of Liverpool. He appealed to the Watch Committee. But the
Chief Constable himself was present with the committee when they
decided the appeal. The Court granted a declaration that the presence of
the Chief Constable was fatal to the validity of the committee’s decision.

The same principle is seen in R v. Hendon Rural District Council; Ex parte

Charley.53

In effect, the technical manager and the depot manager were therefore
judges in the case they were accusers. The inquiry was unlawful and the
dismissal was also unlawful.

Conclusion:

50
City of London v. Wood (1701) 88 ER 1592
51
R v. Sussex Justices: Ex parte McCarthy (1924) 1 KB 256
52
Cooper v. Wilson [1937] 2 KB 309, CA
53
R v. Hendon Rural District Council; Ex parte Charley [1933] 2 KB 696

64
Since the two principles of natural justice were violated, the appeal is
dismissed.

Key principle: natural justice

Kwami v. Quaynor54
Van Lare, Ag. CJ

Statement of Fact:

The plaintiff- appellant, relying upon the oral grant to him of a certain
piece of land by the Osu Stool in 1933 and confirmed by a Deed of
Conveyance in 1957, sued the defendant-respondent for a declaration of
title, damages for trespass and an injunction in respect of the said land.

The defendant-respondent also counter-claimed that per Osu customary

law his father had granted the piece of land (containing the disputed area)
to him. The land in dispute was an outskirt land. It was found that the Osu
Mantse did not have the right to grant to anyone an outskirt land.

The plaintiff-appellant lost he case at the High Court. However, the trial
Judge went farther to consider the effect of the two previous decided case
cited before him on behalf of the appellant, whereas those two cased
were notin pari materia with the one before him. The Judge himself had
appeared in both cases as counsel for a party claiming title upon a grant
by the Alata Quarter Stool. The trial Judge made criticism of the decisions
or ratio decidendi in the two cases.

In present appeal, the Counsel of the plaintiff-respondent contended that

since the trial Judge had been part of the cases he relied on, he was liable
to legal bias. Dr Danquah, Counsel of the appellant further contended that
since the trial Judge was a counsel of four cased in which he represented
the Alata Quarter Stool, or parties, he was not competent to have tried the
case.

The trial Judge’s foreknowledge of the facts could not be said to be not
‘something reasonably likely to bias or influence’ his mind and his
judgement and was therefore voidable and must be set aside. He further
contended that since the Court should not only do justice, it should appear
to have been done and failure on the part of the trial Judge to follow this
principle nullified his judgement.

Issues:

54
Kwame v. Quaynor [1959] GLR 269

65
 1. Whether or not the trial judge was bias for which reason his
judgement should be void?

Held:

1. His foreknowledge could not be a bias and as such the judgement

was valid.

Reasoning:

The allegation of bias should not be based on possibility or a mere

suspicion. There must be substantial grounds on which it could be
concluded reasonably that the Judge or Justices might well have had a
bias in reaching his or their conclusions in the particular case.

According to the principle in Cottle v. Cottle 55, it helps justice

administration if the Judges have knowledge of local conditions and the
history of the people who come before them and that can form no
foundation for a suggestions of bias.

In the present case, the trial Judge (Ollennu J) could not have been held to
have had any foreknowledge of the facts in the particular case which
could be said to be something reasonably likely to bias or influence hi
mind and the judgement he delivered could not be void.

Conclusion:

The appeal is dismissed.

Key principle: natural justice

Attorney-General v. Sallah56
Statement of Fact:

Following the decision in Sallah v. Attorney-General, 57 which Sallah got

judgement in his favour, the Attorney-General instituted the present
action and contended that of Apaloo, Siriboe, Sowah, Anin and Acher, JJSC
who sat on the case, Apaloo and Sowah were disqualified to have sat on
the case.

55
Cottle v. Cottle (1939) 2 All ER
56
Attorney-General v. Sallah [1970]
57
Sallah v. Attorney-General [1970]

66
He further contended that Apaloo and the plaintiff, now respondent were
intimate or bossom friends. He also averred that Sallah used to reserve
goods for Apaloo and they had been seen eating together at a restaurant.

On the part of Sowah, he contended that his half-sister’s husband was

affected in the whole matter of termination of appointment. And Sowah
spoke to a minister about his brother-in-law’s job and that meant he had
other interest in the matter before him.

Issue:

1. Whether or not the test of real likelihood of bias is passed?

Held:

1. The real likelihood of bias test was not passed.

Reasoning:

Per Amissah JA, the standard of proof in matters such as this which
involves a Judge interpreting the Constitution should not be based on
hear-say. It is in no doubt that the respondent and the Judge were friends.
But it would be bad language to say they were intimate or bosom friends.

This case could have been proved beyond reasonable doubt or at least by
real likelihood test of bias. The Attorney-General in the end failed to
substantiate his claims.

The Court remarked that in Ghana, almost everyone knows everyone so if

the argument of the Attorney-General is advanced; it may be that no
Judge would be competent to sit on any case.

Conclusion:

The appeal is dismissed.

Key principle: exception to the natural justice principle (the rule of

necessity)

Bilson v. Apaloo58
Statement of facts:

Following the decision in Tuffour v. Attorney-General 59 by the Court of

Appeal sitting as the Supreme Court, the plaintiff filed this writ at the

58
Bilson v. Apaloo [1981] GLR 15-24
59
Tuffour v. Attorney-General

67
Supreme Court against the Chief Justice, Apaloo. He sought to have the
decision in Tuffour v. Attorney-General be quashed.

In the circumstances, Bilson raised a preliminary objection to the effect

that there were two Justices on the bench hearing the present case who
were on the bench that decided the very case he was seeking to set aside.

He contended that that was contrary to the principle of natural justice,

specifically, nemo judex in cause sua.

What did the defendant say?

Issue:

1. Whether or not the sitting of the two Justices amounted to a breach

of the rule of natural justice?

Held:

1. The rule of natural justice has not be breached.

Reasoning:

The court held that the nemo judex in causa sua principle has three
exceptions. It can be set aside through enactment (statutory exception).
Also, a party can always waive off his objection. And the doctrine of
necessity is another exception.

In the present case, there are only seven Justices at the Supreme Court.
One of whom is Justice Apaloo who was sued in the case. And of the six
others, if the two were removed from the case, there would be four only.
The minimum number of adjudicators to sit on a case at the Supreme
Court is five. If the two are not included, the wheel of justice would grind
to a halt.

And it was a common law principle that it would be expedient for an

‘unqualified’ Judge to sit than for justice delivery to come to a halt. Hence,
the doctrine of necessity demanded that the two justices be included for
justice delivery.

Conclusion:

The objection is denied.

Key principle: Statutory exception to the natural justice principle

68
Akufo – Addo and Others v. Quarshie- Idun and Others60
Statement of Fact:

Three plaintiffs, each of whom was a lawyer, sued the Chief Justice, the
Judicial Secretary and the General Legal Council. They complained that
through the conduct of the defendants, that is, by the issue of certain
circulars to judicial officers, they had been denied their right to audience
as Barristers in the Courts.

The Judge of the High Court granted an interim injunction against the first
two defendants, restraining them both in their personal and official
capacity from baring the plaintiffs from holding themselves as Barristers.

The defendants filed for this appeal at the court of Appeal and prayed the
Court to set aside the ruling of (Anterkyi) the High Court.

At the appeal, the plaintiffs, now respondents raised objection of the Chief
Justice who was a party to the appeal yet had the power to empanel the
bench of the Court of Appeal. They respondents contended that that
amounted to an offence to the foundation of the principle of natural
justice; namely, a man should not be a judge in his own cause (nemo
judex in causa sua).

Issue:

1. Whether or not the Chief Justice’s power to empanel the bench of

the Court of Appeal offended the principal of natural justice?

2.

Held:

1. The Chief Justice alone is enjoined by law to empanel the bench of

the Court

Reasoning:

It was the function of the Chief Justice to constitute the bench of this
Court. He performed that as part of his administration duties as long as he
remains in office and he is in the country and he is not ill. No one is
entitled by law to perform his duties for him.

Where a statute clearly enjoins a person to perform an act, he has to do it

even if its performance is incompatible with the strict rules of natural
justice.

60
Akufo – Addo and Others v. Quarshie- Idun and Others (1968) GLR 667-688

69
The counsel of the respondents sought to rely on the 17 th Century English
case of Day v. Savage61 in which Hobert C.J. pronounced that where there
is a conflict between a statute and the principles of natural justice, natural
justice should prevail. It is the natural justice that must yield. It is quite
important to note that that position was never followed by the English
Courts.

However, the Court held that where the clear terms of a statute conflict
with natural justice, it is the natural justice that must yield. In the English
case of Dimes v. Grand Junction Canal Proprietors, 62 it was held that the
Lord Chancellor could exercise the discretion vested in him
notwithstanding the principles of natural justice.

Conclusion:

The Chief Justice is enjoined by law to exercise his discretion and he is

mandated to do so notwithstanding the principle of natural justice.

Key principle: Statutory exception to the natural justice principle

Tsatsu Tsikata v. Chief Justice & Attorney-General63 (Empanelling of the Bench by

CJ Case)
Statement of Fact:

In February 2002, the Supreme Court gave a 5-4 ruling in favour of the
plaintiff. The Attorney-General who is a defendant in the present case filed
a Motion for Review. Before the motion could be heard, the plaintiff filed
this writ to invoke the original jurisdiction of the Supreme Court.

Add the argument of the plaintiff and the defendants.

Issues:

1. Whether or not the Chief Justice can empanel the Bench when his is
a party to the suit?
61
Day v. Savage (1614) Hob. 85
62
Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L. Cas 759
63
Tsatsu Tsikata v. Chief Justice & Attorney-General

70
 2. Whether or not the 10 th January 2001, Practice Direction of the
Acting Chief Justice, Justice Wiredu (as he then was) is null and void?

3. Whether or not there is a constitutional requirement for ther 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. Whether or not on a true and correct interpretation of Article 133(2)

of the 1992 Constitution there is a requirement fo the Chief Justice
to add two additional Justices of the Supreme Court to hear and
application for review of a Supreme Court decision?

5. Whether or not the chief Justice can be directed to exercise his

discretionary power in a particular way?

Held:

1. The Chief Justice can empanel the Bench of the Supreme Court even
if he is a party to the suit.

2. The 10th January 2001 Practice Direction is not null and void.

3. There is no constitutional requirement for the Chief Justice to

empanel eleven members to review a decision of the seven
members of the Supreme Court Bench.

4. Injunction cannot be put on the Chief Justice in the exercise of his

duties.

5. The Chief Justice cannot be directed as to how to exercise his

discretionary powers.

Reasoning:

The Chief Justice becomes incapable of empanelling the Bench when is

unable to perform his functions. The Supreme Court relying on the
decisions contained in Akufo-Addo v. Quarshie – Idun & others 64 and
Kuenyehia & Others v. Acher & others, 65 held that unless there is a legal
bias, the mere allegation of bias does not mean the Chief Justice is unable
to perform his functions.

Also, the Court reasoned that the Chief Justice has the discretion to
empanel Justices of the Supreme Court and it he does that, it does not
amount to arbitrariness, capricious or bias.

64
Akufo-Addo v. Quarshie – Idun & others (1968)
65
Kuenyehia & Others v. Acher & others (1993-94)

71
What the Constitution says is that the Chief Justice has the power to
empanel uneven number, not less than seven, for review cases.
Therefore, when a person is enjoined by statute to perform a function, he
is obliged to do same even it is against the rules of natural justice.

The court cannot place injunction when the Chief Justice is exercising his
discretionary powers.

Conclusion:

The writ is speculative and unmeritorious and therefore dismissed.

Key principle: Waiver exception to the natural justice principle

R. v. Sussex Magistrates; Ex Parte McCarthy66

Statement of Fact:

McCarthy was a motorcyclist who was involved in an accident. He was

then prosecuted before a Magistrate’s Court. Unknowing to him and his
solicitor, the clerk to the Justices was a member of the firm of solicitors
involved in a civil claim against him, an action flowing from the same
accident which had resulted in the prosecution. The Justices retired with
the clerk and came back to give their judgement which found McCarthy
guilty.

McCarthy then filed the present case alleging bias. He averred that the
ruling of the Magistrate’s Court should be quashed.

On the other hand, the Justices contended they did not consult the clerk.

Issue:

1. Whether or not the rule of natural justice had been breached which
should lead to the quashing of the previous case?

Held:

66
R. v. Sussex Magistrates; Ex Parte McCarthy [1923] All ER 238

72
 1. The rule of natural justice had been breached.

Reasoning:

Lord Hewart CJ was of the view that it was acceptable the Justices did not
consult the clerk before they reached their decision. But justice should not
only be done but also it should manifestly and undoubtedly be seen to be
done.

The mere presence of the clerk whose firm was handling the civil case
against the defendant over the same action that gave rise to the suit was
enough to cast doubt on the ruling.

He remarked that, however, if the defendant and his solicitor knew the
fact of the clerk but failed to raise an objection and banked their hopes on
the merit of the case to win and it had turned that they had lost before
they had raised the objection; that would have been a waiver of their
right.

But the present case was different, hence, the decision of the Magistrates
Court be quashed.

Conclusion:

The ruling of the magistrates’ court is quashed.

73
4. LEGAL EFFECT OF COUP D’ETATS
A coup d’etat is an unconstitutional overthrow of a government by a
violent means or by force.

Tsatsu Tsikata v. Attorney-General67

(Review Case of the Constitutionality of the Fast Track High Court)

Acquah, JSC

Statement of Fact:

On 28th February 2002, by a 5:4 decision, the plaintiff’s action that the
Fast Track High Court was unconstitutional was successful. Before the
reasons to the decision was to be read on 20th March 2002, the Attorney-
General filed the present case on 1st March 2002, for the Supreme Court
to review the decision of the majority.

The Attorney-General contended, inter alia, that the Fast Track High Court
helped to dispose cases faster with its computerised system. Also, the
Supreme Court in the Republic v Selormey, 68 ordered the trial to be taken
to the Fast Track High Court so if it says it is unknown now, it will amount
to contradiction and confusion, hence the need for review. It was the case
of the Attorney-General that the position of the Supreme Court in the
matter led to a miscarriage of justice.

The Attorney-General further averred that the division of the High Court
could not be left only in the hands of Parliament and that the Chief Justice
was clothed with the power to do so without Parliamentary approval.

The respondent also contended that the Supreme Court in the matter of
Selormey was not seized with the opportunity to pronounce on the legality
of the Fast Track High Court. Again, by a narrow majority in his favour and

67
Tsatsu Tsikata v. Attorney-General (2002)
68
Republic v Selormey

74
the numerous cases tried the Fast Track High Court were not good
reasons on which a review was necessary. He prayed the dismissal of the
review application.

Issues:

1. Whether or not there is course for the invocation of the review

jurisdiction of the Supreme Court?

2. Whether or not the Fast Track High Court is constitutional?

3. Whether or not the Chief Justice can create divisions in the High
Court?

Held:

1. There is course for exercise of the review jurisdiction of the

Supreme Court.

2. The Fast Track High Court is constitutional.

3. The Chief Justice can create divisions in the High Court.

Reasoning:

The Court stipulated that its review jurisdiction was backed by the 1992
Constitution. And it was affirmed in Fosuhene v. Pomaa 69 and Nasali v.
Addy.70 The only ground for review is that the circumstances are
exceptional and that in the interest of justice, there should be a review.
There must be a demonstration that there is an exceptional circumstance
which has led to a miscarriage of justice.

The exceptional circumstance is the fact that the Justices of the Supreme
Court were involved in the discussion leading to the formation of the Fast
Track High Court. It was only Justice Sophia Akuffo who submitted a two
paged comment.

69
Fosuhene v. Pomaa (1987-88)
70
Nasali v. Addy (1987-88

75
The Court took the position that the wording of Article 126(1) does not
empower Parliament to create Superior Courts. It is only the lower Courts
that may be created by Parliament. The division in the High Court
according to Article 139(3) is for the Chief Justice to determine not a
constitutional or statutory instrument or an Act of Parliament – taking its
source from Article 126.

The 1992 Constitution does not make mention of the various divisions in
the Court of Appeal and the High Court. Therefore, for one to contend that
the fact that the Fast Track High Court is not mentioned makes it
unconstitutional is not only absurd and unfounded but factually
unacceptable because none of the existing divisions is also mentioned in
the Constitution.

The Constitutions, 1969, 1979 and 1992 give the Chief Justice the power
to create the divisions in the Court of Appeal and High Court without
parliamentary approval or constitutional instrument. With the Court of
Appeal the demand of constitutional instrument is discarded in the 1992
Constitution even though the Constitutions, 1969 and 1979 had it.

In the process, Article 139(3) is law and does not need any legal authority
to give it the full force of law.

“If indeed it is unconstitutional to be tried before an efficient court, it is

doubly unconstitutional to be tried in an inefficient court because it violate
the fundamental right of due process.

Conclusion:

The Justices erred in their earlier decision- the applicant has justified the
need for review.

Ghana Lotto Operators Association & Others v. National Lottery

Authority71

71
Ghana Lotto Operators Association & Others v. National Lottery Authority

76
Dr Date-Bah, JSC

Statement of Fact:

There was a High Court case between Ghana Lotto Operators Association
& Others and National Lottery Authority. A constitutional issue arose and it
was referred to the Supreme Court for interpretation as per Article 130 (2)
of the Constitution, 1992.

The issue in question was about the constitutionality of Act 722. The
contention of the plaintiffs was that Act 722 was inconsistent with article
33 (5), 35 (1) and 36 (2) of the Constitution, 1992. The defendant also
challenged this argument. Write the argument of the defendant here.

Issues:

1. Whether or not Act 722 violated the Constitution, 1992?

2. Whether or not Article 36 (2) (b) is justiciable?

Held:

1. Act 722 does not violate the Constitution, 1992.

2. Article 36 (2) (b) is justiciable.

Reasoning:

The case of the plaintiffs does not show how the Act violates the
Constitution, 1992.

By the objective purposive approach of interpretation, the Constitution,

1992 does not expressly state that the Directive Principles of State Policy
shall not be enforceable. The Draft Report of the Committee of Expert
contained the unenforceability clause but the Constituent Assembly did
not include it in the final Constitution. This shows a grave departure.

Relying on the subjective purposive approach by considering only the

draft report of the Committee of Expert is not helpful. The Constitution,
since it is an organism capable of growth must be interpreted to suit the
times.

The approach to be adopted is the presumption of justiciability principle.

In that, the Chapter 6 of the Constitution, 1992 should be presumed to be
justiciable unless the language of the provision in question makes it
impossible to be justiciable. This follows from the fact that there had been
two opposing decisions involving two previous cases: New Patriotic Party

77
v. Attorney-General72 (31st December Case) and the New Patriotic Party v.
Attorney-General73 (CIBA Case) so the Supreme Court in the present case
has to choose one of make a new pronouncement.

In the 31st December Case, it was held that the Directive Principle of State
Policy are justiciable. In the CIBA Case, it was held per Bamford Addo, JSC
that the provisions of Chapter 6 of the Constitution, 1992 must be read in
connection with other provisions in the Constitution for them to be
justiciable.

In other words, a provision contained in the Directive Principles of State

Policy will be justiciable or otherwise if it is found or otherwise in another
provision of the Constitution. Bearing in mind the two distinctive opinions
of the Supreme Court, Dr Date-Bah, JSC is of the considered view that the
Supreme Court in the instant case is free to follow either position or
formulate or make a fresh one.

Hence, the presumption of justiciability approach of the Directive

Principles of State Policy taken by the Supreme Court in the present case.

Conclusion:

The Directive Principle of State Policy is presumed justiciable. However,

Act 722 does not violate the Constitution, 1992.

New Patriotic Party v. Attorney-General74 (CIBA CASE)

Statement of Fact:

The plaintiff brought an action at the Supreme Court under article 2(1) of
the Constitution, 1992 and contended that sections 3(b) and 4(1) of the
Council of Indigenous Business Association Law, 1993 (PNDL 312) on the
grounds that they were inconsistent with article 21(1) (e) of the
Constitution, 1992, which guarantees to all person the freedom of
association.

The Attorney-General raised a preliminary objection to the capacity of the

plaintiff to bring an action under the article 2(1). It was argued that only
natural persons had the capacity to bring actions under the said article.

Issue:
72
New Patriotic Party v. Attorney-General
73
New Patriotic Party v. Attorney-General
74
New Patriotic Party v. Attorney-General [1996-97] SCGLR 729

78
 1. Whether or not a ‘person’ is article 2(1) of the Constitution, 1992
means natural persons and as such only qualified to bring an
action under the article in question?

Held:

1. All classes of persons, including natural persons and body

corporate, like the plaintiff, have capacity to bring an action in
the Supreme Court under article 2(1) for the enforcement of the
1992.

Reasoning:

The plaintiff falls within the definition of a ‘person’ in article 2(1) of the
Constitution, 1992 and is entitled to invoke the original jurisdiction under
the said article.

Conclusion:

The New Patriotic Party has capacity as an artificial person to bring an

action under article 2(1) of the Constitution, 1992.

Read this case and complete it

Ekwam v. Pianim75

Acquah JSc

Statement of fact:
The Plaintiff, a member of the New Patriotic Party (NPP), filed a suit at the
Supreme Court against the defendant, a founding member of the NPP,
who wanted to contest the flag-bearership election in the party and
subsequently contest the presidential election.

The plaintiff contended that the defendant was disqualified from

contesting the 1996 election because he was convicted in 1983 for the
offence of preparing to overthrow the Government of Ghana. This,
according to the plaintiff, is a crime against the security of the state-
contrary to the provisions of the 1992 Constitution.

75
Ekwam v. Pianim

79
But the defendant argued that the government he was convicted for
attempting to overthrow was not a government under the 1992
Constitution. He further submitted that even if he was so found guilty, he
was exercising a power afforded him in Article 1(3) of the 1979
Constitution; therefore, he was not disqualified to contest the 1996
elections.

Issue:
1. Whether or not Mr Kwame Pianim qualifies under the 1992
Constitution to stand presidential election?

Held:
1. He does not quality to stand presidential election

Reasoning:
The state principally contains the government. But in Ghana, the Head of
State is usually the head of government. Any attempt to remove one by
force, will also affect the other. An attempt will obviously affect the peace
and security of the state. Therefore an offence such as preparing to
overthrow the government is an offence involving the security of the
state.

The defendant’s claim that he was exercising his right to resist the
government in fulfilment of Article l(3) of the 1979 Constitution cannot be
held on the intention of the defendant when he prepared to overthrow the
government. The statement he made to the police was that he
vehemently denied the offence.
Assuming such a right could be raised under the 1979 constitution, he’s
denial of the offence spoilt such a right he so wished to enjoy.

In Kwakye v. Attorney-General76, the Court said that “In our view therefore
it is unwise to give the impression that constitutional or legal provisions
can be devised to deal with a successful overthrow of a constitutional
government…if a coup d’état succeeds, the constitutional safeguards
obviously become empty and impotent. And once the PNDC succeeded in
overthrowing the 1979 Constitution, Government and therefore abrogated
the Constitution, the constitutional safeguards in Article 1(3) of 1979
Constitution can thus not be entertained having regard to Section 34 of
the Transitional Provisions to the 1992 Constitution.

Conclusion:
76
Kwakye v. Attorney-General

80
Kwame Pianim could not rely on the provisions of a Constitution which
was successfully overthrown and abrogated.

Uganda v. Commissioner of Prisons, Ex Parte Micheal Matoru77

Statement of fact:
In 1966 Uganda’s Prime Minister, Apollo Milton Obote, assumed all powers
of government and two days later, he suspended the 1962 Constitution.
The parts that related to the Courts, Civil Service, Armed Forces and the
National Assembly were preserved. The National Assembly subsequently
abolished the 1962 Constitution and replaced it with the 1966 Constitution
pending the 1967 Constitution.

The Seza Chief of Buddy, Michael Matoru was arrested and detained under
the deportation ordinance. Later he was released and rearrested just in
front of the prison. He then filed for habeas corpus. In the determination
of the application, there was a matter involving constitutional
interpretation challenging the validity of the 1966 Constitution. The
matter was referred to a 3-member bench of the Court for hearing and
determination of the constitutional questions.

The Attorney-General contended that the issue of the validity of the

Constitution was a political question which the Court could not adjudicate.

Issues:
1. Whether or not a question of the validity of the Constitution was a
political question which the Court could not determine?

2. Whether or not it was the 1962 or 1966 Constitution that was valid?

Held:
1. The court’s duty was to interpret the Constitution so it could inquire
into its validity.

2. The 1966 Constitution was valid.

Reasoning:
The Court had power to inquire into the validity of the Constitution than to
leave it for the other arms of government to do.

77
Uganda V. Commissioner of Prisons, Ex Parte Micheal Matoru [1966] EA, 514

81
Based on Kelsen’s theory – where the prime minister suspended the 1962
Constitution; ejected the formal President and made him flee the country;
the support of the masses and the effect it created, a revolution had taken
place so a new legal order had emerged. This amounted to a coup d’état
or a revolution.

Conclusion:
The 1966 constitution was valid.

Summaila Bielbiel v. Adamu Daramani and Others 78

Gbadegbe JSC

Statement of Facts:
The plaintiff filled a case at the Supreme Court and contended that the
first defendant’s continuous stay in Parliament offended Article 97 (i) and
94 (2) (a).

The plaintiff then, unusually, filled an objection challenging the jurisdiction

of the Supreme Court. The defendant equally argued as to why the
Supreme Court lacked jurisdiction.

Issue:
1. Whether or not the Supreme Court lacked jurisdiction to entertain
the present case?

Held:
1. The Supreme Court lacked jurisdiction to entertain the present case.

Reasoning:
The Court asserted that the relief sought by the plaintiff was similar to
that before the High Court challenging the election of the first defendant.
And that the present case could not be heard because if it were election
petition then the High Court rather has the jurisdiction to hear it. Its
appeal lies to the Court of Appeal which is the end point.

But if it were not an election petition then the decision of the Court of
Appeal should be challenged at the Supreme Court.

78
Summaila Bielbiel v. Adamu Daramani and Others SC, 2001

82
The Court based their decision on Yeboah v. Mensah 79, where the
Supreme Court threw out the case on the basis that the suit was in the
form of election petition so it should rather be heard at the High court.

The Court also made reference to the decision of Edusei v. Attorney-

General80 which the Supreme Court on review affirmed their earlier
decision to the effect that since the merit of the case bothers on the
enforcement of personal human rights, the appropriate forum is the High
Court.

Since the matter before the High Court challenged whether or not the first
defendant held a British passport was yet to be heard at the High Court,
the Supreme Court declined jurisdiction.

Conclusion:
The Supreme Court lacked jurisdiction to hear the present case.

Martin Kpebu v. Attorney –General81

Statement of Facts:
The plaintiff filled the present case at the High Court and claimed that the
state’s failure to set up the Victims of Domestic Violence Support Fund to
provide free medical support to such victims was wrongful. He prayed the
Court for mandamus to compel the State to comply with the provisions of
Sections 8(3), 29, and 31 of the Domestic Violence Act, 2007 (Act 732).

The Attorney- General was not nudged by the demand letters the plaintiff
served on her. The Attorney-General did not also respond to the writs that
were served on her. The Court therefore proceeded to hear the case
without the Attorney-General.

Issue:
1. Whether or not the State has offended Act 732?

2. Whether or not mandamus will lie?

3.

79
Yeboah v. Mensah
80
Edusei v. Attorney-General
81
Martin Kpebu v. Attorney –General Suit No. Hr/0088/2016

83
Held:
1. The state’s refusal set up the domestic violence fund is wrongful.

2. Mandamus will lie.

Reasoning:
The Court relying on the decision on contained in Re Botwe v. Mensah 82
set the prerequisites for invoking the mandamus jurisdiction of the Court:
i. “There must exist a legal right, which must reside in the person who
desires its enforcement” – locus standi.
ii. That there must be “a distinct demand of that which the party
seeking the mandamus desired to enforce, and that demand was
met by a refusal.”

The Court held that the plaintiff satisfied the conditions. How
does he satisfy the conditions? Find out. Also the State’s refusal to
create the fund is a statutory violation. In the South African case of
Ministry of Health and others v. Treatment Action Campaign & Others, 83
the government was compelled to respect their policy. In the present
case, there is an Act involved which is higher than a policy.

Conclusion:
The State has done statutory wrongfulness and a mandamus will lie after
six months grace period.

Fattal & Another v. Minister for Internal Affairs & Another84

Acher JSC

Statement of facts:
In 1978 the first plaintiff was arrested and accused of not paying import
duties on goods he brought into the country. At this point the second
plaintiff was outside Ghana on medical grounds.

82
Re Botwe v. Mensah [1959] GLR 457
83
Ministry of Health and others v. Treatment Action Campaign & Others [2002]
84
Fattal and Another v. Minister for Internal Affairs and Another [1981] GLR 104-135

84
Fattal and his brother were Lebanese by birth but had lived 42 and 26
years respectively in Ghana. They had also become Ghana citizens by
naturalization under the Ghana Nationality Act 1971 (Act 361) in 1973 and
1976 respectively.

While the first plaintiff was still in custody, the Supreme Military Council
regime passed a decree SMCD 172 which sought to revoke the nationality
of the plaintiff and to remove them from Ghana. Consequently, the first
plaintiff was deported.

In 1980 the plaintiff invoked the original jurisdiction of the Supreme Court
and contended that by the SMC removing them from Ghana without
obtaining a High Court order required by Section 10 of Act 361, they acted
ultra vires.

The Plaintiff also argued that the continuous existence of SMCD 172
offended the 1979 Constitution.

Put the argument of the defendant here

Issues:
1. Whether or not the SMC had the power to enact the SMCD 172?

2. Whether or not the existence of SMCD 172 was inconsistent with the
1979 Constitution?

Held:
1. The SMC had the power to enact the SMC 172.

2. The continuous existence of SMCD 172 in the statute books was not
inconsistent with the 1979 Constitution.

Reasoning:
The SMC, like any other military regimes since 1966, left the court to
function but delegated to themselves the legislative powers of the State.
The Courts were subject to the decrees of the regime. Although Act 361
required such revocation of citizenship to be done by the High Court, the
SMC also had the power to enact any decree to vary, omit or add anything
to the existing laws. On that basis, they were free to enact SMCD 172.

85
Again, the status of the SMCD 172 was a passive law which had come to
do and finish the purpose for which it was made. Since it existed but could
not have any effect, it was only there for decoration of the statute books
but did not offend the 1979 Constitution.

Conclusion:
SMCD 172 was not unconstitutional and the deportation of the plaintiffs
was in order.

Tehn – Addy v. Attorney – General & Electoral Commission85

Acquah JSC

Statement of Facts:
The Electoral Commission registered eligible voters in 1995 for the
presidential and parliamentary elections in 1996. After the registration
exercise, the commission announced that they would conduct another
registration process for those who had now turned 18 years and those
above 18 years who for tangible reasons could not register during the first
exercise.

On the appointed date, the plaintiff went to the designated place to

register but the Electoral Commission did not show up. He then involved
the original jurisdiction of the Supreme Court and alleged that the refusal
of the Commission to register him was inconsistent with the Constitution,
1992.

The Commission agreed with the contention of the plaintiff but averred
that they did not register the plaintiff and many others because they had
been served with a writ from the High Court with an injunction on the
registration exercise.

Issue:
1. Whether or not the plaintiff is entitled to be registered as a voter?

Held:
1. The plaintiff and any other qualified citizens are entitled to be
registered for the election.

85
Tehn – Addy v. Attorney – General & Electoral Commission [1997-98] 1 GLR 47

86
Reasoning:
The right to vote is a fundamental political right given to every sane
citizen of Ghana of 18 years and above. It is a right that nobody could
deny a citizen except by law. The refusal of the Commission to register
the plaintiff did not only deny him of the privilege to exercise his franchise
but also would deny him the chance to be a Member of Parliament,
Minister of State or hold certain public offices.

For that reason, the Commission is under obligation to register the plaintiff
and everyone in that category.

Conclusion:
The Electoral Commission is ordered to register the plaintiff for election
1996.

New Patriotic Party v. Ghana Broadcasting Corporation86

Statement of Facts:
The PNDC presented their last budget in 1992 and on 23rd and 24th
January 1993, a member of the NDC, Dr Kwesi Botchwey – appeared on
GTV and radio and sought to defend the budget.

The plaintiff, a registered political party, applied to the defendant media

for airtime to express a divergent opinion about the budget to the people
of Ghana. The defendant refused to grant the plaintiff the opportunity to
express their views.

The plaintiff then brought the present action against the defendant at the
Supreme Court. And the plaintiff contended that the action of the
defendant violated Article 55(1) and 163 of the 1992 Constitution.

But the defendant averred that they had discretion in the matter and also
submitted that they had given the plaintiff news reportage.

Issue:
1. Whether or not the action of GBC violated Articles 55(11) and 163?

Held:
1. The action of GBC violated the Constitution, 1992.

86
New Patriotic Party v. Ghana Broadcasting Corporation [1993-94] 2 GLR 354-393

87
Reasoning:
The Court took the view that GBC had no discretion in the matter and that
Articles 163 requires them to offer the same opportunity to another
political party especially it is expressing dissenting views.

The Court explained that the purpose of the dissenting view is for the
benefit of the people of Ghana – for them to be well informed in order to
make their own judgement. It also held that GBC is obligated to offer the
same opportunity to big as well as smaller political parties to express their
views. The state-owned media is to promote the free expression of views.

According to Amua – Sekyi JSC, the temptation to ride roughshod over the
opinions of others must be resisted, for it is only by the free flow of ideas
and discussion that error is exposed, truth vindicated and liberty
preserved”.

Furthermore, the words of Tallentyre (Get Source) are quoted to the effect
that I disapprove of what you say, but I will defend to the death your right
to say it. And this, according to Amua- Sekyi JSC sums up the democratic
tradition that divergent views and dissenting opinion be given free
expression.

Conclusion:
The NPP should be given the same opportunity given to the NDC for them
to express their dissenting opinion on the budget.
And GBC has no discretion in the matter – they are obliged to ensure fair
distribution of airtime to each political party.
.

Raphael Cubagee v. Michael Yeboah Asare, K. Gyasi Company Ltd.

& Assembly of God Church87

Pwamang, JSC

Statement of Facts:
There was a land case pending before the Sunyani District Court ‘A’ in
which the plaintiff sought to tender in evidence an audio recording of a
telephone conversation he had with the representative of the third
defendant.

87
Raphael Cubagee v. Michael Yeboah Asare, K. Gyasi Company Ltd & Assembly of God Church NO. J6/04/2017
28 February 2018 Supreme Court

88
The plaintiff sought to rely on it to prove that the representative of the
third defendant admitted the plaintiff side of the case.

But the defendant contended that the recording was surreptitiously done
and it offended his right to privacy guaranteed by Article 18(2) of the
1991 Constitution.

The Magistrate then referred the matter to the Supreme Court for
interpretation pursuant to Article 130(2) of the Constitution, 1992.

Issues:
1. Whether or not the secret recording violates the defendant’s rights
to privacy?

2. Whether or not the recording may be admissible in evidence?

Held:
1. The secret audio recording violated his right to privacy.

2. The audio recording, with the circumstances of the case, is not

admissible in evidence.

Reasoning:
The constitutional provision in Article 18(2) is not so clear on recording of
telephone conversation. The evidence from other jurisdiction around the
world is also divided on the matter.

In Canada and Italy it is legal to record a telephone conversation without

permission provided a person is a party to the conversation. In Germany
and the State of Florida, it is prohibited if a person records a conversation
without the consent of the all parties to it.

Article 18(2) provides the right for the protection of the individual against
unwanted intrusion, scrutiny and publicity and guarantees his control over
intrusion into his private sphere. The Supreme Court therefore takes the
view that to record a telephone conversation or put a person on loud
speaker for others to listen without the consent of the person is a violation
of Article 18(2).

On the issue of admissibility of evidence or recording procured in violation

of a person’s human rights to privacy, the Supreme Court takes the view
that there should be discretionary exclusionary rule.

89
The Court speaking through Pwamang, JSC says it therefore seems to us
that the frame work of our Constitution anticipates that where evidence
obtained in violation of human right is sought to be tendered in
proceedings, whether criminal or civil, and objection is taken, the court
has to exercise a discretion as to whether on the facts of the case the
evidence ought to be excluded or admitted.

Therefore, if admissibility of impugned evidence will lead to unfairness

and disrepute of the administration of justice, it should be excluded. On
the other hand, if the inadmissibility of such evidence will lead to
unfairness or disrepute of the administration of justice, it should be
admitted.

And since the recording was purposefully done to provide evidence in

Court, it is not admissible. And that intentional act against his rights to
privacy must be dismissed. And the case must be sent to the nearest
District Court since the Magistrate played the audio in open court.

Conclusion:
The surreptitious audio recording of the representative of the third
defendant is in violation of his rights to privacy. The audio is not
admissible since it was done in order for the plaintiff to get evidence
against him in court.

Edmund Addo v. The Attorney- General & Inspector General of

Police88

Anthony K. Yeboah

Statement of Facts:
The 19 year old applicant is accused of defiling a 15 year old girl and
engaging in child pornography. In the process of investigation, the police
seized his mobile phone and laptop and tried to search them without a
warrant from a Magistrate or the consent of the accused person.

The applicant filed the present case at the High Court and contended that
his rights to privacy are violated when the Police tried to search his
gadgets without consent. He also contended that his rights to fair trial,
property and education are being violated by the police.
What was the argument of the police? Find it and write it here.
88
Edmund Addo v. The Attorney- General & IGP No. Hr/0080/2017 High Court (Human Rights Division) 30th
March 2017

90
Issues:
1. Whether or not his rights to privacy, education, property and fair
trial are being violated?

Held:
1. His rights to privacy and fair trial are being violated but there is no
violation of his rights to education and property.

Reasoning:
Article 18(2) provides the rights to privacy, property, communication and
home. But it is subject to limitations. Article 12(2) read together with
18(2) provides the grounds on which a person’s right to privacy may be
curtailed. That is subject to lawful investigation or for the prevention of a
crime.

Section 88 of Act 30, 1960 provides that the Police may arrest a person
and any item in connection to a suspected crime but they require a
warrant under the hand of a Magistrate to search it or the person.

On that basis, since the Police did not have a warrant and tried to search
the mobile phone or the laptop of the applicant, that amounts to a breach
of applicant’s right to privacy.

Again, the Police compelling him to provide the password to the item
amounts to violation of his rights to fair trial since a person cannot be
compelled to give evidence to incriminate himself. The Court explained
that presumption of innocence at trial also means presumption of
innocence at criminal investigation.

His property may be seized by law. So the Police’s seizure of his laptop
and mobile phone does not amount to a breach of his right to property
and education (Article 25 is over stretched)

Conclusion:
The applicant’s rights to privacy and fair trial have been violated. His
rights to property and education have not been breached.

91
Martin Alamisi Amidu v. Attorney- General, Waterville Holdings
(BVI) Ltd. & Alfred Agbesi Woyeme89

Date-Bah JSC

Statement of Facts:
Waterville Holdings (BVI) took over from Vamed on having bided and won
a “contract” from the Government of Ghana (GOG). The Government of
Ghana then wrote to terminate the contract.

Later, the GOG had a Memorandum of Understanding with the second

defendant and resulted in two separate contracts to renovate Ohene Djan
& El-Wak and Kumasi sports stadia. The said two contracts signed on the
same date had provision to the effect that the validity of the contracts
was subject to the approval by Cabinet and Parliament.

These approvals were not given and subsequently, the GOG wrote to
terminate the purported contract but agreed to pay any work that the
second defendant did. The said payment was done through the sub-
contractors of the second defendant. Then in 2009 the second defendant
sued the GOG for outstanding debts. The matter was withdrawn for
settlement.

Consequently, the third defendant then wrote to the first defendant that
the amount of money due to the second defendant was being
exaggerated and that it was he that GOG owed some money. The third
defendant then filed a case against GOG in the High Court and got default
judgement. Later, the judgement debt was negotiated to Ghc51.2.

The plaintiff filed the present case and argued that the purported contract
that the second defendant relied on was in consistent with and in
contravention to Article 181(5) to the extent that the transaction was an
international one but there was no parliamentary approval. And any
money paid him should be refunded to GOG.

He further argued that a bridge financing agreement arising between the

Republic of Ghana and the second defendant amounted to an
international loan transaction and as such it offended article 181(3), (4),
(5) and (6) so long as there was no parliamentary approval.

89
Martin Alamisi Amidu v. A G, Waterville Holdings (BVI) Ltd. & Alfred Agbesi Woyeme, Supreme Court 14th
June 2013

92
It was therefore argued on the other side that the interpretation of Article
181(15) was trite so the appropriate forum for the present matter was the
High court.

Issues:
1. Whether or not the purported contract was constitutional?

Held:
1. The purported contract was unconstitutional.

Reasoning:
So long as the purported contract did not have parliamentary approval
which was condition precedent in the 26th April 2006 agreement, it was
not constitutional. The GOG could not therefore have paid the second
defendant of any amount of money under restitution.

The Court was of the view that since the third defendant was already in
the High Court with the first defendant over the matter, it would decline
jurisdiction in order for the High Court to determine the matter.

Conclusion:
The transaction was unconstitutional and the second defendant is obliged
to refund any money so paid him by the GOG.

Mrs Abena Pokuaa Ackah v. Agricultural Development Bank Ltd 90

Dotse, JSC

Statement of Fact:
The respondent terminated the employment contract with the appellant.
The appellant first filed the case at the High Court and alleged, inter alia,
that the surreptitious recording of the telephone conversation done by a
third party she had a conversation with, based on which the disciplinary
action and the subsequent termination of her appointment were founded

90
Mrs Abena Pokuaa Ackah v. Agricultural Development Bank Ltd. Supreme Court 19th December 2017 No.
J4/31/2014 Civil Appeal

93
violated her human rights to privacy contrary to Article 18(2) of
Constitution, 1992.

Her lawyer further argued on her behalf that in any event, what she spoke
about were in the public domain published by the respondent himself. It
was the case of the appellant that she only expressed her opinion on a
matter of public concern so her right to freedom of expression was being
curtailed.

The respondent also submitted, inter alia, that the content of the secret
recording amounted to a breach of the oath of secrecy that the appellant
owed to the respondent bank. He further argued that the enjoyment of
the appellant’s right was subjected to respect for the rights and freedoms
of others.

The High Court dismissed the case of the appellant on the grounds that
she had a fair hearing, among others. And she subsequently appealed at
the Court of Appeal.

The Court of Appeal dismissing the matter said among other things that, a
judicial scrutiny of her act of breach of oath of secrecy would be
cumbersome and inconvenient.

The appellant then filled the present case at the Supreme Court and
averred the reliefs for a declaration that the secret recording was a
breach of her right to privacy. And she prayed the Court to quash the
termination of her employment.

Issue:
1. Whether or not the secret recording was a breach of the appellant’s
right to privacy?

Held:
1. The secret recording is a breach of the appellant’s right to privacy.

Reasoning:
The Court took the position that in as much as the secret recording
disclosed information which may amount to a breach of oath of secrecy, it
is only by a judicial scrutiny that the said action can be said to be in
violation and breach of Article 18(2) of the Constitution, 1992. Also, the
Court below was wrong in holding that it would be cumbersome and
inconvenient for the Court to make a determination on a case by case
basis. The Court below also erred in holding that the applicant’s right to

94
privacy and others could be curtailed and interfered with, without
recourse to judicial action.

The recorded tape did not amount to a breach of oath of secrecy since
those pieces of information were in already in the public domain.

Conclusion:
The delivery of the secret record conversation between the applicant and
the third party which the respondent relied on amounted to a breach of
the applicant’s right to privacy as provided for in article 18(2).

Comment
Although this case is cited to support the principle of the right to privacy,
it also addresses the issue of natural justice emanating from disciplinary
hearings.

Sam v. Attorney-General (No 2)91

Bamford-Addo, JSC

Statement of Facts:
The plaintiff, a citizen of Ghana, invoked the original jurisdiction of the
Supreme Court under Article 2(1) of the Constitution, 1992. He sought a
declaration that Section 15 of the Divestiture of State Interests
(Implementation) Law, 1992 (PNDCL 326), which sought to relieve the
government and its employees of any liability coming out of the work of
the Divestiture Implementation Committee is inconsistent with Articles
140(1), 293(2) and (3) of the Constitution, 1992 and as such it is null, void
and of no effect.

However, the Solicitor-General raised a preliminary legal objection to the

capacity of the plaintiff. He argued that the plaintiff ought to have a
personal interest before he may commence the present action.

He further argued that Section 15 of PNDCL 326 ought to be read as

subsumed under Section 34(1) and (2) of the Transitional Provision of the
First Schedule of the Constitution, 1992.

91
Sam v. Attorney-General (No 2) [1999-2000] 2 GLR 336

95
Issues:
1. Whether or not the plaintiff has capacity?

2. Whether or not section 15 of PNDCL 326 is inconsistent with articles

140(1) and 293(2) ad (3) of the 1992 constitution?

Held:
1. The plaintiff has capacity to institute the present action.

2. Section 15 of PNDCL 326 is inconsistent with articles 140(1) and

293(2) and (3) of the Constitution, 1992

Reasons:
Article 2(1) of Constitution, 1992 provides that a person who alleges that
an enactment or action or omission of an act or a person is inconsistent
with the Constitution, 1992 may bring an action for such declaration at the
Supreme Court. The meaning of person is that which was held in the case
of NPP v. Attorney-General (CIBA Case):92 to the effect that a person may
be a natural or body corporate. The person according to the Report of the
Constitution Draft Committee must only be a citizen of Ghana. He must
not necessarily have a personal interest to have capacity.

It was held by the Supreme Court that it is Article 33(1) which demands
that a person shall have a personal interest before he may bring an action
at the High Court for the enforcement of his personal human rights.

But a person who comes to the Supreme Court under Article 2(1) of the
Constitution, 1992 must only be a citizen of Ghana without any special or
personal interest in the matter.

The argument that Section 34(1) of the Transitional Provision should be

read as subsuming Section 15 of PNDCL 326 was untenable and without
merit. Section 34(1) of the Transitional Provision of Constitution, 1992
affects only the government and employees under the PNDC Government
but not the present Government after 7th January 1993.

Measuring Section 15 of PNDCL 326 against Article 140(1) and 293(2) (3)
was to the effect that the former sought to curtail the jurisdiction of the
High Court [thus relating to 140(1)] and the tort liability the Government
of Ghana has just as any ordinary adult with capacity has.
92
NPP v. Attorney-General [1996-1997] SC GLR 729

96
To this end, Section 15 of PNDCL 326 contravenes the Constitution, 1992
and as such same in null and void.

Conclusion:
The plaintiff has capacity. And Section 15 of PNDCL 326 is inconsistent
with Article 140(1) and 293(2) (3) of the 1992 Constitution and as such it
is null and void.

Adjei-Ampofo v. Accra Metropolitan Assembly & Attorney-

General93

Sophia Akuffo, JSC

Statement of Facts:
The plaintiff, a Ghana citizen, invoked the original jurisdiction of the
Supreme Court under Articles 2(1) and 130(1) of the 1992 Constitution. He
sought a declaration against the first defendant.

The plaintiff contended that the practice of the first defendant engaging
persons to remove and carry on their head human excreta in various parts
of the metropolis is not only very unhealthy and degrading, but it is also
unconstitutional as it detracts from the dignity of the said person as
human beings. And that is contrary to Article 15(1) and (2).

The first defendant then raised a preliminary objection of the jurisdiction

of the Supreme Court since enforcement of human rights such as Article
15(1) and (2) lies with the High Court on the grounds of Article 33(1) and
140(1).
This objection gave rise to this ruling while the substantive matter was
adjourned (also because the parties sought to settle out of court).

Issues:
1. Whether or not the plaintiff has capacity?

2. Whether or not the Supreme Court has jurisdiction?

Held:
1. The plaintiff has capacity.

93
Adjei-Ampofo v. Accra Metropolitan Assembly & Attorney- General [2007-2008] SCGLR 611

97
 2. The Supreme Court has jurisdiction.

3.

Reasoning:
The Supreme Court, through Sophia Akuffo, JSC, settled the contention
between Articles 2(1) and 130(1) on the one hand and 33(1) and 140(2)
on the other hand.
The Court settled that if a person comes to the Supreme Court under
Article 2(1) and 130(1) of the 1992 Constitution, he must not have any
personal interest in the matter but only seek the good of the general
public. This is the position of NPP v. Attorney-General (CIBA case) 94 Sam v.
Attorney-General (No2)95 and the present case.

On the other hand, Articles 33(1) and 140(2) provide that a person may
enforce his personal human right at the High Court. The plaintiff must be
personally affected or potentially affected in a human right violation. That
personal interest must be present and which gives him the capacity to
commence an action the High Court.

This is what the plaintiffs in the cases below lacked that their actions were
dismissed at the Supreme Court: Edusei v. Attorney-General (no 1), 96
Bimpong-Buta v. Attorney-General97 and Oppon v. Atorney-General.98 In
these cases the plaintiffs should have gone to the High Court since they
were seeking to enforce their personal human rights but not the good of
the general public.

Conclusion:
The plaintiff has capacity and the Supreme Court has jurisdiction.

Comments
In Edusei v. Attorney-General, 99 Bimpong-Buta v. Attorney-General100 and
Oppon v. Attorney-General,101 the plaintiffs sought to enforce their
personal human rights by going to the Supreme Court. The Supreme Court
lacks jurisdiction in such a matter and dismissed their cases. The right

94
NPP v. Attorney-General (CIBA case)
95
Sam v. Attorney-General (No2)
96
Edusei v. Attorney-General [1996-97] SCGLR 1
97
Bimpong-Buta v. Attorney-General
98
Oppon v. Attorney-General [2003-2004] 1 SCGLR 376
99
Edusei v. Attorney-General [1996-97] SCGLR 1
100
Bimpong-Buta v. Attorney-General
101
Oppon v. Attorney-General [2003-2004] 1 SCGLR 376

98
forum for such a matter is the High Court on the grounds of Article 33(1)
and 140(2).

But in NPP v. Attorney-General (CIBA), 102 Sam v. Attorney-General103 and

Adjei-Ampofo v. AMA & Attorney-General, 104 the plaintiffs sought to
enforce the Constitutional provisions in the interest of public good on the
strength of Article 2(1) and 130(1) which give exclusive jurisdiction to the
Supreme Court.

Faroe Atlantic Co. Ltd. v. Attorney-General105

Statement of Facts:
The Government of Ghana entered into a power purchase Agreement
(PPA) with Faroe Atlantic Co. Ltd. through the Ministry of Mines and
Energy. Faroe Atlantic was incorporated in the UK.

When difficulties broke, Faroe Atlantic (plaintiff) issued a Writ of Summons

against the defendant (Attorney-General) for specific performance under
the PPA and or damages for breaching the PPA.

The plaintiff filed for summary judgement and got it after resistance by
the defendant of same. The defendant did not appeal. The plaintiff filed
another case for an order directing how the judgment delivered may be
enforced against the defendant or for them to prove damages as claims in
their Writ of Summon.

After a series of adjournments, the plaintiff was awarded USD6m with

interest and USD100m cost.

The Court ordered the Government of Ghana to take back a Ghc855,000

advance payment made to the plaintiff.

The defendant appealed against the judgement at the Court of Appeal but
it was dismissed and there was Ghc15m costs against the appellant (AG).

The appellant (AG) then filed the present appeal at the Supreme Court
and contended against the judgement of the Court Of Appeal. The

102
NPP v. Attorney-General (CIBA)
103
Sam v. Attorney-General
104
Adjei-Ampofo v. Accra Metropolitan Assembly & Attorney- General [2007-2008] SCGLR 611
105
Faroe Atlantic Co. Ltd v. Attorney-General Supreme Court (2005) Civil Appeal No J4/22/2004

99
appellant then at this point raised belatedly the issue of the
constitutionality of the PPA.

Issue:
1. Whether or not the PPA was constitutional?

Held:
1. The PPA was unconstitutional.

Reasoning:
The Supreme Court through Sophia Akuffo and Dr. Dute-Bah, JJSC was
surprised an important matter such as the constitutionality of the PPA was
not raised in the trial Court and even at the Court of Appeal.

Indeed it was raised at the Court of Appeal but it was treated as belated.
The Supreme Court takes the view that this issue is fundamental and that
in the words of Sophia Akuffo, JSC indeed, had the Principal State Attorney
not introduced it one way or the other, we would have been duty bound as
a court existing under the Constitution to raise it suo motu and directed
both counsel to address us on it.

Accordingly, per Article 181 (5) the PPA was an international business or
economic transaction since Faroe Atlantic was incorporated in the UK and
was entering into agreement with the Government of Ghana. Such an
agreement qualified under Article 181(5) which ought to have been taken
to Parliament for approval.

In view of this, the PPA was unconstitutional and as such no obligation

could arise under it.

Conclusion:
The PPA is unconstitutional.

100
The Attorney-General v. Balkan Energy Ghana Ltd, Balkan Energy
LLC & Mr. Philip David Elders106

Dr Date-Bah JSC

Statement of Facts:
The plaintiff brought an action against the defendants in the High Court
and submitted that the agreement signed between the Government of
Ghana and the first defendant was an international business transaction
and as such it needed parliamentary approval within the meaning of
Article 181 (5) of the 1992 Constitution.

The matter of interpretation of the said article came up and the plaintiff
urged on the High Court to refer to the Supreme Court for interpretation.
The Justice of the High Court ruled against it and the plaintiff invoked the
supervising jurisdiction of the Supreme Court. The Supreme Court
quashed the ruling of the High Court and referred the matter to itself.

In the Supreme Court, the plaintiff argued that the place of residence of a
company should not only be the criterion for the determination of an
international business transaction but also the nature of the transaction as
well as the place of central control of the company doing business with
the Government of Ghana.

On the contrary, the defendants argued that the first defendant is a

Ghanaian company since it was incorporated in Ghana for which reason
the transaction should be seen as a non-international one.

The defendant further argued that if the argument of the plaintiff is

accepted then the Government of Ghana in the worst scenario will require
parliamentary approval before it could buy air tickets from British Airways
since it was incorporated in the United Kingdom. And also any transaction
for the supply of cars to the government would need parliamentary
approval since almost every car in Ghana is imported.

Issues:
1. Whether or not the PPA between the Government of Ghana and
Balkan Energy (Ghana) Ltd. constitutes an international business
transaction within the meaning Article 181 (5) of the 1992
Constitution?

106
The Attorney-General v. Balkan Energy Ghana Ltd, Balkan Energy LLC & Mr. Philip David Elders Supreme
Court 2012 J6/1/2012 16th May, 2012

101
 2. Whether or not the arbitration clause contained in the agreement
amounted to an international transaction on its own?

Held:
1. The power purchase agreement (PPA) between the Government of
Ghana and Balkan Energy (Ghana) Ltd. constitutes an international
business transaction.

2. The arbitration clause alone does not amount to international

business transaction.

Reasoning:
The Supreme Court speaking through Justice Dr Date-Bah was of the view
that it is not enough to consider the country of incorporation of a company
to determine the internationality of the business transaction it enters with
the Government of Ghana within the meaning of Article 181(5). But the
nature of the business transaction, the centre of control of the company
as well as the persons behind the company will determine the
internationality of the transaction.

The Court further stated that the argument of the defendant does not fall
within the purposive interpretation of Article 181(5). This is to the extent
that the intended meaning is about major international business
transactions but not minor ones such as the purchase of an air ticket.

In effect, the fact that the first defendant was incorporated in Ghana does
not make the transaction a domestic one since it is owned by a foreign
investor; its centre of control is in foreign hands; and the nature of the
PPA is of international kind. The nature of the transaction was of
international kind because of the clauses contained therein which are
usually associated with foreign investment transactions: waivers of
sovereign immunity clause, among others.

On the second issue, the Court was of the decision that it does not stand
on its own but rests on the existence of the agreement. To that end, the
arbitration clause does not, on its own, constitution an international
business transaction.

Conclusion:
The PPA between the Government of Ghana and Balkan Energy (Ghana)
Ltd. constitutes an international business transaction within the meaning
of Article 181(5) of the 1992 Constitution.

102
Martin Alamisi Amidu v. Attorney-General, Isofoton S. A. &
Anane-Agyei Forson107

Dr. Date- Bah Jsc

Statement of Facts:
The Government of Ghana entered into a loan agreement with the
Kingdom of Spain. The terms and conditions of the said loan agreement
were laid before Parliament and were approved in accordance with Article
181(3) of the 1992 Constitution.

The international business economic transactions to which the

Government was party regarding development projects to be founded by
the said loan procured were not subjected to parliamentary approval.

The matter came up in the High Court but the trial Judge took the view
that since the loan agreement had parliamentary approval, there was no
need for the projects to be submitted to Parliament for approval. He then
proceeded to give a judgment debt against the Government in favour of
the second defendant.

The Plaintiff filed the present suit and argued that the provision of Article
181(3) and (4) does not invalidate that which is contained in Article
181(5). In that, the laying before Parliament and the approval of the terms
and conditions of an agreement for a loan raised by the Government on
behalf of itself or another public institution or authority does not exempt
from being laid before parliament for approval any international business
or economic transaction to which the Government is a party that will be
financed by the loan approval under Article 181 (3) and (4).

The second defendant however argued that the impugned agreements

were merely project implementation contracts financed with funds
provided under the loan procured. For that reason, they do not require
separate parliamentary approval.

Issues:
1. Whether or not the observance of Article 181 (3) and (4) forbids the
observance of Article of Article 181 (5)?
107
Martin Alamisi Amidu v. Attorney-General, Isofoton S.A. & Anane-Agyei Forson Supreme Court 21st June
2013

103
Held:
1. Article 181(5) must be obeyed even though Article 181 (3) and (4)
has been obeyed.

Reasoning:
The Court has settled the interpretation of Article 181 (5) in the Faroe
Atlantic and Balkan Energy cases to the effect that major international
business or economic transaction to which the Government is party
requires parliamentary approval.

There is therefore a distinction between international business or

economic transaction and a loan agreement provided in Article 181 (3)
and (4). The court is of the opinion that the terms and issues of these
kinds of agreements are not identical and therefore deserve separate
scrutiny and approval.

The fact that a project is to be funded by a loan agreement that is

approved by Parliament does not mean the said project should not be
subjected for parliamentary approval.

In effect, the international business or economic transaction to which the

Government is party (Article 181(5)) emanating or coming under or being
funded by a loan agreement approved by Parliament (Article 181 (3) and
(4) ) needs to be subjected separately to Parliament for approval.

Conclusion:
Observing Article 181 (3) and (4) does not invalidate Article 181 (5) and as
such the agreement executed between the Government and second
defendant, without parliamentary approval is unconstitutional, void and of
no effect.

Felix Klomega v. Attorney-General, Ghana Ports And Harbours

Authority, Meridian Port Holdings Ltd & Meridian Port Services
Ltd.108

108
Felix Klomega v. Attorney-General, Ghana Ports And Harbours Authority, Meridian Port Holdings Ltd &
Meridian Port Services Ltd. Supreme Court 19th July 2013

104
Dr Date- Bah JSC

Statement of Facts:
The plaintiff filed the instant case at the Supreme Court and contended
that upon a true interpretation of Article 181(5), per the nature and
characteristics of the second defendant as a public and regulatory agency
of the State, it falls within the intendment of the meaning of
“Government”.

Based on this, the agreements entered into between the second, third and
fourth defendants require parliamentary approval.

But the defendant argued that the second defendant is not to be regarded
as coming within the meaning of “Government”.

Issue
1. Whether or not second defendant falls within the intendment of
“Government” contained in Article 181?

Held
1. The second defendant does not come under the intendment of
“Government” contained in Article 181.

Reasoning:
The Supreme Court takes the view that “Government” in the context of
Article 181 (5) should mean, ordinarily, the central government and not
operationally autonomous agencies of government. If an agency has a
separate legal personality, it is distinct from central government. And that
parliament would be sucked into unnecessary minutiae if it were to have
the function of approving the international business or economic
agreements of statutory corporations.

Government in the context of Article 181 (5) should be interpreted

purposively to exclude corporations such as second defendant.

Conclusion:
Government as used in Article 181 (5) does not include statutory
corporations such as second defendant.

New Patriotic Party v. J. J. Rawlings & Attorney-General109

109
New Patriotic Party v. J. J. Rawlings & Attorney-General Supreme Court 3rd May 1994 (Unreported)

105
Abban, JSC

Statement of Facts:
The New Patriotic Party filed a suit at the Supreme Court and sought to
challenge the constitutionality of the action of the President in appointing
District Secretaries.

The President was personally joined to the suit. But the Attorney-General
raised the issue of whether or not under the Constitution; the President is
personally open to a suit.

Issue:
1. Whether or not the president is personally open to a suit?

Held:
1. The president has procedural immunity.

Reasoning:
The President has procedural immunity and according to Article 57(4) of
the 1992 Constitution, his official actions may be challenged through
prerogative writs or actions brought under Article 2.

In that regard, the Attorney-General would be the only proper defendant

in any of such challenges.

Abban, JSC, part of the majority, explained that Article 57(5) and (6) of the
1992 Constitution gives complete immunity in civil and criminal
proceedings to the President while in office. This is because the President
is the Head of Government, and Article 58(1) vests the executive
authoring of Ghana in him. That is whenever the President carries out
executive duties vested in him; he does so as a Government of Ghana.
That is the Government of Ghana is personified in the president.

Conclusion:
The President cannot personally be open to a suit while in office for his
official actions: the Attorney-General is the proper person.

106
Martin Alamisi Amidu v. J. A. Kuffour, Attorney-General &
Others110

Sophia A.B Akuffo, JSC

Statement of Facts:
The President appointed third, fourth and fifth defendants as staff of the
Office of the President. The plaintiff filed the present suit and challenged
same to the extent that the President’s said appointments were
unconstitutional since he made them without prior consultation with the
Council of State.

The President was personally joined in the suit but the second defendant
contended that the President cannot be personally amenable to a suit.

Issue:
1. Whether or not the president is personally amenable to a suit for
official actions?

Held:
1. The President is not amenable to a suit for his official actions.

Reasoning:
Sophia Akuffo, JSC (as she then was) relying heavily on the case of NPP v.
Rawlings,111 took the position that the President is not liable to a suit
against his person. However, his official actions may be challenged under
Article 2 or prerogative writs through the Attorney-General as provided in
Article 88 (5).

The president is the symbol of the dignity of the State and as such cannot
be personally liable to a suit.

Conclusion:
The President cannot be sued in person for his official actions.

Republic v. High Court, Koforidua, Ex Parte Bediako II112

Sophia Akuffo, JSC

110
Martin Alamisi Amidu v. J.A. Kuffour, Attorney-General & Others Supreme Court 2001
111
New Patriotic Party v. J. J. Rawlings & Attorney-General Supreme Court 3rd May 1994 (Unreported)
112
Republic v. High Court, Koforidua, Ex Parte Bediako II [1997-98] 1 GLR 488-502

107
Statement of Facts:
Baffour Atwere Bediako II, the Oseawuohene of Akyem Abuakwa with a
panel heard destoolment charges and declared Baffour Kwabene
Agyabeng II, the Odikro of Akyem Soabe, destooled.

Baffour Kwabene Agyabeng II brought the matter before the High Court
and prayed for order of certiorari for the decision of the Oseawuohene to
be quashed.

At the High Court, the Oseawuohene contended that he had not

constituted himself into a judicial committee of the traditional council but
rather he had heard the mater as the president of a panel of arbitrators.
He averred that Baffour Kwabena Agyabeng II was a mere headman but
not a statutory chief since his instalment was not completed by swearing
an oath before him and the Okyehene in accordance with the applicable
custom and usage.

He further contended that the destoolment of Baffour Kwabena Agyabeng

II was not governed by Act 370 or the Chieftaincy (Proceeding and
Functions) Traditional Councils Regulations, 1972 (LI 798) since Baffour
Kwabena Agyabeng II was not a chief. He again stated that the Akyem
Abuakwa Traditional Council reocords of Chiefs did not contain
Agyabeng’s name.

The High Court then requested the Akyem Abuakwa Traditional Council
records of Chiefs, Queenmothers, Stool Holders, Linguists and Councillors.
Satisfying himself that Baffour Kwabena Agyabeng’s name was in the
record as a chief, the Justice of the High Court quashed the destoolment
‘judgement’ made by the Oseawuohene.

The Oseawuohene then filed the present case at the Supreme Court and
invoked their supervisory jurisdiction to quash the decision of the High
Court. He contended that the high Court overstepped its bounds of
jurisdiction when it ascertained whether or not Agyabeng II was a chief.

Issue:
1. Whether or not the substance of the matter before the High Court
Judge was effectively a cause or matter, question or dispute
affecting chieftaincy?

Held:

108
 1. The substance of the matter before the High Court was not a matter
or cause, question or dispute affecting chieftaincy.

Reasoning:
In the Republic v. High Court, Denu, Ex Parte Avadali IV, 113 the Supreme
Court held that in determining a matter affecting chieftaincy, it is
important to consider the substance of that matter and not the form.
Section 117 the Court Act, 1993 (Act 459) provides that a cause or matter
affecting chieftaincy means any cause, matter, question or dispute
relating to nomination, election, selection, installation or deposition of a
person as a chief or the claim of a person on these grounds. It also relates
to destoolment or abdication of any chief.

In view of this, the substance of the matter before the High Court was
whether or not the Oseawuohene had the jurisdiction to destool the
Odikro of Soabe. It was not about a matter relating to nomination,
election, installation or disposition of a chief.

The High Court Judge did not err when he sought to inquire if Baffour
Kwabena Agyabeng II’s name was on the records of the traditional council
in order to satisfy himself in the determination of the matter before him.
Such an enquiry did not amount to a determination of a person’s
nomination, election, installation or disposition as a chief. And this did not
amount to stepping beyond the jurisdiction of the High Court.

Conclusion:
The High Court did not ascertain the substance of a matter affecting
chieftaincy so it did not err.

In Re Moshiehene of Kumasi; Abdulrahman v. Abubakari114

Acquah, Jsc

Statement of Facts:
When the head of the Moshie Community in Kumasi died, the council of
elders nominated Alhaji Abdulrahman, his son, as the new head and
presented him to the head of Mumprusi Community for installation.

Alhaji Abubakari was equally nominated by a sub-council of elders and he

was presented to the Moshie Imam for installation.
113
Republic v. High Court, Denu, Ex Parte Avadali IV [1993-94] 1 GLR 561
114
In Re Moshiehene of Kumasi; Abdul Rahman v. Abubakari [1999-2000] 1 GLR 180-194

109
Abdulrahman then brought an action at the High Court to the effect that
he was validly elected and installed as the head of Moshie Community of
Kumasi and argued that the defendant was not.

The High Court found that the head of the Moshie Community was not a
chief properly so called. It was found that, as a matter of practice, the
process of installation was the case of the plaintiff and subsequently found
for him.

The defendant then sought the supervisory jurisdiction of the Supreme

Court for an order to quash the decision of the High Court to the effect
that the matter was one affecting chieftaincy so the High Court had no
jurisdiction.

The Supreme Court by a 3-2 majority found for him and quashed the
decision of the High Court. Abdulrahman, the applicant then filed the
instant review and prayed the Supreme Court to review the decision of the
Supreme Court at the first instance. He argued that the matter before the
High Court did not relate to chieftaincy. The respondent contended that
position.

Issue:
1. Whether or not the head of such community of migrant Moshies in
Kumasi and other parts of Ashanti is a chief within the legal
definition of the word?

Held:
1. The head of the Moshie Community in Kumasi is not a chief.

Reasoning:
Article 277 of the 1992 Constitution provides that a chief must come from
the right family and lineage, he must be validly nominated and enstooled
or enshrined or installed as a chief in accordance with the relevant
customary law and usage.

It was found that the head of the Moshie Community of Kumasi does not
follow any bloodline of succession and that any distinguished person may
be installed as the head. The selection and installation of the Moshiehene
being the head of migrant community did not quality under Article 277 of
the 1992 Constitution.

110
In deed the word Moshiehene was even alien to the Moshie Community.
Since the head of the Moshie Community of Kumasi is not a chief, the High
Court had jurisdiction to hear the matter and that decision must be
upheld. Therefore the Supreme Court erred in their earlier decision.

Conclusion:
The head of the Moshie Community of Kumasi is not a chief within the
meaning of Article 277 of the 1992 Constitution.

The Republic v. High Court Judge, Sunyani; Ex Parte Alhaji Collins

Dauda (Yiadom Boakye Boating, Interested Party)115

Dr Date-Bah, JSC

Statement of Facts:
After the parliamentary election of Asutifi South Constituency, but before
the declaration of results, the New Patriotic Party Parliamentary
Candidate, Yiadom Boakye-Boateng, filed a case on 16th December 2008
at the Sunyani High Court and complained that the election results in his
constituency had been tampered with. Therefore he prayed the court
either to discount two ballot boxes, whose post ballot custody and
transmission arrangements to the collation centre had been
compromised, or to annul the entire parliamentary results and order fresh
parliamentary election.

The High Court Judge, relying on the second leg of Section 18(1) of the
Representation of the People Law, 1992 (PNDCL 284) to the effect that if a
petition is alleging a corrupt practice it may be presented within twenty-
one days after the date of the alleged corruption, found for the plaintiff.

The defendant, Alhaji Collinus Dauda, the NDC Parliamentary Candidate,

filed the instant case at the Supreme Court, invoking its supervising
jurisdiction. He prayed the Court for an order of certiorari to quash the
decision of the High Court. His argument was that the High Court lacked
115
The Republic v. High Court Judge, Sunyani; Ex Parte Alhaji Collins Dauda (Yiadom Boakye Boating, Interested
Party) Unreported Supreme Court NO JS/12/2009 8TH APRIL 2009

111
jurisdiction because the election petition should only be admitted when
election results are declared and gazetted. And since the case was filed
before the election, it was not proper for the High Court to have admitted
it.

Issues:
1. Whether or not the High Court has jurisdiction to entertain any
election petition under the Representation of the People Law, 1992
(PNDCL 284) before the Electoral Commission has declared the
results of that election?

Held:
1. An election petition may only be brought after the Electoral
Commission has declared a result in relation to the election.

Reasoning:
Sections 18, 19 and 20 of PNDCL 284 imply that there should be a
declaration of results before an election petition may be brought to the
High Court. The second portion of Section 18(1) which relates to an
allegation of corruption or payment of money in favour of a member to
the election does not mean there should be no declaration of result before
a petition is issued.

The Supreme Court is of the decision that the wording of Section 18(1) of
PNDCL 284 which has the expression “the person whose election is
questioned” logically implies “that an election must have taken place and
its results declared by the Electoral Commission.” In the absence of a
declaration, “there would be no person whose election is being
questioned.”

The Court decided that the obiter dictum of Acquah, JSC (as he then was)
in Republic v. High Court, Bolgatanga; Ex parte Hawa Yakubu 116 to the
effect that for any other reason apart from allegation of corruption, an
election petition may be issued within 21 days after the date of the
gazette publication of the results of the disputed election was per in
curiam.

In all circumstances therefore the petition of an election must be issued

after the declaration of results by the Electoral Commission.

Conclusion:

116
Republic v. High Court, Bolgatanga; Ex parte Hawa Yakubu [2001-2002] 1 GLR 311

112
The ruling and the decision of the High Court is quashed and the Judge
prohibited from further hearing same.

Michael Yeboah v. Joseph Henry Mensah117

Hayfron – Benjamin, JSC

Statement of Facts:
Mr J. H. Mensah was on 7th December 1996 elected the Member of
Parliament for the Sunyani East Constituency. On 25th February 1997, the
plaintiff filed the instant writ at the Supreme Court. He involved the
original jurisdiction of the Supreme Court and contended that the
defendant at the time of the election was not qualified or competent to
become Member of Parliament in terms of Article 94(1) (b) of the 1992
Constitution.

The defendant, contending that he was validly elected, raised a

preliminary objection that the plaintiff’s action was incompetent as having
been instituted in the wrong forum. He further argued that the present
writ is couched as election petition.

Issue:
1. Whether or not the Supreme Court has jurisdiction to entertain the
instant case?

Held:
1. The Supreme Court lacks jurisdiction to hear a parliamentary
election petition.

Reasoning:
The Supreme Court is of the view that the right forum for a parliamentary
election petition is the High Court per the provision of Article 99 of the
Constitution, 1992. They upheld that when the Supreme Court shares
jurisdiction with any other court, first forum is that other court.

117
Michael Yeboah v. Joseph Henry Mensah Supreme Court No. 2/97 6/6/1998

113
The Court, relying on the decline of jurisdiction in Edusei v. Attorney –
General and Anor,118 when the plaintiff sought to enforce his personal
human rights, lacks jurisdiction in the instant case which has the nature of
an election petition. The right forum is the High Court.

Conclusion:
The Supreme Court lacks jurisdiction to entertain the present case.

Republic v. Director of Prisons: Ex Parte Salifa (No 1)119

Statement of Facts:

Mohammed Addul Rahim Baba Salifa, the applicant, was sent to live with
a guardian in Guinea for schooling in 1965. The applicant suffered ill-
treatment from his guardian and escaped to Sierra Leone. In Sierra Leone,
he sought the assistance of the Ghana High Commissioner to help him
return to his parents in Accra.

In or about June 1965, he returned to Ghana but on his arrival, he was

immediately detained by the police until the date of the present case. His
father then filed the instant application praying for an order for habeas
corpus directed against the Director of Prisons and the Director of Special
Branch for the immediate release of his son, Salifa.

Counsel for the applicant contended on his behalf that the press release
dated 24th April 1968 by the Ministry of Information shows clearly that
nobody was still in protective custody.

He further argued that the document which the Director of Prisons

purported to be a photostat of a National Liberation Council decree, which
sought to be the lawful ground for the detention could not be an
enactment because it did not have a number. And it had not been
published in the Gazette as had been all known NLC decrees.

He contended that the omissions were in contravention of the law as

provided by sub-paragraph (6), (7), (9), (10) and (11) of paragraph 3 of
the Proclamation as amended by paragraph 16(a) of NLCD 73.

118
Edusei v. Attorney – General and Anor (1996) SCGLR1
119
Republic v. Director of Prisons: Ex Parte Salifa [1968] GLR 630-645

114
He further contended forcefully that the prisoner was entitled to be
discharged by virtue of Section 4 of the Habeas Corpus Act, 1964 (Act
244), as there was no legal justification for the detention.

The State Attorney and later the Principal State Attorney, arguing for the
Republic, contended that once the decree was signed by the Chairman of
the NLC, it was valid even without publication in the Gazette. And he
submitted that a decree could be a decree notwithstanding that it had not
been published.

It was further argued on behalf of the Republic that the NLC had unlimited
power. Again, it was submitted that a contention on the validity or
invalidity of the alleged decree would amount to questioning whether an
enactment was made in excess of the powers conferred on the authorities
responsible for making such enactments. And such a contention must
rather be directed to the Court of Appeal.

Issues:

1. Whether or not a contention of the validity or invalidity of the

alleged decree amounts to questioning of the power that enacted it?

2. Whether or not the alleged decree is a decree in the eyes of the

law?

3. Whether or not the NLC had unlimited powers?

4. Whether or not habeas corpus will issue?

Held:

1. A contention of the validity or invalidity of the alleged decree does

not amount to questioning of the power that enacted it.

2. The alleged decree is not a decree in the eyes of the law.

3. The NLC did not have unlimited powers.

4. Habeas corpus will issue.

Reasoning:

115
The trial Judge reasoned that even though he agreed that a decree was
equal to an Act of Parliament, the contention of the applicant was to the
effect of whether the decree or an Act was a decree or an Act at all. The
case of the applicant is not questioning the content of the decree or the
Act. The matter does not affect whether the power that enacted the
decree was exercised ultra vires or in excess but whether it was actually
enacted at all. Therefore, there was no need to refer the matter to the
Court of Appeal.

The court found that the document purported to be a photostat copy of a

decree was not a decree in the face of the law. It did not conform to the
provisions of the Proclamation. That is, the decree was not numbered and
published- condition precedents to the enactment of NLC decrees.

The argument that the decree was signed by the Chairman of NLC and
therefore qualified to be a valid decree notwithstanding the numbering
and publication in the Gazette was not accepted by the Court.

The Court further reasoned that the NLC Proclamation provided “for the
eradication by the NLC of illimitability of power in Ghana; and I therefore
dismiss in limine the last argument of the learned Principal State Attorney
that the NLC have by the Proclamation an unlimited power.. for autocracy
in Ghana was given a decent burial on 24 th February 1966.” The NLC could
not therefore had unlimited power.

Since the content of the press release by the Ministry of Information had
not been challenged with regard to the source, there was an established
law that the detainee in this case, like those detained, should have been
released.

In the circumstances the applicant had been unlawfully detained not

because the authorities had no discretionary power to detain him but
because such discretionary power had been exercised detaining him in a
manner otherwise than was lawfully permitted under the provision of the
law as laid down by the Proclamation by the NLC.

Conclusion:

An application for an order of habeas corpus granted.

116
Republic v. Director of Special Branch; Ex Parte Salifa (No 2)120

Statement of Facts:

Following the release of Mohammed Abdul Rahim Baba Salifa on the order
of the High Court in the Ex Parte Salifa (no 1), 121 the Special Branch of the
Police Service rearrested him. This time, he was accused of subversion.

His father subsequently filed a writ of habeas corpus ad subjiciendum and

prayed the Court to have his son released.

On behalf of the applicant, the counsel contended that the decree

submitted by the Attorney-General upon which the boy was detained did
not qualify as an NLC decree.

He argued that the said decree was not numbered and it was also not
published. And this is contrary to the provisions of paragraph 3 of the
Proclamation for the Administration of Ghana as amended by NLCD 73,
paragraph 16(a).

He argued that the NLC had unlimited power but chose to put restrictions
on itself which must be complied with.

The Attorney-General also contended that the decree was signed by the
chairman of NLC and that made it valid. He further argued that numbering
of a decree related only to decrees which were being published and could
not be taken to refer to any decree which was not published.

Issues:

1. Whether or not a person can be rearrested after he had been

released on habeas corpus?

2. Whether or not the police can arrest a person without a warrant?

3. Whether or not the decree was valid?

Held:

120
Republic v. Director of Special Branch; Ex Parte Salifa [1968] GLR 646-666
121
Republic v. Director of Prisons: Ex Parte Salifa [1968] GLR 630-645

117
 1. A person is not privileged from arrest after released on habeas
corpus.

2. The police can arrest a person without a warrant.

3. The decree was valid.

Reasoning:

A person who is released from unlawful custody can be rearrested on a

different charge. The charge for the first arrest was unknown but the
police gave suspected subversion as the charge on which the boy was
rearrested. A release on habeas corpus does not immune a person from a
subsequent arrest on another charge.

In matters such as subversion, the police can arrest a person without or

with warrant. In any event there are authorities to support the proposition
that the police have the right to arrest without a warrant a person who is
suspected of having committed or being about to commit an offence. The
police are expected by the public to pursue wrongdoers with energy and
initiative. To this end, the arrest without a warrant under the circumstance
was not unlawful.

Further, the Court took the view that a decree may come into effect on a
date specified in the body of the decree or on the date of publication. That
is, a decree may be retrospective or progressive.

Looking at the wording of paragraph 3 of the Proclamation decree, a

decree can be made and become operative before steps are taken to
have it published. And it is at the point of publication that the numbering
becomes relevant.

Therefore, the document (no 13) has effect even though it is not published
since it has a retrospective effect. There is nothing that shows that the
document will not be published.

Conclusion:

The decree that sought to detain the boy was not unlawful. And the arrest
on a different charge without a warrant is also lawful.

118
State v. General Officer Commanding the Ghana Army; Ex Parte
Braimah122

Statement of Facts:

The respondent, a Nigerian citizen resident in Ghana, was arrested by the

army authorities on suspicion of having committed the offence of stealing.
At the time, the army had the power to arrest and prosecute just like the
police.

The Attorney-General gave a written consent for the respondent to be

detained for 28 days. He did this pursuant to NLCD 93 which amended
Section 15(5) of the Criminal Procedure Code, 1960 (Act 30).

After the first 28 days had expired, the Attorney-General then issued a
written consent for another 28 days.

The nephew of the respondent then filed a writ of habeas corpus. He

contended that the second 28 days consent by the Attorney-General was
unlawful.

The High Court accepted his view of the law and ordered the release of
the respondent. The General Officer commanding the Ghana Army then
filed an appeal at the Court of Appeal (full bench). On his behalf, the
Attorney-General argued that on the interpretation of the said law he had
the power to determine any days at all for which a person may be
detained.

The counsel for the respondent argued that the Attorney-General had no
power to give consent for the further detention of the respondent once
the respondent had completed the original 28 days in custody. He further
argued that the Attorney-General had power to issue his consent in
respect of another person but not the one who had served the first 28
days.

Issue:

1. Whether or not the Attorney-General has the power to give a second

consent after the first 28 days had expired?

Held:

1. The Attorney-General has the power to determine any number of

days at all.

122
State v. General Officer Commanding the Ghana Army; Ex Parte Braimah [1967] GLR 192- 202

119
Reasoning:

The NLC in the existing circumstance takes the place of the Parliament of
Ghana. And their decrees could be seen as Acts of Parliament. The
disputed decree, NLCD 93 does empower the Attorney-General to issue
any number of written consents for the detention of any arrested person.

The Attorney-General was to establish the fact that an inquiry is being

carried on. There must be reasons for the protracted inquiry such as the
complexity of the matter. It must be shown that it is not safe the detainee
is at large while inquiry proceeds.

Since the inquiry into the matter relating to the arrest and detention was
complex enough to require for its completion a larger time than 28 days,
the appeal was allowed.

However, the Court expressed its view that the NLCD 93 was improper to
the criminal law regime and that steps should be taken to remove it from
the statute books since it was susceptible to abuse as it was actually
abused in the past.

Conclusion:

The Attorney-General has the power to give another consent after the
expiration of the first one.

120