NEW PATRIOTIC PARTY v ATTORNEY-GENERAL (31ST DECEMBER CASE) [1993-94] 2 GLR 35

NEW PATRIOTIC PARTY v ATTORNEY-GENERAL

SUPREME COURT, ACCRA

8 March 1994

ARCHER CJ, ADADE FRANCOIS, ABBAN, AMUA-SEKYI, AIKINS, BAMFORD-ADDO, HAYFRON-BENJAMIN AND AMPIAH JJSC

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a registered political party, before the Supreme Court under article 2(1) of the Constitution, 1992 for a declaration that the public celebration of 31 December as a statutory public holiday which had been announced by the government was inconsistent with and in contravention of specified provisions of the Constitution; an order to compel the government to cancel the preparations for the celebration of that day as a public holiday; and to refrain from using public funds to finance the celebration. The facts are fully stated in the judgments of the panel.

COUNSEL

Peter Ala Adjetey (with him Sam Okudzeto, Kojo Afram Asiedu and William Addo) for the plaintiff.

Martin A. Amidu, Deputy Attorney-General (with him Mrs Adusa Amankwah, Chief State Attorney) for the defendant.

JUDGMENT OF ARCHER CJ.

On 24 February 1966 this country witnessed the first coup d’etat in her political history. The government of the First Republic was overthrown by the Ghana Armed Forces in collaboration with the Ghana Police Force. A Proclamation was issued conferring both the legislative and executive powers of the State on a National Liberation Council. The judiciary remained unscathed after the Proclamation which suspended the Constitution, 1960 of the First. Republic which came into force on 1 July 1960.

On 22 August 1969 the Second Republican Constitution came into force and the Constitution, 1960 was abrogated. Part IV of the transitional provisions in the Constitution, 1969 granted indemnity to those who staged the Coup on 24 February 1966. Chapter 9 of the [p.44] Constitution, 1969 vested the judicial power of Ghana in the judiciary. Article 102(3) of the Constitution, 1969 guaranteed the independence the judiciary. For the first time in the legal history of this country, the American concept of the doctrine of separation of powers could be discerned throughout that document, namely the powers of the legislature, the executive and the judiciary.

On 13 January 1972 there was yet another coup d’etat and the Constitution, 1969 was suspended by a Proclamation which establish a National Redemption Council (NRC) to be succeeded for a brief period by a Supreme Military Council (SMC) until 4 June 1979 when the Armed Forces Revolutionary Council. (AFRC) took over from Supreme Military Council.

On 24 September 1979 the Third Republican Constitution, 1979 came into force. At this stage, it must be pointed out that the doctrine of separation of powers still pervaded the Second and Third Republican Constitutions and in substance there was not much difference in the substance and wording of the two Constitutions except that in the Second Republican Constitution there was a provision for a ceremonial President and a Prime Minister whereas the Third Republican Constitution reintroduced the presidential system of government.

On 31 December 1981 there was another coup d’etat and by a Proclamation, the Provisional National Defence Council (PNDC) was established and it governed this country until 7 January 1993 when Fourth Republican Constitution, 1992 came into force and the present government known as the National Democratic Congress with two other parties, the National Convention Party and the Egle Party, formed alliance and assumed the reins of government. Under an existing law, namely the Public Holidays Law, 1989 (PNDCL 220), the present government notified the public of its programme to celebrate anniversary of the 31 December 1981 revolution which has been specified in the Schedule to PNDCL 220. The intended celebration the of 31 December 1981 revolution invoked the wrath and indignation of interested sections of the public who were vehemently opposed to coups.

On 21 December 1993 the plaintiff, a registered political party, issue a writ invoking the original jurisdiction of the Supreme Court under articles 2(1)(b) and 130(1) of the Constitution, 1992 under rule 45 of Supreme Court Rules, 1970 (Cl 13) claiming the following reliefs:

“(1) A declaration that the public celebration of the overthrow of the legally constituted Government of Ghana on 21 December 1981, and the financing of such celebration from [p.45] 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.

(2) 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.”

The writ was issued against the Attorney-General as the defendant who admitted almost all the averments in the statement of the plaintiff’s case but contended, inter alia, that 31 December like all public holidays in Ghana is a holiday by virtue of the provisions of section 1 of PNDCL 220.

The defendant further contended that moneys were legally appropriated under the 1993 budget for the celebration of the historical values that the 31 December revolution stood for and that the Constitution, 1992 established a nexus between the 31 December revolution and the Fourth Republican Constitution, 1992 itself. Also, the President of the Republic who was also a Ghanaian and leader of the 31 December revolution and the members of Parliament of the National Democratic Congress Party to which the President belongs were elected on the party’s manifesto whose underpinning was continuity of the good works and values of the 31 December revolution. Lastly, the defendant maintained that what the plaintiff was seeking to do was to question the constitutionality and legality of the 31 December revolution, and the events which gave rise to that revolution on 31 December 1981 which should not be entertained by the court by virtue of section 34, particularly section 34(2) of the transitional provisions of the Constitution, 1992.

Having considered the statement filed by both parties and their oral submissions during the hearing, I wish to say that I can discern sensitivities and susceptibilities grouped on one hand, pitched against political statements interspersed with self-adulation and partisan platitudes on the other. The invitation to this court is to descend into this arena and decide whose contention is constitutionally tenable. On my part, I refuse to accept the invitation. Rather, I shall attempt to answer three questions. First, which organ of state has power to pass laws to regulate public holidays? Secondly, can this court interfere with that legislation? Thirdly, call this court prevent the actual celebration with or without public funds?

[p.46]

Before the British colonial administration came to these shores to govern, we had holidays in various parts of the country among ethnic groups for the celebration of festivals restricted to various localities. Up to this day, farmers in different parts of the country do not farm on a particular day of the week. In the south, we all know that fishermen do not go fishing on the seas on Tuesdays. These days of rest are consistent with the biblical text in Genesis chap 2, v 2: “And on the seventh day God finished his work which he had made, and he rested on the seventh day from all his works which he had made.” How did public holidays affecting the whole nation come into existence in Ghana?

On 20 May 1899 the Public Holidays Ordinance, 1899 (Cap 208) was enacted and the following days were declared public holidays: 1 January, Good Friday, Easter Monday, Whit Monday, His Majesty’s birthday, the first Monday in the month of August, Christmas Day, 26 December and all days which the Governor may, by proclamation, declare to be days of thanksgiving or to be public holidays. Later, the Saturday next following Good Friday and 24 May (Empire Day) were added as public holidays. It is clear that from the origins of public holidays, only the legislature and the executive have had exclusive power to declare holidays.

The British colonial government introduced public holidays here because observance of public holidays in England was governed by an Act of Parliament. To be precise, in 1551 during the reign of Edward VI, Parliament had enacted a law, ie the Holy Days and Fasting Days Act, 1551 (5 & 6 Edw 6, c3) for the keeping of holy days and fasting days. The latter part of the preamble reads:

“Neither is it to be thought that there is any certain time or definite number of days prescribed in holy Scripture, but that the appointment both of the time, and also of the number of the days, is left by the authority of God’s word to the liberty of Christ’s Church, to be determined and assigned orderly in every Country by the discretion of the rulers and ministers thereof, as they shall judge most expedient, to the true setting forth of God’s glory and the edification of their People.”

“Rulers and ministers” are mentioned. Judges and courts are not mentioned. What started purely as religious holidays has been expanded to include holidays not necessarily connected with any religious observance.

After our independence, the Public and Bank Holidays Act, 1958 (No 1 of 1958) was enacted on 22 March 1958 to consolidate and amend [p.47] the law relating to the observance of public holidays and bank holidays and for other purposes relating thereto. The holidays in the Schedule were limited to Ghana Independence Day, 6 March; Good Friday, Saturday next following Good Friday; Easter Monday; National Founder’s Day, 21 September; Christmas Day; and Boxing Day.

After the 1966 coup, Liberation Day, 24 February was included in the Schedule by the Public Holidays Instrument, 1966 (LI 509) as a public holiday. The Public Holidays Decree, 1972 (NRCD 8) omitted Liberation Day and substituted therefor, National Redemption Day (13 January). However, Liberation Day was reinstated by the Public Holidays (Amendment) Decree, 1973 (NRCD 154) on 12 February 1973, and again removed from the Schedule on 20 February 1974 by the Public Holidays (Amendment) Decree, 1974 (NRCD 244). It should be observed that up to 21 June 1974, business and trade were carried on on public holidays without any restriction. By the stroke of the pen the Public Holidays Decree, 1974 (NRCD 262) was passed to prohibit business and trade on National Redemption Day, Independence Day or Republic Day, except the sale of food and grocery shops, drug and pharmacy shops, restaurants and hotels, markets for sale of foodstuffs, sale of spirits, wine and beer and running of essential public services. Penalties were introduced for contraventions. In effect, motor mechanics, electricians, plumbers, hair-dressers and a host of other commercial or industrial activities were subjected to restrictions and penalties.

These prohibitions were retained by the PNDC when it passed the Public Holidays Law, 1989 (PNDCL 220) and omitted National Redemption Day from the Schedule but added 1 May (Workers Day), 4 June and 31 December and subsequently Farmers Day, the first Friday in December.

It is clear from the narrative I have given that declaration of public holidays has always been within the exclusive domain of either the legislature or the executive. The courts have never interfered with the exercise of these powers. The present suit is unprecedented. There are no previous decisions to go by as guide-lines and I think this court should consider this suit with retrospection, introspection and circumspection.

The gist of the plaintiff’s case is that the celebration of 31 December as a public holiday, is inconsistent with or in contravention of the letter and spirit of the Constitution, 1992. The plaintiff relied on article 3(3), (4), (5), (6) and (7) and also article 3(2) which reads: “(2) Any activity of a person or group of persons which suppresses or seeks to suppress the [p.48] lawful political activity of any other person or any class of persons, or persons generally is unlawful.”

I must confess that I find it extremely difficult to agree that the mere declaration and celebration of a public holiday will suppress or seek to suppress the lawful political activity of any other persons or class of persons or persons generally. There is nothing in PNDCL 220 which prohibits the holding of political rallies or meetings on public holidays including 31 December. Article 3(3) of the Constitution, 1992 also provides:

“(3) Any person who —

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause;

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.”

When this article 3(3) of the Constitution, 1992 is applied to the averments in the plaintiff’s statement of his case, it is impossible to conclude that the celebration of the public holiday will amount to suspension, overthrow or abrogation of the Constitution, 1992. The “letter of the Constitution” relied on by the plaintiff does not fit the averments, and the averments are not caught by the letter. With this conclusion, I do not think it is necessary to refer to or deal with article 3(4), (5), (6) and (7) of the Constitution, 1992.

The plaintiff also has relied on the spirit of the Constitution, 1992. I understand this reliance to be simply this—the Constitution, 1992 has said good-bye to all coups d’etat and has introduced a constitutional democracy. Therefore, nothing should be done to remind Ghanaians of the past by paying premium to the events that occurred on 31 December 1981.

Wherein lies the spirit of a Constitution? Is it embedded in the whole document? Or in parts of the document? When we interpret statutes, we do not rely on the spirit of the Act. This maxim of interpretation applies also to a Constitution. When the words are clear and unambiguous, we do not go further to imagine or speculate on what the words mean. What I know is that at times, it becomes necessary to find out the intention of the legislature. This is what is meant by “the intendment of the [p.49] legislature.” When one applies, “the intendment of the Consultative Assembly it is clear that the Constitution makers did not intend that the averment in the plaintiff’s statement of clam against the defendant could amount to a violation of or inconsistency with the Constitution, 1992. Mere remembrance of an event in the political history of this country cannot amount to subversion of the Constitution, 1992. Human memory at times can be more accurate than the mechanism of a tape recorder which can also be faulty at times. When one records something on a tape, the recording can be erased and the tape can be reused. The human memory is eternal and everlasting. One cannot obliterate historical events from the minds of men who witnessed the event. Can we prevent Ghanaians from reminiscing on the events of 31 December 1981 if they choose to? Certainly not.

I have found it unnecessary to dive and delve further into what is meant by the spirit of the Constitution because I am convinced that it is a cliche used in certain foreign countries when interpreting their own constitutions which were drafted to suit their own circumstances and political thought. Whether the word “spirit” is a metaphysical or transcendental concept, I wish to refrain from relying on it as it may lead me to Kantian obfuscation. I would rather rely on the letter and intendment of the Constitution, 1992.

Should the declaration sought be granted? I have already referred to the doctrine of separation of powers which pervaded the Constitutions, 1969 and 1979 which now permeates the Constitution, 1992. The present Constitution, 1992 guarantees the independence of the judiciary which is subject only to the Constitution and this is reinforced by article 125(3) of the Constitution, 1992 which provides:

“(3) The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”

The Constitution, 1992 gives the judiciary power to interpret and enforce the Constitution, 1992 and I do not think that this independence enables the Supreme Court to do what it likes by undertaking incursions into territory reserved for Parliament and the executive. This court should not behave like an octopus stretching its eight tentacles here and there to grasp jurisdiction not constitutionally meant for it. I hold that this court has no constitutional power to prevent the executive from proclaiming 31 December as a public holiday because the executive then would be [p.50] applying an existing law in PNDCL 220 which can only be amended by Parliament.

Under section 30 of the transitional provisions of the Constitution, 1992 the First President under the Constitution, 1992, by constitutional instrument, may at any time within twelve months after assuming office as President, make such provision as may appear necessary for repealing, modifying, adding to or adapting any law for bringing it into accord with the provisions of the Constitution, 1992 or otherwise for giving effect to the Constitution, 1992. At the time the writ was filed, the President had not repealed or modified the First Schedule to PNDCL 220 which was existing and therefore the executive could rely on it. Parliament which has the power to enact laws has not also bothered to modify the First Schedule to PNDCL 220. If Ghanaians, including the plaintiff, feel very strongly about 31 December as a public holiday, the door is not closed to them. They should urge their representatives in Parliament to amend the Schedule by deleting any public holidays that are obnoxious and undesirable. It is not the function of this court to effect such amendments or repeals. It would amount to a naked usurpation of the constitutional powers of Parliament.

Now what about the other relief 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 such celebration financed from public funds.”

I have always held the view that this court like equity must not act in vain. In other words, it should not make orders that could be lawfully and legitimately circumvented so as to make the court a laughing stock. Under the Constitution, 1992 the President is the commander-in-chief of the Ghana Armed Forces. Suppose he accepts the declaration sought and confers with his commanders and service chiefs not to hold any route marches on 31 December 1993, yet the non-commissioned officers who were instrumental in staging the 31 December 1981 coup d’etat choose to parade through the streets of Accra, who can stop them? Is this court going to send judges, magistrates, registrars, court bailiffs and ushers to erect barricades in the paths of the marchers? Again suppose notwithstanding the orders of this court, the members of the governing party, and their allies choose to celebrate 31 December with picnics, processions and dances, who can stop them? I must confess that the [p.51] more I ponder over the reliefs sought, the more I become convinced of the futility of the orders being sought. I think this is a case which requires realism, pragmatism and foresight on the part of this court.

The other ambit of the relief sought is for an order directed to the government to refrain from carrying out any such celebration financed from public finds. The defendant admitted:

“that money was legally appropriated under the 1993 budget which were lawfully being used for the celebration of both the historical values that the 31 December revolution stood for and the first anniversary of the Fourth Republic which was born out of the values of the 31 December revolution.”

I shall ignore this innocuous political rhetoric in this admission and attempt to answer the question whether the judiciary in this country has ever had the opportunity and power to prevent Parliament from appropriating money for use by the executive. Article 108 of the Constitution, 1992 provides:

“108. Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of, the President—

(a) proceed upon a bill including an amendment to a bill, that, in the opinion of the person presiding, makes provision for any of the following —

(i) the imposition of taxation or the alteration of taxation otherwise than by reduction; or

(ii) the imposition of a charge on the Consolidated Fund or other public funds of Ghana or the alteration of any such charge otherwise than by reduction, or

(iii) the payment, issue or withdrawal from the Consolidated Fund or other public funds of Ghana of any moneys not charged on the Consolidated Fund or any increase in the amount of that payment, issue or withdrawal;

(iv) the composition or remission of any debt due to the Government of Ghana, or

(b) proceed upon a motion, including an amendment to a motion, the effect of which, in the opinion of the person presiding, would be to make provision for any of the [p.52] purposes specified in paragraph (a) of this article.”

I have quoted this article in extenso to demonstrate the procedure the Constitution, 1992 has laid down for the provision of moneys for the government to administer the country. It is only the President, who is the head of the executive, who can go to Parliament to seek financial provision charged upon the Consolidated Fund. Nowhere in this article is the role of the judiciary mentioned. Yet, this court is being invited to prevent the government from spending moneys which Parliament has constitutionally provided for government use. I think if the order is granted, it would amount to judicial officiousness—poking our noses into the affairs of Parliament and intermeddling with the prerogative of the executive by directing the government not to spend moneys approved by Parliament. Such a move clearly amounts to a violation of the doctrine of separation of powers which is the core of our Constitution, 1992.

If this court interferes, then what is the necessity for the office of the Auditor-General under article 187 of chapter 13 of the Constitution, 1992? It is being maintained that the moneys voted for the celebration of the 31 December holiday amount to misapplication of public funds. It is not the duty of this court to don the mantle and cloak of the Auditor-General, whose duty under article 187(2) of the Constitution, 1992 is to audit all public accounts of Ghana and within six months after the end of the immediately preceding financial year, to submit his report to Parliament drawing attention to irregularities in the accounts audited and to any other matter which in his opinion ought to be brought to the notice of Parliament.

My opinion is based purely on the doctrine of separation of powers as regards Parliament, the executive and the judiciary which augurs well for this country. The defendant has averred that the plaintiff’s case is an attempt to challenge the validity of the transitional provisions of the Constitution, 1992. For my part, I do not want to carry coal to Newcastle because my views on the transitional provisions can be found in Kwakye v Attorney-General [1981] GLR 9, SC. I stand by every word I said in my judgment in that case. If one spirit of the Constitution, 1992 is to bid farewell to all coups, there is yet another spirit of the Constitution, 1992 through the transitional provisions which in effect exhorts and admonishes all of us to forgive all those who staged previous coups. However, it does not say we should forget. That will be impossible. I hope I will not be mistakenly referred to as a supporter of coups. In this [p.53] regard, I wish to refer to my judgment in Atto-Mensah v The Republic [1967] GLR 562 at 586 where I cited the famous Spanish-American philosopher—George Santayana as quoted in Durant, Outlines of Philosophy (1962 ed) at p 431:

“Revolutions are ambiguous things. Their success is generally proportionate to their power of adaptation and to the reabsorption within them of what they rebelled against. A thousand reforms have left the world as corrupt as ever, for each successful reform has founded a new institution, and this institution has bred its new and congenial abuses.”

This is what I said on 2 October 1967, when the then National Liberation Council had consolidated its power and had reached the apogee of its revolution. It was the first coup in this country and my words were to alert the council to the wise words of George Santayana.

Before I end, I wish to refer to a submission made by learned counsel for the plaintiff. He mentioned the penalties in the public holidays law. These penalties were introduced for the first time in this country by the then National Redemption Council headed by Mr Acheampong. I say “Mr” because, as we all know, he was deprived of his military rank of “General” by the their Supreme Military Council under military law, which I must respect. As far as I know, no prosecutions have take place and I hope there will not be any. In a country where we have no old-age pensions schemes, no unemployed benefits and no family benefits, I do not see why a person should not be permitted to work on public Holidays to earn his living. It is monstrous to deprive him of the opportunity of earning some income to feed himself only because a law has ordained that he must observe a particular public holiday and he must rest whether he needs the rest or not. At this stage, I shall refrain from expressing any views as to whether, or not these restrictions and penalties constitute violations of fundamental human rights. But is it morally right and just that a self-employed person should be prevented from working on a public holiday to earn his living? I leave this question to Parliament and the executive for the answer.

Finally, I wish to make an observation. Before this action was instituted, Ghana had ten public holidays throughout the year and second only to Northern Ireland, throughout the whole world, which has eleven public holidays. One of them is 12 July in commemoration of the Battle of the Boyne in 1690 when the forces of Roman Catholic King James II were defeated by the protestant forces of King William III—Prince of [p.54] Orange. Up to this day, the protestants in Ulstar celebrate this public holiday, with marches through the streets of Belfast without any obstruction or protestation from the Catholic minority—what an admirable tolerance! Ghana has more holidays than England and Wales and Scotland, each with nine holidays. Can a developing country like Ghana afford a string of holidays which at times can be boring? I leave the answer to Parliament and the executive. The British colonial administration introduced six public holidays in this country in 1899. We have ten and I wonder what would be the number by the year 2000.

In conclusion, I am of the opinion that this court, in view of the doctrine or concept of separation of powers embedded in our past and present Constitutions, is not competent to grant the reliefs sought by the plaintiff.

I have demonstrated that this court would be guilty of three inexcusable and unconstitutional trespasses, first, a trespass into the domain of Parliament; secondly, a trespass into the territory of the executive; and thirdly, a trespass into the terrain of the Auditor-General. These trespasses should be avoided by not granting the declaration and the orders sought.

JUDGMENT OF ADADE JSC.

On 31 December 1981 the Government of Ghana, established under the Constitution, 1979 was removed from power in a military coup d’etat. The coup-makers then set up their own government provisionally, until such time that another constitutional government could come into being. The government was christened “the Provisional National Defence Council (PNDC).” That provisional government ruled the country for eleven years—31 December 1981 to 7 January 1993. During those eleven years, every 31 December was declared a public holiday and celebrated as such, in commemoration of the military coup of 31 December 1981, an event, no doubt, of great historical significance.

On 7 January 1993 Ghana’s new Constitution, 1992 came into force, and with it, a new constitutional order. The PNDC was abolished and it ceased to exist with effect from that date by virtue of section 36(1) of the transitional provisions of the Constitution, 1992 which provides that:

“36. (1) Upon the coming into force of this Constitution, the Provisional National Defence Council (Establishment) Proclamation 1981 and the Provisional National Defence Council (Establishment) Proclamation Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42) shall cease to have effect.”

[p.55]

With these words, the PNDC became defunct. New institutions were established for the governance of the realm—principally an Executive President, a Parliament (all elected on the basis of a multi political system) and an independent judiciary.

On 14 December 1993 the Ghanaian Times, a state-owned daily newspaper, published a release from the Information Services Department of the Ministry of Information detailing a programme of activities intended for the celebration of the twelfth anniversary of the 31 December 1981 coup, and the first anniversary of the Fourth Republic. The publication read:

“A release issued by the Information Services Department in Accra said the highlight of activities marking the December 31 anniversary in Accra would be a route march to be followed by a wreath-laying ceremony at the Revolution Square.

Taking part in the route march will be the security services and various voluntary organizations.

There will be a musical carnival at the Trade Fair Centre in the afternoon.

The release said on January 7, the first anniversary of the inauguration of the Fourth Republic, there would be a ceremonial parade of the security services and voluntary organizations at the Independence Square to be followed in the afternoon by a cultural display.

The celebrations would be rounded off with non-denominational thanksgiving services on January 9 in all parts of the country—GNA.”

On or about 19 December 1993, the government, acting by the Minister of Interior, announced to the nation that 31 December 1993, among others, would be a public holiday and celebrated and observed as such. The announcement was carried by the People’s Daily Graphic, also a state-owned daily newspaper, on 20 December 1993, as follows:

“Holidays—The Ministry of the Interior has announced that Saturday December 25, Christmas day, Sunday December 26, Boxing day and Friday December 31 Revolution day are statutory holidays.

A statement issued in Accra said Saturday January 1 is New Year’s day and that Friday January 7, will be observed as the Fourth Republic Day.

[p.56]

It said in accordance with section two of the Public Holidays Law, since Christmas, Boxing and New Year Holidays fall on non working days, Monday December 27, Tuesday December, 28 and Monday January 3 have been declared public holidays instead—GNA.”

Clips of the publications referred to above were annexed to the defendant’s statement of case as annexures A (Ghanaian Times) and B (People, Daily Graphic).

On 21 December 1993, the plaintiff, one of several registered political parties in the country, instituted the present action against the Government of Ghana per the Attorney-General, for the reliefs thus indorsed on their writ:

“(1) 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 contrary to the letter and spirit of the Constitution, 1992 and more particularly to articles 3(3), (4), (5), (6) and (7), and 35(1) and 41 (b) thereof.

Relief (1) was later amended, without objection from the defendant, to read:

“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 amendment does not strike me as effecting any substantial change in the original claim, except, perhaps, that it enabled the plaintiff to sail as closely as possible to the letter of article 2(1) of the Constitution, 1992.

On the same day that the plaintiff filed its writ of summons, ie 21 December 1993, it also filed an application for an interim injunction to [p.57] restrain the Government of Ghana from: “all activities and preparations made or being made towards the celebration of the overthrow of the Government of the democratically elected Government of Ghana on 31 December 1981 as announced . . .”

The application was put before a five-member panel of this court on Thursday, 23 December 1993. It became obvious to the panel that a ruling on the motion either way was bound to undermine the fate of the substantive suit. Besides, granting or refusing the application to await the hearing of the main case after 31 December 1993, sometime in the new year, would be tantamount to shutting the stable door after the horse had fled. The court decided therefore that in the circumstances, the justice of the case required that the substantive suit be heard as a matter of urgency prior to 31 December 1993. The application for injunction was adjourned to be taken together with the substantive suit. The action was eventually heard on 29 December 1993, and a decision pronounced in favour of the plaintiff. But we reserved our reasons.

The plaintiff invokes the original jurisdiction of the court under article 2(1) of the Constitution, 1992 that provides:

“2.(1) A person who alleges that—

(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person;

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

(The emphasis is mine.)

To succeed, the plaintiff must be able to bring itself squarely within article 2 of the Constitution, 1992. It has been said that familiarity breeds contempt. Article 2 of the Constitution, 1992 has, since its enactment, been repeated so often, both in the courts and elsewhere, that we run the risk of glossing over, or completely ignoring or missing its true import. It must be emphasised that under the article, the conduct complained of need not contravene anything in the Constitution, 1992; it is enough if that conduct is inconsistent with any provision of the Constitution, 1992. An act contravenes an enactment if it breaches that enactment; if it is contrary to that enactment. But an act need not be contrary to an enactment, to be inconsistent with it. In other words, the act may be inconsistent with the enactment, even though it does not necessarily breach it. May be the dividing line is thin; but there surely [p.58] is a dividing line.

The plaintiff contends that the public celebration of the anniversary of the coup of 31 December 1981 out of public funds is “inconsistent with, or is in contravention of the letter and spirit of the Constitution, 1992 . . .” As to the letter of the Constitution, 1992 the plaintiff refers “more particularly to articles 3(3), (4), (5), (6), (7), 35(1) and 41(b) thereof.” In argument before this court, the plaintiff added article 41(f) of the Constitution, 1992.

It is necessary therefore to look at these articles with a view to ascertaining whether in letter they have been contravened. For this purpose, I reproduce these articles in full. Article 3 of the Constitution, 1992 is sub-titled “Defence of the Constitution.” Clauses (3)-(7) thereof read:

“(3) Any person who—

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause;

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times—

(a) to defend this Constitution, and in particular, to resist, any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence.

(6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment.

(7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment or loss to which [p.59] clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment.”

(The emphasis is mine.)

Looking at the relevant clauses of article 3 of the Constitution, 1992, I can readily see that, in their letter the only provisions relevant to this case are article 3(3) and (4) of the Constitution, 1992.

The remaining clauses of article 3 of the Constitution, 1992 deal with actual acts of, or attempts at, suspending, overthrowing, or abrogating the Constitution, 1992; the duty to resist such acts or attempts, and compensation, to be paid out of public funds, to persons who may suffer damage in the process of resisting such acts or attempts.

The plaintiff also refers to articles 35(1) and 41(b) and (f) of the Constitution, 1992. These say:

“35. (1) Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution …

41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen —

(b) to uphold and defend this Constitution and the law; …

(f) to protect and preserve public property and expose and combat misuse and waste of public funds and property.”

(The emphasis is mine.)

Before embarking on the merits of the case, let me comment on the challenge to the jurisdiction of this court, raised by the defendant. The defendant says that this court has no jurisdiction to entertain the action. The reasons he offers for this contention are: First, that the action seeks to question the legality or otherwise of the coup of 31 December 1981, and that by section 34 of the transitional provisions of the Constitution, 1992:

“2. It is not lawful for any court … to entertain any action … against the Government of Ghana or any person … in respect of any act … relating to …

(a) the overthrow of the government in power before the … Provisional National defence Council; or

[p.60]

(b) the suspension or abrogation of the Constitutions of … 1979”.

From this the defendant argues 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: “it should be left to coordinate arms of government to deal with”, it was said.

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 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 [p.61] tantamount to issuing all injunction against the President or the State, and that this court cannot, and should not, issue such an injunction. He cites in support of this contention the American case of State of Mississippi v Johnson, 71 US 475 (1867). The two holdings in the Johnson case (supra), as stated in the headnote, read:

“1. The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed.

2. It makes no difference whether such incumbent of the Presidential office be described in the bill as President or simply as a citizen of a State.”

In that case, the State of Mississippi had filed a motion for leave to apply for a perpetual injunction against the President of the US from carrying out certain duties under the Reconstruction Acts (two of them) which the President had previously vetoed as unconstitutional, but which Congress had nevertheless passed into law on 2 and 23 March 1867. It is unnecessary to discuss this case in detail. It is enough to say that in the course of its opinion, the court at 498 distinguished between a ministerial duty (where, it was said, the officer exercises no discretion in the matter), and executive functions (where the officer has a lot of discretion to play with). At 499 the court observed:

“In each of these cases [ie Marbury v Madison and Kendall v Stockton see p.498/9 where the Court issued mandamus against ministerial officers to compel them to do certain acts] nothing was left to discretion. There was no room for the exercise of discretion …

Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws [are] the acts named in the bill…

An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterised, in the language of Chief Justice Marshall, as an absurd and excessive extravagance.”‘

(The emphasis is mine.) The court proceeded:

“It is true that in the instance before us the interposition of the court is not sought to enforce action by the executive under constitutional [p.62] legislation, but to restrain such an action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of executive discretion.”

(The emphasis is mine.)

The main reason the court gave for not interfering in “the exercise of executive discretion” is thus found at 500-501 of the report:

“Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience it is needless to observe that the Court is without power, to enforce its process. If on the other hand the President complies with the order of the court and refuses to execute the acts of congress, is it not clear that a collision may occur between the executive and legislative departments of government? May not the House of Representative impeach the President for such refusal? And in that case, could this Court interfere, on behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction, the Senate of the U.S. from sitting as a Court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this Court to arrest proceedings in that Court [i.e. the Senate]?”

(The emphasis is mine.) The Court then concluded:

“. . . we are fully satisfied that this Court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

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. [p.63] Therefore the United States decision in Mississippi (supra) 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.

Thirdly, the argument that the case is a political one, and ought not to be entertained by this court is also buttressed on another American case, Baker v Carr, 369 US 186 (1962). In that case, the plaintiffs, by a group action, had asked the District Court for, the Middle District of Tennessee to declare that the Tennessee Apportionment Act, 1901 was unconstitutional, and to issue an injunction restraining the defendants from conducting any elections under the Act. Constituencies were supposed to be demarcated on the basis of population densities. The plaintiffs’ contention was that the defendants did not follow this criterion or any criterion at all in demarcating the constituencies, thus placing the plaintiffs “in a position of constitutionally unjustifiable inequality.” The district court threw out the case on the ground, inter alia, that it was a political question, and that the district court lacked jurisdiction. On appeal, the Supreme Court reversed the district court, and remitted the matter to it to be heard, on the ground that the writ raised a justiciable issue.

This conclusion would seem to be against the defendant, and contrary to the defendant’s position in this case. But that, to me, is not the important point. The case further illustrates the difficulties in applying foreign decisions, especially where passages are lifted out of context. Reading the report in the Baker case (supra), it is abundantly clear that the United States has developed a special doctrine of “political question”, based on the federal nature of their Constitution and their system of separation of powers. It is this special circumstance which is at the bottom of the notion that political questions are not justiciable by the district courts. A few passages from the report may be of some assistance. The United States Supreme Court giving the source of the doctrine of “political question”, states at 210 :

” . . . it is the relationship between the judiciary and the coordinate [p.64] branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the ‘political question’ [doctrine].”

And on the criteria for determining a “political question, the court at the same page adopted its observation in Coleman v Miller 307 US 433 at 454-455; where it had stated:

“In determining whether a question falls within the category of ‘political questions’, the appropriateness under [the American] system of government of attributing finality to the action of the political departments also and the lack of satisfactory criteria for a judicial determination, are dominant considerations.”

The court then concluded at 210-211:

“The non justiciability of a political question is primarily a function of the separation of powers . . . Deciding whether a matter has in any measure been committed by the [Federal] Constitution to another branch of government, or whether the action of that branch exceeds whatever its authority, has been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed itself a delicate exercise in constitutional interpretation, and is a responsibility of [the U.S. Supreme] Court as ultimate interpreter of the Constitution.”

(The emphasis is mine.)

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 “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.

Than 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 [p.65] 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.

In its Report on a Proposed Constitution for Ghana, the Akufo-Addo Commission observed:

“90. The dominant cry in all the evidence both oral and by memoranda which we received is that never again should there be tyranny in Ghana …

94. We appreciate that there is much politics involved in our proposals relating to the defence of democracy. Our recent experience, however, makes it imperative that there should be specific constitutional provisions to safeguard democracy…”

(The emphasis is mine.) I must say that in spite of these carefully woven constitutional provisions and safeguards, democracy could not be protected, as we all witnessed on 13 January 1972. The point, however, remains that provisions relating to the protection of the Constitution, 1992 and the defence of democracy are by nature political. And these provisions this court is by the Constitution, 1992 required to interpret and enforce. 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.

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. The opening article, ie 34 of the chapter reads:

“34.(1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”

(The emphasis is mine.)

This is a compendious provision, grouping together a whole host of state institutions and other bodies, discharging different functions. The language employed therefore has been such as caters for these different functions. As far as the judiciary is concerned, I ask myself the question: [p.67] How do the principles guide the judiciary “in applying or interpreting the Constitution” if not in the process of enforcing them?

The position becomes even clearer if related to the duties created by article 41 of the Constitution, 1992. How is the judiciary to assist or facilitate the performance of a citizen’s duty to, eg combat misuse of public funds” as required by article 41(f) of the Constitution, 1992, if this is not in the course of enforcing another citizen’s duty not to misuse public funds? Put illustratively, citizen A, in discharge of his duty under article 41(f) of the Constitution, 1992 tries to stop citizen B from misusing public funds. Can citizen A turn to the judiciary for help? If no, why not, given the wording of article 34(1) of the Constitution, 1992? If yes, what role will the judiciary be playing, short of enforcing article 41(f) of the Constitution, 1992?

As was observed in Tuffuor v Attorney-General [1980] GLR 637 at 649-650, CA sitting as SC in relation to the Constitution, 1979:

“The Constitution confers on every citizen of Ghana by article 1(3): ‘the right to resist any person or persons seeking to abolish the constitutional order as established by this Constitution should no other remedy be possible.’ This means that every citizen of Ghana has the right, constitutional or otherwise, to see to it that the constitutional order as established by the Constitution is not abolished or sought to be abolished. One method by which it could be determined whether a person is seeking to abolish the constitutional order, is to seek for an interpretation of the Constitution as to the meaning or the effect of a particular provision or provisions of the Constitution.”

Substitute article 41 of the Constitution, 1979 for article 1(3) of the Constitution, 1992, and duty for right in the above passage, and you have, in my view, the correct interpretation of the said article 41, or by extension, of any of the provisions of chapter 6 of the Constitution, 1992.

I cannot see that the Constitution, 1992 will impose a duty by article 41 and then turn round to thwart its performance. Such a bizarre intention must be shown by express words or an implication that is imperative. It has been said that the use of the phrase “shall guide” in article 34(1) of the Constitution, 1992 implies that the directive principles are not meant to be justiciable. This argument is obviously weak and unimpressive. After all, all laws are for our guidance, but they are not on that account, non-justiciable. If the Consultative Assembly in 1992 had intended to make the principles non-justiciable, they could [p.68] have said so: they did not. Apart from article 12(1) of the Constitution, 1992 which expressly states that chapter 5 (the fundamental human rights and freedoms) “shall be enforceable by the courts . . .” no other chapter is expressed so to be. Yet, no one has argued that those other chapters of the Constitution, 1992 are for that reason unenforceable. Chapter 5 of the Constitution, 1992 would be enforceable even without that direction. The appearance of that phrase in article 12(1) of the Constitution, 1992 and its absence from chapter 6 of the Constitution, 1992 therefore cannot be used as a justification or ground for interpreting chapter 6 of the Constitution, 1992 as unenforceable.

I concede that in its report, the Committee of Statutory Experts appointed in 1991 by the PNDC to make proposals for a draft Constitution did say at p 49, para 95 that: “By tradition Directive Principles are not justiciable.” (The emphasis is mine.) The committee did not say what that tradition was or is. That statement could, unintentionally, be misleading.

In the Consultative Assembly, it was recognised that the Constitution, 1979 was the first of our several Constitutions in Ghana (1957; 1960 (amended in 1964); 1969) to introduce the idea of directive principles. Both the Committee of Statutory Experts and the Consultative Assembly relied almost entirely on chapter 4 of the Constitution, 1979 for the debates on, and form of, the directive principles contained in chapter 6 of the Constitution, 1992. The Committee of Experts acknowledged this much at p 49, para 94 of their report: “The Committee used Chapter 4 of the 1979 Constitution as a basis for its deliberations.” From which acknowledgement, it would appear that the tradition the committee had in mind was that commenced by or traceable to the Constitution, 1979.

If the committee contemplated any other tradition, it did not indicate it. In any case, as at the time the committee was appointed in 1991, Ghana had, in this respect, a tradition, in the Constitution, 1979, it is legitimate to conclude, in the absence of contrary evidence, that the committee meant the Ghana tradition. By that tradition, viz in the Constitution, 1979, the directive principles were justiciable, which clearly contradicts the committee’s statement. There was nothing in the Constitution, 1979 which said they were not. For purposes of confirming this interpretation, reference may be made to the parliamentary history of the chapter, which is a permissible practice.

The question of the justiciability of the chapter on the Directive Principles of State Policy was debated at length in the 1979 Constituent Assembly. At its twentieth sitting on Friday, 2 February 1979 the [p.69] assembly expressly resolved to make the chapter justiciable:

“MR. CHAIRMAN [Justice VCRAC Crabbe]: Now I am going to put the question. And the question is the amendment as proposed by Mr. Zwennes that we should make chapter four non-justiciable be accepted by the house.”

The question was then put. The result of the exercise was: “Question put and negatived.” herefore the house rejected the idea that the directive principles should be non-justiciable. In other words, that they should be justiciable. Given the importance of the subject to the assembly a member after the voice vote, asked for a head-count, and then a recording of names. In both, the justiciable group defeated the non-justiciable group: see sheets 64-67 of the manuscripts of the Official Report of the Constituent Assembly Debates of 2 February 1979, from the Archives of Parliament. A member then tried to get the whole chapter removed from the Constitution, 1979. That attempt was also defeated.

The debates confirm the interpretation that in the absence of anything in the Constitution to the contrary, chapter 4 (The Directive Principles of State Policy) of the Constitution, 1979 was justiciable. By the same yardstick chapter 6 of the Constitution, 1992 is also justiciable.

The 1992 Consultative Assembly, obviously misled by the Committee of Statutory, Experts, assumed wrongly that the “Directive Principles of State Policy are traditionally non-justiciable.” (Observe the similarity in language). Apparently not satisfied with the perceived character of the directive principles, the assembly endeavoured to upgrade them to what they termed “a higher moral level” to make them “imperative”, which everybody is “required mandatorily to observe.” This was on a motion to change “are for the guidance of” in the original draft of article 34(1) to “shall guide” as we now have it: see the Consultative Assembly Debates, 22 January 1992, col 1593. It seems clear that but for the statement of the Committee of Statutory Expects, different considerations might have prevailed in the Consultative Assembly.

In any case, even if the debates in the Consultative Assembly may charitably be interpreted as exhibiting some intention to make the directive principles non-justiciable, that intention was not carried into the Constitution, 1992. The debates themselves are inadmissible to contradict the language of the Constitution. That is not permissible. As was stated by Coleridge CJ in R v Hertford College (1878) 3 QBD 693 at 707, CA:

[p.70]

“We are not, however, concerned with what parliament intended, but simply with what it has said in the statute. The statute is clear, and the parliamentary history of a statute is wisely inadmissible to explain it, if it is not [clear].”

The maxim is parliamentum voluisse quod dicit lex (what the law says is the wish of Parliament, ie the language of the statute expresses the intentions of Parliament). We may also turn with profit to Lord Halsbury LC in Hilder v Dexter [1902] AC 474 at 477, HL:

“. . . in construing a statute … the worst person to construct it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards just because what was in his mind was what was intended, though, perhaps, it was not done.”

Similar sentiments were expressed by Lord Wright in Assam Railway and Trading Co Ltd v Commissioners of Inland Revenue [1935] AC 445 at 458, HL:

“But on principle no such evidence [ie recommendations from a report of a Royal Commission] for the purpose of showing the intention, that is the purpose or object, of an Act is admissible; the intention of the Legislature must be ascertained from the words of the statute with such extraneous assistance as is legitimate … It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible [as evidence of the intention of Parliament].”

We are advised in Maxwell on Interpretation of Statutes (10th ed) at pp 27-28 that:

“… the inferences to be drawn from comparing the language of the Act with the declared intention of its framers would be that the difference between the two was not accidental but intentional.”

The learned author gives the example of the Dower Act, 1833 (3& 4 Will 4, c 105) which he says:

“was construed to apply to gavelkind lands, although this was [p.71] avowedly contrary to the intention of the real property commissioners who prepared the Act; for they stated in their report that it was their intention that it should not extend to lands of that tenure.”

The case cited for this is Farley v Bonham (1861) 30 LJCh 239.

Thus what the debates in the Consultative Assembly said cannot be admitted to contradict what chapter 6 of the Constitution, 1992 itself say or does not say. In my view, therefore, chapter 6 of the Constitution, 1992 is justiciable, in the same manner as all the other chapters of the Constitution, 1992 are justiciable. The plaintiff is perfectly in order in seeking to rely on any of the provisions of the said chapter 6 of the Constitution, 1992, as it had indeed done.

Reading the relevant provisions of the Constitution, 1992 as a whole, the impression is unmistakable that the idea is, inter alia, to ensure that never again shall a Constitution be suffered to be overthrown or undermining by any means, and that the people of Ghana must resolve never to entertain any such overthrow or undermining. Of course, this does not mean that adventurers may not try. But the Constitution, 1992 imposes a duty on all to see to it that whoever ventures does not succeed: see especially article 3(4), (5), (6) and (7) of the Constitution, 1992.

The defendant says, however, that celebrating 31 December cannot be said to be suspending or overthrowing the Constitution, 1992 as prohibited by article 3(3) of the Constitution, 1992 so as to require any defensive action by anyone under article 3(4) of the Constitution, 1992. In other words, the act of celebrating 31 December does not offend anything in the Constitution, 1992 and that that act cannot be pushed under article 2 of the Constitution, 1992.

The plaintiff, on the other hand, contends in line with article 2 of the Constitution, 1992, that the date 31 December is contained in an enactment, PNDCL 220; that the celebration is an act to be done under the authority of that enactment, and that the act of celebrating is inconsistent with [some provisions] of the Constitution, 1992.

Article 3(4)(a) of the Constitution, 1992 has two separate and distinct parts. There is, first, the general right and duty to defend the Constitution. Then there is, secondly, the particular right and duty to resist anyone committing, or attempting to commit, or aiding and abetting anyone to commit, any of the offences mentioned in clause 3 of article 3(3) of the Constitution, 1992. Defending the Constitution, 1992 under article 3(4)(a) therefore need not be a defensive action against [p.72] persons coming within article 3(3) of the Constitution, 1992, ie persons engaged in a violent overthrow of the government or of the Constitution, 1992. Indeed, the Constitution, 1992 may be defended against the government itself.

Article 3(4)(a) of the Constitution, 1992 confers a right, and both articles 3(4)(a) and 41(b) of the Constitution, 1992 impose a duty, on all Ghanaians to defend the Constitution, 1992. The celebration of 31 December with carnivals, route marches, etc having a tendency to glorify the coup d’etat of 31 December, will weaken the people’s resolve to enforce this right, or perform this duty, ie their resolve to frown upon, and/or reject coups, a result which will have the effect of undermining and subverting the Constitution, 1992. It is an insidious and surreptitious way, of undermining the Constitution, 1992. The celebration may not be a violent means of subverting the Constitution, 1992; but surely it is an unlawful means under article 3(3)(a) of the Constitution, 1992, if only because its result is a subversion of the Constitution, 1992. It is what an honourable member of the Consultative Assembly, Hon Pius A Austin is credited as having described as a subversion “not by violence, but by the very Government that is in existence, by the deeds and misdeeds of the Government”: see Consultative Assembly Debates, 15 January 1992, col 1432). And if I may quote another honourable member, Hon Mohammed Mumuni, for the sake of completeness:

“I believe that we are dealing with a principle, and when we are dealing with a principle you either wholly keep it or wholly reject it. You cannot compromise over a principle. We are saying that at this stage of our political development, we must come out positively and assuredly against any form of political adventurism.”

(The emphasis is mine.) See the Consultative Assembly Debates, 15 January 1992, col 1417). Any form of political adventurism indeed, whether by violent means or by other unlawful means: see article 3(3)(a) of the Constitution, 1992.

If the people have a constitutional duty to protect and defend the Constitution, 1992, then the same people cannot by themselves, or by anyone in their name, lay out moneys and resources to play up the idea of coups, well knowing that this is bound to undermine the Constitution, 1992. Celebrating the occasion with carnivals, festivities and riotous merry-making is telling ourselves that the event was a happy one; it was a good one. Such conduct will clearly be inconsistent with the duty to defend the Constitution, 1992.

[p.73]

Certain days have, from long before the days of independence and after, stood the test as national public holidays, and have always been celebrated as such without question. These include 1 January (New Year’s Day), 6 March (Independence Day), the Easter holidays (ie Good Friday, Holy Saturday and Easter Monday), 1 July (Republic Day), 25 December (X’mas Day) and 26 December (Boxing Day). These days one will find in every enactment relating to public holidays for the periods to which the enactments apply), from the Public Holidays Ordinance, Cap 170 of 1899, through the Public and Bank Holidays Act, 1958 (No 1 of 1958), the Public Holidays Act, 1960 (Act 23) and others, right through all the military regimes (NLC, NRC, SMC, PNDC) as well as the few Republics which have punctuated these military regimes. There are other days which appear at one time or other, which are decreed as national public holidays, only to vanish later, never to surface again.

It has been the convention that “coup days” have, by the fiat of the coup-makers when they are in power, always been celebrated as public holidays, ie as special occasions and/or as days of thanksgiving. Significantly enough, these coup holidays do not survive the relative “coup regimes”, an indication of their inherent weakness as national days. Thus 24 February, celebrated during the NLC regime, ceased during the Second Republic and after. So also did 13 January cease in the Third Republic and after.

Squadron Leader (Rtd) C M K Sowu, speaking on what he termed “the mechanics of overthrowing a constitutional rule by force of arms” observed: “It is true also that many people are not aware that since 1957, in this country we have either overthrown the Constitution, the administration, every three years, until 31st December, 1981. He than proceeds to supply further and better particulars:

“The first overthrow of the Constitution was in 1960. The second overthrow of that Constitution of 1960 was in 1963. It is true that at that stage certain people attempted to resist it within the House and they suffered for it. Then the 1966 coup—we had the first military coup—and I think 1969, 1972, 1975, 1978 and 1981.”

See the Consultative Assembly Debates, 15 January 1992, col 1429.

The honourable chronicler does not give us the precise dates of these coups, but surely he must have done his homework very well before giving the information to the august body. From the narrative, we learn that from 1966 to date there have been no less than six military coups, [p.74] including 1981. During the ten to eleven years rule of the PNDC, none of those other five coup dates was ever celebrated as a public holiday and observed as such, except of course that of 1979 (June 4), for obvious reasons. It may be true to say that in none of these cases was the celebration of its anniversary carried into the next succeeding regime, civilian or military, unless it be by default, which would appear to indicate that, there is no logic in insisting that 31 December must continue to be celebrated as a national holiday and be financed out of public resources, even after the coup regime to which it relates has ceased to exist, unless the defendant is claiming that the present regime which came into being on and after 7 January 1993 is the same as the immediately preceding one of the PNDC (which he had not expressly done to my knowledge).

But the defendant seeks to justify the expenditure of public funds on the grounds that the celebration is not meant to commemorate the coup event itself, but the values which that event brought about. These values counsel enumerated as, inter alia, workers’ participation in government; rights of spouses, later to be codified as the Intestate Succession Law, 1985 (PNDCL 111); popular participation in decision-in-making, etc. This submission is obviously an elaboration of paragraph (14) of the defendant’s statement of case, which pleads also “the party [NDC] manifesto whose underpinning was continuity of the good works and values of the 31 December Revolution.” (The emphasis is mine.)

To contend that the celebration is not intended for the day 31 December itself is to concede that 31 December as an event ought not to be celebrated, which is precisely what the plaintiff is asking this court to declare. And as to celebrating “the good works and value,” said to have been brought about by that event, I can find no better comment than the words of the Hon Squadron Leader (Rtd) C M K Sowu, whom I have already quoted:

“Each time a Government is toppled here, the first accusing words we use is [sic] that that Government has mismanaged the economy of the country, the second accusing words that follow are that they have misused power; the third accusing words are that they had been corrupt and the fourth accusing words are that we as a people have been apathetic.”

See the Consultative Assembly Debates, Wed, 22 January 1992, col 1609.

The world owes it to Shakespeare that: “The evil that men do lives [p.75] after-them; the good is oft interred with their bones.” It would seem that this observation may be true of men only, not of governments; and that with governments the reverse is nearer the truth, namely that: “The good that governments do lives after them; the evil is oft interred with their bones.” And I may, add: “So let governments take heed.” A statement such as “we are celebrating values and good works” can be self-serving, and may ignore the truth in the age-old adage that the length of the frog may be known only after its death. It also shows that we may not have learnt our lessons of history as well as the houourable squadron leader. Such an assertion cannot be a constitutional justification for elevating an event of non-national interest into a national one, on which to expend national resources.

Section 34 of the transitional provisions of the Constitution, 1992 on indemnity is too well known to require reproduction. The said section as already stated presupposes that the event which took place on 31 December 1981 was a not lawful one, and that this fact is conceded by the PNDC, among others. The section does not legalise the coup of 31 December 1981 nor any of the coups mentioned there. It only grants the coup-makers an indemnity, in the nature of public pardon, to free certain persons from liability and punishment for, in the instant case, the event of 31 December and its sequel, which acts have been carefully spelt out under, particularly, article 34(2) of the Constitution, 1992. It seems to me incongruous that after this pardon of a conduct considered improper and unlawful (for there would be no need for a pardon if the conduct were lawful and proper), the public will seek to romanticise the same event with carnivals and route marches. An exhibition of a more inconsistent behaviour than this in a people, including members of the government, cannot be imagined, justifying the plaintiff’s action under article 2(1)(b) of the Constitution, 1992.

Besides, those few persons pardoned, few, that is considering the total population of Ghana, cannot, should they happen to control the levers of power within the State, cock a snook at the public and the Constitution, 1992 which have given them this pardon, by a public commemoration of the very acts for which they have been pardoned, using public money and resources in the process! Such conduct must certainly offend if not the letter, at least the spirit or (as the Committee of Statutory Experts put it) “the conscience” of, the Constitution: see also Tuffuor v Attorney-General (supra) at 647.

Article 41(f) of the Constitution, 1992 enjoins every citizen: “(f) to protect and preserve public property and expose and combat misuse and [p.76] waste of public funds and property.” If, as I conceive it to be, the celebration of 31 December in the circumstances in which it is sought to be celebrated is unjustified, then any expenditure of public funds in that regard will be a misuse and waste of public funds. The plaintiff is entitled to proceed under the said article as a matter of duty to combat such misuse, with a view to protecting and preserving public property.

The question may be asked: What would have become of 31 December had the elections of November 1992 gone differently? The defendant’s answer to this question is in paragraph (13) of his defence, viz: “13. . . . that the Constitution, 1992 establishes a nexus between the 31 December revolution and the Constitution itself.” No argument was addressed to us on this “nexus”, and I ams not sure I understand paragraph (13) of the defence. If the paragraph is intended for the several references to the PNDC and the coup of 31 December 1981 in the transitional provisions of the Constitution, 1992, especially section 34, it must be clear to all that the said section 34 of the transitional provisions of the Constitution, 1992 does no more than offer an indemnity, a pardon, to all coup-makers, dead or alive, who overthrow governments on 24 February 1966, 13 January 1972, 4 June 1979, as well as 31 December 1981. This pardon has nothing to do with whether 31 December should continue to be observed as a public holiday or not. Otherwise all the other “coup dates” mentioned in section 34 of the, transitional provisions of the Constitution, 1992 should also be observed as public holidays and celebrated as such. A discrimination against them will appear unconstitutional as not being in conformity with section 34 of the transitional provisions of the Constitution, 1992. I have reason to believe that no one subscribes to the view that the dates in section 34 of the transitional provisions of the Constitution, 1992 are intended as public holidays.

The defendant raises yet another defence, in paragraph (14) of his defence, viz:

“(14) . . . that the President of the Republic who was also the chairman and leader of the 31 December revolution and the members of Parliament of the NDC party to which the President belongs, were elected on the party manifesto whose underpinning was continuity of the good works and values of the 31 December revolutions.”

As to this “manifesto and continuity” theory, it may be enough to say that the courts are sworn “at all times to uphold, preserve, protect and [p.77] defend the Constitution and laws of the Republic of Ghana”: see the judicial oath. They are not sworn to uphold and defend the manifesto, and theories of government, however lofty, of any political party or parties. Party manifestoes do not fall within the definition of “the Constitution and laws of the Republic of Ghana.” Significantly enough, the President too, who may be leader of his party, as well as his ministers, and all the NDC members of Parliament referred to in the said paragraph (14), swore to “uphold, preserve, protect and defend the [same] Constitution,” not the party manifesto (with its underpinning of continuity), on the basis of which they fought the elections and gained access to Parliament, or to their several positions and offices.

Interestingly, in the case of the President, he swore additionally:

” . . . that should I at any time break this oath of office, I shall submit myself to the laws of the Republic of Ghana and suffer the penalty for it. So help me God.”

It has been said that this additional undertaking, constitutes a voluntary a waiver of whatever immunities are conferred on the President by the Constitution, 1992. The matter does not directly arise in these proceedings, and I express no opinion on it.

On the whole, I take the view that the plaintiff has made out a case against the observance of the anniversary of 31 December 1981 as a public holiday, to be celebrated as such and financed out of public funds. It is for the reasons stated above that I decided the case in favour of the plaintiff, and granted the declarations sought.

JUDGMENT OF FRANCOIS JSC.

By its writ, the plaintiff, the New Patriotic Party, sought two declarations from this court. The first, a declaration that the public celebration of 31 December and the financing of such a celebration from public funds is contrary to the letter and spirit of the Constitution, 1992. The second, a consequential order prohibiting the financing of such a celebration from public funds. The plaintiff relied on articles 3(3), (4), (5), (6) and (7), 35(1) and 41(b) of the Constitution, 1992.

It has not been difficult to come to the conclusion that the public commemoration of an event that signified the violent overthrow of constitutionally, elected government, against the letter and spirit of the Constitution, 1992. I now proceed to state my reasons.

[p.78]

The Decision

As a necessary preamble, it is worth repeating that this court did not prohibit or debar anybody so minded, from celebrating the 31 December event, provided the celebration was not financed from public funds and no one was coerced into recognising the day as a public holiday. It is common knowledge that the non-observance of a public holiday attracts sanctions in this part of the world: see the Public Holidays Law, 1985 (PNDCL 220), s 5. The removal of this liability, by erasing the public character and the public financing of any celebrations of that day, was the kernel of our decision of 29 December 1993. Our Constitution, 1992 permits freedom of association. Implicit in this, is the unrestrained liberty to promote and enjoy popular social forums and gatherings, provided such group activities did not violate any laws. So 31 December could be celebrated within the limits we placed on it. In short, we only circumscribed the options for its celebration by detaching any national or public character from it, and prohibited any public expenditure on its account.

The Constitution, 1992

We need constantly to remind ourselves that the Constitution, 1992 was born of a consensus, which was formally approved in a national referendum. The Constitution, 1992 consequently embodies and represents the people’s will. A sovereign people, accordingly, has ordained that the Supreme Court should be the appropriate arbiter in determining, among other things, all issues that border on a negation of constitutionalism. It has charged it with the duty of nullifying any act inconsistent with or in contravention of the provisions of the Constitution, 1992.

The power to strike down constitutional anachronisms or aberrations, is not unusual in many democratic regimes. Thus, Chief Justice Marshall of the United States Supreme Court observed in Marbury v Madison, 5 US (1 Cranch) 137 (1803) regarding the separation of powers: “It is emphatically the province and duty of the judicial department to say what the law is.” And Justice Barak of the Israeli Supreme Court, also said in Kach Faction v Knesset Speaker, Jerusalem Post LR 35 (1993), “any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government.”

The Letter and Spirit of the Constitution

A constitutional document must be interpreted sui generis, to allow the written word and the spirit that animates it, to exist in perfect [p.79] harmony. It is interpreted according to principles suitable to its particular character and not necessarily according to the ordinary rules and presumptions of statutory interpretation: see Minister of Home Affairs v Fisher [1979] 3 All ER 21, PC. This allows for a broad and liberal interpretation to achieve enlightened objectives while it rejects hide-bound restrictions that stifle and subvert its true vision. In the celebrated case of Tuffuor v Attornery-General [1980] GLR 637 at 647, CA sitting as SC the court said:

“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-hcad for the authority which each of the three arms of government possesses and exercises.”

My own contribution to the evaluation of a Constitution is that, a Constitution is the out-pouring of the soul of the nation and its precious life-blood is its spirit. Accordingly, in interpreting the Constitution, we fail in our duty if we ignore its spirit. Both the letter and the spirit of the Constitution are essential fulcra which provide the leverage in the task of interpretation. In support of this, we may profitably turn to the Constitution, 1992 itself which directs that we accord due recognition to the spirit that pervades its provisions.

In article 17(4)(d) of the Constitution, 1992, Parliament is enjoined not to enact laws “inconsistent with the spirit of this Constitution.” Pausing for a moment, it stands to reason that if Parliament ignores this caveat, the Supreme Court has power to strike that legislation down: see articles 1(2) and 2 of the Constitution, 1992. Again, in article 21(4) of the Constitution, 1992 where restrictions are imposed in the interest of defence, public safety or public order by court process, the Constitution. 1992 nevertheless requires that what is “done under the authority of that law” does not offend “the spirit of this Constitution.” Another example of the all-pervasive and embracing spirit to which there is a mandatory call to obeisance, is article 33(5) of the Constitution, 1992. All are enjoined to go beyond the written provisions enshrining human rights, and to extend the concept to areas not specifically or directly mentioned but which are “inherent in a democracy and intended to secure the [p.80] freedom and dignity of man.” This is a poignant injunction to examine deeply any written provision so that its interpretation extends in depth to embrace its underlying spirit and Philosophy.

Constitutions differ. Some spell out in detail specific provisions to meet envisaged circumstances. Some are frugal with the written word allowing for innovation. But in every case, a true cognition of the Constitution can only proceed from the breadth of understanding of its spirit. Sometimes the draftman’s felicity of language is seriously in question. But that notwithstanding, and despite the fact that the tailoring may betray a clumsy or unskilled hand, if the spirit is breathed into the written word, the objectives of the fundamental law can be achieved. The necessary conclusion is that the written word and its underlying spirit are inseparable bedfellows in the true interpretation of a Constitution.

If more persuasion were necessary, one would note what an American jurist, Justice Jackson, once said about the unwritten word in a Constitution. He said:

“perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and prosperity of this nation by the meaning it has given to these great silences of the Constitution.”

Indeed, it is the proper ascertainment of these silences that provide the measure of understanding of the basic constitutional concepts of the fundamental law.

Finally, on this aspect of the spirit of the Constitution one cannot omit reference to the wisdom of Ecclesiastes, chap 8, v 8: “There is no man that hath power over the spirit to imprison the spirit.”

The People’s Choice

By its sovereign will, the people of this country have chosen a multi-party system of government to regulate their affairs. The fact that they chose a new direction and a new system of governance, is the clearest pointer to change. In charting a different course, the democratic path, the people of this country took a solemn step away from what was, immediately prevailing. Viewed in this light, it is idle and illogical to hold that the old order has yielded place to nothing new. Especially when the new order is diametrically opposed to the old which it supplanted. Looking then at the letter and spirit of the Constitution, 1992, we can hardly fail to conclude that the sum total of its provision demonstrate unequivocally an estrangement from the old order, and [p.81] betrays a consanguinity rather with past constitutional regimes than with what it immediately displaced.

This retracing of steps to the accustomed and familiar path, with a willingness and a determination to make a success of democracy this time round, is being severely tested in this matter. The will of the people, in the present context, if understood properly, is a solemn and incontrovertible declaration that however benevolent the resultant effect of the assault on constitutionalism, 31 December 1981 may be it could not earn the distinction of constitutional propriety.

The Constitution, 1992 is a severance from the immediate past which it attempts to bury by prohibiting the exhumation of any aspect of it that could recall bitter memories, resentment or revenge. The Constitution, 1992 with a charity of language that defies any attempt to obscure its purpose, condemns unreservedly any attempt to overthrow a duly constituted government by unlawful means: see article 3 of the Constitution, 1992. Any such attempt would bear not only the stain and reproach of unconstitutionalism but would purchase for its perpetrators the severest sanctions.

Counsel for the State argues in paragraph (10) of the defence that the Constitution, 1992 did not intend to look at unconstitutional acts with retrospective eyes. Regrettably, that argument misreads the Constitution, 1992 and misses completely the force of its spirit. For if the Constitution, 1992 frowns on violent overthrows of duly constituted governments, and rejects acts that put a premium on unconstitutionalism to the extent of even proscribing the promotion of a one party state, it is naivety of the highest order, to expect that very Constitution, and in the same breath, to sing Hallelujah’s in a paean of praise to unconstitutional deviations, past or present. If the past is being duly buried, the spirit of the Constitution, 1992 would frown on the resurrection of any of its limbs. That is the whole point of the cloak of indemnity conferred in section 34 of the transitional provisions of the Constitution, 1992 which will be addressed later. The quid pro quo, is an expected reformation that would not flaunt the past upon a forgiving people and subject them to a lifetime of trauma. In short, it is conceded that the Constitution, 1992 does not retroactively punish the actors in a coup d’etat, but at the same time it places an embargo on future coups and on a parity of reasoning, frowns on any reminders of it, especially its celebration.

The Celebration

By definition, a celebration is a public observance which honours an [p.82] event. It is accompanied by festivities and a general atmosphcre of exhilaration. It extols and praises the event it commeorates. If it is a public celebration, then obviously the entire public, except those in perpetual disgruntlement with life itself, would participate in the jolly making. Example, Independence Day. But where with the advent of 31 December 1981, a sizeable section of the people recite a litany of ills and perpetually relive them, it cannot, with the best will in the world, be classified as an ideal scenario for a public celebration, nor can its baleful antecedents escape judicial notice. Logic and prudence would dictate the prohibition of such a public to-do that would only promote division and fly, in the teeth of the constitutional injunction to let bygones be bygones.

It is insensitiveness of a very high order which this court can countenance only with discomfort. Indeed, how can the objectives stated in article 35(4) and (5) of the Constitution, 1992 be achieved in the heightened atmosphere of distrust and division. Article 35(4) and (5) states:

“(4) The State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person.

(5) The State shall actively promote the integration of the peoples of Ghana and prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender, or religion, creed or other beliefs.”

Put bluntly, there will always be a substantial section of the people of this country and not a petulant few, who will never see joy in a 31 December celebration. It is for such as these, that the State is to take appropriate measures to achieve the happy result of fostering a spirit of loyalty to Ghana that overrides every other loyalty and promote among the people of Ghana the culture of political tolerance: see article 35 (6)(a) and (9) of the Constitution, 1992.

It was most unfortunate, that counsel should consider it proper to test a political gambit by inviting us to saunter along an avenue which our jurisdiction does not permit us to; I refer to the argument that urges us to consider the historical merits of the 31 December insurrection. To argue, as counsel did, that 31 December is of historic importance because it ushered in a millennium of peace and stability, attracting in its train an economic renaissance unparalleled in the history of this country (if I correctly capture his drift), is completely to misapprehend the limits of our judicial function; which I repeat, is simply to juxtapose the 31 [p.83] December event with the new order, on the constitutional divide, to pronounce it wanting or not wanting in the quality of its relationship with constitutionalism.

Equally irrelevant, for the same reasons, were the references made in this court to other revolutions elsewhere which attained a permanent status by being officially celebrated, and the attempt to persuade its to confer the same distinction on 31 December. It must be repeated, that the changed democratic direction of pluralism that the Constitution, 1992 ordains and the very limits which the Constitution, 1992 places on our judicial role, put effective fetters on our embarking on a discussion of the merits of 31 December.

But one may comment that such arguments place a premium on coups d’etat. They seek an indorsement of revolutionary acts that topple governments before their time, and demand a blessing to recipes and prescriptions for the violent overthrow of constitutional regimes.

Article 3(3) of the Constitution, 1992 prescribes that:

“(3) Any person who—

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause;

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.”

The Deputy Attorney-General urged two other, matters that must be squarely answered. But first, it must be pointed out that any attempt to align this court’s exercise of its interpretative jurisdiction to foraging in politics, is as mischievous as it is unfortunate.

In existence in our statute books is a law, PNDCL 220, designating 31 December as a public holiday. The Deputy Attorney-General, as an officer of the court, has affirmed that money was voted by Parliament to celebrate the 31 December event. The simple issue that arises, as I have been at pains to point out, is whether in view of the new path the people of this country have chosen to tread and which is at odds with violent revolutionary changes of governments such a public celebration is not a violation of the Constitution and consequently self-condemnatory. The admission that a violent overthrow of government occurred on 31 December, forecloses any sanctioning of its public celebration in a [p.84] constitutional era.

Equally outside our purview was the argument that the 31 December revolution flowed into the Constitution, 1992 with “its good works and values.” Counsel’s language ipsissima verba. Here again, the dimensions of our duty of interpretation were missed. For whether the event was an auspicious ray of sunshine, or alternatively a dark cloud on the historical landscape, is clearly outside our bounds. To link our duty with a subversive quest to undermine section 34(2) of the transitional provisions of the Constitution, 1992, as was stated in paragraph (15) of the defence, is also unfortunate and mischievous. Perhaps we may again look with profit at Tuffuor v Attorney-General (supra) at 655-656 where the court said:

“… [no] person in authority can clothe himself with conduct which the Constitution has not mandated … The question whether an act is repugnant to the Constitution can only be determined by the Supreme Court.”

(The emphasis is mine)

Before the insurrection of 31 December 1981, the people of this country, in the exercise of their inalienable rights, as enshrined in their Constitution, 1979, voted into office a government of their choice. It was the expression of their sovereign will. The insurrection of 31 December however overthrew this legally constituted government. It was not by due process as provided in the Constitution, 1979 for the termination of a government, but by violent, unlawful means. It is now being advocated that the celebration of this illegality is still permissible or should be, in a constitutional era, and that this court should confer its constitutional blessing on the event.

I see a patent incongruity, a contradiction in terms in this competition for respectability and legitimacy, between the usurpers of power and the victuals of a successful putsch. Constitutional evolution and illegal revolution are poles apart and like east is to west, “never the twain shall meet.” They certainly cannot jostle with each other in jocund camaraderie.

The issue must not be blurred into a moral, in contra-distinction to a legal one. While this court cannot compromise its judgment by accepting arguments that emanate from the forum of conscience, beholden as we are only to the supremacy of the law; at the same time, we should decline to dismiss out of hand, issues of mixed law and conscience, merely, because they are interwoven. It must be truly recognised that there are [p.85] many grey areas, where constitutional imperatives cannot be divorced from the dictates of good conscience. This is not a mere intellectual engagement or as academicians will put it, a dialectical disputation. Some illustrations are called for. If the argument on the supremacy of the 31 December event is sound, it is curious there is no support for it in the Constitution, 1992 itself where we rather see, transparently beyond peradventure, an attempt to distance constitutionalism from overthrows of duly constituted governments.

Again, if the achievement of 31 December should maintain a pride place in the social fabric as urged, it is strange that, that event was not excepted from the general antipathy expressed in the constitution, 1992 towards the heresy of revolutions, with the accompanying penalty of the forfeitment of life itself.

The other window offers a corresponding view. Ancient mythology and Christian theology both recognise a Deus ex machina; that dreadful engine of vengeance that comes as a thunderbolt to impose draconian solutions on mortal mistakes. In the Christian world it is a chastening or corrective machinery to enforce the renunciation of evil ways, to obtain salvation. But no one in his proper senses, would place such an event on a pedestal for worship and veneration.

That would accord ill with the Lord’s own sense of justice. For it is not a day marked with rejoicing and festivities; rather it conjures the scenario of sackcloth and ashes. So 31 December receives the rebuff of conscience in its efforts at acclamation. The legal determination achieves the same results. For the shroud of indemnity in section 34 of the transitional provisions of the Constitution, 1992 completely mummifies the 31 December event and reduces it to an impotent, unmentionable event at law. It must remain so in its sarcophagus.

That said, it is not our province to indulge in a debate on extrinsic merits. For we do not espouse a cause or denounce one. The historic perspective allowed us, is only to place 31 December on the calendar as a happening. We accordingly leave it to history and posterity, as better judges, to pronounce on the quality of that event, and give it its rightful place. For it is history that accords its epic moments the distinction of an indestructible accolade.

One can hardly resist here a pertinent aside. The proper evaluation of any historical event, requires a measured period of time for analysis, untrammelled by emotive or other considerations. Those breathing the current air are enveloped in its environment and are disabled by their proximity to the event in time and place, from making sound, objective [p.86] and valued judgments. Fortunately and I repeat, it is not the province of this court to embark on an evaluative excursus. Ours is to relate that day, 31 December, with all its trappings, to the new political order ushered in by the Constitution, 1992 and to declare whether the two could comfortably co-exist. And, if not, whether reminders of that event in public celebrations and at public expense could be permitted in our changed democratic circumstances.

A democratic commitment demands an unremitting effort at ascertaining the underlying spirit of the Constitution, 1992 and obeying it. Thus may we turn with profit to article 56 of the Constitution, 1992. This article embodies the spirit which compels the rejection of the servitude which arbitrariness imposes and which a slave mentality willynilly accepts. Article 56 of the Constitution, 1992 states:

“56. Parliament shall have no power to enact a law to establish or authorise the establishment of a body or movement with the right or power to impose on the people of Ghana a common programme or a set of objectives of a religious or political nature.”

Enshrining the 31 December event as a public holiday, breaches article 56 of the Constitution, 1992. Parliament cannot authorise expenditure from state coffers for the commemorative celebration of all illegal event which many citizens may not approve. Inherent in article 56 of the Constitution, 1992 is the impropriety to impose and ram down people’s throats unpopular programmes with set political objectives. Implicit also in this article, is the invitation to all constitutionally minded citizens of Ghana to fight the imposition or infliction of private programmes on the public and to resist their coercive enforcement through the machinery of the law.

The Indemnity

An indemnity suggests exemption from penalties. It is the closing of a chapter. The commencement of a fresh start with the opening of a new page. Recriminations, enmity and rancour which may be carried over from the past, are proscribed. In constitutional terms and with the relevance of our own circumstances, an indemnity connotes a perception of a bright future with all past errors consigned to the archives of history. There is a tacit implication that it may not augur well for the country, if it were to be perpetually embroiled with the rights and wrongs of the past and the vengeful pursuit of the pound of flesh. With that setting, it is clearly unjust to exacerbate old wounds by permitting echoes ot the past [p.87] to reverberate and shatter the tranquility the Constitution, 1992 sought to promote with its reconciliatory arrangements.

An event that has earned its architects an Indemnity under section 34 of the transitional provisions of the Constitution, 1992, must, as observed before, be consigned to the grave with the solemn quietus intoned by the said section. The Constitution, 1992 reminds us that three such events in the past are to be buried with the indemnity of a pardon. Their ghosts should not linger around like phantom wraiths dispensing mischief with reckless abandon. A crude analogy, is tying up the hands of a boxer to allow an adversary to pummel him into submission, pronounce his defeat, and still allow the slaughter to continue.

Conclusion

I permit myself the indulgence to make some observations in conclusion. Even as it is axiomatic that one cannot boast of being a true Christian if one is not acquainted with the Good Book, so does ignorance of the Constitution, 1992 project an unwillingness and an inability to defend it. How can the duty which every citizen is required to discharge in defending the Constitution, 1992 under articles 3(4) and 41(b) be accomplished if its provisions are unknown, and citizens remain ignoramuses of the fundamental law. The narrow division this case has caused, is the clearest manifestation of judicial independence; that quality of freedom the Constitution, 1992 itself seeks to promote. This freedom is a necessary adjunct to the successful defence of the new social order and sustains the springboard for progress in our human development.

The opposing views we express are not caustic reflections on contrary views. They are honest individual perceptions of controversial matters. As W O Douglas puts it in his article “The Dissent: A Safeguard of Democracy” (1948) 32 J Am Ind Soc’y at pp 104-107:

Disagreement among judges is as true to the character of democracy as freedom of speech itself … The truth is that the law is the highest form of compromise between competing interests; … it is the product of attempted reconciliation between the many diverse groups in a society … When judges do not agree, it is a sign that they are dealing with problems on which society itself is divided. It is the democratic way to express dissident views. Judges are to be honoured rather than criticised for following that tradition, for proclaiming their articles of faith so that all may read.”

[p.88]

If our Constitution, 1992 is to play an effective part in forging a virile democracy, it would be unacceptable to dilute its force with the demolition of the structure of checks and balances that sustains it or negate its provisions on the altar of peace and stability. The court’s independence and integrity are themselves powerful instruments for peace and tranquility. It was the late Chief Justice Snoira of the Israeli Supreme Court, who said that in any competing tryst “between truth and stability, truth must prevail.”

I conclude with two quotations which sum up this whole exercise of interpretation. The first is from Tuffuor v Attorney-General (supra) at 664:

“The ideals which the framers of the Constitution were at pains by the letter and spirit of this Constitution to establish ought to be respected and adhered to. They are justice and fairplay; abhorrence of arbitrariness and discrimination; victimisation and vindictiveness; the protection of the individual and his fundamental human right[s], within the walls of the Constitution. We believe it was in pursuance of these ideals that the framers of the Constitution, formulated their proposals. . .”

To Lord Tennyson is reserved the last word. His counsel in one of his peoms is to “. . . take occasion by the hand and make the bounds of freedom wider yet. Broad based upon her people’s will.”

JUDGMENT OF ABBAN JSC.

On 21 December 1993 the original jurisdiction of this court was invoked by the plaintiff by a writ in which the plaintiff sought two reliefs. In the first relief, the plaintiff prayed that the public celebration which was scheduled to take place on 31 December 1993, and the financing of the activities involved in that celebration from public funds should be declared unconstitutional; and the defendant should be ordered to refrain from carrying out the said celebration on 31 December 1993. It would be better to set out the full text of the reliefs, as amended. They read:

“(1) 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), 35(1) and 41(b). thereof.

[p.89]

The success of the second relief depended on the success of the first relief. The plaintiff also set out in its “statement of case” the basis for seeking the above declarations. The pleadings filed by both parties are very important and they ought to be set out where necessary, in extenso.

In paragraphs (3), (4), (5), (6) and (7) of the plaintiff’s statement case, the plaintiff clearly gave the summary of the provisions of articles 3(3), (4), (5). (6), (7), 35(1) and 41(b) of the Constitution, 1992 which were referred to in the first relief. In due course, the exact wording these articles would be quoted and critically examined to find out whether any of those provision expressly or by implication banned or prohibited the intended celebration.

However, paragraphs (8), (9), (10) and (11) of the statement of case alleged and I quote:

“(8) In a publication in the print and other media in Ghana on or about 14 December it was reported that the Government of Ghana had decided to organise celebrations to mark the overthrow of the constitutionally and legitimately elected Government of the Third Republic of Ghana by violent or other unlawful means on 31 December 1981, by a route march involving the security services and voluntary organisations, and a wreath laying ceremony at the Revolution Square and a musical carnival at Trade Fair Centre which is situate at La in Accra.

(9) On or about Friday 17 December 1993 it was further announced in the media in Ghana that 31 December 1993 would be observed as a holiday in celebration of the violent and unlawful overthrow of the legally constituted Government of Ghana on 31 December 1981 aforesaid.

(10) The plaintiff will contend that such celebrations, route marches and musical carnivals cannot be held without financing and that such financing would necessarily have to come from public funds.

(11) The plaintiff will contend that the financing of such celebrations from public funds offends against the very [p.90] existence of the Constitution, 1992 that it is an affront to democracy and democratic constitutional rule and is subversive of the whole of the Constitution, 1992 and further that the financing of such celebrations from public funds is totally unconstitutional.”

The defendant denied paragraphs (8) and (9) of the plaintiffs statement of case and averred that:

“the print and other media on or about 14 December 1993 reported a press release from the Information Services Department stating that ‘A number of activities have been planned throughout the country to mark the twelfth anniversary of the 31 December Revolution and the first anniversary of the Fourth Republic.”‘

The defendant, in his paragraph (5) of the defence, also denied the plaintiff’s paragraph (9) in the following terms:

“(5) The defendant denies paragraph (9) of the statement of plaintiff’s case and would say that the Minister of Interior issued a statement on 17 December 1993, which was announced by the media saying, inter alia, that ‘The Minister of Interior has announced that Saturday, 25 December, Christmas Day; Sunday, 26 December, Boxing Day; and Friday, 31 December, Revolution Day are statutory holidays.”‘

Photocopies of the two press releases in question and referred to in the defence were annexed to the defence as annexure A and read:

“Ghanaian Times: Tuesday 14 December 1993 No. 11,349—Anniversary Programmes. A number of activities have been planned to be held throughout the country to mark the 12th anniversary of the December 31 Revolution and the first anniversary of the Fourth Republic.

A release issued by the Information Services Department in Accra said the highlight of activities marking the December 31 anniversary in Accra would be a route march to be followed by a wreath-laying ceremony at the Revolution Square.

Taking part in the route march will be the security services and various voluntary organisations.

There will be a musical carnival at the Trade Fair Centre in the afternoon.

[p.91]

The celebrations would be rounded off with non-denominational thanksgiving services on January 9 in all parts of the country—GNA.”

The defendant’s annexure B was a release, this time from the Ministry of Interior published in the People’s Daily Graphic on Monday, 20 December 1993, No 13393 and reads:

“HOLIDAYS: The Ministry of the Interior has announced that Saturday December 25 Christmas day, Sunday December 26, Boxing day and Friday, December 31 Revolution day are statutory holidays.

A statement issued in Accra said Saturday January 1 is New Year’s day and that Friday January 7, will be observed as the Fourth Republic Day.

It said in accordance with section two of the Public Holidays Law, since Christmas, Boxing and New Year Holidays fall on non working days, Monday December 27, Tuesday December 28 and Monday January 3 have been declared public holidays instead—GNA.”

As I said earlier on, the pleadings filed by the parties in this suit to me are very pertinent, because they offered great assistance, and they lucidly put forward the contentions of the parties, quite apart from the oral arguments which were presented to the court. I would therefore quote also the defendant’s paragraphs (6), (7), (8), (9), (10), (12), (15) and (16):

“(6) The defendant admits paragraph (10) of the statement to the plaintiff’s case, and says that money was legally appropriated under the 1993 budget which are lawfully being used for the celebration of both the historical values that the 31 December revolution stood for and the first anniversary of the Fourth Republic which was born out of the values of the 31 December revolution.

(7) The defendant denies paragraph (11) of the statement of the plaintiff’s case and says that section 19 of the transitional provisions of the Constitution, 1992 validates the 1993 [p.92] budget.

(8) The defendant will contend that 31 December like all public holidays in Ghana is a public holiday by virtue of the provisions of section 1 of the Public Holidays Law, 1989 (PNDCL 220).

(9) The defendant will contend further that articles 3, 35(1) and 41 (b) of the Constitution, 1992 do not support the contention that the celebration of 31 December as public holiday is unconstitutional.

(10) The defendant will further say that the 31 December Revolution of 1981 and the regime it gave birth to are events which the Constitution, 1992 does not intend retrospectively to declare unconstitutional …

(12) The defendant says that whether or not public funds should be appropriated for the celebration of the 31 December revolution is political question which is best left to the, electorate which votes a government into power and a Parliament which can by law decide what the public holidays of Ghana shall be …

(15) The defendant maintains that what the plaintiff is seeking to do is to question the constitutionality and legality of the 31 December Revolution, and events which gave rise to that revolution on 31 December 1981 which should not be entertained by the court by virtue of section 34, particularly subsection 2, of the transitional provisions scheduled to the Constitution, 1992.

(16) The defendant says in the premises that the plaintiff is not entitled to the reliefs sought or at all.”

(The emphasis is mine.) That was the state of pleadings and upon those pleadings oral arguments were addressed to the court.

What Were the Triable Issues

From the pleadings the triable issues in this case were first, whether the public celebration due to take place on 31 December 1993 in commemoration of the revolution of 31 December 1981 was unconstitutional. Secondly, whether public funds being expended in preparation for that celebration were also unconstitutional. Thirdly, if, the intended celebration on 31 December 1993 and the expenditure of public funds in respect of the said celebration were found to be [p.93] unconstitutional, whether this court should make an order stopping the defendant from carrying out the celebration on 31 December 1993 and from making the said preparatory expenses from public funds.

It was on the consideration of the pleadings filed in the case and also on the oral arguments presented in support of the pleadings that this court on 29 December 1993, by a majority of 5-4, gave. judgment in favour of the plaintiff and reserved its reasons.

The split decision was short and proceeded as following:

“By a majority of five to four (Archer CJ, Abban, Bamford-Addo and Ampiah JJSC dissenting the declarations sought by the plaintiff, as amended, are hereby granted. It is hereby ordered that 31 December, shall no longer be declared and observed as Public holiday and celebrated as such out of public funds. The defendant is hereby ordered to obey and carry out this order. Reasons for this decision will be given on a date to be notified.”

(The emphasis is mine.) I had to keep my distance from this kind of judgment and to dissent from it on what, in my view, were very serious legal grounds.

Before I deal with the merits of the case, I will like to make two very important observations, bearing in mind that the present case will definitely not be the last case in which an interpretation of a provision of the Constitution, 1992 would be sought. The likelihood of more of such cases coming before this court cannot be ruled out. Hence, I feel duty bound to make the following observations.

It seemed to me that too much emotions and sentiments were generated in this matter during the hearing. These unfortunately could easily have had undue and profound impact on the court. Continuing national respect for the court’s authority depends, in a large measure, upon the courts wise exercise of self-restraint in constitutional adjudication. Truly judges are human and so the possibility of a judge having his own private or personal views on the subject matter before the court, like the present one, cannot be overemphasised. But it is very important that all parties concerned should do everything possible to assist the judges so that they do not allow sentiments and their personal views to influence or to cloud their vision of objectivity when engaged in construing the provisions of the Constitution, 1992.

This court, in exercising the powers conferred upon it by the Constitution, 1992, should be impervious to extraneous influences and should be able to bring to bear on the problem before it, a professional [p.94] objectivity which transcends personal predilections. Thus, involved in a case, like the present one, have a duty to assist the court in achieving that objective.

The second very important observation is about the case itself. It is significant to note that the plaintiff did not seek a declaration that 31 December, which had been made a public holiday in the Schedule to the Public Holidays Law, 1989 (PNDCL 220), was unconstitutional and that this court should also declare that 31 December should “no longer be a public holiday” on the ground that it was inconsistent with the spirt and the letter of the Constitution, 1992.

To put it in another way, the plaintiff did not give any intimation either by its writ or by its statement of case or by any means to the court or to the defendant that in addition to the amended two reliefs specifically stated in the writ, the plaintiff would also ask the court to declare that henceforth 31 December “should no longer be a public holiday” because it was inconsistent with the Constitution, 1992, and must therefore be deleted from the list of public holidays which had been spelt out in the Schedule to PNDCL 220.

Thus, the constitutionality of any section of PNDCL 220 was never a triable issue in the case. In other words, the plaintiff never sought in its reliefs a declaration that PNDCL 220, which is still on the statute books as provided by article 11(4) of the Constitution, 1992, is inconsistent with the provisions of the Constitution, 1992. Neither did the plaintiff in its pleadings call upon this court, by virtue of article II (6) of the Constitution, 1992 to construct PNDCL 220 “with modifications adaptations, qualifications and exceptions necessary to bring” PNDCL 220 “into conformity with the provisions of the Constitution.” Again there was no request in the reliefs that this court should also declare any section of the Appropriation Law, 1993 (PNDCL 314) unconstitutional.

It would be recalled that it was the defendant who, in his statement case, alluded to PNDCL 220 and contended that 31 December had been made a public holiday under that Law; and that the intended celebration due to take place on 31 December 1993 was in accordance with a statute.

In the course of replying to the oral submissions of learned counsel for the defendant, learned counsel for the plaintiff conceded that PNDCL 220 specified 31 December as one of the public holidays. But learned counsel for the plaintiff submitted that the continued operation of PNDCL 220 was inconsistent with the spirit of the Constitution, 1992 inasmuch as 31 December continued to be observed as a public holiday.

One would have thought that at that stage, the plaintiff would have [p.95] put in a reply or would have, at least, sought leave from the court, even orally, to amend its writ under rule 49 of the Supreme Court Rules, 1970 (Cl 13) by adding other relief, namely that a section of PNDCL 220 and PNDCL 314, both of which are part of the existing law of Ghana, are inconsistent with the spirit of the Constitution, 1992 and are therefore unconstitutional. But no amendment was sought or made either, to the writ or to the statement of the plaintiff’s case.

So the case proceeded on those two reliefs in the plaintiff’s writ and was fought on the issues which I set out earlier on in this judgment. Yet the majority, decision unhesitatingly declared that PNDCL 220 so far as 31 December was concerned was unconstitutional and that henceforth 31 December “should no longer be observed as a public Holiday”, when that relief had not been asked for by the plaintiff in its writ or in its pleadings and when that had been a triable issue in the case. In other words, the majority decision gave the plaintiff a declaration which the plaintiff itself did not ask for and which, as I have already stated, had never been a triable issue in the matter.

It is trite learning that the object of pleadings is to compel the parties to define the issues upon which the case is to be contested, and to prevent one party taking the other by surprise. The question whether a court could legitimately decide on a question not specifically raised by the pleadings merely because there had been evidence of it before the court was discussed at great length by the English House of Lords in the case of Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, HL. At 238-239 of the report Lord Normand had this to say:

“There was no notice in the pleadings of any other cause of action, such as that the appellants negligently sent the vessel to sea in an unseaworthy condition.

The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them … I wish to associate myself with the observations of my noble and learned friend, Lord Radcliffe, on the value of the pleadings. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”

Lord Morton at 239-240 in agreeing with Lord Normand said:

“This submission leads me at once to a consideration of the [p.96] pleadings, in order to see exactly what were the issues raised thereby … My Lords, I have set out the pleadings in detail in order to show that no complaint was made of any act or default on the part of the appellants, either in the original statement of claim or at the time when the respondents had the opportunity of amending it with full knowledge of the facts already mentioned … Counsel for the respondents then sought to make a case of which no hint appeared in the pleadings.”

Similar views were expressed at 241-244 by Lord Radcliffe where he said:

“My Lords, I think that this case ought to be decided in accordance with the pleadings. If it is, I am of opinion . . . that the respondents failed to establish any claim to relief that was valid in law … In my view, where the question is, as here, as to sufficiency of evidence, the state of the pleadings is of more importance than the way in which the case is shaped in argument. It is clear that no application was made to the trial judge to amend the pleadings.”

(The emphasis is mine.) In CFAO v Archibold [1964] GLR 718, SC, Esso’s case (supra) was referred to with approval by the Supreme Court. Adumua-Bossman JSC read the unanimous judgment of the court in which it was held, as stated in the headnote, inter alia, that:

“When a reply is not filed to an averment in the statement of defence, the trial court is not entitled to consider a matter raised in the final address for the first time. The respondent’s submission in his final address that the action was not statute-barred should have been presented in the form of a reply to the statement of defence and it was not competent for the trial court to have considered the matter at all.”

(The emphasis is mine.)

The matter was also discussed in Malm v Lutterodt [1963] 1 GLR 1, SC Azu Crabbe JSC (as he then was) reading the unanimous decision of the court said at 12: “The only problem that arises therefore in this appeal is whether there is evidence to support this finding of the learned trial judge that the plot was abandoned.” Then at 14-15, the learned judge continued:

“To my mind to raise an issue of abandonment is to allege estoppel by conduct which was not pleaded by the plaintiff and in support of [p.97] which he led no evidence whatsoever: see Young v. Star Omnibus Co., Ltd., per Farwell, J. [(1902) 86 LT 41 at 43.]

In my view therefore, the learned trial judge erred in basing his judgment on a point which was not a triable issue on the pleadings see Oloto v.Williams [(1944) 10 WACA 23]. I venture to say, with all respect, that the pronouncements, on abandonment is of no effect because the court went beyond the rights which were really in issue between the parties. In Robinson v. Duleep Singh [(1879) 11 ChD 798 at 813] James L.J. said: ‘. . . if the court had gone beyond the rights which were properly in issue between the parties the decree of the court would be absolutely null and void.”‘

(The emphasis is mine.)

In the present case, as I have already stated somewhere in this judgment, the constitutionality of PNDCL 220 or any section of that Law, or any of the public holidays as listed in its schedule, was never in issue in this action. Thus in the light of the authorities and having regard to the reliefs in the writ and the statement of the plaintiff’s case, that portion of the judgment of my five brethren which went to the extent of pronouncing on PNDCL 220 by declaring that “31 December should no longer be a public holiday”, with the greatest respect, was irregular. That portion of the judgment went “beyond the rights which were properly in issue between the parties.”

I have to make it clear that it was an irregularity which came about as a result of the court doing something for which it had no warrant in law or in the rules of procedure to do. Consequently, that portion of the judgement just referred to is null and void and has no legal validity whatsoever.

In the classic case of Mosi v Bagyina [1963] 1 GLR 337 at 346, SC, Akufo-Addo JSC (as he then was), in the course of reading the unanimous judgment of the Supreme Court, said that this kind of irregularity, as in the present case,

“renders void any order or judgment emanating therefrom, and setting aside such an order or judgment being ex debito justitiae a court or a judge has no discretion in the matter but is under a legal obligation to set it aside.”

In the case of MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, PC, and which was also approved in the Mosi case (supra) Lord Denning said:

[p.98]

This is the same as saying that it was void and not merely voidable, . . If an act is avoid, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado. . .”

I will now deal with the case on its merits. Learned counsel for the plaintiff, Mr Adjetey, first contended that the coup of 24 February 1966 which violently overthrew the Constitution, 1960 and toppled the Nkrumah regime was illegal. So was the coup of 13 January 1972 which overthrew the Constitution, 1969 and ousted the Busia regime from office. and the revolution of 31 December 1981 that overthrew the Constitution, 1979 and toppled the Limann regime was also illegal. Learned counsel intimated that he was not very much concerned with the palace coup of 5 July 1978 and the uprising of 4 June 1979, for those coups were directed against military regimes which had illegally enstalled themselves in power. But learned counsel for the plaintiff contended that the indemnity, as provided in the transitional provisions of the Constitution, 1992, should not prevent this court from holding that all those three coups were illegal and therefore unconstitutional.

Learned counsel for the defendant, the Deputy Attorney-General, Mr Amidu, on the other hand, submitted that the various coups mentioned in the submissions of learned counsel for the plaintiff had been prohibited by the provisions of the indemnity section, ie section 34(1) and (2) of the transitional provisions of the Constitution, 1992 from being made the subject of any law suit; and so the court, by the said section, was not entitled to make any pronouncement on those coups.

I thought that was an indirect invitation to this court by counsel for the plaintiff to pronounce on the illegality of those coups and also on the illegitimacy of section 34 of the transitional provisions of the Constitution, 1992.

Incidentally, indemnity clauses are not peculiar to the Constitution, 1992. They are found in all the Constitutions promulgated since 1969. They were first introduced in the Constitution, 1969 by section 12(3) of its transitional provisions. In the Constitution, 1969 the indemnity clauses, apart from indemnifying the coup leaders and members of the National Liberation Council, went further in its section 14(3) of the transitional provisions to give mandate to the civilian government, the Busia Government, that “on or soon after the coming into force” of the Constitution, 1969, the leaders of the 1966 coup should be paid gratuity “as a token of the Nation’s gratitude” or appreciation for overthrowing [p.99] the Nkrumah government by force of arms.

In addition to this, section 14(4) of the transitional provisions of the Constitution, 1969 provided that they should be paid retiring benefits or awards which Parliament had no power, according to section 14(5), to alter or interfere with “until the death of all members of the National Liberation Council.”

It can therefore be seen that the Constitution, 1969 did not only exonerate the coup leaders from blame in staging the coup, but they were also rewarded handsomely for violently overthrowing the Nkrumah regime. Thus, as already stated, the provisions as found in section 34 of the transitional provisions of the Constitution, 1992 are not new phenomena.

In any case, in view of the injunction placed on the court by the provision of Section 34(2) of the transitional provisions of the Constitution 1992, I did not think this court was entitled to consider the legality or illegality of those various coups mentioned by learned counsel for the plaintiff, apart from stating simply that those coups overthrew governments which were then in power. I rather prefer to adopt the attitude of Archer JA (as he then was) in the case of Sallah v Attorney-General G&G (Vol 11, Pt 2) 493, SC. In the course of his judgment in that case the learned judge had this to say at 496:

“Although this transitional provision in effect clearly forbids the generation of future controversy by legal proceedings or judicial pronouncement, over the constitutionality or unconstitutionality, legality or illegality of the Proclamation and the events, that ensued, yet the defendant, who is the learned Attorney-General, has generated arguments pregnant with questions which no doubt would drive us into considering the legal validity of the Proclamation itself. The learned Attorney-General has put temptations in the path of the court and I think these temptations should be ruthlessly and mercilessly resisted. For my part, I would say that section 13(3) of the Transitional Provisions has clapped the hand of reticence over my lips and I refuse to open my lips on the legal validity of the Proclamation itself.”

(The emphasis is mine.)

Learned counsel for the plaintiff next contended that the intended celebration of the 31 December revolution on 31 December 1993 was contrary to the provisions of articles 3(3), (4), (5), (6) and (7), 35(1) and (2) and 41(b) of the Constitution, 1992. He argued that to celebrate a day [p.100] on which a lawfully constituted government was illegally ousted from power would send wrong signals to the security services, to the Armed Forces and even to school children and to Ghanaians as a whole, that the highest achievement anybody could attain was to overthrow an established government by violence.

It was further submitted by learned counsel for the plaintiff that the celebration of the 31 December revolution on 31 December 1993 would remind Ghanaians of atrocities, maiming, humiliating and other dehumanising acts suffered by or meted out to many Ghanaians on 31 December 1981; and to that end, the celebration was inconsistent with the spirit and the letter of the Constitution, 1992.

Learned counsel for the defendant, on the contrary, argued that the celebration was constitutional and that all the articles referred to by counsel for the plaintiff did not proscribe the celebration which was to take place on 31 December 1993. Learned counsel for the defendant contended that it was a celebration of a historical event which took place in this country. Learned counsel argued that one could compare it with the French Revolution of 14 July 1789, and that the French people do not consider the celebration of 14 July unconstitutional. The object of celebrating the 31 December revolution, contended learned counsel for the defendant, was not to abrogate or overthrow the Constitution, 1992 as envisaged under article 3(3), (4), (5), (6), and (7) of the Constitution, 1992.

It was also submitted by learned counsel for the defendant that the mere fact that the celebration or an act could remind people of what happened on a coup day could not make the celebration or that act unconstitutional. Learned counsel for the defendant further submitted that observing 31 December was to celebrate, not the actions of that day, but the historical values which the Constitution, 1992 had inherited. Learned counsel contended that the people of Ghana elected Parliament and have an executive and these had not the mandate from the people to take a decision as to which days in the year are to be public holidays and to celebrate them as such.

Learned counsel for the defendant therefore submitted that the decision to celebrate 31 December in the manner as advertised in the local papers was a political decision and the court had not been empowered by the Constitution, 1992 to interfere with purely political decisions taken by the defendant.

For the importance of this case, I will quote the articles of the Constitution, 1992 relied upon by learned counsel for the plaintiff [p.101] verbatim. They are as follows:

“(3) Any person who—

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause;

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times —

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article, and

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence.

(7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment.”

“35.(1) Ghana shall be a democratic state dedicated to the realization of freedom and justice, and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution.”

“41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen —

(b) to uphold and defend this Constitution and the law . . .”

[p.102]

Articles 35(1) and 41(b) of the Constitution, 1992 which form part of the Directive Principles of State Policy, have nothing to do with celebrations. In this action, no one disputed that Ghana is “dedicated to the realisation of freedom and justice”, and that the “sovereignty resides in the people.” Neither did any one dispute the right of every citizen to defend the Constitution, 1992 and the law. Thus, the provisions of articles 35(1) and 41(b) of the Constitution, 1992 had no relevance, whatsoever, to the subject matter before the court. Reference to those articles, with due respect, was totally misconceived.

The words of article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 do not pose any problem. They are clear and straightforward. Thus, the proper course to follow in the interpretation of these clauses is to take the words themselves and arrive at their meaning. In other words, the language of the clauses of article 3 of the Constitution, 1992 is clear and unequivocal, and must therefore be given the literal meaning, and to do so would not, in my view, lead to any manifest ambiguity.

If the provisions of the clauses of the articles of a Constitution are clearly, expressed, as in this case, and there is nothing to enable the court to put, upon them, a construction different from that which the words import, then the words must prevail. In the Sussex Peerage, Case, (1844) 11 Cl &, Fin 85 at 143, Tindal CJ observed:

“. . . the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the law giver.”

(The emphasis is mine.) See also the dictum of Park B in Becke v Smith (1836) 2 M &W 191 at 195 and Capper v Baldwin [1965] 2 QB 53 at 61 per Lord Parker CJ.

The words of article 3 of the Constitution, 1992 refer to acts which are geared towards unlawful and violent overthrow of the Constitution, 1992. All those clauses of article 3 have one common theme. That theme is like a thread which runs through all of them; namely any person or persons either by themselves, or in conspiracy with others, who engage in any activities, overtly or covertly, with the object of overthrowing the Constitution, 1992 unlawfully or violently, commit high treason, which is a very serious criminal offence. Such persons, and [p.103] whoever aids and abets them, would be liable to criminal prosecution and upon conviction would suffer the death penalty.

Article 3(4)-(7) of the Constitution, 1992 place an obligation on every citizen of this country, to take any appropriate step to prevent any person or persons from using any unlawful or violent means to overthrow, repeal, cancel or suspend the Constitution, 1992. That persons who prevent or offer opposition to or suppress such conduct would be exonerated from any offence. That in case these good citizens failed in their attempt to resist such conduct and they suffered any punishment thereby, that punishment would be considered null and void, and of no legal consequences, from the date such punishment was imposed, if eventually the Constitution, 1992 was restored.

In addition, such good citizens would be entitled to be awarded adequate compensation for any punishment or loss they might have suffered. The assessment of the quantum of the said compensation would be made by this court on an application made to it by the persons concerned, or on their behalf. That any such award made by this court should be paid out of the Consolidated Fund.

It could therefore be seen that the sole intention of the framers of the Constitution, 1992, as portrayed in the said article 3, is to dish out the death penalty for those who indulge in subversive activities which have the only object of overthrowing or suspending or abrogating the Constitution, 1992 or any part thereof, unlawfully or with violence; and to reward those who might suffer in the course of opposing such violent overthrow.

Such clarity of intention must militate, uncompromising, against any suggestion that the celebration of the kind as was contemplated by the defendant on 31 December 1993, would infringe any of the clauses of article 3 of the Constitution, 1992. The intention of those who framed the Constitution, 1992 must not be collected from a vacuum, or from any notions which may be entertained by this court as to what is just and expedient. The intention must be collected from the provisions of the articles relied upon; and once the intention is ascertained, it is the duty of this court to give effect to that intention.

The intention of those clauses of article 3 of the Constitution, 1992 is not to prohibit the celebration of 31 December as a public holiday, and as a day for merry-making. The activities involved in the celebration which was to take place on 31 December 1993, must guide this court to find out whether the said celebration had the potential of overthrowing the Constitution, 1992 unlawfully, or to bring down the government of [p.104] the day unlawfully or by violence as envisaged by those clauses of article the Constitution, 1992 relied upon by the plaintiff.

The celebration involved going on a route march which was a kind of procession which is guaranteed by article 21(1)(d) of the Constitution, 1992. It also had the object of remembering the dead, of merry-making generally, dancing and enjoyment of musical shows; and it was to be rounded off with a non-denominational church service. These activities could not, by any stretch of imagination, amount to “violent” and “unlawful means” intended to “overthrow” or “abrogate” or “suspend” the Constitution, 1992 or “any part of it.”

It was to be a peaceful celebration. It was not aimed at using it to attack violently government institutions, or to cause riots and disorder so that law and order would break down in the process; and make it impossible for the elected government under the Constitution, 1992 to govern; and thereby oust it from office by “unlawful means” instead of through the ballot-box.

Quite apart from the articles relied upon by the plaintiff, I carefully and critically examined the provisions of the Constitution, 1992 from article 1 to article 299, and from section 1 to section 37 of the transitional provisions; and I could not find even a single provision which expressly or by necessary implication proscribed the celebration which was to take place on 31 December 1993.

It is interesting to observe that the provisions which have been made in article 3 of the Constitution, 1992 were similar to provisions also made in article 3 of the Constitution, 1969, although not as elaborate as in article 3 of the Constitution, 1992. Indeed, article 3 of the Constitution, 1979 also made almost identical provisions as were made in article 3 of the Constitution, 1969.

So the provisions, which have been made in article 3 of the Constitution, 1992, are not new or peculiar to the Constitution, 1992 alone. These provisions existed in substance in both the Constitutions, 1969 and 1979. That is, they existed during the Busia regime and also during the Limann regime. Yet those civilian governments observed coup days as public holidays and expanded public funds to celebrate the anniversary of those coup days. For example, the Busia Government celebrated 24 February 1970 as a public holiday dubbed “Revolution Day” to commemorate the violent overthrow of the Nkrumah regime. But to me, those celebrations were not in contravention of article 3 of the Constitution, 1969. Neither did the celebration contravene any other articles of the Constitution, 1969.

[p.105]

The Busia Government had an Attorney-General who would have advised that government against the celebration of the anniversary of the coup of 24 February 1966 as a public holiday and as a Revolution Day, if that celebration contravened article 3 of the Constitution, 1969. As a matter of fact, the Busia Government would never have indulged in any celebration which was inconsistent with the spirit and the letter of the Constitution, 1969. I will deal with this aspect of the matter in detail, at a later stage.

However, I considered the criticisms levelled against the celebration of the 31 December revolution (and the same criticisms could be levelled against the celebration of 24 February as a “Revolution Day” by the civilian government of Busia) as part of a healthy intellectual exercise of democratic rights, and must therefore be encouraged by all lovers of democracy. But that apart, they did not in any way affect the constitutionality of those celebrations.

I now come to the argument of learned counsel for the plaintiff that the celebration was inconsistent with the spirit and the letter of the Constitution, 1992 since it would send wrong signals and would remind Ghanaians of the atrocities, maiming, humiliating and other dehumanising acts suffered by Ghanaians on 31 December 1981.

A Constitution is a living piece of legislation and its provisions are vital living principles; and the spirit of every Constitution must be collected from the Constitution itself. So is it the spirit of the Constitution, 1992 that any celebration and, for that matter, anything which reminds or has the tendency to remind Ghanaians of a coup d’etat, or of violent overthrow of a lawfully constituted government is unconstitutional? The answer to me is “no.”

The Constitution, 1992 itself has made Decrees passed by the National Liberation Council, National Redemption Council, Supreme Military Council I, Supreme Military Council II, Armed Forces Revolutionary Council and Laws made by the Provisional National Defence Council part of the existing law of Ghana. No law or legislation is passed without referring to the source which is the foundation upon which it bases or derives its authority to make that law; and it is that source which gives validity to that law. It is for this reason that NLC Decrees, NRC Decrees, Decrees of SMC 1, SMC 11 and AFRC and PNDC Laws all contained Proclamations which revealed the sources of authority of those Decrees and Laws.

Thus the Proclamations of 24 February 1966, 13 January 1972 and 31 December 1981 revealed that on those days the governments in authority [p.106] were ousted from power. For example, the Proclamation of 1981 clearly brings out this fact. It reads:

“Provisional National Defence Council (Establishment) Proclamation 1981 . . .

AND WHEREAS on Thursday, the 31st day of December, 1981, it thus became necessary for the Provisional National Defence Council to assume the reins of Government of the Republic of Ghana in the interest of the sovereign people of Ghana . . .

Now, THEREFORE by virtue of the said assumption of the Government of Ghana this Proclamation is made with effect from the 31st day of December, 1981. . .”

These Decrees and Laws are referred to day in and day out in our courts and at any time such Decrees and Laws (each of which refers to a Proclamation and the date of the coup d’etat) are cited, they always remind us of those violent deposition of those governments.

If therefore it was the intention of the framers of the Constitution, 1992 that celebrations and things which remind the people of Ghana of coups should be regarded as being inconsistent with the spirit and the letter of the Constitution, 1992, these Decrees and Laws would have been excluded entirely from the Constitution, 1992 and they would not have been made part of the existing law of Ghana by article 11(4) of the Constitution, 1992.

If all these Decrees and Laws which are in permanent form and are therefore constantly reminding us of coups and their consequences have been given a place of pride in the Constitution, 1992 by its framers, because they did not consider them as being against the spirit and the letter of the Constitution, 1992, how come that a day’s celebration and a public holiday which also remind Ghanaians of a coup (in the same way as the Decrees and Laws do) should be regarded as being against the spirit and the letter of the Constitution, 1992 and therefore unconstitutional?

This is tantamount to overstretching the doctrine of the spirit of the Constitution to unreasonable limit and absurdity. For if this contention that celebrations or acts and conduct which remind Ghanaians of humiliations and atrocities meted out to them during coups are all inconsistent with the spirit and the letter of the Constitution, 1992 is accepted as correct, then it is likely to create ripples which may in the long run generate unforeseen confusion.

If that kind of construction is correct then, for example, the act of [p.107] naming the nation’s airport after one of the architects of the coup of 24 February 1966 which toppled the Nkrumah regime, and the act of raising a monument with public funds to the memory of that coup leader, edifices which are conspicuously and constantly reminding Ghanaians of the violent overthrow of the Nkrumah regime, could also be regarded as inconsistent with the spirit and the letter of the Constitution, 1992. For these things could “send wrong signals”, if I may again borrow the expression of learned counsel for the plaintiff.

It was also argued that the French Revolution should not be compared to what took place in Ghana on 31 December 1981; and the yardstick of that revolution should not be used to measure the happenings in Ghana. I found it rather difficult to accept that argument. For example, precedents of courts of other countries are cited before our courts to show how a similar situation which had occurred in another country was dealt with. Even though they are only persuasive, they are cited as a guide when dealing with similar cases. Thus the courts in Ghana do not refuse to look at decisions being handed down by courts of repute in other parts of the world. It is in this vein that it would not be wise for a country, like Ghana, not to take account of what took place in other countries; for we cannot escape from the repercussions of such events. For any country, temporary isolation from a series of large international events is possible. But isolation from their consequences is not possible.

The French Revolution could not therefore be dismissed as irrelevant and as not being worthy of comparison with the revolution of 31 December 1981. The underlying principle involved in the French Revolution of 14 July 1789 and that of the uprising of 31 December 1981 is the the same. For all of them involved the overthrow of governments in power by force of arms; and those who took part in them felt that those governments had betrayed the confidence which the people had reposed in them.

The French Revolution started with the destruction of the Bastille by an armed mob of Parisians on 14 July 1789. The Bastille had come to be used as a state prison for holding persons who were believed to be dangerous to the State, even though they had not been convicted of any crime. So as was stated “the gloomy old fortress had become a symbol of tyranny of the French Kings” and its fall was thought of as a great victory for liberty. So it was an uprising of the common men against a tyrannical monarchy; and the king, the queen and hundreds of nobles and many innocent people were “guillotined” and the people rallied around the motto “Liberty, Equality, Fraternity”: see Britanica Junior [p.108] Encyclopaedia, Vol 3, pp 101-102 and Britanica Junior Encyclopaedia, Vol 6, pp 213-214.

Despite the slaughter of the king, the queen and many innocent people, the French people do not consider the celebration of 14 July as unconstitutional. The French Government spends public funds to celebrate this historic event even though the celebration reminds them of the atrocities, the killings and murder of some innocent people during the revolution which started on 14 July 1789.

It must he pointed out that learned counsel for the defendant referred to the French Revolution, as I understand him, in order to bring home the point that 14 July is celebrated by the French people, people from a western country that is committed to democracy and also have a written Constitution. They celebrate the day as their national day and as a public holiday with pomp and pride; and they do not consider the celebration of 14 July as unconstitutional even though that day, as I have stated, reminds them of the atrocities that took place on 14 July 1789.

The mere fact that a celebration reminds people of a violent overthrow of a government and its aftermath, does not in itself make that celebration unconstitutional. The celebration of the 31 December revolution was intended to mark a historic event which occurred in Ghana on 31 December 1981. The celebration was lawful. A lawful act or conduct does not become unlawful or unconstitutional simply because it is not liked or fancied by the plaintiff.

It is possible to interpret the majority judgment to mean that the celebration of the 31 December revolution, which was to take place on 31 December 1993, was unconstitutional because it was being organised as a public affair with public funds and the day was to be made a public holiday. But it would not have been unconstitutional if it was to be celebrated as a private affair financed from private resources and the day had also not been declared a public holiday.

May I therefore ask, does it mean then, that a celebration which is unconstitutional, because it reminds people of certain atrocities, would cease to be unconstitutional once the celebration is organised as a private affair and the day of the celebration is not made a public holiday? Would such a celebration organised as a private affair still not have reminded the people of the happenings of the coup day, and of the dehumanising of people all the same?

I should also remark that some of the matters raised by the plaintiff in its statement of case and were denied by the defendant in his statement of case, and indeed, matters raised in the oral arguments of learned [p.109] counsel for the plaintiff required proof. A litigant who asserts that a conduct is unconstitutional, generally has the onus of showing that it is. In this particular case, where the contentions had been that the people of this country did not want 31 December to be made a public holiday, because the day reminded them of atrocities that took place on 31 December 1981, it was incumbent on the plaintiff to have produced evidence which could have formed the foundation of those contentions. This is especially so, where there is not a single provision in the Constitution, 1992 which states that 31 December should not be celebrated in the way as it was advertised.

The court was not even furnished with evidence as to opinion polls, scientifically conducted, as is done in other countries, to show the percentage of those who liked and those who did not like the celebration. The views of the plaintiff about the celebration could not, with due respect, represent the views of the whole adult population of this country. Obtaining views from a negligible number of elite and few people around the cities and the urban areas, leaving out those in the rural areas who form the bulk of the population, could not provide the answer. This court was therefore eloquently pressed upon to accept a situation which called for proof but of which proof was lacking.

I will now deal with PNDCL 220. Public holidays have been the subject of diverse statutes. Indeed, many of the words used in PNDCL 220 seemed to have been borrowed from the language of previous enactments on the subject. I will therefore trace the ancestry of PNDCL 220 to find out exactly the attitude of previous governments as regards holidays and how they had viewed or treated them. I do so mindful of the principle which was laid down by Lord Mansfield in R v Loxdale (1758) 1 Burr 445, namely:

“Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other.”

This principle is still sound and it was applied in the case of Smith v Brown (1871) LR 6 QB 729. It was also approved by the English Court of Appeal in Goldsmiths’ Co v Wyatt [1907] 1 KB 95, CA.

Starting with the Public Holidays Act, 1960 (Act 23) which was assented to by President Nkrumah 15 December 1960, its sections 1 and 2(2) provided as follows:

[p.110]

“1.(1).The days specified in the Schedule to this Act are hereby declared to be public holidays, and subject to the provisions of this Act, shall in every year be kept and observed as public holidays throughout Ghana . . .

2.(2). Any person who contravenes the provisions of sub-section (1) of this section shall be guilty of an offence and shall, on summary conviction be liable to a fine not exceeding ten pounds.”

(The emphasis is mine.) After the overthrow of the Nkrumah regime by the National Liberation Council on 24 February 1966, the Schedule to Act 23 was amended by the National liberation Council by the Public Holidays Instrument, 1966 (LI 509) which, among other things, stated that:

“1. The Schedule to the Public Holidays Act, 1960 (Act 23) is hereby amended by the substitution for all the days specified therein of the following days—

New Year’s Day (1st January)

Liberation Day (24th February)

Independence Day (6th March)

Good Friday

Holy Saturday

Easter Monday

The first Monday in August

Christmas Day (25th December)

Boxing Day (26th December).”

(The emphasis is mine)

It is remarkable to note that during the era of the National Liberation Council, the latter decided to do away with 1 July as a public holiday, even though it was the day on which Ghana became the First Republic. The Busia Government, by the Public Holidays Instrument, 1970 (LI 649) added 1 October as a public—holiday to be celebrated as the Second Republic Day. The Busia Government continued to exclude 1 July—Republic Day—from the list of public Holidays, but continued to celebrate 24 February as a public holiday under the heading “Liberation Day.” But as I stated earlier on, the Busia Government actually celebrated it as a “Revolution Day.”

The Daily Graphic of Tuesday, 24 February 1970, No 6033, carried the speech of Dr Busia on that celebration. I will however quote a few extracts from the “Graphic View” that day:

[p.111]

“Salute to the gallant men.

Today is the fourth anniversary of the February 24, 1966 revolution. Exactly four years ago today a grateful and surprised Ghana woke up to see the end of tyranny and injustice.

As the oppressive CPP regime was uprooted, a firm Foundation for freedom and fair-play was laid in its place…

As Ghanaians celebrate the historic event today, there is no better monument we can erect in memory of the fallen gallant men than to uphold, at all times the aims of the revolution.

We must also pay a tribute to the living, the gallant NLC men, who ably did the spade work for the democratic rule we have now. . .

However we should accept the fact that freedom has its limits and that the elected government has a national duty to check its abuses.

Indeed Ghana’s record in the last four years has vindicated the revolutionary action the army and police took…

We can only hope that Ghanaians will guard jealously the golden opportunity which now prevails and resolve to ensure that the fifth anniversary of the coup will see us counting yet more achievements in an atmosphere of peace and unity.”

(The emphasis is mine.) The same Daily Graphic, on Wednesday, 25 February 1970, No 6034, had the following caption, “Ghana observes Anniversary of the Revolution”; and under it the following article appeared:

“‘IT’S a good holiday. No accidents today,’ a soldier made this remark at the Military Hospital, Accra, yesterday, when asked about reported cases of motor accidents.

The soldier’s remark really reflected the general atmosphere of the celebration of the fourth anniversary of the 24th February Revolution.

A general calm and peace pervaded the capital, except that the scorching and bright sunshine was uncompromising. The capital was gaily decorated with flags and bunting …

Holiday-makers as usual flocked the beaches, the resorts, and bars. The Labadi Pleasure Beach, the popular teen-age and ‘Afro’ recreational spot, was right in the centre of the attractions with its ’24th February Special’ featuring a variety of games, swimming, [p.112] dancing, dining and wining.

At the official level, the Presidential Commission played host to invited distinguished guests at a cocktail party at the Castle in the evening.

Similar receptions were held in the regions by Regional Chief Executives.”

(The emphasis is mine.) May I observe that all the above-mentioned newspapers, like textbooks are available in public libraries in this country. The publications in them, like all newspapers, were made to the whole world and this court is entitled to take judicial notice of those publications.

However, after the overthrow of the Busia regime on 13 January 1972, the new regime, the National Redemption Council, by the Public Holidays Decree, 1972 (NRCD 18) expunged 24 February from the Schedule of holidays and substituted 13 January to be celebrated as National Redemption Day. But on 3 April 1974, the government of the National Redemption Council by the Public Holidays (Amendment) (No 2) Decree, 1974 (NRCD 253) restored 1 July (the First Republic Day) as a public holidays. About ten months later in February 1973, by the Public Holidays (Amendment) Decree, 1973 (NRCD 154), the NRC government also restored 24 February as a Liberation Day to be celebrated as a public holiday.

Then after about a year, the NRC government on 20 February 1974 by the Public Holidays (Amendment) Decree, 1974 (NRCD 244) deleted 24 February from the public holidays. The National Redemption Council government by NRCD 262 made further amendments by incorporating all the previous amendments it had made since it came to power. In NRCD 262 by its section 5(1) the penalty for failing to observe a public holiday was changed to a fine not exceeding ¢1,000 or to imprisonment for a term not exceeding six months or both, if summarily convicted.

NRCD 262 remained in force from 1974 and throughout the period the Limann government was in power, until it was repealed in 1989 by the present PNDCL 220. That is, about four years ago. PNDCL 220 has the same features as all those previous legislations on public holidays. Only the schedules to the various legislations were amended. But the penalties exacted for not observing a public holiday remained during the regimes of Nkrumah, NLC, Busia and Limann. Only the amount of fines were amended from time to time. It could therefore be seen that PNDCL 220 is a successor to the various legislations on public holidays.

[p.113]

Furthermore, it cannot be overemphasised that the Liberation Day—as 24 February 1966 was called—could be really a liberation day for some people in Ghana. But certainly not for all the people in Ghana. Because while that day brought joy to some, it brought humiliation and sorrow to others from which some may not have recovered up to date. Judicial notice could be taken of the notorious facts that there was destruction of human life and property on that day, and 24 February 1966 could easily be said to be one of the bloody coups this country has witnessed.

Men in the security services were killed. Innocent civilians while going to work at the airport in the early hours of the morning were caught in cross-fire and killed in cold blood in front of the Flagstaff House. These were all notorious facts; and the aftermath of that coup was that a section of the population was banned from holding political and public office for ten years: see the Elections and Public Offices Disqualification Decree, 1969 (NLCD 332).

Indeed, one can recapture the day of that coup—24 February 1966—by referring to a passage in a book entitled, The Politics of Political Detention (1971) by Kwame Kesse-Adu. It was first published in 1971. At page 52 of that book, the author gave a vivid description of his feelings and what he found the situation to be, following the violent overthrow of the Nkrumah regime, in the following moving words:

“In the midst of a desert of hopelessness, suddenly we found an oasis of hope. This was 24th February 1966. There was a great deal of noise, of cheering and of merry making from outside … The message flashed into cell No. 3—my cell. The army had seized power. General Ankrah had assumed office. Afrifa and Kotoka were the heroes of the coup. . . So we also cheered. This was responded to from outside … That night there was evidence. Kofi Baako, Kwaku Boating and some Ministers came in. Kofi Baako was sent to Dr. Danquah’s cell …

Releases started that evening . . . more and more cabinet Ministers and CPP high ranking officers were brought in batches . . . The next day, we saw them and I went to greet my old friend Kofi Baako … He smiled and waived. Then I saw my cousin, Aaron Ofori Atta. I saw Krobo Edusei and most of the Ministers . . .

We left Ussher Fort by exchanging our cells with members of the CPP government …

I did not know whether to weep or to laugh.”

[p.114]

So 24 February 1966, as I said, was a day of joy for those who gained their freedom; and it was a day of sorrow for the relatives of those who were killed in cold blood and their properties destroyed, and also for those who were arrested that day and incarcerated in Ussher Fort and in other prisons in the country, when they had not been tried and convicted. Even though, according to the passage quoted above, one of those persons “simled and waived” when he entered Ussher Fort, it should be remembered that there are men who could smile bravely before the world in the face of the deepest personal sorrow. So while others gained their liberty, others lost it and, to use again the expression of learned counsel for the plaintiff, they were “dehumanised and humiliated”; and some even later lost their right to take part in the politics of their country for ten years.

All these are historical facts from which we cannot run away. As an eminent Ghanaian professor of sociology of blessed memory once wrote:

“History is sometimes troublesome, historical facts are often embarrassing in West Africa . . . The view-points and attitudes which people adopt towards their political, economic or social questions are influenced by their historical experiences.”

So why should Ghana forget her recent past and refuse to celebrate her historic events?

Having reviewed and considered all the past legislations on public holidays since 1960 up to date, and having also reviewed events of the first ever coup we had in this country, it is quite plain that the anniversaries of the coup days had always been celebrated by successive governments since 1906. In my view, all those successive governments, both civilian and military, marked those historic occasions in the life of this country by making those days—24 February, 13 January and 31, December public holidays as a matter of policy. Regrettably, the majority decision could be described as “a massive repudiation of the experience of our recent past.” But no matter the attempt to bury the past, historians will unearth the past and pull together “the pieces … into a coherent whole.”

Be that as it may, from the history of public holidays as I have tried to set out supra, it must be clear to any unbiased mind that the choosing or the selecting of a day to be designated as a public holiday has always been a political decision for the executive and the legislature. The Sovereignty of Ghana resides in the people as provided in article 1(1) of the Constitution, 1992. So it is for the people of Ghana, acting through [p.115] their elected representatives in Parliament who, in conjunction with the executive, ought to decide which days out of the 365 days in a year should be designated public holidays and not for the judiciary to under take that exercise.

It rests with the people of Ghana, in whom full and absolute power resides, to instruct their representatives to have a look at the number of public holidays in the year and to make adjustment if necessary. Decisions which are to be made, depending on political considerations and influence, should be the responsibility of the executive and Parliament. Thus, whether a particular day in a year should be celebrated as a public holiday by fan-fare and merry-making or not is a policy decision for the executive and the legislature to make. With the greatest respect, the majority decision in favour of the declarations sought in the writ was plainly an undue and unnecessary interference in the functions of the legislature and the executive.

This court, in my view, should always maintain a fine balance between the need to protect constitutional rights and liberties on one hand, and the danger of too great an interference in the affairs of the executive and the legislative branches of the government on the other.

At the Third Conference of Chief Justices of Commonwealth Africa held in April 1990 in Livingstone, Zambia (of which I happened to be a participant), the Chief Justice of Zimbabwe, the Hon Mr Justice Dumbustshena (now retired) in the course of reading a paper on the topic—”Have the African Judiciaries Satisfied the Expectations of their Countries”—made a very pertinent statement which I here quote extensively:

“Most of the difficulties confronting the Judiciaries of Africa arise from failure to appreciate the relative functions of each branch of government. If each branch of the government appreciated its functions and those of other branches, there would be a desire to co-operate. The Executive would comply with the orders and judgments of the courts. The Legislature would not enact laws restricting the functions of the Judiciary. And Judges would not interfere with the legislative functions of Parliament, that is, if we do not indulge in fanciful interpretations to words which are clear and unambiguous … The slightest hint of interference by the Judiciary in the administrative functions of the Executive invites its wrath. Keep away from them . . . We must always remember that good governance includes a fair justice system. If we judges deliberately prop up, through our judgments and decisions, bad [p.115] government, it cannot be said that our Judiciaries have satisfied the expectations of our countries . . .”

(The emphasis is mine.)

The next query raised about the intended celebration on 31 December 1993 was that it was discriminatory. It was submitted by learned counsel for the plaintiff that the intended celebration of the 31 December revolution on 31 December 1993 was discriminatory; for why should the defendant pick on only 31 December when there had been other military take-overs which were not being celebrated and that there was no justification to single out 31 December; and if the 24 February 1966 coup and the 13 January 1972 coup were not worth celebrating, then the 31 December Revolution was also not worth celebrating.

I did not share that view. 31 December had been designated a public holiday by PNDCL 220 to be observed as such throughout Ghana. PNDCL 220 did not create 31 December a public holiday in favour only of the supporters of the 31 December coup, or in favour of a privileged few, or in favour of only a section of the public. Thus, the fact that the plaintiff and some other persons did not take kindly to it, and did not see the wisdom in celebrating the day as a public holiday, did not make it discriminatory and therefore unconstitutional.

There was even no evidence whatsoever that the majority of the population also shared the same view as the plaintiff’s. As I have already pointed out elsewhere in this judgment, it is the people of Ghana, acting through their elected representatives in Parliament, who can decide on which days shall be public holidays. That is, the executive and the legislature as the representatives of the people have the mandate of the people of Ghana to take that political decision.

If this argument of the plaintiff was to be carried to its logical conclusion, then the public holidays which have been created all these years from even the colonial era up to date, to the advantage and benefit of Christians in this country could also be declared unconstitutional. Christmas Day (25 December), Good Friday and Easter Monday, for example, are days to mark the anniversaries of the day Christ was born, was crucified and arose from the dead. These days have no significance to the Muslims, Jews, heathens, unbelievers and some other religious sects in the country.

Yet all these persons are compelled to observe those days as public holidays. They do not go to work or open their shops on those days under the pain of criminal punishment if successfully prosecuted and [p.117] convicted. Ghana has not been declared a Christian country by any law. At least, I have not come across any such law; and even if there was such a law, it would be unconstitutional in view of article 21 (1) (c) of the Constitution, 1992 which provides that:

“21. All persons shall have the right to— . . .

The Constitution, 1992 recognises variety of religious practices. Yet, non-Christians are compelled to observe those days as public holidays, and this could amount to giving “different treatment” to Christians, “attributable only or mainly to religion or creed” while subjecting non-Christians to restrictions.

Article 17(2) of the Constitution, 1992 states:

“(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.

(The emphasis is mine.)

Then article 17(3) of the Constitution, 1992 provides that:

“(3) For the purposes of this article, ‘discriminate’ means to give different treatment to different persons attributable only or mainly to their respective descriptions by race, . . . religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”

(The emphasis is mine.)

If therefore public holidays like 25 December, Good Friday and Easter Monday were not considered discriminatory, then it sounded rather hypocritical to single out 31 December out of the Schedule and declare it discriminatory and therefore unconstitutional.

It is really a pity, that while in the process of construing PNDCL 220 “with modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution”, the majority of this court could come to the conclusion that 31 December should rather be expunged from the Schedule to PNDCL 220 as a public holiday. Thus, sacrificing 31 December for those other public holidays just mentioned, which are obviously and manifestly discriminatory [p.118] within the meaning of the provisions of article 17 of the Constitution, 1992.

I cannot help but quote an observation which was once made by Benjamin Nathan Cardozo, Justice of the United States Supreme Court from 1932 to 1938. The learned judge said:

“Judges march at times to pitiless conclusion under the prod of remorseless logic which is supposed to leave them no alternative. They deplore the sacrificial rite. They perform it nonetheless, with averted gaze, convinced as they plunge the knife, that they obey the bidding of their office. The victim is offered up to the gods of jurisprudence on the alter of regularity.”

Non-Christians have so far not found it necessary to complain. This may be because they probably agree with the views put forward by the Right Reverend Kwesi Dickson (now President of the Ghana Methodist Conference) in his book entitled: The Story of the Early Church (1976, London). At page 11 of that book the reverend stated: “In this world of a variety of religious practices, there was the tendency to believe that despite this diversity there was an underlying unity that all religions were at the root the same.” (The emphasis is mine.)

Finally, may I remark that not every enactment passed by the legislature will be liked by each and every one of the over 15 million people in this country. Some may hail it, others may not. Some may even be indifferent. But that is a far-cry from saying that that piece of legislation is discriminatory.

On the spending of public funds, it was submitted by learned counsel for the plaintiff that the preparations for the celebration by way of marching, music extravaganza and other activities would involve expenditure from public funds. Learned counsel referred to paragraph (1) of the statement of the defendant’s case and submitted that in spite of the fact that it was covered by the Appropriation (1993 Financial Year) Law, 1993 (PNDCL 314), it was still unconstitutional and therefore null and void, so far as the funds were being committed to a celebration which was itself unconstitutional.

Learned counsel for the defendant contended that the public funds which had been earmarked for the celebration were authorised under PNDCL 314 which came into effect on 1 January 1993; and since Parliament came into existence the latter, through its finance committee, had had a look at it and never found it necessary to make any alterations. Thus, contended learned counsel, the said PNDCL 314 which had [p.119] authorised the expenditure for the preparations for the celebration which was to take place on 31 December 1993 was consistent with the provisions of the Constitution, 1992 and that PNDCL 314 was indeed saved by the provisions of section 18 (1) (2) of the transitional provisions of the Constitution, 1992. Learned counsel therefore submitted that it could not be argued that the expenditure which had in fact been authorised by law was unconstitutional.

Having already held or come to the conclusion that the celebration did not contravene any provision of the Constitution, 1992, neither was it inconsistent with the spirit and letter of the said Constitution, 1992, the defendant could expend moneys towards the preparations for the said celebration out of public funds, provided the said expenses were approved by Parliament. The plaintiff did not offer any evidence to show that the expenditure in question had not been catered for in the budget of 1993, that is by PNDCL 314, which came into operation on 1 January, 1993.

In other words, the contention that the use of public funds for the celebration was unconstitutional was not based on any concrete facts. It was based on speculation. This court does not lightly declare a conduct or a legislation unconstitutional on mere speculation. PNDCL 314 had been examined by Parliament (through its finance committee) since Parliament came into existence; and the latter did not effect any changes to it. PNDCL 314 therefore formed part of the existing law of Ghana as provided in article 11 (4) of the Constitution, 1992. Again, section 19 of the transitional provisions of the Constitution, 1992 made a special provision which put the validity of PNDCL 314 beyond doubt. It provides:

“19. Notwithstanding any law to the contrary, the financial estimates in operation for the financial year in being at the coming into force of this Constitution shall, until provision is otherwise made by Act of Parliament, continue and shall have full effect.”

In the circumstances, I am of the view that the money being spent on the preparations for the celebration on 31 December 1993 was duly authorised by law and therefore the expenditure was constitutional.

At best, the submissions of learned counsel for the plaintiff on the expenditure of public funds in that manner could be said to have been directed towards the morality of making those expenses rather than the legality of the expenditure. But this court must not stretch its morality to an extent that would amount to a reflection on the legislature and the [p.120] executive. However, the truth of the matter was that the expenditure was sanctioned by law and which law was not inconsistent with any of the provisions of the Constitution, 1992. This court therefore had no business to interfere in the matter.

For the above reasons, I came to the conclusion that all the grounds, upon which the declarations were sought by the plaintiff, had no legal justification whatsoever, and were in fact baseless.

I therefore had no alternative but to dissent from the majority decision that was delivered on 29 December 1993.

JUDGMENT OF AMUA-SEKYI JSC.

In England the courts have no power to question the validity of any law passed by Parliament, their function being only that of interpreting the law in order to ensure that the wishes of Parliament are carried out. There, it is all too true as stated by Megarry VC in Manuel v Attorney-General [1983] 1 Ch 77 at 89, CA that the courts “recognise Parliament as being omnipotent in all save the power to destroy its own omnipotence.” When, therefore, the courts question laws made by subordinate authorities, they do so in the name of Parliament and on its behalf. Thus, even the power to question subordinate or subsidiary legislation may be taken away by statute. This is in line with the concept of the supremacy of Parliament which means that the power of Parliament to make laws is, in the terminology adopted by Lord Birkenhead in McCawley v R [1920] AC 691 at 704, PC uncontrolled. Therefore, if Parliament were to pass a law making the birthday of the queen’s poodle a public holiday, it would rank with one giving Englishmen the right to freedom of speech, assembly and association, and either may be repealed or amended in the same way. There is in England no fundamental or basic law by which the validity of other laws are to be judged.

On the attainment of independence, Ghana was governed under the Ghana (Constitution) Order-in-Council, 1957, section 31(1) of which stated that “it shall be lawful for Parliament to make laws for the peace, order and good government of Ghana.” These words were interpreted in Lardan v Attorney-General (No 2) (1957) 3 WALR 114 to mean that, as in England, the Parliament of Ghana had uncontrolled power to make laws. The Constitution, 1960 put the matter beyond argument when, after much circumlocution, it stated bluntly in article 20 (6) that “the power of Parliament to make laws shall be under no limitation whatsoever.” The result was what the preamble to the Constitution, 1969 called “a regime of tyranny.”

[p.121]

Before 1960, Parliament passed the Deportation (Othman Lardan and Amadu Baba) Act, 1957 to bring court proceedings challenging his deportation order to an end; the Deportation (Indemnity) Act, 1958 to bar the courts from punishing two officers of the executive for their contempt in carrying out a deportation order at a time when there were proceedings in court challenging its validity; the Preventive Detention Act, 1958 for the arrest and detention of persons without trial; and the Kumasi Municipal Council (Validation of Powers) Act, 1959 to bring an action for damages for the unlawful demolition of premises to an end. After 1960, the executive, acting under powers conferred by Parliament, set aside a verdict of acquittal returned in favour of certain persons charged with treason and put the unfortunate prisoners back on trial.

During the years 1966-69, 1972-79 and 1982-92 when the country was under extra-constitutional rule, the power of the law-making body to make laws was uncontrolled. Draconian laws were passed for the detention of persons without trial, for the seizure of property without compensation and to curtail access to the courts. Examples are the Protective Custody Decree, 1966 (NLCD 2), the Preventive Custody Decree, 1972 (NRCD 2), the Preventive Custody Law, 1982 (PNDCL 4), the confiscations under the Transfer of Shares and Other Proprietary Interests (Dakmak Group of Companies) Decree, 1979 (AFRCD 6), the Transfer of Shares and Other Proprietary Interests (Tata Brewery Limited) Decree, 1979 (AFRCD 9), the Forfeiture of Assets Decree, 1979 (AFRCD 10), the Transfer of Shares and Other Proprietary Interests (Specified Companies) Decree, 1979 (AFRCD 15), the Transfer of Shares and Other Proprietary Interests (A and B Industries and Others) Decree, 1979 (AFRCD 31), the Transfer of Shares and Other Proprietary Interests (Babylos Co Ltd and Others) Decree, 1979 (AFRCD 38), the Transfer of Shares and Other Proprietary Interests (Metal Construction Company Ltd and Plastic Wares Ltd) Decree, 1979 (AFRCD 39), the Forfeiture of Assets (Noe Drevici and Others) Decree, 1979 (AFRCD 52), the Transfer of Shares and Other Proprietary Interests (Fattal Group of Companies) Decree, 1979 (AFRCD 55), the Transfer of Shares and Merger (Kowus Motors, Kaasbohrer Ghana Limited and Ghana Assembly Plant) Decree, 1979 (AFRC 60), the Forfeiture of Assets and Transfer of Shares and Other Proprietary Interests (Unipress Limited) Law, 1982 (PNDCL 3), the Forfeiture of Assets (Amadu Duri) Law, 1982 (PNDCL 9), the Forfeiture of Assets and Transfer of Shares and Other Proprietary Interests (Subin Timbers Company Limited and Central Logging & Sawmills Limited (PNDCL 31), the Forfeiture of [p.122] Shares of Menleo Enterprise Limited, etc in Bibiani Wood Complex Limited and Merger of Bibiani Wood Complex Limited and Bibiani Metal Complex Limited Law, 1984 (PNDCL 76), the Forfeiture of Assests (Evangeline Nana Amoako-Pomaa) Law, 1986 (PNDCL 164), the Confiscated Assets (Removal of Doubts) Law, 1993 (PNDCL 325), the Indemnity Decree, 1973 (NRCD 227), the Indemnity Decree, 1979 (AFRCD 22), the Indemnity Law, 1993 (PNDCL 313), the Subversion (Amendment) (No 2) Decree, 1973 (NRCD 191), the Ghana Cocoa Board Re-organisation and Indemnity Law, 1985 (PNDCL 125), the Sefwi-Wiawso Settler Farms (Abatement of Proceedings) Law, 1987 (PNDCL 173) and the Chieftaincy (Specified Areas) (Prohibition and Abatement of Chieftaincy Proceedings) Law, 1989 (PNDCL 212) and the Chieftaincy (Specified Areas) (Prohibition and Abatement of Chieftaincy Proceedings) (Amendment) Law, 1992 (PNDCL 293).

The only periods in our short history that we have lived under governments with controlled legislative powers have been the years 1969-72, 1979-81 and since 1993. Articles 1(2), 3(1) and 3(2) of the Constitutions, 1969. 1979 and 1992 respectively are in the same terms. They make the Constitution the supreme law of the land and declare that any law found to be inconsistent with any provision of the Constitution shall be void; they declare that Parliament shall have no power to enact a law to establish a so-called one-party state; and they make unlawful any activity of any person or group of persons which suppresses or seeks to suppress the lawful political activity of others. There are also in articles 43 and 89 of the Constitution, 1979, and articles 56 and 107 of the Constitution, 1992, provisions denying to Parliament the power to force down our throats any religious or political ideology or to alter the decision or judgment of any court, as well as placing limits on its power to pass retroactive laws.

In the Constitution, 1992, article 58(1) which vests the executive authority in the President requires him to exercise it in accordance with the provisions of the Constitution; article 93 (2) which vests the legislative authority in Parliament requires that the power be exercised in accordance with the provisions of the Constitution; and article 125 (3) which vests the judicial power in the judiciary is strengthened by clause 1 which makes the judiciary independent and subject only to the Constitution, 1992. The situation in which we find ourselves is, therefore, entirely different from that of our predecessors when the Constitutions, 1957 and 1960 were in force, or when the country was under dictatorial regimes. Our inspiration should come from the [p.123] decisiveness of Republic v Special Tribunal; Ex parte Forson [1980] GLR 529 and Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554, rather than the prevarication of Republic v Director-General of Prisons; Ex parte Nti [1980] GLR 527, CA, and Republic v. Special Tribunal; Ex parte Akosah [1980] GLR 592, CA.

In Ex parte Nti (supra), the High Court overruled an objection to its exercise of jurisdiction and granted bail pending the hearing of an application for an order of habeas corpus. The Court of Appeal set these decisions aside and referred the case to the Supreme Court on the ground that the issue of jurisdiction raised before the High Court involved the interpretation of the Constitution, 1979. In Ex parte Akosah (supra) the Court of Appeal took the same position, set aside a judgment of the High Court and referred the case to the Supreme Court to determine whether the High Court had jurisdiction to deal with the matter before it. In so doing, the Court of Appeal erred in two respects: first, by the decision of the Supreme Court in Republic v Maikankan [1971] 2 GLR 473, SC the High Court was not bound to refer the matter to the Supreme Court; and secondly, when they referred the issue of jurisdiction to the Supreme Court they ceased to have power either to allow or dismiss the appeal. The law required that they await the decision of the Supreme Court and act in accordance with it. This was the plain demand of article 118 (2) of the Constitution, 1979, which was a reproduction of article 106 (2) of the Constitution, 1969, and is now article 130 (2) of the Constitution, 1992. Small wonder that Taylor J (as he then was) in Ex parte Forson (supra) and Cecilia Koranteng-Addow J in Ex parte Shackleford (supra) refused to be bound. Their example should teach us to resolve to look issues straight in the face. Any waffling on our part at this point in our history would be inexcusable because we now have a fundamental or basic law which is superior to all other laws and by which the validity of all other laws are to be judged. We have the duty and the right and the power to ensure that the provisions of the Constitution, 1992 are observed.

It was the case for the defendant that we have no jurisdiction to entertain the action now before us. Counsel relied on section 34 (3) of the transitional provisions of the Constitution, 1992 which states:

“(3) For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council . . . or a member of the Provisional National Defence Council . . . in the name of . . . the Provisional National Defence Council . . . shall be questioned in any proceedings whatsoever and, accordingly, it shall [p.124] not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act.”

With this is usually read article 299 of the Constitution, 1992 which provides:

“299. The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

Section 34 (3) of the transitional provisions of the Constitution, 1992 is a reproduction of section 15 (2) of the transitional provisions of the Constitution, 1979, and article 299 of the Constitution, 1992 reproduces article 217 of the Constitution, 1979.

The meaning and effect of section 15 (2) of the transitional provisions of the Constitution, 1979 were considered by this court in Kwakye v Attorney-General [1981] GLR 9, SC when the former Inspector-General of Police sought to set aside his alleged trial and conviction by a shadowy group known then as the Armed Forces Revolutionary Council Special Court. When, relying on section 15 (2), the defendant raised an objection to the exercise of jurisdiction by the court, the court said per Apaloo CJ at 14:

“This subsection is very widely couched but it seems to us that as the plaintiff sought a relief which this court is prima facie entitled to grant, the defendant who claims that this court’s jurisdiction is ousted by this provision, must provide a factual basis for it. We think the defendant must produce facts which show that the Armed Forces Revolutionary Council took or purported to have taken judicial action against the plaintiff.”

And when, subsequently, the Attorney-General adduced evidence to show that on an unspecified date, unnamed persons sentenced Kwakye to 25 years’ imprisonment, the court, by a majority decision, held that this was sufficient and dismissed the action for want of jurisdiction. In his judgment in Kwakye v Attorney-General [1981] GLR 944 at 954 and 960-961, SC Apaloo CJ said:

“The Attorney-General has since filed a statement of his case and produced both oral and documentary evidence with a view to showing that judicial action or purported judicial action within the true intendment of section 15(2) has been taken against the plaintiff and that this court is constitutionally enjoined to decline [p.125] jurisdiction. Accordingly, the court’s task is to decide whether such a factual basis exists for the application of section 15(2) of the transitional provisions or whether the plaintiff has made out his entitlement to the reliefs he seeks without requiring us to do what the Constitution, 1979, forbids…

The oral and documentary evidence led by the defendant was not contradicted by any evidence produced by the plaintiff. There is nothing intrinsically improbable about that evidence . . . In those circumstances, the proper conclusion should be that the Armed Forces Revolutionary Council purported to take judicial action against the plaintiff.

That being so, section 15 (2) of the transitional provisions, ousts any judicial organ from jurisdiction to ‘make any order or grant any remedy or relief in respect of any such act.’ It follows that the declaration sought by the plaintiff cannot lawfully be granted.”

Sowah JSC (as he then was) said at 965-966:

“Even though I consider the trial, conviction and sentence of the plaintiff were a nullity because the trial itself did not match up to the criteria set by A.F.R.C.D. 3, s. 5, nonetheless, I hold the view that it was a purported trial, a fortiori, a ‘purported judicial action.'”

Archer JSC (as he then was) said at 982:

“I would therefore hold that although there is no clear and conclusive evidence of a regular judicial action taken by the A.F.R.C., yet there is unchallenged and uncontradicted evidence of a judicial action purported to have been taken by the A.F.R.C. against the plaintiff. Accordingly, this court is not at liberty to question the proceedings in the special court that tried and sentenced the plaintiff in absentia. Under section 15 (2) of the transitional provisions, it is also not lawful for this court to grant the declaration sought by the plaintiff. The intention behind sections 15 and 16 of the transitional provisions is to make the executive, legislative and judicial actions taken or purported to have been taken by the former A.F.R.C. judicial appeal-proof, judicial review-proof and judicial interference-proof till eternity.”

Charles Crabbe JSC said at 1032:

“The issue, then, is not whether the trial of the plaintiff had been held in accordance with the law under which the special court [p.126] sought to exercise its jurisdiction. The issue is whether what was done looks like, or has the outward appearance of, a judicial action or could be considered as intended to seem, or made to appear as a judicial action . . .

I would say, then, that:

(a) the plaintiff was never tried, convicted or sentenced in accordance with the provisions of the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (A.F.R.C.D. 3), as amended by Decree 19;

(b) the sentence of 25 years imposed upon the plaintiff is an infringement of his fundamental human rights because he was not tried in accordance with the law.

But that, having regard to the provisions of section 15(2) and (3) of the transitional provisions to the Constitution, 1979, I cannot make ‘any order or grant any remedy or relief’ in respect of his purported trial.”

And Adade JSC said at 1038-1039:

“True, certain legal imperatives were ignored, making the trial short of a proper legal trial, even one in absentia …

Be that as it may, section 15(2) seeks to protect not only perfect judicial actions, but imperfect ones also . . . It was a purported trial; judicial action purported to have been taken by the Armed Forces Revolutionary Council Special Court.

Accordingly, section 15(2) operates to remove the action from the jurisdiction of the court . . .

Section 15(2) of the transitional provisions covers all executive, legislative and judicial actions of the Armed Forces Revolutionary Council . . . Once an act is admitted or presumed or proved to be that of the A.F.R.C., it . . . is bound to fall within this range of governmental activity and will automatically be caught by section 15(2) of the transitional provisions.”

Although Anin and Taylor JJSC expressed their dissent, their only quarrel with the decision was that in their view there had not been even the semblance of a trial. Earlier, they had agreed with the majority that all that the Attorney-General needed to do to meet the case put up by the plaintiff was to show that there had been a trial or purported trial. At the end of it all, this court decided that, although the alleged trial and conviction of Kwakye was a sham and a travesty of justice, it had no [p.127] power to set the conviction aside.

If this decision was right then the present Attorney-General is on strong ground when he contends that under the correspondingly section 34 (3) of the transitional provisions of the Constitution, 1992 we have no power to entertain the action now before us. As there is no dispute that the Public Holidays Law, 1989 (PNDCL 220) was enacted by the erstwhile Provisional National Defence Council, the “factual basis” upon which the submission rests has been admitted. But I hold the view that the majority were wrong and Taylor JSC right when he protested at 1070:

“In my humble opinion, the function of the Supreme Court in interpreting the Constitution or any statutory document, is not to construe written law merely for the sake of law; it is to construe the written law in a manner that vindicates it as an instrument of justice. If therefore a provision in a written law can be interpreted in one breadth to promote justice and in another to produce injustice, I think the Supreme Court is bound to select the interpretation that advances the course of justice unless, in fact, the law does not need interpretation at all but rather specifically and in terms provide for injustice.”

As I shall show presently, this court had power to quash or otherwise set aside the trial and conviction of Kwakye.

The phrase “[f]or the avoidance of doubt” appearing in section 34 (3) of the transitional provisions of the Constitution, 1992 is not a formula for sweeping away the human rights provisions of the Constitution, 1992. It is to be found also in articles 31 (8), 32 (5), 72 (3), 82 (6), 155 (2) and 165 of the Constitution, 1992. Like the expression, “for the purposes of”, which is used in articles 10 (2), 11(3), 17 (3), 19 (21), 28(5), 36(5), 47(4) and (7), 71(3), 94(4), 127(7), 152 (2) and 181(6) of the Constitution, 1992, its object is to explain, expand or limit the effect of an earlier provision. A fine illustration of the use of such phrases, words and expressions will be found in article 257 (1), (2) and (3) of the Constitution, 1992 which was taken, word for word, from article 188 (1), (2) and (3) of the Constitution, 1979. It reads:

“257. (1) All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the people of Ghana.

(2) For the purposes of this article, and subject to clause (3) of this article, ‘public lands’ includes any land which, immediately before the coming into force of this Constitution, was vested in the [p.128] Government of Ghana on behalf of, and in trust for, the people of Ghana for the public service of Ghana, and any other land acquired in the public interest, for the purposes of the Government of Ghana before, on or after that date.

(3) For the avoidance of doubt, it is hereby declared that all lands in the Northern, Upper East and Upper West Regions of Ghana which immediately before the coming into force of this Constitution were vested in the Government of Ghana are not public lands within the meaning of clauses (1) and (2) of this article.”

Clause (1) states the law in general terms; clause (2) states what, for the purposes of clause (1), the term “public lands” includes; and, for the avoidance of doubt, clause (3) states what the term does not include.

With this as a guide, it will be seen that section 34 (3) of the transitional provisions of the Constitution, 1992 does not stand alone, but is referable to subsections (1) and (2). Section 34 (2) grants immunity from suit to all those who took part in the overthrow of the Limann government; section 34 (1) grants immunity from suit to members of the Provisional National Defence Council and their appointees for anything done during the rule of the council; and, for the avoidance of doubt, section 34 (3) states that the indemnity so granted shall include executive, legislative and judicial actions taken or purporting to have been taken by the council of their appointees. That is all the meaning that can properly be ascribed to section 34 (1), (2) and (3) of the transitional provisions of the Constitution, 1992. As the present action is not one for compensation or damages, or for punishing anyone, for anything, done in the course of overthrowing the Limann administration, or by the former regime or their appointees during their rule, we are not barred by these provisions from entertaining this action. If our predecessors in this court had confined section 15 (2) of the transitional provisions of the Constitution, 1979 to the indemnity granted by section 15(1), as they should, they would have seen that they had jurisdiction to grant the relief sought by Kwakye.

In the light of the above, counsel’s contention that this court has no jurisdiction to entertain the present suit must be rejected first, because section 34(3) of the transitional provisions does not apply to the facts of this case. Secondly, section 36(2) of the transitional provisions which does, continues in force only those enactments which are consistent with the Constitution, 1992. Thirdly, as there is no conflict between the said section 36(2) and any provision of the Constitution, 1992, article 299 of the Constitution, 1992 does not apply. Finally, being part of the existing [p.129] law as defined in article 11(4) of the Constitution, 1992, PNDCL 220 is required by clause 6 of the said article to be construed:

“. . . with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.”

Put simply, this last provision means that the existing law is subject to the Constitution, 1992.

When the Nkrumah regime was overthrown in a coup d’etat on 24 February 1966, the new government made 24 February a public holiday in place of 21 September, Nkrumah’s birthday, and it was celebrated with pomp and pageantry until democracy was restored in 1969. When the Busia Government was overthrown in a coup d’etat on 13 January 1972, the new regime declared 13 January of each year a public holiday. Again, that date ceased to be observed as a public holiday when democracy was restored. What we still have with us is 31 December which marks the day the democratically-elected government of Limann was overthrown.

The frequency with which we overthrow Constitutions and change our laws on public holidays reminds one of the aftermath of the murder of Julius Caesar in 44 BC when one adventurer after another succeeded in making himself master of Rome. To perpetuate his memory, each incoming dictator would set up his statue in public places. Unfortunately, no sooner had he crowned himself than another would-be emperor appeared on the scene to murder or depose him. In good time, someone had the bright idea that instead of erecting new statues to the new emperor, the head of the former ruler should be knocked off the statues and the head of the new emperor put in their place! But for us, it is a serious question whether the law that compels us to observe 31 December as a public holiday is consistent with the Constitution, 1992.

It was contended on behalf of the defendant that in making the announcement that 31 December 1993 was to be observed as a public holiday, the government was only giving notice to the public of what the law required without necessarily compelling anyone to observe it as such. This was by no means the case. Section 5 of PNDCL 220 imposes penalties, including fines and imprisonment, on those who act in breach of the Law. In other words, if, on a day declared to be a public holiday, a worker, whether self-employed or not, who does not come within the exempted categories, goes to his workplace and engages in any labour for [p.130] profit, he risks being arrested, charged with the commission of an offence and, if found guilty, fined or imprisoned. The question, therefore, whether that part of the Law dealing with 31 December is consistent with the Constitution, 1992 is not an academic one, but a very serious issue touching on the right to work.

It was further contended that the action was incompetent because it asked for a declaration that the observance of the day as a public holiday is inconsistent with the provisions of the Constitution, 1992 whereas the real complaint concerned the validity of PNDCL 220. The short answer is this. If the observance of 31 December as a public holiday is inconsistent with the provisions of the Constitution, 1992, so must the enactment, or, that part thereof, which makes the day a public holiday be inconsistent with the provisions of the Constitution, 1992. In any case, since this court has power under article 130 to interpret and enforce the Constitution, 1992, whether the issue is raised before it or before another court, and whether it arises directly or is incidental to the determination of some other matter, this court is competent to deal with the complaint now before it and make a pronouncement on the validity or otherwise of that part of PNDCL 220 which makes the day a public holiday.

A comparison was sought to be made between the celebration of 31 December as a public holiday and the celebration of 4 July in the United States, and of 14 July in Finance. No doubt the architects of the coups of 24 February and 13 January were also certain that their work would endure. I would urge those who hold this view to show a little modesty and leave it to future generations to determine their place in history. Let them remember that Caligula made his horse Consul of Rome, and Nero played the lyre as Rome burned: they thought they were gods; we know they were not.

It was also said that the issue is a political one and that the plaintiff ought to have its complaint to Parliament. Perhaps, if it had been represented in Parliament it might have sought an amendment or repeal of the offending legislation. However, there was nothing to stop it making a legal issue of it and coming to this court for redress. Parliament now has no uncontrolled right to pass laws on public holidays, any more than it has to declare a “one-party state, or make a party leader President for life or crown him emperor. As the fundamental or basic law the Constitution, 1992 controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful bounds.

[p.131]

Article 3(3) of the Constitution, 1992 makes it the offence of high treason for any person to suspend, overthrow or abrogate the Constitution by violent or other unlawful means, or to aid and abet any other person in such acts. Article 3 (4) of the Constitution, 1992 places on every citizen the duty, and gives him the right, to defend the Constitution, and to resist any person who might seek to overthrow it and, in case the Constitution 1992 is overthrow, to do all he can to restore the Constitution. The message is clear: we have had enough of coups d’etat; we want no more; no one should be permitted to disturb the orderly progress of the nation by resorting to force as a means of achieving political office. There can be little doubt that the members of the Constituent Assembly inserted these unusual provisions in the Constitution, 1992 because they were appalled by the case with which past governments have been overthrown and the indifference shown by our people in defending their rights. For my part, I do not see how a law which requires all of us to celebrate with fanfare, feasting and dancing the overthrow by force of arms of a democratically-elected government can exist side by side with these constitutional provisions.

It was for these reasons that I concurred in the orders made.

JUDGMENT OF AIKINS JSC.

On or about 14 December 1993 there was a publication in the print and other media in this country that the government had decided to celebrate the 31 December 1981 revolution in Accra, the highlight of which was reported to include a route march by the security services and various voluntary organisations, followed by a wreath-laying ceremony at the Revolutionary Square. The publication added that the celebration would be rounded off by a musical carnival at the Trade Fair Centre in the afternoon. Believing rather strongly that the celebration was unconstitutional, the plaintiff, the New Patriotic Party, issued out a writ in this court on 21 December 1993, invoking the original jurisdiction of the court pursuant to articles 2 (1) (b) and 130 (1) of the Constitution, 1992—

(a) to declare that the said celebration and financing of it from public funds is inconsistent with, or in contravention of the letter and spirit of the Constitution, 1992; and

(b) an order directing the Government of Ghana to cancel all preparations hitherto made for the celebration aforesaid and to refrain from carrying out any such celebration financed from public funds.

The burden or gravamen of the plaintiff’s argument is that by the [p.132] combined effect of clauses (3), (4), (5), (6) and (7) of article 3 and articles 35 (1) and 41 (b) of the Constitution, 1992 the public celebration of the overthrow of the legally constituted government 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. The plaintiff contends that such celebration, route march and musical carnival cannot be held without financing from public funds since, for example, the security forces comprising the personnel of the Police Service, the Prisons Service and the Armed Forces of Ghana are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament. The plaintiff further contends that the financing of such celebration from public funds offends against the very existence of the Constitution, 1992, that it is an affront to democracy and democratic constitutional rule, and is subversive of the Constitution, 1992.

Article 3 of the Constitution, 1992 contains provisions in defence of the Constitution, whereby all citizens of Ghana are enjoined to defend the Constitution, 1992, resist any person or group of persons seeking to overthrow or abrogate the Constitution, 1992 by any violent or unlawful means. Article 35 (1) of the Constitution, 1992 declares Ghana to be a democratic state dedicated to the realisation of freedom and justice, a State in which sovereignty resides in the people from whom the government derives its powers and authority, and article 41 (b) imposes a duty on all citizens of this country to uphold and defend the Constitution, 1992.

The constitutional history of this country shows that similar provisions are contained in the Constitutions, 1969 and 1979. Article 3 of the Constitution, 1979 which deals with defence of the Constitution is a reproduction of article 3 of the Constitution, 1969. Thus, it is specifically provided that any activity of any person or group of persons which suppresses or seeks to suppress the lawful political activity of any other person or persons shall be an unlawful act, and the punishment attached to that offence is an injunction by the Supreme Court against that person or group of persons from further carrying on any such activity and be bound over to be of good behaviour for a period of five years. For a second or subsequent offence, such person or group of persons are liable to imprisonment for a term not exceeding ten years, and in addition such person so convicted would be ineligible for election to Parliament or for election to a local government council, or for appointment to any public office for a period of ten years beginning from [p.133] the date of the expiration of the term of imprisonment.

But for the indemnity provision contained in section 15(1) of the transitional provisions of the Constitution, 1979, all persons who took part or assisted in bringing about the change of government which took place on 4 June 1979 would have been liable to be prosecuted under article 3 of the Constitution, 1969 on the coming into force of the Constitution, 1979 because effluxion of time is no bar to criminal prosecution. Similarly, the indemnity provision contained in section 34 of the transitional provisions of the Constitution, 1992 saved all persons who took part or assisted in bringing about the change of government which took place on 4 June 1979 and 31 December 1981 from criminal prosecution under article 3 of the Constitution, 1979 on the coming into force of the Constitution, 1992. Yet, in spite of this immunity, the defence would want to stretch section 34 of the transitional provisions of the Constitution, 1992 to cover 4 June and 31 December by contending that section 34 makes the two processes legal and as such prevents any person from questioning the legality of the two processes. This submission, in my view, is preposterous and infantile, with all due respect to the learned Deputy Attorney-General. I fail to see the force of this argument. The two processes are definitely illegal, and I have not come across any rule or law that legalises them. Section 34 of the transitional provisions of the Constitution, 1992 does not do so either.

Clauses (2), (3), (4) and (5) of section 34 of the transitional provisions of the Constitution, 1992 are completely different from the letter and spirit of the body of the Constitution, 1992 itself, and are certainly not in conformity with justice, but have been introduced into the Constitution, 1992, to quote the language of Charles Crabbe JSC in the case of Kwakye v Attorney-General [1981] GLR 944 at 1030, SC where he referred to section 15 of the transitional provisions of the Constitution, 1979 which have been reproduced in identical terms in section 34 of the transitional provisions of the Constitution, 1992:

“. . .To perpetrate an illegality, if an illegality there be, under the guise of constitutionality. To perpetuate an injustice, if an injustice there be, under the colour of the supremacy of the Constitution . . .

Nor are the actions called in question in conformity with the laws under which they were done. To use the instrumentality of the Constitution to cloak such actions with the semblance of legality is to do violence to decency and embarrass the Constitution—nay justice herself . . . That is the gravamen of our situation. That is the predicament in which we find ourselves today.”

[p.134]

It is equally an offence against the State, namely treason, punishable with death under section 180 of the Criminal Code, 1960 (Act 29) as amended by section 19 of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (NLCD 406). Section 180 (2) defines treason by adopting the meaning assigned to it in clause (16) of article 20 of the Constitution, 1969 which states as follows:

“(16) . . . treason shall consist only

(a) in levying war against Ghana or assisting any state or person or inciting or conspiring with any person to levy war against Ghana; or

(b) in attempting by force of arms or other violent means to overthrow the organs of government established by or under this Constitution; or

(c) in taking part or being concerned in, or inciting or conspiring with any person to make or take part or be concerned in, any such attempt.”

(The emphasis is mine.)

As at 31 December 1981 this law had not been amended or repealed, and although the Constitution, 1969 was suspended by paragraph 2 of the Armed Forces Revolutionary Council (Establishment) Proclamation, 1979, paragraph 3 (2) of the Proclamation continued in force any enactment or rule of law in force in Ghana. Thus section 180 of Act 29 continued in force. In like manner, although section 18 (1) of the transitional provisions of the Constitution, 1979 abrogated the Constitution, 1969 which had been suspended, section 18 (3) states that:

“. . . notwithstanding the abrogation of the said Constitution and the repeal of the said Proclamation [ie Armed Forces Revolutionary Council (Establishment) Proclamation] any enactment or rule of law in force immediately before the coming into force of this Constitution shall in so far as it is not inconsistent with a provision of this Constitution, continue in force as if enacted, issued or made under the authority of this Constitution.”

It means, therefore, that any person or group of persons who took part in the 31 December 1981 uprising that toppled the Limann administration of the Third Republic committed the offence of treason for which they could be prosecuted and sentenced to suffer death upon conviction.

[p.135]

Having said that, I come to article 3 of the Constitution, 1992 which contains provisions in defence of the Constitution. Clauses (2), (3) and (4) of that article provide as follows:

“(2) Any activity of a person or group of persons which suppresses or seeks to suppress the lawful political activity of any other person or any class of persons, or persons generally is un1awful.

(3) Any person who—

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause;

commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times—

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.”

These clauses frown on any interference with the lawful political activity of any person, or the overthrow or abrogation of the Constitution, 1992 by violent means, and bestow upon all citizens the right to defend the Constitution, 1992. No doubt the purpose behind the enactment of these provisions is to remind those who took part in the 4 June and 31 December processes and those who intend to follow suit that it is a high crime to undertake such a venture, and that they do so at their own peril.

The only exception that exonerates any person who overthrows or attempts to overthrow the organs of government from committing an offence is an act which aims at procuring by constitutional means an alteration of the law or of the policies of the government as contained in clause (18) of article 19(18) of the Constitution, 1992. Does it, therefore, accord with logic, reason and constitutional norm to submit that persons who have committed such high offence as treason should be allowed to celebrate the commission of their crime with moneys provided from the [p.136] Consolidated Fund, and to proceed further to declare the days set aside for such celebration public holidays? The answer is definitely “no.” The declaration of such days as public holidays and the expenditure of public funds to aid the celebration are inconsistent with and a contravention of the letter and spirit of the Constitution, 1992. The expenditure involved is no doubt a misuse and a waste of public funds and property contrary to article 41 (f) of the Constitution, 1992 which imposes a duty on every citizen of this country to protect and preserve the public property and expose and combat misuse and waste of public funds and property. The argument therefore that since the government has already started expending money in preparation for the celebration it should be allowed to undertake the celebration is therefore misconceived. If the expenditure so far is unconstitutional, should further expenditure to complete the cycle be allowed? Certainly not.

I need not reiterate that the celebration itself as a public holiday is unfair to those who were adversely affected by the uprising, and who have become impotent to resort to court action by reason of the indemnity provision in section 34 (2) of the transitional provisions of the Constitution, 1992. I agree with the plaintiff that it is an affront to democracy and democratic constitutional rule. The financing is totally unconstitutional and subversive of the Constitution, 1992.

In my view, the 4 June and 31 December processes occasioned a breakdown of law and order, the negation of the rule of law and a circumscription of the fundamental human rights and freedoms of the individual which the Constitution seeks to protect and preserve by its preamble. The stability of the nation was shattered and polluted. There is truth in the contention that the celebration has the propensity of sending wrong signals to the youth of this country that the overthrow of the constitutional order by means of a coup d’etat is glorious, and incites and excites disorder to institutional settlement, and a disrespect to constitutional authority. It tends to elate the security services into thinking that the overthrow of a duly constituted government enhances the prestige and status of the individual soldier partaking in such an act, and that he stands to be wealthy and respected. It is argued that there is no provision in the Constitution, 1992 that specifically proscribes or condemns the 31 December revolution, and for that matter the celebration is not inconsistent with the letter and spirit of the Constitution, 1992. I must say that what the plaintiff is seeking here is a declaration which raises an issue as to the interpretation of certain provisions of the Constitution, 1992. By virtue of article 3(4) of the [p.137] Constitution, 1992 every citizen of Ghana has the right, constitutional or otherwise, to protect the constitutional order as established by the Constitution, 1992 so that it is not abolished or sought to be abolished. To enable this to be done the citizen has to seek “for an interpretation of the Constitution as to the meaning or the effect of a particular provision or provisions of the Constitution”: see Tuffour v Attorney-General [1980] GLR 637 at 649—650, CA sitting as SC.

There is a controversy before us, and that controversy is whether the celebration of the 31 December revolution offends the Constitution, 1992 and the determination of this issue depends upon the interpretation of the Constitution, 1992. This raises a justiciable issue which this court has jurisdiction under article 2 of the Constitution, 1992 to adjudicate upon, and make such orders and give such directions as it may consider appropriate. It is therefore an abysmal misconception to argue that the said celebration involves a political decision which is best left to the electorate and Parliament to consider, and not a constitutional matter requiring interpretation by the Supreme Court.

In effect, it is being argued that this court ought not to enter the political thicket. This is wrong. There is no party politics in this, and the Supreme Court is not in the least dabbling in politics. Advancing his argument in this field, the learned Deputy Attorney-General relied on the English case of Scranton’s Trustee v Pearse [1922] 2 Ch 87, CA and the American case of Baker v Carr, 369 US 186 at 217 (1962) to support his contention. I have read these two cases, and in my view, the Baker case (supra) is irrelevant to the issue under consideration. Baker v Carr (supra) was an apportionment case involving a constitutional challenge to a state’s districting of its state legislature. Even in the United States the political question doctrine is said to be in a state of confusion.

Learned counsel’s reliance on the Scranton case (supra), especially on Lord Sterndale MR’s opinion at 123 of the report, is to invite this court to look at the whole case, in particular PNDCL 220, see how the Law came to be passed, and whether it formed part of the public policy of this country, and if it did then we should say that we have no jurisdiction to go into the matter. In my view, even though Parliament has the right to legislate, this right is not without a limit, and the right to enact a law that 4 June and 31 December should be declared public holidays cannot be left to linger in the realm of public policy. Such legislation must be within the parameters of the power conferred on the legislature, and under article 1(2) of the Constitution, 1992 any law found to be inconsistent with any provision of the Constitution (the [p.138] supreme law) shall, to the extent of such inconsistency, be void. This constitutional criterion is what is used to test the validity or otherwise of all statutes or laws, and it is against this criterion that PNDCL 220 must be tested.

The plaintiff need not specifically plead the unconstitutionality of PNDCL 220 before this court can consider it. The declaration sought by the plaintiff is quite referable to section 1(1) of PNDCL 220, read in conjunction with the Schedule thereof, which declares 4 June and 31 December public holidays, and since this is inconsistent with the letter and spirit of articles 3, 35 (1) and 41 (b) of the Constitution, 1992, that portion of PNDCL 220 is to the extent of the inconsistency null and void by virtue of article 1 (2) of the Constitution, 1992, and for that matter any court of competent jurisdiction or judge thereof is under a legal obligation to set it aside either suo motu or on application by the party affected. No judicial discretion arises here. The power of this court to set aside such provision is derived both from article 1(2) of the Constitution, 1992 and the inherent jurisdiction of the court: see Mosi v Bagyina [1963] 1 G LR 337, SC. That portion of PNDCL 220 should therefore be set aside as null and void, and it is hereby set aside.

An attempt was made to equate the 31 December revolution, 1981 with the French Revolution, 1789, and the defence is contending that because that revolution is celebrated as a national day, 31 December should as well be so celebrated. This is all unfortunate comparison. Learned counsel did not particularise the similarities. However important this appears to the defence, I think this is not very relevant to the issue under consideration. However, since he has raised the issue, I would like to make a comment.

The grounds for staging the 4 June 1979 and the 31 December 1981 coups d’etat or revolutions for that matter are well-known to Ghanaians—alleged corruption of high officials, cheating, greed, charges of amassing wealth at the expense of the poor and needy, abuse of office for private profit, and dishonest acquisition of property, etc, the authenticity of which accusations was unfortunately never tested in any court of competent jurisdiction in this country. With respect to the 4 June 1979 coup d’etat, Sowah JSC (as he then was) when delivering his opinion in the case of Kwakye v Attorney-General (supra) at 961-962 had this to say:

“The successful mutineers established a government under the name of the Armed Forces Revolutionary Council . . .

During the early period of the new regime, the degree of violence [p.139] and barbarity exhibited by it and some members of the Armed Forces were such that persons apprehensive of danger to their lives fled the country. Amongst those who fled were persons wanted by the council . . .

There was no provision for arraignment of accused persons before the court. A great number of persons were apprehended in their homes and taken to court. The other mode of enforcing presence in the court was by announcement of names of persons wanted on the radio and television requesting them to report at Burma Camp ‘with immediate effect.”‘

As to the procedure adopted in prosecuting the offences, the crimes of a number of persons arrested were not properly investigated before the accused were purportedly tried and convicted. Archer JSC (as he then was) had occasion in the Kwakye case (supra) at 973 to comment: “I must confess that this is the first time that I have come across a criminal conviction based on a mere perusal of the prosecution’s file without reliance on any sworn evidence.” Anin JSC had this to say at 987:

“Having been sworn on the cross, Flt.-Lt. Rawlings explained that during the administration of the A.F.R.C., of which he was chairman, special courts were established to try certain offences under A.F.R.C.D. 3 He continued, ‘I cannot give you the specifics; but I know they were tried. The trial of the S.M.C. members executed was incomplete.”‘

Anin JSC continued at 988:

“In answer to the court’s question whether he could give specific details about Kwakye’s case without reference to the documents, the witness replied, ‘No, I cannot.’ Finally, he explained that when he stated in his evidence-in-chief that the trial of those S.M.C. members who were executed was incomplete, he meant that they had not completed investigations into their assets.”

The French Revolution, on the other hand, emanated from different premises. It was based on liberty, equality and fraternity. Inequalities were met everywhere and stopped all progress. The nobles and clergy were exempt from direct taxes, whereas most taxes were paid by the third estate—a class which included peasants, artisans, merchants and professional men. Even among these groups taxes were not equal. There were social and economic as well as political inequalities: see [p.140] Compton’s Encyclopaedia And Fact-Index Edit at p 441. Here in Ghana a constitutional order was already in existence before 31 December 1981.

What is rather disturbing is the heinous means adopted to effect the French change. A comparison that a renowned Prussian author, Friedrich von Gentz, makes between the American and French Revolutions makes very fascinating, reading, and illuminates the modus operandi of the French Revolution during the process of take over. He says in his treatise titled, The French and American Revolutions Compared at p 63:

“The French revolution was offensive in its origin, offensive in its progress, offensive in its whole compass, and in every single characteristic moment of its existence. As the American revolution had exhibited a model of moderation in defence, so the French one displayed an unparalleled example of violence and inexorable fury in attack. As the former had always kept the vigour of its defensive measures in vigorous proportion to the exigency, so the latter, from the weakness of the resistance made against it, became more and more violent and terrible, the more cause it had to grow wilder.”

And at p 67 the author continued:

“As the American revolution was a defensive revolution, it was of course finished, at the moment, when it had overcome the attack, by which it had been occasioned. The French revolution, true to the character of a most violent offensive revolution, could not but proceed so long as there remained objects for it to attack, and it retained strength for the assault.

The American revolution, at every stage of its duration, had a fixed and definite object, and moved within definite limits and by a definite direction towards this object. The French revolution never had a definite object; and in a thousand various directions, continually crossing each other, ran through the unbounded space of a fantastic arbitrary will, and of a bottomless anarchy.”

I am encouraged to believe that the Ghana Government is not all that enthused by a situation of this nature as to lure it to clamour for the national celebration of its 31 December 1981 revolution. If, however, it is so infatuated to celebrate it, this court would justifiably discountenance it as much as the Constitution, 1992 frowns on it.

I find it difficult to appreciate the niceties of the defence argument that the celebration of the 31 December 1981 revolution is to be restricted to the historical values that the revolution stood for. There is [p.141] nothing in the publication admitted in paragraphs (2), (5) and (11) of the defendant’s statement of case as well as in section 1 (1) of PNDCL 220 that supports that contention. A historical account of the 31 December revolution cannot be complete if its aims and modus operandi are divorced from its historical values. An account of the atrocities and brutalities that characterised the take over and the early stages of the revolution must definitely be highlighted. The three form a composite unit, and it is this unit that operates on the mind of the citizen. The argument, therefore, that it is only the historical values of the revolution that the government intends to celebrate is untenable, and in my view, it is calculated to deceive this court. I reject it.

Further, the use of public funds to finance the celebration cannot be constitutional for the reason, as the defence puts it, that provision for that expenditure had been made in the 1993 budget which was authorised by the Appropriation (1993 Financial Year) Law, 1993 (PNDCL 314). Though sections 18 and 19 of the transitional provisions to the Constitution, 1992 continued in force the Consolidated Fund the Contingency Fund in existence before the coming into force of the Constitution, 1992, together with the financial estimates in operation for the financial year in being at the coming into force of the Constitution, 1992, section 36 thereof emphasises that application or enforcement of such expenditure must not be inconsistent with any provision of the Constitution, 1992.

In my judgment, the application of funds so provided which is intended to be utilised for the celebration of the 31 December revolution is equally unconstitutional having regard to the conclusions already reached by me on the celebration itself.

Finally, the submission that this court has no jurisdiction to issue an injunction against the government in constitutional cases should fail, because though article 57 (4) of the Constitution, 1992 exempts the President, while in office, from liability to proceedings in any court for the performance of his functions under the Constitution, 1992 or any other law, article 2 (2) of the Constitution, 1992 empowers this court for purposes of any declaration under clause (1) of the article to make any order and give such directions as this court may consider appropriate for giving effect to the declaration so made. And article 2(4) of the Constitution, 1992 creates an offence of high crime under the Constitution against any person who disobeys or fails to carry out the terms of any such order or direction given by this court. In this wise, neither the President nor the Vice-President is exempted; failure on their [p.142] part to obey or carry out the terms of any such order or direction constitutes a ground for removal from office under the Constitution, 1992. The Constitution, 1992 therefore requires all persons including the President to obey and carry out such orders and directions made by this court under article 2 of the Constitution, 1992 or suffer the sanctions so imposed.

It is for the above reasons that I agreed to grant the declaration sought by the plaintiff, and indorsed the decision that 31 December shall no longer be declared and observed as a public holiday, and celebrated as such out of public funds.

JUDGMENT OF MRS JOYCE BAMFORD-ADDO JSC.

The plaintiff invoked the original jurisdiction of the Supreme Court under articles 2 (1) and 130 (1) of the Constitution, 1992 for a declaration:

“(1) 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.

I shall set out in extenso the relevant provisions on which the plaintiff ‘s claim is based for ease of reference, Articles 3 (3), 51 (1) and 41 (b) of the Constitution, 1992 provide:

“(3) Any person who—

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause:

commits an offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all [p.143] times—

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence.

Article 35 (1) of the Constitution, 1992 provides:

Article 41 (b) of the Constitution, 1992 states:

“41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen—

(b) to uphold and defend this Constitution and the law.”

Articles 3(3), (4), (5), (6) and (7) as well as 35(1) and 41(b) of the Constitution, 1992 quoted above, are the specific provisions of the Constitution, 1992 on which the plaintiff based this claim for the reliefs sought, namely: “that the public celebration of the overthrow of the legally constituted Government of Ghana on 31 December 1981 is inconsistent or in contravention of the letter and spirit of the Constitution, 1992.”

[p.144]

The plaintiff’s grounds in support of the claim are contained in the statement of case filed as well as on viva voce arguments of counsel, Mr. Peter. Ala Adjetey in court. These submissions are briefly that since the Constitutions 1960, 1969 and 1979 were not changed in accordance with the provisions for change spelt out in those Constitutions, those changes were unconstitutional. Counsel referred to section 34 (2) of the transitional provisions of the Constitution, 1992 and stated that it is true that by virtue of that section it is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of Ghana in respect of any act or omission relating to or consequent upon the coup of 1981, but this action has not been instituted in respect of section 34 (2) of the transitional provisions of the Constitution, 992 and therefore the court can say that the change in government in 1981 was unconstitutional.

I think it would be convenient to pause here to answer this submission straightaway. This submission has two parts to it; the first part is that since the Constitutions, 1960, 1969 and 1979 were not changed in accordance with the constitutional provisions spelt out in those Constitutions, the changes were unconstitutional. This is a correct statement of fact. The second submission, however, is not legally correct because for section 34 (2) of the transitional provisions of the Constitution, 1992 to have effect, it is not necessary that the plaintiff’s action should have been instituted under the said section. In whatever garb a clams is clothed, if it can be said to fall within the provision of section 34 (2) of the transitional provisions of the Constitution, 1992, that section would have automatic operation and the court would be effectively precluded from taking any decisions concerning matters specified therein or granting any remedy or reliefs. This means that even if coups are unconstitutional this court cannot pronounce on such unconstitutionality for the purpose of granting any reliefs.

According to Mr Adjetey, the grant of immunity to coup makers means they are wrongdoers and therefore reliefs could have been sought against the Government of Ghana, that is why the immunity was provided. This deduction cannot be challenged. He then referred to article 3 (3) (a) and (b) of the Constitution, 1992 which says that coups are illegal and said that this is what took place on 31 December 1981 which abrogated the Constitution, 1979. He submitted:

(1) That there had been some coups before 31 December and if those dates are not celebrated as public holidays it would be [p.145] discriminatory to celebrate only 31 December which is not even worth celebrating.

(2) That celebrating that day as a holiday would send wrong signals to citizens of Ghana that the overthrow of a constitutional government is the highest achievement that any one can attain.

(3) That the celebration would remind Ghanaians of the atrocities committed by soldiers as a result of the 31 December coup and for these reasons the celebration is inconsistent with the provisions of articles 3 (3), (4), (5), (6) and (7) and also 35 (1) and 41 (b) of the Constitution, 1992 therefore it should be declared null and void. He said further that the celebration of 31 December from public funds is also inconsistent with Constitution, 1992 and totally unconstitutional.

Whether the financing of the celebration from public funds is also unconstitutional, I believe, would depend on the finding whether the declaration that 31 December be observed as a public holiday is unconstitutional. If it is not unconstitutional then there would be no need to consider this issue.

The Deputy Attorney-General, Mr Amidu, for the defendant denies that the celebration of 31 December mandated as a public holiday under the Public Holidays Law, 1989 (PNDCL 220) is unconstitutional or null and void. Paragraphs (15) and (16) of the defendant’s statement of case states:

“(15) The defendant maintains that what the plaintiff is seeking to do is question the constitutionality and legality of 31 December Revolution, and the events which gave rise to that revolution on 31 December 1981 which should not be entertained by the court by virtue of section 34 particularly subsection (2) of the transitional provisions scheduled to the Constitution, 1992.

(16) The defendant says in the premise that the plaintiff is not entitled to the reliefs sought or at all.”

It seems to me that there are three important issues calling for a decision in this case. They are:

(1) Whether PNDCL 220, regarding the part declaring 31 December as a public holiday, is inconsistent with or in contravention of the letter and spirit of the Constitution, 1992, particularly article 3 (3), (4), (5), (6) and (7) and also articles 35 (1) and 41 (b) of the Constitution, 1992.

[p.146]

(2) Whether the plaintiff’s case is substantially based on the overthrow of the Constitution, 1979 or the 31 December 1981 coup—by the PNDCL.

(3) Whether even if the 31 December coup was unconstitutional, this court has the jurisdiction to grant the reliefs sought by plaintiff.

The answers to these questions, would, I believe, resolve this case. Article 2 of the Constitution, 1992 provides that:

“2. (1) A person who alleges that—

(a) An enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person;

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for declaration to that effect.”

(The emphasis is mine.) Even though the plaintiff in its claim, did not rely directly on PNDCL 220 which enacted that 31 December, was to be a public holiday, in actual fact, this is the enactment or the authority under which the government acted to declare the said date as a public holiday, and should be the enactment to which the plaintiff’s complaint refers. Now the question is, is PNDCL 220 inconsistent with article 3 (3), (4), (5), (6) and (7) of the Constitution, 1992 having regard to articles 35 (1) and 41 (b) thereof?

I shall proceed to interpret the Constitution, 1992 as I see it, in accordance with the rules of constitutional construction or interpretation. It is a fact that the 31 December coup, was the overthrow of a constitutional government under the Constitution, 1979. It is also true that the change of government was not effected in accordance with chapter 25 thereof, so therefore for purposes of argument only, it can be said that the change in 1981 was unconstitutional. But even if the 31 December 1981 action was unconstitutional, which as I have said above, this court has no jurisdiction to decide upon, it does not follow automatically, that PNDCL 220 declaring 31 December as a public holiday should also be unconstitutional and null and void, the unconstitutionality of that Law must be satisfactorily proved.

In 1989 when PNDCL 220 was passed by the ruling PNDC Government, that government was the de facto and de jure Government of Ghana. The Provisional National Defence Council (Establishment) Proclamation, 1981 established the PNDC which was mandated to [p.147] exercise all powers of government and was given power to make laws to regulate the affairs of the Republic of Ghana. For this reason, PNDCL 220 was a Law properly enacted by the PNDC in 1989 when the Constitution, 1979 had been abrogated. Later, the Constitution, 1992 came into force on 7 January 1993, and from that date the prospective constitutional provisions became operative but not with retrospective effect whether in whole or in part. This point must not be lost sight of.

The Constitution, 1992 also saved all existing laws in operation on 7 January 1993: see article 11 (1) (d) and (5) which provides:

11. (1) The laws of Ghana shall comprise—

(d) the existing law . . .

(5) subject to the provisions of this Constitution, the existing law shall not be affected by the coming into force of this Constitution.”

Therefore PNDCL 220 will continue to be part of the laws of this country until in accordance with article 2 of the Constitution, 1992 the Supreme Court declares it or part of it, inconsistent with the Constitution, 1992 and therefore null, and void. This is what the plaintiff is seeking to do. To succeed, the plaintiff must satisfactorily prove its case otherwise it would not be entitled to the reliefs sought in its writ. The provision of article 2 (1) of the Constitution, 1992 affects all existing laws of this country including those passed by the PNDC government as well as those passed or to be passed by the present government or by any future governments.

This has to be so, because the Constitution, 1992 is the basic and supreme law which embodies the will of the people of this country, and it must rightly be the criteria by which the legality or constitutionality of all laws of this country should be tested. Thus article 1 (2) of the Constitution, 1992 states that:

“(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.”

The plaintiff has by its writ challenged the part of PNDCL 220 which declares 31 December a public holiday, and is relying on article 2(1)(a) of the Constitution, 1992 to get a declaration to the effect that, that portion of PNDCL 220 is inconsistent with article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 and therefore null and void. It is important that a thorough comparison be made between article 3(3), (4), (5), (6) [p.148] and (7) of the Constitution, 1992 and PNDCL 220 to see whether there is an inconsistency between the two enactments. I have taken pains to scrutinise the two and I cannot by any stretch of the words in article 3(3), etc of the Constitution, 1992 say that the two are inconsistent. A correct literal interpretation of the wording of article 3(3) of the Constitution, 1992 is that any person or persons who unlawfully overthrows the government or, “suspends or overthrows or abrogates this Constitution, [1992] or any part of it” or any person who aids or abets in any manner such an enterprise commits the offence of high treason punishable on conviction by death. This article refers specifically to this Constitution, 1992 (not any past Constitution) and makes the operation of the Constitution, 1992 prospective not retrospective. It is concerned with future coups not past coups and seeks to ensure that no government in this country after 7 January 1993 is unlawfully removed or the Constitution, 1992 abrogated. I am unable to find words in article 3(3) of the Constitution, 1992 which outlaws the public celebration of any past coups, eg the 31 December coup for which reason the celebration of same can be said to be either in contravention of or inconsistent with the provision of article 3(3), etc of the Constitution, 1992. Indeed, if as I said before, by virtue of section 34 (2) of the transitional provisions of the Constitution, 1992 we are not permitted to hold an inquiry into matters pertaining to the 31 December coup of 1981, or to borrow the words of Archer JSC (as he then was) in the case of Kwakye v Attorney-General [1981] GLR 944 at 981, SC if we are “prevented from conducting any transillumination” into PNDC coup affairs, then we cannot make any decisions as to the unconstitutionality of the 1981 coup upon which we can rely to judge the unconstitutionality or otherwise of PNDCL 220. We must look only within the four walls of the Constitution, 1992 to make such a judgment, having regard to the letter, ie words and the spirit of the Constitution, 1992 as contained in chapter 6 thereof. Or in this case, as can be deduced from articles 35(1) and 41 (b) of the Constitution, 1992. I might however be tempted to hold such a view if the celebration of 31 December as a public holiday can be said to be subversive of the Constitution 1992, in that it is an intended attempt to overthrow the NDC Government or induce others to do so. But then can this be the intention of the government, to commit political suicide? I think not. It seems to me rather that it should be the ardent or passionate desire of this government to prevent coups through upholding the provision of article 3(3) of the Constitution, 1992 as it is in duty bound to do under article 3(4), which duty has particular reference only to article 3(3) of the [p.149] Constitution, 1992. I am convinced that by the letter of article 3(3) of the Constitution, 1992 the provisions of PNDCL 220 as regards the celebration of 31 December as a public holiday, cannot be said to be inconsistent with or in contravention of the letter of article 3(3), etc of the Constitution, 1992 and I so hold.

Now I come to the spirit of the Constitution, 1992. The plaintiff, apart from article 3, relied also on articles 35(1) and 34(b) of the Constitution, 1992, provisions under the “Directive Principles of State Policy” to ground its claim. But the said principles are not justiciable and the plaintiff has no cause of action based on these articles. Those principles were included in the Constitution, 1992 for the guidance of all citizens, Parliament, the President, judiciary, the Council of State, the cabinet, political parties or other bodies and persons in applying or interpreting the Constitution, 1992 or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society. The judiciary is to be guided, while interpreting the Constitution, 1992 by only the specific provisions under chapter 6.

The reasons for these principles which the Consultative Assembly relied on in formulating chapter 6 of the Constitution, 1992, are stated at paragraphs 94—97 of the Report of the Committee of Experts on Proposals for a Draft Constitution Ghana as follows:

“94. The NCD report speaks of the need to include in the new Constitution ‘core principles around which national political, social and economic life will revolve.’ This is precisely what the Directive Principles of State Policy seeks to do. Against the background of the achievements and failings of our post-independence experience, and our aspirations for the future as a people, the principles attempt to set the stage for the enunciation of political, civil, economic and social rights of our people. They may thus be regarded as spelling out in broad strokes the spirit or conscience of the constitution. The Committee used Chapter Four of the 1970 Constitution as a basis for its deliberations on this subject.

95. By tradition Directive Principles are not justiciable; even so, there are at least two good reasons for including them in a constitution. First, Directive Principles enumerate a set of fundamental objectives which a people expect all bodies and persons that make or execute public policy to strive to achieve. In the present proposals, one novelty is the explicit inclusion of political parties among the bodies expected to observe the principles. The reason for this is that political parties significantly influence government [p.150] policy. A second justification for including Directive Principles in a constitution is that, taken together, they constitute, in the long run, a sort of barometer by which the people could measure the performance of their government. In effect they provide goals for legislative programmes and a guide for judicial interpretation.

96. On the basis of the foregoing considerations, the Committee proposes as follows: The Directive Principles of State Policy are for the guidance of Parliament, the President, the Council of Minister, Political Parties and other bodies and persons in making and applying public policy for the establishment of a just and free society. The Principles should not of and by themselves be legally enforceable by any Court. The Court should, however, have regard to the said Principles in interpreting any laws based on them.

97. In view of the fact that the Principles are not justiciable, it becomes necessary to provide a standing reminder to an incumbent Government that it is expected to take necessary measures to achieve them. For this purpose, the Committee considered it adequate to adopt the provision in the 1979 Constitution stipulating that, at least once a year, the Government should report to Parliament all the steps it has taken towards achieving the policy objectives; particularly, towards the realization of a healthy economy, the right to work, the right to good health care and the right to education.”

(The emphasis is mine.) It is under chapter 6 that we find the spirit or conscience of the Constitution, 1992 and it seems to me that the plaintiff’s argument and reasons for suing are based mainly, according to it, on the spirit of articles 35(1) and 41(b). For emphasis and ease of reference, I quote again the provision of article 35(1) of the Constitution, 1992 which comes under political objectives and states:

Article 41 (b) of the Constitution, 1992 comes under duties of a citizen and it states:

“41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and [p.151] accordingly, it shall be the duty of every citizen— . . .

(b) to uphold and defend this Constitution and the law.”

Articles 35(1) and 41(b) of the Constitution, 1992 quoted above, merely provide that it is the duty of all citizens of this democratic State to uphold this Constitution in any way, including by virtue of article 3(4) resisting future coups and obeying the precepts of the Constitution, 1992. It is my duty to give faithful interpretation to the words having regard to the spirit of the Constitution, 1992 as I see them, my political or moral views or that of any other person however right notwithstanding. As I said above, I am unable to find direct or indirect words in article 3(3) or any other provision of the Constitution, 1992 to the effect that the celebration of 31 December as a public holiday should be unconstitutional. This also applies to the words of articles 35(1) and 41 (b) of the Constitution, 1992 and for this reason, I cannot interpret those constitutional provisions as we are being urged to do. The Constitution, 1992 must be interpreted according to both the letter and spirit together.

In Sallah v Attorney-General G & G (Vol 11, Pt 2) 493, SC Sowah JA (as he them was) said at 506:

“I consider that the best guide to interpretation is the letter and spirit of the Constitution if the intention of the Assembly (which drafted the Constitution) can be collected from the words used and if that intention, when so collected, is in consonance with the spirit of the Constitution, then there is no need for further aids.”

See also holding (5) of the headnote of the case of Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC where it was held:

“(5) The duty of the court in interpreting the provisions of article 127(8) and (9) was to take the words as they stood and to give them their true construction having regard to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words their appropriate construction according to the context.”

Sowah JSC (as he then was) also said at 648:

“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. [p.152] We must have recourse to the Constitution as a whole.”

The rule is that the plaintiff must state the basis of its claim specifically and prove same if it is to succeed in its claim. I am afraid the plaintiff has not been able to do so. In view of the fact that there were no specific words making PNDCL 220 inconsistent with article 3 (3), etc of the Constitution, 1992 it is incumbent on the plaintiff to have called evidence in support of its case. It failed to do this and it should not have obtained judgment in its favour in a case based only on counsel’s own notions or speculations on the possible effects of the celebration of 31 December as a holiday.

I now move on to consider the validity of the plaintiff’s counsel’s arguments in support of this case. His first submission was that since there had been coups before 31 December, if those dates are not also celebrated now as public holidays, it would be discriminatory to celebrate only 31 December as a public holiday. It is a fact that the dates of past coups as well as some political events have been celebrated as public holidays by various governments since 1960 to date. Any government in the exercise of its executive powers can in its discretion, specify any day to be celebrated as a public holiday. The Public Holidays Act, 1960 (Act 23) passed by the Nkrumah Government made National Founder’s Day (21 September) as well as other specified dates public holidays. The holidays under Act 23 were according to the Schedule as follows:

“New, Year’s Day (1st January)

Ghana Independence Day (6th March)

Good Friday

The Saturday next following Good Friday

Easter Monday

Republic Day (1st July)

National Founder’s Day (21st September)

Christmas Day,

Boxing Day.”

Section 1(2) and (4) of Act 23 provided that:

“(2) In addition to the Public holidays prescribed by subsection (1) of this section, the President may by executive instrument, declare and other day to be a public holiday and may by the same instrument limit its observance to any area or place in Ghana . . .

(4) The President may by legislative instrument amend the [p.153] schedule to this Act”

(The emphasis is mine.) In 1972 the Public Holidays Decree, 1972 (NRCD 18) was passed by the Acheampong Government. It repealed Act 23 and provided certain dates to be celebrated as public holidays. That list excluded National Founder’s Day, 21 September and Republic Day, 1 July, and substituted National Redemption Day (13 January), the date of Acheampong’s coup, and the First Monday in August as public holidays. Even though 24 February, the date of the NLC coup, was not listed in the Schedule to NRCD 18, the Government of the NRC by the Public Holidays (No 2) Order, 1973 (EI 17 of 1973) declared that day a public holiday by virtue of section 2 of NRCD 18 which gave the government power to declare other dates as public holidays. Later, the Public Holidays Decree, 1974 (NRCD 262) repealed NRCD 18 and provided a new list of public holidays. This Law excluded First Monday in August and in its place substituted again Republic Day (1 July) as was earlier provided in Act 23.

NRCD 262 which contained the date of 13 January, the date of Acheampong’s coup, continued to be the law governing public holidays in this country from 1974 until it was repealed by the PNDC in 1989 by PNDCL 220 despite the taking over of a constitutional government in 1979.

PNDCL 220 also sets out a list of public holidays as amended by the Public Holidays (Schedule Amendment) Law, 1992 (PNDCL 274) and repealed NRCD 262. That list included, among others, new dates, namely 31 December, 4 June and Farmers’ Day (First Friday in December). It can be seen that the fixing of a date for celebration as a public holiday is a policy decision of the government, an executive act, and can be changed whenever that or any other government deems it expedient to do so by legislation. It seems to me therefore that the 31 December public holiday, unless unconstitutional, which I have said it is not, can only be deleted from the list of public holidays by any government which desires this as a policy decision, to take necessary legislative action to delete this date from the list provided in PNDCL 220. It is during the debate on such a matter in Parliament that arguments such as were canvassed here could properly be made to influence Parliament to repeal any date, eg 31 December from the list specified in the Schedule to PNDCL 220. In that forum, but not here, policy issues could rightly be canvassed and considered.

Since the dates of all past coups have been celebrated at one time or [p.154] other depending on which government is in power, the argument that the celebration of 31 December is discriminatory is, in my view, not a valid point, unless of course it is counsel’s case that if all the dates of past coups are celebrated as public holidays then the celebration of 31 December would be constitutional. The flaw in this argument is obvious, and counsel’s submission on this issue is not his strongest point and does not advance his case forward one bit, I reject it.

The second submission was that celebrating that day as a holiday would send wrong signals to citizens of Ghana that the overthrow of the constitutional government is the highest achievement any one can attain. I doubt the soundness of this reasoning. I have said earlier that it cannot be the intention of the government to send those signals inviting a coup against itself nor do I think that any reasonable person in a trotro in Ghana today would consider the celebration as sending signals to people to stage a coup, in view of the strong stipulation in article 3(3) of the Constitution, 1992 that any future coups would be punished by death of the coup maker. Indeed, counsel’s conclusion on this issue seems to me to be too far-fetched to be reasonable or valid.

The third submission is that the celebration would remind Ghanaians of the atrocities committed by soldiers in executing the 31 December coup. I, speaking for myself, in all fairness to the defendant, do not think that the government’s intention of celebrating 31 December is to remind or induce Ghanaians to relive the horrors of the early days of the coup, especially when the injuries resulting from that coup have been regretted by the Government of the PNDC. Indeed, counsel for the defendant said it was the gains of the 31 December revolution that was being remembered and celebrated as a historical event. To carry counsel for the plaintiff’s argument to its logical conclusion would result in an absurdity. It would mean that because the mention of 31 December reminds some people of the horrors of the coup, anything, whether beneficial or not done by the PNDC Government ought to be declared unconstitutional and therefore null and void. To accept this reasoning would mean that all laws passed by the PNDC Government since 1981 (even though article 11 of the Constitution, 1992 saves them as forming part of the laws of Ghana) because they remind people of 31 December, should all be declared null and void as being unconstitutional. This ground advanced by counsel to support the plaintiff’s claim is also unmeritorious. This leads me to the proper effect of counsel’s whole arguments and submissions as I see them.

It seems to me, considering the real import of the plaintiff’s counsel’s [p.155] arguments, that he is calling upon us to judge this case by the application or some moral or political policy consideration, or that he is propounding a novel policy issue for our guidance here. However right such a policy consideration may be, this court cannot be guided by it in our interpretative duty. The only policy issues permitted to be considered by us are those state policy considerations set out specifically in chapter 6 of the Constitution, 1992. I am afraid if they have no application to this case, no extra constitutional ones can be considered. It is not for the judiciary to formulate public policy issues, but for the executive or the legislature, and we cannot usurp their function either directly or indirectly. To accept the plaintiff’s counsel’s submissions so as to give judgment for it would be to open wide the floodgates to litigants who seek to influence our decisions in this court with their ideas or ideals of what public policy ought to be. It would be dangerous to accede to this request as I shall explain hereunder.

Generally, in interpretation of statutes, public policy considerations cannot be used as a guide by judges or to influence their decisions, except those apparent in an enactment under consideration, or those in, eg contracts, which have crystallised into principles or rules of law or equity. This is because of the dangers inherent in the use of “changing” public policy. Public policy has been said to be a “very unruly horse” in Richardson v Mellish (1824) 2 Bing 229 at 252 where Burrough J said:

“If it be illegal, it must be illegal either on the ground that it is against public policy, or against some particular law. I, for one, protest, as my Lord has done, against arguing too strongly upon public policy; —it is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.”

As stated also in Egerton v Brownlow (Earl) (1853) 4 HL Cas 1 at 123 HL where Parke B warned:

“‘ . . . public policy’ is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does, in its ordinary sense, mean ‘political expedience,’ or that which is best for the common good of the community; and in that sense there may be every variety of opinion, according to education, habits, talents, and dispositions of each [p.156] person, who is to decide whether an act is against public policy or not. To allow this to be a ground of judicial decision, would lead to the greatest uncertainty and confusion. It is the province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law only; the written from the statutes: the unwritten or common law from the decisions of our predecessors and of our existing courts, from text – writers of acknowledged authority, and upon the principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what is the best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt been founded upon the prevailing and just opinions of the public good; for instance, the illegality of covenants in restraint of marriage or trade. They have become a part of the recognised law, and we are therefore bound by them, but we are not thereby authorised to establish as law everything which we may think for the public good, and prohibit everything which we think otherwise. The term ‘public policy’ may indeed be used only in the sense of the policy of the law, and in that sense it forms a just ground of judicial decision . . . But we are clearly of opinion that this cannot be shown here.”

In Re Mirams [1891] 1 QB 594 at 595 Cave J observed that, “. . . judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.” In Janson v Driefontain Consolidated Mines Ltd [1902] AC 484 at 500, HL Lord Davey said, “Public Policy is always an unsafe and treacherous ground for legal decision, and in the present case it would not be easy to say on which side the balance of convenience would incline.” In Ewart v Ewart [1958] 3 WLR 680 at 687 Lord Merriman P said: “. . . the court in face of the plain words of the statute is not concerned with questions of public policy which are said to have prevailed before it as passed.” In Besant v Wood (1879) 12 ChD 605 at 620, Jessel MR said of public policy thus:

“This is a branch of law which depends upon what is commonly called ‘public policy.’ Now you cannot lay down any definition of the term ‘public policy,’ or say it comprises such and such a proposition, and does not comprise such and such another: that must be, to a great extent, a matter, of individual opinion, because what one man, or one Judge, and perhaps I ought to say one woman also [p.157] in this case, might think against public policy, another might think altogether excellent public policy. Consequently it is impossible to say what the opinion of a man or a Judge might be as to what public policy is.”

The position in this country as regards statutory interpretation is no different. The Constitution, 1992 however has set out in chapter 6 the policy of the State, regarding political objectives, economic objectives, social objectives, educational objectives, cultural objectives and also state policy in relation to international relations and duties of a citizen which should be used as a guide by the judiciary in the interpretation of the Constitution, 1992. Article 35(1) of the Constitution, 1992 which the plaintiff referred to deals with political objectives. I will quote it again for emphasis. It says that:

“35.(1) Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution.”

I have considered this provision and I am unable to see how in the spirit of these words I can interpret the letter of article 3(3), (4), (5), (6) and (7) to enable me to hold that there is an inconsistency between PNDCL 220 and article 3(3) of the Constitution, 1992. As far as I am concerned, only the presence in the Constitution, 1992 of specific words capable of being interpreted to this effect would convince me to accept the interpretation which I am being invited to put on articles 35(1) and 3(3), etc.

The other article which plaintiff referred us to, ie article 41 (b) says:

“41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen—. . .

(b) to uphold and defend this Constitution and the law.”

The meaning of this provision also, does not seem to me to accord with the interpretation which counsel is suggesting to us. The fact that all Ghanaians have a duty to defend and uphold the Constitution, 1992 does not by its spirit lead me to the conclusion that article 3(3), etc should be interpreted to mean that the celebration of 31 December is unconstitutional and that day should not be celebrated ever as a public holiday. Such an interpretation would be far-fetched and wrong. As I see it, none [p.158] of the other articles in chapter 6 of the Constitution, 1992 can be so construed. I am not also prepared to admit any policy issues not specifically mentioned within the four walls of the Constitution, 1992 to guide me in my interpretative duty, which, as I said before, appears to me to be what counsel is asking us to do.

I am bound to interpret constitutional provisions applying only the directives of state policy contained in the four walls of the Constitution, 1992 as specified in chapter 6 thereof. I think it would be wrong to allow policy issues outside those specified in the Constitution, 1992 to influence us here, in view of the fickle nature of public policy and the dangers inherent in doing so, as already stated above.

In my judgment, the language of article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 does not outlaw in clear unambiguous language past coups, but only seeks to prevent future such actions, and the spirit of articles 35(1) and 41(b) of the Constitution, 1992 cannot result in such a conclusion. I am afraid I am precluded from interpreting article 3(3), etc of the Constitution 1992 in the manner urged upon us by counsel for the plaintiff.

I now move to the provisions of section 34(2) of the transitional provisions of the Constitution, 1992 and its effect and impact on this case. Section 34(2) of the transitional provisions of the Constitution, 1992 states in clear words thus:

“(2) It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant and remedy or relief in any proceedings instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana whether before or after coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in Government which took place on the twenty-fourth day of February 1966, on the thirteenth day of January 1972, on the forth day of June 1979 and on the thirty-first day of December 1981 in respect of any act or omission relating to, or consequent upon—

(a) the overthrow of the government in power before the formation of the National Liberation Council, the National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and she Provisional National Defence Council; or

(b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979; or

[p.159]

(c) the establishment of the National Liberation Council the National Redemption Council, the Supreme Military Council which took office on the ninth day of October 1975, the Supreme Military Council established on the fifth day of July 1978, the Armed Forced Revolutionary Council, or the Provisional National Defence Council; or

(d) the establishment of this Constitution.”

(The emphasis is mine.) The emphasised portion has particular relevance to this case. It means as regards this case that this court is precluded or its jurisdiction is ousted from making any order or granting any remedy or relief to the plaintiff, if the basis or foundation of the case is in respect of, or “consequent upon” the overthrow of Hilla Limann’s Government on 31 December 1981 by the PNDC. I have to interpret section 34 (2)(a) of the transitional provisions of the Constitution, 1992 in the same way and manner I have done in respect of article 3(3) of the Constitution, 1992 so as to give effect to every word in section 34(3)(a). It is worthy of note that the same word, namely overthrow was used by the plaintiff in its writ and also by section 34(2) of the transitional provisions of the Constitution, 1992.

The plaintiff seeks in relief (1) of the writ:

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

Section 34(2)(a) of the transitional provisions of the Constitution, 1992 also says that any act in respect of or “consequent upon” the overthrow of the government on 31 December 1981, cannot to be inquired into for the purpose of granting any reliefs sought against the government I have to decide whether the plaintiff’s case is “consequent upon” the 31 December coup. The whole basis or foundation of the plaintiff’s case is that the 31 December coup—or in otherwords the overthrow of the government in power on 31 December, by the PNDC was unconstitutional, and therefore that by virtue of the letter and spirit of articles 3(3), 35(1) and 41 (b) of the Constitution, 1992 the celebration of 31 December as a public holiday as enacted in PNDCL 220 is also unconstitutional and is null and void. I am firmly of the view that the [p.160] plaintiff’s case is caught by the clear and unambiguous provisions of section 34(2)(a) of the transitional provisions of the Constitution, 1992. The ordinary meaning of the words consequent upon according to the Oxford Advanced Learner’s Dictionary is following as a consequence. If the declaration of 31 December—which is really the coup of 1981—as a public holiday, as enacted in PNDCL 220, is not consequent upon the overthrow of the Limann Government, I do not know what it is consequent upon.

We have to ask this question for the proper answer. What was the reason for declaring 31 December a public holiday? The answer is obvious; it is to commemorate the 31 December coup which overthrew the Limann administration in 1981 by the PNDC. I do not think that this can seriously be challenged. The words “consequent upon” was used in a similar provision of the Constitution, 1969. Section 13(3) of the transitional provisions of the Constitution, 1969 like section 34(2) of the transitional provisions of the Constitution, 1992 provided in exact words:

“(3) For the avoidance of doubts, it is hereby declared that no Court shall entertain any action or take any decision or order or grant any remedy or relief in any proceedings instituted against the Government of Ghana, or any person acting under the authority of the Government of Ghana whether before or after coming into force of this Constitution or against any person or persons acting in concert or individually to assist or bring about the change in government which took place on the twenty-fourth day of February, 1966, in respect of any act or omission retating to, or consequent upon,

(a) the overthrow of the government in power before the formation of the National Liberation Council; or

(b) the suspension of the Constitution which came into force on the first day of July, 1960, or any part thereof, or

(d) the establishment of this Constitution.”

In the case of Donkor v The Republic [1971] 1 GLR 30, SC the Supreme Court, coram Apaloo, Siriboe, Sowah, Anin and Archer JJA (as they then were) were called upon to give the interpretation of the phrase “consequent upon.” The facts as stated in the headnote are that:

“After the 1966 February coup, two cars belonging to the plaintiffs in this consolidated suit were seized on the orders of the National [p.161] Liberation Council. In July of the same year the National Liberation Council (Impounded Vehicles) Decree, 1966 (N.L.C.D. 61), was passed with retroactive effect to give good title to people to whom unbounded vehicles had been sold, provided money was owed on these vehicles to the government or the Ghana Commercial Bank. The plaintiffs brought this action against the government in the High Court for damages for wrongful seizure. The trial judge referred the matter to the Court of Appeal sitting as the Supreme Court under the Transitional Provisions of the Constitution to determine whether on the proper interpretation of section 13(3) of the Transitional Provisions of the Constitution (Sched. 1) the court had any jurisdiction to entertain the suit. Counsel or the government argued that since the seizures were traceable in one way or the other to the overthrow of the former government, they were the types of acts envisaged by section 13(3). But counsel for the plaintiffs replied that the National Liberation Council could not have contemplated the seizure of the cars to assist or bring about the events contemplated by section 13(3).

Held: the ordinary interpretation of the phrase ‘consequent upon’ in section 13(3) of the Transitional Provisions of the Constitution suggests that the seizures followed as a result of the coup and that the National Liberation Council must have considered the acts necessary for its own purposes. Proceedings instituted against the government before the promulgation of the Constitution in respect of acts which were consequent upon the overthrow of the former government are forbidden by the peremptory provisions of section 13(3) of the Transitional Provisions of the Constitution and therefore the High Court has no jurisdiction to entertain the suits which should be struck out.”

(The emphasis is mine.) In the result, I find that the celebration of 31 December as a public holiday is “consequent upon” the overthrow of the Government of Limann by the PNDC in 1981 and I so hold. Consequent upon this finding, section 34(2)(a) of the transitional provisions of the Constitution 1992 automatically comes into effect.

I am of the view that even if I had found that the celebration of 31 December as a public holiday is unconstitutional as being inconsistent with any provision of the Constitution, 1992 and therefore null and void, [p.162] —still section 34(2)(a) of the transitional provisions of the Constitution, 1992 would operate to oust the jurisdiction of this court from granting the relief sought by the plaintiff. Article 299 of the Constitution, 1992 provided that: “The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

By the effect of article 299 of the Constitution, 1992 section 34(2)(a) of the transitional provisions of the Constitution, 1992 clearly override the other constitutional provisions in certain circumstances as stated in section 34(2) of the transitional provisions of the Constitution, 1992. It is not for me to pass judgment on the merits and demerits of these provisions, my duty is to give judicial interpretation to the words as I find them. In this exercise, I have derived much support from the case of Kwakye v Attorney-General (supra) in which the Supreme Court considered the effect of similar provisions in the transitional provisions of the Constitution, 1979 as regards the effects of the ouster provisions. Sections 15 and 16 thereof are equivalent to sections 34 and 35 of the transitional provisions of the Constitution, 1992. That was a case in which the plaintiff issued a writ in the Supreme Court for a declaration that he was never tried, convicted or sentenced by any special court established under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 3) and that the purported imprisonment of 25 years imposed on him, as published in the national press, was an infringement of his fundamental human rights, inconsistent with chapter 6 of the Constitution, 1979, void and of no effect.

The plaintiff also filed a statement of his case in accordance with rule 46 of the Supreme Court Rules, 1970 (CI 13). The Attorney-General, however, did not file any statement of defence as required by CI 13 but instead moved to have the plaintiff’s action struck out in limine on the ground, inter alia, that on the facts as pleaded by the plaintiff himself, the AFRC took or at least purported to have taken a judicial action against him, accordingly sections 15 and 16 of the transitional provisions of the Constitution, 1979, particularly section 15(2) forbade the court from entertaining the plaintiff’s action or granting the plaintiff any remedy. In the court’s ruling: see Kwakye v Attorney-General [1981] GLR 9, SC the Supreme Court unanimously held that the defendant who was claiming that the jurisdiction of the Supreme Court had been ousted by the provisions of section 15(2) of the transitional provisions of the Constitution, 1979 ought to provide factual basis for the application of those ouster, provisions, and gave the defendant all opportunity, [p.163] notwithstanding his lateness, to relate his version of the facts by filing a statement of his case within seven days. The defendant obliged and at the subsequent trial, led both oral and documentary evidence with a view to showing that a judicial action or purported judicial action was taken against the plaintiff by the special court within the meaning of section 15(2) of the transitional provisions of the Constitution, 1979. On the evidence, the Supreme Court had to decide on the issue whether the court’s jurisdiction to grant the declaration sought by the plaintiff was ousted by the said ouster clause, ie section 15(2) and (3) of the transitional provisions of the Constitution, 1979. The court held in Kwakye v Attorney-General (supra), as stated in the headnote at 949 holding (2), dismissing the plaintiff’s action per Apaloo CJ, Archer, JSC (as he then was), Charles Crabbe and Adade JJSC (Anin and Taylor JJSC dissenting):

“(2) The effect of section 15(3) of the transitional provisions was to prevent non-compliance with ‘any procedure prescribed by any law’ being used as a necessary pre-condition for the operation of the ouster clause in section 15(2). In other words, irregularities in the mode of trial would not prevent the ouster clause from having its intended effect.”

In that case, the dissenting judges did not deny the intended effect of section 15(2) of the transitional provisions of the Constitution, 1979. They found that since there was no “purported” action, section 15(2) of the transitional provisions of the Constitution, 1979 did not apply to oust the jurisdiction of the court. Apaloo CJ said at 957-958:

“On the evidence, is it reasonable to conclude that the Armed Forces Revolutionary Council took or purported to take judicial action against the plaintiff? That immediately requires the correct interpretation of section 15(2) of the transitional provisions which we have already quoted. That section contains what lawyers call an ouster clause, ousting the normal jurisdiction of the courts. This particular ouster clause does not arise from an ordinary statute but is a constitutional provision. Moreover, article 217 of the Constitution, 1979, gives the transitional provisions effect notwithstanding anything to the contrary contained in the Constitution.

In the exercise of the interpretative jurisdiction of this court, it is obvious that we should go beyond statutory interpretation since [p.164] we are concerned with the most fundamental issues of our jurisdiction . . . I think originality is required of us in the exercise of our original jurisdiction if we are to attend to the letter and spirit of the Constitution as the basic law of our land. That originality must, of course, be judicial and must not do damage to the plain and obvious meaning of the words used nor is it the province of this court to be astute to find some reason or other for depriving the constitutional provision of an effect clearly intended.”

Archer JSC (as he then was) also stated at 981:

“Considerations of want of jurisdiction, excess of jurisdiction, errors of law or fact on the face of the record have been rendered totally irrelevant by sections 15(2) and (3) and 16 of the transitional provisions, The effect of these sections can best be ascertained by taking into account the political antecedents of the present Constitution. Our political leaders had to negotiate with those who had seized power in connection with their handing over to a civilian government and the reinstatement of our liberties. These political facts are so notorious trial they should not be judicially overlooked. The courts have been prevented from conducting any transillumination into the affairs of the A.F.R.C. And I think the matter should rest there.”

Charles Crabbe JSC also observed at 1031:

“A Constitution is something more than a mere Act of Parliament. All the organs of government derive their authority and their sustenance from the Constitution. Thus a cardinal principle in the interpretation of a Constitution is to avoid a construction which renders meaningless or inoperative any provision of the Constitution. The same principle applies to the words of the Constitution. Every word must be construed to make it operative and not idle or nugatory. The express intent of the framers—as disclosed by the words used—must be respected. The purpose and intent of the framers—as disclosed by the words used—must be given their true signification. And so, I must reiterate the clear words of article 217. It states clearly that: ‘The transitional provisions specified in the First Schedule to [the] Constitution shall have effect notwithstanding anything to the contrary contained in [the] Constitution.’ Among those provisions contained in the First Schedule which shall have effect notwithstanding anything to the contrary contained in [p.165] the Constitution, are sections 15 and 16 of the First Schedule. There is no ambiguity about the words of article 217 of the Constitution. Effect must be given thereto.”

And Adade JSC also stated at 1038:

“Be that as it may, section 15(2) seeks to protect not only perfect judicial actions, but imperfect ones also, such as, in my view, ‘the trial’ described by Squadron Leader Segbefia. It was a purported trial; a judicial action purported to have been taken by the Armed Forces Revolutionary Council Special Court.

Accordingly, section 15(2) operates to remove the action from the jurisdiction of the court. The action cannot be ‘questioned in any proceedings whatsoever . . . and it will be unlawful to grant any remedy or relief in respect thereof.’ Indeed, having regard to the provisions of article 217 of the Constitution, 1979, it will be unconstitutional to grant any such remedy.”

I associate myself completely with the above quoted passages contained in the opinions given by my learned and respected brothers as to the interpretation and effect of the ouster clauses in sections 15 and 16 of the transitional provisions of the Constitution, 1979. They are perfectly right. For the important and relevant words of section 15(3) of the transitional provisions of the Constitution, 1979 I would substitute section 34 of the transitional provisions of the Constitution, 1992. Section 34(2)(a) of the transitional provisions of the Constitution, 1992 needs to be referred to again for convenience and emphasis. It provides:

“(2) It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any remedy or relief in any proceedings instituted against the Government of Ghana or any person acting under the authority of the Government of Ghana whether before or after the coming into force of this Constitution . . . in respect of the any act or omission relating to, or consequent upon—

(The emphasis is mine.) See also as to the effect of the transitional [p.166] provisions contained in article 176 of the Constitution, 1969 which was considered in the case of Sallah v Attorney-General (supra) per Anin JA (as he then was). He said at 502:

“Article 176 provides that the ‘transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary contained in this Constitution.’ I would have thought that this article 176 should be held to override any inconsistent rules in the Transitional Provisions, which deal with matters of a temporary or fleeting nature. In fact, article 177 ensures that in the next reprinting of the Constitution within five years, the whole of the Transitional Provisions should disappear. from the printed Constitution. The reason is clear: the Transitional Provisions would by then have become effete and a spent force. Be that as it may, I hold that the references to the Constitution in section 9(1) are cancelled out by the clear, unambiguous provisions of article 176. As in the case of an estoppel against estoppel the matter is put at large; and, in my opinion, effect ought to be given to section 9(1) of the Transitional Provisions without reference to any contrary article in the main Constitution.”

He dismissed the action.

In view of my earlier finding that the plaintiff’s case is consequent upon the overthrow of the Limann Government by the PNDC in 1981, this case is automatically caught by the provisions of section 34(2)(a) of the transitional provisions of the Constitution, 1992 and effect must be given to that section. This court is precluded from granting the remedy sought by the plaintiff.

I repeat, my duty is to interpret the Constitution, 1992 as well as the transitional provision in the First Schedule thereof together, and to uphold the Constitution as I find it. I can only discharge this duty by refusing to grant the reliefs sought in the plaintiff’s writ for the reasons given above, namely that I do not find any patent or latent inconsistency between the relevant portion of PNDCL 220 and the articles specifically mentioned in the plaintiff’s writ, or any other articles in the Constitution, 1992. Even though it is my opinion that by the correct interpretation of the Constitution, 1992, the 31 December holiday is not tainted by unconstitutionality, this does not mean that PNDCL 220 cannot be legislatively amended to exclude that date from the list in the Schedule to the said enactment if such a result is desired by this or any other government. However, in this case, it would be very wrong to allow the [p.167] achievement of this result through constitutional rather than legislative means. This is the justice of the matter and I say so without fear or favour, affection or ill will.

It is for the above reasons that I disagreed with the majority judgment in this case.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

In the American case of Gibbons v Ogden, 22 US (9 Wheat) 1 at 221-222 (1824), Justice William Johnson of the United States Supreme Court commenced his opinion contributed for that judgment in words of such great felicity as represent my attitude to the hearing and determination of this constitutional matter in particular and generally with regard to my approach to the determination of all constitutional matters; said the learned judge:

“The judgment entered by the Court in this cause, has my entire approbation; but having adopted my conclusions on views of the subject materially different from those of my brethren, I feel it incumbent on me to exhibit those views. I have, also, another inducement: in questions of great importance and great delicacy I feel my duty to the public best discharged, by an effort to maintain my opinions in my own way.

In attempts to construe the constitution, I have never found much benefit resulting from the inquiry, whether the whole, or any part of it, is to be construed strictly, or literally. The simple, classical, precise, yet comprehensive language, in which it is couched, leaves, at most, but very little latitude for construction; and when its intent and meaning is discovered, nothing remains but to execute the will of those who made it, in the best manner to effect the purposes intended.”

On 29 December 1993 I cast my vote in favour of granting the amended declarations. I did so—and I believe my learned and respected sister and brethren did the same in their own ways—after having seriously digested the arguments advanced by the parties. Again the novelty of the declarations sought was enough to excite such attention as would warrant the expression of views which may be materially different but nevertheless reaching the same conclusions. My conclusions therefore agree with the majority of my learned and respected sister and brethren but my reasoning may be entirely different.

In the Gibbon’s case (supra) the United States Supreme Court was considering the interaction between the federal and state laws regarding [p.168] inter-state commerce. It is not necessary for my purposes here to set out the facts. But the concurring judgment of Mr Justice Johnson to which I have referred postulated that it was not necessary for the court (ie the US Supreme Court) to construct constitutional provisions literally or strictly. The court’s duty was simply to discover the intent and meaning and then to give effect to the will of those who made it—that is the will of the framers of the Constitution—and so say I.

Within our municipality, the matter has been put very succinctly in the words of Sowah JSC (as he then was) in Tuffuor v Attorney-General [1980] GLR 637 at 647—648, CA sitting as SC when speaking of the language of the framers of the Constitution, 1979—which I say should apply with equal force to our attitude to the present Constitution, 1992 that:

“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 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.

And so 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.”

My duty therefore was to discover the “intent and meaning” of the presentations made to us in the present case with respect to our Constitution, 1992 and apply “a broad and liberal spirit” in its interpretation. There is no benefit in these modern times in applying a strict interpretation of modern democratic Constitutions. So to do would mean that we forget that Constitutions are made by men for the governance of men. The Constitution, 1992 is therefore the sum total of our hopes, disappointments, experiences, aspirations and expectations as a nation. If we therefore forget the historical development of our Constitution, 1992 then we fail to recognise that “it is a living organism capable of growth.”

A serious examination of the pleadings in this case clearly shows that the statement of the defendant’s case virtually admitted the facts as stated [p.169] in the plaintiff’s statement of case. True, the defendant’s case contained examples of what is called in pleadings, “confession and avoidance.” But it must be admitted that a “confession and avoidance” is not a denial. However, by that technique the defendant has raised certain matters of law which will be dealt with in this opinion. For my part, I do not consider it necessary to set out the facts of this case. Suffice it to say that some of my learned and respected sister and brethren have done so in their opinions.

The main issues for consideration by this court were (1) whether it was constitutionally permissible for the 31 December 1981 action to be celebrated as a public holiday, and if so (2) whether state funds should be used in the celebration of that holiday. No difficulty arises with the second issue. For if it is constitutionally permissible to celebrate 31 December as a public holiday then the State would be at liberty to furnish funds for its celebration. Yet again if it was not constitutionally permissible to celebrate 31 December as a public holiday by reason of the inconsistency of such celebration with any provision of the Constitution, 1992, then the plaintiff was entitled to the declarations sought. I need not remind myself that 31 December 1981 was the day on which the lawful civilian government established under the Constitution, 1979 of the Third Republic was violently overthrown.

In argument before us the Deputy Attorney-General, Mr Martin Amidu, conceded with characteristic frankness that “the action of 31 December 1981 was violent.” It must however be said in his favour that he distinguished this day of violence from “the gains of the revolution” which had culminated in the framing and promulgation of the Constitution, 1992 of the Fourth Republic.

In my respectful opinion, the Deputy Attorney-General was right in making the distinction between “the action of 31 December 1981 ” which was “violent” and the “gains of the revolution” which it must be conceded have given us the best democratic Constitution which our country has ever had. The Deputy Attorney-General, however, missed the point when he referred to revolutions in other parts of the world as parallels to the 31 December revolution in this country. His references to the American and French Revolutions not proving convincing enough, the honourable gentleman more in jest than in exasperation referred to “Guy Fawkes Day” celebrated in the United Kingdom. Of course “Guy Fawkes Day” is not celebrated in the United Kingdom as a holiday.

I am not minded to discuss these revolutions referred to by the Deputy Attorney-General. It will however be enough to point out two [p.170] important distinctions between these revolutions and “the action of 31 December 1981.” First, no one who rook part in those revolutions was granted an indemnity. Secondly, save that these revolutions gave rise to the modern concepts of democracy, none of them evolved a political philosophy as is the case here in this country. The four pillars of the 31 December revolution are firmly rooted in our present Constitution, 1992 and are denominated: freedom, justice, probity and accountability.

The defendant contends in paragraph (14) of his statement of case that:

“The President of the Republic who is also the chairman and leader of the 31 December Revolution and the members of Parliament of the NDC Party to which the President belongs, were elected on the party manifesto whose underpinning was continuity of the good works and values of the 31 December revolution.”

He is correct. The averment only goes to confirm my view that the “gains of the revolution” constitute a political philosophy which remains to be tested under a multy-party democratic Constitution. It makes no difference that the philosophy is being spearheaded by a particular party. As was said of early Christianity by Gamaliel, a doctor of the law in Acts 5, 38—39 “ . . . if this counsel or this work be of men, it will come to nought but if it be of God, ye cannot overthrow it; lest happy ye be found even to fight against God.” For my part, I can conceive a clear distinction between this laudable political philosophy and the “action of 31 December 1981.”

In argument before us, learned leading counsel for the plaintiff, Mr Peter Ala Adjetey, referred us to the provisions of section 34 of transitional provisions to the Constitution, 1992 which mentions 31 December 1981. Also the statement of the case for the defence referred to the Public Holidays Law, 1989 (PNDCL 220) which mentions 31 December.

I believe I heard in conference a proposition that the plaintiff’s writ had failed to pin-point specifically any relevant provision of the Constitution, 1992 which was inconsistent with the proposed celebration to mark the twelfth anniversary of 31 December 1981 (Revolution Day). In the proponents’ view, the plaintiff having so failed, it was out of court and the writ should be dismissed.

Of course I disagree with such a formulation. Not only is it the adoption of a strict construction of the Constitution, 1992—which I say is contrary to modern concepts of constitutional interpretation—but it [p.171] also wholly ignores the letter and spirit of the Constitution, 1992. If I understand the case of the plaintiff correctly, it contends that the proposed celebration of the 31 December holiday runs counter, to the letter and spirit of the Constitution, 1992 as illustrated by references to certain articles of the Constitution, 1992 and in particular to section 34 of the transitional provisions of the Constitution, 1992 which has declared 31 December 1981 and other dates dies horribillis and for which certain classes of persons have been indemnified.

The defendant sought refuge in PNDCL 220 and contended: “that 31 December like all public holidays in Ghana is a public holiday by the provisions of section 1 . . . ” There could be no quarrel with that pleading if 31 December was a day unknown to the Constitution, 1992. But, as it is, that date is mentioned in section 34 of the transitional provisions to the Constitution, 1992. It is therefore wrong for the proponents of the strict interpretation or construction principle to say that the actions complained of do not offend against any article of the Constitution, 1992. The transitional provisions to the Constitution, 1992 are part of the Constitution, 1992. In fact the superior efficacy of the transitional provisions is clearly demonstrated by the provisions of article 299 of the Constitution, 1992 which provides that: “The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution.”

In Kuenyehia v Archer [1993-94] 2 GLR 525, SC I had occasion to consider briefly the intendments of article 299 of the Constitution, 1992. Then I said at 000 that “there is a severe injunction placed on us by the Constitution, 1992 as to how wide we can extend our researchers.” I concluded that the true intendment of article 299 of the Constitution, 1992 prevents the Constitution and the transitional provisions from being read together. What I meant was that the transitional provisions have been superimposed on the Constitution, 1992 and if there was reference in the former affecting any matter, then notwithstanding anything to the contrary in the latter the former shall prevail. I think the plaintiff demonstrated by its statement of case and argument advanced before us by learned counsel that it was properly before us. This court has said times out of number that it will not allow technicalities to becloud or stultify the need to do justice to the parties appearing before it. I think that in constitutional matters it is the clear duty of this court to gather the issues from the four corners of the statements of the case for the parties, discover the intent and meaning of the letter and spirit of the Constitution, 1992 or of any relevant article therefore and “to execute the [p.172] will of those who made it, in the best manner to effect the purpose intended.”

It is clear from the plaintiff’s amended writ that it was invoking the provisions of article 2 of the present Constitution, 1992. A similar provision in the Constitution, 1979 came up for consideration by the Supreme Court on 22 March 1981 in the case of Kwakye v Attorney- General [1981] GLR 9, SC. Delivering the ruling of the court Apaloo CJ at 13 of the report said of article 2(1)(b) of the Constitution, 1979:

“That the Constitution, 1979, clothes this court with jurisdiction to make the declaration sought by the plaintiff in a fit case is hardly in doubt . . .

It is precisely that complaint that the plaintiff makes. If we construct article 2(1) (b) alright, he is entitled to invoke the jurisdiction of this court as soon as the act complained of was committed or even threatened .. . Indeed the ‘unconstitutional’ act may be one which demands the timeous intervention of this court.”

Article 2 of the Constitution. 1992 like the same article in the Constitution, 1979 deals with two situations. First, where any enactment is inconsistent with or is in contravention of a provision thereof, and secondly, where any act or omission similarly is inconsistent with or in contravention of the Constitution. In my respectful opinion, any date mentioned in section 34 of the transitional provisions to the Constitution, 1992 is to the extent of such mention inconsistent with the letter and spirit of the Constitution and void.

By paragraph (15) of the defendant’s statement of case, the defendant states:

“(15) The defendant maintains that what the plaintiff is seeking to do is to question the constitutionality and legality of the 31 December revolution and the event which gave rise to the revolution of 31 December 1981 which should not be entertained by the court by virtue of section 34, particularly subsection (2) of the transitional provisions scheduled to the Constitution.”

I think that the subsection which the defendant wanted to refer to was subsection (3) of section 34 of the transitional provisions of the Constitution, 1992. Certainly, I find no difficulty with the interpretation of section 34(2). The protection or indemnity granted to the classes of persons described in that subsection is limited to persons who [p.173] individually or in concert did., “assist or bring about the change in Government” on these specified days in respect of any act or omission relating to or consequent upon the matters stated in the clauses on that subsection.

I would ordinarily pass over that objection as being irrelevant. But with the knowledge that what the defendant meant was a reference to section 34(3) of the transitional provisions of the Constitution 1992, I think it is but fair that I give him the benefit of the correction and proceed to express myself on the quality of that averment.

Section 34(3) and (4) of the transitional provisions of the Constitution, 1992 are in similar terms as section 15 (2) and (3) of the transitional provisions of the Constitution, 1979. The latter provisions found construction in Kwakye v Attorney-General [1980] GLR 944, SC.

In that case, Archer JSC (as he then was) said at 976:

“The true meaning of section 15(2) appears to be that whenever the court is satisfied that the A.F.R.C. took or purported to take an executive, legislative or judicial action, then that court shall not question the validity, the correctness, the fairness or the justice of that decision or action.”

(The emphasis is mine.) Then Taylor JSC also said at 1059:

“Section 15(2) and (3) of the transitional provisions saved executive, legislative and judicial acts taken or purported to be taken by the Armed Forces Revolutionary Council or its lawful agent from being questioned in court.”

Yet again in the Kwakye case (supra) at 1071 Taylor JSC said:

“I must remark that section 15(3) of the transitional provisions is clearly inapplicable as it merely saved procedural defects. Where the defects are of substantive legal requirements, they cannot be considered as procedure prescribed by law.”

The Kwakye case (supra) was a split decision—5 to 2—the majority voting in favour of dismissing the case. But reading the opinions of their lordships, it is clear that they all appreciated that there was no carte blanche indemnity granted as generally understood by the popular and untutored world. Speaking for myself, I think that there is no difficulty in the interpretation of section 34 of the transitional provisions of the Constitution, 1992. I have already delivered myself on my views on subsection 2 of that section. What appears not to commend itself to easy [p.174] rendering is the expression “action” in section 34(3) of the transitional provisions of the Constitution, 1992. In my respectful opinion, the expression “action” within the intendment of that subsection means any function in the semblance of an executive, legislative or judicial process exercised or purported to have been exercised by any of the military regimes mentioned in that subsection. I think it is only in this sense that the majority view can claim to be correct.

The plaintiff’s writ therefore cannot be caught by section 34(2) and (3) of the transitional provisions of the Constitution, 1992. If I read that section correctly, as indeed I have already so done, the subsections are clearly saying that all those dates mentioned therein were days when illegalities in the eyes of the Constitution were committed against the established constitutional order, but that in the spirit of and commitment of the Constitution, 1992 to the “unity and stability of our Nation” (see the preamble to the Constitution) the perpetrators shall not be liable to civil action or criminal prosecution and no action or proceedings may be instituted against the lawful government for any such defaults.

By his statement of case the defendant contended that:

” . . . whether or not public funds should be appropriated for the celebration of the 31 December revolution is a political question which is best left to the electorate which votes a government into power and a Parliament which can by law decide what public holidays in Ghana shall be.”

In argument before us, the Deputy Attorney-General extended the ambit of the above-stated averment and submitted that his contention of the principle of non-justiciability on the grounds of the political question included the 31 December holiday itself. In his view, the court had no jurisdiction to embark on the inquiry on hand as it was more competent for another arm of government to resolve. Further, that there were overriding public policy considerations which should prevent this court from adjudicating on the matter. In short, on the grounds of a non-justiciable political question and on the ground of public policy we should declaim jurisdiction.

The Deputy Attorney-General referred us to a number of English and United States cases which he submitted were in point and supportive of the stand which he had taken. I have since our judgment of 29 December 1993 had opportunity to examine almost all the cases so cited and I am confirmed in my mind that my decision was right. The English cases dealt mainly with matters of public policy. The case which commends [p.175] itself to my attention is Scranton’s Trustee v Pearse [1922] All ER Rep 764, CA. In this case, the headnote reads:

“A trustee in bankruptcy sought under the provisions of the Gaming Act, 1835, to recover from a bookmaker certain sums which the bankrupt had paid by cheque to the bookmaker in respect of betting losses.

Held:

Since the trustee was seeking to enforce a claim in respect of a debt which was a chose in action and, by the Bankruptcy Act, 1914, s. 18, was made part of the assets of the bankrupt which vested in the trustee, and since there was nothing in the doctrine laid down in Ex parte James (1874) 9 Ch. App. 609, which entitled the court to say that, in such a case as this, it was dishonourable or improper or unconscionable for the trustee, as an officer of the court, to enforce it, the trustee’s position not being the same as that of the bankrupt if he had remained solvent and had brought the action himself, the trustee was entitled to succeed.”

I could not immediately fathom the relevance of this case to the defendant’s presentation. But I find in the dictum of Warrington LJ at 772-773 of the report perhaps something useful. Said the learned law lord:

“All I can say is, if we are to decide cases depending on statute on any such footing as that, we are, as judges, not administering the law but administrating that which has been vaguely referred to as the general policy of this country. That is not what we are here for. We are here to administer the law as it stands. It is the legislature which has to do with the policy of the country, and not the judges, who administer the law. Therefore, in this case where, as I have said, the trustee is only exercising a right which is vested in him by statute, a right which he is entitled to exercise, and which I think I may go further and say he is bound to exercise, for the benefit of the creditors amongst whom the property is divisible, it would be wrong to interfere with that right by prohibiting the trustee from bringing the action which he is entitled to bring.”

By this and the other English decisions, the Deputy Attorney-General was submitting that on matters of the administration of “the general policy of this country” judges are not fitted to pronounce thereon. In the words of Warrington LJ “it is the legislature which has to do with the policy of the country.”

[p.176]

I think Deputy Attorney-General misunderstands the context in which the dictum was pronounced. First, the English—or should I say the British—pride themselves on not having a written Constitution. Next, Parliament in British is supreme. Third, the judge’s duty is to apply the law. Clearly, commentary on any aspect of public policy by a British judge is uncalled for. As Lord Sterndale MR said in the same case at 770 of the report:

“I think all this court can do is to look at the Act of Parliament and see to the best of its ability what it said, and, having found that out, to obey it and give effect to it, and it ought not to consider whether, in the opinion of the court, the legislation is consistent with the general trend of opinion in the country.”

Not so in this country we have a written Constitution which is the supreme law of the land. All laws and acts or omissions which are inconsistent with or in contravention of any provision of the Constitution are void and this court is empowered by the Constitution to make declarations to that effect. In the area of public policy, it was the Deputy Attorney-General himself who referred this court to article 35(1) of the Constitution, 1992. I think he meant to refer us to article 34(1) of the Constitution, 1992. Chapter 9 of the Constitution, 1992 of which article 34(1) forms part deals with “the Directive Principles of State Policy.”

For the sake of brevity article 34(1) of the Constitution, 1992 reads:

“’34.(1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”

In my respectful opinion, nothing in the Constitution, 1992 precludes this court—or indeed any court—from pronouncing on matters of public policy. This court is therefore, even on the grounds of public policy, entitled to decide whether the 31 December holiday is inconsistent with the letter and spirit of the Constitution, 1992.

The final submission of the Deputy Attorney-General emanating from the averment contained in his statement of the defendant’s case was that the plaintiff’s case raised a non-justiciable political question. Simply put, if the matter in issue could be dealt with by any other arm of government and the Constitution, 1992 said so, then the court must [p.177] decline jurisdiction. His contention was that since it was Parliament which under the doctrine of separation of powers had the responsibility for controlling legislation it was fully within its authority to make a law abolishing 31 December as a public holiday. He did not, however, touch on the issue of whether if the said legislation was claimed to be inconsistent with or in contravention of the Constitution which arm of the State under the Constitution had the authority to so declare. He however relied principally on the United States case of Baker v Carr, 369 US 186 (1962).

In the Baker case (supra), the plaintiff, Baker, sought through the federal courts to obtain the reapportionment of the voting districts in the State of Tennessee on the ground that since the 1901 census, the population had grown at different rates in different voting districts. Consequently, there was unequal representation which he considered unconstitutional. The state legislature as then composed would not pass a constitutional amendment to rectify the situation. The plaintiff lost his case in the lower federal courts on the grounds of non-justiciability. He appealed.

The issue before the United States Supreme Court was whether the courts possess jurisdiction over a constitutional challenge to a legislative apportionment? The clear answer was “Yes.” I cannot do better than cite a short portion of the opinion of the court delivered by Justice Brennan which illustrates the circumstances in which the issue of a political question may arise. At 217, he said:

“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning, adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on [p.178] one question.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.”

Another United States case which amply illustrates the principle under consideration is Powell v McCormack, 395 US 486 (1969). Mr Adam Claton Powell, Jnr, a Negro, was duly elected a representative to the 90th Congress of the United States. However, pursuant to a resolution of the house, he was not permitted to take his seat. He sued McCormack, the Speaker and other officials of the house claiming that since he had met all the formal requirements under the United States Constitution for membership of the house, and the house had specifically found that he had met those requirements, the resolution of the house excluding him from membership was invalid. The district court dismissed the complaint “for want of jurisdiction of the subject matter” and the Court of Appeal affirmed the decision of the district court. He appealed to the Supreme Court.

Before the United States Supreme Court the issue was whether the federal court was prevented from reviewing the congressional exclusion of a duly elected member by the prohibition against deciding political questions. The court answered in the negative. The defendants had contended that there is a “textually demonstrable constitutional commitment” to the house of its “adjudicatory power” to determine Mr Powell’s qualifications. In answer, the court said it had the duty to interpret the Constitution in order to determine the existence and scope of such a power. In the view of the court, Mr Powell was right in his contention that the house had no authority to exclude him or any person if he satisfied the membership requirements. It was the duty of the Congress to determine the compliance with the qualifications set forth in the Constitution, but the courts were not debarred from reviewing congressional judgments that extended beyond these qualifications.

Further, the defendants submitted that they feared a potentially embarrassing confrontation between co-ordinate branches of the federal government and contended that by that reason the case presented a political question. But the court said that the alleged conflict which such an adjudication might cause could not justify the court avoiding its constitutional duty of interpretation.

The whole principle of a non-justiciable political question is an American formulation. While it may be relevant to our situation because [p.179] it is a development from a written democratic Constitution, I think there are so few parallels between the two Constitutions on this principle that its application to our Constitution, 1992 must necessarily be limited.

By article 2 of our Constitution, 1992 this court has the exclusive jurisdiction to determine whether any statute, act or omission is inconsistent with or in contravention of any provision of the Constitution. Next, by article 130 of the Constitution, 1992 this court has exclusive original jurisdiction in all matters relating to the enforcement or interpretation of our Constitution. The original jurisdiction extends to all matters “arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.” Again, constitutional matters which arise in the lower courts must as provided under article 130(2) of the Constitution, 1992 be referred to this court—the Supreme Court—”and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.” It seems to me therefore that by the nature of our Constitution the principle of a non-justiciable political question can only arise where the Constitution, 1992 expressly commits a particular responsibility to some arm of government. A clear example may be the power of the President to appoint ambassadors under article 74(1) of the Constitution, 1992.

In the present case, the principal issues were (1) whether the celebration of the 31 December holiday was inconsistent with or in contravention of a provision of the Constitution, 1992; and (2) whether public money should be used in its celebration. No political question arose. The matter was firmly within the jurisdiction of this court.

Having this discovered the “intent and meaning” of the framers of the Constitution, 1992, who were largely composed of the representatives of the revolutionary organs, I think the public interest was best served by “executing the will of the framers of the Constitution “in the best manner to effect the purposes intended.”

JUDGMENT OF AMPIAH JSC.

On 29 December 1993 this court gave judgment for the plaintiff and ordered that 31 December of each year should not be celebrated as a public holiday. Reasons for the judgment were reserved. It was unfortunate that I could not agree with the majority of my brothers on the judgment. In my opinion, the plaintiff’s claim should fail. I now proceed to give reasons for my dissent.

By its writ of summons as amended, the plaintiff claimed:

[p.180]

“(1) 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 emphasis is mine.) This action has been brought by the invocation of the original jurisdiction of the Supreme Court under articles 2(1)(a) and 130(1) of the Constitution, 1992 and rule 45 of the Supreme Court Rules, 1970 (CI 13).

The plaintiff is a political party registered under the laws of this country, and the defendant is the representative of the Government of Ghana through whom all actions against the government are brought.

Under article 2(1) of the Constitution, 1992:

“2. (1) A person who alleges that—

(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person;

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

Article 130(1)(a) gives the Supreme Court exclusive original jurisdiction in—

“(a) all matters relating to the enforcement or interpretation of this Constitution; and

(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”

By its first claim the plaintiff had contended that the celebration of 31 December as a public holiday would be “inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 and in [p.181] particular articles 3(3), (4), (5), (6) and (7), 35(1) and 41(b) of the Constitution, 1992.” (The emphasis is mine.) I would refer to these articles seriatim for their full force and effect. These articles state:

“(3) Any person who—

(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or

(b) aids and abets in any manner any person referred to in paragraph (a) of this clause;

commits offence of high treason and shall, upon conviction, be sentenced to suffer death.

(4) All citizens of Ghana shall have the right and duty at all times—

(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article.

(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence.

Article 35(1) of the Constitution, 1992 states:

[p.182]

And article 41 of the Constitution, 1992 provides:

“41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen—

(a) to promote the prestige and good name of Ghana and respect the symbols of the nation;

(b) to uphold and defend this Constitution and the law;

(d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of other persons;

(e) to work conscientiously in his lawfully chosen occupation;

(f) to protect and preserve public property and expose and combat misuse and waste of public funds and property;

(g) to contribute to the well-being of the community where that citizen lives;

(h) to defend Ghana and render national service when necessary;

(i) to co-operate with lawful agencies in the maintenance of law and order;

(j) to declare his income honestly to the appropriate and lawful agencies and to satisfy all tax obligations; and

(k) to protect and safeguard the environment.”

Counsel for the plaintiff took the court through the political history of this country since the attainment of her independence. He said there had been four major overthrows of lawfully constituted governments, namely the 24 February 1966 overthrow of the First Republican Government; the 13 January 1972 overthrow of the government of the Second Republic; the 4 June 1979 overthrow of the National Redemption Council (NRC) Government which had itself overthrown the government of the Second Republic; and the last but not the least was the 31 December 1981 overthrow of the Third Republican Government. Counsel contended that since all these overthrows were illegal, the people of Ghana should not be reminded of such events, and jubilation by way of celebration of the dates of the overthrows, in particular 31 December, would be inconsistent with and in contravention of the “letter and spirit” of the Constitution, 1992 and in particular the provisions [p.183] referred to above which seek to stamp out all attempts at overthrowing legally constituted governments. Such a celebration, he continued, would, if allowed, encourage others to try and overthrow legitimate governments in order to make themselves heroes, if the attempt was successful; such conduct would destabilise the country. He however submitted that nothing prevented individuals from celebrating the day privately, provided no public funds were used for that purpose. He contended further that 31 December as a public holiday was discriminatory and against the spirit of the Constitution, 1992.

Counsel for the defendant in reply, submitted that whether or not a particular day should be observed as a public holiday was a matter entirely for the government of the day. He said it was not for the court to decide which days should be public holidays, since sovereignty resided in the people from whom the government derived its powers. He stressed that since the Constitution, 1992 itself absolved all those who had taken part in the unlawful overthrow of legitimate governments from their acts, it would be wrong to refer to those illegal acts with regard to the celebration, The true spirit of the Constitution, 1992, he contended, was that these atrocities must be taken as having been done properly without any attachment of punishment; in other words, the activities themselves must be forgotten. Counsel said that 31 December was being celebrated not as to what had happened on that day, but as an eventful day in the history of this country. He cited an example of 4 July being celebrated by the French as the day of their revolution. As to the use of public funds for the celebration, he said the Appropriation Bill was an act of Parliament which body alone could decide which moneys should be used for what. The plaintiff, he submitted, had every opportunity to put its case across to Parliament but it disabled itself from doing so by refusing to go to Parliament. Once that amount had been approved by Parliament, it could be used for that purpose only. He concluded that 31 December as a public holiday had been included in the Public Holidays Law, 1989 (PNDCL 220) and was now accepted by the Constitution, 1992 as part of the laws of this country. This court, he said, had no power to take out specific dates from the Law unless Parliament decided to do so.

I am satisfied and I hold that the acts of 24 February 1966, 13 January 1972 and 31 December 1981 by which the then legally constituted governments of this country were overthrown were unlawful and therefore unconstitutional. Query, the acts of 4 June 1979? When a group of disgruntled persons overthrows a legally constituted [p.184] government either peacefully or violently, that action is unconstitutional because it seeks to effect a chance of government otherwise than by laid down procedure for the change of government. If, however, the overthrow succeeds, the government arising from the overthrow, although illegal, is accorded recognition either de facto or de jure by the people themselves or by the international community. In pursuance of such recognition, the government so far constituted makes laws for the governance of the people, however obnoxious or resentful these laws may seem to the people or a section of them. The Provisional National Defence Council (PNDC) was one of such governments having taken over power to govern by overthrowing the government of the Third Republic.

In pursuance of the Provisional National Defence Council (Establishment) Proclamation Law, 1981, PNDCL 220 was made. Included in the holidays declared under this Law was 31 December, the day on which the legitimate Third Republican Government of Ghana was overthrown. That day has been celebrated and continues to be celebrated as a public holiday without any valid protestation or objection from the people of this country. It cannot however be said that the non-objection to the celebration has created an estoppel against any person or persons as the present application has been the only opportune occasion for the exercise of one’s right under the Constitution, 1992 which came into force on 7 January 1993.

Articles 3(3), (4), (5), (6) and (7), 35(1) and 41(b) of the Constitution, 1992 can only refer to acts done after the coming into force of the Constitution, 1992. Article 11 of the Constitution, 1992 makes existing laws part of the laws of Ghana. And article 11(5) and (6) of the Constitution, 1992 specifically provides:

“(5) Subject to the provisions of this Constitution, the existing law shall not be affected by the coming into force of this Constitution.

(6) The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.”

PNDCL 220, as an existing Law of Ghana, is part of the laws of Ghana. There has not been any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of [p.185] the Constitution, 1992. The Constitution, 1992 which provides for the inclusion of existing laws of the country, is the supreme law of Ghana and any law found to be inconsistent with any provision of the Constitution shall, to the extent of the inconsistency, be void—vide article 1(2) of the Constitution, 1992.

The plaintiff has not sought the revocation of PNDCL 220. Neither was it demonstrated clearly that the wording of the provisions of PNDCL 220 was inconsistent with any provision of the Constitution, 1992. Counsel for the plaintiff submitted that by the “letter and spirit” of the Constitution, 1992 the celebration of 31 December was inconsistent with or in contravention of the Constitution, 1992. Counsel contended that since the Constitution, 1992 has specifically proscribed the unlawful overthrow of governments and prescribed punishment for those engaged in such unlawful activities and also placed a duty on all citizens of Ghana to defend the Constitution against such overthrows—vide article 3—any act such as the celebration of 31 December would be inconsistent with or in contravention of the letter or spirit of the Constitution, 1992. By the wording or letter of these provisions, I do not find any inconsistency or contravention of the Constitution, 1992. The spirit of the Constitution can only be found from the intentions of the framers of the Constitution and to that effect, the whole of the Constitution, 1992 must be examined for such an interpretation; this cannot be done on guesswork or mere assumptions.

As in the case of documents, the Constitution, 1992 should be construed in a manner to carry out the intention of the legislature or the framers. The Constitution, 1992, like any statute, must be read as a whole and the construction made of all the parts together. The meaning of the Constitution, 1992 and the intentions of the framers can only properly be derived from a consideration of the whole of it in order to arrive, if possible, at a consistent plan. It is wrong to start with some a priori idea of that meaning or intention and to try by construction to work that idea into the words of the Constitution. The spirit, intention or object of the Constitution, 1992 must first be derived from the words used in the Constitution itself. If plain, they will indicate either directly or impliedly the intention with which the Constitution was made and the object to be attained by it. If the words are not clear, the policy of the framers and the scope and object of the Constitution, where these can be discovered, will show the intention which may further be brought to light by applying the various rules and presumptions of construction. “Intention of the legislature” has been described by a high authority as [p.186] “a common but slippery phrase”: see Salomon v Salomon [1897] AC 22 at 38, HL. As Lord Halsbury said in Leader v Duffey (1888) 13 App Cas 294 at 301, HL:

“But I agree that you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself, and having made that fallacious assumption to bend the language in favour of the assumption so made.”

The intention of the legislature or framers of the instrument must not be assumed or surmised. What has been said above can properly be said of a Constitution. The danger of these rules concerning “intention”, “subject”, “policy” and so on is that they may open the door to individual bias or opinion or result in guessing at the intention: see Lumsden v Inland Revenue Commissioners [1914] AC 877 at 892, HL. See also Inland Revenue Commissioners v Dowdall, O’Mahoney & Co Ltd [1952] AC 401 at 426, HL in which Lord Radcliffe observed: “The beliefs or assumptions of those who frame Acts of Parliament cannot make the law.” Similarly, we may say that the beliefs and assumptions of the framers of the Constitution, 1992 cannot make the Constitution, 1992.

The preamble to the Constitution, 1992 may be a guide to the spirit or intention of the framers. See also the preamble to the Constitution, 1969. It may be necessary to seek assistance for the determination of the spirit of the Constitution also from the Directive Principles of State Policy, ie of the Constitution, 1992, art 34, but the whole of the Constitution, 1992 must be considered. Though article 17 of the Constitution, 1992 frowns upon discriminatory conduct, clause (4) of the article provides:

“(4) Nothing in this article shall prevent Parliament from enacting laws that are reasonably necessary to provide— . . .

(d) for making different provisions for different communities having regard to their special circumstances not being provision which is inconsistent with the spirit of this Constitution.”

[p.187]

PNDCL 220 makes provision for public holidays which are seemingly discriminatory, eg Good Friday, Easter Monday and 25 December. These provisions made before the coming into force of the Constitution, 1992 may be said to be inconsistent with the Constitution, 1992 but, the Constitution, 1992 itself allows such laws to be made. In article 17(5) of the Constitution, 1992 it is provided that: “(5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Chapter.” The Constitution, 1992 allows for the making of discriminatory acts provided these act, are not inconsistent with the Constitution, and nothing can be inconsistent with the Constitution which the Constitution, 1992 itself allows to be made. The celebration of 31 December as a public holiday cannot be said to be against the letter and spirit of the Constitution.

The fact that the Constitution, 1992 frowns on the overthrowing of legitimate governments, cannot be the basis for arriving, at the “spirit of the Constitution”, otherwise the provision of indemnity clauses in the transitional provisions of the Constitution, 1992 which “shall have effect notwithstanding anything to the contrary in this Constitution” (vide article 299 of the Constitution, 1992), would be meaningless.

The overthrow of a legitimate government or attempts to overthrow it is a criminal act which is provided for already in our existing laws: see section 180 of the Criminal Code, 1960 (Act 29) as amended by the Constitution (Consequential and Transitional Provisions) Decree, 1969 (NLCD 406). In fact, the Constitution, 1969 made the attempt and overthrow of governments a treasonable offence. Article 20(16) of that Constitution states, inter alia:

“(16) For the purposes of this article and subject to the provisions of clause (17) of this article, treason shall consist only

(b) in attempting by force of arms or other violent means to overthrow the organs of government established by or under this Constitution; or

(c) in taking part or being concerned in, or inciting or conspiring with any person to make or take part or be concerned in, any such attempt.”

The punishment for the offence is death. And, the Constitution, 1979 contains similar provisions under article 26(16). It can therefore not be said that the provision against the overthrow of governments has just been introduced under this Constitution to make it the spirit of the [p.188] Constitution, 1992.

Ironically, it is the illegitimate governments which have made more use of these provisions against the overthrow of governments. The provision thus, is not new to our Constitution, 1992. In fact, section 34(3) and (4) of the transitional provisions of the Constitution, 1992 specifically provides:

“(3) For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or purported to have been taken by the Provisional National Defence Council or . . . a member of the Provisional National Defence Council or . . . by any person appointed by the Provisional National Defence Council or. . . in the name of either the Provisional National Defence Council . . . shall be questioned in any proceedings whatsoever and, accordingly, it shall not be lawful for any court or other tribunal to make any order or grant any remedy or relief in respect of any such act.

(4) The provisions of subsection (3) of this section shall have effect notwithstanding that any such action as is referred to in that subsection was not taken in accordance with any procedure prescribed by law.”

Among the statutes made by the PNDC, is PNDCL 220. This was a legislative action taken by the PNDC or a member of it. Besides, there are numerous enactments made by not only the PNDC but also governments which had overthrow legally constituted governments. The existence of these laws may remind us of the unlawful acts or events of the unlawful overthrows, yet they still exist as part of the laws of this country. Could these laws be described as inconsistent with or in contravention of the Constitution? And, does the Constitution itself prevent persons who have taken part in the overthrow of constitutional governments from standing for election and holding high offices in the State? If the spirit of the Constitution were what counsel for the plaintiff would have the court believe, none of the provisions referred to above would have been tolerated by the Constitution.

The Constitution, 1992 was accepted by the people of Ghana with full awareness of the contents of the Constitution and without any misconception as to what the spirit of the Constitution was. Perhaps it is our ardent wish and unfettered determination that there should not again be such overthrows of legitimate governments but certainly that could not be the spirit of the Constitution! In any case, do we condemn all overthrows of governments? It may depend on which side of the fence [p.189] one is. Reference was made to the yearly celebration of the French Revolution: That commemorative day marked the overthrow of a legitimate government albeit monarchical. That day is celebrated not to stage a revolution but to mark an important event in the political history of the French people. As long as the people accept it, it would continue to be celebrated. Coming back home, we may refer to the preamble of the Constitution, 1969 which tells us in no uncertain terms how the people praised the illegal overthrow of the First Republican Government. The preamble states in no uncertain terms the condemnation of the overthrown legitimate government. It states:

“IN THE NAME OF ALMIGHTY GOD from Whom all authority is derived and to Whom all actions both of men and States must be referred

WE THE CHIEFS AND PEOPLE OF GHANA HAVING experienced a regime of tyranny REMEMBERING with gratitude the heroic struggle against oppression

HAVING solemnly resolved never again to allow ourselves to be subjected to a like regime

DETERMINED to secure for all of us a Constitution which shall establish the SOVEREIGNTY OF THE PEOPLE and the RULE OF LAW as the foundation of our society and which shall guarantee

FREEDOM of thought, expression and religion

JUSTICE — social, economic and political

RESPECT for the dignity of the individual; and

EQUALITY of opportunity

DO HEREBY IN OUR CONSTITUENT ASSEMBLY AND IN EXERCISE OF THE POWERS CONFERRED ON THIS CONSTITUENT ASSEMBLY BY PARAGRAPHS 1 AND 2 OF THE CONSTITUENT ASSEMBLY (AMENDMENT) DEGREE, 1969 (N.L.C.D. 380) ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION THIS TWENTY-SECOND DAY OF AUGUST, 1969

THIS CONSTITUTION SHALL COME INTO FORCE AS THE CONSTITUTION OF GHANA ON THE TWENTY-SECOND DAY OF AUGUST, 1969.”

This was a clear show of appreciation for those who had “gallantly” overthrown a legitimate government. Monuments were erected for some of these “gallant” soldier’s to perpetuate their memory, eg “Kotoka International Airport” and trusts were also created for some of them, eg [p.190] The General Kotoka Trust Decree, 1969 (NLCD 339) which was amended in 1971 by The General Kotoka Trust Decree, 1969 (Amendment) Act, 1971 (Act 365) under a civilian regime. We made this illegitimate government a caretaker government in the Constitution, 1969 and provided in section 14(3) and (4) of the transitional provisions thereof that:

“(3) On or soon after the coming into force of this Constitution every person who served as a member of the National Liberation Council shall be paid, as a token mark of the Nation’s gratitude such gratuity by way of a terminal award as shall be determined by the Government under this Constitution which immediately succeeds the National Liberation Council.

(4) Any member of the National Liberation Council who retires from public service at any time before or after the coming into force of this Constitution shall be paid a pension equivalent to the gross emolument to which he was or is entitled at the time of such retirement and any such pension shall be in lieu of any other pension to which any such member may otherwise be entitled on his retirement from the public service.”

And, we entrenched these provisions in section 14(5) of the transitional provisions of the Constitution, 1969 to the effect that:

“(5) Notwithstanding anything in article 169 of this Constitution or in any other provision of this Constitution, until the death of all members of the National Liberation Council, Parliament shall have no power to amend this subsection or subsection (4) of this section.”

The day on which the government of the First Republic was overthrown was celebrated not only during the era of the military regime but also during the period of the civilian government (the Second Republic) in 1970 and 1971. Ironically, it took another illegitimate government to erase that day from our calendar of public holidays and to substitute its own day, ie 13 January 1972 as a public holiday. Of course, when that government was subsequently overthrown by another illegitimate government, 13 January ceased to be a public holiday; in its place was substituted 4 June 1979, the day on which the illegitimate government of Col Acheampong was itself overthrown. As if that was not enough, members of the legitimate First Republican Government which had violently been overthrown as well as functionaries or party activists of the party in power were disqualified from standing at elections for ten [p.191] years and from holding public offices, vide the Elections and Public Officers Disqualification Decree, 1969 (NLCD 332). From our conduct can we honestly say then that all overthrows of legitimate governments are bad, or that some are bad and some are good or that all are bad but some are worse? People have accepted overthrows of government as liberating them from the shackles of tyrannic regimes; as redeeming them from oppressive regimes or as defenders of their civic rights.

To my mind whether or not the day of an overthrow of a government should be celebrated as a public holiday is a matter for the people through their governments to decide: see article 1 (1) of the Constitution, 1992 which states:

“1.(1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.”

When the Constitution, 1992, speaks of We the People of Ghana it does not necessarily mean all the people; it could only refer to the majority who have accepted the Constitution. The “We the People of Ghana” in the preamble could only refer to the majority of the people! How could it include those who had been disqualified from taking part in active politics? When the majority have declared their intentions, it would be undemocratic to undermine that authority as this would amount to undermining the principle of democracy. The people act through the government. I think it would be wrong on the part of the courts to interfere with the exercise of that authority unless such exercise is inconsistent with or is in contravention of the Constitution. Such an interference would be in breach of the provisions of section 34 of the transitional provisions of the Constitution, 1992.

The celebration of 31 December as a public holiday is supported by the conduct of the people who voted back into power the very people who had illegitimately overthrown a properly constituted government. It is a confirmation of the trust they have in those who had violently or otherwise overthrown the legitimate government to defend the peoples’ rights. Only Parliament representing the people can validly erase the day for the celebration of the overthrow from the laws of Ghana. Article 35(1) the Constitution, 1992 provides that:

“35. (1) Ghana shall be a democratic state dedicated to the realization of freedom and justice; and accordingly, sovereignty [p.192] resides in the people of Ghana from whom Government derives all its powers and authority through this Constitution”

With regard to the use of public funds the celebration, moneys for public functions of state are provided for under an Appropriation Bill. Section 19 of the transitional provisions to the Constitution, 1992 provides:

The place to validly attack the bill is in Parliament. Provided the function is accepted as a public one by the government or for that matter, the people and, moneys have properly been allocated for that purpose, any outside cry against the use of that money may receive sympathetic reconsideration but would not invalidate the allocation.

I did not find the celebration of 31 December as a public holiday inconsistent with or in contravention of the letter or the spirit of the Constitution, 1992 or of any provisions therein. As was stated in Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 in the holding at 309, PC: “. . . it is not open to the court to go behind what has been enacted by the legislature and to inquire how an enactment has come to be made . . .”

It was for these reasons that I dissented.

DECISION

Judgment for the plaintiff.

D R K S

NEW PATRIOTIC PARTY v. GHANA BROADCASTING CORPORATION [1993-94] 2 GLR 354—393

SUPREME COURT, ACCRA

30 NOVEMBER 1993

ARCHER CJ, FRANCOIS, AMUA-SEKYI, AIKINS, EDWARD WIREDU, BAMFORD-ADDO AND CHARLES HAYFRON-BENJAMIN JJSC

Constitutional law—Political parties—Access to state-owned media—Nature of right—State obliged under article 55(11) to provide fair opportunity to political parties to present programmes to public by ensuring equal access to state-owned media—Meaning of “equal access”—State-owned media obliged by article 163 to grant fair opportunities and facilities for presentation of divergent views and dissenting opinions—Object of provision—Meaning of “fair”—Burden on state-owned media—Government formed by National Democratic Party (NDC)—Controversy over 1993 budget presented by government—NDC given two hours air-time by defendant state-owned media to defend budget—Defendant refusing request from opposition New Patriotic Party (NPP) for equal time to criticise budget—Whether defendant obliged to grant request—Constitution, 1992, arts 55(11) and 163.

Constitutional law—Freedom of speech—Responsibility of state-owned media—Article 163 granting citizen right to present divergent views and dissenting opinions on issues—State-owned media obliged to afford fair opportunities and facilities for exercise of right—Limitations imposed on exercise of right—Controversy between political parties over 1993 budget presented by government—Government formed by NDC Party—NDC permitted two hours by defendant state-owned media to defend budget—Request from opposition NPP for equal air-time to criticise budget—Refusal not based on grounds of limitation under article 164—Whether defendant’s refusal lawful—Constitution, 1992, arts 163 and 164.

Constitutional law—Constitution, 1992—Construction—Right to information—Mode of construction of Constitution—Obligation on all organs of state to uphold fundamental human rights—Citizens granted right to information—Defendant state-owned media established to secure information for citizens—Controversy between political parties over 1993 budget presented by government—Defendant giving government party two hours air-time to defend budget but refusing plaintiff opposition party request for same facility—Whether defendant’s action lawful—Constitution, 1992, arts 12(1), 17(4)(d), 21(1)(f), 33(5), 163 and 165.

Constitutional law—Constitution, 1992—Defence of—Constitution embracing framework to ensure democracy—Constitution prohibiting creation of one-party state—Whether denial of opportunity for expression of opposing views breach of Constitution—Controversy between political parties over 1993 budget presented by government—Defendant state-owned media permitting government party two hours air-time to defend budget—Defendant refusing request of plaintiff opposition party for same facility—Whether refusal lawful—Constitution, 1992, arts 3(1) and 33(5).

Constitutional law—Freedom of expression—Duty of state-owned media—Defendant [p.355] state-owned broadcasting corporation established to educate, inform and entertain citizens on broad national basis—Defendant insulated from governmental interference—Obligation on defendant to provide fair and equal opportunity for expression of all shades of opinion on issues—Controversy between political parties over 1993 budget presented by government—Government party given two hours air-time by defendant to defend budget—Refusal by defendant of same facility to plaintiff opposition party—Whether refusal lawful—Constitution, 1992, art 35(9)—Ghana Broadcasting Corporation Decree, 1968 (NLCD 226), ss 2(1)(b), 3(5)(c) and (11)(a) and 9(1)(c).

HEADNOTES

The plaintiff was a registered political party while the defendant is a statutory corporation established by the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) with the mandate to educate, inform and entertain the citizens of the country. On the presentation of the 1993 budget by the government, there were severe criticisms of its provisions by several persons including the plaintiff. In response to those criticisms the Minister of Finance on 23 and 24 January 1993 appeared on radio and television for over two hours to defend the budget proposals. The plaintiff therefore applied to the defendant to be given time on radio and television to also express its views on the budget proposals. The defendant however refused its request. Consequently, the plaintiff brought an action against the defendant for (a) a declaration that under articles 55(11) and 163 of the Constitution, 1992 the defendant, a state-owned media, had a duty to afford the plaintiff fair opportunities and facilities to present its views on the budget especially as those views diverged from those of the government or of the National Democratic Congress, the party which formed the government and which sponsored the appearance of the Minister of Finance; and (b) an order directing the defendant to afford the plaintiff equal time on television to present its views on the 1993 budget. In its defence the defendant denied that the appearance of the Minister of Finance was sponsored by the NDC, and further contended that in any case, it had a discretion in the matter and that since “equal opportunity” could not be equated to “equal time”, in its judgment it had already given the plaintiff adequate time on radio and television by reporting a news conference on the issue by the plaintiff’s presidential candidate in the presidential elections and also a panel discussion on the issue in which a member of the plaintiff took part. The court however found that (i) the two-hour appearance on radio and television by the Minister of Finance was indeed sponsored by the NDC; (ii) the news conference by the presidential candidate of the plaintiff was covered as part of a news bulletin and covered only a few minutes; and (iii) the panel discussion was taken off the screen in the middle of the discussion.

Held:

(1) (Archer CJ, Francois and Edward Wiredu JJSC dissenting in part) article 55(11) of the Constitution, 1992 defined with regard to political parties, both the object of state policy and the means to achieve it. The object was the provision of fair opportunity to all political parties to present their programmes to the public, and the means of achieving that was by ensuring that each party had equal access to the state-owned media.

[p.356]

“Equal access” meant the same or identical terms and conditions for gaining entry into the state-owned media for the purpose of presenting their political, economic and social programmes to the electorate and persuading them to vote for them at elections. That meant that the same time or space had to be given to each political party, large or small, on the same terms and the officers of the state-owned media had no discretion in the matter. But in a democracy the right of the individual to form or join a political party and of the parties to participate in shaping the political will of the people and to disseminate political, economic and social ideas and programmes were not rights which were enjoyed by the people only when elections were to take place. Article 163 of the Constitution, 1992 also set out the duties of the state-owned media in promoting free expression of views by obliging the state-owned media to grant fair opportunities and facilities for the presentation of divergent views and dissenting opinions. The word “fair” meant “free from bias” or “equal”. Accordingly, the combined effect of articles 55(11) and 163 of the Constitution, 1992 obliged the management and editors of the state-owned media to be impartial, showing neither affection for, nor ill-will towards, any particular group in the community, be it political, economic or social; their facilities being national assets, should be available to all. The state-owned media had no discretion in the matter since that would constitute the exercise of a censorship which could block avenues of thought and foreclose the citizens, right of choice contrary to article 162(2) of the COnstitution, 1992. Accordingly, since the defendant gave the National Democratic Congress two hours to air its views on the budget, the defendant was required by articles 55(11) and 163 of the Constitution, 1992 to grant the plaintiff equal time on radio and television to set forth its divergent views.

Per Charles Hayfron-Benjamin JSC. In my respectful opinion, the constitutional right of access to the electronic media lies with the political parties, the viewing public and listeners. Articles 55(11) and 163 of the Constitution, 1992 are amplifications of the fundamental human right of freedom of expression. That right of access is paramount in the order of things in our society. The defendant therefore has no right to determine who shall use the electronic media or who shall not. There is a constitutional duty imposed upon the defendant, which is a state monopoly, to so order and arrange its programme time as to ensure compliance with its letter and spirit. There must be equality of access and equal time for the articulation of divergent or dissenting viewpoints.

Per Archer CJ (dissenting in part). The plaintiff’s real constitutional trump card is article 163 of the Constitution, 1992. This article serves the interests of all manner of persons, namely individuals, group or body of persons incorporated and unincorporated. It applies also to political parties. In contrast, article 55(11) and (12) of the Constitution, 1992 is [p.357] restricted to political parties with special requirements for general and presidential elections. Words like “equal access” and “same amount of time and space” are used whereas article 163 of the Constitution, 1992 has no such words. The plaintiff can only succeed under article 163 of the Constitution, 1992.

(2) The rights conferred by article 163 of the Constitution, 1992 on the people were subject under article 164 of the Constitution, 1992 to laws that were reasonably required in the interest of national security, public order and public morality and for the purpose of protecting the reputations, rights and freedoms of other persons. Since the defendant had not relied on any such laws to justify its refusal to grant the plaintiff fair opportunities and facilities for presenting its views on the budget, it had breached the provisions of the Constitution, 1992 by its refusal.

(3) The Constitution, 1992 itself pointed the way to its liberal interpetation by indicating the spirit that should guide its construction. Thus in articles 165 and 33(5) of the Constitution, 1992 the courts were required not only to have regard to the written letter but also to adopt the known criteria which attached to the democratic process and were inherent in any democratic environment so as to ensure that the fundamental rights guaranteed under chapter 5 of the Constitution, 1992 were not curtailed. Again Parliament was enjoined under article 17(4)(d) of the Constitution, 1992 to ensure that the provisions of the laws it enacted were not inconsistent with the spirit of the Constitution, 1992. Furthermore, under article 12(1) of the Constitution, 1992 all the organs of government including the judiciary, executive and legislature were enjoined to respect and uphold the fundamental human rights. And article 21(1)(f) of the Constitution, 1992 granted all persons the right, inter alia, to information subject only to the qualifications and laws necessary in a democratic society. Accordingly, once the defendant, a media created as a public agency to secure for the citizens of this country information, rather withheld it contrary to the abjuration in articles 163 and 21(1)(f) of the Constitution, 1992 it wilfully violated the Constitution, 1992.

(4) (Archer CJ, Francois, Edward Wiredu and Bamford-Addo JJSC). The Constitution, 1992 under article 33(5) embraced a liberal framework that would include all possible shades of freedom not specifically or expressly mentioned but which were essential cogs to enhance the driving capacity of a truly free-wheeling democracy. The Constitution, 1992 in article 3(1) also declared the unconstitutionality of Parliament enacting any law to establish a one-party state. Those provisions were safeguards to preserve the integrity of the Constitution, 1992 and sustain democracy. Consequently, any acts not in accord with those aspirations would constitute steps in violation of the Constitution. In the result, a denial of opportunity for the expression of opposing views would amount to moves which might culminate in the creation of a monolithic government which [p.358] was only one step removed from a one-party state. Accordingly, any state agency which would foster a situation that would lead to the creation of a one-party state was seriously out of step with the spirit and constitutional realism, and it was the court’s constitutional duty in upholding the Constitution to strike down such tendencies towards a one party state or dictatorship. Since the action of the defendant, a state-owned media smacked of bias in favour of the National Democratic Congress and against the New Patriotic Party, it would be declared unconstitutional.

(5) The paramount objective of the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226), as spelt out in sections 2(1)(b) and 8(1) was to educate, inform and entertain on a broad national basis. And under section 3(5)(c) there was an attempt not only to ensure neutrality but also to insulate the corporation from governmental control in the quality of its board members. Thus under section 3(11)(a) of NLCD 226 partisan affiliations of the board members were forbidden. Furthermore, section 9(1)(c) of NLCD 226 provided facilities for the dissemination of a broad spectrum of political and varied viewpoints which were a clear desiderata. It was obvious therefore that NLCD 226 which established the defendant attempted to ensure that fair and equal opportunity was available for the expression of all shades of opinion to enable the citizenry of the country evaluate information on a broad kaleidoscope. Accordingly, the attempt of the defendant to foist on the rest of the citizenry its perceptions of what was or was not politically digestible infringed a fundamental right of the citizenry, especially since article 35(9) of the Constitution, 1992 under the Directive Principles of State Policy mandatorily required the State to promote among the people the culture of political tolerance. The defendant as a state agency would therefore not be allowed to subvert that goal.

CASES REFERRED TO

(1) Red Lion Broadcasting Co v Federal Communications Commission, 395 US 367; 80 S Ct 1794 (1969).

(2) Kahane v. Broadcasting Authority, Jerusalem Post LR 49 (1993).

(3) Palko v. Connecticut, 302 US 319 (1937).

(4) New York Times Co v United States (The Pentagon Papers Case), 403 US 713; 91 S Ct 2140; 29 L Ed 2d 822 (1971).

(5) Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC.

(6) Kuenyehia v. Archer [1993-94] 2 GLR 525, SC.

(7) CBS v Democratic National Committee, 412 US 94 (1973).

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a registered political party, against the [p.359] defendant, a state-owned broadcasting corporation for a declaration that by virtue of articles 55(11) and 163 of the Constitution, 1992 the defendant was obliged to afford the plaintiff fair opportunities and facilities to present its views, especially when they were different from those of the National Democratic Congress, the party supporting the government and that the refusal of the defendant to grant it equal time on television to present its views on the 1993 budget proposals of the government as it accorded the National Democratic Congress on 23 and 24 January 1993 was a violation and contravention of the Constitution, 1992; and an order directing the defendant to afford it equal time to present its views. The facts are sufficiently stated in the judgments of Francois, Amua-Sekyi, Aikins and Bamford-Addo JJSC.

COUNSEL

Peter Ala Adjetey (with him Sam Okudjeto, Nana Akufo-Addo, Afram Asiedu, Miss Gloria Akufo, Philip Addison, Alex Quaynor and William Addo) for the plaintiff.

Anthony Forson, Attorney-General (with him Mrs. Adusa-Amankwah, Chief State Attorney) for the defendant.

JUDGMENT OF ARCHER CJ

I have had the opportunity of reading the reasons embodied in the opinion of my brother Francois JSC and I agree with the reasons. However, by way of emphasis, I wish to add a few words.

First, I wish to stress that although the plaintiff relied on article 55 of the Constitution, 1992, I do not think that that article has any relevance to the action. One has to read the whole of article 55 of the Constitution, 1992 to appreciate its import. That article deals with the organisation of political parties, the right to vote, and the responsibility of the State and the state-owned media to provide opportunities to all political parties to present their programmes.

Article 55(11) and (12) of the Constitution, 1992 reads:

“(11) The State shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.

(12) All presidential candidates shall be given the same amount of time and space on the state-owned media to present their programmes to the people.”

In article 55(11) of the Constitution, 1992 the operative words are “fair opportunity to present programmes to the public” and “equal access to the state-owned media.” Programmes can be presented either through public [p.360] rallies or through the media owned by the State, ie newspapers, news agencies, radio and television. Programmes and manifestoes are usually launched and presented during elections and referenda.

Article 55(12) of the Constitution, 1992 clearly deals with presidential elections and the article is very stringent. The state-owned media is to give each presidential candidate the same amount of time and space for the presentation of each candidate’s programmes. It seems to me that article 55 of the Constitution, 1992 deals with an entirely different subject matter and has no application to the facts of the plaintiff’s case.

The plaintiff’s real constitutional trump card is article 163 of the Constitution, 1992 which states that: “All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.” This article serves the interests of all manner of persons, namely individuals, group or body of persons incorporated, and unincorporated. It applies also to political parties. In contrast, article 55(11) and (12) of the Constitution, 1992 is restricted to political parties with special requirements for general and presidential elections. Words like “equal access” and “same amount of time and space” are used whereas article 163 of the Constitution, 1992 has no such words. The plaintiff can only succeed under article 163 of the Constitution, 1992.

The other matter I wish to deal with is that between 1962 and 1966, this country was a one-party state. When the former National Liberation Council enacted the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) the council was planning a return to civilian rule under a multi-party system and therefore provided in paragraph 9 the following:

“9. (1) In its public service broadcasting, the Corporation is expected to provide for—

(a) Government pronouncements…;

(b) party political speeches dealing with the views and policies of the various political parties (when they come into being);

(d) matters of any kind (including religious services or ceremonies) representing the main stream of religious thought or belief in the country.

(2) In its broadcasting of the items mentioned in sub-paragraph (1) of this paragraph the Corporation shall allocate and apportion air-time equitably between the parties, points of view and religious bodies according to their respective claims upon the interest of [p.361] members of the public of Ghana.”

(The emphasis is mine.)

The substance in section 9(2) of NLCD 226 is the allocation and apportionment of air-time equitably between the parties. Equitably does not connote equality. It means fairness. NLCD 226 is an existing law and there is nothing in it which appears to be inconsistent with the present Constitution, 1992. If the present Constitution, 1992 had not been enacted, the plaintiff could have sued the defendant in the High Court for breach of statutory duty because the corporation has as one of its “output requirements” under paragraph 9(2) of NLCD 226 an obligation to allocate and apportion air-time equitably between the plaintiff and the other parties. Article 163 of the Constitution, 1992 is a constitutional reinforcement of the existing statutory responsibilities of the Ghana Broadcasting Corporation.

Finally, I wish to remark that at the time the plaintiff’s writ was issued, there was not in existence a National Media Commission. If there had been one, I would have insisted that the plaintiff’s complaint before this court should be referred to that the commission which has a constitutional function under article 167 of the Constitution, 1992 to take all appropriate measures to investigate, mediate and settle complaints made against or by the press or other mass- media including the state-owned media.

JUDGMENT OF FRANCOIS JSC.

On 22 July 1993 this court gave its ruling, with accompanying orders in the above matter, reserving its reasons to a later date. I now give my reasons.

In construing the provisions of the Constitution, 1992 the primary duty of the Supreme Court is to interpret the fundamental law. There is a presumption that there are no serious disagreements on the facts requiring straightening up or settling, before that major task is begun. The court’s endeavours consequently proceed untramelled by any considerations or distractions attendant on the accuracy of facts. The ideal was not obtained in this case.

The few but important facts in controversy appear in two paragraphs in the plaintiff’s claim. The plaintiff urged in paragraphs (3) and (4) of its statement of case, that on 23 and 24 January, 1993, the defendant-corporation gave media cover to a forum organised by the National Democratic Congress (NDC) “to justify the budget of 1993 presented by Dr. Kwesi Botchwey.” The plaintiff urged that the broadcast extended over a period of an hour and featured Dr Botchwey and prominent members of the NDC. The plaintiff complained that similar facilities were [p.362] denied the New Patriotic Party to disseminate its contrary views on the budget, and claimed this constituted a serious violation of its constitutional rights for which it sought redress.

The defendant-corporation denied the plaintiff’s averments at first, but by an amended defence filed on 7 July 1993, it urged that adequate opportunity had been granted the plaintiff to articulate its views.

The clear disagreement of the protagonists herein on the accuracy of the facts, led the learned Attorney-General to seek opportunity by way of adjournment to supply proof of the defendant’s stand. Unfortunately what followed was an innovative attempt to present fresh evidence which would have bogged down the court’s interpretative machinery and turned it into a fact finding and fact evaluating tribunal. The attempt consequently failed. Nevertheless, facts of which judicial notice could be taken, disclosed that Parliament had extended to the plaintiff a welcoming ear to ascertain its position on the budget. A scenario that was inconceivable and irrational if the plaintiff’s views had already been sufficiently aired.

A more serious fact that could not be glossed over, was the unceremonious withdrawal by the defendant of a programme in mid-air, so to speak, in which a spokesman for the plaintiff sought to present its stand on the budget. The act of withdrawing the programme was in itself condemnatory enough to expose the defendant’s lack of veracity and good faith and was at odds with the pleaded averments. It is obvious that facts controverted by the defendant bore no true relationship with the events on the ground.

The facts aside, the gravamen of the defence was the challenge to the plaintiff’s assertion of a constitutional entitlement to equal opportunity or facility for the dissemination of divergent views. Additionally, it was the defendant’s understanding of its national role, that exigencies in the nature of intervening important engagements had priority over any agreement with the plaintiff on air-time. An example was what transpired on 9 February 1993 when the agreed time allotted to the plaintiff to broadcast its statement on the budget was cavalierly cancelled.

Closely allied to this stance, and which was the crux of the defence, was the view that the granting of media facilities involved the exercise of a discretion which reposed solely in the defendant-corporation. Put differently, the corporation was claiming the exclusive right to determine what was appropriate for broadcasting and vigorously defending that position as being outside any constitutional remit.

Consequently, the issue for debate was whether the plaintiff was entitled under the new constitutional dispensation which the Constitution, 1992, the fundamental law, ushered, to demand that the defendant provide [p.363] air-time for the dissemination of its views on controversial national matters similar in extent and scope as was accorded the government spokesman in respect of the 1993 budget; and as a corollary, for the court to declare whether a failure to grant those facilities constituted a violation of the Constitution, 1992.

The plaintiff founded its contention under articles 163 and 55(11) of the Constitution, 1992. Article 163 of the Constitution, 1992 states: “All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.” (The emphasis is mine.) And article 55(11) of the Constitution, 1992 requires the state to “provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.” (‘The emphasis is mine.)

The plaintiff buttressed its stand with article 55(1) and (3) of the Constitution, 1992 which guaranteed the right to form political parties which should be “free to participate in shaping the political will of the people, to disseminate information on political ideas, social and economic programmes of a national character, etc.” While the whole of article 55 of the Constitution, 1992 deals with political parties and their programmes, article 163 of the Constitution, 1992 ensures the fair dissemination of divergent views. It is my view that article 55(11) of the Constitution, 1992 in the context of the current debate, lacks relevancy, being at best only illustrative of a schematic pattern in the new constitutional order, to ensure an equitable balance on the political campaign trail.

It seems clear, that the Constitution, 1992 spells out unambiguously a primary objective of making information readily available to allow for valued judgments from all the citizenry. This desired result, is only possible if there is a free ventilation of views, which the imperative “shall” in article 163 of the Constitution, 1992 places as a duty on all state media. Clearly, there is no discretion in the matter. To withhold this right, is an interference with the freedom of the people and a violation of the Constitution, 1992.

A contrary conclusion would mean a right given to persons, bodies or institutions, to exercise a censorship which could block avenues of thought and foreclose the citizen’s right of choice. Article 162(2) of the Constitution, 1992 forbids this. It emphatically states “….there shall be no censorship in Ghana.”

Some pedagogic sophist may argue that the imposition of a duty often has a correlated concommitant, namely a discretion in its discharge. This may be conceded to the extent that the ultimate duty remains unchanged [p.364] and the discretion, if indeed it qualifies as one, affects only the procedure or route by which the duty is to be accomplished. To argue that the discretion enables the corporation not to reject attempts to make it a party to crime or an accomplice to treasonable enterprises, or a conduit pipe for the dissemination of defamatory material, is to misapprehend entirely the constitutional injunction, for these are not left at large for the application of any discretion.

The Constitution, 1992 in article 164 clearly spells out essential limitations for the achievement of the democratic goal. It states that the freedoms are “subject to laws that are reasonably required in the interest of national security, public order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.” But to set the picture straight and, remove any ambiguity, it goes on in article 165 of the Constitution, 1992 to warn that the above exceptions should not “limit the enjoyment of any of the fundamental human rights and freedoms guaranteed under Chapter 5 of this Constitution.”

The issue really is not whether party A is allowed to score over party B, in a political broadcast; it is not a debating exercise. The issue is whether the people of this country have been given adequate opportunity to know and evaluate viable alternatives. The defendant, belonging to the state media, then has a positive duty to promote the dissemination of alternative views. If it fails in this duty and proceeds further to deny the articulation of alternative views, its transgression becomes twofold, since as a state media, and contrary to what was expressly required of it by the Constitution, 1992 it has refused to feed the citizenry of this country with all the facts and has mischievously denied the citizens the knowledge which was being offered on a silver platter.

During argument, counsel were invited to reflect on the constitutional imperatives that would sustain the citizen’s choice as against those designed to grant partisan advantage. I link this with what obtains elsewhere. It is pertinent to observe that in the comity of nations where the democratic order secures the highest place of honour in the social fabric, the freedom of exchanging information and ideas appears to occupy the noblest point in the social scheme and serves as an essential pivot.

Some random views expressed on this theme elsewhere, would not be out of place here. Justice White of the US Supreme Court said in Red Lion Broadcasting Co v Federal Communications Commission, 395 US 367 at 390 (1969):

“It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount … It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial here.”

The US Supreme Court is also credited with the following observation by Justice Barak of the Israeli Supreme Court in Kahane v Broadcasting Authority, Jerusalem Post LR 49: “Speech concerning public affairs in [p.365] Authority, Jerusalem Post LR 49: “Speech concerning public affairs is more than self-expression; it is the essence of self-government.” Justice Cardozo, an eminent jurist of the US Supreme Court stated in Palko v. Connecticut, 302 US 319 (1937): “of that freedom one may say that it is the matrix, the indispensable condition of nearly every other form of freedom.” The conclusion then is that debate cannot be stifled in a democratic society. This does not mean that freedom of speech should be extended to unbridled excesses. The loud licence of the market place has no acceptance here. There are constitutional safe-guards reflected in our laws to curb libel and other violations of the law as alluded to before. These should suffice. It is noteworthy the US Supreme Court should hold as stated by Justice Barak in Kahane v Broadcasting Authority (supra) at 52, that:

“A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others before hand. It is always difficult to know in advance what an individual will say and the line between legitimate and illegitimate speech is often so finely drawn that the risks of free wheeling censorship are formidable.”

Accordingly, the US Supreme Court declared in New York Times Co v United States (The Pentagon Papers Case), 403 US 713: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” The emphasis is mine. Those words should be observed by the state media as a constant guide, and constitute their creed and testament.

The excerpts from the decisions of the US Supreme Court are called from the Jerusalem Post Law Reports, 1993. While acknowledging my indebtedness, I would plead that the lack of adequate library facilities in this country would be attended to immediately to save us the humiliation of borrowing elsewhere at secondhand.

Before I turn the pages on this aspect of freedom of expression, a comment may not be out of place. People wielding excessive power often deflect criticism of their autocratic excesses with reflections on the impracticability of pursuing absolute freedom. They warn of anarchical results if pure, unalloyed freedom is sought. They are the apostles of the discipline that dictates that the enjoyment of freedom is always at a price; and only strictly regulated freedom with the surrender of a substantial portion of it, can nationally safeguard what remains for its full and wholesome enjoyment.

Alas, how often is falsehood dressed in plausible garb. The curbs and [p.366] fetters to freedom are well known. They have been expounded by philosophers in scholarly treatises through the ages. There is no warrant for contracting further the frontiers of freedom so as to suffocatingly imprison our natural birthright. The safeguarding of our national security, or of public order and public morality is restated in article 164 of the Constitution, 1992 and referred to before. The parameters should not be expanded outside the limits of the Constitution, 1992.

Turning to a practical and commonsense point of view, the free exchange of views is necessary to give the electorate an opportunity to assess the performance of the government in power as against the potential of an opposition in the wilderness. It keeps a government on its toes and gives the neutral, apolitic citizen an opportunity to make up his mind either to consign the disenchanted noises he hears around, to mere rabid rantings that proceed from electoral defeat or give it the evocative distinction of demonstrating the quality that unfortunately missed the boat through bad electoral judgment, and therefore deserving of a second chance at the next ballot. In a truly democratic environment, this testing ground is a sine qua non to the survival of a free, pluralist society.

The plaintiff makes an impassioned plea that in construing the provisions of the Constitution, 1992 we should observe the spirit and philosophy that animate it. Tuffuor v. Attorney-General [1980] GLR 637, CA sitting as SC is urged as the refreshing fount from which we should constantly and copiously drink.

In our judgment in Kuenyehia v. Archer [1993-94] 2 GLR 525, SC this court stressed the importance that the spirit of the Constitution, 1992 shared with the actual letter of the constitutional provisions, in the ascertainment of the legislative will and intent. If those sentiments are now belatedly’ appreciated, one can only sigh a welcome relief. It only underscores an eternal truism, that in the fullness of time, truth will prevail.

A constitutional document must be interpreted sui generis to allow the written word and the spirit that animates it to exist in perfect harmony. In the Kuenyehia case (supra) this aspect of constitutional interpretation was addressed at length. I find no need to go over the beaten track which would only overstretch this statement of reasons.

However, reference to stated objectives in the Constitution, 1992 must be made so that the emphatic pointers to its spirit, are not missed. I proceed therefore on this brief but necessary journey. The Constitution, 1992 itself points the way to its liberal interpretation. It illustrates from the horse’s own mouth, the spirit that should guide its construction. Thus in articles 165 and 33(5) of the Constitution, 1992 we are required not [p.367] only to go by the written letter, but to adopt as well, the known criteria which attach to the democratic environment, so that the fundamental human rights guaranteed under chapter 5 of the Constitution, 1992 are not curtailed.

Again in article 17(4)(d) of the Constitution, 1992 Parliament is enjoined when it enacts laws to take care that the provisions of its laws are not “inconsistent with the spirit of this Constitution.” Turning then to the fifth chapter of the Constitution, 1992 which deals with the fundamental human rights and freedoms, we note that the organs which must sustain the fresh, invigorating wind of freedom, are enjoined to respect and uphold fundamental human rights. The executive, legislature and judiciary, among others, receive this charge which is expressly stated in article 12(1) of the Constitution, 1992 as follows:

“12. (1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.”

(The emphasis is mine.)

In article 21(1)(f) of the Constitution, 1992, we note that:

“21. (1) All persons shall have the right to—….

(f) information, subject to such qualifications and laws as are necessary in a democratic society.”

It would seem therefore that where a media created as a public agency, to secure for the citizens of this country information, rather withholds it, contrary to the abjuration in articles 163 and 21(1)(f) of the Constitution, 1992, it is willfully violating the Constitution.

The measure of reprehensibility becomes more gravely acute when such suppression betrays a partisan motive. The Constitution, 1992 demands that a broad and liberal spirit of democratic pluralism should prevail in this country. It in effect accepts previous failures in the constitutional experiment and consequently attempts an all embracing liberal framework that would include all possible shades of freedom not specifically or expressly mentioned, but which are essential cogs to enhance the driving capacity of a truly free-wheeling democracy. The Constitution, 1992 pithily expresses this in article 33(5) as follows:

“(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not [p.368] specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.”

(The emphasis is mine.)

The framers of the Constitution, 1992 in their wisdom attempted to make the resurgence of a one-party state an impossibility. It declared the unconstitutionality of Parliament enacting any law to establish a one-party state: see article 3(l) of the Constitution, 1992. An attempt to abrogate or suspend the Constitution in whole or in part would be visited with the sanction of death for high treason: see article 3(3) of the Constitution, 1992.

My reading of the spirit of the Constitution suggests these as safeguards to preserve the integrity of the Constitution, 1992 and sustain democracy. Consequently, any acts which are not in accord with these aspirations, would constitute steps in the violation of the Constitution, 1992. A denial of opportunity for the expression of opposing views, inherent in a democracy, would amount to moves which may culminate in the creation of a monolithic government which is only one step removed from a one-party government. There is historical precedent of such a retrogressive descent. Obviously, any state agency which fosters the situation that would lead to the creation of a one-party state, is seriously out of step with the spirit and constitutional realism of today. It would be sailing too closely for comfort to the winds of a treasonable enterprise.

Homespun wisdom may not be out of place here. An incipient boil starts from the tiniest of pimples. The gargantuan size of some ailments which afflict our society today, had stealthily grown from small, and undetected beginnings. So in political life, be they revolutionary or evolutionary, except that in the former, speed is of the essence and the latter, restraint.

It is clear that the dictates of experience have compelled the Constitution makers to draw on the amplitude of our past history, to lay down strictures that would arrest the slightest deviations from constitutionalism. Manifestations that would have the potential of burgeoning into intractable evils which would ultimately undermine the Constitution, 1992 and toll the knell of the fourth brave democratic effort, must be placed under the judicial microscope.

It is the court’s constitutional duty in upholding the fundamental law to strike down tendencies towards a one-party state or a dictatorship, however minuscular the blot may first appear. This is in keeping with the spirit. Consequently, any act of the state-owned media that smacks of party bias or fits the description of unexamined adulation, would be the incipient pimple which this court must view with the gravest suspicion if [p.369] our duty as defenders of the Constitution, 1992 is to be honourably discharged.

In conclusion, I must comment on the defendant’s misappreciation of the licence which permits it to operate, ie the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226). One notices that a paramount objective of this legislation is to educate, inform and entertain on a broad national basis: see sections 2(1)(b) and 8(1) of NLCD 226. There is an attempt not only to ensure neutrality but to insulate the corporation also from governmental authority in the quality of the membership of its board: see section 3(5)(c) of NLCD 226. Partisan affiliations of board members is forbidden: see section 3(11)(a) of NLCD 226. The Constitution, 1992 in article 167(c) projects this in allowing the National Media Commission to breathe the air of independence into the state-owned media to ensure that they are insulated from governmental control.

Turning again to NLCD 226, facilities for the dissemination of a broad spectrum of political and varied viewpoints are a clear desiderata, and are provided for under section 9(1)(c) of NLCD 226. And in section 9(2) of NLCD 226 speeches expressing different points of view on matters of controversy, and an equitable distribution of airtime is prescribed.

It seems therefore, that long before the Constitution, 1992 came into existence, the authority which established or continued the existence of the defendant-corporation, attempted to ensure that fail and equal opportunity was available for the expression of all shades of opinion to enable the citizenry of this country to evaluate information from a general store house of knowledge, on a broad kaleidoscope. Consequently, any institution made up of citizens with equal rights and ostensibly shared ideals, which today arrogates to itself superior powers outside normal legal constraints, and outside the parameters of the Constitution, 1992 to foist on to the rest of the citizenry, their perception of what is or is not politically digestible, infringes a fundamental rights of the citizens of this country. That act would constitute a flagrant and naked usurpation of the citizen’s rights and a patent violation of the Constitution, 1992.

If under the Directive Principles of State Policy, in article 35(9) of the Constitution, 1992, the state is required mandatorily to promote among the people of Ghana the culture of political tolerance, what business has a state agency to subvert this goal! It is for the above reasons that I acceded to the prayers of the plaintiff on 22 July 1993.

JUDGMENT OF AMUA-SEKYI JSC.

Shortly before leaving office in January 1993 the government of the Provisional National Defence Council presented a budget statement for 1993. The presentation, which was carried on radio [p.370] and television, was made by the then Secretary for Finance, Dr. Kwesi Botchwey. On 23 and 24 January 1993 Dr Botchwey appeared again on radio and television and, for over two hours, engaged in a spirited defence of his budget proposals which had come under severe criticism from several quarters. His appearance was apparently sponsored by the National Democratic Congress, a political party of which he is a member. The plaintiff, a registered political party, demanded that it too be given time on radio and television to air its views. The defendant refused to do so. It has accordingly been brought to this court, and the reliefs sought are:

“(1) A declaration that:

(a) by virtue of article 163 and 55(11) of the constitution, 1992 the Ghana Broadcasting Corporation, as one of the state-owned media, has a duty to afford to the New Patriotic Party fair opportunities and facilities for presentation of its views especially when they are divergent from those of the government or of the National Democratic Congress, the party supporting the government;

(b) the refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993 budget, as accorded the National Democratic Congress on 23 January and 24 January 1993, is a violation and contravention of the Constitution.

(2) An order enforcing the provisions of the Constitution, by directing the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993 budget, as accorded the National Democratic Congress on 23 January 1993 and 24 January 1993.”

In its statement of case, the defendant denied that Dr. Botchwey’s, broadcast was sponsored by the National Democratic Congress. When in the course of the argument before us it was confronted with a report in the Peoples Daily Graphic of 26 January 1993 describing the occasion as such, they sought to change their position and put in a confession and avoidance in place of the unequivocal denial they had made earlier on. I am afraid, this reflects very badly on the character of the men we have at the helm of affairs at the defendant’s establishment. As public officers they ought to know that it is their duty to assist the court to arrive at the truth in this matter, not to obstruct it. By appearing to take sides in what [p.371] is essentially a dispute between two political parties, they demean their office and place the independence of their organization in jeopardy.

The provisions of the Constitution, 1992 with which we are concerned are articles 55 and 163. Article 55 of the Constitution, 1992 deals with political parties. It guarantees to the people of this country the right to form political parties and, to every citizen of voting age, the right to join a political party. It would be a breach of the Constitution, 1992 to deny to the people of this country, or to any citizen, any of these rights. The article goes on to confer on political parties, when duly formed, the right to participate in shaping the political will of the people, and to disseminate information on the political, economic and social programmes of the party. It is also entitled to sponsor candidates for election to Parliament and to the office of President. To make these rights meaningful and effective, article 55(11) and (12) provide as follows:

“(11) The State shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.

(12) All presidential candidates shall be given the same anoint of time and space on the state-owned media to present their programmes to the people.”

Article 55(11) of the Constitution, 1992 defines, with regard to political parties, both the object of state policy and the means to achieve it. The object is that of providing a fair opportunity to all political parties to present their programmes to the public, and the means of achieving this is by ensuring that each part has equal access to the state-owned media. Article 55(12) of the Constitution, 1992 is more specific and states that each candidate for the office of President shall be given the same amount of time and space on the state-owned media, to present his programme to the people. It is hardly necessary to draw attention to the fact that invariably candidates for the office of President are, sponsored by political parties and funded by them, and that the programmes they present to the people are those of their parties.

What, then, is the meaning of the words “equal access”? “Equal” means “same” or “identical”; “access” means “entry.” Therefore, “equal access” means the same or identical terms and conditions for gaining entry into the state-owned media for the purpose of presenting their political, economic and social programmes to the electorate, and persuading them to vote for them in both parliamentary and parliamentary and presidential elections. This means that the same time or space must be given to each political party, large or small, and, if fees are payable, that they should be the same for all. [p.372] The officers of the state-owned media have no discretion in the matter. The reason is simple enough; the state-owned media are national assets: they belong to the entire community, not to the abstraction known as the state; nor to the government in office, or to its party. If such national assets were to become the mouthpiece of any one or combination of the parties vying for power, democracy would be no more than a sham.

In a democracy, the right of the individual to form or join political parties, and of the parties to participate in shaping the political will of the people and to disseminate political, economic and social ideas and programmes are not rights which are enjoyed by the people only when elections are about to take place. They are inalienable rights which the Constitution guarantees for all and which the courts are required to protect. As far as our law is concerned, it is irrelevant that the party or its candidate secured only a handful of votes or none at all at the last elections: so long as it remains a registered political party it is entitled to be heard, and the Constitution, 1992 says that, as fat, as the state-owned media are concerned, it shall have equal access with any other political party.

One may ask, how is the state to ensure that all political parties have equal access to the state-owned media? I believe it can do so in two ways, one positively, and the other, negatively. Positively, by inserting in the instruments of incorporation of the state-owned media a requirement that they grant equal access to all political parties: negatively, by refraining from interfering in the day-to-day running of the media. Any complaints about discrimination would then be strictly a matter for the National Media Commission set up under article 166 of the Constitution, 1992.

Article 163 of the Constitution, 1992 sets out the duties of the state-owned media promoting the free expression of views. It states: “163. All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.” As with article 55(11) of the Constitution, 1992 both the policy objective and the means to achieve it have been defined. The objective is the presentation of divergent views and dissenting opinions, and the means, the granting of fair opportunities and facilities. The duty is placed fully and squarely on the editors and management of such media who, like those in charge of the privately owned ones, have been given a measure of protection from control or interference by government.

The word “fair” means “free from bias.”‘ It is sometimes synonymous with the word “equal.” What the Constitution, 1992 requires of the editors and management of the state-owned media is that they be impartial, showing neither affection for, nor ill-will towards, any particular group in [p.373] the community, be it political, economic or social. Their facilities being national assets, should be available to all. In the exercise of such discretion as they have under article 163 of the Constitution 1992, they are bound to have regard to article 296 of the Constitution, 1992 and regulations made thereunder. Any abuse or misapplication of the discretionary power given to them may be corrected by the National Media Commission or the courts.

The democratic tradition that divergent views and dissenting opinions be given free expression may be summed up in the words Tallentyre used to describe the attitude of Voltaire on the burning of Helvetius’ De l’esprit in 1759: “I disapprove of what you say, but I will defend to the death your right to say it.” History abounds with examples where those in authority were so sure they were right that they regarded dissent as subversive. The Reformation was preceded by the burning of heretics, and followed by the persecution of papists. 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.

Unlike the rights conferred on political parties and presidential candidates by article 55(11) and (12) of the Constitution, 1992, which are absolute rights, the rights conferred by article 163 of the Constitution, 1992 on the people are subject to laws that are reasonably required in the interest of national security, public order, and public morality, and for the purposes of protecting the reputations, rights and freedoms of other persons. The defendant has not relied on any such laws to justify its refusal to grant the plaintiff fair opportunities and facilities for presenting its views on the budget. What it has said is that it has a discretion in the matter and that in its judgment it has already given the plaintiff adequate time on radio and television. It says that it reported a news conference by the party’s candidate at the presidential elections, but as everyone knows this was part of a news bulletin and lasted only a few minutes. It also says that a member of the party took part in a panel discussion on the budget, but, again, as everyone knows, representatives of the governing parties were on hand to defend the proposals and, in any case, the programme was taken off the television screen in the middle of the discussion. Compared to Dr Botchwey’s monologue, the plaintiff has had hardly any time at all on radio and television to present its views.

I conceive it to be our duty to tell the defendant in plain terms that even under article 163 of the Constitution, 1992 it is not free to choose which opinions shall be given a hearing. The law is that all shades of opinion must be given a fair hearing. It is a misconception to see itself as all adjunct of a political party or as agents of the government.

[p.374]

I am of the opinion that the plaintiff has made out an unimpeachable case. Having given the National Democratic Congress two hours to air its views on the budget, the defendant is required by article 55(11) of the Constitution, 1992 to grant the plaintiff equal time on radio and television to set forth its divergent views.

JUDGMENT OF AIKINS JSC.

It is one of the charms of constitutional rule that every now and then a suit instituted in a court of competent jurisdiction can threaten alleged abuse of constitutional provisions very much cherished by the people in whose name and for whose welfare the powers of government are to be exercise in a manner conducive to peaceful coexistence of the entire populace of the community, more especially people of a third country having divergent political views in an unfolding political, economic and social development. So it was in February this year when the New Patriotic Party, one of the lading political parties in this country, brought before this court the issue as to whether the Constitution, 1992 enjoins a duty on the Ghana Broadcasting Corporation to afford all political parties fair opportunities and facilities for presentation of their divergent and dissenting opinions to the public by ensuring equal access to the state-owned media under its control.

On 22 July 1993 this court unanimously granted the reliefs sought by the plaintiff, and reserved its reasons. I now proceed to give my reasons for concurring with my brothers and sister in granting the said reliefs. Shortly before handing over to the new regime of the Fourth Republic the government of the Provisional National Defence Council presented to the people of this country the 1993 budget. On 23 and 24 January 1993 the defendant was alleged to have broadcast to the general public, through the medium of television, a recording of a forum organized by the National Democratic Congress (NDC) to justify the budget. In pursuit of its constitutional rights, the plaintiff is said to have addressed a letter to the director of television of the defendant requesting these same media facilities to be made available to them to ventilate the party’s divergent views and comments on the 1993 budget. Subsequent to this a symposium was organized by the plaintiff on 9 February 1993 at about 4 pm at the premises of the Young Mens’ Christian Association (YMCA), Asylum Down, Accra. It was expected that the defendant having agreed to record the symposium, would turn up, but in the event it failed to honour the agreement. It is the case of the plaintiff that:

“the failure or refusal of the defendant to record and broadcast by [p.375] television the symposium is a violation and contravention of the Constitution, 1992, specifically article 163 thereof, which provides that all state-owned media should afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions on their media.”

As a result the plaintiff is seeking a declaration that:

“(a) by virtue of articles 163 and 55(11) of the Constitution, 1992 the Ghana Broadcasting Corporation, as one of the state-owned media, has a duty to afford to the New Patriotic Party fair opportunities and facilities for presentation of its views, especially when they are divergent from those of the government or of the National Democratic Congress, the party supporting the government;

(b) the refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993 budget, as accorded the National Democratic Congress on 23 January 1993 and 24 January 1993, is a violation and contravention of the Constitution.”

and an order enforcing the provisions of the Constitution, 1992 by directing the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993 budget as accorded the National Democratic Congress on 23 and 24 January 1993.

Nana Akufo-Addo, one of the learned counsel appearing for the plaintiff, argued that in the context of article 55(11) of the Constitution, 1992, fairness means equality for all political parties and that this is stated in clear, unambiguous and unequivocal terms. He submitted that the Constitution, 1992 envisaged, democratic state in which all political parties are allowed to express their individual and divergent opinions on any issue prevalent in the country, a situation which was not only portrayed by the framers of the Constitution, 1992 but also indorsed by the sovereign will of the people of this country which they voted massively for the Constitution, 1992. However, he expressed regret that the converse is what prevails in this country whereby the views of a functionary of the ruling party is highlighted in the media while those of the opposition are shelved into total oblivion.

Counsel further stressed that article 162(1), (2) and (4) of the Constitution, 1992 which deal with the freedom and independence of the media must be read in the context of article 55(11) of the Constitution, 1992 with respect to fairness, and submitted that the media as the principal [p.376] agent for maintaining the political order of this country should not be controlled by the party in power or the government, otherwise the other political parties will gradually be phased out. In view of the foregoing, counsel submitted, the opposition has an automatic right of reply as far as the recording of the forum organised by the National Democratic Congress to justify the budget is concerned.

In reply to these submissions, the Attorney-General argued that by the combined effect of articles 55(11) and 162 of the Constitution, 1992, the Ghana Broadcasting Corporation has a discretion in determining its modus operandi, and that equal opportunity could be equated to equal time. He submitted that the suit is frivolous and deserves to be dismissed. At this stage the Attorney-General got himself in a bad fix and inextricably entangled by a series of questions flowing from the bench. He was unable to state precisely what time was given to the New Patriotic Party to air its views on the budget, as against the two hours allocated to the National Democratic Congress on the television to defend the budget. He heaved a sigh of relief, when the president of the court came to his rescue by granting him adjournment till the following day to put his house in order. This quickly brought the leading counsel for the plaintiff to his feet to protest that the adjournment was strange. But he was overruled.

On the next adjourned date the Attorney-General attempted to move the court to amend the defendant’s statement of case under rule 49 of the Supreme Court Rules, 1970 (CI 13) but this did not find favour with the court as the proposed amendment sought to set up an entirely new case for the defendant especially at a time when the plaintiff had closed its case without calling any witness. Leading counsel for the plaintiff had urged that since by the proposed amendment the defendant had told a lie, it should not be allowed to enjoy the discretion of the court in its favour.

The Constitutions of this country dating as far back as 1969 contain provisions that ensure freedom of expression of the individual, ie “freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.” Provisions are also made to ensure that persons responsible for any national medium, for the dissemination of any kind of information to the public afford equal opportunities and facilities for the representation of opposing or differing views: see article 22(1) and (2) of the Constitution, 1969; and article 28(1) and (2) of the Constitution, 1979. The same basic framework is contained in the current Constitution, 1992. Article 162(1) and (4) of the Constitution, 1992 guarantees the freedom and independence of the media, and protects editors and publishers of newspapers and other institutions of mass media from control or [p.377] interference by the government as well as any harassment or punishment for their editorial opinions and views, or the content of their publications. These are the outcome of the cogent and edifying report of the Committee of Experts that formed the basis of the constitutional proposals of the Consultative Assembly. The committee aware of the fact that there was a direct governmental (ministerial) interference in or control of the operations of the press, submitted in paragraph 188 of its report: “…. the public sector media financed by public taxes must operate in such a way that they truly reflect the diverse shades of public opinion existent in the country as a whole.” It continued:

“Editors and reporters are appointed by the Ministry of Information, and they see themselves as civil servants and feel constrained in carrying out their professional function consistent with the highest professional standards possible. This ministerial power of appointment and dismissal of reporters and governmental interference in media activities have greatly contributed to the erosion of the freedom and independence of the press and media in Ghana.”

And “to reverse this erosion, and ensure the growth and strengthening of press and media freedom and independence in the Fourth Republic” the committee recommended an independent Press Commission to be set up to perform the functions hitherto discharged by the Minister of Information with respect to the public sector press. During the course of debate on this issue a number of the members of the assembly echoed the sentiments of the committee. One or two comments from the official Report of Proceedings of the Consultative Assembly, 26 November 1993, pp 983 and 997 will suffice:

“. . . we want to give all kinds of freedom to the Press but at the same time we want them to be controlled and also to be responsible … So it is the courts which have the power to control the media and not the Government or the politicians”,

and

“But the state-owned media since it is publicly owned must seek to protect the interest of the generality of the public so that all types of views or divergent views must find expression in the public media because they are all members of the public and it is not to be exclusive propagation of the views of the Government.”

Indiscriminate control of the mass media by the government of the day [p.378] may constitute a serious obstacle to the full realisation of the objectives of the media in achieving its freedom and independence which is effectively guaranteed by the Constitution, 1992.

The defendant did not seem to have an effective answer to the contention of the plaintiff that the Ghana Broadcasting Corporation refused to afford the New Patriotic Party equal time on the television to present its views of the 1993 budget as it accorded the National Democratic Congress. In fact under section 9 of the Ghana Broadcasting Corporation Decree, 1968, (NLCD 226), which created the defendant-corporation, the corporation is expected to allocate and apportion air-time to party political speeches dealing with the views and policies of the various political parties, and speeches expressing different points of view on matters of controversy, equitably between the parties according to their respective claims upon the interest of members of the Ghanaian public. The combined effect of articles 55(11) and 163 of the Constitution, 1992 enjoins on the defendant the duty to afford to the New Patriotic Party fair opportunities and facilities for presentation of its views, and in this respect it is my view that the defendant has no discretion to operate in any manner it deems fit as the Attorney-General seems to urge before us. How can the populace boast of effective political pluralism when some institutions refuse, or think they are entitled to refuse, to abide by clear constitutional provisions and hide behind the concept of discretion in situations where it is abundantly clear that they brave no right to exercise any discretion in the matter? I think the Attorney-General rightly abandoned this inept theory of discretion. Selective responses to constitutional norms in violation of clear and literal meaning of the Constitution, 1992 to suit particular whims and caprices will definitely discredit the noble cause of uncontaminated democratic principles and constitutional development to which we are all committed. The courts are in duty bound to respond to any violation of the objectives of our constitutional era, and the welfare of the Ghanaian public is the sole concern and motivation of the courts.

The responsibility of the media must be matched by comparable support by the government for the realisation of the political, economic and social rights of the parties in opposition. The dissemination of divergent views of all parties must be encouraged, as well as the interdependence of such views.

Article 163 of the Constitution, 1992 is clear and unambiguous in its language. It says: “163. All state-owned media shall afford fair opportunities and, facilities for the presentation of divergent views and dissenting opinions.” The responsibility of state-owned media whereby they are obligated to afford fair opportunities and facilities for the [p.379] presentation of divergent views and dissenting opinions must be effectively brought into focus so that all political parties are provided fair opportunities to present their programmes to the public by being given equal access to the state-owned media. The courts must not only condemn any practice of discrimination, but also insist on the observation of the principle of fair opportunity and equality of access to the media. The media is the pivot of public information, and through them the people must be apprised of economic and social issues of the day by the political parties without any control of one party over the other in the context of enjoying more privileges under the Constitution, 1992. A party in government must not be held to enjoy absolutistic power over the state-owned media.

It is necessary for Ghanaians to realise that in the governance of a country there is an alternative point of view to be canvassed. Equity requires that in all these things the opposition should be given as much attention within the framework of the political scenario. If the people are to be given opportunity to decide on the basis of some of the analysis contained in the Provisional National Defence Council or the National Democratic Congress budget statement, the opposition must have equal access and equal opportunity to put their side of the opinion across. Good budget is the life-blood of the economy of a country, and in a third world country like ours a good budget will lead to successful investment growth that will in turn buttress its infrastructure in good linkage between the local businessman and his foreign counterpart. A good economic climate will encourage the business entrepreneurs both local and foreign to structure their combined skills for the benefit of the common man at the grass root. That is the more reason why the budget must be subject to scrutiny by both the party in power and those in opposition. If there is equal access for these parties to the state print and electronic media the common people who hold the sovereignty of Ghana and in whose names and for whose welfare the powers of government are to be exercised in accordance with the Constitution, 1992 will become more informed of the divergent views of the parties on this all important subject. This will nurse a stable democracy and an independent judiciary to protect the property and civil rights of the people with a view to providing intelligent and competitive work-force and rehabilitation of the essential elements and operations of this country.

It is for the foregoing reasons that I found myself in full agreement with my learned brothers and sister that the plaintiff succeeds and that judgment should be given in its favour and the reliefs sought granted.

[p.380]

JUDGMENT OF EDWARD WIREDU JSC

I have had the advantage of reading before hand the reasons just read by my brother Francois JSC in support of the conclusions and the orders made by this court on 22 July 1993.

I am of the considered view that the reasons as read by him, ably and comprehensively touch and answer all matters in controversy and raised for consideration in this action between the parties that I am in entire agreement with him.

I do not, therefore intend to add or contribute anytime to this except to concur in his reasoning which I do accordingly.

JUDGMENT OF JOYCE BAMFORD-ADDO JSC

I agree with the reasons given by my brother Francois JSC for the following reasons: The plaintiff, a political party, has invoked the original jurisdiction of the Supreme Court under article 2(1)(a) of the Constitution, 1992 and is asking for a declaration to the effect that:

“(a) by virtue of article 163 and 55(11) of the Constitution, 1992 the Ghana Broadcasting Corporation as one of the state-owned media, has a duty to afford to the New Patriotic Party, fair opportunities and facilities for presentation of its views, especially when they are divergent from those of the government or of the National Democratic Congress (NDC) the party supporting the government; and

(b) the refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party ‘equal time’ on television to present its views on the 1993 budget as accorded the National Democratic Congress on 23 January 1993 and 24 January 1993, is a violation and contravention of the Constitution, 1992″…

The plaintiff is also asking for an order enforcing the provisions of the Constitution, 1992 by directing the Ghana Broadcasting Corporation to afford the New Patriotic Party, “equal time” on television to present its views on the 1993 budget as accorded the National Democratic Congress (NDC) on 23 and 24 January 1993. The defendant is a state-owned corporation established by the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) to undertake, inter alia, sound and television broadcasts to the general public.

The facts as contained in the statement of the plaintiff’s case, are briefly that on 23 and 24 January 1993 the defendant, through television, broadcasted to the general public a recording of a forum organised by a political party, the National Democratic Congress (NDC), to justify the budget of 1993 presented by Dr Kwesi Botchwey. On each occasion the [p.381] broadcast lasted over one hour and featured not only Dr Kwesi Botchwey but other prominent members of the NDC. The plaintiff in pursuit of its constitutional rights wrote to the director of television on 26 January 1993 requesting the same media facilities of the defendant to be also made available to the New Patriotic Party in order to ventilate the party’s divergent views and comments on the said budget, as had been made available to Dr Kwesi Botchwey for the National Democratic Congress, but the defendant having agreed to record a symposium to be organised on 9 February 1993 by the New Patriotic Party failed to do so. That up till the time of the hearing the defendant, the Ghana Broadcasting Corporation, had failed in its constitutional duty under article 163 of the Constitution, 1992 to afford the New Patriotic Party “fair opportunities and facilities” for the presentation of divergent views on the 1992 budget and that this is a violation and contravention of the Constitution. 1992, specifically article 163 thereof.

The defendant, represented by the Attorney-General denied that the, plaintiff is entitled under the Constitution, 1992 to be accorded by the defendant the same amount of television time as was given to the National Democratic Congress and argued that in any case the New Patriotic Party as well as various groups and individuals had already been afforded “fair opportunities” for the presentation of divergent views and, dissenting opinions on the 1993 budget. The defendant referred to a press conference held on 5 February 1993 by the opposition parties at which the presentation on behalf of the New Patriotic Party was undertaken by the plaintiff’s presidential candidate, Professor Adu-Boahen, and also to a TV programme “Talking Point” carried on television on 17 January 1993 as well as to another programme on 22 January 1993 in which the Trade Union Congress criticised the 1993 budget and other programmes. According to the defendant, the Ghana Broadcasting Corporation had exercised its discretion in accordance with the constitutional requirements for affording “fair opportunities and facilities” to the plaintiff, and therefore the plaintiff was not entitled to any of the reliefs sought.

The issue to be decided by this court is whether on the facts, the defendant is in breach of article 163 of the Constitution, 1992 or not. It is therefore necessary to find the meaning of this article. In this exercise, article 163 of the Constitution, 1992 cannot be read in isolation it must be read together with articles 21 and 55(3) and (11) of the Constitution, 1992 so as to arrive at the correct interpretation. The plaintiff’s counsel, Nana Akufo-Addo in his submissions invited us to interpret article 163 of the Constitution, 1992 in accordance not only with the letter but also with the spirit of the Constitution and cited the case of Tuffour v. Attorney-General [p.382] [1980] GLR 637, CA sitting as SC. In that case, Sowah JSC (as he then was) stated as to the manner of interpreting the provisions of the Constitution, thus:

“We start by reminding ourselves of the major aids to interpretation bearing in mind the goals that the Constitution intends to achieve. Our first duty is to take the words as they stand and to give them their true construction having regards to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words their appropriate construction according to the context…”

This indeed is the proper way of interpreting the Constitution, 1992 which I shall adopt. It would be convenient here to set out in full the provisions of articles 21(1)(a), 55(3) and (11) and 163 of the Constitution, 1992 since these are the main provisions upon which the construction of article 163 of the Constitution, 1992 depends:

“21. (1) All persons shall have the right to—

(a) freedom of speech and expression, which shall include freedom of the press and other media…

55. (3) Subject to the provisions of this article, a political party is free to participate in shaping the political will of the people, to disseminate information on political ideas, social and economic programmes of a national character, and sponsor candidates for elections to any public office other than to District Assemblies or lower local government units.

(11) The State shall provide fair opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.

163. All state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and dissenting opinions.”

(The emphasis is mine.)

It is important to ascertain the rationale behind the provisions of article 163 of the Constitution, 1992 as well as the intent of the framers of the Constitution, 1992 and the mischief that was sought to be remedied. These issues were discussed in the expert’s report on the Proposals for a Draft Constitution of Ghana.

In chapter 6 dealing with the freedom and independence of the media the committee stated at pp 84-86, paras 182, 186 and 188 as follows:

[p.383]

“182…. It is through responsible and independent media that objective information is disseminated, different and opposed views are presented and shared, enlightened public opinion is formed and political consensus mobilized and achieved…

186….. The public must, therefore, be guaranteed the right to know, the right of access to information, as a basic human and constitutional right. Freedom of the press and expression also means that any citizen who has anything to say about national affairs should have access to the public sector mass-media, limited only by practical consideration of space and time, and by the existing laws of sedition, criminal libel and those protecting privacy etc.

188. Given the above considerations, the public sector media financed by public taxes must operate in such a way that they truly reflect the diverse shades of public opinion existent in the country as a whole…..”

These objectives led to the experts’ recommendation in Appendix F of their report at p. 256 which deals with the freedom and independence of the media. The following suggested proposal for incorporation in the draft Constitution for Ghana on this issue is contained in clause 6(l):

“6. (1) State-owned media for the dissemination of information to the public shall afford equal opportunities and facilities for the presentation of opposing or differing views. Dissenting opinions may be freely expressed in such media.”

(The emphasis is mine.)

The measure of opportunity to be afforded to all political parties according to the experts is equal opportunities and facilities in the presentation of opposing or differing views, in the state-owned media on matters of national character. In the same vein at page 265 of the said report the Committee of Experts proposed for incorporation in the draft Constitution the following provisions under political parties: “(13) the State shall provide equal opportunity to all political parties to present their programmes to the public by ensuring equal access to the state-owned media.’ (The emphasis is mine.)

Here also “equal opportunity” was indicated. These recommendations undoubtedly gave rise to the formulation of article 163 of the Constitution, 1992. Having identified the raison d’etre of article 163 of the Constitution, 1992, I would now consider the meaning of words used therein and the intended effect of this article, taking into c onsideration the context in which the appear.

[p.384]

Article 163 of the Constitution, 1992 contains the words “fair opportunities and facilities” instead of the “equal opportunity” recommended by the experts in their report. But in article 55(11) of the Constitution, 1992 the words “fair opportunity” therein used as defined, namely that “fair opportunity” is achieved by ensuring “equal access” to the state-owned media by all political parties where presenting their programmes to the public, and this of course includes the presentation of divergent views on matters of national character. Therefore if in article 55(11) of the Constitution, 1992 fair opportunity is achieved by ensuring equal opportunity or access, then it follows that fair opportunities in article 163 of the Constitution, 1992 should mean the same thing, ie equal opportunity, especially where both articles deal with similar matters and having regard also to the context in which the words appear.

This is not only a correct mathematical equation, but it is also a presumptive canon of statutory interpretation that generally, the same words bear the same meaning in the same statute. This presumption is of course rebuttable when the legislature clearly intended a different meaning for the same words. However, in this case there is no reason for holding that a different meaning was intended for the same words used in the Constitution, 1992 and it is my opinion therefore that the word “fair” used in article 163 of the Constitution, 1992 should be interpreted to mean “equal” as indicated in article 55(11) of the Constitution, 1992 and I so hold.

But this is not all, I draw support for my said conclusion from the recommendations of the experts’ reports referred to above and also from article 22(2) of the Constitution, 1969 which states:

“(2) Any person responsible for any national medium for the dissemination of any kind of information to the public shall afford equal opportunities and facilities for the representation of opposing of differing views .”

As well as article 28(2) of the Constitution, 1979 which states:

“(2) A person responsible for a state-owned medium in for the dissemination of any kind of information to the public shall afford equal opportunities and facilities for the representation of opposing or differing views.”

Both these constitutional provisions stipulated that equal opportunities and facilities should be given by the state-owned media for the presentation of opposing and differing views. Considering the fact that the Constitution, 1992 is based largely on the Constitution, 1979, there is no valid reason [p.385] for supposing that the Constitution, 1992 was meant to depart from the Constitution, 1979 on this issue.

The Attorney-General, appearing for the defendant, in his submissions argued that the word “fair” in article 163 of the Constitution, 1992 should be interpreted to mean “reasonable” and that what is reasonable depends on what the Ghana Broadcasting Corporation thinks is reasonable. This argument is not only untenable for the reasons given above, but also for this reason, namely that since the word “shall” used in article 163 of the Constitution, 1992 imposes a mandatory, not permissive duty on the Ghana Broadcasting Corporation, the Ghana Broadcasting Corporation has no discretion in the performance of its constitutional duty of mandatorily affording equal opportunities to all parties to present divergent and dissenting opinions to the public on the state-owned news media: see section 27 of the Interpretation Act, 1960 (CA 4) where it is stated that the word “shall” is mandatory and therefore excludes any question of discretion.

Further, to accept the Attorney-General’s submission that “fair” in article 163 of the Constitution, 1992 should mean what the Ghana Broadcasting Corporation thinks is reasonable, would result in an absurdity and create difficulties. It would mean that the Constitution, 1992 having granted the unqualified right of free speech and equal opportunity to all political parties to present divergent views and programmes to the public on matters of national character in the state-owned mass media, would at the same time curtail or derogate from this right by giving the Ghana Broadcasting Corporation the power to decide how the parties should exercise their right, even though the Constitution. 1992 requires that equal opportunity should be given to each party. In any case, what would be the criteria to be used by the Ghana Broadcasting Corporation in deciding what is reasonable? The Attorney-General’s suggested construction of the word “fair” in article 163 of the Constitution, 1992 would lead to rancour and confusion among the various political parties and embroil the Ghana Broadcasting Corporation in unnecessary and acrimonious controversy where allegations and counter allegations of favouritism and mala fides would be levelled against the corporation from all sides. Such an unfortunate result is surely not what the framers of the Constitution, 1992 intended, having regard to its spirit.

I believe that this is possibly the reason why the framers of the Constitution, 1992 in their wisdom provided “equal” not “reasonable” opportunities to all parties. The interpretation I have put on the word “fair” to mean “equal” seems to me to accord with good sense as well as with the true intent and spirit of the Constitution, 1992. It is also consistent with [p.386] paragraph 9(1)(b) and (c) of the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) which requires the Ghana Broadcasting Corporation to allocate and apportion air-time equitably between political parties when broadcasting their speeches, or expressing different points of view on matters of controversy. Counsel for the plaintiff has asked us to apply the maxim “equality is equity” and to say that equitable air-time mentioned in paragraph 9(2) of NLCD 226 means equal time. I have no reasons for disagreeing with him on this issue since there is no other indicated basis for apportioning air-time under paragraph 9 of NLCD 226.

Even though the functions required to be performed by the Ghana Broadcasting Corporation are multifarious, according to NLCD 226, the Ghana Broadcasting Corporation is still under a mandatory constitutional duty to provide “equal” opportunities and facilities to all political parties, to enable them to present their divergent views to the public on matters of national character. As to the specifics of when and how to afford the parties the equal opportunities and facilities, the matter is best left to the Ghana Broadcasting Corporation to handle, having regard to practical considerations of space and time.

It is to be noted that in the plaintiff’s writ the declaration sought in paragraphs (1)(b) and (2) (set out in full earlier on in this judgment) mentioned “equal time”, but “equal time” is not the same as “equal opportunity” and the New Patriotic Party is entitled not to “equal time” as envisaged under article 55(12) of the Constitution, 1992 which deals with presidential candidates but to “equal opportunity” under article 163 of the Constitution, 1992.

It is for these reasons that I also agree with my brothers that the plaintiff is entitled to the declaration sought in the writ with the variation that the New Patriotic Party is entitled to “equal opportunity” but not “equal time” as stated in paragraphs 1(b) and 2 of the writ.

JUDGMENT OF HAYFRON-BENJAMIN JSC.

I have had the benefit of reading beforehand the very instructive and able opinion contributed by my learned and respected brother Francois JSC and the equally erudite contributions of my learned and respected sister and brethren in support of the unanimous conclusions which we arrived at in this case on 22 July 1993 and I agree entirely with most of the reasons given in those opinions and the views which they have expressed concerning the very important issues raised by the plaintiff’s writ and statement of case. I am nevertheless of the view that I ought to express myself on the principal issue involved which is in a real sense concerned with the fundamental human freedom of expression as enshrined in article 21(1)(a) of our [p.387] Constitution, 1992 which reads:

“21(1) All person shall have the right to—

(a) freedom of speech and expression, which shall include freedom of the press and other media.

The fact that the plaintiff has founded its plaint on the twin articles of the Constitution, 1992—that is to say articles 163 and 55(11)—does not detract from the nature of the complaint.

The defendant does not deny that the plaintiff is a political party which according to its statement of case “is a corporate body duly registered under the laws of the Republic of Ghana”. The initial bone of contention between the parties was, however, the denials of the central issue in the plaintiff’s case that on 23 and 24 January 1993 through the medium of the television, the defendant had given the representative of its rival political party—the National Democratic Congress—two occasions to broadcast its views on the 1993 budget lasting on each such occasion “over one hour, and featured not only Dr Kwesi Botchwey, but other prominent members of the National Democratic Congress.” The defendant stated as follows in its statement of case:

“(2) The defendant denies paragraphs (3) and (4) of the statement of the plaintiff’s case,

(3) In further answer to paragraphs (3) and (4) of the statement of the plaintiff’s case, the defendant says that on or about 23 January 1993, the Ministry of Information organised a forum for the Acting Minister for Finance and Economic Planning to explain the 1993 budget to the public.

(4) The defendant gave coverage to the said programme on radio and television to afford opportunity for the dissemination and education of the public on the policies and actions of the government as is required under the defendant’s establishment Decree, ie the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226).

In support of his client’s case Nana Akufo-Addo, counsel for the plaintiff sought to support his contention that indeed the so-called forum was a party political broadcast on behalf of the National Democratic Congress. Counsel referred to the editorial comment in the state-owned newspaper—The People’s Daily Graphic of 26 January 1993. The editorial comment stated unequivocally that the forum was indeed organised in Accra “by the National Democratic Congress for the Acting [p.388] Minister of Finance and Economic Planning.” The editorial went further on to reveal that the said forum was recorded and played back on television in which “Dr Botchwey was at his brilliant best.” With this and other arguments which, as I have said, have been ably discussed by my learned sister and brethren the plaintiff rested its case.

The Honourable Attorney-General in reply, having referred to the Constitution, 1992 which says that “fair opportunity” should be given to all political parties, submitted that in his view there appeared to be some confusion between the expressions or phrases “fair opportunity” and “equal time”. He further submitted that upon a true construction of the expressions mentioned above, the defendant had a discretion in the matter of the allocation of programme time to all political parities. Of course what these expressions mean have by the respective opinions which have just been read, been put beyond any shadow of doubt. It will therefore be unnecessary for me to add thereto. Suffice it to say that in the course of his submissions the Attorney-General conceded that in the matter of complying with constitutional requirements to provide “fair opportunities” and “equal time” the defendant had no discretion to exercise.

By way of parenthesis, I say I was interested in what transpired after these submissions. For soon thereafter the Attorney-General requested for an adjournment to enable him to present us with some documents or evidence. This court overruled the plaintiff’s counsel’s objection and acceded to the request of the Attorney-General.

On the adjourned date the defendant rather filed an amended statement of the defendant’s case. The Attorney-General sought leave to put in the amended statement of the defendant’s case. Leading counsel for the plaintiff, Mr Peter Adjetey, opposed the application on the ground that by the proposed amendment the defendant was setting up an entirely new case. Again certain matters were then being set up which the plaintiff strongly denied. Learned counsel further submitted that the defendant had not treated the court with candour. In any case, the defendant had heard all the arguments of the plaintiff and it would be most unfair if this court—the highest court of the land—were to accede to such a course of procedure. Counsel concluded his objections by submitting that the facts had been “within the knowledge of the defendant for five months.”

After due deliberation this is what we decided. “By court: By a unanimous decision of all seven of us, the application for leave to amend is refused. We shall embody out full reasons in the judgement in the substantive case.”

I now proceed to consider this all important issue. I say that it is an [p.389] important issue because this court cannot allow litigants or parties to sport with its procedure and processes. While therefore this court will not permit technicalities to becloud the necessity to do justice to all manner of parties appearing before it, it must be borne in mind that in the exercise of its original jurisdiction absolute compliance with its essential rules of procedure is necessary for the court to function effectively. This court rarely receives oral evidence. Hence, the rules require that statements of the parties cases must be verified by affidavits. Thus rule 46(2)(a) of the Supreme Court Rules, 1970 (CI 13) states:

“(2) The statement of the plaintiff’s case shall,

(a) set forth the facts and particulars, documentary or otherwise, verified by an affidavit, upon which the plaintiff seeks to rely.”

(The emphasis is mine.) And then for the defendant rule 48(2)(a) of CI 13 also states as follows:

“(2) The statement of the defendant’s case shall,

(a) set forth the facts and particulars, documentary or otherwise, verified by affidavit, upon which the defendant seeks to rely.”

(The emphasis is mine.)

In the present case, one, Berifi Afari Apenteng claiming to be the “Deputy Director of TV News, Ghana Broadcasting Corporation” in compliance with the rules of this court swore to an affidavit verifying the defendant’s statement of case and positively declaiming: “That the facts set out in paragraphs (1)-(4) of the defendant’s statement of defence are true to the best of my knowledge and belief.”

In the light of the content of this affidavit, accepting the amendment would have exposed Mr Apenteng to a charge of perjury; for far from denying paragraph (3) of the plaintiff’s statement of case that the forum was not a National Democratic Congress affair, the proposed amendment was saying, inter alia:

“(1) The defendant admits having afforded the National Democratic Congress as set out in paragraph (3) through the auspices of the Ministry of Information, the opportunity to address the public on the budget on 23 January 1993 and 24 January 1993.”

Surely all that the plaintiff was requesting was that it be given, in accordance with its rights under the Constitution, 1992, the same [p.390] opportunity and the same time as had been offered to and accepted by the National Democratic Congress. It is quite clear that if we had admitted the amendment, Mr Apenteng would have been branded a remorseless liar. Learned counsel for the plaintiff was right in his submission that the defendant was trying to put up a new case. The interesting thing about this amendment was that it was not even accompanied by an affidavit verifying the facts. It was clearly defective and in my view it was properly rejected.

Next, I have taken the liberty of examining the rules of this court with a view to finding the true meaning of rule 49 of CI 13 which deals with amendments of writ and statement of case in this court. Rule 49 of CI 13 states:

“49. A writ or statement of the plaintiff’s case or of the defendant’s case, as the case may be, may at any time with the leave of the court be amended on such terms as the Court may determine.”

If, as the rules require the statement of the party’s case must be verified by affidavit, then it is clear that a party cannot by way of amendment set up a new case without committing perjury.

What then is the scope of amendments in this court? First, I think it is safe to say that this court will not permit an amendment which introduces a completely new case or defence which is diametrically opposed to the former case or pleading. Next, in determining the scope of amendments in this court, I would like to borrow from the wording of Order 26, Second Schedule of the Courts Ordinance, Cap 4 (1951 Rev) and say that amendments in respect of original writs in this court may be permitted:

“I…. for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties…”

In my respectful opinion, amendments in this court are never intended to introduce a new case or put up a contrary defence. Their true purpose is to narrow the issues the better to facilitate and expeditious and fair trial.

As I have stated earlier in this opinion, at the base of the two articles of the Constitution, 1992 which we have considered in this case, is the essential fundamental human freedom of expression. What impels me to offer an opinion is the nature and property of the medium or media through which the offending material was propagated. No one these days [p.391] quarrels over freedom of expression in the newspaper. In colonial times, it was a weapon which our British masters and our struggling people employed with devastating effect. The Gold Coast-now Ghana-was the cradle of political journalism in the West Coast of Africa. Such journalistic stalwarts as Dr. J. B. Danquah, Dr. Nnamdi Azikwe, later Governor-General of Nigeria, Wallace Johnson and Barkole Timothy, to mention only a few, were nurtured, groomed and later blossomed in the world of the printed word as the vanguard of the independence movements all along the West Coast of Africa. Supported by well-meaning African financiers and dedicated politicians the newspapers established themselves in the country as the most regular vehicle for conveying political thought and action. But then came the electronic media.

An examination of the pleadings in this case shows clearly that the real matter in controversy between the parties is how the state electronic media can be used equally or equitably by the political parties and other concerned and identifiable groups. The electronic media in this context are the radio and the television.

The radio has been with us in the country for nearly three score years during which period it developed from a government monopoly into an alternative means of entertainment, education and information. In present times, the airwaves are filled with competing radio stations and the citizen has the choice—even in his village or hamlet—as to the station to which he will tune and listen. True, in the context of political influence the citizen may be glued to his radio set anxious for information. By listening to the radio from those stations the average citizen can make up his mind as to what to believe or the political thought by which he may be influenced.

But by far the most radical of the modern means of communication is the television. In the developing world where technology is in its infancy, the presence of moving and talking pictures on a screen on which the very skin texture of the characters, their demeanor and surroundings are seen in natural colour certainly makes captive audience of even the least suspecting of our citizens. The television, then, is a very powerful instrument for the communication of ideas and the dissemination of information. The audience, literate and illiterate, are rivetted to the sets. The pictures are real or they appear to be so and the speech is convincing enough. Who shall control it?

The defendant says that by virtue of the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) it is in control. The defendant cannot be right. Paragraph 9 of NLCD 226 upon which it seeks to rely speaks against the conduct which it has exhibited in this case.

[p.392]

NLCD 226 was passed by a military regime which went out of office over eighteen months after it had established the corporation. Yet paragraph 9 of NLCD 226 makes a distinction between government time on the electronic media, and party political time. For the sake of regularity paragraph 9(1)(b) and (c) of NLCD 226 reads:

“9. (1) In its public service broadcasting, the Corporation is expected to provide for—…

(b) party political speeches dealing with the views and policies of the various political parties (when they come into being);

Every lawyer knows that “equitable” means “equal” for the legal maxim is “equality is equity.”

The articles under consideration in this opinion—articles 55(11) and 163 of the Constitution, 1992—are similar in form and content to the subsections of section 9 of NLCD 226 which I have cited above. The only conclusion which any sensible citizen can come to is that the framers of the Constitution, 1992 were not unaware of the provisions of section 9 of NLCD 226 but were determined to make the provisions part of the fundamental laws of the land. It does not therefore lie in the mouths of minions of the electronic media to say that the clear pronouncements of the Constitution, 1992 can be diluted by their claims on the exercise of discretion in the management of air-time.

In the American case of CBS v Democratic National Committee 412 US 94 (1973), Mr Justice Brennan, in a dissenting opinion, expressed himself on the electronic media thus:

…. “in light of the current dominance of the electronic media as the most effective means of reaching the public, any policy that absolutely denies the citizens access to the air-waves cannot be justified.”

In my respectful opinion, the constitutional right of access to the electronic media lies with the political parties, the viewing public and the listeners. Articles 55(11) and 163 of the Constitution, 1992 are [p.393] amplifications of the fundamental human right of freedom of expression. That right of access is paramount in the order of things in our society. The defendant therefore has no right to determine who shall use the electronic media or who shall not. There is a constitutional duty imposed upon the defendant, which is a state monopoly, to so order and arrange its programme times as to ensure compliance with its letter and spirit. There must be equality of access and equal time for the articulation of divergent or dissenting view points.

DECISION

Declarations granted.

D R K S

NEW PATRIOTIC PARTY v INSPECTOR-GENERAL OF POLICE [1993-94] 2 GLR 459—509

SUPREME COURT, ACCRA

30 November 1993

ARCHER CJ, FRANCOIS, AMUA-SEKYI, AIKINS, EDWARD WIREDU, BAMFORD-ADDO AND CHARLES HAYFRON-BENJAMIN JJSC.

Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Restriction on exercise exercise of—Restrictions in interest of “public safety” permissible under article 21(4)(c)—Prerequisites for imposition of restriction—Police imposing restriction on freedom of assembly of plaintiff under NRCD 68 in interest of “public order”—Whether justifiable under article 21(4)(c)—Public Order Decree, 1972 (NRCD 68)—Constitution, 1992, art 21(4) (g) and (c).

Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Prior restraint—Constitutionality of prior “consent” or “permit” of minister for exercise of freedoms—Scope of freedom of assembly under article 21(1)(d)—Section 7 of NRCD 68 requiring prior permit or consent of Minister for the Interior or under his authority for exercise of right of assembly—Whether discretionary power of minister clog on exercise of freedom of assembly—Whether requirement of permit of consent lawful—NRCD 68, s 7—Constitution, 1992, art 21(1)(d).

Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Holding of meetings, processions or celebration of customs—Exercise of freedoms made subject to prior permit of police under section 8 of NRCD 68—Police required to consider applications fairly and impartially—Significance of police permit—No provision on form or content nor on standard for assessing application—Decision of police final—Whether real likelihood of misuse of discretion by police to suppress fundamental freedoms and civil rights of citizens—Whether prior police permit requirement lawful—NRCD 68, s 8(1) and (2)—Constitution, 1992, art 21.

Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Limitation on exercise of freedom—Citizens exercising right of assembly subject only to provisions of Act 29—Citizens exercising right of assembly subject only to provisions of Act 29—Citizens lawfully exercising right of assembly not guilty of any offence—Section 12(a) of NRCD 68 empowering police or public officer to stop and disperse any assembly in public place—Police not required to assign reason for action—Whether unfettered discretion of police or public officer constitutional—Criminal Code, 1960 (Act 29)—NRCD 68, ss 12(a) and 13(a)—Constitution, 1992, art 21(1)(d).

HEADNOTES

It is provided by article 21(1)(d) and (4)(a) and (c) of the Constitution, 1992 that:

“21.(1) All persons shall have the right to—

(d) freedom of assembly including freedom to take part in processions and demonstrations…

(4) Nothing in, or done under the authority of, a law shall be held to [p.460] be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision—

(a) for the imposition of restrictions by order of a court, that are required in the interest of defence, public safety or public order, on the movement or resident within Ghana of any person; or. . .

(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons.”

Section 7 of the Public Order Decree, 1972 (NRCD 68) gave the Minister for the Interior the power to prohibit the holding of public meetings or processions for a period in a specified area; section 8 of NRCD 68 provided that the holding of all public processions and meetings and the public celebration of any traditional custom should be subject to the obtention of prior police permission; section 12 of NRCD 68 gave to a superior police officer the power to stop or disperse such a procession or meeting; and section 13 of NRCD 68 made it an offence to hold such processions, meetings and public celebrations without such permission. The plaintiff, a registered political party, sought and was granted a police permit on 3 February 1993 to hold a rally at Sekondi on 6 February 1993. The permit was, however, subsequently withdrawn by the police. On 16 February 1993, the plaintiff in conjunction with other political parties embarked on a peaceful demonstration in Accra to protest against the 1993 budget of the government but the demonstration was broken up by the police and some of the demonstrators were arrested and arraigned before the circuit court on charges of demonstrating without a permit and failing to disperse contrary to sections 8, 12(c) and 13 of NRCD 68. On 17 February the plaintiff was granted a permit by the police to hold a rally at Kyebi to commemorate the 28th anniversary of the death of Dr J B Danquah but the permit was withdrawn and the rally prohibited by the police on the day of the rally. Aggrieved by those decisions and actions of the police, the plaintiff brought an action before the Supreme Court for a declaration that (i) sections 7, 8, 12(a) and 13 of NRCD 68 were inconsistent with and a contravention of the Constitution, 1992, especially article 21(1)(d) thereof, and were therefore null, void and unenforceable; and (ii) under the Constitution, 1992 no permission was required of the police or any other authority for holding of a rally or demonstration or procession or the public celebration of any traditional custom by any person, group or organisation. In support of the claims, counsel for the plaintiff submitted that (a) sections 7 and 8 of NRCD 68 derogated from the fundamental human rights and freedoms, especially the right derogated from the fundamental human rights and freedoms, especially the right of citizens to freedom of assembly, including freedom to take part in processions and demonstrations as provided under article 21(1)(d) of the Constitution, 1992; and (b) any provision of a statute that sought to give power to a person to refuse a rally being held in derogation of the right of the individual granted by the [p.461] Constitution, 1992 was unconstitutional since any restriction contained in article 21(4)(c) of the Constitution, 1992 should not be taken as giving a right to any authority or person to refuse such a rally. In the circumstances, the police should never be given the right to issue a permit authorising a meeting, procession or celebration. Although the defendant admitted the facts of the plaintiff’s case, it was contended in his defence that the right of freedom of assembly contained in article 21(1)(d) of the Constitution, 1992 was not absolute but was subject to the restrictions contained in article 21 (4) of the Constitution, 1992 and therefore since sections 7, 8 12(c) of the Constitution, 1992, those restrictions were in conformity with the letter and spirit of the Constitution, 1992.

Held:

(1) article 21(4)(c) of the Constitution, 1992 could not be invoked in aid of a valid exercise of authority under the Public Order Decree, 1972 (NRCD 68) because the imposition of restrictions under that provision on the exercise of the fundamental freedoms had to be granted by a law which imposed reasonable restrictions on the fundamental freedoms but did not deny the citizen the fundamental freedoms to which he was entitled. Besides, the restrictions under article 21(4)(c) of the Constitution, 1992 had to be for purposes of “public safety” and not “public order” and those expressions referred to two different situations. In any case, whoever was to impose the restrictions under article 21(4)(c) of the Constitution, 1992 was required to exercise his discretion only when they were reasonably required. Thus unlike the power under article 21(4)(a) of the Constitution, 1992 which provided for the imposition of prior restraint by the court on the exercise of the fundamental freedoms, the power under article 21(4(c) of the Constitution, 1992 was akin to the emergency powers which, short of a presidential declaration of a state of emergency, might be exercised under the authority of any law made to cover the situations and the persons mentioned in article 21 (4)(c) of the Constitution, 1992. On the evidence, however, no such situation had arisen in the instant case to justify the invocation of article 21(4)(c) of the Constitution, 1992.

(2) Sections 7, 8, 12(a) and 13(a) of the Public Order Decree, 1972 (NRCD 68) were inconsistent with article 21 (1)(d) of the Constitution, 1992 and were therefore unconstitutional, void and unenforceable because:

(a) the freedom of assembly granted the citizen under article 21(1)(d) of the Constitution, 1992 encompassed the right of the citizens to come together to petition for redress of their grievances or take part in processions and demonstrations in support of or in opposition to a cause, policy or event. But the consent or permit requirements under section 7 of NRCD 68 sought to demand leave of the Minister for the Interior for the exercise of those rights, with the necessary implication that contrary to the provision of article 21(1)(d) of the Constitution, 1992, meetings, processions and demonstrations [p.462] were prohibited by law unless sanctioned by the minister or anyone authorised by him. That proposition clearly violated the enshrined provision of article 21(1)(d) because by investing the minister or other authority with unfettered discretion to refuse his consent or permit, section 7 of NRCD 68 placed the assertion by the citizen of his constitutional rights of assembly, procession by the citizen of his constitutional rights of assembly, procession and demonstration at the mercy of the authorities. Since, the generality of NRCD 68 was to create a prior restraint and a clog on the rights of the citizen under article 21(1)(d) of the Constitution, 1992 and thereby denied him those freedoms to which he was entitled, it was inconsistent with the letter and spirit of article 21(1)(d) of the Constitution, 1992 and accordingly unconstitutional. Kunz v New York, 340 US 290 (1951) and Carroll v President and Commissioners of Princess Ann, 393 US 175 (1968) cited. Dicta of Lord Atkin in Berton v Alliance Economic Investment Co [1922] 1 KB 742 and of Justice Douglas in Adderley v Florida, 385 US 39 (1966) approved.

(b) although section 8(2) of NRCD 68 required the superior police officer to consider an application for permit under section 8(1) of NRCD 68 fairly and impartially, that duty presupposed a choice between the citizen’s right of assembly, procession and demonstration against the choice of the senior police officer to determine whether to refuse the permit on the ground that there was the likelihood of a breach of the peace or that the meeting or procession would be prejudicial to national security. However, section 8(2) of NRCD 68 did not provide for the form and content of an application for a permit not the yardstick or the standard which the officer should apply in determining whether or not he should grant the permit. And although the police officer had to inform the applicant of the reasons for his refusal to grant the permit, such refusal could not be challenged in any court whether it was out of prejudice, bias or even political preference or any flippant and untenable ground. It is clear then that the danger that the awesome power contained in section 8 of NRCD 68 could be used to suppress the fundamental freedoms and civil rights of the citizens was real. Accordingly, even though under the Constitution, 1992 either the courts or a relevant law might in appropriate cases impose a restriction on any of the freedoms contained in article 21 of the Constitution, 1992 the requirement that a permit be obtained before the exercise thereof was unconstitutional and therefore void. Dicta of Justice Roberts in Hague v CIO, 307 US 496 at 515-516 [p.463] (1939); of Justice Douglas in Saia v New York, 334 US 558 at 560-561 (1948) and of the board in Francis v Chief of Police [1973] 2 All ER 251 at 255, PC approved.

(c) when citizens met or processed in a public place in pursuance of their constitutional rights under article 21(1)(d) of the Constitution, 1992 to form or hold meetings and processions, they were subject only to hold meetings and processions, they were subject only to the provisions of the Criminal Code, 1960 (Act 29). Accordingly, if a meeting, procession or demonstration was being held lawfully and nothing done by persons attending such meeting or forming the procession or demonstration contravened the provisions of Act 29, such persons should not be guilty under section 13(a) of NRCD 68. Accordingly, the provision of section 12(a) of NRCD 68 which conferred on a police officer or an authorised public officer unfettered, absolute, administrative powers to stop and cause to be dispersed any meetings or processions in any public place, without ascribing any reasons for it, abridged the fundamental human rights of the citizen under article 21(1)(d) of the Constitution, 1992 and were therefore unconstitutional. Beatty v Gillbanks (1882) 9 QBD 308, DC and Republic v Kambey [1991]1 GLR 235, SC cited.

Per Amua-Sekyi JSC. I would have thought that it was self-evident that the continued enjoyment by any community of fundamental human rights was incompatible with any requirement that a permit or licence has power to refuse it. No one would regard a law which required that workers should seek the prior permission of their employers before organising themselves in trade unions as a reasonable restriction on their right to freedom of association. Any such restriction on the right to freedom of assembly would make it meaningless and a sham. Based as they are on a requirement that permission be sought of the executive or one of its agencies before the right to freedom of assembly is exercised, sections 7, 8, 12(a) and 13 of NRCD 68 are clearly inconsistent with article 21(1)(d) of the Constitution, 1992.

Per Charles Hayfron-Benjamin JSC. In construing article 21(1)(d) and (4) of the Constitution, 1992, therefore, it is clear that (1) the concept of consent or permit as prerequisites for the enjoyment of the fundamental human right to assemble, process or demonstrate is outside their purview. Section 7 and 8 of NRCD 68 are consequently patently inconsistent with the letter and spirit of the provisions of article 21(d) of the Constitution, 1992 and are unconstitutional, void and unenforceable; (2) some restrictions as are provided for by article 21(4) of the Constitution, 1992 may be necessary from time to time and upon proper occasion. But the right to assemble, process or demonstrate cannot be denied. The sections of NRCD 68 which formed the basis of the plaintiff’s writ were ex facie [p.464] unconstitutional, void and unenforceable.

CASES REFERRED TO

(1) Lardan v Attorney-General (1957) 3 WALR 114.

(2) Balogun v Edusei (1957) 3 WALR 547.

(3) Okine, In re [1959] GLR 1.

(4) Amponsah v Minister of Defence [1960] GLR 140, CA.

(5) Dumoga, Re [1961] GLR 44.

(6) Akoto, Re [1961] GLR (Pt 11) 523, SC.

(7) Tsiboe v Kumasi Municipal Council [1959] GLR 253.

(8) Liversidge v Anderson [1942] AC 206; [1941] 3 All ER 338; 1 10 LJKB 724, HL.

(9) State v Otchere [1963] 2 GLR 463, SC.

(10) R v Vincent (1839) 9C & P 91; 3 State Tr NS 1037.

(11) Beatty v Gillbanks (1882) 9 QBD 308; 51 LJMC 117; 47 LT 194, DC.

(12) Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC.

(13) Green v Premier Glynrhonwy State Co [1928] 1 KB 561; 97 LJKB 32; 138 LT 90, CA.

(14) Republic v Kambey [1991] 1 GLR 235, SC.

(15) Kunz v New York, 340 US 290 (1951).

(16) Carroll v President and Commissioners of Princess Ann, 393 US 175 (1968).

(17) Adderley v Florida, 385 US 39 (1966).

(18) Saia v New York, 334 US 558 (1948).

(19) Hague v Committee for Indus Organization, 307 US 496 (1939).

(20) Berton v Alliance Economic Investment Co Ltd [1922] 1 KB 742; 91 LJKB 748; 127 LT 422, DC.

(21) Francis v Chief of Police [1973] 2 All ER 251.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a registered political party, against the Inspector-General of Police for a declaration that sections 7, 8, 12(a) and 13 of the Public Order Decree, 1972 (NRCD 68) which required, inter alia, that a permit or the consent of the Minister for the Interior or a police officer be obtained before citizens could embark on a public demonstration or procession or celebration of a custom were inconsistent with the letter and spirit of article 21(1)(d) of the Constitution, 1992 which granted the citizen the freedom of assembly, and were therefore void and unenforceable. The facts are sufficiently set out in the judgments of Aikins, Bamford-Addo and Charles Hayfron-Benjamin JJSC.

[p.465]

Peter Ala Adjetey (with him Sam Okudzeto, Nana Akufo-Addo, Afram Asiedu and Miss Gloria Akuffo) for the plaintiff.

Martin A B K Amidu, Deputy Attorney-General (with him Mrs Pobee-Orleans and Mrs Adusa-Amankwah, Chief State Attorneys) for the defendant.

JUDGMENT ARCHER CJ.

I have had a preview of the reasons written by my brother Charles Hayfron-Benjamin JSC and I agree with them but I wish to add a few words to demonstrate that police permits are colonial relics and have no place in Ghana in the last decade of the twentieth century.

My brother has mentioned the Criminal Code, 1892 but I want to mention one particular Ordinance also enacted in the same year. It is the Native Customs (Colony) Ordinance, Cap 197 passed on 15 July 1892. This Ordinance restricted the celebration of native customs without the permission in writing of the district commissioner in certain towns in the colony, namely Accra, Ada, Axim, Cape Coast, Dixcove, Elmina, Keta, Prampram, Saltpond, Sekondi, Shama, Winneba, Anomabu, Apam, Christiansborg, Kormantin, Labadi, Moree and Manford. Krobo customs like dipo were also prohibited. Penalties were imposed for violations of these restrictions and prohibitions. A district commissioner was also empowered to make an order prohibiting the holding of company meetings in a public place of ten or more members of a native company under the direction of a supi or headman. Company flags or tribal emblems could not be exhibited without the permission in writing of a district commissioner. The police were given powers to seize such items.

Then on 1 July 1922 when the Police Force Ordinance, Cap 37 was enacted, the police were under its section 54 given powers to regulate traffic by stopping and diverting the course of traffic. The Governor in-Council was also empowered to make regulations with respect to the assembling and movements of meetings and processions in public ways and public places. It is interesting to note that section 54(3) of Cap 37 and the Native Customs Ordinance of 1892 prevailed until they were repealed by the Public Order Act, 1961 (Act 58) which introduced police permits for meetings and processions in public places.

It seems incongruous that legislation that was originally meant to control asafo companies, yam festivals, fetishes a century ago, should be allowed to develop into hideous and ugly tumours on the near immaculate face of our present Constitution, 1992. Those who introduced police permits in this country do not require police permits in their own country to hold public meetings and processions. Whey should we [p.466] require them?

Article 21 of our Constitution, 1992 guarantees freedom of assembly, including freedom to take part in processions and demonstrations. This provision is in consonance with similar provisions in the United Nations Charter on Human Rights although Ghana was not a signatory in 1948 because it was a British colony at the time. The Organisation of African Unity has produced an African Charter on Human and Peoples’ Rights, article 71 of which reads:

“Every individual shall have the right to assembly freely with others. The exercise of this right shall be subject only to necessary restriction provided for by law in particular those enacted in the interest of national security, the safety, health, ethnics and rights and freedom of others.”

Ghana is a signatory to this African charter, and member states of the Organisation of African Unity and parties to the charter are expected to recognise the rights, duties and freedoms enshrined in the charter and to undertake to adopt legislative or other measures to give effect to the rights and duties. I do not think that the fact that Ghana has not passed specific legislation to give effect to the charter, means the charter cannot be relied upon. On the contrary, article 21 of our Constitution, 1992 has recognised the right of assembly mentioned in article 71 of the African charter.

It follows that section 7 of the Public Order Decree, 1972 (NRCD 68) is not only inconsistent with article 21 (1)(d) of our Constitution, 1992 but is also in contravention of article 71 of the African Charter on Human and Peoples’ Rights adopted by the Assembly of African Heads of State and Government in June 1981 in nairobi, Kenya.

Finally, I would urge that the whole of NRCD 68 should be reviewed and modernised in its entirety to enable the Police Service to carry out its duties effectively without contravening any provision in our current Constitution, 1992.

JUDGMENT OF FRANCOIS JSC.

I have been privileged to read in advance the reasons given by my learned colleagues for the unanimous decision we gave on 22 July 1993.

They are full, comprehensive, and with a main thrust that accords with my perception of the matter. I see no reason therefore to reduplicate the efforts of my learned brethren by writing reasons of my own. I am content to indorse the reasons given.

[p.467]

JUDGMENT OF AMUA-SEKYI JSC.

It is an axiom of British parliamentary democracy that Parliament is supreme. This means that Parliament may pass any laws that it considers ought to be made. If it takes a mistaken view of the public interest and passes laws that are inimical to the welfare of the community, or a section thereof, it’s error must be corrected by itself, and not by any outside body such as the courts. In this system of government, much faith is placed in the good sense of those who, for the time being, wield power. It works best in a society where tolerance of divergent views is regarded as necessary for the well-being of the community. But where those who hold differing views are looked upon as subversive, it breaks down completely and becomes tyrannical.

In the immediate post-independence period, our courts took the view that in the Ghana (Constitution) Order-in-Council, 1957 our former rulers had left us the kind of democratic government that they knew, that is one in which Parliament had unlimited power to make laws. On this basis, our courts upheld the validity of the Deportation Act, 1957, under which aliens who were believed to be sympathetic to the political parties opposed to the government were deported from the country; the Deportation (Othman Larden & Amadu Baba) Act, 1957 which brought court proceedings challenging deportation orders to an abrupt end: see Lardan v Attorney-General (1957) 3 WALR 114; the Deportation (Indemnity) Act, 1958 which barred the courts from punishing the Minister of the Interior and the Acting Commissioner of Police for their contempt in carrying out a deportation order at a time when there were proceedings in court challenging its validity: see Balogun v Edusei (1957) 3 WALR 547; the Preventive Detention Act, 1958 under which a large number of persons opposed to the government were arrested and placed in custody without trial: see In re Okine [1959] GLR 1; Amponsah v Minister of Defence [1960] GLR 140, CA; In re Dumoga [1961] GLR 44; Re Akoto [1961] GLR (Pt 11) 523, SC and the Kumasi Municipal Council (Validation of Powers) Act, 1959 by which an action for damages for the demolition of the premises of a political opponent was again brought to an end: see Tsiboe v Kumasi Municipal Council [1959] GLR 253.

During this period of our history, the courts said that they were prevented by British constitutional conventions from making a stand for the observance of human rights norms. Commenting on section 31(1) of the Order-in-Council which stated that “it shall be lawful for Parliament to make laws for the peace, order and good government of Ghana,” Smith J, an expatriate judge, said in Lardan (supra) at 122-123.

[p.468]

“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. (1937) A.D. 229:

‘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 [1942] AC 206, 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, 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.”

Our indigenous judges agreed. When in In re Dumoga (supra) Dr Danquah, counsel for the detainees, pointed out that Liversidge v Anderson [1942] AC 206, HL dealt with war-time regulations for the arrest and detention of persons suspected of being sympathisers of the [p.469] enemy, Adumua-Bossman J (as he then was) said at 55-56

“We are not at war, it is true; but a fully sovereign parliament composed of representatives of the people duly elected by universal adult suffrage, of which learned counsel for the applicants in his political activities was one of the staunchest sponsors, has after due deliberation decided that conditions exist as to make it necessary for this rather drastic power to be conferred on the chief executive officer of the state to be by him exercised in his discretion, and has accordingly made provision for it.

In these circumstances there can surely be little or no point in resorting to the court; and surely the course open to men of realistic outlook is to adopt and pursue a policy of constant approach and appeal to influential humanitarian parliamentarians to use their influence and good offices to procure possibly a reduction in the period of detention in some cases, or perhaps reconsideration from time to time of the question of the termination of the operation of the enabling Act.”

And when in In re Akoto (supra) the matter finally reached the Supreme Court, Korsah CJ, writing on behalf of himself, van Lare and Akiwumi JJSC said at 535:

“We do not accept the view that Parliament it competent to pass a Preventive Detention Act in war time only and not in time of peace. The authority of Parliament to pass laws is derived from the same source, the Constitution, and if by it, Parliament can pass laws to detain persons in war time there is no reason why the same Parliament cannot exercise the same powers to enact laws to prevent any person from acting in a manner prejudicial to the security of the State in peace time. It is not only in Ghana that Detention Acts have been passed in peace time.”

With this pronouncement, all resistance to oppression came to an end. We had rammed down our throats, a constitutional tyranny which those who professed to believe in it called a “one-party” state. Dr Danquah was arrested, detained and died in prison; the Minister for the Interior and the chief of police who had taken refuge behind an Act of Indemnity to flout the authority of the courts were arrested and detained; the Minister for Foreign Affairs and two protagonists of the new order were arrested and charged with treason. Acquitted in proceedings intituled State v Otchere [1963] 2 GLR 463, SC the verdicts were set aside by [p.470] executive order: see Special Criminal Division Instrument, 1963 (EI 161). Put back on trial before a more pliant bench, the executive had the satisfaction of seeing them convicted and sentenced to death. Mercifully, the sentences were not carried out; but a grave precedent had been set. The judges were not spared: Korsah CJ was removed from office, and a constitutional amendment cleared the way for the dismissal of Adumua-Bossman J (as he then was) and other judges whose loyalty to the absolutist State was now called in question.

It was to rescue us from such an abyss of despair that on three successive occasions, in 1969, 1979 and 1992, elaborate provisions on fundamental human rights have been set out in our Constitutions and the courts given clear and unequivocal power to enforce them. The Constitution, 1992 is now the supreme law of the land, and any enactment or executive order inconsistent with it is null and void. Thus, except for the periods of dictatorship when these fundamental human rights were suspended, our courts have since 1969 had power to protect the people from the abuse of legislative and executive power. Unfortunately, we have had too little experience of true democracy since independence. Like a bird kept in a cage for years, we have come to think of the cage as home rather than a prison. The door has been flung wide open, yet we huddle in a corner and refuse to leave.

In countries which practice true democracy, supporters and opponents of every conceivable cause are given freedom to associate and express their opinions. In the end, some have succeeded and their unpopular demands have eventually become majority wishes and have been recognised. Examples are the anti-slavery groups in eighteenth century England and nineteenth century America, and the suffragettes of both countries at the beginning of this century. Today, in these countries, those who favour and those who oppose abortion may assemble and hold demonstrations and processions in support of their cause while, in the less tolerant societies, one would be permitted and the other banned. In this country, it would be unthinkable for any police officer to grant homosexuals a permit to hold a demonstration in support of so-called gay rights; but, I ask, if in nineteenth century England the opponents of child labour had been prevented from stating their case, would it’s evil consequences have ever been recognised? In this day and age, it is necessary for us to begin to see that consent, not force, is the basis of the just society, and that it is not for the government or our neighbour to tell us what to think, or feel or do.

Most of the restrictions on our liberty which, after years of repression, [p.471] we have come to accept, are inconsistent with democratic norms. Except in a time of war, or when a state of emergency has been declared, it cannot be right for any agency of the executive to suppress the free expression of any opinion, however unpopular that opinion may be. The believer in absolutism and the anarchist, those who support and those who are opposed to abortion, those favour and those who oppose equal rights for women—yes, lesbians and homosexuals too—are all entitled to the free expression of their views, and the right to assemble and demonstrate in support of those views and to propagate those views. Once the State takes for itself the power to licence associations, assemblies and processions it resorts to support of the status quo, and the only way of changing the prevailing state of affairs is by the use of force.

The question now before us is whether section 7 of the Public Order Decree, 1972 (NRCD 68) which gives the Minister for the Interior power to prohibit the holding of a public meeting or procession in any public place; section 8 of NRCD 68 which requires any person who intends to hold nay such meeting or procession to obtain a permit from the police; section 12 (a) of NRCD 68 which authorises the police to stop and disperse any meeting or procession in a public place held in contravention of the said sections 7 and 8 of NRCD 68; and section 13 of NRCD 68 which makes it an offence to take part in a meeting or procession held in contravention of the said sections are compatible with the enjoyment by the people of this country of the freedom of assembly guaranteed in article 21 (1)(d) of the Constitution, 1992. The said provision reads:

“21.(1) All persons shall have the right to —

(d) freedom of assembly including freedom to take part in processions and demonstrations.”

The plaintiff says that sections 7, 8, 12(a) and 13 of NRCD 68 are not so compatible and ought to be declared void; the defendant, for his part, says that they are and that their continued validity should be sustained.

Article 21(4) of the Constitution, 1992 on which the defendant relies reads:

“(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision—

(a) for the imposition of restrictions by order of a court, that are required in the interest of defence, public safety or [p.472] public order, on the movement or residence within Ghana of any person; or

(b) for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for the purposes of ensuring that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his extradition or lawful removal from Ghana; or

(d) for the imposition of restrictions on the freedom of entry into Ghana, or of movement in Ghana, of a person who is not a citizen of Ghana; or

(e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community; except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution.”

(The emphasis is mine.) It is important to note that article 21(1) of the Constitution, 1992, part of which I have already quoted, deals not only with freedom of assembly, but also with other guaranteed freedoms, such as freedom of speech and expression in subclause (a), freedom of thought, conscience and belief in subclause (b), freedom to practice any religion and to manifest such practice in subclause (c), freedom of association in subclause (e), and the right to information in subclause (f). More importantly, it deals in subclause (g) with freedom of movement, which is defined there as “the right to move freely in Ghana, the right to leave and to enter Ghana and immunity from expulsion from Ghana.”

The distinction between freedom of assembly and freedom of movement is this: the former is the right of individuals to come together and to take part in processions and demonstration in support of, or in opposition to, a cause, policy or event; the latter is the right of every [p.473] individual freely to enter and to leave this country, and to reside in or carry on business or other economic or social activity in any part thereof. Freedom of movement has nothing to do with supporting or opposing the policies of governments, or seeking to influence their direction, which is at the heart of freedom of assembly. Article 21(4) of the Constitution, 1992 does not sanction the placing of any curbs on freedom of assembly. Subclauses (a)—(d) are concerned with freedom of movement, and subclause (e), with freedom of speech, thought and religion. What may be banned under subclause (e) is the teaching and propagation of a doctrine by speech or writing; but here again, freedom of speech, thought and religion are quite distinct from freedom of assembly.

I would have thought that it was self-evident that the continued enjoyment by any community of fundamental human rights was incompatible with any requirement that a permit or licence be first obtained. Whoever has power to grant a permit or licence has power to refuse it. No one would regard a law which required that workers should seek the prior permission of their employers before organising themselves in trade unions as a reasonable restriction on their right to freedom of association. Any such restriction on the right to freedom of assembly would make it meaningless and a sham. Based as they are on a requirement that permission be sought of the executive or one of its agencies before the right of freedom of assembly is exercised, sections 7, 8, 12(a) and 13 of NRCD 68 are clearly inconsistent with article 21(1)(d) of the Constitution, 1992.

Our own experience and that of other countries which have gone down the slippery road to dictatorship teach us to bear in mind Lord Acton’s well-known aphorism, “Power tends to corrupt, and absolute power corrupts absolutely.” The lessons of history are there for all to see: we ignore them at our peril.

It was for these reasons that I concurred in the orders declaring sections 7, 8, 12(a) and 13 of NRCD 68 void.

JUDGMENT OF AIKINS JSC.

A unanimous judgment in this case was delivered on 22 July 1993 granting the declarations sought by the plaintiff. We reserved our reasons. I agree with the reasons contained in the judgment of my brother Charles Hayfron-Benjamin JSC which I have had the opportunity to read in draft. All the same I would like to say a few words in addition. Even though under rule 53(2) of the Supreme Court Rules, 1970 (CI 13) the parties were entitled to call witnesses to testify to the facts contained in their respective statements of case, this court decided to take the [p.474] common legal issues involved in the case.

The reliefs sought by the plaintiff are two-fold, namely that:

“(a) Section 7 of the Public Order Decree, 1972 (NRCD 68) which gives to the Minister for the Interior the power to prohibit the holding of public meetings or processions for a period in a specified area; section 8 of the said Decree which provides that the holding of all public processions and meetings and the public celebration of any traditional custom shall be subject to the obtention of prior police permission; section 12 (c) of the said Decree which gives to a superior police officer the power to stop or disperse such a procession or meeting; and section 13 of the said Decree which makes it an offence to hold such processions, meetings and public celebrations without such permission, are inconsistent with and a contravention of the Constitution, 1992 especially article 21(1)(d) thereof, and are therefore null, void and unenforceable.

(b) Under the Constitution, 1992 no permission is required of the police or any other authority for the holding of a rally or demonstration or procession or the public celebration of any traditional custom by any person, group or organisation.”

Arguing on behalf of the plaintiff, leading counsel, Mr Peter Adjetey, submitted that sections 7 and 8 of the Public Order Decree, 1972 (NRCD 68) derogate from the fundamental human rights and freedoms, especially the right of persons to freedom of assembly, including freedom to take part in processions and demonstrations as contained in article 21(1)(d) of the Constitution, 1992. He further submitted that any provision of a statute that seeks to give power to a person to refuse a rally being held in derogation of the right of the individual granted by the Constitution, 1992 is unconstitutional, and any restriction contained in article 21(4)(c) of the Constitution, 1992 should not be taken as giving a right to any authority or person to refuse such a rally. In effect, learned counsel submitted that the police should under no circumstances be given the right to issue a permit authorising a meeting, procession or celebration.

In reply, the learned Deputy Attorney-General, Mr Martin Amidu, urged that the right of freedom of assembly contained in article 21 (1)(d) of the Constitution, 1992 is not absolute but is subject to restrictions [p.475] contained in article 21(4) of the Constitution, 1992. He submitted that sections 7, 8, 12(c) and 13 of NRCD 68 are reasonable restrictions required by article 21(4)(c), of the Constitution, 1992, and that these restrictions are in conformity with the letter and spirit of the Constitution, 1992.

Section 7(1) of NRCD 68 makes unlawful the holding of a public meeting or procession held in contravention of an executive instrument made by the Minister for the Interior prohibiting the holding of such meeting or procession for a specified time in a specified place or area. And section 8 of NRCD 68 makes it imperative for any person who intends (a) to hold or form any meeting or procession, or (b) to celebrate any traditional custom, in any public place to apply in the first instance to a superior police officer for permission to do so. This section goes on to say that such superior police officer after considering the application shall issue a permit authorising the meeting, procession or celebration “unless he is satisfied upon reasonable grounds that it is likely to cause a breach of the peace or to be prejudicial to national security.”

It is clear from the language of the two sections that they are inconsistent with and are in contravention of the provisions of article 21(1)(d) of the Constitution, 1992 which unreservedly gives the individual the right to freedom of assembly, including freedom to take part in processions and demonstrations. The only provision of the Constitution, 1992 that inhibits this right is contained in article 21(4) of the Constitution, 1992 which allows a law that makes provision for the imposition of restrictions:

“(a) . . . by order of a court, that are required in the interest of defence, public safety or public order, on the movement or residence within Ghana of any person; or

(b) . . . by order of a court, on the movement or residence within Ghana of any person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for the purposes of ensuring that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his extradition or lawful removal from Ghana; or

(c) . . . that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons [p.476] Article 21(4) of the Constitution, 1992, however, makes it clear that this provision will not apply if the thing done under the authority of that law is not shown to be reasonably justifiable in terms of the spirit of the Constitution, 1992. In my view, these thread subclauses, ie (a), (b) and (c) of article 21 (4) of the Constitution, 1992 are mere restrictions, and any law that extends to give authority to any person or persons to prohibit or grant a permit to other persons to take part in processions and demonstrations curtails the freedom of such persons and cannot be said to be justifiable in terms of spirit of the Constitution, 1992.

It is possible that a lawful procession or demonstration may be obstructed or defeated by counter-demonstrations, or aggressive provocation from hangers on, and it is doubtless with this in mind that the framers of the Constitution, 1992 allowed that a law could be made for the imposition of restrictions that are reasonably required, for example giving directions and conditions, in the interest of defence, public safety, public order, public health or the running of essential services. It should be noted that this provision does not give any power to the police or anyone else to forbid the holding of any meeting, procession or demonstration. Such a prohibition must await the event, and can only be issued if and when a reasonably apprehension of a breach of the peace has arisen. There are, however, general statutory powers to control processions contained in the Criminal Code, 1960 (Act 29), for example disturbance of lawful assembly (section 204); offensive conduct conducive to breach of peace (section 207); obsetruction of public way section 287(c)); commission of nuisance in any public or open space (section 296(2)); obstructing public way (section 296(16); assembling for idle, etc purpose and not dispersing when required by a constable (section 296(21)) and acts tending to disturb the peace in a public place (section 298). Moreover any meeting or procession which constitutes an unlawful assembly may be dispersed under section 202 of Act 29, and it may be lawful to disperse a lawful assembly where necessary to prevent a breach of the peace. But there must be clear evidence that a breach of the peace is likely to be committed.

Admittedly, it is not easy to decide at what point action will be necessary. A policeman may be overcautious and envisage disturbance from the attitude of the crowd following the procession or the presence of some interrupters, but care must be taken that action is not taken to intervene by the police as a matter of officiousness. It is very tempting [p.477] for some policemen to adopt the attitude of being too ready or willing to give orders, or misuse their authority and be bossy and interfering, ready to show the public where power lies. This is why it is dangerous, if not unconstitutional, for the police to be given the power under section 12 of NRCD 68.

In some liberal countries, the courts had in the course to time been inclined to extend the offence of unlawful assembly to gatherings for a lawful purpose if those present at the meeting, procession or demonstration behaved in such a way as to give rational men around, reasonable ground to fear a breach of the peace: see R v Vincent (1839) 9 C & P 91 at 109. But the law did not extend to holding such meeting to be unlawful which in itself did not give rise to any fear but was threatened by disturbances from an outside source like aggressive hangers on.

So in the English case of Beatty Gillbanks (1882) 9 QBD 308, DC where a court of petty sessions convicted local Salvationists of unlawful assembly and ordered them to find sureties to keep the peace, the Divisional Court on appeal held that since the association was for religious exercises, but the disturbance of the peace was caused by the Skeleton Army, opponents of the Salvationists, and the Salvationists themselves had committed no acts of violence, their assembly and procession could not in itself be unlawful, and so it was wrong to convict them of unlawful assembly and bind them over to keep the peace. This is a case that warned the police that they could not take the easy course of dispersing an otherwise lawful assembly for the simple reason that they, the police, feared opposition from another body.

It is for these reasons that I agreed with my learned brothers and sister that the writ of the plaintiff should succeed and that the plaintiff was entitled to the declarations sought therein.

JUDGMENT OF EDWARD WIREDU JSC.

I feel completely satisfied that the reasons contained in the opinion of my brother Charles Hayfron-Benjamin JSC which is about to be read, which reasons I have been privileged to have read beforehand, which opinion has also been concurred in by the Chief Justice and my brother Francois JSC, accord with my own views on the issues raised in this case that I can do no better than to concur and to say simply that a police permit has no place in the Fourth Republican Constitution, 1992.

The police permit has outlived its usefulness. Statutes requiring such permits for peaceful demonstrations, processions and rallies are things [p.478] of the past. The police permit is the brainchild of the colonial era and ought not to remain in our statute books.

JUDGMENT OF BAMFORD-ADDO JSC.

I agree with my able brother Charles Hayfron-Benjamin JSC for the following reasons. The plaintiff, a political party, has invoked the original jurisdiction of this court under article 2(1)(a) and (2) of the Constitution, 1992 and is seeking a declaration to the effect that:

(1) the provisions of sections 7, 8, 12 and 13 of the Public Order Decree, 1972 (NRCD 68) are inconsistent with those of article 21(1)(d) of the Constitution, 1992 and are consequently null and void and unenforceable; and

(2) that under the Constitution, 1992 no permission is required of the police or any other authority before the holding of a rally or demonstration or procession or the public celebration of any traditional custom by any person, group or organisation.

The Constitution, 1992 guarantees for all persons, certain fundamental human rights as set out in article 21 thereof. I quote here the provision most relevant to this ease for case of reference, ie article 21(1)(d) and (4)(c) which provide as follows:

“21.(1) All persons shall have the right to—

(d) freedom of assembly including freedom to take part in processions and demonstrations . . .

(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision—

except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution.”

The issue for determination in this case is simply whether or not the provisions of sections 7, 8, 12 and 13 of the Public Order Decree, 1972 (NRCD 68) are inconsistent with article 21(1)(d) of the Constitution, 1992. Section 8 of NRCD 68 provides that:

[p.479]

“8.(1) Any person who intends—

(a) to hold or form any meeting or procession; or

(b) to celebrate any traditional custom,

in any public place shall first apply to a superior police officer for permission to do so.

(2) The superior police officer shall consider the application fairly and impartially, and shall issue a permit authorising the meeting, procession or celebration unless he is satisfied upon reasonable grounds that it is likely to cause a breach of the peace or to be prejudicial to national security.

(3) The superior police officer may prescribe in the permit such conditions and restrictions as are reasonably required—

(a) in the interests, of defence, public order, public safety, public morality, public health or the running of essential services; or

(b) to protect the rights and freedoms of other persons.

(4) Where an officer refuses to grant a permit under this section he shall inform the applicant in writing of the reasons for his refusal.”

It is the case of the plaintiff that on 16 February 1993 it’s members and members of other political parties embarked on a peaceful demonstration in Accra to protest against the 1993 budget of the government, in the exercise of their fundamental human right, namely freedom of assembly and freedom to demonstrate, guaranteed to them by article 21(1)(d) of the Constitution, 1992. That while on this peaceful demonstration it’s members and the other participants were violently assaulted by the police and some of them were arrested and charged with the offence of demonstrating without a permit contrary to sections 8, 12 and 13 of NRCD 68 which law the plaintiff claims is contrary to and inconsistent with article 21(1)(d) of the Constitution, 1992. That under the circumstances the said sections of NRCD 68 are null and void and unenforceable.

The defendant in his statement of defence admitted the facts of the plaintiff’s case but contended that sections 7, 8, 12 and 13 of NRCD 68 are reasonably and lawful restrictions on the freedom of assembly granted under article 21 (1)(d) of the Constitution, 1992 and therefore those sections are not null and void.

The senior counsel for the plaintiff, Mr Peter Ala Adjetey, submitted that a permit is not required because such a law as section 8 of NRCD 68 [p.480] stipulating that a permit must be obtained before a demonstration is held, imposes a precondition on the exercise of the right of free assembly, which is now inconsistent with article 21(1)(d) of the Constitution, 1992 and is consequently null and void. If Mr Adjetey is right, then it follows that sections 12 and 13 of NRCD 68 would suffer a similar fate, and the plaintiff would be entitled to the declarations sought in the writ.

The Constitution, 1992 guarantees to all persons the fundamental human rights and freedoms set out in chapter 5 of the Constitution, 1992 and specifically under article 21. Article 21 of the Constitution 1992 provides that:

“12.(1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.

(2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest.”

(The emphasis is mine.) Article 1(2) of the Constitution, 1992 also provides that:

“(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.”

Therefore if it is found that section 8 of NRCD 68 which imposes a precondition on the exercise of the right to the freedom of assembly is inconsistent with the absolute or unrestricted freedom of association granted by the Constitution, 1992 in article 21(1)(d), then that inconsistent law is according to article 1(2) of the Constitution, 1992 null and void.

What then is the ordinary meaning of the words “freedom” and “permit?” The word “freedom” according to the Oxford Advanced Learner’s Dictionary (4th ed), p 492 is defined as: “condition of being free. . . to act speak, etc. as one pleases without interference. . . state of being unrestricted in one’s actions” (The emphasis is mine.) and the meaning of “permit” as defined at p 921 as “Give permission for, allow.” [p.481] The noun of the word “permit” is “an official document that gives [somebody] the right to do [something] . . .”

Freedom to act therefore means the absolute right to do something without preconditions and admits of no obligation to obtain permission of anyone before acting. Freedom to act and the obligation to obtain a permit before acting are contradictory and direct opposites and they cannot coexist. If one is not free to act without permission, the reset is that one is not free. Therefore if article 21(1)(d) of the Constitution, 1992 gives an unqualified freedom to hold demonstration but section 8 of NRCD 68 requires one to obtain a permit before the enjoyment of this freedom, then clearly, the latter law does conflict with the Constitution, 1992 and is inconsistent with it, and by virtue of article 1(2) of the Constitution, 1992 would be null and void. If it were not so, the inalienable fundamental human right granted under article 21(1)(d) of the Constitution, 1992 would be interfered with and in certain cases would even be completely taken away by operation of section 8 of the NRCD 68 contrary to the stipulation in the Constitution, 1992 that the fundamental human rights cannot be derogated from or taken away from any person.

Under article 12(2) of the Constitution, 1992 every person in Ghana shall be entitled to enjoy his or her fundamental human rights except that the rights of others should be respected and regard must be had for the public interest in the enjoyment of these rights.

The importance of human rights as stated in the Committee of Experts’ Report on the Proposals for a Draft Constitution of Ghana at p 62, para 128 is as follows:

“128. The National Commission for Democracy Report leaves no doubt that Ghanaians attach great importance to human rights. Human rights are universally regarded as inalienable and constitute the birthright of the individual as a human being. Therefore, no person may be deprived of his or her human rights.”

At p 64, para 136 it is stated further:

“136. Despite the division of human rights into the above categories, a close inspection will reveal the interdependence of all human rights. Thus for example, the United Nations Declaration on the Right to Development (1986) states:

‘All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and [p.482] protection of civil, political, economic, social and cultural rights.’

In the last resort, they are all exercisable within a societal context and impose obligations on the state and its agencies as well as on the individual not to derogate from these rights and freedoms.”

This means that fundamental human rights are inalienable and can neither be derogated from or taken away by anyone or authority whatsoever. Indeed, as stated in article 12(1) of the Constitution, 1992 the fundamental human rights and freedoms must be respected by the executive, legislature and judiciary and all other organs of government and its agencies and shall be enforceable by the courts.

This court is therefore not permitted to give an interpretation which seeks to tamper in any way with the fundamental human rights but rather to see that they are respected and enforced. It is my view that since section 8 of NRCD 68 conflicts with article 21(1)(d) of the Constitution, 1992 it is null and void and so are sections 7, 12 and 13 of NRCD 68, and I so hold.

The defendants’ position is that sections 7, 8 12 and 13 of NRCD 68 are reasonable and lawful restrictions on the freedom of assembly granted under article 21(1)(d) of the Constitution, 1992; no doubt relying on the provision of article 21 (4) (c) of the Constitution, 1992 which says that:

“(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision—. . .

except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution.”

But NRCD 68, ss 7, 8, 12 and 13 being null and void, cannot be said to fall within the proviso to article 21 (4) of the Constitution, 1992 and cannot even be considered as existing laws, must less laws which are reasonably justifiable in terms of the spirit of the Constitution, 1992. [p.483] Examples of such laws as envisaged by article 21 (4) of the Constitution, 1992 are those referred to by the experts in their report (supra) at p 157, para 73:

“!57. The fundamental freedoms mentioned above should be exercised subject to the laws of the land, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by this Constitution, restrictions which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Ghana, national security, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.”

These laws include the criminal laws of the land. It means that even where a person has the right to exercise his or her fundamental human rights freely without preconditions, he or she must exercise those rights subject to the respect for the rights and freedoms of others and in the public interest. That is why article 41 of the Constitution, 1992 provides that:—

“41. The exercise and enjoyment of rights and freedom is inseparable from the performance of duties and obligations, and accordingly, it shall be the duty of every citizen—

(d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of other persons. .

(i) to co-operate with lawful agencies in the maintenance of law and order.”

The sum total of these various provisions in the Constitution, 1992 is that human rights are inalienable being the birthright of the individual as a human being, they cannot be derogated from nor can anyone deprive one of his or her human rights. Therefore these rights are to be enjoyed freely without any impediments or preconditions, but in the enjoyment of these rights, regard must be had for the rights of others and for the public interest. The public interest demands that the police maintain law and order in society. Therefore the police will continue to maintain law and order and to ensure that there are no infringements of the criminal laws of the land by those exercising their rights, eg to hold public demonstrations. The Deputy Attorney General appearing for the defendants expressed concern that a decision in favour of the plaintiff in this case would make the work of the police more difficult. That may be [p.484] so but this is the price we have to pay for democracy and constitutional order. The police like any other organ of government are required to operate within the four walls of the Constitution, 1992 but with their wide crime preventing powers, I believe they can rise up to the occasion and satisfactorily discharge their duties within the constitutional limits despite any difficulties.

In any case, article 200 of the Constitution, 1992 seems to have envisaged and taken care of any difficulties the police might encounter in having to work under a new constitutional order. It made provision for the police to be equipped and maintained to perform it’s traditional role of maintaining law and order. It is hoped that this provision would be complied with by the authorities concerned, to enable our hardworking police discharge efficiently their onerous duty of maintaining law and order in the society.

It is for the above reasons that I also agree with my brothers before me that the plaintiff is entitled to the declaration sought in the writ.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

On 3 February 1993 the police in Sekondi in the Western Region granted the plaintiff a permit to hold a rally on 6 February 1993 in Sekondi. However, on 5 February 1993 the police withdrew the permit and prohibited the holding of the rally. Yet again on 16 February 1993 the plaintiff in conjunction with other political parties embarked on a peaceful demonstration in Accra “to protest against the 1993 budget of the Government of Ghana.”

This “peacful demonstration” was, according to the plaintiff, violently broken up by the police and some of those taking part in the demonstration were arrested and charged before the Circuit Court, Accra with demonstrating without a permit and failing to disperse contrary to sections 8, 12(c) and 13 of the Public Order Decree, 1972 (NRCD 68).

The plaintiff complained further that on 17 February 1993 the Kyebi Police in the Eastern Region granted the plaintiff a permit to hold a rally at Kyebi “to commemorate the 28th anniversary of the tragic death of Dr Joseph Boakye Danquah.” On the day when the rally was to be held, the police withdrew the permit and prohibited the holding of the rally.

The plaintiff therefore filed a writ in this court wherein it claimed:

“A declaration that—

(a) Section 7 of the Public Order Decree, 1972 (NRCD 68) which gives the Minister for the Interior the power to prohibit the holding of public meetings or processions for a period in a specified area; section 8 of the said Decree [p.485] which provides that the holding of all public processions and meetings and the public celebration of any traditional custom shall be subject to the obtention of prior police permission; section 12(c) of the said Decree which gives to a superior police officer the power to stop or disperse such a procession or meeting; and section 13 of the said Decree which makes it an offence to hold such procession, meetings and public celebrations without such permission, are inconsistent with and a contravention of the Constitution, 1992 especially article 21(1)(d) thereof, and are therefore null, void and unenforceable.

By his statement of case, the defendant while not specifically admitting the allegation that the plaintiff and other members of some other political parties were embarked on a “peaceful demonstration through the streets of Accra on 16 February 1993”, nevertheless denied that he had violently broken up the demonstration. In the view of the defendant, the procession was “an unlawful demonstration.” The defendant, however, admitted the other two actions alleged in the plaintiff’s statement of case and claimed that the actions complained of were lawful statement of case and claimed that the actions complained of were lawful exercise of authority within the intendments of the Public Order Decree, 1972 (NRCD 68). The defendants stated their case thus:

“(9) The defendant admits paragraphs (9) and (10) of the statement of the plaintiff’s case.

(10) The defendant says further that the allegations contained in paragraphs (9) and (10) of the statement of the plaintiffs case were the result of a lawful and reasonable exercise of authority vested in the police by the Public Order Decree, 1972 (NRCD 68).

(11) The defendant also says in further answer to paragraphs (9) and (10) of the statement of the plaintiff’s case that the said paragraphs are irrelevant to the present action.”

There was a clear misunderstanding of the procedural rules of this court as to the filing of the memorandum of issues. The parties separately [p.486] filed what they termed agreed issues even though the same were not signed by each other’s counsel. However, paragraph (6) of the Plaintiffs memorandum of issues were in identical terms with the single issue raised by the defendant in his memorandum of issues. This issue was in my respectful opinion the kernel of the matters in controversy between the parties. It reads:

“Whether or not sections 7, 8 12(c) and 13 of the Public Order Decree, 1972 (NRCD 68) are inconsistent with and a contravention of the Constitution, 1992, particularly article 21(1)(d) thereof and are therefore null, void and unenforceable.”

In other words, whether (1) a ministerial, police or other permit is required for the exercise of any public activity envisaged by sections 7 and 8 of NRCD 68; (2) the superior police officer or other authorised public officer may stop and disperse citizens taking part in any such public activity as is envisaged by sections 7 and 8 of NRCD 68; and (3) citizens may be punished for taking part in any such public activity.

For the purpose of this case the first provisions of the Constitution, 1992 which need to be set out are article 21(1)(d) and (4)(a), (b) and (c):

“21.(1) All persons shall have the right to—. . .

(d) freedom of assembly including freedom to take part in processions and demonstrations. . .

(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision—

(a) for the imposition of restrictions by order of a court, that are required in the interest of defence, public safety or public order, on the movement or residence within Ghana of any person; or

(b) for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for the purpose of ensuring that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his extradition or lawful removal from Ghana: or

(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the [p.487] movement or residence within Ghana of any person or persons generally, of any class of persons.”

Before coming to NRCD 68 itself, some account should be given of the history leading up to it. This court cannot be insensible to the fact of the colonial status from which we have evolved into a nation; nor can we be oblivious of the fact that while in the main we have received the laws from our British colonial masters—the common law—these laws were often qualified by Ordinances and regulations designed to remind us of our subject status and to ensure that our colonial masters had the peace and quiet necessary to enable them live among us and rule us.

In his learned treatise on The Constitutional Law of Great Britain and the Commonwealth (2nd ed), Hood Phillips cites from Professor Dicey’s classsic treatise on Law of the Constitution (9th ed) wherein the latter author states the general principle of English law respecting the right of assembling and processing as follows:

“The right of assembling is nothing more than a result of the view taken by the Courts as to individual liberty of person and individual liberty of speech. There is no special law allowing A, B and C to meet together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights of C,D,E and F and so on ad infinitum lead to the consequence that A, B, C and D and a thousand or ten thousand other persons, may (as a general rule) meet together in any place where otherwise they each have a right to be for a lawful purpose and in a lawful manner.”

Hood Phillips continues with his own observation at that:

“There is a general right to promote or take part in a public meeting on private premises, and to promote or take part in a public procession, subject in either case to the infringement of particular legal rules.”

Within our municipality—and in colonial times,—our courts have not been bound in the construction of the Criminal Code by any judicial decision or opinion on the construction of any other statute, or of the common laws as to the definition of any offence, or of any element of any offence. The distinction between common law offences and statutory [p.488] offences therefore does not exist in our criminal jurisprudence.

The first Criminal Code—Ordinance No 12 of 1892—was passed on 31 October 1892 and included such common law offences as sedition, unlawful assembly, rout and riot. By various later arrangements in the order in which it stood in the statute book the Criminal Code became Ordinance No 50 of 1952 and was until 1960 known as “Cap 9.” On a close examination of Cap 9, it will be found that the nearest mention of a “permit” is contained in section 142(10) where it is stated that whoever:

“(10) In any town, without a licence in writing from the Governor or a District Commissioner, beats or plays any drum, gong, tom-tom, or other similar instrument of music between eight o’clock at night and six in the morning”

shall be liable to a fine of forty shillings. (The emphasis is mine.)

The concept of a permit, however, first appears in 1926 in pursuance of authority granted to the Governor by the Police Force Ordinance, 1922 (Cap 37). By virtue of the powers granted the Governor under Cap 37 the Public Meetings and Processions Regulations, 1926 (No 10 of 1926) were made on 26 April 1926. Section 2 of the regulations states:

“2. Any person who desires to hold or form any meeting or procession in a public way shall first apply to a police officer not below the rank of Assistant Commissioner of Police, or, if there be no such officer, then to the District Commissioner, for permission to do so; and , if such police officer or District Commissioner is satisfied that the meeting or procession is not likely to cause a breach of peace, he may issue a permit authorising the meeting or procession, and may in such permit prescribe any special conditions, limitations, or restrictions to be observed with respect thereto.”

(The emphasis is mine.)

Such was the state of the law on public meetings and processions until 1961 when the Public Order Act, 1961 (Act 58) was passed and received the presidential assent on 29 May 1961. Section 6 thereof was in identical terms with section 2 of the regulations of 1926 set out above. There were, however, three important differences between the two sections. The long title of Act 58 was:

“AN ACT to replace, with minor modifications, enactments relating [p.489] to the control of the procession or carrying of arms, the holding of public meetings and processions and the imposition of curfews.”

First, whereas the regulations mentioned “public way”, Act 58 mentioned “public place.” The interpretation section of Act 58 did not provide any definition of a “public place.” Cap 9 however refers to the definition of “public place” and “place way” as bearing the same meaning as are contained in the Criminal Code. Under the Code, the expression “public place” is all embracing and includes a “place way.” But a “public way” is defined as including: “any highway, market place, lorry park, square, street, bridge, or other way which is lawfully used by the public.”

Yet again, the application of the regulations was limited to the towns mentioned in the Schedule as amended by the Public Meetings and Processions (No 2) Regulations, 1954 (LN 415) made under Cap 37. I do not think that it was for nothing that the expression “public way” was used in the regulations. The regulations were only applicable to the towns named in the Schedule. As I understand it, the regulations were made to control traffic, the assembling and procession of rival parades at the same place and time and to give the authorities advance notice to afford them proper opportunity for effective policing.

Secondly, Act 58 effectively revoked LN 415. Consequently, Act 58 applied to the whole country.

Thirdly, Act 58 came into force after the promulgation of the Constitution, 1960. The relevant provision in the Constitution, 1960 which appeared to assure the citizen of “the right to move and assemble without hindrance” was contained in article 13(1). If indeed there was such a “right”, then section 6 of Act 58 was clearly inconsistent with the Constitution, 1960 and was therefore null, void and unenforceable.

But in the case of Re Akoto [1961] GLR (Pt II) 523, SC the Supreme Court held otherwise. Re Akoto (supra) is often considered as a case on the validity of the Preventive Detention Act, 1958 (No 17 of 1958). What many fail to appreciate is that article 13(1) of the Constitution, 1960 contained many provisions which in later Constitutions have been expended into substantive articles.

In the Re Akoto case (supra), learned counsel for the appellants submitted, inter alia at 533:

“3. That the Preventive Detention Act, 1958, which was not passed upon a declaration of emergency or as a restriction necessary for preserving public order, morality or health, but which nevertheless placed a penal enactment in the hands of the President [p.490] to discriminate against Ghanaians, namely to arrest and detain any Ghanaian and to imprison him for at least five years and thus deprive him of his freedom of speech, or of the right to move and assemble without hindrance, or of the right of access to the courts of law, constitutes a direct violation of the Constitution of the Republic of Ghana and is wholly invalid and void.”

The clear answer given by their lordships is stated at 533-534 and it reads:

“All the grounds relied upon appear to be based upon Article 13 of the Constitution. It is contended that the Preventive Detention Act is invalid because it is repugnant to the Constitution of the Republic of Ghana, 1960, as Article 13(1) requires the President upon assumption of office to declare his adherence to certain fundamental principles which are:—

‘That the powers of Government spring from the will of the people and should be exercised in accordance therewith.

That freedom and justice should be honoured and maintained.

That the union of Africa should be striven for by every lawful means and when attained, should be faithfully preserved.

That the Independence of Ghana should not be surrendered or diminished on any grounds other than the furtherance of African unity.

That no person should suffer discrimination on grounds of sex, race, tribe, religion or political belief.

That Chieftaincy in Ghana should be guaranteed and preserved.

That every citizen of Ghana should receive his fair share of the produce yielded by the development of the country.

That subject to such restrictions as may be necessary for preserving public order, morality or health, no person should be deprived of freedom of religion, of speech, of the right to move and assemble without hindrance or of the right of access to courts of law.”

This contention, however, is based on a misconception of the intent, purpose and effect of Article 13(1) the provisions of which are, in our view, similar to the Coronation Oath taken by the Queen of England during the Coronation Service. In the one case the President is required to make a solemn declaration, in the other the Queen is required to take a solemn oath. Neither the oath nor the [p.491] declaration can be said to have statutory effect of an enactment of Parliament. The suggestion that the declaration made by the President on assumption of office constitute a ‘Bill of Rights’ in the sense in which the expression is understood under the Constitution of the United States of America is therefore untenable.”

I have not been able to resist setting down the whole of article 13(1) of the Constitution, 1960 as stated by their lordships in the Akoto case (supra), the better to demonstrate the extent to which that judgment undermined the very fabric of that Constitution and literally pushed aside certain principles and fundamental human and civil rights which have become the bulwark of the Constitution, 1992. Act 58 thus lost none of its operational efficacy and the consent of the minister or “permit” from the police remained a necessary prequisite for the holding or formation of “any meeting or procession in a public place.” The Public Order (Amendment) Act, 1963 (Act 165) restated section 16 of Act 58 and extended the permit requirement to the celebration of traditional customs and the display of asafo company flags.

NRCD 68, parts of which form the basis of the plaintiff’s complaint in the present case, is in essence a consolidation of the previous public order legislations and the public meetings and processions regulations. Sections 7 and 8 NRCD 68 read:

“7.(1) The Commissioner may by executive instrument prohibit for a specified time (not being more than one week) in a specified place or area the holding of a public meeting or procession and any meeting or procession held in contravention of any such instrument shall be unlawful.

(2) It shall not be lawful to hold a public meeting or public procession within five hundred yards of—

(a) any meeting place of the National Redemption Council, the Executive Council or any Committee thereof,

(b) any official residence of a member of the National Redemption Council or the executive Council,

(d) any port or airport,

except with the written consent of the Commissioner or any person authorised by him.

8.(1) Any person who intends—

[p.492]

(a) to hold or form any meeting or procession; or

(b) to celebrate any traditional custom,

in any public place shall first apply to a superior police officer for permission to do so.

(3) The superior police officer may prescribe in the permit such conditions and restrictions as are reasonably required—

(a) in the interests of defence, public order, public safety, public morality, public health or the running of essential services; or

(b) to protect the rights and freedoms of other persons.

(4) Where an officer refuses to grant a permit under this section he shall inform the applicant in writing of the reasons for his refusal.”

It is evident that the public order laws in one form or the other have existed during the period of all four Republic Constitutions which we have had in this country. Yet, it seems it is only now that a challenge has been raised as to their constitutionality. The answers are clear. As I have already stated, In re Akoto (supra) denuded article 13(1) of the Constitution, 1960 of any constitutional force. Next, the relevant articles in the Constitution, 1960 of any constitutional force. Next, the relevant articles in the Constitutions, 1969 and 1979 did not confer the right to process. The right of assembly and association was “for the protection of his [the citizen’s] interest.” Article 23(1) of the Constitution, 1969 and article 29(1) of the Constitution, 1979 are in exactly similar language and read:

“29.(1) No person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assembly freely and associate with other persons and in particular to form or belong to trade unions or other associations, national and international, for the protection of his interests.”

It is clear from the above article that the Constitutions, 1969 and 1979 only granted limited freedoms. Further, there was no constitutional right to form or hold a procession or demonstration in a public place. As to the right to hold or form a procession, I do not think article 24(1) of the Constitution, 1969 or article 30(1) of the Constitution, 1979 on the [p.493] freedom of movement is the same as the freedom to hold and form processions. Indeed, I am fortified in my view by the manner in which these freedoms are treated in the Constitution, 1992. The freedom of association as envisaged in the former Constitutions is clearly stated in article 21(1)(e) of the Constitution, 1992 while the corresponding freedom of movement is stated in article 21(1)(g) of the Constitution, 1992. The matter in issue between the parties before us concerns article 21(1)(d) of he Constitution, 1992 which has been set out above and whether the allegedly offending sections of NRCD 68 are inconsistent with it and therefore null, void and unenforceable.

In argument before us the Deputy Attorney-General, Mr Martin Amidu, referred to the case of Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC and the dictum of Sowah JSC (as he then was) at 661-662 and submitted that this court must be guided by the intentions of the framers of the Constitution, 1992. I agree with him.

Before the framers of the Constitution, 1992 embarked upon the exercise of writing that Constitution, the desires and views of the citizens on their constitutional expectations had been collated by the National Commission on Democracy. The commission’s report formed the basis of the recommendations of the committee of experts. The experts adopted the Directive Principles of State Policy as first enunciated in the Constitution, 1979. The experts acknowledged that they had used that chapter in the Constitution, 1979 “as a basis for its deliberation on this subject.”

In the Report of the Committee of Experts, p 49, para 94 it is stated:

“94. The NCD report speaks of the need to include in the new Constitution ‘core principles around which national political, social and economic life will revolve.’ This is precisely what the Directive Principles of State Policy seeks to do. Against the background of the achievements and failings of our post-independence experience, and our aspirations for the future as a people, the Principles attempt to set the stage for the enunciation of political, civil, economic and social rights of our people. They may thus be regarded as spelling out in broad strokes the spirit or conscience of the Constitution.”

(The emphasis is mine.) The experts recognised that the directive principle were not justiciable. Nevertheless, they gave convincing reasons for including them in the Constitution, 1992 and concluded at p 49, para 95 that their usefulness lies in the fact that “they provide goals for legislative programmes and a guide for judicial interpretation.” For [p.494] the first time there was a recommendation for the inclusion of political objectives in the Constitution, 1992 and at p 50, para 100 of its report, the committee of experts suggested that: “The State should cultivate among all Ghanaians respect for fundamental human rights and for the dignity of the human person.”

The framers of the Constitution, 1992 having adopted the directive principles stated in article 34(1) of the Constitution, 1992 the scope for their implementation thus:

“34. (1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and person in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society.”

The political objectives were stated in article 35 of the Constitution, 1992. In the main, article 35 of the Constitution, 1992 sufficiently reflects the recommendations of the committee of experts. This court—and indeed all courts—is therefore entitled to take into consideration political matters in “applying or interpreting this Constitution.” I do not, however, think it appropriate to dilate on political matters in the consideration of this opinion. Suffice it to say that this court cannot ignore the fact that at the close of this second millennium of the modern era the attainment and enjoyment of fundamental human rights have become prime instruments of international relations. In rendering this opinion therefore, we must take into serious consideration the struggles, exploits and demands of the oppressed and struggling peoples in Africa, America and elsewhere led by such men as Nelson Mandela and Dr Martin Luther King, Jnr in their fight for fundamental human and civil rights. Judging by the frequency with which the African National Congress and other political parties hold rallies and demonstrations in South Africa, the police would be very hard put to it, if they were to issue a permit for any such rally or demonstration to be held. I do not believe a permit is required in that country to enable any person or group of persons to assemble, process or demonstrate. We cannot wish for these others, anything more than we wish for ourselves. Indeed, the very constitutional provisions—article 21(1)(d) of the Constitution, 1992—which has provoked this litigation, is firmly rooted in chapter 5 of our Constitution, 1992 which deals with fundamental human rights and freedoms. Within our municipality I do not think that I can contemplate [p.495] a better statement of our national attitude on fundamental human rights than the editorial comment in the state-owned national weekly, The Mirror of Saturday, 10 July 1993, parts of which read:

“The problem of human rights violations has become a disturbing source of concern to all peace-loving people of the world.

For a long time now, governments of various countries have been accused of violating the rights of their peoples by way of trampling upon their fundamental human rights with impunity.

What is more, these governments do not take cognisance of the fact that every human being was born into the world to enjoy maximum freedom – freedom to associate, of movement, and indeed freedom to express one’s views freely without looking over one’s shoulders to see whether there is the big stick in waiting.

Looking seriously at the human rights record of some governments, it is sad to conclude that the freedoms of their peoples are toyed with, if that is the only means to keep them in perpetual power.

A lot has been said about the violation of human rights but mere talks on human rights violation and denial of fundamental freedoms will be totally meaningless unless concrete measure are put in place to enforce the laws and prevent occurrences.

The absence of civil and political rights certainly creates a sordid situation which enables authoritarian and autocratic regimes to blossom and thus take the opposite direction as far as human rights are concerned.

It is in this regard that [THE MIRROR] wishes to urge all governments to realise that the people they govern should be made to enjoy all the God-given freedoms they deserve.

The Constitution of the Fourth Republic provides for the strict adherence of human rights and it is anticipated that every effort must be made to uphold the dignity of man in the interest of peace and stability.”

The “spirit or conscience” of the Constitution, 1992 as epitomised by the above cited comment must therefore be our guide in considering this opinion.

Next, it was submitted by the Deputy Attorney-General that the Constitution, 1992 has reserved to the sovereign authority the right to provide for order. He referred to article 21(4)(c) of the Constitution, 1992 as being the constitutional force behind the submission. Article [p.496] 21(4)(c) of the Constitution, 1992 has been stated supra in extenso and therefore there is no need to repeat it. The submission, however, cannot be right. A brief comparison between article 21(4)(a) and 21(4)(c) of the Constitution, 1992 shows that the expression “public order” does not occur in the latter. By itself the expression “public safety” is used in contradistinction to the expression “public order.” True, in accordance with the canons of interpretation sometimes “or” can be interpreted to mean “and.” In Green v Premier Glynrhonwy state Co Ltd [1928] 1 KB 561 at 568, CA is stated per Scrutton LJ:

“You do sometimes read ‘or’ as ‘and’ in a statute . . . But you do not do it unless you are obliged, because ‘or’ does not generally mean ‘and’ and ‘and’ does not generally mean ‘or.”‘

In my respectful opinion, I am not obliged to read in the context of article 21 of the Constitution, 1992 the expression “or” in subsection (4)(a) as “and.” First, in article 21 (4)(a) the imposition of the restrictions as they apply to article 21(d) of the Constitution, 1992 is by the court, while in article 21(4)(c) whoever is imposing the restrictions is required to exercise his discretion—that is to say, the “restrictions are reasonably required.” Secondly, article 21(4)(a) provides for the imposition of prior restraint by the court on the exercise of the fundamental freedom while article 21(4)(c) is akin to the emergency powers which, short of a presidential declaration of a state of emergency, may be exercised under the authority of any law made to cover the situations and the persons mentioned in that subsection—see article 31(9) of the Constitution, 1992. Clearly, article 21(4)(c) cannot be invoked in aid of a valid exercise of authority under NRCD 68.

Again it was submitted on behalf of the defendant that sections 7, 8, 12(c) and 13 of NRCD 68 constitute reasonable restrictions as are required by article 21 of the Constitution, 1992 and that the said sections are in accord with the spirit of the Constitution, 1992.

It will be useful to deal first with the provisions of section 12(a) of NRCD 68 and then with the provisions of section 13 thereof as it is clear that if the provisions of sections 7 and 8 of NRCD 68 are unconstitutional, then no meeting or procession can be held or formed in contravention of section 12(a) of NRCD 68 which confers on the police officer or the authorised public officer unfettered powers, and without ascribing any reasons therefor, to “stop and cause to be dispersed any meetings or processions in any public place.” Such absolute power conferred upon a police or administrative officer or a Minister of State [p.497] to abridge the fundamental human rights of the citizen is unconstitutional.

When citizens meet or process in a place in pursuance of their constitutional right to hold meetings and form processions they are only subject to the criminal law which for the present is contained in our Criminal Code, 1960 (Act 29). In Republic v Kambey [1991] 1 GLR 235, SC the accused persons were convicted of murder and sentenced to death. They appealed against their convictions to the Court of Appeal which allowed their appeal. The State then appealed against the judgment of the Court of Appeal to this court. In this court, one of the issues raised at 243 was:

“. . .whether by their conduct the Duusi chief and his subjects had assembled with intent to commit an offence, and if not, whether being assembled to collect dawadawa fruits which may be taken as a common purpose they so conducted themselves as to cause persons in the neighbourhood reasonably to fear that the persons so assembled would commit a breach of the peace.”

My learned and respected brother Aikins JSC writing for the court in considering the issue of the quality of such an assembly referred to sections 202, 202A(1) and 201(1) of Act 29 and said at 245:

“Such an assembly to be unlawful must be for purpose forbidden by law or with intent to carry out their common purpose in such a manner as to endanger public peace. Even if having assembled there for a lawful purpose, and with no intention of carrying it out unlawfully, they had knowledge that their assembly would be opposed, and had good reason to suppose that a breach of the peace would be committed by the first prosecution witness and others who opposed it, they would not be guilty of an unlawful assembly.”

Aikins JSC cited the English case of Beatty v Gillbanks (1882) 9 QBD 308, DC in support of the above statement and for emphasis on the right of citizens to assemble in public for a lawful purpose.

This leads me to a consideration of section 13(a) of NRCD 68. Certainly if a meeting, procession or demonstration is being held lawfully and nothing done by persons attending such a meeting or forming the procession or demonstration contravenes the criminal law, such persons shall not be guilty under section 13(a) of NRCD 68. Beatty v Gillbanks (supra) is illustrative of the scope of the freedom articulated by article 21(d) of the Constitution, 1992. At 314 of the report of that [p.498] case, Field J rightly said:

“What has happened here is that an unlawful organization has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition, and the question of the justices whether the facts stated in the case constituted the offence charged in the information must therefore be answered in the negative.”

By its writ of summons the plaintiff sought declarations concerning the constitutionality of sections 12(c) and 13 of NRCD 68. The orders which this court made on 22 July 1993, however affect only sections 12(a) and 13(a) of NRCD 68. In my respectful opinion, we could not grant a declaration in favour of the plaintiff affecting section 12(c) of NRCD 68. It would have been irresponsible for court to order in the light of section 12(c) of NRCD 68 which deals with the powers of the police and other authorised public officers to stop and disperse unlawful assemblies, that the police should remain helpless on-lookers in a situation in which a “breach of the peace has taken or is taking place or is considered by the officer as likely to take place.” It is, however, obvious that the subsection which the plaintiff sought to attack was subsection 12(a) of NRCD 68 which is the corresponding power vested in the police or to the authorised public authority with respect to breaches of sections 7 and 8 of NRCD 68. It will therefore be amended to read section 12(a) in place of section 12(c) of NRCD 68. The relief affecting the whole of section 13 of NRCD 68 was also restricted to section 13(a) of NRCD 68 as section 13(b) of NRCD 68 had no relevance to any activity as was envisaged by sections 7 and 8 of NRCD 68. In any case, the plaintiff made no complaint concerning the provisions contained in sections 10 and 11 of NRCD 68.

On little difficulty however arises. Section 8(1)(b) of NRCD 68 refers to the celebration of a “traditional custom” while section 10(2)(a) of NRCD 68 speaks of the celebration of “any custom.” It seems to me that “traditional customs” are such notorious affairs that we can take judicial notice of them. These come under section 8 of NRCD 68 and will thus be affected by the unconstitutionality of that section. On the other hand such customs as may be prohibited under section 10(2)(a) of NRCD 68 are those customs which from the intendments of that section [p.499] are anti-social, degenerative of morals or involve lewd and profane singing and dancing in connection with fetish or other worship or activity.

Section 7 of NRCD 68 has been stated supra and need not be repeated here. The essential feature of that section is that the commissioner (now Minister for the Interior) may by executive instrument prohibit for not more than one week the holding of a public meeting or procession in a specified place. Indeed, in their respective statements of case none of the parties suggested or submitted that an executive instrument had been passed by the minister in respect of any of the incidents complained of. However, the defendant made two averments which brought section 7 of NRCD 68 into issue. First, the defendant averred that sections 7, 8, 12(a) and 13 of NRCD 68 were “reasonable and lawful restrictions on the freedom stipulated in article 21(d) of the Constitution, 1992 by virtue of article 21(4) of the Constitution, 1992.” Next, the defendant traversed generally “every allegation of fact and law contained in the plaintiff’s statement of case.” The issue joined by the parties consequently required this court to determine, inter alia, whether section 7 was inconsistent with and a contravention of the Constitution, 1992. Since the plaintiff was seeking a declaration to that effect against which the defendant was contesting, and there was no challenge as to whether the plaintiff had locus standi in the matter, this court had jurisdiction to entertain that issue.

The generality of section 7 of NRCD 68 is to create a prior restraint on the freedom of the citizen to hold a meeting or form a procession and it terms of article 21(d) of the Constitution, 1992 also to demonstrate in a public place. A prior restraint is an injunction prohibiting the freedom of assembly, procession or demonstration, whether such injunction or prohibition is imposed by statute or by an order of the court. It may be said that in this case, the prohibition or injunction may not be for more than one week. But then neither the section nor the whole of NRCD 68 assures that the prohibiting executive instrument cannot be repeated. Consequently, when such a power is exercised by the minister it becomes a clog on the citizen’s freedom to assemble, process and demonstrate. In Kunz v New York, 340 US 290 (1951) the US Supreme Court said:

“It is noteworthy that there is no mention in the ordinance of reasons for which such a permit application can be refused. This interpretation allows the police commissioner, an administrative official, to exercise discretion in denying subsequent permit applications on the basis of his interpretation, at that time, of what [p.500] is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which gives an administrative official discretionary power to control in advance the right of citizens to speak on religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on the exercise of First Amendment rights.”

Section 7(1) of NRCD 68 constitutes a prior restraint on the freedom of the citizen with respect to his rights under article 21(d) of the Constitution, 1992 and is unconstitutional and void.

However, the principle of prior restraint is not unknown to our Constitution, 1992. Article 21(4)(a) of the Constitution, 1992 and to a certain extent and in special circumstances article 21(4)(e) of the Constitution, 1992 clearly enunciate the principle. It will be observed that under article 21(4)(a) of the Constitution, 1992 the power to impose restrictions is vested in the courts while in article 21(4)(c) of the Constitution, 1992 the power as required to control those situations mentioned therein must be granted by a law which imposes reasonable restrictions on the fundamental freedoms but does not deny the citizen the fundamental freedoms to which he is entitled. In other words, the citizen’s freedoms may be restricted by law on the grounds stated in the Constitution, 1992 but they cannot be denied. Any such denial will be unconstitutional and void. Again with respect to restrictions imposed by a court, the audi alterem partem rule must be adhered to. In Carroll v President & Commissioners of Princess Ann, 393 US 175 (1968) the US Supreme Court held that an ex parte order forbidding a rally was unconstitutional where the applicants could not demonstrate that it was impossible to notify the opposing party in order to afford it the opportunity of contesting the application.

Section 7(2) of NRCD 68 raises an entirely different issue from section 7(1) of NRCD 68. In section 7(2) of NRCD 68 no lawful public meeting or procession can be held in the places mentioned therein “except with the written consent of the Commissioner or any person authorised by him.” It will be noted that for the first time in the history of our constitutional development, article 21(d) of the Constitution, 1992 provides for the right of the citizen to demonstrate. To demonstrate means either to petition for the redress of grievances or express support for or opposition to a cause. Once again whereas in the former Constitutions the citizen was not to be “hindered” in the enjoyment of his fundamental freedoms, in the Constitution, 1992 there is a “right” [p.501] conferred on the citizen in the enjoyment of his freedoms. This positive attitude towards the enjoyment of the freedoms cannot be abridged by a law which prevents the citizen from delivering his protest even to the seat of government. In Adderley v Florida, 385 US 39 at 54 (1966), one Adderly and others were convicted for trespassing upon the premises of a Florida county jail. The defendants had gone on the jail premises to protest against the arrest of their fellow students. They refused to leave on being notified that they would be arrested for trespass. The defendants claimed that the conviction violated their constitutional right of assembly. The US Supreme Court affirmed their convictions. I, however, incline to the views of Mr Justice Douglas expressed in his dissent in which Chief Justice Warren and Mr Justice Brennan concurred and I adopt them in support of my opinion in the present case. He said:

“There may be some public places which are so clearly committed to other purpose that their use for the airing of grievances is anomalous. There may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting may be out of keeping with the serenity of the statehouse or the quiet of the courthouse. No one, for example, would suggest that the Senate gallery is the proper place for a vociferous protest rally. And, in other cases, it may be necessary to adjust the right to petition for redress of grievances to the other interest inhering in the uses to which the public property is normally put . . . But this is quite different from saying that all public places are off limits to people with grievances . . . And it is farther yet from saying that the ‘custodian’ of the public property, in his discretion, can decide when public places shall be used for the communication of ideas, especially the constitutional right to assemble and petition for redress of grievances . . . for to place such discretion in any public official, be he the ‘custodian’ of the public property or the local police commissioner . . . is to place those who assert their First Amendment rights at his mercy. It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place to air their claims and petition their government.”

The section 72 of NRCD 68 also provides that any such meeting or procession cannot be lawfully held “except with the consent of the [Minister] or any person authorised by him.” This provision gives the minister an unfettered right to refuse his consent. To invest the minister [p.502] with such unfettered discretion is to place those who assert their constitutional rights of assembly, procession and demonstration at his mercy. “It gives him the awesome power” to decide who shall be permitted to approach those places mentioned in NRCD 68. Section 7(2) of NRCD 68 is also clearly unconstitutional.

In his statement of case, the defendant admits having withdrawn two permits and breading up a third procession—though he did not apply any violence. In his view, his actions were “lawful and reasonable exercise of authority vested in the police by the Public Order Decree, 1972 (NRCD 68).”

Before us the Deputy Attorney-General submitted that as long as the police were not vested with unfettered authority, their actions could be reviewed by the courts. He could not say under what law such actions as were complained of against the defendant could be reviewed by the courts.

Section 8 of NRCD 68 provided for the obtaining of a “permit.” It was not denied by the defendants that in all the three instances the plaintiff had applied for permits and had been so granted. What section of NRCD 68 entitled them to withdraw the permits they did not say. By section 8(4) of NRCD 68 it was only where a police officer refuses to grant a permit under section 8 of NRCD 68 should he “inform the applicant in writing of the reasons for his refusal.” (The emphasis is mine.) It is clear that even if the provisions of section 8 of NRCD 68 were lawful, which they are not, once the permit was granted there was no lawful authority for the police to withdraw it. The fact that other persons might disturb that meeting or procession and thereby cause a breach of the peace would not be a sufficient reason or ground for withdrawing the permit.

The complaint before us was that section 8 of NRCD 68 was inconsistent with the provisions of article 21(d) of the Constitution, 1992 and therefore null, void and unenforceable. The single issue raised by this section is the validity of permits as abridgments of the constitutional rights enshrined in article 21(d) of the Constitution, 1992. The matter is not without authority. There are relevant cases decided in the United States, Canada India, Pakistan, the West Indies and in the Privy Council in the United Kingdom. The United States cases predominate because the issue of the validity of local and state permits for meetings, assemblies, processoins and demonstrations of the civil rights movements and activists have been considered in a variety of landmark judgments.

[p.503]

The history of the civil rights movement in the United States led by Martin Kuther King, Jnr and other American southern black people and organisations in the 1950s and 1960s are too well documented to require repetition in this opinion. It must be admitted that this movement by the southern blacks fuelled the wrath of the southern white communities who employed two techniques against the black protesters, namely (a) prosecutions for criminal trespass; and (b) breaches of the peace. The basis of these two techniques were the laws relating to licensing and permits. In the Adderley case (supra) at Mr Justice Douglas concluded his dissent thus:

“Today, a trespass law is used to penalise people for exercising a constitutional right. Tomorrow, a disorderly conduct statute, a breach of the peace statute, a vagrancy statute will be put to the same end. It is said that the sheriff did not make the arrests because of the view which petitioners espoused. That excuse is usually given, as we know from the many cases involving arrests of minority groups for breaches of the peace, unlawful assemblies, and parading without a permit.”

We are here concerned with permits. Section 8(2) of NRCD 68 requires that the superior police officer shall consider the application for a permit “fairly and impartially.” The duty to act fairly and impartially presupposes a duty to make a determination between competing interests. In the instant subsection it involves the choice between two positions, one of which is illusory,—the citizen’s rights of assembly, procession and demonstration as against the discretion of the senior police officer in determining whether to refuse a permit on the grounds that there is the likelihood of a breach of the peace or that the meeting or procession will be prejudicial to national security. The subsection provides no guide as to the form and content of an application for a permit nor the yardstick or the standard which the senior police officer shall apply in determining whether or not he shall grant a permit. Although the senior police officer must inform the applicant of the reasons for his refusal to grant the permit, such refusal cannot be challenged in any court. Thus a senior police officer may out of prejudice, bias or even political preference refuse a permit on flippant and untenable grounds. I have already referred to Mr Justice Douglas’ dissenting opinion in the Adderley case (supra) and the necessity to prevent any abridgment of the fundamental human rights of the citizen. With our political history then as a guide, the danger that such awesome power as is contained in section 8 of [p.504] NRCD 68 will be used to suppress the fundamental freedoms and civil rights of our people becomes real and must be struck down as unconstitutional.

In Saia v New York, 334 US 558 at 560-561 (1948) Mr Justice Douglas delivering the majority opinion of the US Supreme Court said:

“In Hague v C.I.O. [307 US 496 (1939)], we struck down a city ordinance which required a licence from a local official for a public assembly on the streets or highways or in the public parks or public buildings. The official was empowered to refuse the permit if in his opinion the refusal would prevent ‘riots, disturbances or disorderly assemblage.’ We held that the ordinance was void on its face because it could be made ‘the instrument of arbitrary suppression of free expression of views on national affairs.’ The present ordinance has the same defects. The right to be heard is placed in the uncontrolled discretion of the Chief of Police. He stands athwart the channels of communication as an obstruction which can be removed only after criminal trial and conviction and lengthy appeal.”

In Saia v New York (supra) the ordinance complained of required any one seeking to use a loudspeaker system in a public place to obtain a permit. But absolute discretion to grant or refuse such permit was vested in the Chief of Police. The ordinance was held to be unconstitutional. In Hague v CIO, 307 US 496 t 515-516 (1939) Mr Justice Roberts said:

“Wherever title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purpose of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege . . . to use the streets and the parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative and must be exercised in subordination to the general comfort and convenience and in consonance with peace and order; but it must not, in the guise of regulation, be abridged or denied.”

(The emphasis is mine.)

Under our present Constitution, 1992 therefore, while in appropriate cases either the courts or a relevant law may impose a restriction on any [p.505] of the freedoms contained in article 21 of the Constitution, 1992 the requirement that a permit be obtained before the exercise thereof will be unconstitutional and void.

The Deputy Attorney-General referred to the First Amendment to the United States Constitution and submitted that that amendment was a restriction on the United States Congress to make laws abridging certain freedoms. He may well be right. The civil rights cases however show that the major victories won in aid of the improvement in the social and political standing of the African American have succeeded on the combined appliation of the First and Fourteenth Amendments to that Constitution. It is said that the first ten amendments to the United States Constitution constitute a Bill of Rights. In 1961 in the Akoto case (supra) our Supreme Court missed the opportunity to designate article 13 of the Constitution, 1960 as a Bill of Rights. The court said at 534 of the report:

“The suggestion that the declarations made by the President on assumption of office constitute a ‘Bill of Rights’ in the sense in which the expression is understood under the Constitution of the United States of America is therefore untenable.”

I think the court proceeded on the principle of ubi jus, remedium. Since no remedy was provided for a breach of article 13 of the Constitution, 1960 the matter was not justiciable. Of course our countrymen and women learnt a bitter lesson from that judgment. Every Constitution since then has provided for punishment for the infringement or breach of the Presidential Oath. In the present Constitution, 1992 the framers have done the reverse of the United States First Amendment provisions. They have set out in clear and unmistakable terms the fundamental human and civil rights which our people must enjoy. In chapter 5 of the Constitution, 1992 appropriate procedures for redress and enforcement of these rights are provided for in article 33 of the Constitution, 1992. It is interesting to note that article 33(5) of the Constitution, 1992 extends the scope of human rights enjoyment when it says that the rights mentioned in chapter 5 “. . .. shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.” I have no doubt in my mind that the framers of the Constitution, 1992 intended that the citizens of this country should enjoy the fullest measure of responsible human and civil rights. Therefore any law which seeks to abridge these freedoms and rights must be struck down as unconstitutional. The requirement of a permit or licence is one [p.506] such abridgement of the constitutional right.

Finally, the Deputy Attorney-General submitted that this court should consider the necessity for the police to have the power to perform their duties effectively. He cited the timely police and security forces intervention in the recent spate of ethnic conflicts. In his view, the police could only perform their duties effectively if they could rely on the provisions of NRCD 68. Further, that with respect to the exercise of the undoubted constitutional rights of the citizen to meet, process and demonstrate the retention of sections 7 and 8 of NRCD 68 with their consent and permit requirements was necessary to ensure that the police are able to “prevent actions which are prejudicial to the rights and freedoms of others or the public peace.” The meaning of the word “permit” therefore becomes crucial in the consideration of this submission. The police have undoubted peace-keeping powers. But can they prevent the citizen by the use of their permit from exercising his fundamental human and civil rights? In Berton v Alliance Economic Investment Co Ltd and civil rights? In Berton v Alliance Economic Investment Co Ltd [1922] 1 KB 742 at 759, CA Lord Atkin defined a permit in this manner:

“To my mind the word ‘permit’ means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man’s power to prevent it.”

I subscribe wholly to the above dictum. The object of the consent or permit requirement within the intendments of sections 7 and 8 of NRCD 68 is to give leave for the performance of an act which without such consent or permit is forbidden by law. The necessary implication therefore is that under NRCD 68 meetings, processions and demonstrations are prohibited by law unless sanctioned by the police or other such authority. This proposition—and I cannot think of a better statement of the legal position—clearly violates the enshrined provisions of article 21(d) of the Constitution, 1992 as it constitutes serious abridgment of the human rights of the citizen. Where any law or action is in conflict with the letter and spirit of the Constitution, 1992 which is the fundamental law of the land, then to the extent of such conflict or inconsistency that law is unconstitutional, void and unforceable.

In Francis v Chief of Police [1973] 2 All ER 251, PC—a case from which I have derived much assistance in preparing this opinion—their lordship of the board of the Privy Council, had occasion to examine the issue of permits and their constitutionality with respect to the [p.507] Constitution of the West India state of St Christopher, Nevis and Anguilla. The matter concerned in that case was the constitutionality of section 5(1) of the Public Meetings and Processions Act, 1969 of that country which give unfettered discretion to “the Chief of Police to grant or refuse permission for the use of noisy instrument at a public meeting.” Mr Francis was charged with using a noisy instrument—a loudspeaker—at a public meeting without first having obtained a permit from the Chief of Police. The issue raised for determination by their lordships in the Privy Council was whether section 5(1) of the Act constituted an unreasonable restriction of he freedoms contained in section 10 of that country’s Constitution?

In the Francis case (supra) at 256 the board advised that section 5(1) of the Act was not unconstitutional as “the use of loudspeakers and other noisy instruments is an adjunct or accessory” to the holding of meetings, processions and demonstrations. Interest in the Francis case (supra) arise because the St Christopher Public Meetings and Processions Ordinance is in content almost similar to our NRCD 68. The essential differences are (1) the St Christopher Ordinance deals separately with each fundamental freedom ad provides a necessary regulation for the enjoyment of each right by the citizen; and (2) there is a right of appeal to the Governor in the event of a refusal to grant a permit. Thus under section 3 of the St Christopher Ordinance which requires any person wishing to hold a public meeting to inform the police, the board said at 255 of he report:

“It should be noted that under section 3 a person who wishes to hold a public meeting, though he does have to give notice of it, does not have to ask permission, and the holding of the meeting cannot be prohibited or restricted except in special circumstances connected with the preservation of pubic order.”

(The emphasis is mine.) On the other hand under our NRCD 68, as I have said earlier, there are no such freedoms save those that are permitted by the police or other authority. The Francis case (supra) therefore distinguished permits which affect the fundamental human and civil rights from those that are adjunct or accessory to the enjoyment of those freedoms. The former are unconstitutional. In my respectful opinion, it is not necessary for effective policing that the police or any other authority shall be invested with the power to consent or issue permits for the enjoyment or exercise of he fundamental human and civil rights of the citizen as enshrined in the Constitution, 1992.

[p.508]

In rendering this opinion I have considered and applied the views— both the majority and the dissenting—contained in the judgments of the United States Supreme Court which show the principles and policy considerations involved. In my respectful opinion, they constitute useful guides to the interpretation of our Constitution, 1992—particularly the chapter on fundamental human and civil rights. In the Francis case (supra) at 259 Lord Pearson writing for the board noted that:

“The American judges look for the inherent limitations which there must be in the fundamental freedoms of the individual if the freedom of others and the interests of the community are not to be infringed.”

Lord Pearson suggests two ways which will be useful in our context in construing constitutional provision affecting fundamental human and civil rights. One way will be to read into our article 21(1)(d) of the Constitution, 1992 “the necessary limitations as are inherent” in the fundamental freedoms of assembly including the freedom to take part in processions and demonstrations. The other way will be to examine article 21(1)(d) of the Constitution, 1992 to see whether “according to the literal meaning of the words there is a prima facie hindering of or interference with the freedom of assembly, procession or demonstration” and, if there is, to examine article 21(4) of the Constitution “to see whether such hindering or interference is justifiable.”

I fully subscribe to the two ways stated above for construing the constitutionality of article 21(d) of the Constitution, 1992. The first way does not impose any difficulty in its construction. The necessary limitations which are inherent in the exercise or enjoyment of any “right” of assembly, procession or demonstration are that the citizen must observe the law—in particular that part of the Criminal Code, 1960 (Act 29) which deals with the preservation of the public peace. The other way however presents some difficulty. The literal meaning of article 21(4) of the Constitution, 1992 implies that in certain circumstances there can be laws to restrict the constitutional provisions under article 21 of the Constitution, 1992. The rider to the construction of article 21(4) of he Constitution, 1992 is, as I have stated earlier, that the law must provide for restrictions to be imposed by a court or spell out restrictions which must be neither inconsistent with nor in contravention of the provisions of the Constitution, 1992. Within the intendments of article 21(4) of the Constitution, 1992, the phrase “public order” appearing therein must be given such a wide interpretation as will protect the constitutional rights of other citizens.

[p.509]

In construing article 21(1)(d) and (4) of the Constitution, 1992 therefore, it is clear that (1) the concept of consent or permit as prerequisites for the enjoyment of the fundamental human right to assemble, process or demonstrate is outside their purview. Sections 7 and 8 of NRCD 68 are consequently patently inconsistent with the letter and spirit of the provisions of article 21(d) of the Constitution, 1992 and are unconstitutional, void and unenforceable; and (2) some restrictions as are provided for by article 21(4) of the Constitution, 1992 may be necessary from time to time and upon proper occasion. But the right to assemble, process or demonstrate cannot be denied. The sections of NRCD 68 which formed the basis of the plaintiff’s writ were ex facie unconstitutional, void and unenforceable. It is for these reasons that the plaintiff’s writ succeeded, and the declarations were granted and the orders made.

DECISION

Judgment for the plaintiff.

Order accordingly.

D R K S

NEW PATRIOTIC PARTY v RAWLINGS and ANOTHER [1993-94] 2 GLR 193—220

SUPREME COURT, ACCRA

3 May 1994

ABBAN, AMUA-SEKYI, AIKINS, BAMFORD-ADDO AND AMPIAH JJSC

Constitutional law—District Assembly—Appointment of district secretaries—Existing laws regulating operations of district assemblies continued in force by section 23(1) of transitional provisions of Constitution, 1992 until otherwise provided by Parliament under any law—Section 23(1) not qualified in anyway, nor made subject to any provision of Constitution, 1992—Section 23(1) of transitional provisions inconsistent with, inter alia, provisions of article 243 of Constitution, 1992—Validity of section 23(1)—PNDCL 207 existing law regulating operations of district assemblies—Power of appointment of district secretaries under PNDCL 207 transferred to President by virtue of section 28(2) of transitional provisions of Constitution, 1992—President appointing district secretaries pursuant to powers under section 21(1) of PNDCL 207—Whether appointments lawful—Constitution, 1992, arts 1, 11(6), 243(1) and 299—Constitution, 1992, Sched 1, ss 1, 23(1), 28(2), 31(1) and 36(2)—Local Government Law, 1988 (PNDCL 207), s 21(1).

Constitutional law—President—Proceedings against—Appointment of district secretaries by President under section 21(1) of PNDCL 207 after coming into force of Constitution, 1992—Attorney-General designated under article 88(5) of Constitution, 1992 as person to be sued in all civil proceedings against State—Plaintiff filing suit in Supreme Court under article 2 of Constitution, 1992 against President and Attorney-General for, inter alia, declaration that appointment of district secretaries by President unlawfully—Validity and property of proceedings against President—Constitution, 1992, arts 2(1)(b), 57(1), (4) and (5), 88(1) and (5).

HEADNOTES

On 16 September 1993 the Supreme Court decided in New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC that elections which were then due to be held by the Electoral Commission to approve nominations, purported to have been made by the President to the offence of district chief executive under article 243(1) of the Constitution, 1992 were unconstitutional for the reason that the district assemblies set up under section 3(1) of the Local Government Law, 1988 (PNDCL 207) had no power to give such approval. However, the next day, it was announced that the same nominees had been appointed district secretaries under section 21(1) of PNDCL 207. The plaintiff, a political party registered as a body corporate, filed a writ against the President and the Attorney-General for (a) a declaration that the appointments were inconsistent with and in contravention of articles 242, 243, 246 and 247 of the Constitution, 1992; (b) an order setting aside the appointments; and (c) an injunction restraining the [p.194] President from making such appointments in the future. In support of its writ the plaintiff contended that section 21 of PNDCL 207 ceased to have effect upon the coming into force of the Constitution, 1992. It further argued that article 243 of the Constitution, 1992 and section 21 of PNDCL 207 were in conflict and could not by virtue of article 1 of the Constitution, 1992 stand together; and that since the Constitution, 1992 superseded PNDCL 207, article 243 of the Constitution, 1992 must prevail despite the provisions of the transitional provisions of the Constitution, 1992. The defendants not only resisted the plaintiff’s claim but, inter alia, also objected to the President being joined as a defendant on the ground that by virtue of article 88(5) of the Constitution, 1992 the Attorney-General was the proper defendant to the suit.

Held, dismissing the action (Abban, Bamford-Addo and Ampiah JJSC dissenting in part):

(1) the true meaning and effect of section 21(1) of the transitional provisions of the Constitution, 1992 which stood alone and was not made subject to any provision of the Constitution, 1992 was that until Parliament enacted a law to regulate district assemblies in accordance with chapter twenty of the Constitution, 1992, the Local Government Law, 1988 (PNDCL 207) which was part of the existing laws governing the operations of district assemblies was to continue in operation regardless of whether its terms were in conformity with the Constitution, 1992. Hence, until the new local government law was enacted on 24 December 1993, the whole of PNDCL 207, including section 23(1) thereof, continued to have full force by virtue of section 21(1) of the transitional provisions of the Constitution, 1992 which provision was clearly a recognition of the need for government at the local level to continue until Parliament deliberated and made changes in the existing law. Furthermore, the power to appoint district secretaries which was under PNDCL 207 vested in the Provisional National Defence Council itself, devolved on the President by virtue of section 28(2) of the transitional provisions of the Constitution, 1992. Accordingly, the President lawfully exercised the power to appoint district secretaries on 17 September 1993. Pretty v Solly (1859) 26 Beau 606; Wood v Riley (1867) LR 3CP 26; R v Glamorganshire Justice (1889) 22 QBD 628; R v Bridge (1890) 24 QBD 609 and Institute of Patent Agents v Lockwood [1894] AC 347, HL applied.

Per Aikins JSC: The language of section 23(1) of the transitional provisions of the Constitution, 1992 is clear and unambiguous… The subsection stands out without any qualification whatsoever. It is not made subject to any provision of the Constitution, 1992 unlike article 11(6) of the Constitution, 1992 and sections 31(1) and 36(2) of the transitional provisions of the Constitution, 1992 where we find repeated use in the sections of the expressions “with such modifications, adaptions, qualifications and exceptions as may be necessary to bring it (ie the law) [p.195] into conformity with the Constitution and in so far as it is not inconsistent with the Constitution.” These expressions are general provisions as against the specific provision of section 23(1) which appears to have been put in for transitional arrangements, and which, in my view, did not cease to have effect on the coming into force of the Constitution, 1992.

The law with respect to general and particular or specific enactments is trite and is to the effect that where a particular or specific enactment, and a general enactment appear in the same statute, and the general enactment, taken in its most comprehensive sense, would override the specific enactment, the specific enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply… This is an application of the maxim generalia specialibus non derogant. This special provision stands as an exceptional proviso upon the general. It is only where it appears from a consideration of the general enactment in the light of prevailing circumstances that Parliament or in the case of a Constitution, its framers, intend only to establish a rule of universal application, that the special provision must give any way thereto… But in the instant case, the situation is different.

Per Bamford-Addo JSC: The plaintiff however argued that since the Constitution, 1992 has superseded PNDCL 207 and the two enactments are in conflict, they cannot by virtue of article 1 of the Constitution, 1992 stand together and article 243 must prevail over section 21(1) of PNDCL 207 despite the provisions of section 23(1) of the transitional provisions of the Constitution, 1992 and article 299 thereof. I am unable to agree with the stand of the plaintiff. Article 299 of the Constitution, 1992 states that the provisions of the transitional provisions shall have effect notwithstanding anything to the contrary in the Constitution, 1992, so that even if there is a conflict between article 243(1) of the Constitution, 1992 and section 21(1) of PNDCL 207, section 23(1) of the transitional provisions of the Constitutions, 1992 prevents PNDCL 207 being declared null and void or inconsistent with the Constitution, 1992 till Parliament makes new laws. Further, if PNDCL 207 is not to be held inconsistent with the Constitution, 1992, particularly article 243(1), then by virtue of the provisions of section 36(2) of the transitional provisions of the Constitution, 1992 there is the authority for the continued operation of PNDCL 207 including section 21(1) thereof…Therefore PNDCL 207 continues to remain the law regulating the operations of the existing district assemblies and section 21(1) thereof being part of PNDCL 207 can be invoked to appoint district secretaries. If it were not so the existing district assemblies cannot function or operate, since it is the district secretaries who under section 21(2) of PNDCL 207…are responsible for the supervision of the day-to-day functioning of these assemblies.

The plaintiff’s stand, it seems to me, cannot be right, as to interpret [p.196] section 23(1) as suggested by counsel, would frustrate the intention gathered from that section, namely to keep the district assemblies running until Parliament makes new laws regulating them.

(2) (Abban and Bamford-Addo JJSC dissenting.) Article 57(4) of the Constitution, 1992, which exempted the President from being personally brought before any court for acts done or omitted to be done in the performance or purported performance of his constitutional duties or his duties under any law, specifically excepted actions brought under article 2 of the Constitution, 1992 and proceeding involving the prerogative writs. The term “any person” appearing in article 2(1)(b) of the Constitution, 1992 clearly included the President of the Republic so that where it was alleged that the President had by himself or his agent acted in contravention of any of the provisions of the Constitution, an action could lie against him personally. Likewise the President was by virtue of article 57(4) of the Constitution, 1992 personally subject to the prerogative writs in respect of the performance of his public duties, so that in the appropriate case he could be proceeded against personally by way of the prerogative writs for acts or omissions in the performance of his public duties. Consequently, in the instances specifically excepted under article 57(4) an action could in the appropriate case be brought against the President alone or jointly with the Attorney-General. Sallah v Attorney-General, Court of Appeal (sitting as Supreme Court), 20 April 1970, unreported; digested in (1970) CC 55 and Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC applied.

Per Amua-Sekyi JSC: Although the President is the first citizen, he is not above the law. The medieval fiction that the “King can do no wrong”, which the sophist interpreted to mean that if the action was wrong then it was not of the King, has no place in a republican setting which prides itself on all citizens being equal under the law and therefore obliged to act in conformity with it. We recognise that an executive President being the most powerful person in the state is the one who has the greatest capacity for wrong-doing. We do not need a petition of right or a notional defendant like the Attorney-General before we can exercise our democratic right of calling an erring President to order under article 2 of the Constitution, 1992 which only commands him to obey any order or direction this court may give, but also makes his failure to obey any order or direction a ground for his removal from office.

Contra per Abban JSC: Thus, official acts of the President can be challenged either by means of prerogative writs or by instituting action in the Supreme Court under article 2 of the Constitution, 1992. However, I am of the view that in such cases it would not be right to make the President a defendant. By virtue of article 57(1) of the Constitution, 1992 the President is not only the “Head of State” but also the “Head of Government”; and article 58(1) of the Constitution, 1992 vests the [p.197] executive authority of Ghana in the President. So whenever the President carries out executive duties vested in him by the Constitution, 1992 or by any other law, he does so as a Government of Ghana.

In the circumstances, the President by appointing district secretaries under section 21(1) of the Local Government Law, 1988 (PNDCL 207) was performing an executive function of the government. It was an executive act of the Government of Ghana taken in the name of the President by virtue of article 58(4) of the Constitution, 1992… It is therefore obvious that the Government of Ghana is personified in the President. This does not mean that the President should be made a defendant whenever any executive act of the government done in his name is being challenged in court proceedings. In the particular circumstances of the president case the suit herein should be brought against the Attorney-General only as the defendant for and on behalf of the Government of Ghana, in accordance with article 88(5) of the Constitution, 1992. That is, the Attorney-General is the proper defendant and not the President.

CASES REFERRED TO

(1) New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC.

(2) Sallah v Attorney-General, Court of Appeal (sitting as Supreme Court), 20 April 1970, unreported; digested in (1970) CC 55; (1970) 2 G & G, 493.

(3) Tuffuor v Attorney-General [1980] GLR 637; CA sitting as SC.

(4) Pretty v Solly (1859) 26 Beau 606.

(5) R v Glamorganshire Justices (1889) 22 QBD 628; 60 LT 536; 5TLR 403.

(6) R v Bridge (1890) 24 QBD 609; 62 Lt 297.

(7) Wood v Riley (1867) LR 3 CP 26; 17 LT 216;

(8) Institute of Patent Agents v Lockwood [1894] AC 347; 71 LT 205; 10 TLR 527, HL

NATURE OF PROCEEDINGS

ACTION against the President of the Republic of Ghana personally and the Attorney-General for a declaration that his appointment of district secretaries was unlawful; an order setting aside the appointments; and an injunction restraining the President from making such appointments.

COUNSEL

Peter Ala Adjetey (with him Sam Okudzeto, Kwadwo Afram Asiedu, Philip Addison and William Addo) for the plaintiff.

[p.198]

Dr Obed Asamoah, Attorney-General (with him Martin Amidu, Deputy Attorney-General and Mrs Adusa-Amankwa, Chief State Attorney) for the defendants.

JUDGMENT OF AMUA-SEKYI JSC.

On 16 September 1993 this court unanimously decided in New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC, ante, that elections which were then due to be held by the Electoral Commission set up under article 43 of the Constitution, 1992 for the purpose of approving nominations purported to have been made by President Rawlings, the first-named defendant, under article 243(1) to the office of district chief executive, would violate the Constitution, 1992 as the district assemblies established under the provisions of section 3(1) of the Local Government Law, 1988 (PNDCL 207) had no power to give such approval. The next day, it was announced that the first-named defendant had appointed those same persons as district secretaries under section 21(1) of PNDCL 207. The plaintiff says that this was unlawful and it has filed this writ to challenge his right to do so. The Attorney-General is named as the second defendant.

As formulated in its writ and statement of case, the complaint of the plaintiff is that the appointments are inconsistent with, and a contravention of articles 242, 243, 246 and 247 of the Constitution, 1992. It asks for a declaration to that effect, an order setting aside the appointments which were made and an injunction restraining the first-named defendant from making other such appointments in the future. If the plaintiff is right, then there is a hiatus in the law for whereas, by our decision, the first-named defendant could not lawfully appoint district chief executives, he could not also appoint district secretaries.

Article 242 of the Constitution, 1992 deals with the composition of district assemblies, article 243, with the office of district chief executive; article 246, with the term of office of members of district assemblies; and article 247 gives Parliament power to make laws on the qualifications for membership and the procedures of district assemblies. Article 247 does not seem to be relevant to the matter before us. As at the time the appointments were made, indeed when the writ was filed, Parliament had not exercised the power conferred on it, there were no laws made pursuant to the article which could have been contravened. Articles 242, 243 and 246 of the Constitution, 1992 formed the basis of the opinions we delivered in the earlier case and which resulted in the order of injunction restraining the Electoral Commission, I stated (supra) at 136:

[p.199]

“The defendant-commission ought to have known that they were embarking on an illegal and unconstitutional act. PNDCL 207 gave members of district assemblies no power to give approval to the appointment of district secretaries, by whatever name called; the office of district chief executive was created by the Constitution, 1992 not PNDCL 207, the composition of district assemblies under the Constitution, 1992 is different from that under PNDCL 207; under the Constitution, 1992 the term of office of an assembly member is limited to four years, whereas that of the assembly members elected under PNDCL 207 has already extended beyond four years.”

Our decision was that the assemblies set up under PNDCL 207 could not lawfully perform the functions of those set up under the Constitution, 1992.

At the time we gave our decision, the assemblies were performing functions under PNDCL 207 without any eyebrows being raised. So were the district secretaries appointed under the Law. Perhaps, if an attempt had not first been made to appoint district chief executives—a position known only to the Constitution, 1992—but instead, district secretaries had been appointed to fill vacant posts, the propriety of the action would not have been questioned. We are not, however, concerned with the sequence of events. Our task is to examine the action and see if it was lawful.

It will be recalled that although the Constitution, 1969 came into force on 22 August 1969, it was not until 9 July 1971 that the Local Administration Act, 1971 (Act 359) was passed to bring the law regulating local government into conformity with the Constitution, 1969. In the interval, local government bodies continued to function under the authority of the Local Government Act, 1961 (Act 54), as amended and the Local Government (Interim Administration) Decree, 1966 (NLCD 26), as amended. In 1979 there was a three-month interval between the coming into force of the Constitution, 1979 and the passing of the Local Government (Amendment) Act, 1980 (Act 403). During this period the business of local government did not come to a halt. It continued under the authority of Act 359. Although the point was never tested in court, it was thought that in each case the new Constitution had anticipated that there would be an interval during which the old local government structures would have to be retained and had permitted them to do so under the general provision which made the existing law part of the laws [p.200] of Ghana.

In the Constitution, 1992 this provision will be found in article 11(4). However, in view of the marked differences between the old and the new local government set-up, it would not be enough to refer to this provision since the existing law is required by clause (6) of article 11 of Constitution, 1992 to be construed with:

“(6) …any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution.”

The same observation may be made of sections 31(2) and 36(2) of the transitional provisions of the Constitution, 1992. Section 31(2) of the transitional provisions of the Constitution, 1992 states that:

“(2) …where anything is required or authorised by this Constitution to be prescribed or provided for by or under an Act of Parliament, it shall be deemed to be duly prescribed or provided for, if it has been prescribed or provided for by or under an Act, Decree, or a law in force immediately before the coming into force of this Constitution.”

Section 36(2) of the transitional provisions of the Constitution, 1992 provides that:

“(2) …any enactment or rule of law in force immediately before the coming into force of this Constitution shall, in so far as it is not inconsistent, with the provision of this Constitution, continue in force as if enacted, issued, or made under the authority of this Constitution.”

As with article 11, although sections 31(2) and 36(2) of the transitional provisions of the Constitution, 1992 have the effect of saving PNDCL 207 generally, they do not save those portions which are inconsistent with the provisions of the Constitution, 1992. If one were to apply them to the office of a district secretary one would have to regard it as having been abolished because whereas he is appointed by the executive without any prior consultations with the people of the district, the district chief executive can take office only if his appointment is approved by a majority of not less than two-thirds of the members of the assembly present and voting at the meeting. Thus, even though under these provisions the entire body of Laws of the PNDC were validated, [p.201] this was only to the extent that they were not inconsistent with the Constitution, 1992.

Then there is section 8 of the transitional provisions of the Constitution, 1992. Subsection (1) of which states:

8. (1) A person who immediately before the coming into force of this Constitution held or was acting in an office in existence immediately before the coming into force of this Constitution, shall be deemed to have been appointed as far as is consistent with the provisions of this Constitution…”

Again, this will not do, because although it permitted career and contract officers holding office in the public services to continue to hold the equivalent office under the Constitution, 1992, political appointees like district secretaries could not take advantage of it to remain in office. The reason is that by the terms of their employment they were required to vacate their offices whenever the appointing authority called upon them to do so. The office of district chief executives was not an “equivalent office” to which they could be deemed to have been appointed under the Constitution, 1992. All that they could hope for was to be permitted to stay on as district secretaries until they were replaced by district chief executives.

It seems to me, however, that the present situation was anticipated as section 23(1) of the transitional provisions of the Constitution, 1992 meets fully the objection taken by the plaintiff. It reads “23. (1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.” At the time the Constitution, 1992 came into force, one of the “existing laws” governing the operations of district assemblies was PNDCL 207, section 21(1) of which, as already stated, gave the executive power to appoint district secretaries.

The provision is not qualified in any way. It stands alone and is not made subject to the provisions of the Constitution 1992. We do not have a repetition of the familiar phrase “in so far as is not inconsistent with the provisions of this Constitution.” Therefore, taking the provision as it stands, and giving effect to the ordinary meaning of the words used, section 23(1) means that until Parliament enacted a law to regulate district assemblies in accordance with chapter 20 of the Constitution, 1992, PNDCL 207 was to continue in operation regardless of whether its terms were in conformity with the Constitution, 1992. The provision is a recognition of the need for government business at the local level to [p.202] continue while Parliament deliberated on the matter and made the necessary changes in the existing law. The alternative would have been to incorporate the entire body of laws on local government in the Constitution, 1992.

It is worthy of note that some of the persons appointed to the office of district secretary were already holding that office when the announcement was made. For these, their reappointment was, to quote from:

“…To be possessed with double pemp. To guard a title that was rich before. To gild refined gold, to paint the lily. To throw a perform on the violet. To smooth the ice, or add another hue unto the rainbow…”

Looked at objectively, there was an urgent need to fill all vacancies in the office of district secretary on account of the role he is called upon to play under PNDCL 207 in the local government set up. Section 3(1)(a) of PNDCL 207 makes him a member of the district assembly; section 21(2), makes him responsible for the day-to-day supervision of the department and organisations of the district by section 12(1), he presides over meetings of the executive committee of the assembly, section 8(2) requires him to present a report on the work of the executive committee to the assembly at the beginning of each session, and to submit the recommendations of the assembly on matters of national concern to the government; section 8(1) gives him the right to address the assembly when in session on the policies of the government; section 99 makes him the proper officer to receive notice of an intention to sue an assembly; and, by section 112(1)(c), he is a member of the co-ordinating council of the region in which his district is situated. In short, he is not only an important officer of the district assembly but also a vital link between the assembly and the central government. His office is not which can be left vacant for long.

It will be observed that under PNDCL 207, the appointing authority of district secretaries was the Provisional National Defence Council in the exercise of the executive power it had taken for itself. By section 28(2) of the transitional provisions of the Constitution, 1992, that power devolved on the President. After a most careful examination on the law, I am unable to accept the contention of the plaintiff that section 21 of PNDCL 207 ceased to have effect upon the coming into force of the Constitution, 1992. On the contrary, I am satisfied that until the Local Government Act, 1993 (Act 462) was enacted on 24 December 1993, the whole of PNDCL 207 continued to have full force and effect. It follows, [p.203] therefore, that the power to appoint district secretaries was lawfully exercised on 17 September 1993.

Two other issues that were raised were whether the President was a proper defendant in the action and whether this court has power to issue an injunction directed to him. Dealing with these, the learned Attorney-General drew attention to article 88(5) of the Constitution, 1992 and submitted that he alone was the proper defendant to the action brought by the plaintiff. The said article reads:

“(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

Arguing to the contrary, Mr Adjetey, leading counsel for the plaintiff, referred to article 57(4) of the Constitution, 1992 and submitted that actions brought under article 2 of the Constitution, 1992 were specifically excepted from the immunity from suit granted to the President while in office. The said article reads:

“(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.”

(The emphasis is mine.) Article 88(5) of the Constitution, 1992 restates the law as laid in the State Proceedings Act, 1961 (Act 51). Article 57(4) of the Constitution, 1992 is also not new: it is a reproduction, word for word, of article 44(9) of the Constitution 1979, and substantially the same as article 36(6) of the Constitution, 1969.

Article 36(6) of the Constitution, 1969 came up for interpretation by the Court of Appeal sitting as the Supreme Court in Sallah v Attorney-General (1970) 2 G & G 493, CA sitting at SC 55 when the then Attorney-General argued that the act complained of being that of the Presidential Commission, which then exercised the executive powers of the President, the action could have been brought only against the commission, but article 36(6) operated to give the commission complete immunity from suit. The court, comprising Apaloo, Siriboe, Sowah, Anim and Archer JJA (as they then were) held that the immunity [p.204] granted to the President under article 36(6) did not extend to the government on whose behalf the act was done and that the Attorney-General had properly been made a defendant in the suit. In his opinion, Archer JA (as he then was) noted at 493 of the judgment thus:

“Does this article mean that the acts of the President cannot be challenged in a court of law? I do not think so. In my view, the article confers on the President nothing more than procedural immunity. The article does not confer substantial immunity. It means that the official acts of the President can be challenged but he cannot be made a defendant in judicial proceedings or be made personally liable for the result of the proceedings.”

He then referred to clauses (7) and (8) of article 36 of the Constitution, 1969 which correspond to clauses (10) and (11) of article 44 of the Constitution, 1979 and clauses (5) and (6) of article 57 of the Constitution, 1992, and continued at the same page:

“The policy behind article 36(6), 36(7) and 36(8) is too obvious. Is it proper that the Head of State should be dragged into the court-room while he holds office? The answer is defintely no. The dignity and the aura of respectability in which the office of President is enveloped must be preserved…[The] sensible reason for not suing the President in court is to preserve his dignity.”

Sowah JA (as he then was) also said at 503 of the judgment:

“The President is the ‘fount of honour’ and the person occupying the seat must do so in dignity and majesty…[The] Constitution seeks to maintain that awe, dignity and majesty which surrounds the office and seeks to insulate it as far as possible from the humdrum of legal processes and even from the arena of political life…

Though the Presidency cannot be inducted into the legal arena, the Government of Ghana can be and is answerable for the lawful performance of the executive powers vested in the President.”

These statements reflect the position of the President in the Constitution, 1969. He was a figure-head, more like the Governor-General of the immediate post-independence period, who represented whoever [p.205] happened to be King or Queen of the United Kingdom. He did not wield executive power, rather, he was required to act in accordance with the advice of the cabinet. Under the Constitution, 1969 real power lay with the cabinet presided over by the Prime Minister.

All this notwithstanding, Apaloo JA (as he then was) recognised that Sowah and Archer JJA (as they then were) had stated the law much too widely even for the ‘ceremonial’ President of the Constitution, 1969. After stating that the government represented by the Attorney-General had been properly sued for the act of the Presidential Commission, he made this all-important observation at 508 of the judgment:

“It ought, however, to be borne in mind that the immunity from legal proceedings granted to the President in the performance or purported performance of his constitution or other legal duty is not absolute. His immunity from court proceedings does not extend to proceedings taken against him by any of the prerogative writs. It would follow from this that if the President failed or neglected to perform a public duty imposed on him by law, a person affected by his failure can compel him in court by the prerogative order of mandamus.”

In like manner, the immunity did not extend to proceedings for the removal from office of the President under article 47 of the Constitution, 1969 which had also been excepted from the operation of article 36(6) of the Constitution, 1969.

Article 57(4) of the Constitution, 1992 which I have already quoted, makes reference to article 2, clause 1(b) of which reads:

“2.(1) A person who alleges that—…

(b) any act or omission of any person—

is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in a Supreme Court for a declaration to that effect.”

(The emphasis is mine.) If words have any meaning, the term “any person” must include the president of the Republic; and, if it does, then there is no reason why he cannot be called upon to answer for alleged infringements of constitutional provisions. I venture to say that it would be a breach of the audi alteram partem rule not to make him a partly to such an action.

Although the President is the first citizen, he is not above the law. The medieval fiction that the “King can do no wrong”, which the sophist [p.206] interpreted to mean that if the action was wrong then it was not that of the king, has no place in a republican setting which prides itself on all citizens being equal under the law and therefore obliged to act in conformity with it. We recognise that an executive President being the most powerful person in the state is the one who has the greatest capacity for wrong-doing. We do not need a petition of right or a notional defendant like the Attorney-General before we can exercise our democratic right of calling an erring President to order under article 2 of the Constitution, 1992 which not only commands him to obey any order or direction this court may give, but also makes his failure to obey any order or direction a ground for his removal from office.

Three examples may be given. First, article 106(8), (9) and (10) of the Constitution, 1992 lay down that if the President exercises his right to refuse to assent to a bill passed by Parliament and, having reconsidered the bill, Parliament passes it by a resolution supported by the votes of not less than two-thirds of all members of Parliament, the President is required to assent to it within 30 days of the passing of the resolution. If in such a case the President refuses to assent to the bill, an action may be brought against him as the defendant under article 2 of the Constitution, 1992 for a mandatory injunction requiring him to perform his constitutional duty.

The second example is taken from a real-life situation which occurred in a certain South American country whose democratic structures are as fragile as our own. There, a President who found that his wishes were being thwarted by the elected congress, staged a coup d’etat with the aid of the military and proceeded to rule by decree. I am satisfied that if such a situation were to arise in this country, and there was hope of resistance, an action may be brought against the President as the defendant under article 2 of the Constitution, 1992 for a declaration that his act is unlawful and a breach of the Constitution, as well as for consequential orders, thus paving the way for his impeachment. It would be idle to make the Attorney-General who, for all one knows, may have opposed the actions of the President, the defendant in such an action.

My third example comes from our own continent. Not long ago, the military dictator of an African country decided that he would rather be an emperor. He dressed himself up in the uniform of a footman in Napoleon’s army and crowned himself at a public ceremony! Should we in this country ever have the misfortune of electing a megalomaniac to the office of the President, we would be well within our rights in bringing an [p.207] action against him personally under article 2 of the Constitution, 1992 if he should exhibit conduct likely to lead the overthrow of the Constitution.

In the light of the foregoing, I am of the opinion that whenever it is alleged that the President has by himself or any agent acted in a manner inconsistent with or in contravention of a provision of the Constitution, 1992 an action may be brought against him under article 2 of the Constitution, 1992 for a declaration to that effect, and for consequential orders, including an injunction. President Rawlings was, therefore, properly made a defendant in this suit. However, on the merits the action fails, and it is hereby dismissed.

JUDGMENT OF ABBAN JSC.

I would like to express my views about the issue as to whether or not the President is amenable to proceedings. This issue was not at all vital or important to the decision in the case. But since it was raised and argued I think an opinion should be expressed on it.

Article 57(5) and (6) of the Constitution, 1992 gives complete immunity in civil and criminal proceedings to the President while in office. But it seems to me that the immunity which article 57(4) of the Constitution, 1992 grants to the President is not absolute. That is, article 57(4) does not confer substantive immunity in so far prerogative writs and actions brought under article 2 of the Constitution, 1992 are concerned.

Thus, official acts of the President can be challenged either by means of prerogative writs or by instituting action in the Supreme Court under article 2 of the Constitution, 1992. However, I am of the view that in such cases it would not be right to make the President a defendant. By virtue of article 57(1) of the Constitution, 1992 the President is not only the “Head of State” but also the “Head of Government”; and article 58(1) of the Constitution, 1992 vests the executive authority of Ghana in the President. So whenever the President carries out executive duties vested in him by the Constitution, 1992 or by any other law, he does so as the Government of Ghana.

(The emphasis is mine.) It is therefore obvious that the Government of Ghana is personified in the President. This does not mean that the President should be a defendant whenever any executive act of the government done in his name is being challenged in court proceedings. In the particular circumstances of the present case, the suit herein should be brought against the Attorney-General only as the defendant for and on behalf of the Government of Ghana, in accordance with article 88(5) of the Constitution, 1992. That is the Attorney-General is the proper defendant and not the President.

It is not every case that the President of Ghana should be dragged to the court-room. The office of the President deserves respect. The dignity and the aura of respectability in which the office of the President is shrouded ought to be maintained and preserved: see Sallah v Attorney-General, (1970) 2 G & G 493, CA sitting as SC. The very issue raised in the present suit by the Attorney-General, was also raised by the then Attorney-General in the Sallah case (supra).

It must be observed that the provision made in article 57(4), (5) and (6) of the Constitution, 1992 are identical to the provisions in article 36(6), (7) and (8) of the Constitution, 1969. Those provisions were put to the test in the Sallah case (supra) and the majority (Apaloo, Sowah and Archer JJA (as the then were) held that the President had no substantive immunity, although his official acts could be challenged in court by prerogative writs, the Attorney-General was the proper defendant in such proceedings. In the course of his judgment Archer JA (as he then was) said at 493-494 of the judgment:

The policy behind article 36(6), 36(7) and 36(8) is too obvious. Is it proper that the Head of State should be dragged into the court-room while he holds office? The answer is definitely no. The dignity and the aura of respectability in which the office of the President is enveloped must be preserved… In Ghana, the sensible reason for not suing the President in court is to preserve his dignity…

In the present case, the plaintiff by virtue of article 106 of the Constitution had come to the Supreme Court for the interpretation of section 9(1) of the Transitional Provisions which has been put into effect by the Government of Ghana in such a way as to terminate his appointment. As the Attorney-General by article 68 of the Constitution, is the principal legal adviser to the government, it is proper and fitting that he should appear in this [p.209] suit as defendant for and on behalf of the Government of Ghana.”

(The emphasis is mine.)

I entirely agree with this opinion. I should observe that Sowah JA (as he then was) expressed similar opinion in the course of his judgment when he said at p 503:

“The Attorney-General does not deny that an action is maintainable at law against the Government of Ghana; he argues, however, that the act complained of was one executed by the President and that act cannot be challenged in these courts no matter the nature and scope of the act. I am unable to accept this. The short answer is that whenever the President carries out the executive duties vested in him by the Constitution, he does so as the Government duties vested in him by the Constitution, he does so as the Government of Ghana… The President is the fount of honour and the person occupying the seat must do so in dignity and majesty… So it is that the Constitution seeks to maintain that awe, dignity and majesty which surrounds the office and seeks to insulate it as far as possible from the humdrum of legal processes… In him is personified the Government of Ghana…

Though the Presidency cannot be inducted into the legal arena, the Government of Ghana can be answerable for the lawful performance of the executive powers vested in the President.”

(The emphasis is mine.)

I must also refer to what Apaloo JA (as he then was) stated at 508 of the judgment:

It ought, however, to be borne in mind that the immunity from legal proceedings granted to the President in the performance or purported performance of his constitutional or other legal duty is not absolute. His immunity from court proceedings does not extend to proceedings taken against him by any of the prerogative writs. It would follow from this that if the President failed or neglected to perform a public duty imposed on him by law, a person affected by his failure can compel him in court by the prerogative order of mandamus… In holding that this action was properly brought against the government. I share the unanimous opinion of my brothers. If that action was properly brought, it cannot be doubted that it was properly brought against the Attorney-General on its behalf. In my opinion, the preliminary objection was an unmeritorious one and ought to have been, as indeed it was, dismissed.”

[p.210]

(The emphasis is mine.)

There is therefore no doubt that the official acts of the President can be questioned in the Supreme Court under article 2 of the Constitution, 1992, and also through the use of the prerogative writs. But as I have already stated, in such cases, as in the present one, only the Attorney-General should appear in the suit as the defendant for and on behalf of the government or the state for that matter, as was done in the Sallah case (supra) and also in Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.

In the Tuffuor case (supra), which was cited by both counsel in the course of their arguments, the plaintiff, Tuffuor, in his second relief sought a declaration (at 643 of the report) that:

“(b) The 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 affected in contravention of the Constitution and laws of the Republic and were therefore all null and void and of no effect.”

(The emphasis is mine.)

It would be seen that it was the acts of President Limann and Parliament which Tuffuor challenged by invoking the original jurisdiction of the Supreme Court under article 2 of the Constitution, 1979 and which article was identical in terms with article 2 of the Constitution, 1992. But in the Tuffuor case (supra), President Limann was not made a party to the suit, even though it was his acts which were called in question in that suit. It was the Attorney-General, as the principal legal adviser of the government, who was made the defendant. That was the right procedure.

The plaintiff, in the present case, did the right thing by suing the Attorney-General. But it was improper to join President Rawlings as a defendant. This is one of the situations where it can be said that the President had procedural immunity.

However, I agree with my brother Amua-Sekyi JSC that the plaintiff’s action must be dismissed for the reasons which he has lucidly set out in the lead judgment.

[p.211]

JUDGMENT OF AIKINS JSC.

I am in entire agreement with the reasoning and conclusion of the lead judgment just read by my learned brother Amua-Sekyi JSC. I do not have much to contribute in support of the judgment.

The plaintiff is complaining that the appointments of district secretaries made by the first defendant as President on 17 September 1993 are inconsistent with, and in contravention of the Constitution, 1992, specifically articles 242, 243 and 247 and that these appointments should be set aside by this court. Further, the plaintiff is asking for an order of injuction prohibiting and restraining the President from nominating, appointing or electing district secretaries to perform the functions set out in the Constitution, 1992 to be performed by district chief executives otherwise than as laid down in the Constitution, 1992.

The functions of the district chief executive as laid down under article 243(2) of the Constitution, 1992 are that:

“(2) The District Chief Executive shall:—

(a) preside at meetings of the Executive Committee of the Assembly;

(b) be responsible for the day-to-day performance of the executive and administrative functions of the District Assembly; and

He is also a member of the assembly by virtue of article 242(c) of the Constitution, 1992. All these functions were and are performed by the district secretary under various provisions of the Local Government Law, 1988 (PNDCL 207), and he is also a member of the district assembly—see section 12(1), 21(2), 8(2)(b) and 3(1)(a) of PNDCL 207. There is therefore no need for this court to issue an order restraining the President from asking the district secretary to perform the functions of the district chief executive since both officers perform the same functions in the district assembly either under article 243(2) of the Constitution, 1992 or under PNDCL 207.

The language of section 23(1) of the transitional provisions of the Constitution, 1992 is clear and unambiguous. It says:

“23.(1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.”

The subsection stands out without any qualification whatsoever. It is not [p.212] made subject to any provision of the Constitution, 1992, unlike article 11(6) of the Constitution, 1992 and section 31(1) and 36(2) of the transitional provisions of the Constitution, 1992 where we find repeated use in the sections of the expression “with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it (ie the law) into conformity with the Constitution and “in so far as it is not inconsistent with the Constitution.” These expressions are general provisions as against the specific provision of section 23(1) which appears to have been put in for transitional arrangements, and which, in my view, did not cease to have effect on the coming into force of the Constitution, 1992.

The law with respect to general and particular or specific enactments is trite and is to the effect that where a particular or specific enactment and a general enactment appear in the same statute, and the general enactment, taken in its most comprehensive sense, would override the specific enactment, the specific enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply—see Pretty v Solly (1859) 26 Beau 606 at 610. This is an application of the maxim generatia specialibus non derogant. This special provision stands as an exceptional proviso upon the general. It is only where it appears from a consideration of the general enactment in the light of prevailing circumstances that Parliament or in the case of a Constitution, its framers, intended only to establish a rule of universal application, that the special provision must give way thereto—see R v Glamorganshire Justices (1889) 22 QBD 628 and R v Bridge (1890) 24 QBD 609. But in the instant case, the situation is different.

In view of my thinking above, I do not seem to agree with the learned Acting Attorney-General that section 23(1) should be read together with section 31(2) of the transitional provisions of the Constitution, 1992. The language of section 31 is clear and unambiguous. Subsection (1) is the operative clause, and it clearly states that the existing law shall, as from the coming into force of the Constitution, 1992 have effect with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution, 1992. Subsection (2) is put in parenthesis for the avoidance of doubt only, and without prejudice to the general effect of subsection (1) of section 31. Subsection (1) therefore, in my view, qualifies subsection (2).

The learned Acting Attorney-General thinks there is inconsistency [p.213] between the two subsections and would like subsection (2) to be taken out and read together with section 23(1) of the transitional provisions of the Constitution, 1992. True, it is sometimes said that where there is an inconsistency between two provisions in the same statute, the latter prevails: see Wood v Riley (1867) LR 3 CP 26, but this is doubtful. It seems the better view is that the courts must determine which is the leading provision and which is the subordinate provision, and which must give way to the other: see Institute of Patent Agents v Lockwood [1894] AC 347 at 360, HL. Subsection (2) of section 31 of the transitional provisions of the Constitution, 1992 must under the circumstances give way to subsection (1). I would therefore not agree that subsection (2) should be singled out and read with section 23(1) of the transitional provisions of the Constitution, 1992.

As to the argument that the district secretaries should have been appointed by the Provisional National Defence Council under section 21(1) of PNDCL 207, it is clear from section 29(3) of the transitional provisions of the Constitution, 1992 that the President has power to make the appointments as he did. The subsection runs thus:

“(3) A reference to the Provisional National Defence Council in any enactment in existence immediately before the coming into force of the Constitution, where the reference relates to an executive function of the Council shall be construed as a reference to the President.”

The exercise of this power to appoint is clarified by section 10(1) of the Interpretation Act, 1960 (CA 4) which states that “Where an enactment confers a power or imposes a duty the power may be exercised and the duty shall be performed from time to time as occasion requires.” And section 12(1) of the same CA 4 emphasises that the power to appoint includes the power (a) to remove or suspends; or to reappoint or reinstate the person involved.

The issue whether the first defendant is amenable to these proceedings under the Constitution, 1992 has been well dealt with in the lead judgment, and I agree with my learned brother’s conclusion. The provision in article 57(4) of the Constitution, 1992 that the President is not liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done in the performance of the functions, under the Constitution, 1992 is without prejudice to the provisions of article 2 of the Constitution, 1992 and the operation of the prerogative writs. Article 2(1)(b) of the [p.214] Constitution, 1992 makes the President liable for any act done which is inconsistent with, or in contravention of a provision of the Constitution.

The plaintiff brought this action under article 2 of the Constitution, 1992 and, in my view,the proper person to be sued is the President who made the appointments complained of, and he cannot hide behind the Attorney-General because whatever orders that are to be issued are to be directed to him. The President is not above the Constitution—he is subject to it.

He is also subject to the prerogative writs. In other words, the orders of mandamus, certiorari and prohibition will lie against him because he has public duties to perform, and that performance can be compelled against him under article 57(4) of the Constitution, 1992. By article 58(1) the executive authority of this country vests in him to be exercised in accordance with the Constitution, 1992. It is therefore in order that he should be made a defendant in the suit as well as the Attorney-General who is, by virtue of article 88(1) of the Constitution, 1992, the principal legal adviser to the government, for and behalf of the Government of Ghana: see Sallah v Attorney-General: (1970) 2 G & G 493, CA sitting as SC a decision of the Court of Appeal sitting as the Supreme Court, where a similar holding was made.

Clauses (1) and (2) of article 2 of the Constitution, 1992 gives this court jurisdiction to make declarations and orders against any person, including the first defendant as the President when any action is brought before this court under article 2 of the Constitution, 1992. In making such orders the court has a discretion to consider any application made by a party appearing before it. And under clauses (3) and (4) of article 2 of the Constitution, 1992 any person (including the President to whom such orders or directions are addressed, is enjoined to obey and carry out the terms of the orders or directions under pain of being prosecuted for high crime, and in the case of the President (or his Vice) has action constitutes a ground for removal from office under the Constitution, 1992. The first defendant as President of the Republic of Ghana is therefore, in my judgment, amenable to an order of injunction made under article 2 of the Constitution, 1992.

Subject to the qualification above, the plaintiff’s action fails, and judgment must be given for the defendants, and it is hereby held that the President is entitled to make the appointments he made on 17 September 1993.

[p.215]

JUDGMENT OF JOYCE BAMFORD-ADDO JSC.

I have also had the privilege of reading the judgment of my brother Amua-Sekyi and I agree with his final conclusion that this action should be dismissed. I wish however to register my own views and reasons.

The plaintiff sued for the following reliefs:

“(1) A declaration that the appointments of district secretaries for the various districts made by President on September 1993 are inconsistent with and a contravention of the Constitution, 1992 specifically articles 242, 243 and 247.

(2) An order setting aside the said appointments.

(3) An order of injunction prohibiting and restraining the President from nominating, appointing or electing district secretaries to perform the functions set out in the Constitution to be performed by district chief executives otherwise than as laid down in the Constitution.”

According to the plaintiff, the President on 17 September 1993 appointed district secretaries for various districts under section 21 of the Local Government Law, 1988 (PNDCL 207) and that these appointments were unconstitutional as the President had no power under the said Law to make those appointments. The plaintiff submitted that upon the coming into force of the Constitution, 1992 on 7 January 1993, PNDCL 207 ceased to have effect and was suspended by article 243 of the Constitution, 1992 so that the appointments made under that law were unconstitutional and null and void and of no effect. The defendants however contended that the appointments were properly made under the authority of section 21 of PNDCL 207 as well as section 23(1) of the transitional provisions of the Constitution, 1992. Section 21(1) of PNDCL 207 stated thus:

“21.(1) There shall be a District Secretary for each District who shall be appointed by the Council.

(2) The District Secretary shall be responsible within the framer work of national policy as determined by the Council, for the day-to-day supervision of the departments and organizations of the District.”

The Constitution, 1992 however in article 243(1) provides for a district chief executive who shall be appointed by the President with the prior approval of not less than two-thirds majority of members of the assembly present and voting at the meeting. As can be seen, the method [p.216] of appointing a district secretary and a district chief executive are clearly different. When appointing a district chief executive the method under article 243 must be applied, not that under section 21(1) of PNDCL 207. However, section 23(1) of the transitional provisions of the Constitution, 1992 provides: “23.(1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.” According to the defendants, this means that until Parliament makes laws for regulating operation of district assemblies. PNDCL 207 regulating the operation of the existing district assemblies shall continue to operate. And therefore the President can appoint district secretaries to the existing district assemblies under section 21(1) of PNDCL 207.

The plaintiff however argued that since the Constitution, 1992 has superseded PNDCL 207 and the two enactments are in conflict, they cannot by virtue of article 1 of the Constitution, 1992 stand together and article 243 must prevail over section 21(1) of PNDCL 207 despite the provisions of section 23(1) of the transitional provisions of the Constitution, 1992 and article 299 thereof. I am unable to agree with the stand of the plaintiff. Article 299 of the Constitution, 1992 states that the provisions of the transitional provisions shall have effect notwithstanding anything to the contrary in the Constitution, 1992 so that even if there is a conflict between article 243(1) of the Constitution, 1992 and section 21(1) of PNDCL 207, section 23(1) of the transitional provisions of the Constitution, 1992 prevents PNDCL 207 being declared null and void or inconsistent with the Constitution, 1992 till Parliament makes new laws. Further, if PNDCL 207 is not to be held inconsistent with the Constitution, 1992 particularly article 243(1), then by virtue of the provisions of section 36(2) of the transitional provisions of the Constitution, 1992 there is the authority for the continued operation of PNDCL 207 including section 21(1) thereof. Section 36(2) of the transitional provisions of the Constitution, 1992 states:

“(2) Notwithstanding the abrogation of the Proclamation referred to in subsection (1) of this section, any enactment or rule of law in force immediately before the coming into force of this Constitution shall, in so far as it is not inconsistent with a provision of this Constitution, continue in force as if enacted, issued, or made under the authority of this Constitution.”

Therefore PNDCL 207 continues to remain the law regulating the operations of the existing district assemblies and section 21(1) thereof [p.217] being part of PNDCL 207 can be invoked to appoint district secretaries. If it were not so the existing district assemblies cannot function or operate, since it is the district secretaries who under section 21(2) of PNDCL 207 quoted above, are responsible for the supervision of the day-to-day functioning of these assemblies.

The plaintiff’s stand, it seems to me, cannot be right, as to interpret section 23(1) of the transitional provisions of the Constitution, 1992 as suggested by counsel, would frustrate the intention gathered from that section, namely to keep the district assemblies running until Parliament makes new laws regulating them. The appointment of district secretaries by the President was not unconstitutional or null void for the above reasons.

The defendant in paragraph (10) of the statement of defence stated:

(10) The defendants contend that the first defendant is not amenable to any civil or criminal proceedings either to his person or his office in the execution of the executive authority vested in him under article 58 of the Constitution or in the exercise of his functions as President of the Republic of Ghana.”

Both the plaintiff and the defendants argued this point in court. Whereas the defendants argued that the President is not a proper person to be sued personally but that it only the Attorney-General who can be sued, the plaintiff contended that since article 2 of the Constitution, 1992 permits any person to bring an action to the Supreme Court for any breach of the Constitution, 1992 the President can be sued personally as was done in this case, because he made the appointments himself. According to article 57(4) and (5) of the Constitution, 1992:

(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.

(5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.”

This means that under article 57(4) of the Constitution, 1992 the President can be sued in respect of cases falling under article 2 of the [p.218] Constitution, 1992 or by way of prerogative writs for acts or omissions in respect of the performance of his functions as President. But then article 88(5) of the Constitution, 1992 imposes on the Attorney-General the duty of conducting or defending civil cases on behalf of the state and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.

It is important that articles 57 and 88 of the Constitution, 1992 should be read together. If the President according to article 57 is the Head of State and has acted in his official capacity in appointing district secretaries, which is alleged to be unconstitutional, it is not the Head of State himself who should be sued but the Attorney-General as directed in article 88(5). If the President while in office cannot even be personally liable for any civil wrongs, how can he be liable personally for acts performed by him in the exercise of his executive functions? The reason for the immunity provided under article 57 of the Constitution, 1992 is to preserve the dignity of the high office of the Head of State: see paragraph 34 of the Committee of Experts’ Report on Proposals for a Draft Constitution of Ghana, at page 23 which reads as follows:

“IMMUNITIES

34. The Presidential immunity from legal proceedings provided in Article 44 clauses 9-11 of the 1979 Constitution of Ghana is meant to preserve the dignity of the office of the President, but should not preclude proceedings against the state in appropriate cases. The proper procedure in such cases is to institute proceedings against the Attorney-General, as the official representative of the Republic.”

If the plaintiff is right in its view that it is the President himself who should be sued personally, I venture to ask why the Attorney-General was joined as the second defendant? The State acts through officers, like the President who is said to be the Head of State and consequently, even if official acts of the President can be questioned when it becomes necessary to sue the State, it is the Attorney-General who is constitutionally designated to be sued in accordance with article 57(5) of the Constitution, 1992. Consequently, it is my view that the defendants, objection to the joining of the President J J Rawlings to this particular suit is correct and should be upheld. In the result, the plaintiff cannot succeed in its claim and is not entitled to the relief sought.

JUDGMENT OF AMPIAH JSC.

I have had the privilege of reading beforehand the [p.219] judgment of my brother Amua-Sekyi. I agree with him. I however have this observation to make regarding proceedings brought against the President.

The action was brought under article 2 of the Constitution, 1992. Article 57(4) of the Constitution, 1992 which exempts the President from being brought before the court personally for acts done in the exercise of his functions under the Constitution, 1992 excludes actions brought under article 2 of the Constitution, 1992 and also proceedings involving the prerogative writs. Any person who alleges that there has been an executive, legislative or judicial act which is inconsistent with or in contravention of the provisions of the Constitution may bring an action against any person (including the President) who is alleged to have done the act or authorised the doing of that act. That action could be against that person alone or jointly with the Attorney-General. It would not matter at that stage whether the action is meritorious or not. Such a joinder would not invalidate the action. The court in such proceedings determines the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings.

In both Sallah v Attorney-General (1970) 2 G & G 493, CA sitting as SC and Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC referred to earlier by my senior brothers in their judgments, the problem was about the proper persons to be sued in those cases. A majority of the judges in both cases expressed the view that even though the President had no absolute immunity from court proceedings, in the words of Archer JA (as he then was) in the Sallah case (supra) at 493 of the judgment.

“… the article confers on the President nothing more than procedural immunity… It means that the official acts of the President can be challenged but he cannot be made a defendant in judicial proceedings or be made personally liable for the results of the proceedings.”

Apaloo JA (as he then was) in the same Sallah case (supra) at 508 was of the view that with regard to the President, “His immunity from court proceedings does not extend to proceedings taken against him by any of the prerogative writs.”

Article 88(5) of the Constitution, 1992 procedurally requires that:

“(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and [p.220] all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

The President as “the Head of State and Head of Government” is one such person envisaged under article 88(5) of the Constitution, 1992.

The action before the court is not one of the prerogative actions. The issue of suing the President personally would have to be reconsidered depending upon the acts complained of, for example where the President is alleged to have acted outside the Constitution or acts on a frolic of his own.

In the present action, my opinion is that the President cannot be sued in his name. The Attorney-General who already has been made a defendant in the proceedings, in my view is the person to be sued. I hold that the President has not been properly joined in the action. I would in the circumstances strike out his name from the writ as a party. I also agree that the claim by the plaintiff be dismissed.

DECISION

Action dismissed.

JNNO

NEW PATRIOTIC PARTY v THE ELECTORAL COMMISSION AND ANOTHER [1993-94] 1 GLR 124—145

SUPREME COURT, ACCRA

16 SEPTEMBER 1993

ABBAN, AMUA-SEKYI, AIKINS, EDWARD WIREDU AND AMPIAH JJSC

Constitutional law — District Assembly — Election of district chief executives — Electoral provisions — Persons entitled to vote — Constitution, 1992 vesting power to approve candidates as district chief executives in district assemblies established under Constitution, 1992 — PNDCL 306 empowering district assemblies in existence before Constitution, 1992 came into force to continue in existence until election of district assembly under Constitution, 1992 — Functions of existing district assemblies excluding power to appoint district secretaries, predecessors of chief executives — Whether existing district assemblies competent to hold election to approve candidates as district chief executives — Local Government Law, 1988 (PNDCL 207) — Lord Government (Amendment) Law, 1993 (PNDCL 306) — Constitution, 1992, arts 11(4), 242 and 243.

Constitution law — Constitutional issue — Enforcement of Constitution — Acquiescence and estoppel — Constitution, 1992 empowering every citizen to bring action to enforce its provisions — Constitution, 1992 reserving power to approve appointment of district chief executives to district assemblies to be established under the Constitution — Action by plaintiff to restrain district assemblies in existence before Constitution came into force from exercising power to appoint district chief executives — Defence that plaintiff estopped by failure to prevent election by existing district assemblies of representatives to Council of State under Constitution, 1992 — Whether defence sustainable — PNDCL 207 — Constitution, 1992, arts 2(1) and 89(2)(c).

HEADNOTES

Before the Constitution, 1992 came into effect there were in existence district assemblies which had been established under the provisions of the Local Government Law, 1988 (PNDCL 207). That Law had subsequently been amended by the Local Government (Amendment) (No 3) Law, 1992 (PNDCL [p.125] 272) which extended the term of the assemblies from three to four years. A later Law, the Local (Government (Amendment) Law, 1993 (PNDCL 306) had empowered the district assemblies to continue in existence until such time as new assembly members were elected. However, article 242 of the Constitution, 1992 provided for the creation of district assemblies under the Constitution and article 243 empowered those district assemblies to elect district chief executives for the district assemblies. At a time when the district assemblies had not been elected under article 242 of the Constitution, 1992 the Electoral Commission directed the existing district assemblies to hold elections in order to elect district chief executives for each district assembly in accordance with article 243 of the Constitution, 1992. The plaintiff, a registered political party, then brought an action against the Electoral Commission and the Attorney-General for a declaration that the proposed election of district chief executives was illegal and a contravention of the Constitution, 1992 and sought an injunction to restrain the conduct of the election. In support of its action the plaintiff contended that since the assemblies provided for by article 242 of the Constitution, 1992 were different entities in their character, composition and terms from those established under PNDCL 207, the intended election was a violation of the letter and spirit of the Constitution, 1992 and therefore unconstitutional, illegal and unenforceable. However, in their defence and in support of the proposed election the defendants contended that (a) the combined effect of PNDCL 306, article 11(4) and section 31(2) of the transitional provisions of the Constitution, 1992 was to make the assemblies in existence before the coming into force of the Constitution, 1992 continue in existence with the powers and functions envisaged under the Constitution, 1992 until elections were held under article 242, and (b) since the plaintiff had not made any effort to prevent the district assemblies from electing their representatives to the Council of State under article 89(2)(c) of the Constitution, 1992 it was estopped by inaction and acquiescence from challenging the competence of the existing district assemblies to elect district chief executives under article 243 of the Constitution, 1992.

Held,

Upholding the plaintiff’s claim:

(1) by virtue of the provisions of article 11(4) of the Constitution, 1992 the Local Government Law, 1988 (PNDCL 207), the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272) and the Local Government (Amendment) Law, 1993 (PNDCL 306) all formed part of the existing law. Thus as provided by PNDCL 306, until new assemblymen were elected under article 242 of the Constitution, 1992, the members of the district assemblies at the time the Constitution came into operation continued as assemblymen to perform the functions which had been clearly spelt out in section 6 of PNDCL 207. However, under PNDCL 207, the district assemblies were not empowered to approve candidates for appointment as district secretaries, the predecessors in office of the district chief executives to be appointed under the Constitution, 1992. Furthermore, the district assemblies established under PNDCL 207 were completely different bodies and entities from the [p.126] district assemblies to be established in the future under article 242 of the Constitution, 1992. Accordingly, the district assemblies as presently constituted could not take a decision on a matter specially reserved for the differently constituted district assemblies envisaged under article 242 of the Constitution, 1992. In the circumstances the district assemblies established under PNDCL 207 were not competent to hold elections for the purpose of approving candidates for appointment to the office of district chief executives. Accordingly, the conduct of the Electoral Commission in attempting to hold elections in the district assemblies as presently constituted for the purpose of approving candidates for appointment as district chief executives was contrary to the letter and spirit of the Constitution, 1992 and was unlawful and unconstitutional.

(2) Article 2(1) of the Constitution, 1992 empowered every citizen to bring an action to enforce any infringement of any provision of the Constitution, 1992. Accordingly, if the failure of a citizen to bring an action in the Supreme Court when a particular provision of the Constitution was violated could constitute an estoppel against that citizen and every other citizen in bringing an action in respect of any subsequent violation of that provision or another related provision of the Constitution, estoppel would have been allowed to operate as a shield to prevent citizens from ventilating and enforcing their constitutional rights under article 2(1) of the Constitution, 1992. The equitable defences of acquiescence, inaction or conduct therefore had no place when it came to the interpretation and enforcement of the Constitution, 1992. Accordingly, the failure of the plaintiff to question the propriety of the action of the district assemblies established under PNDCL 207 in electing representatives to the Council of State under article 89(2)(c) of the Constitution, 1992 could not prevent the plaintiff from seeking in the court the correct interpretation and enforcement of the provisions of the Constitution, 1992 which related to the district assemblies. The unlawful conduct of the Electoral Commission could therefore not be validated by the equitable doctrine of estoppel. Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC cited.

CASES REFERRED TO

(1) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.

(2) Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, [1956] 2 WLR 81; [1955] 3 All ER 864, HL.

(3) Allotey v Quarcoo [1981] GLR 208, CA.

(4) Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC.

(5) Moorgate Mercantile Co Ltd v Twitchings [1975] 3 WLR 286; [1975] 3 All ER 314; 119 SJ 559, CA.

[p.127]

(6) Grundt v Great Boulder Property Gold Mines Ltd (1937) 59 CLR 641.

NATURE OF PROCEEDINGS

ACTION by the plaintiff, a registered political party, to, inter alia, restrain the Electoral Commission from conducting elections through the district assemblies existing before the Constitution, 1992 came into force to appoint district chief executives under article 243 of the Constitution, 1992. The facts are fully set out in the judgments of Abban, Amua-Sekyi and Aikins JJSC.

COUNSEL

Nana Akufo-Addo (with him Philip Addison and Alex Quaynor) for the plaintiff.

A. Forson, Attorney-General (with him Mrs Adusa-Amankwah, Chief State Attorney and G K Avah, Chief State Attorney) for the defendants.

JUDGMENT OF ABBAN JSC.

The plaintiff is a registered political party. The first defendant, the Electoral Commission, by virtue of the Electoral Commission Act, 1993 (Act 451), has been charged with the responsibility of conducting and supervising all public elections and referenda in the country. The second defendant—the Attorney-General—was sued as the legal representative of the Government of Ghana. In its statement the plaintiff pleaded, inter alia, that the first defendant, acting through its executive secretary, on 14 August 1993 issued written directives to all the district assemblies in the country urging them to hold elections in order to elect the district chief executive for each district assembly in accordance with article 243 of the Constitution, 1992; and that the elections should take place between 18 and 30 August 1993. The defendants averred in paragraph (1) of their amended defence that the facts so far stated above were correct.

It may be recalled that the present district assemblies were established by the Local Government Law, 1988 (PNDCL 207) (as amended). Elections were held under that Law to elect assemblymen to all the district assemblies. By section 3(3) of PNDCL 207, elections to the district assemblies were to be held every three years. But this section was later amended by the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272) which extended the three years to four years. That is, the amendment provided that elections to a “District Assembly shall be held once every four years.”

There was a further amendment made on 4 January 1993. This was by the Local Government (Amendment) Law, 1993 (PNDCL 306). We will here quote the full text of the amendment: “District Assemblies in [p.128] existence on the coming into force of this Law shall continue in existence until such time as new Assembly members are elected.” In other words, those who were members of the district assemblies at the time the Constitution, 1992 came into force on 7 January 1993 were to continue to serve as assemblymen pending the election of new assemblymen. Thus the present assemblymen derive their right to be members of the district assemblies from PNDCL 306.

In paragraphs (6) and (7) of the statement of the plaintiff’s case, the plaintiff summed up the basis upon which it sought the reliefs. They read:

“(6) The plaintiff contends that the assemblies provided for by article 242 of the Constitution, 1992 are different entities in their character, composition and term from those established pursuant to the Local Government Law, 1988 (PNDCL 207).

(7) The plaintiff further contends that the elections of the district chief executives pursuant to article 243 of the Constitution, 1992 shall be made only by the assemblies provided for by article 242 thereof.”

The defendants, in their amended statement of defence, denied paragraphs (5), (6) and (7) of the statement of case and averred that PNDCL 272 did not offend any statutory provisions and that:

“although the district assemblies as presently constituted were not established under the Constitution, 1992 of the Fourth Republic, yet certain provisions of the said Constitution saved the district assemblies as presently constituted.”

The pivot of the defence could be found in paragraphs (4), (5) and (6) of the amended defence which read:

“(4) In answer to the said paragraphs, the defendants contend that the combined effect of the Local Government (Amendment) Law, 1993 (PNDCL 306), article 11(4) of the Constitution, 1992 and section 31(2) of the transitional provisions of the Constitution, 1992 is to make the assemblies in existence before the coming into force of the Constitution of the Fourth Republic to continue in existence with the powers and functions as envisaged under the Constitution until elections are held under article 242 of the Constitution, 1992.

(5) In further answer to the said paragraphs the defendants contend that in exercise of the functions under the Constitution, the said district assemblies in accordance with article 89(2)(c) elected [p.129] their representatives to the Council of State. The plaintiff during the said elections did nothing to prevent the elections from going ahead.

(6) The defendants therefore contend that the plaintiff is estopped by inaction and acquiescence from contending that the district assemblies as presently constituted are not properly constituted for the discharge of the functions of the district assemblies under the Constitution, 1992.

(7) The defendants finally contend that the holding of elections conducted by the first defendant of the district chief executives by the assemblies as presently constituted is proper and in conformity with the letter and spirit of the Constitution, 1992.”

(The emphasis is mine.)

Leading counsel for the plaintiff, Nana Akufo-Addo, submitted that the authority to give approval to the appointment of district chief executives under article 243 of the Constitution, 1992 could only be given by the district assemblies to be established under the Constitution, 1992 and that the present district assemblies do not have the mandate or constitutional authority to give approval to nominations of district chief executives.

He further contended that the statutory functions conferred on district assemblies by PNDCL 207 did not extend to giving such approval. It was also submitted that there was a significant difference between the composition of the district assemblies established by PNDCL 207 and the district assemblies as envisaged under the Constitution, 1992. Thus the existing district assemblies cannot exercise the powers granted to the district assemblies to be established under article 242 of the Constitution, 1992.

The learned Attorney-General made reference to the provisions of article 299 of the Constitution, 1992 and submitted that on the authority of that article, the validity of the transitional provisions of the Constitution, 1992 are not in doubt and so section 23(1) of the transitional provisions of the Constitution, 1992 validly provided for the continuation of the existing laws and regulations relating to district assemblies. In the circumstances, the provisions, of PNDCL 207 and PNDCL 306 are operative until the establishment of new district assemblies under article 242 of the Constitution, 1992. In that respect, contended the Attorney-General, the district assemblies as presently constituted can exercise all the functions of the district assemblies as envisaged under the Constitution, 1992 and that those functions include approval of candidates for [p.130] appointment as district chief executives. He therefore submitted that what the district assemblies had intended to do was in consonance with the existing law.

The learned Attorney-General again submitted that the plaintiff was estopped from challenging the competence of the present district assemblies to hold the said elections since the plaintiff did nothing when the present district assemblies elected their representatives to the Council of State under article 89(2)(c) of the Constitution, 1992 and that this court should not follow the decision in Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC with regard to estoppel. He urged the court to take a second look at the decision in that case and review it having regard to the changing circumstances, and to hold that the plaintiff is estopped by inaction and acquiescence from disputing the authority of the district assemblies to hold elections under article 243(1) of the Constitution, 1992.

We should observe that an unfortunate impression was created during the arguments that the present members of the district assemblies had no mandate of the people. We think that that is not correct. They did have the peoples’ mandate and they could or can validly exercise the functions spelt out for them under section 6 of PNDCL 207 until new assemblymen are elected under article 242 of the Constitution, 1992. However, the main issue here is whether the present district assemblies, in addition to their functions as set out in section 6 of PNDCL 207, have also the authority to approve candidates for appointment as district chief executives under article 243(1) of the Constitution, 1992.

It seems on this issue the contentions of leading counsel for the plaintiff are right. It is significant to note that despite their divergent views or opinions about PNDCL 207, PNDCL 272 and PNDCL 306 as expressed in their pleadings, all the parties accepted the validity of these Laws. At any rate, no oral arguments were put forward by leading counsel for the plaintiff, Nana Akufo-Addo, to support the contention in paragraph (4) of the statement that PNDCL 272 was promulgated “in contravention of an existing statutory provision.”

In any case, we hold that PNDCL 207, PNDCL 272 and PNDCL 306 all form part of the existing law by virtue of article 11(4) of the Constitution, 1992 and that they have not been affected by the coming into force of the Constitution, 1992. Thus, by the provisions of PNDCL 306, until new assemblymen are elected under article 242 of the Constitution, 1992 the members of the district assemblies at the time the Constitution came into operation were and are to continue as assemblymen and to perform the functions which have been clearly spelt out in section 6 of PNDCL 207.

[p.131]

We share the view of leading counsel for the plaintiff that those functions did not include the holding of elections to give approval to candidates for appointment as district chief executives. Under PNDCL 207, the district assemblies are not empowered to approve candidates for appointment as district secretaries. Under the Constitution, 1992 we do not have district secretaries. We have district chief executives who, although will perform practically the same functions as those of the district secretaries appointed under section 21 of PNDCL 207, the procedure for appointing a person to the office of district chief executive is quite different. Article 243(1) of the Constitution, 1992 provides:

“243.(1) There shall be a District Chief Executive for every district who shall be appointed by the President with the prior approval of not less than two-thirds majority of members of the Assembly present and voting at the meeting.”

Article 242 of the Constitution, 1992 has provided for the composition of the district assemblies. That composition differs in substance and in form from the composition of the present district assemblies as established under section 3(1) of PNDCL 207. For example, under article 242 of the Constitution, 1992 members of Parliament from the constituencies “that fall within the area of authority of the District Assembly” are also made members of the district assembly.

Further those members of the district assembly to be appointed by the President under article 242(d) of the Constitution, 1992 should not be more than “thirty per cent of all the members of the District Assembly”; while under section 3(1)(c) of PNDCL 207 the appointed members presently in each district assembly do not exceed “one-third of the total membership of the Assembly.”

Consequently, as we have already stated, the present district assemblies as established by PNDCL 207 are completely different bodies or entities from the district assemblies to be established in future under article 242 of the Constitution, 1992. That being the case, the district assemblies, as presently constituted, cannot take a decision on a matter which has been specially preserved for differently constituted district assemblies as envisaged under article 242 of the Constitution, 1992. That is, the district assemblies, as presently composed, are not competent to hold elections for the purpose of approving candidates for appointment to the office of district chief executives. Any election intended to he held in the present district assemblies for that purpose would be contrary to the letter and spirit of the Constitution, 1992. In short, it would be unconstitutional.

[p.132]

Leading counsel for the plaintiff, in the course of his argument introduced an issue which did not seem to have arisen on the face of the pleadings and which did not also relate to matters in controversy. That is, he contended that the President has no role in initiating the appointments of the district chief executives, and that it is the district assemblies which must sponsor the candidates and approve of them before the President comes in to appoint. As already observed, this never formed part of the issues and since no full argument was addressed to the court on the matter, it would not be right to make any authoritative pronouncement on it at this time.

The issue of estoppel by acquiescence and inaction argued by the learned Attorney-General will be dealt with briefly. Our first reaction is that such equitable defence-acquiescence and inaction or conduct must not be allowed to operate as a shield to prevent a citizen from ventilating and enforcing his constitutional rights. Otherwise sooner or later the good intentions of the framers of the Constitution, as enshrined in article 2(1) of the Constitution, 1992 will be defeated. The said article provides:

“2.(1) A person who alleges that—

(a) a enactment or anything contained in or done under the authority of that or any other enactment, or

(b) any act or commission of any person;

is inconsistent with, or is in contravention of a provision of this Constitution, may bring all action in the Supreme Court for a declaration to that effect.”

If estoppel is allowed to operate in the way as it was suggested, it will surely wittle down the efficacy of the above provision. If a person violates a particular provision of the Constitution, 1992 and which violation becomes well-known to the public, but no citizen brings that conduct to book by bringing “an action in the Supreme Court for a declaration to that effect”, does that mean that if on another occasion that same person violates the same or another provision of the Constitution, any public-spirited citizen who this time brings action in the Supreme Court in respect of the second violation will successfully be met with the equitable defence of acquiescence and inaction, simply because he did not challenge the first violation? We think that equitable defence should have no place when it comes to the interpretation and enforcement of the provision of the Constitution, 1992. In the present case, the failure of the plaintiff to question the propriety of the present district assemblies in electing representatives to the Council of State under article 89(2)(c) of the [p.133] Constitution, 1992 cannot prevent the plaintiff from seeking in this court the correct interpretation and enforcement of the provisions of the Constitution which relate to the district assemblies.

As already demonstrated, the conduct of the Electoral Commission in attempting to hold elections in the district assemblies, as presently constituted, for the purpose of approving candidates for appointment as district chief executives was contrary to the provisions of the Constitution, 1992 and therefore unlawful; such unlawful conduct cannot be validated by the “equitable doctrines of estoppel”: see Tuffour v Attorney-General (supra). In the course of its judgment in that case, the Supreme Court said per Sowah JSC (as he then was) at 656:

“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… This court does not think that any act or conduct which is contrary to the express or implied provisions of the Constitution can be 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.”

With respect to the learned Attorney-General, the decision in Tuffour’s case (supra) is still good law and no good reasons have been canvassed to persuade this court to review it. The invitation of the learned Attorney-General is therefore declined.

It was for the above reasons that this court on 16 September 1993 entered judgment for the plaintiff and made the declarations and orders as contained in the said judgment.

JUDGMENT OF AMUA-SEKYI JSC.

When the Provisional National Defence Council came to power, the system of local government was that set up under the Local Government Act, 1971 (Act 359), as amended. The Local Government (Interim Administration) Law, 1982 (PNDCL 14) replaced the various district councils with management committees appointed by the central government. The Local Government Law, 1988 (PNDCL 207) repealed Act 359 and PNDCL 14 and set up district assemblies composed of (a) the district secretary; (b) one person from each electoral area within the district elected directly by the electorate; and (c) not more than one-third of the total membership of the assembly appointed by the Provisional National Defence Council. The district secretary was also to be appointed [p.134] by the Council.

The Constitution of Ghana, 1992 provided for district assemblies composed of (a) one person from each electoral area within the district elected by universal adult suffrage; (b) the members of Parliament whose constituencies fall within the area of authority of the assembly as non-voting members; (c) the district chief executive; and (d) not more than 30 per cent of the total membership of the assembly appointed by the President. The district chief executive is, in the words of article 243(1) of the Constitution, 1992, appointed by the President with the prior approval of not less than two-thirds majority of members of the assembly present and voting at the meeting. The district assemblies envisaged by the Constitution, 1992 have not yet been established.

Sometime in August an announcement was made from the office of the President that certain persons had been nominated by him to fill the posts of district chief executive. Following this announcement, the defendant-commission fixed dates on which, it said, the approval of members of the assemblies established under PNDCL 207 would be sought to the nominations made by the President. The plaintiffs then issued this writ asking for a declaration that the proposed election of district chief executives was illegal and a contravention of the Constitution, 1992 and seeking an injunction. The grounds of their complaint will be found in paragraphs (6) and (7) of their statement of case where they state:

“(6) The plaintiff contends that the assemblies provided for by article 242 of the Constitution, 1992 are different entitles in their character, composition and term from those established pursuant to the Local Government Law, 1988 (PNDCL 207).

(7) The plaintiff further contends that the elections of district chief executives pursuant to article 243 of the Constitution, 1992 shall be made only by the assemblies provided for by article 242 thereof. The plaintiff therefore says that the holding of elections, conducted by the first defendant, of district chief executives by the assemblies established under PNDCL 207 is a violation of the letter and spirit of the Constitution, and is therefore unconstitutional, illegal and unenforceable.”

In their statement of case, the defendants denied paragraphs (6) and (7) and averred as follows:

“(4) In answer to the said paragraphs, the defendants contend that the combined effect of the Local Government (Amendment) [p.135] Law, 1993 (PNDCL 306), article 11(4) of the Constitution, 1992 and section 31(2) of the transitional provisions of the Constitution, 1992 is to make the assemblies in existence before the coming into force of the Constitution of the Fourth Republic to continue in existence with the powers and functions as envisaged under the Constitution until elections are held under article 246(1) of the Constitution, 1992.”

Thus the issue for determination is whether the district assemblies set up tinder PNDCL 207 are competent to carry out the constitutional duty of giving approval to the appointment by the President of district chief executives.

Under section 3(3) of PNDCL 207, elections to district assemblies were required to be held every three years. The Local Government Amendment (No 3) Law, 1992 (PNDCL 272) altered the Law by requiring that elections be held every four years. Then came the Local Government (Amendment) Law, 1993 (PNDCL 306) which said simply: “District Assemblies in existence on the coming into force of this Law shall continue in existence until such time as new Assembly members are elected.”

Article 11(4) of the Constitution, 1992 makes PNDCL 207 and PNDCL 306 part of the laws of Ghana. Section 31(2) of the transitional provisions of the Constitution, 1992 has the same effect and declares that:

“. . . where anything is required or authorised by this Constitution to be prescribed or provided for by or under an Act of Parliament, it shall he deemed to be duly prescribed or provided for, if it has been prescribed or provided for by or under an Act, Decree, or a Law in force immediately before the coming into force of this Constitution.”

With these must be read section 23(1) of the transitional provisions of the Constitution, 1992 which deals specifically with district assemblies. It provides:

“23. (1) Until Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and other local authorities shall continue to regulate their operations.”

The position, therefore, is that the present district assemblies continue to exercise the powers given them by PNDCL 207, as amended, until such time that the district assemblies envisaged by the Constitution, 1992 have been established. This is a far cry from saying that they are entitled to exercise powers that are to be found only in the Constitution, 1992.

[p.136]

In paragraphs (5) and (6) of their statement of case, the defendants stated:

“(5) In further answer to the said paragraphs, the defendants contend that in exercise of the functions under the Constitution, the said district assemblies in accordance with article 89(2)(c) elected their representatives to the Council of State. The plaintiff during the said elections did nothing to prevent the elections from going ahead.

If the defendants are right, then it is not only the plaintiffs who are estopped from raising the issue of the legality of the proposed vote by the members of the district assemblies, but each and every one of the fifteen million people of this country! Elections to a purely advisory body like the Council of State may have seemed so unimportant that no one cared whether the members of the electoral college were qualified to undertake the task. The position of a district chief executive is different: he is the representative of the central government in the district and performs executive and administrative functions. Like everyone else, the plaintiffs are free to choose when to go to court to challenge infractions of the Constitution, 1992.

The defendant-commission ought to have known that they were embarking on all illegal and unconstitutional act. PNDCL 207 gave members of the district assemblies no power to give approval to the appointment of district secretaries, by whatever name called; the office of district chief executive was created by the Constitution, 1992 not PNDCL 207; the composition of district assemblies under the Constitution, 1992 is different from that under PNDCL 207; under the Constitution, 1992 the term of office of an assembly member is limited to four years, whereas that of the assembly members elected under PNDCL 207 has already extended beyond four years. In sum, there is, really, no legal basis for appointing district chief executives before the district assemblies have been established. A district chief executive must have the confidence of the members of the assembly. If he were to be appointed before the members of the assembly have themselves been elected into office, they will effectively have been denied the opportunity of expressing an opinion on his suitability for the office.

[p.137]

Article 243(1) of the Constitution, 1992 leaves me in no doubt that the course taken by the defendant-commission is illegal and unconstitutional. It is the duty of this court so to declare and restrain them from contravening the clear provisions of the Constitution, 1992.

It was for these reasons that I concurred in the orders made.

JUDGMENT OF AIKINS JSC.

I have had the advantage of reading in draft the judgment of my learned brother Abban JSC and have no hesitation in stating that I agree with his conclusion that the order of injunction requested by the plaintiff should be granted. The case is of such public importance that I feel obligated to add a few words.

Both parties agree, and there is no doubt at all about it, that the district assemblies in existence now are different from those envisaged by article 242 of the Constitution, 1992. This article gives the composition of a district assembly as:

“(a) one person from each local government electoral area within the district elected by universal adult suffrage;

(b) the member or members of Parliament from the constituencies that fall within the area of authority of the District Assembly as members without the right to vote;

(d) other members not being more than thirty percent of all the members of the District Assembly, appointed by the President in consultation with the traditional authorities and other interest groups in the district.”

(The emphasis is mine.)

However, section 3(1) of the Local Government Law, 1988 (PNDCL 207) gives the composition of the district assembly as follows:

“(a) the District Secretary;

(b) one person from each electoral area within the District who shall be elected directly by the electorate in accordance made regulations made in that behalf by the National Commission for Democracy;

(c) such other persons ordinarily resident in the District not exceeding one-third of the total membership of the Assembly as may be appointed by the Council acting in consultation with the traditional authorities and organised productive economic groupings in the District.”

[p.138]

(The emphasis is mine.)

It is clear from the two compositions that (i) whereas under section 3(1)(b) of PNDCL 207 a person from each electoral area within the district was elected in accordance with regulations made by the National Commission for Democracy, the person envisaged by article 242(a) of the Constitution, 1992 is to be elected by universal adult suffrage; (ii) whereas under section 3(i)(c) of PNDCL 207, not more than one-third of the total membership of the assembly being persons ordinarily resident in the district was appointed, the percentage under Article 242(d) of the Constitution, 1992 is not more than thirty per cent, (iii) the appointment under PNDCL 207 was made by the Council, ie the Provisional National Defence Council, whereas those under article 242 of the Constitution, 1992 are to be appointed by the President alone; (iv) furthermore, the appointment under PNDCL 207 apart from being made in consultation with the traditional authorities as provided under article 242 of the Constitution, 1992, should also be made in consultation with “organised productive economic groupings in the District”, which is different from what is to be done under article 242 of the Constitution, 1992. ie “other interest groups in the district”; and (v) whereas the duration of the district assembly under PNDCL 207, s 3(3) is pegged at three years, though this has been extended indefinitely by the Local Government (Amendment) Law, 1993 (PNDCL 306) “until such time as new Assembly members are elected”, article 246(1) of the Constitution, 1992 directs elections to the district assemblies to be held every four years-this is mandatory.

In spite of the glaring differences of the two bodies outlined above, the learned Attorney-General urged that until Parliament takes steps to get a new assembly in place the district assembly as presently constituted has the mandate to carry out the constitutional functions for the appointment of district chief executives under article 243(1) of the Constitution, 1992 to prevent a vacuum being created learned counsel for the plaintiff, Nana Akufo-Addo, contends otherwise. He argues that the present district assemblies do not have the constitutional authority to approve district chief executives under article 243(1) of the Constitution, 1992 and that whatever power they have is restricted to the performance of their administrative functions under existing laws regulating their operations as provided under section 23(1) of the transitional provisions of the Constitution, 1992. I think I agree with learned counsel for the plaintiff on these issues. First, the submission that a vacuum will be created is misconceived because the local government administration is a continuing system of government and district assemblies can continue to function under existing laws; and secondly, the district assemblies as presently [p.139] constituted have no moral or political or constitutional mandate to undertake the duty imposed on the district assemblies as envisaged under article 243(1) of the Constitution, 1992, ie the approval of candidates for the post of district chief executives for appointment by the President.

The learned Attorney-General further submitted that the combined effect of PNDCL 306, article 11(4) of the Constitution, 1992 and section 31(2) of the transitional provisions of the Constitution, 1992, is to make the existing assemblies continue in existence with the powers and functions as envisaged under the Constitution, 1992 until elections are held under article 246(1) of the Constitution, 1992. PNDCL 306 which was enacted on 4 January 1993, three days before the Fourth Republic came into existence, and gazetted on 5 February 1993 extended the existence of the district assemblies created by PNDCL 207 until such time as new assembly members are elected. Article 11(4) of the Constitution, 1992 refers to existing law as comprising:

“. . . the written and unwritten laws of Ghana as they existed immediately before the coming into force of the Constitution, and any Act, Decree, Law or statutory instrument issued or made before that date, which is to come into force on or after that date.”

Section 31 of the transitional provisions of the Constitution, 1992 deals with continuation of effect of matters prescribed by existing law. Section 31(2) states:

“(2) For the avoidance of doubt, and without prejudice to the general effect of subsection (1) of this section, where anything is required or authorised by this Constitution to be prescribed or provided for by or under an Act of Parliament, it shall be deemed to be duly prescribed or provided for, if it has been prescribed or provided for by or under an Act, Decree, or a Law in force immediately before the coming into force of this Constitution.”

And section 31(1) states:

“31.(1) Where any matter that falls to be prescribed or otherwise provided for under this Constitution by Parliament or by any other authority or person, is prescribed or provided for by or under any existing law or is otherwise lawfully prescribed or provided for immediately before the coming into force of this Constitution, that prescription or provision shall, as from the coming into force of this Constitution, have effect with such modifications, adaptations, qualifications and exceptions as may be necessary to [p.140] bring it into conformity with this Constitution as if made under this Constitution by Parliament or, as the case may be, by the other authority or person.”

Though PNDCL 306 extends the existence of district assemblies, there is nothing in section 31 of the transitional provisions of the Constitution, 1992 that empowers existing district assemblies to continue to perform the functions and have the powers of district assemblies as envisaged under the Constitution, 1992. No existing law contains any provision empowering current district assemblies to approve candidates for appointment as district chief executives. What the Constitution, 1992 requires Parliament to do is to enact laws regulating the operation of district assemblies, but under section 23(1) of the transitional provisions of the Constitution, 1992, until Parliament provides such laws, district assemblies are just empowered to operate under existing laws, and, as stated above, no existing law empowers district assemblies to approve candidates as envisaged under article 243(1) of the Constitution, 1992. In my judgment, the proper body to undertake this assignment is the district assembly as envisaged under article 242 of the Constitution, 1992 which is yet to come into existence. I am fortified in this view by the averment in paragraph (3) of the plaintiff’s statement of case which is admitted by the defendants, i.e the first defendant in a statement signed by its executive secretary on 14 August 1993 issued directives pursuant to article 243 of the Constitution, 1992 to all district assemblies about the holding of elections to the office of district chief executive for each district between 18 August and 30 August 1993.

One issue that featured rather prominently during the course of arguments before us was whether the President has a mandate under article 243(1) of the Constitution, 1992 to initiate the appointment of district chief executives. Learned counsel for the plaintiff submitted that under article 243(1) of the Constitution, 1992 the proper body to initiate the appointment of a district chief executive is the district assembly, and that upon a strict interpretation of the article, the President has no authority whatsoever to initiate the appointment of the district chief executive. His only role, according to counsel, is to appoint the district chief executive after the assembly had given its approval of the candidate. He urged that if the President is allowed to initiate the appointment he would be undermining the concept of non-partisanship in the local government structure, ie the concept of insulating the local government system from party-political involvement, because those that the President will nominate will be just members of his political party. The learned Attorney-General [p.141] controverted this submission. He was of the view that by virtue of article 243(2)(c) of the Constitution, 1992 which stipulates that the district chief executive shall be the chief representative of the central government in the district the President has the power to nominate a candidate for the office, and that it will be out of place to say that the assembly should initiate the appointment.

The arguments raise a very significant constitutional issue, and one would have expected that the plaintiff would plead the issue to give a fair notice of its case to the defendants. It will be a denial of justice for the defendants to be taken unaware: see the case of Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 238-239, HL. They must not have the misfortune of being adjudged on a new issue not previously pleaded by the plaintiff, and must not be condemned without being afforded an opportunity to prepare to face the issue: see also Allotey v Quarcoo [1981] GLR 208 at 213, CA. The importance of the issue notwithstanding, I would refrain from expressing any opinion on it. It seems to me that other relevant, crucial and vital legal issues are involved which have not been adequately ventilated, and I would not like to hazard any opinion that may pre-empt a well reasoned judgment on the issue.

The defendants raised an issue of estoppel by conduct. They contended in paragraph (6) of their statement of case that:

“. . . the plaintiff is estopped by inaction and acquiescence from contending that the district assemblies as presently constituted are not properly constituted for the discharge of the functions of the district assemblies under the Constitution, 1992.”

The learned Attorney-General argued that the plaintiff stood by unconcerned when the district assemblies elected their representatives to the Council of State in accordance with article 89(2)(c) of the Constitution, 1992, and is therefore estopped from now contending that the assemblies cannot discharge any duty under the Constitution, 1992. In support of this contention the Attorney-General relied on the case of Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC.

I think this line of argument, with all due respect, is as misconceived as the Nartey case (supra) is irrelevant, and I shall proceed to show why presently. Nartey v Mechanical Lloyd Assembly Plant Ltd (supra) was a case where lands at Frafraha attached to the La stool remained in the care and possession of the stool’s substool at Frafraha. The La stool was alleged to be the true owner of the lands, but had intentionally for very many years led the general public by its deliberate omission or failure to [p.142] assert its ownership, to believe that the Agbawe family of Frafraha were the owners of the lands. This court held, as stated in the headnote, that:

“. . . the stool had by its inaction permitted the general public including the appellant and even the government to believe that it had no objection to the conveyances made by the Agbawe family. In the circumstances the stool could not now assert any title against all innocent purchaser who had dealt with the Agbawe family following the a stool’s inaction and acquiescence. Consequently, as against the appellant, the La stool were estopped by conduct from impugning the appellant’s title which had been perfected by registration and his possessory acts.”

Now touching on the irrelevancy of the Nartey case (supra) to the present case, I would say that section 26 of the Evidence Decree, 1975 (NRCD 323) has a vivid exposure of the issue of estoppel in pais. The section states:

“26. Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall he conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest.”

(The emphasis is mine.)

The learned Attorney-General is saying that the NPP stood by unconcerned when the district assemblies elected their representatives to the Council of State in accordance with article 89(2)(c) of the Constitution, 1992, and is therefore estopped from challenging the assemblies going ahead in approving district chief executives in accordance with article 243(1) of the Constitution, 1992.

One would ask, what part did the NPP play in letting the district assemblies elect their representatives to the Council of State? Did that party intentionally and deliberately cause or permit the assemblies to believe in any particular state of affairs or that what they were doing was correct before they embarked on the election of their representatives? Or did they act on any act or omission on the part of the NPP to believe that what they were doing was constitutional, for the correctness of that act or thing to be conclusively presumed against the NPP or its successors in interest in any constitutional proceedings between the NPP and the district assemblies or the government of the NDC? Does there exist any sufficient [p.143] relationship of proximity or neighbourhood or community of interest between the NPP and the district assemblies or the National Electoral Commission such that in the reasonable contemplation of the NPP, silence or acquiescence on its part may be likely to induce the latter to think that the NPP approves of the action taken by them? The answer is definitely No. Is the learned Attorney-General saying that by the NPP looking on unconcerned when the district assemblies were acting in a manner they thought was in accordance with the spirit and letter of the Constitution, 1992 the NPP is now estopped from challenging them on another issue of this nature?

Estoppel in pais, referred to as estoppel by conduct, is a well-known legal concept. In the English case of Moorgate Mercantile Co Ltd v Twitchings [1975] 3 All ER 314 at 323, CA Lord Denning MR explained the Concept this:

“Estoppel … is a principle of justice and of equity. It comes to this. When a man, by his words or conduct, has led another to believe in a particular state of affair, he will not be allowed to go back on it when it would be unjust or inequitable for him to do so”

(The emphasis is mine.)

What assumption of fact has the NPP caused the district assemblies or the National Electoral Commission to adopt or accept for the purpose of whatever legal relation that exists between the two parties? Did the NPP by their conduct permit the district assemblies to elect their representatives to the Council of State, or assured them that what the assemblies were doing was constitutionally valid for the NPP to be estopped from challenging the steps the assemblies want to take now? In this context the Australian case of Grundt v Great Boulder Property Gold Mines Ltd (1937) 59CLR 641 comes to mind. In the Moorgate case (supra) at 323 Lord Denning MR quoted with approval the opinion of Dixon J in the Grundt case (supra) at 674 as indicating the equitable grounds on which estoppel by conduct is based. Dixon J had said:

“The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations”

Lord Denning MR then observed at 323-324:

“. . . the principle … [a]t any rate, it applies to an assumption of [p.144] ownership or absence of ownership. This gives rise to what may be called proprietary estoppel. There are many cases where the true owner of goods or of land has led another to believe that he is not the owner, or, at any rate, is not claiming an interest therein, or that there is no objection to what the other is doing. In such cases it has been held repeatedly that the owner is not to be allowed to go back on what he has led the other to believe. So much so that his own title to the property, be it land or goods, has been held to be limited or extinguished, and new rights and interests have been created therein. And this operates by reason of his conduct – what he has led the other to believe – even though he never intended it … when a man, by his words or by his silence, or acquiescence, leads another to believe that he is not the owner and has no interest in the goods, whereupon the other buys them or sells them to an innocent purchaser. [I]t is held that the true owner cannot afterwards assert that they were his. The title to the goods is transferred to the buyer. . .”

(The emphasis is mine.)

The Master of the Rolls further said at 324:

“Those cases have their parallel in equity when the owner of land, by his conduct, leads another to believe that he is not the owner, or, at any rate, that the other can safely spend money on it. It is held that he cannot afterwards assert his ownership so as to deprive him of the benefit of that expenditure.”

(The emphasis is mine.)

I would in the context of the case before us say that these cases do not have their parallel in constitutional cases. Estoppel deals with private rights not constitutional rights. The silence of the NPP to challenge the district assemblies from electing representatives to the Council of State cannot make any difference to the interpretation of article 89(2)(c) of the Constitution, 1992 unless that decision is in consonance with the postulates of the Constitution. As was rightly pointed out by this court the case of Tuffuor v Attorney-General [1980] 1 GLR 637 at 656, CA sitting as SC:

“This court does not think that any act or conduct which is contrary to the express or implied provisions of the Constitution can be 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 the due process of law as laid down in the fundamental [p.145] law of the land or it is unlawful and invalid.”

The learned Attorney-General has urged this court to revisit the Tuffuor case (supra) with a view to reversing it to suit his line of thinking, but it seems to me that his argument has no justification on any reasonable principle, and can only be described as capricious. In effect he is urging this court to use its power under article 129(3) of the Constitution, 1992 to depart from a previous decision of this court when it appears to it right to do so. This will involve a departure from the Tuffuor case (supra) or overruling it. I expected that having thus urged this court to undertake such assignment, the learned Attorney-General would advance cogent reasons and convince this court of the steps he wishes it to take, but throughout his submissions he never suggested any reasons. Perhaps he relied on this court to make the necessary research in his favour. I have given due consideration to the reasoning of this court in the Tuffuor case (supra) and have reached the conclusion that the proper exercise of judicial functions required this court to resist any departure from it in so far as it affirmed that any decision which is contrary to the express or implied provisions of the Constitution cannot be validated by equitable doctrines of estoppel.

Furthermore, since Nartey v Mechanical Lloyd Assembly Plant Ltd (supra) a private land case decided on the equitable doctrine of estoppel, is based on section 26 of the Evidence Decree, 1975 (NRCD 323) and cases like Moorgate Mercantile v Twitchings (supra) and Grundt v Great Boulder Property Gold Mines Ltd (supra) the learned Attorney-General cannot seek refuge under that case.

It is for these reasons that I opted to go along with my learned brothers that the order of injunction requested by the plaintiff should be granted.

DECISION

Judgment for the plaintiff.

DRKS

OGBARMEY-TETTEH v OGBARMEY-TETTEH [1993-94] 1 GLR 353—416

SUPREME COURT, ACCRA

12 JANUARY, 1993

ARCHER CJ, WUAKU, AMUA-SEKYI, AIKINS, EDWARD WIREDU, JOYCE BAMFORD-ADDO AND CHARLES HAYFRON-BENJAMIN JJSC

Practice and procedure—Cross appeal—Time to appeal—Time limit for appeals from final decision three months—Appellant filing appeal against final decision on last day of period—Respondent filing cross appeal one week later—No rule under CI 13 prescribing time limit for cross appeal—Whether section 32 of NRCD 54 applicable to have cross appeal deemed filed on same date as appeal—One decision on both claim and counterclaim—Whether Supreme Court to exercise power to make any order necessary for determining real issue or question in controversy in case—Whether three months limitation period for appeals applicable to cross appeals—Limitation Decree, 1972 (NRCD 54), s 32—Constitution, 1992, art 129(4)—Court of Appeal Rules, 1962 (LI 218), r 32—Supreme Court Rules, 1970 (CI 13), r 23(3).

Statutes—Construction—Courts Act, 1971 (Act 372), s 3(2)—Section requiring leave to appeal where two successive decisions against appellant—Definition of “decision”—Defendant partially successful in Court of Appeal—Whether defendant requiring leave to appeal from adverse decision—Courts Act, 1971 (Act 372), s 3(2)—Courts (Amendment) Law, 1987 (PNDCL 191), s 1.

Practice and procedure—Appeal—Findings of fact—Adopted proceedings—Basis of protection for trial judge’s findings of primary facts—Trial judge with consent of parties adopting evidence taken before another judge—Whether trial judge in better position than appellate court in evaluating credibility of witnesses—Dispute between divorced spouses over ownership of property on plot A—Both parties claiming to have purchased plot from same vendors—Evidence of surviving vendor that plot A purchased by wife-defendant—No counter evidence discrediting that of vendor—Trial judge and Court of Appeal nonetheless rejecting evidence of vendor—Whether Supreme Court to overrule findings and accept evidence of vendor.

Land law and conveyancing—Title to land—Proof of ownership—Failure to prove root of title fatal to cases of plaintiff—Both plaintiff—husband and defendant-wife claiming to have purchased land in dispute from same vendor—Document on land in name of husband—Evidence by surviving vendor that land sold to defendant but document made in name of plaintiff on instructions of defendant—No evidence discrediting testimony of vendor—Whether husband holding land in trust for wife.

Husband and wife—Property—Ownership—Sale by wife of her land to third party—Subsequent demand for refund of purchase price by third party at time wife out of jurisdiction—Refund by husband of purchase price to third party—Whether husband acquiring interest in land—Whether husband owner of land.

HEADNOTES

The parties were husband and wife who had married under the Marriage Ordinance, Cap 127 (1951 Rev) in 1951. The marriage broke down in 1974 and [p.354] the plaintiff-husband subsequently brought an action against the defendant-wife for a declaration that he was the absolute owner of H/No A 299A/4, Laterbiorkorshie comprising a two-storey house and a one-storey outhouse situated on two pieces of land designated as plots A and B. The wife counterclaimed, also for a declaration that the plaintiff held the plots and the houses on them on a resulting trust for her. Both parties claimed they had bought the land from the same vendors and built on it; with the husband claiming he used his own resources and a loan taken from the Ghana Commercial Bank at the time. He further claimed that, with respect to plot B, though it was originally granted to the defendant, he later bought it from the person the defendant had sold it to when that person lost interest in it and wanted a refund of her money. The wife claimed that she financed the building of the house from her trading activities and money she realised from the sale of a car she had originally bought in the name of the husband for their joint use. The documents on the land and building were in the name of the plaintiff but the defendant claimed that she bought and paid for plot A and it was on her instructions that the documents were prepared by the vendors in the name of the plaintiff. At the trial, the plaintiff called two witnesses in support of his claims whilst the defendant called six witnesses including the surviving vendor who confirmed the claim of the defendant that she was the one who had purchased plot A, the surveyor who prepared the document and others present at the house warming party in 1963. Evidence in the case had been taken before two other judges when it was transferred to Lutterodt J (as she then was). With the consent of the parties, the previous proceedings before the other judges were adopted for the trial. The trial judge eventually gave judgment in favour of the plaintiff, declaring title in the two plots in him on the grounds, inter alia, that (1) the evidence of the first defendant witness—the surviving vendor was not true because she was related to the defendant; (2) the plaintiff was capable of financing the building because he was in gainful employment at the time; and (3) even though the defendant was a successful trader she had exaggerated the extent of her wealth. The defendant appealed from that decision and the Court of Appeal on 18 July 1991 affirmed the trial court’s decision in respect of plot A but decided that the defendant was entitled to plot B on the ground that since the plaintiff only refunded the purchase money of plot B, he held plot B on a resulting trust for the defendant. Since both parties were dissatisfied with that judgment the plaintiff appealed on 17 October 1991 to the Supreme Court against the decision on plot B and the defendant cross appealed on 24 October 1991 against the decision on plot B. The plaintiff however objected to the defendant’s cross appeal, on the grounds that (1) the defendant having lost twice, ie both in the High Court and the Court of Appeal, could not cross appeal without the obtaining the prior leave of the court as required by section 3(2) of the Courts (Amendment) Law, 1987 (PNDCL 191); and (2) the defendant’s cross appeal was out of time as it was filed without obtaining extension time. The plaintiff further contended that there was no evidence to support the Court of Appeal’s decision granting title to the defendant on plot B.

[p.355]

Held, dismissing the appeal and allowing the cross appeal (Archer CJ, Wuaku and Aikins JJSC dissenting):

(1) (Wuaku JSC dissenting) although the defendant filed her cross appeal more than three months after the Court of Appeal had delivered its judgment, she was not out of time because:

(a) the requirement by rule 8(1)(b) of the Supreme Court Rules, 1970 (CI 13) that a civil appeal against a final decision should be lodged within three months was inapplicable to a cross appeal since although rule 9(1) of CI 13 empowered a respondent to give notice by way of a cross appeal, rule 9(2) authorised the application of only the provisions of rule 6 of CI 13 mutatis mutandis to a cross appeal. No other rules under CI 13 were made applicable to a cross appeal. Rule 6 of CI 13 however dealt only with the form and content of appeals. In any case,

(b) Per Amua-Sekyi, Edward Wiredu, Joyce Bamford-Addo and Hayfron-Benjamin JJSC. There was no substantive difference between a claim and counterclaim or set-off on one hand and an appeal and a cross appeal on the other; just as a claim had to precede a counterclaim set-off, an appeal had to precede a cross appeal. And since under the provisions of section 32 of the Limitation Decree, 1972 (NRCD 54) any claim by way of set-off or counterclaim should be deemed as a separated action and to have been commenced on the same date as the appeal irrespective of the number of days, months or even years after the filing of the notice of appeal that it was lodged. Accordingly, since the plaintiff’s appeal had been filed within time, the defendant’s cross appeal had been filed within time. Crabbe III v Quaye, Court of Appeal, 31 July 1970, unreported applied.

(c) Per Archer CJ and Aikins JSC. When a court dismissed an action and a counterclaim founded on separate causes of action and the respondent to an appeal from the dismissal of the counterclaim either wished to appeal from the dismissal of the action or sought to vary the order on a point which did not concern the appellant he had to give a separate notice of appeal. However, where the action and the counterclaim were linked together the cross notice should be treated as if it were a distinct notice of appeal. Since in the instant case the decision of the Court of Appeal was in fact one decision on both the action and the counterclaim, the objection taken by the plaintiff to that decision gave the defendant equally a right to object to the decision by the cross notice of appeal as if it were a distinct notice of appeal. Dictum of Lindley MR in National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280, at 287-288, CA applied.

[p.356]

(d) Per Archer CJ and Aikins JSC. Once an appeal was lodged against the decision of the Court of Appeal or any part of it by the plaintiff, the Supreme Court had power under either rule 23(3) of CI 13 or rule 32 of the Court of Appeal Rules, 1962 (LI 218) by virtue of the general jurisdiction granted the Supreme Court under article 129(4) of the Constitution, 1992 to exercise its jurisdiction or that of the Court of Appeal, or both to make any order necessary for determining the real issue or question in controversy between the parties.

(2) (Wuaku JSC dissenting). It was clear from the language of section 3(2) of the Courts Act, 1971 (Act 372) as amended by section 1 of the Courts (Amendment) Law, 1987 (PNDCL 191) that it was only where a decision as a whole of the Court of Appeal confirmed the decision of the lower court that leave of the Court of Appeal was required before an aggrieved party could appeal against the decision of that court, and where the Court of Appeal refused to grant leave he might repeat his application in the Supreme Court. The section made no reference to part of a decision. Accordingly, where the Court of Appeal came to a conclusion that a party was partially successful, it could not be said that the party had had successive failures that should compel him to apply for leave to appeal; he could appeal as of right. Accordingly, since the defendant was partially successful in the Court of Appeal, she could appeal to the Supreme Court as of right. Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC cited.

(3) Since the trial High Court judge did not have the advantage of seeing and observing the witnesses in the box she had none of the advantages of a judge sitting at first instance when she came to assess the evidence of the plaintiff and her witnesses as well as that of the surviving vendor of the parties who had been called by the defendant. Accordingly, she did not enjoy the privilege of the discretion which protected a trial judge in her findings of primary facts. Indeed, she was in no better position than any of the appellate judges in determining the credibility or otherwise of the evidence of the only surviving witness in her account of the circumstances surrounding the execution of exhibit A on which the plaintiff relied to establish his claim to the property on plot A. In any case, it was the law that where the evidence of a witness was material to the determination of an issue or where such evidence was vital to settling the issue one way or the other, the evidence of such a person should be accepted, unless it was apparent on the face of the record that it was not true. Accordingly, since in the instant case nothing was apparent on the face of the record to justify the rejection of the vendor’s evidence, both the trial judge and the Court of Appeal would be held to have erred in rejecting the evidence of the vendor on the spurious ground that it was not credible. Nkansah v Adjebeng [1961] GLR 465; Nkrumah v Ataa [1972] 2 GLR 13; Nkaeguo v Kunadu [1974] 2 GLR 150; [p.357] Mansah v Asamoah [1975] 1 GLR 225, CA and Atadi v Ladzekpo [1981] GLR 218, CA cited.

(4) In an action for a declaration of title, a plaintiff who failed to establish the root of his title must fail because such default was fatal to his case. Consequently, where rival parties claimed property as having been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties should incline a court to believe the case of the party in whose favour the grantor gave evidence unless destroyed by the other party. In the instant case, the defendant called the only surviving co-owner of the disputed land, whose evidence was clear that it was the defendant who actually negotiated and paid for the land. The evidence of that witness was crucial as to who purchased the land and therefore in the absence of any independent counter evidence provided by the plaintiff, he held the said plot A in trust for the defendant. Dyer v Dyer (1788) 2 Cox Eq Cas 92; Green v Carlill (1877) 4 ChD 882; Mercier v Mercier [1903] 2 Ch 98 and Harrison v Gray, Jnr [1979] GLR 330 cited.

(5) Having regard to the relationship of husband and wife between the plaintiff and the defendant, the refund by the plaintiff of the actual purchase price paid to the defendant for plot B was made on behalf of the defendant. Since the plaintiff did not pay any consideration, he did not acquire any interest in the land. Accordingly, the plaintiff could not in law justify his claim to be owner of plot B.

CASES REFERRED TO

(1) National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280; 69 LJCh 457; 16 TLR 348, CA.

(2) Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; [1956] 2 WLR 81; [1955] 3 All ER 864, HL; reversing sub nom Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182; [1954] 3 WLR 200; [1954] 2 All ER 561, CA restoring [1953] 3 WLR 773; [1952] 2 All ER 1204.

(3) Asibey III v Ayisi [1973] 1 GLR 102, CA.

(4) Nyame v Tarzan Transport [1973] 1 GLR 8, CA.

(5) Crabbe III v Quaye; Crabbe III v Boye; Addico v Akuffo (Consolidated), Court of Appeal, 31 July 1970, unreported.

(6) Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC.

(7) Dyer v Dyer (1788) 2 Cox Eq Cas 92.

(8) Cavander’s Trusts, Re (1881) 16 ChD 270; 50 LJCh 292, CA.

(9) Duagbor v Akyea-Djamson [1984-86] 1 GLR 697, CA.

(10) Dam v Addo [1962] 2 GLR 200, SC.

(11) Smith v Baker (1873) LR 8 CP 350; 42 LJPC 155; 28 LT 637.

[p.358]

(12) Asare v Appau II [1984-86] 1 GLR 599, CA.

(13) Briscoe R T (Ghana) Ltd v Preko [1964] GLR 322, SC.

(14) Atadi v Ladzekpo [1981] GLR 218, CA.

(15) Nkaeguo v Kunadu [1974] 2 GLR 150.

(16) Harrison v Gray, Jnr [1979] GLR 330.

(17) Kodilinye v Odu (1935) 2 WACA 336.

(18) Banga v Djanie [1989-90] 1 GLR 510, CA.

(19) Nkansah v Adjebeng [1961] GLR 465.

(20) Nkrumah v Ataa [1972] 2 GLR 13.

(21) Mansah v Asamoah [1975] 1 GLR 225, CA.

(22) Green v Carlill (1877) 4 ChD 882; 46 LJCh 477.

(23) Mercier v Mercier [1903] 2 Ch 98, CA.

(24) Quartey v Armar [1971] 2 GLR 231.

(25) Ussher v Darko [1977] 1 GLR 476, CA.

(26) Majolagbe v Larbi [1959] GLR 190.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff-husband against part of the judgment of the Court of Appeal granting title to property plot B to the defendant-wife and CROSS APPEAL by the defendant-wife against the part of the judgment of the Court of Appeal granting title to property plot A to the plaintiff-husband. The facts are sufficiently set out in the judgments of Wuaku, Amua-Sekyi and Aikins JJSC.

COUNSEL

George Thompson for the plaintiff-appellant.

Amarkai Amarteifio for the defendant-respondent.

JUDGMENT OF ARCHER CJ.

I have had the opportunity of reading beforehand the learned judgments of my brothers Wuaku and Aikins JJSC and I agree with them that the judgment of the trial judge in the High Court is fair and reasonable and that it should not be disturbed.

I should therefore allow the appeal of the plaintiff and dismiss the cross appeal of the defendant.

JUDGMENT OF WUAKU JSC.

This is a cross appeal by the parties to parts of the judgment of the Court of Appeal delivered on 18 July 1991. The plaintiff-appellant (hereinafter referred to as the plaintiff) and the defendant-appellant (hereinafter referred to as the defendant) got married under the Marriage Ordinance, Cap 127 (1951 Rev) on 22 September 1951. The marriage seemed to have come to an end in 1970. The plaintiff claims against the defendant two main reliefs and what I may describe as four ancillary reliefs. The first main relief the plaintiff asked for is a [p.359] declaration that he is the absolute owner of a piece of plot of land he described as plot A and the same relief in the second main relief which he described as plot B. On these two plots of land were built what is described by the plaintiff as a two-storey messuage or dwelling house and an outhouse and collectively referred to as house No A 299A/4. There is no dispute about the description of the two plots of land and the buildings thereon.

The defendant denied the plaintiff’s claim and counterclaimed as follows:

“(i) A declaration that all that property known as H/No A299A/4 Laterbiorkorshie, Accra comprising a two-storey house, a one-storey outhouse and a caretaker’s hut and the site of the whole is held by the plaintiff upon a resulting trust for the defendant as the absolute and exclusive owner thereof.

(ii) A perpetual injunction restraining the plaintiff, his servants and agents from interfering in any way whatsoever with the defendant’s exclusive beneficial ownership and possession of the said property.”

The trial was started before Okai J before whom the plaintiff closed his case. Because Okai J had left the service, it was agreed that the hearing be continued before Lutterodt J (as she then was). Lutterodt J (as she then was) carefully examined the evidence before Okai J and herself, and gave judgment for the plaintiff and dismissed the defendant’s counterclaim.

The defendant appealed to the Court of Appeal and the appeal was allowed in respect of the plaintiff’s second main relief which is in respect of plot B; the Court of Appeal thereby confirming the judgment of Lutterodt J (as she then was) in respect of the plaintiff ‘s main claim one in respect of plot A. As said earlier, the judgment of the Court of Appeal is dated 18 July 1991. The plaintiff on 17 October 1991 filed a notice of appeal against the Court of Appeal’s judgment in respect of plot B. The defendant too on 24 October 1991 filed a notice of cross appeal against the portion of the Court of Appeal’s judgment which confirmed the plaintiff’s ownership in respect of plot A.

I have decided in my judgment to examine the appeals from two angles, first, on point of law whether the defendant’s appeal is properly before the court. When the appeal was called on 17 November 1992, I drew the defendant’s counsel’s attention to the fact that the defendant’s notice of cross appeal was filed out of time. I had no response from him. I am of the view that in so far as the defendant is concerned, she has no [p.360] appeal before us. Although I am alone in this regard, I think that I am entitled to express my opinion on the issue. Rule 9 of the Supreme Court Rules, 1970 (CI 13) provides:

“9. (1) A respondent may give notice by way of cross appeal.

(2) The provisions of rule 6 of these Rules shall mutatis mutandis, apply to a notice of a cross appeal.”

(The emphasis is mine.) Both Osborn and Earl Jowitt in Dictionary of English Law at p 541 define cross appeals as “where both parties to a case appeal.” Therefore in this appeal, it is not by virtue of the appeal by the plaintiff that the defendant is the cross appellant, but because both parties have on the face of it appealed and are therefore cross appellants. If the two appeals are properly before the court, it would not matter who filed his or her appeal first.

Before I go any further, I will like to refer to the Court of Appeal Rules, 1962 (LI 218), r.16 which provides:

“16. (1) It shall not be necessary for the respondent to give notice by way of cross-appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the Court below should be varied, he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period shall file with the Registrar of the Court below four copies of such notice, one of which shall be included in the record and the other three copies provided for the use of the Judges.

(2) Omission to give such notice shall not diminish any powers of the Court, but may in the discretion of the Court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise as may be just.”

In my opinion, rule 16(2) of LI 218 is referring to notice by the respondent and not notice of cross appeal.

A careful examination of the rule shows quite clearly that rule 16 of LI 218 envisages two situations: (a) where a would be respondent wanted to cross appeal, and (b) where he does not want to cross appeal. The rule states that if he does not want to appeal but wants the judgment simply to be varied, then he shall within one month after service upon him of the notice of appeal cause written notice of such intention, etc etc; the rule does not say that he shall within one month after service upon him of the [p.361] notice of appeal, file notice of cross appeal or cause written notice of such intention, etc etc.

Rule 9 of CI 13 provides that the provisions of rule 6 of CI 13 shall, mutatis mutandis, apply to a notice of cross appeal. Rule 6 of CI 13 has eight subrules. Subrules (2) and (7) have sub-subrules. Rule 6 deals with notice of grounds of appeal. Rule 6(1) provides:

“6.(1) Any appeal to the Court in a civil cause or matter shall be brought by notice of appeal in the Form 1 set out in the First Schedule to these Rules and shall be filed with the Registrar of the Court below.”

In my opinion, rule 6(1) of CI 13 means that a cross appeal is in the same category as any other appeal to this court. And there is a time limit within which an appeal shall be filed with the registrar of the court below. The time within which an appeal shall be filed with the registrar of the court below is provided under rule 8 of CI 13. I need not reproduce the provisions of rule 8 of CI 13, however, rule 8(3) of CI 13 provides: “A civil appeal shall be deemed to have been lodged when the notice of appeal has been filed”, and I will add “within the time limits.”

I have not got any local authority to support my point of view. However, one may have a look at the English Annual Practice (1962), Vol 1, p 1670. What is described as the respondent’s notice comes under Order 58, r 6 which has five subrules. Rule 6(i) provides:

“A respondent who, not having appealed from the decision of the court below, desires to contend on the appeal that the decision of that court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, shall give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court of Appeal to make, or to make in that event, as the case may be.”

Again I wish to refer to the notes on subrule I quoted above. It states:

“Respondents notice—This subrule is new in so far as it requires that like the appellant’s notice of appeal, a respondent’s notice of intention to ask that the decision of the Court below should be varied shall specify the grounds of that contention and the form of the order for which he proposes to ask.”

That is akin to Form 1 set out in the First Schedule to the rules in CI 13. The note continues:

[p.362]

“There are two kinds of notice that may be given by a respondent one, a substantive, cross notice of appeal; the other, a notice under this rule, asking that the decision of the court below should be varied (sub r 1) or that it should be affirmed on grounds other than those relied upon by that Court (sub r 2).”

The note goes on to explain where cross notice of appeal should be given and notice under the subrule that the decision of the court be varied. The case of National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280, CA was referred to. That case decided that under the Rules of the Supreme Court, 1883, Order L VIII, r 6, a cross notice is different from a cross appeal, and that in that case the defendant’s cross notice was wrong and it should have been a cross appeal. The court said that because of the mode in which the two cases were linked and in the circumstances of the case and because counsel in the court below had more or less acquiesced in the wrong view taken by the trial judge, the court would treat the cross notice as a cross appeal. The court also took into consideration an agreement entered into by the parties which formed part of the pleadings and ordered that the action and the counterclaim be remitted for trial.

And if I may be pardoned to refer again to the notes in the Annual Practice, 1962 to Order 58, r 6 at p 1671, it is stated:

“But the only material difference, under the present rule, between a cross notice of appeal and a respondent’s notice appears to be in the time within which they are to be served; in the former case [ie cross notice of appeal] the time specified in r. 4(1) [which is the time for appealing] in the latter case in r. 6(4) [that is after the service of the notice of appeal on the respondent].”

The combined effect of Order 58. rr 4 and 6 of the English Rules of the Supreme Court is similar to our rules 6, 8 and 9 of CI 13. In my view, the defendant never sought leave for extension of time to appeal and since this court never granted her leave to appeal out of time, her notice of cross appeal is void and she has no appeal pending before us to be considered. In my view, there is a time limit whether the respondent intends to file notice of cross appeal or notice of contention that the judgment should be varied whether a claim or a counterclaim is involved or not. Again this is what the Annual Practice, 1962, Vol 1, p 1670 at 1671 says:

“A cross notice of appeal should be given where there are separate and distinct causes of action (whether both by the same party or one by claim and another by counterclaim), and one party seeks to [p.363] contest the decision upon one cause of action and the same or another party upon another cause of action (National Society for the Distribution of Electricity v Gibbs [1900] 2 Ch 280.)”

In my opinion, the only appeal properly before us for consideration is the appeal by the plaintiff. I think the parties’ claims and pleadings are very important for the determination of the appeal. In this wise I will first refer to paragraphs (11), (12) and (13) of the plaintiff’s statement of claim:

“(11) As plot B, as has already been said, is contiguous to the plaintiff’s said plot, plot A, and as to the knowledge of the plaintiff, the defendant was no longer interested in the said plot, she having sold and effectively divested herself of the ownership thereof as aforesaid, the plaintiff decided to purchase plot B and he subsequently paid the sum of £70 to the said Mrs Aryee through Mrs Rose Torto in the presence of his sister, Miss Nancy Ogbarmey-Tetteh. A receipt for the said amount was issued in favour of the plaintiff on the understanding that a conveyance would be executed by the said Mrs Adina Ayele Vanderpuye on her return to Accra.

(12) The plaintiff wrote to the defendant and informed her of the said purchase and on her return to Accra six months thereafter, she raised the subject of the purchase of the said plot in a conversation and commended the plaintiff for his vision in deciding to purchase the said plot since it was contiguous to his plot, plot A, and it would have been foolish on his part to have allowed somebody else to purchase it.

(13) In early 1970 the plaintiff had a plan for an outhouse drawn up, submitted it to the Accra-Tema City Council for approval and building permit No 103 of 21 March 1970 was issued in his name. He then proceeded to erect the said outhouse partly on plot A and partly on plot B which he had lately acquired as aforesaid. The said building was financed partly out of the plaintiff’s savings and partly with an additional overdraft of ¢3,000 granted by the same bank on the same security.”

And this is what the defendant pleaded in reply:

“(7) Paragraphs (11) and (12) of the statement of claim are denied. The refund of Mrs Vanderpuye’s money on the abortive conveyance of the smaller parcel of land was made by the defendant through Mrs Torto. No question arose about conveying the smaller parcel to the plaintiff as alleged or at [p.364] all, and no conveyance thereof has ever been made in favour of the plaintiff.

(8) Save for the allegation that the smaller parcel had been acquired by the plaintiff, paragraph (13) of the statement of claim is admitted. The defendant however contends that both she and the plaintiff agreed together as husband and wife when about to leave Ghana on a diplomatic posting abroad to develop the smaller parcel as a residence for the defendant’s old mother (since deceased in 1970). Pursuant to the said family arrangement the plaintiff took out the building permit and mortgage loan from the bank as alleged.”

In my opinion, paragraph (8) of the defence is an admission of paragraph (13) of the statement of claim that it was the plaintiff who built the house on plot B. Exhibit W, the letter written on behalf of the defendant by her lawyer, shows that the building was never put up towards any family arrangement or for the occupation of the defendant’s old mother. On the other hand, the last but two paragraphs of exhibit W is an admission that it was the plaintiff who built the house on plot B. The said paragraph ended thus: Our client [meaning the defendant] helped your client [meaning the plaintiff] to put up that building though she admits that your client [ie the plaintiff] put more money in this building than she did.” Thus the learned trial judge made the following significant findings:

“In the face of these concessions in exhibit W how can she single handedly put up this same building? This is another clear evidence of her inconsistency. Even so the entire truth about her, the plot was not told in exhibit W. But we can treat that as a slight inconsistency. But we look at paragraph (8) of her statement of defence and counterclaim and we find the facts as pleaded there are entirely different from her evidence in-chief. In paragraph (8) she claims the two of them decided to put up the house for her mother, in her evidence in-chief, she says she built up the house from her own resources. The authorities are clear one cannot put a case different from what had been pleaded.”

I entirely agree with those findings. This is what Lord Normand said about pleadings in Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 238-239, HL:

“The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them … To condemn a party on a ground of [p.365] which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”

The plaintiff’s evidence was amply corroborated by his witnesses and supported by documentary evidence. These weighed heavily against the defendant. Although the defendant alleged fraud in her statement of defence, she never gave any particulars. Various reasons were given by the defendant to whittle down the effect of the plaintiff’s evidence. The plaintiff, according to the defendant, tricked her in giving the documents to him, or he forged the documents, or she conveyed the plots of the land on promise of marriage or to have sex with her. The fourth defendant witness, Joseph L Lamptey, in his evidence in-chief, said that a bricklayer called Ataa Aryee engaged him as one of his labourers and told him that the house was to be built for one Quarshie, in other words not for the defendant.

It is true that the plaintiff and his witnesses gave evidence before a different judge. It is also true that the trial judge did not also see Helena Ashia Mills, one of the defendant’s alleged vendors. In my view, the trial judge properly evaluated the evidence of those whom she had not seen and as well as those whom she saw and made the correct assessment. In so far as plot A is concerned she had concurrence from the Court of Appeal.

Holding (1) in the headnote of Asibey III v Ayisi [1973] 1 GLR 102 at 104, CA states:

“(1) when a decision upon an issue depended upon the credibility of witnesses who had given evidence at the trial and the question as to which witness was to be believed, and that question turned upon manner and demeanour, an appellate court would not interfere with a finding on that issue by the trial judge. But if there were circumstances existing which in the opinion of the court would go to credibility of witnesses, it would differ from the trial judge.”

See also Nyame v Tarzan Transport [1973] 1 GLR 8, CA. I do not find any circumstances existing which would convince me to differ from the trial judge’s finding.

Grounds (i) and (ii) of the plaintiff’s appeal to this court are these:

“(i) that so much of their lordships’ decision as adjudged that the respondent was the owner of plot B because the appellant held it in trust for the respondent, was wrong and ought to be set aside; and

(ii) that there was no evidence to support their lordships’ decision [p.366] afore mentioned.”

As a matter of fact the defendant claims that all the property known as H/No A299A/4 which comprises plots A and B were held by the plaintiff upon a resulting trust for the defendant. I need not go fully into the evidence. The defendant has denied the plaintiff’s statement of claim that plot B was a gift to the defendant which she subsequently sold: see paragraph (5) of the defence. She in her evidence before the court, however, admitted that plot B was a gift to her. The plaintiff said that the defendant sold the land to one Mrs Adina Ayele Vanderpuye, and later when she decided that she would no longer buy back the land, he, the plaintiff, in the absence of the defendant, decided to purchase the land. Therefore the sum of £70, being the purchase price, was paid by him with the understanding that a conveyance would be executed in his favour: see paragraph (11) of the statement of claim. It is not the defendant’s case that the plaintiff paid or refunded the £70 for and on her behalf, but said she rather refunded the £70 through one Mrs Torto. If what the plaintiff had stated in his statement of claim is true, how then can it be said that the plaintiff held the property on a resulting trust for the defendant?

The defendant’s reply was that on the evidence, “the honourable justices of appeal were right in their view that the plaintiff did not acquire this plot B for himself and that he held it in trust for the defendant.” As a matter of law the defendant led not one jot or tittle of acceptable evidence of any implied trust which trust could be founded upon her unexpressed but presumed intention: see Snell’s Principles of Equity (27th ed), chap 4, p 188.

For the several reasons given above, I would allow the plaintiff’s appeal and restore the judgment of the learned trial judge in full. I would dismiss the appeal of the defendant as not properly before the court because I hold the view that every cross appellant must file his or her notice of cross appeal within the statutory time limited within which a notice of appeal shall be lodged. I would award costs in favour of the plaintiff.

JUDGMENT OF AMUA-SEKYI JSC.

The High Court, Accra gave judgment for the plaintiff in respect of two pieces or parcels of land together with the dwelling house thereon. On appeal, the Court of Appeal affirmed the decision with regard to what has been described in the proceedings as plot A, but reversed the decision with regard to plot B. The court adjudged plot B and part of the dwelling house to be the property of the defendant.

The court gave its judgment on 18 July 1991. The plaintiff bided his [p.367] time until 17 October 1991 when he lodged an appeal against that part of the decision which had adjudged the defendant to be the owner of plot B and the building thereon. On being served with notice of the appeal, the defendant on 24 October 1991 filed a notice of cross appeal in respect of that part of the decision which had adjudged the plaintiff to be the owner of plot A and the building thereon. Counsel for the plaintiff now objects to the defendant being heard on her cross appeal on two grounds: (1) the cross appeal was filed out of time; and (2) the defendant was required to obtain leave to appeal, but failed to do so.

Although counsel for the plaintiff did not refer to any provision in the law to support his first ground of objection, it may reasonably be supposed that he had in mind rule 8 (1) (b) of the Supreme Court Rules, 1970 (CI 13) which requires that a civil appeal against a final decision be lodged within three months. In this case, the defendant filed her cross appeal more than three months after the Court of Appeal had delivered its judgment. What counsel seems to forget is that there can be no cross appeal unless an appeal has been lodged. Therefore, when the plaintiff chose to lodge his appeal almost three months to the day after the decision of the Court of Appeal, he left the defendant with no choice but to file hers after the expiration of the period specified in the rule.

But, is a cross appellant, really, bound by rule 8 (1) (b) of CI 13? The rule governing cross appeals is rule 9. It reads:

“9. (1) A respondent may give notice by way of cross appeal.

(2) The provisions of rule 6 of these Rules shall, mutatis mutandis, apply to a notice of a cross appeal.”

It will be observed that apart from rule 6 of CI 13 which deals with the form and content of appeals, no other rule is referred to as applying to a cross appeal. If any other rules are to be applied there must be compelling reasons for so doing.

There is no difference of substance between a claim and counterclaim or set-off on the one hand, and an appeal and a cross appeal on the other. Just as a claim must precede a counterclaim or set-off, so must an appeal precede a cross appeal. With regard to a claim, a counterclaim and a set-off, section 32 of the Limitation Decree, 1972 (NRCD 54) provides:

“32. For the purposes of this Decree, any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counterclaim is pleaded.”

A cross appeal, too, owes its existence to an appeal and is deemed to have [p.368] been filed on the same date as the appeal. If an appeal is lodged within time, a cross appeal from the same judgment is deemed to have been lodged within time no matter how many days, months or even years after the filing of the notice of appeal that it was lodged. A cross appeal will be regarded as having, so to speak, been filed out of time only if the appeal itself was filed out of time. It is this that explains why in civil appeal No 50/66 Crabbe III v Quaye, Court of Appeal, 31 July 1970, unreported, a cross appeal filed almost five years after notice of appeal had been lodged was permitted to be argued. I am satisfied that all that the law requires is that an appellant should have reasonable notice of any cross appeal.

If it is said that in the Court of Appeal a cross appeal need not be filed and that the notice filed in the Crabbe case (supra) was treated as one for a variation, my answer would be that rule 16(1) of the Court of Appeal Rules, 1962 (LI 218) only permits a cross appellant to adopt the less expensive course of filing notice for a variation but does not debar him from filing a cross appeal, if he so desires. In any case, the rule requires that the notice for variation, if any, be filed within one month of service of the notice of appeal. That, probably accounted for the deliberate decision to file a cross appeal.

The submission that the defendant required leave of the Court of Appeal or of this court before she could cross appeal is based on counsel’s view of section 3 of the Courts Act, 1971 (Act 372), as amended by section 1 of the Courts (Amendment) Law, 1987 (PNDCL 191). Section 3(2) of the amended provision reads:

“3.(2) Where a decision of the Court of Appeal confirms the decision appealed against from a lower court, an appeal shall lie against such decision of the Court of Appeal which may on its own motion or on an oral application made by the aggrieved party decide whether or not to grant such leave, and where the Court of Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such leave.”

It is counsel’s contention that as far as plot A is concerned, the Court of Appeal affirmed the decision of the High Court and, therefore, the defendant required leave to appeal.

This submission reminds me of the case of Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC. There, the plaintiffs had sued in the High Court for various reliefs. Some of these reliefs were granted while others were refused. On appeal, some of the reliefs which had been refused in the High Court were granted while others were again refused. On a further appeal to this court, counsel for the defendants [p.369] raised the issue whether leave to appeal was required. In its ruling, this court said, per Sowah JSC (as he then was) at 340-341:

“The argument must be faulted on the conception of strands of a decision rather than a single decision . . . not a dissected, truncated or dismembered decision. A decision must be regarded as a whole—a complete entity. Wharton’s Law Lexicon and Earl Jowitt’s Dictionary of English Law, both describe a decision simply in two words as ‘a judgment.’ A judgment declares either for a successful party or designates a losing one. Consequently, the amended section curtailing rights of appeal, comes into play only when two successive judgments are against an appellant . . .

Since the Court of Appeal came to the conclusion that the plaintiffs had been partially successful, the conclusion cannot be equated with successive failures which would fetter the plaintiffs’ right of appeal to the Supreme Court.

Our decision is that the plaintiffs do not need leave to appeal and can appeal as of right.”

This is precisely the situation in which the defendant before us finds herself. Having been partially successful in the Court of Appeal she can appeal to this court as of right.

Although the plaintiff commenced his action in 1974, it was not until 1990 that a judgment was delivered in the High Court. The reason for this inordinate delay appears to be that there were abortive proceedings before Okai J and Lamptey J (as he then was) before the matter came to trial and was concluded before Lutterodt J (as she then was). With the consent of the parties the evidence led at the earlier hearings were adopted for the purposes of the trial before Lutterodt J (as she then was). The result was that Lutterodt J (as she then was) had none of the advantages of a judge sitting at first instance when she came to assess the evidence of the plaintiff and his witnesses, as well as that of the vendor of the parties who had been called by the defendant. The Court of Appeal failed to notice this and accepted her findings of fact as having been made by a judge who had seen and heard all the witnesses.

The defendant gave up schooling at an early age. She met the plaintiff when he was in secondary school. On completing his secondary education the plaintiff taught for two years as an untrained teacher. He entered a teacher training college for a certificate, and then, while still teaching, married the defendant in 1951. He entered the University of Ghana in the same year and graduated in 1954. The evidence of the defendant that she supported the plaintiff financially both before and after the marriage is [p.370] entirely credible. Such marriages of convenience are not unknown in these parts. Her evidence that when the plaintiff was a newly-qualified graduate teacher she bought a motor-car for their common use was not denied. When it came to acquiring land for future development, it was the defendant who approached the vendors to agree on terms. The evidence of the plaintiff that it was he who paid the purchase price was strenuously denied by the surviving vendor who had been called to give evidence for the defendant. This witness stated that it was the defendant who paid but that at her request plot A was made out in the name of the plaintiff. Lutterodt J (as she then was) rejected the evidence of this witness, whom she had not seen, on the ground that she was related to the defendant and had given an unsatisfactory explanation of why the defendant had asked that one of the two documents be made out in the name of the plaintiff. According to the witness, the defendant explained that she was to be married to the plaintiff. Since the document bears the date 1957 and the parties got married in 1951 it seemed to the judge that the evidence could not be true.

The relationship between the witness and the defendant was admitted. She was neither the mother, sister, nor even the aunt of the defendant. To suggest that the witness would permit the kind of distant family relationship which existed between her and the defendant to lead her to commit perjury is to cast a serious slur on her character. There is no evidence on record to support such a view. As she explained, she knew the plaintiff well and was distantly related to him too. There was nothing in her evidence to suggest that she harboured any feelings of ill-will towards him. Looked at carefully, it will be seen from the evidence of the witness that the negotiations for the acquisition of the plots began as far back as 1949 when, although the plaintiff and the defendant were romantically involved, they had not yet got married. As the evidence shows, the defendant was in later years to acquire two estate houses at Kaneshie, one in her own name and the other in the name of the plaintiff.

With regard to plot B, Lutterodt J (as she then was) found for the plaintiff because the defendant sold it to a lady who later rescinded the contract and claimed a refund while the defendant was out of the country. The plaintiff refunded the purchase price on behalf of the defendant. I am in complete agreement with the Court of Appeal that having regard to the relationship between the plaintiff and the defendant the refund by the plaintiff could not in law make him owner of plot B.

Each of the parties called workmen to testify that they had been engaged by the party calling them to work on the building and had been paid by him or her. The fact that the document of title of plot A and the [p.371] building plans were in the name of the plaintiff was no reason for rejecting the evidence of the witnesses called by the defendant; nor is the circumstance that in one case, the witness, a labourer, did not know if any building plans were used. With the exception of the two plumbers whose evidence appear to be in conflict with each other, it is entirely probable that the others were truthful witnesses and that they were engaged on different stages of the project which took some five years to complete.

In the courts below, it was accepted on the authority of Dyer v Dyer (1788) 2 Cox Eq Cas 92 that if the defendant paid for plot A, the plaintiff holds it in trust for her. Having, therefore, accepted the evidence of the surviving vendor that the plot was paid for by the defendant, I come to the conclusion that the plaintiff holds the said plot and the dwelling house thereon in trust for the defendant.

In the result, I would dismiss the appeal of the plaintiff and allow the cross appeal of the defendant.

JUDGMENT OF AIKINS JSC.

In this appeal the plaintiff is the appellant against part of the judgment of the Court of Appeal in respect of plot B, a portion of the land in dispute, and the defendant is the cross appellant of the other part of the judgment of the Court of Appeal in respect of plot A which contains the main building contiguous to the said plot B.

The plaintiff on or about 19 June 1974 issued out of the High Court, Accra a writ against the defendant claiming:

“(1) a declaration that he is the absolute owner of all that piece or parcel of land (hereinafter referred to as plot A) comprising an appropriate area of 0.315 of an acre situate at Laterbiorkorshie, Accra and comprised in a conveyance dated 8 August 1957 registered at the Land Registry as DR No 2212/57 and made between Emma Mills and Helena Mills of the one part and Seth Ogbarmey-Tetteh (the plaintiff herein) of the other part together with the two-storey messuage or dwelling house erected thereon or on same part thereof and known as house No A299A/4, Accra;

(2) a declaration that he is the absolute owner of all that piece or parcel of land (hereinafter referred to as plot B) measuring 58 feet by 98 feet situate at Laterbiorkorshie aforesaid and adjoining plot A together with the outhouse erected partly thereon and partly on plot A;

(3) possession of plot A and plot B together with the two-storey messuage or dwelling house and outhouse erected thereon or [p.372] on some part thereof (hereinafter collectively referred to as H/No A 299A/4 Accra) which are in the wrongful occupation and possession of the defendant;

(4) the sum of ¢7,540 being rents collected by the defendant from the plaintiff’s said premises on his authority for the period May 1970 to August 1973 which the defendant has refused to pay to the plaintiff despite repeated demands;

(5) mesne profits from 1 February 1974 till possession of house No A299A/4 Accra is delivered up to him; and

(6) damages for the defendant’s unlawful entry and occupation of the said premises.”

The defendant denied the claim of the plaintiff, and counterclaimed for:

“(i) a declaration that all that property known as H/No A299A/4 Laterbiorkorshie, Accra comprising a two-storey house, a one-storey outhouse and a caretaker’s hut and the site of the whole is held by the plaintiff upon a resulting trust for the defendant as the absolute and exclusive owner thereof;

(ii) damages for fraud; and

(iii) a perpetual injunction restraining the plaintiff, his servants and agents from interfering in any way whatsoever with the defendant’s exclusive beneficial ownership and possession of the said property.”

The case has had a chequered history. Trial began in the High Court, Accra presided over by Lamptey J (as he then was) on or about 5 February 1979. After hearing the evidence of some four witnesses, including Helena Ashia Mills and the plaintiff, Lamptey J (as he then was) proceeded on transfer and the case was taken over by Okai J who decided to hear it afresh. Hearing began on or about 26 November 1985. After the plaintiff had closed his case, and the defendant was to open her defence, for an unknown reason, proceedings were interrupted again, and eventually the case was transferred for continuation before Lutterodt J (as she then was) on 23 June 1986. Counsel for both the plaintiff and the defendant agreed to adopt the proceedings before Okai J, and the trial judge called on the defendant to open her case. It was not until 12 April 1990 that judgment was delivered and this went in favour of the plaintiff.

Aggrieved by and dissatisfied with this judgment, the defendant appealed to the Court of Appeal which allowed the appeal in part with respect to plot B in favour of the defendant. The Court of Appeal’s [p.373] judgment was delivered on 18 July 1991. On 17 October 1991 the plaintiff-appellant filed his appeal to this court against the decision of the Court of Appeal with respect to plot B, and on 24 October 1991 the defendant-appellant filed her cross appeal against that part of the decision of the Court of Appeal in respect of plot A.

Four grounds of appeal were filed by the plaintiff. These are:

“(i) that so much of their lordships’ decision as adjudged that the respondent was the owner of plot B because the appellant held it in trust for the respondent was wrong and ought to be set aside;

(ii) that there was no evidence to support their lordships’ decision aforementioned;

(iii) that so much of their lordships’ decision as adjudged that damages for trespass for ¢100,000 awarded by the trial judge against the respondent be reduced to ¢10,000 was in the premises wrong and ought to be set aside; and

(iv) that so much of their lordships’ decision as adjudged that there would be no order as to costs was, in the premises, wrong and ought to be set aside and costs in the Court of Appeal awarded by your lordships.”

The defendant filed two grounds of appeal, namely:

“(i) the plaintiff failed to discharge the burden of proof in support of his claim; and

(ii) that their lordships erred in law and in fact by relying on the weakness of the defendant’s case rather than the strength of the plaintiff’s case at arriving at their decision.”

Before us the plaintiff submitted that the cross appeal should be dismissed as incompetent and not properly before the court because first, the defendant having lost twice cannot cross appeal as of right in respect of plot A except with leave of the Court of Appeal or the Supreme Court, and cited the Courts Amendment Law, 1987 (PNDCL 191) to support his contention; and secondly, that the defendant’s cross appeal is out of time as it was filed without having obtained extension of time. In reply counsel for the defendant argued that PNDCL 191 is not applicable because she did not lose twice in this case, but that the judgment of the trial court was partially reversed by the Court of Appeal in her favour. Counsel further submitted that in any event the Supreme Court has discretion under CI 13 to vary a decision of the Court of Appeal suo motu in an appropriate case.

I consider the issues raised fundamental to the determination whether [p.374] Consideration should be given to the cross appeal and for that matter I would wish to deal with them first. The Courts Act, 1971 (Act 372), s 3(2) is amended by PNDCL 191 provides:

“(2) Where a decision of the Court of Appeal confirms the decision appealed against from a lower court, an appeal shall lie against such decision of the Court of Appeal which may on its own motion or on an oral application made by the aggrieved party decide whether or not to grant such leave, and where the Court of Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such leave.”

It would appear from the language of section 3(2) of PNDCL 191 that it is only where a decision as a whole of the Court of Appeal confirms the decision of the lower court that leave of the Court of Appeal is required before an aggrieved party can appeal against the decision of that court, or where the court refuses to grant leave to appeal he may repeat his application in the Supreme Court. Section 3(2) of PNDCL 191 does not talk of part of a decision, but the whole decision of the court. Therefore where the Court of Appeal comes to a conclusion that a party is partially successful this cannot be taken to mean that the party has had successive failures that should compel him to apply for leave to appeal; he could appeal as of right. In other words, the subsection applies only where two successive judgments go against the aggrieved party.

This court had occasion to clarify the law on this issue in the case of Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338 as stated in the headnote at 339, SC thus:

“A decision must be regarded as a whole—a complete entity. A judgment declared either for a successful party or designated a losing one. Consequently section 3(2) curtailing rights of appeal, would come into play only when two successive judgments were against an appellant. The policy rationale of section 3(2) was to curb the spate of frivolous appeals. Merit must be demonstrated, at the leave stage, before a suitor who had failed twice, was admitted to audience for a third time. That was in consonance with the public policy of discouraging endless and futile litigation. The converse was also true: Where a suitor had had no successive reverses, no impediment inhibited the utilisation of his full rights of appeal. Therefore since the Court of Appeal came to the conclusion that the plaintiffs had been partially successful, that conclusion could not be equated with successive failures which would fetter the plaintiffs’ [p.375] right of appeal to the Supreme Court. Consequently, the plaintiffs did not need leave to appeal and could appeal as of right.”

The next point raised is that the defendant’s cross appeal is out of time as it was filed without having obtained extension of time. What happened in this case is that judgment in the Court of Appeal was delivered on 18 July 1991 and the plaintiff filed his appeal on 17 October 1991, just within the period prescribed for lodging an appeal as of right. Then a week later, ie 24 October 1991 the defendant filed her notice of cross appeal.

Rule 9 of the Supreme Court Rules, 1970 (CI 13) simply talked of the right of a respondent to give notice by way of cross appeal, and the application of the provision of rule 6 mutatis mutandis to such notice of cross appeal, but the rules are silent regarding the practice and procedure which shall apply in this matter. Such being the case, until the court prescribes practice and procedure as the justice of the cause or matter may require, I think I am at liberty to seek advice from any common law Commonwealth jurisprudence.

At common law there are two kinds of notice that may be given by a respondent. The first is a substantive cross notice of appeal, and the second is a notice asking that a decision of the court below should be varied, or that it should be affirmed on grounds other than those relied upon by the court. Here like the appellant’s notice of appeal a respondent’s intention to ask that the decision of the court below should be varied, or affirmed on grounds other than those relied upon by the court below, must give notice to that effect specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court of Appeal to make. The latter has been given statutory effect by the English Rules of the Supreme Court, Order 58, r 6(1) and (2).

Our CI 13 does not contain any provisions that are similar to the English provisions, but a like provision is contained in rule 16 of the Court of Appeal Rules, 1962 (LI 218) regulating proceedings in the Court of Appeal. The rule states:

“16.(1) It shall not be necessary for the respondent to give notice by way of cross-appeal; but if a respondent intends upon the hearing of the appeal to contend that the decision of the Court below should be varied, he shall within one month after service upon him of the notice of appeal cause written notice of such intention to be given to every party who may be affected by such contention. In such notice the respondent shall clearly state the grounds on which he intends to rely and within the same period shall file with the Registrar of the Court below four copies of such [p.376] notice, one of which shall be included in the record and the other three copies provided for the use of the Judges.

A respondent’s cross notice of appeal is normally given in relation to the subject matter of the action. It should be given where there are separate and distinct causes of action (whether by the same party, or one by claim and another by counterclaim), and one of the parties seeks to contest the decision upon one cause of action and the same party or another seeks to contest upon another cause of action: see the White Book, 1962, p 1670 and Halsbury’s Laws of England (3rd ed), Vol 30, para 880. When the court dismisses an action and a counterclaim founded on separate causes of action, and the respondent to an appeal from the dismissal of the counterclaim wishes to appeal from the dismissal of the action, he must give a separate notice of appeal: see National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280, CA. So also where the respondent seeks to vary the order on a point which does not concern the appellant: see Re Cavander’s Trusts (1881) 16 ChD 270, CA. But where, however, the action and counterclaim are linked together, as in the instant case, the cross notice ought to be treated, and it is hereby accordingly treated, as if it were a distinct notice of appeal.

The English case of National Society for the Distribution of Electricity by Secondary Generator v Gibbs (supra) is almost on all fours with the instant case. In that case letters patent were granted to L and J in 1882, and by an agreement made the following year between L and J of the one part, and the plaintiff company of the other part, the former agreed to sell, assign and transfer to the latter all the patents. On the death of L in 1888, though the purchase money had been paid, the patents had then not been assigned, and the company sued J and the administratrix of L claiming (1) an order on the defendants to assign the patents; (2) damages for breach of the agreement; and (3) repayment of part of the purchase money on the ground that some of the patents had been declared invalid. L’s administratrix then counterclaimed for payment by the company of a sum alleged to be due to her upon the agreement under a judgment pronounced by a French court in an action brought against her in France by the company in 1889. At the trial of the English action and counterclaim, the trial judge Cozens-Hardy J dismissed both.

[p.377]

The judgment was entered on 29 May 1899 and on 29 August 1899 the defendant, Mad Ruelle, gave the plaintiffs notice of appeal from the judgment so far as it ordered dismissal of the counterclaim. On 24 October 1899, the respondents under the Rules of the Supreme Court, 1883, Order 58, r 6 served the defendant with a cross notice that upon the hearing of her appeal they would move that the judgment might be reversed so far as it ordered the dismissal of the action, and that the action might be referred back for trial.

During the hearing of the appeal, it was argued on behalf of the defendant that with regard to the plaintiffs’ cross notice it was irregular and out of time; that the counterclaim on which the defendant appeals deals with a totally different subject matter to that of the plaintiffs’ action, which is an action for damages for breach of an agreement, and it would be unfair to allow the plaintiffs to raise by cross notice a question which entirely differs from that raised by the defendant’s appeal. Counsel submitted further that if the plaintiffs were dissatisfied with the judgment they should have appealed in the ordinary way; and that by rule 15 of Order 58 the time for appealing from a final judgment is limited to three months, so that even if this cross notice were to be treated as a definite appeal, the plaintiffs are altogether out of time.

In reply counsel for the plaintiffs argued that the decision of the learned judge was in fact one decision on both the action and the counterclaim, and therefore, an objection taken by one party to that decision gave the other party equally a right to object to the decision by a cross notice.

Lindley MR ruled that it was clear that the learned judge linked the action and counterclaim together, and under the circumstances the cross notice should be treated as if it were a distinct notice of appeal. At 287-288 Lindley MR had this to say:

“I wish to say one word upon the question of the plaintiffs’ cross-notice. If the learned judge had not so linked the action and the counter-claim together as he did, and if the counsel in the Court below had not more or less acquiesced in that view, I should have thought—and I think my brothers agree—that the plaintiffs would have been wrong in giving their cross-notice as distinguished from bringing a cross-appeal, inasmuch as that cross-notice was addressed, not merely to the counter-claim to which the appeal was confined, but to the totally different matter of their right to relief upon their action, which is a separate and distinct matter altogether. But, having regard to the mode in which the two were linked [p.378] together, we think that, in the circumstances of this case, the cross-notice ought to be treated, and we have accordingly treated it, as if it were a distinct notice of appeal. The ‘appeal’ referred in rule 6 of Order LVIII is in this case the appeal by the defendant on her counter-claim; and reading the rule strictly and properly, the cross-notice could only be available in connection with the appeal from the order made on the counter-claim, and ought not to have been extended to a totally distinct matter—that is to say, to the relief sought by the plaintiffs on their claim. But as I have said before—and I am prepared to adhere to it—the circumstances of this case were so special by reason of the course taken, to which I have alluded, that we think it only just to treat the cross-notice as a cross-appeal, and we do so accordingly.”

It follows from the reasoning in this case with which I agree, that in the instant case, as the decision of the court below was in fact one decision on both the action and the counterclaim, the objection taken by the plaintiff to that decision gave the other party equally a right to object to the decision by a cross notice as if it were a distinct notice of appeal. In any event it seems to me that once an appeal is lodged against the decision or any part of it, under rule 23 (3) of CI 13 this court may in hearing the appeal, make any order necessary for determining the real issue or question in controversy between the parties. This power of the court is better clarified in rule 32 of LI 218 which deals with the power of the Court of Appeal to give any judgment and make any order in an appeal before it. The rule says:

“32. The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.”

And since by virtue of article 116 (4) of the Constitution, 1979 as reproduced in article 129 (4) of the Constitution, 1992 this court, for purposes of hearing and determining any matter within its jurisdiction, is empowered to exercise all powers, authority and jurisdiction vested in any court established by the Constitution, 1992 or any other law, the powers exercised by the Court of Appeal under the above rule may be exercised [p.379] by this court. In the result the objection raised by the plaintiff fails and is hereby overruled.

I now turn to the appeal against that part of the Court of Appeal’s decision in respect of plot B. The trial judge had after an exhaustive consideration and a critical examination of the evidence before her, made a finding in favour of the plaintiff in respect of this plot, but this was overturned on appeal. In its leading judgment read by Amuah JA (Ampiah and Adjabeng JJA concurring) he said:

“I now come to the third complaint. The plaintiff said that while the defendant was away in London the mother of Mrs Vanderpuye approached him and said that her daughter was no longer interested and that she wanted a refund of the money she gave to the defendant. The defendant at the time was abroad and the plaintiff said he refunded it and when the defendant came back he told her of the refund. He went on to say that as a result he acquired the land in this way. If Mrs Vanderpuye intended to sell the land to him she would have executed a deed in his favour but in this case she did not and from the relationship existing between the parties the reasonable inference is that he refunded it on behalf of the defendant because she was abroad. The plaintiff therefore held the plot B and whatever stands on it in trust for the defendant.”

If the case were as simple as that there would have been no need for anyone to pick a bone with the court. Counsel for the plaintiff argued that there was no evidence to support their lordships’ decision, and that they erred in holding that the appellant held the plot in trust for the respondent. The initial claim of the plaintiff in respect of this plot is contained in paragraphs (7)-(13) of the statement of claim, and is as follows:

“(7) The defendant who was married to the plaintiff at the time introduced prospective purchasers of plots in Laterbiokorshie aforesaid to the said Emma Mills and Helena Mills and in consideration of her said services, the said Emma Mills and Helena Mills conveyed to the defendant by way of gift a rather smallish plot measuring 58 feet by 98 feet and continuous to plot A belonging to the plaintiff and executed a conveyance comprising the said plot of land in favour of the defendant.

(8) The defendant subsequently sold her said plot of land (hereinafter referred to as plot B) to a Mrs Adina Ayele Vanderpuye.

[p.380]

(9) In 1962 the plaintiff, a foreign service officer, returned from Britain where he had been on attachment to the British and Commonwealth office, leaving the defendant behind in Britain.

(10) Soon after his arrival in Accra the plaintiff got word from a Mrs Aryee, the mother of the said Adina Ayeley Vanderpuy to the effect that her daughter who was then in London was no longer interested in plot B as the Lands Department had refused to register the said conveyance executed by the defendant in her daughter’s favour.

(11) As plot B, as has already been said, is contiguous to the plaintiff’s said plot, plot A, and to the knowledge of the plaintiff the defendant was no longer interested in the said plot, she having sold and effectively divested herself of the ownership thereof as aforesaid, the plaintiff decided to purchase plot B and he subsequently paid the sum of £70 to the said Mrs Aryee through Mrs Rose Torto in the presence of his sister, Miss Nancy Ogbarmey-Tetteh. A receipt for the said amount was issued in favour of the plaintiff on the understanding that a conveyance would be executed by the said Mrs Adina Ayele Vanderpuye on her return to Accra

(12) The plaintiff wrote to the defendant and informed her of the said purchase and on her return to Accra six months thereafter, she raised the subject of the purchase of the said plot in a conversation and commended the plaintiff for his wisdom in deciding to purchase the said plot since it was contiguous to his plot, plot A, and it would have been foolish on his part to have allowed somebody else to purchase it.

In her statement of defence the defendant had this to say in paragraphs (5)-(8):

“(5) Save that the plaintiff and the defendant were then married and that the defendant bought a smaller adjoining parcel of [p.381] land from the Mills sisters paragraph (7) of the statement of claim is denied.

(6) Paragraphs (8), (9) and (10) of the statement of claim are admitted..

(7) Paragraphs (11) and (12) of the statement of claim are denied. The refund of Mrs Vanderpuye’s money on the abortive conveyance of the smaller parcel of land was made by the defendant through Mrs Torto. No question arose about conveying the smaller parcel to the plaintiff as alleged or at all, and no conveyance thereof has ever been made in favour of the plaintiff.

(8) Save for the allegation that the smaller parcel had been acquired by the plaintiff, paragraph (13) of the statement of claim is admitted. The defendant however contends that both she and the plaintiff agreed together as husband and wife when about to leave Ghana on a diplomatic posting abroad to develop the smaller parcel as a residence for the defendant’s old mother (since deceased in 1970). Pursuant to the said family arrangement the plaintiff took out a building permit and mortgage loan from the bank as alleged.”

(The emphasis is mine.)

The plaintiff’s evidence in-chief before Okai J (which proceedings were adopted by the parties) with respect to plot B on 6 February 1986 is as follows:

“There is a small adjacent plot measuring 100 ft x 88 to my plot of the main building. The vendors gave the plot to one Mrs Adina Vanderpuye for £70. Mrs Vanderpuye left for America. She is residing in New York. On my return from UK in early 1961 the mother of Mrs Vanderpuye came and said she wanted a refund of the money she gave to the defendant and that her daughter was no longer interested in that plot as she is residing abroad. At the time the defendant was abroad, I refunded the amount of £70 and when the defendant came back from UK I told her of the refund. As a result of that I acquired the second plot from Mrs Vanderpuye. I started to develop the small plot in early 1979.”

On 27 February 1986 the plaintiff continued his evidence and said:

“I purchased the plot of the outhouse to the main building. The defendant originally had it and she sold it to Mrs Vanderpuye. The [p.382] defendant sold it for £70. There was no document prepared by Mrs Vanderpuye to me because she had not returned to Ghana. I paid the money to her mother. I purchased the land for myself. I did not give the defendant an impression that I was putting up the building for her because she has her own property.”

The plaintiff was not cross-examined on this vital evidence. This is not surprising because before then on 5 February 1974 the defendant had caused her solicitor, Mr K R A Korsah, to write to the plaintiff in respect of the plot as follows:

“While on this subject of buildings and plots, we think it is pertinent to add that your client has built on a piece of land adjacent to the premises the subject matter herein, which piece of land was given as a gift to our client by Madam Ashia Mills. Our client helped your client to put up that building though she admits that your client put more money in this building than she did.”

The defendant said nothing about this plot in her evidence in-chief before Lutterodt J (as she then was). However, the following was elicited from her in cross-examination:

“Q Apart from the two plots of land covered by exhibit A, the Ablorh Mills family gave you another plot contiguous to the land in dispute?

A Yes, this is true.

Q Although this land was contiguous to the one in dispute a separate document was made in your name?

A Yes, it was a gift so they gave me the land in my name.

Q You sold that piece of land to one Mrs Vanderpuye?

A Yes, that was the original plan.

Q Mrs Vanderpuye later said she was not interested in the property?

A Yes.

Q At the time she said so you were not in Ghana?

A That is so. The plaintiff wrote to tell me in London.

Q When she said she was not interested the plaintiff bought the land from Mrs Vanderpuye?

A No, he did not.

Q Mrs Vanderpuye sold this land to him?

A She did not, she said she wanted her money back, it was £70. I refunded it.

[p.383]

Q When you paid back the £70 did she return the property to you?

A No she did not, she returned the deed I made to her.”

(The emphasis is mine.)

Then later the following dialogue ensued:

“Q You remember consulting lawyer Roger Korsah when this problem about this house arose?

A However, it was in connection with his stating falsely that we were divorced.

Q There is a small house attached to this main one?

A Yes.

Q When was it built?

A I completed it in 1970.

Q The plaintiff built this small house out of his own resources?

A No, he had nothing. He used his name in many of my personal properties.”

(The emphasis is mine.)

At this stage the letter from Roger Korsah was tendered as exhibit W and read. Then counsel asked:

“Q Exhibit W talks about the subject matter of this suit?

A I cannot remember.

Q You told Roger Korsah that the small house was built by the plaintiff?

A I never said that. I put up that house. He, never contributed towards the building.”

(The emphasis is mine.)

Of the two parties whose story is to be believed? Having told Mr Roger Korsah, her solicitor, that the plaintiff had “built on a piece of land adjacent to the premises the subject matter herein”, she now emphatically denies this, and says she put up that house, and that the plaintiff never contributed any money or thing towards the erection of the building.

It is being argued that the plaintiff cannot be said to have legally owned or purchased the plot because he was married to the defendant, and he refunded the money on her behalf, and that no conveyance had been executed in his favour by Mrs Vanderpuye. But that is not the trend of the evidence. From the pleadings, while the plaintiff is claiming that he refunded Mrs Vanderpuye’s money to her mother, Mrs Aryee through Mrs Rose Torto in the presence of the plaintiff’s sister, Miss Nancy Ogbarmey-Tetteh, the defendant claims she refunded the money to Mrs Vanderpuye [p.384] through Mrs Torto. She never claimed she refunded the money to the plaintiff. The plaintiff repeated this in evidence and said further that he developed the plot in early 1970, and that no deed of conveyance had been executed because Mrs Vanderpuye had not returned to Ghana. Since he was not cross-examined on this issue there was in fact no need for him to proceed to call any witness, either his sister or Mrs Torto, to give evidence to buttress his position. What is more, the defendant did not even give evidence relative to this plot B until she was cross-examined on the issue. She admitted that when the plaintiff got to know that Mrs Vanderpuye was no longer interested in the land he informed her in London, and she continued to say “I refunded it”, but failed to indicate to whom the refund was made.

Now considering what she averred in her statement of defence, it can safely be surmarised that she meant she refunded the money to Mrs Vanderpuye through Mrs Torto and not to the plaintiff. If that is the case, and I think it is, how can the Court of Appeal rightly hold that “from the relationship existing between the parties the reasonable inference is that he refunded it on behalf of the defendant because she was abroad” and for that matter the plaintiff “held plot B and whatever stands on it in trust for the defendant?” If the Court of Appeal, in the exercise of its powers, feels itself obliged to reverse the findings of fact made by the trial court, it has to show quite clearly in its decision exactly where it thinks the trial court went wrong. It means therefore that if the Court of Appeal sets aside the findings of the trial court without good grounds, or upon grounds which do not support such inference with the findings made by the trial court, this court will have no other alternative than to set that decision aside.

As submitted by counsel for the plaintiff it is not the case of the defendant that the plaintiff refunded the money on her behalf to make him a constructive or resulting trustee. Therefore if the Court of Appeal found that the money was paid by the plaintiff and not the defendant, that should be the end of the matter, and the court is not entitled to invoke the doctrine of resulting trust.

Reading paragraph (6) of the statement of claim and paragraph (4) of the statement of defence and the counterclaim, it may be inferred that the defendant pleaded the doctrine of resulting trust in respect of both plot A and plot B. But this does not absolve the defendant from leading evidence to support her claim of resulting trust in respect of plot B. Since this was not done, it is my judgment that it was wrong for the Court of Appeal to found its judgment on resulting trust to defeat the claim of the plaintiff. The defendant having failed to prove that the refund by the plaintiff was [p.385] made on her behalf (she herself claims she made the refund), the Court of Appeal should not have gone further to find an avenue for the defendant through which she could escape in order to avoid the consequences of her inability to establish a resulting trust in her favour. As was held in the case of Duagbor v Akyea-Djamson [1984-86] 1 GLR 697 at 698, CA:

“What the judge[s] did amounted simply to a substitution by [them] proprio motu of a case substantially different from and inconsistent with the case put forward by the [the defendant] and the ultimate acceptance by [them] of that substituted case which was not the [the defendant’s] case at all.”

See also the dictum of Adumua-Bossman JSC in Dam v Addo [1962] 2 GLR 200 at 206, SC viz:

In both Esso petroleum Co., Ltd. v. Southport Corporation ([1953] 3 W.L.R. 773) and Oloto v. Williams [(1944) 10 W.A.C.A. 23] above referred to, it was the case of the court accepting a case contrary to and manifestly inconsistent with that which the plaintiff himself had set up, whereas in our instant case it is the case of the court accepting a defence contrary to and inconsistent with that which the defendant himself has put forward; but the principle of law involved is undoubtedly the same; and in the words of Lord Normand, amount to condemning a party on a ground of which no fair notice has been given [and that] may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”‘

It is argued that the trial judge did not have the opportunity of seeing and hearing all the witnesses in this case, and so the matter had become at large for the appellate court to confirm or reverse the decision of the trial court and substitute its own decision. I have no serious qualms about this, but in my judgment the findings and conclusion of the trial judge on this issue are amply supported by the evidence on record. I am satisfied that there was enough credible evidence before the trial High Court to support the case of the plaintiff that he owned the plot and that he put up the outhouse on it. He produced exhibits K and 1 (c), the building plan and the permit in respect of the building (all in his name) though he was unable to produce the receipt for the payment of the £70. Though the payment was not controverted, he gave the reason for his inability to produce the receipt; he said it had got missing. On the contrary, the defendant was unable to produce any documentary evidence to support her claim. She could not even produce the deed she said Mrs Vanderpuye [p.386] returned to her nor a receipt for the £70 she also said she paid, and gave no reason for not producing it. That would have somehow strengthened her case. Her evidence was, as I said earlier, completely different from what she averred in paragraph (8) of her statement of defence. The burden was squarely on the plaintiff and he discharged it to the hilt.

For the foregoing reasons, I am of the view that the part of the judgment of the Court of Appeal in favour of the defendant-cross appellant was wrong and accordingly this appeal should be allowed, the judgment of the Court of Appeal with respect to plot B set aside, and in place thereof judgment entered in favour of the plaintiff upholding his claim for plot B.

I now move on to consider the cross appeal. The defendant’s attack on that part of the judgment of the Court of Appeal in respect of plot A is based on the following:

“(a) that the judgment was given in favour of the plaintiff not on the strength of his own case, but on the ‘inconsistencies’ in the defendant’s case;

(b) that as the plaintiff was in duty bound to establish that he bought and paid for plot A, he should have called the vendor Helena Ashia Mills whose evidence was to the effect that she meant to benefit defendant though the document of title was made in favour of the plaintiff, and that the plaintiff should not be allowed to benefit from his default in calling her; and

(c) that three quarters of the summary of the trial judge was concerned with the evaluation of the defendant’s evidence, particularly that of the first defendant witness’ evidence, resulting in miscarriage of justice and misapplication of the law.”

Speaking for myself, I do not see any merit in the complaint about the plaintiff’s failure to call Helena Ashia Mills. There is no doubt from the record of appeal that the defendant intended to take advantage of calling Helena Ashia Mills as her witness for reasons best known to herself. I say this because at the early stages of the case when the parties appeared before Lamptey J (as he then was) and the plaintiff was to open his case, the defendant sought leave of the court to call the said Helena Ashia Mills out of turn as her first witness for the reason that the health of the witness was failing, and even though the proceedings before Lamptey J (as he then was) were not adopted, the defendant tendered them to enable her use her evidence in her favour. Having taken this advantage, how can she now turn round to accuse the plaintiff for failing to call the said witness, and [p.387] then go to the extent of saying that the plaintiff should not be allowed to benefit from his default in calling her. The defendant wants to take advantage of both situations.

In my judgment, the defendant having called Helena Ashia Mills out of turn as a witness before the plaintiff even opened his case; and thereby obtaining an advantage to herself, cannot afterwards allege that it was the duty of the plaintiff to call the said witness whose evidence would have been binding on him if he had called her, and that he should not benefit from his default in calling her. As Honyman J said in Smith v Baker (1873) LR 8 CP 350 at 357 and approved by Esher MR in 19 QBD 350:

“A man cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage.”

Be that as it may, in her evidence in-chief, Helena Ashia Mills did not talk about the deed of conveyance she executed in favour of the plaintiff. It was when she was cross-examined on it that she said that the conveyance was made in his name on the instruction of the defendant though the defendant paid for the plot. This she said was done because the defendant said he had promised to wed her. This document (exhibit A) was executed in August 1957, and it was to prove the untruthfulness of Helena Ashia Mills that the plaintiff subjected her to the exhaustive cross-examination which showed the inconsistencies in her story, and which the trial judge made elaborate references to, that counsel for the defendant is complaining about. It came to light that though the document was executed in 1957 the wedding of the two parties took place in 1951. When witness was asked “Do you know that the plaintiff and the defendant got married in 1951 and not in 1957”, her reply was “I do not know.” Though she said in examination in-chief that the building on plot A was completed in 1951, and that she was present at the formal opening of the building, she admitted under cross-examination that in fact the building was not completed in 1951, but said there was some sort of ceremony in the house in 1951.

The other complaint of counsel for the defendant is that “the judgment was given in favour of the plaintiff not on the strength of his own case, but on the ‘inconsistencies’ in the defendant’s case.” In her judgment the trial judge adverted briefly to the burden of proof that lay on the plaintiff when she said: “The principal claim of the plaintiff is for a declaration of title to land. The authorities clearly show that he succeeds on the strength [p.388] of his own case and not on the weakness in his opponent’s case.” She relied on the cases of Asare v Appau II [1984-86] 1 GLR 599, CA and Duagbor v Akyea-Djamson (supra) to support her contention. She quoted with approval the dictum of Abban JA (as he then was) in the latter case, and continued: “It follows that the burden of proof would not shift, neither would the degree or standard lessen simply because the defendant has also counterclaimed for title.”

The question is, did the learned trial judge give judgment in favour of the plaintiff not on the strength of his case, but on the “inconsistencies” in the defendant’s case? Counsel does not pinpoint or identify the “inconsistencies” he alleges, nor does he quote passages from the judgment of the trial judge to support his contention, but simply leaves the matter at large, expecting this court to decide whether he is right or wrong in his assertion. I must say that is unfortunate. This court requires some sort of assistance from counsel under such circumstances.

However, I have read the judgment of the trial judge over and over again to see whether there is any merit in counsel’s argument, but the more I read the judgment the more I become convinced that his argument is rather unmeritorious. I find that what the trial judge did was to evaluate the evidence of the plaintiff (including the documentary evidence) and that of the defendant to ascertain which of the two divergent claims was more credible. This the court did so exhaustively that if I venture to evaluate the evidence and make my own findings and conclusion I shall be compelled to repeat almost all that the court had said. After exhaustively evaluating the evidence the court concluded by saying: “The evidence of ownership is so overwhelming in favour of the plaintiff, and I would not make any findings to the contrary.” There is nothing in the judgment that showed the slightest suspicion that the trial judge deviated from the principle of law she so ably enunciated at the beginning of her judgment.

Because of the divergent views expressed by some justices of this court I think the justice of the case demands that I should say a word or two about the evidence in relation to plot A. At the trial court the plaintiff said that while he was at Tamale on transfer he had information of sale of plots in Accra by Emma Mills and Helena Mills. He therefore remitted £30 to the defendant to pay the deposit for two plots for him, and he completed payment for the plots, amounting to £128 by the end of 1957 through one Mr Mills who was then caretaker of the plots for the vendors. He said a deed of conveyance was executed in his name by the vendors, and he started developing the land in early 1958. He applied for a building permit and this was also issued in his name. He completed the building at the end of 1963 with credit facilities from Messrs A G Leventis [p.389] and a loan of £1,500 from the Ghana Commercial Bank, together with the proceeds of some of his personal effects he sold. He said:

“In August 1977 when I was leaving Ghana for USA, I foresaw that there would be a problem with the payment of the loans. The fear arose from the lack of co-operation from the defendant for failing to pay moneys into my bank account. I therefore raised money from private sources and repaid in full the outstanding balances owing to the bank. The document on the house was released to me. I paid this money in 1977.”

With this evidence on record, the trial judge in her judgment said: “In my view the evidence led on the purchase of the property raised a strong prima facie case that the plaintiff is the owner of the property in question.”

Having said that, she proceeded to examine the evidence of the defence whether any portion of the evidence of the plaintiff could be misplaced. In her evidence the defendant said that she bought the land in dispute, plot A, in 1949 from Ashia Mills, and that the deed of conveyance was executed for her in her former married name, Mrs Ankrah, and she then had a building plan made for her by one Lamptey of the town engineer’s office. She said she used the proceeds of her car she sold for £400 together with moneys from her own resources to put up the building on the disputed land. Under cross-examination this is what she said:

“Q You purchased a plot near the house the subject matter of this suit?

A Yes the family dashed me this plot.

Q How many of these plots were in your name?

A I sold this plot which was dashed me to Mrs Vanderpuye. I built my house on the other two plots.

Q In whose name were these documents made?

A The documents were originally in my maiden name.

Q Then subsequently what happened?

A He tricked me and forced me and changed the documents into his name.

Q So you made another document transferring the documents to him?

A Yes, a year later I had to go with him to one Lamptey to alter the documents into his name.

Q When was the original title deed prepared?

A I cannot remember.”

[p.390]

(The emphasis is mine.)

Still under cross-examination she said she was in court when Helena gave evidence that she, the defendant, caused the plaintiff’s name to be put on the deed of conveyance because he had promised to marry her. While confirming this allegation, she also said the plaintiff changed her name on the document to his at the Town Planning Office with her authority, and that this was done in 1956.

As I have said earlier in this judgment, Helena Ashia Mills said in her evidence that she and her sister sold two plots to the defendant for £128 in 1949 and that it took the defendant up to 1951 to finish paying for the plots, and after payment she executed a conveyance in her favour. It was in cross-examination that she said the defendant asked her to put the plaintiff’s name in the deed because he had promised to marry her. On the face of this evidence one might say it is credible, but when it is recollected that the defendant said she completed the building, on the disputed plot of land in 1951, one has to question the veracity of the witness’ evidence. Even so, the fallacy of her evidence is more pronounced and exposed when faced with the uncontroverted evidence that the plaintiff and the defendant wedded in 1951.

When Lamptey was called to give evidence for the defence (as the first defendant witness) he said in 1954 he prepared a building plan for two-storey building for the defendant and she started putting up her building with the aid of the plan. Then in 1956 the defendant asked him to change the name on the plan, ie her name, to that of the plaintiff because she was afraid that in case there happened to be a trade malpractice the building might be sold, and the change was effected accordingly. He said that about the same time he saw a building permit which accompanied the plan and that on that permit a change from Dinah Ogbarmey-Tetteh to Seth Ogbarmey-Tetteh had been made on it. When under cross-examination he was shown the plan and it was clear there was no amendment of the title, he still insisted he made the amendment, but admitted, however, that the only amendment on the plan related to a conversion of a single to a double-storey. He admitted further that he personally did not prepare the plan, but that he instructed a draughtsman to do it. When exhibit P, the building permit, was shown to him he admitted that it bore the plaintiff’s name, and that it was issued in 1958 and not 1954 or 1956 as he said in examination in-chief. It is clear that this witness cannot be a witness of truth.

This is what the trial judge said about the witness:

“It is on the strength of the answers he himself gave that I wondered [p.391] how in the circumstances the defendant was unable to produce the old permit, her original drawings or any other documentary proof of the facts testified to. On the contrary further answers he gave to questions put to him would support the plaintiffs version that the plans were made in his name in his own right and the amendment made to actual drawings but not the title: see exhibit 1. Although this witness has sworn that it was only an amendment to title that was sought, under cross-examination he admitted he prepared exhibit 1 for the plaintiff. It does not deal with any such amendment to title but an amendment to the actual drawing, the conversion of the single storey to a two-storey building.”

With respect to the actual construction of the building the trial judge examined the evidence of the parties and their witnesses who testified they did work on the building. I do not think it is necessary that I do the same here. In my view, it would be sufficient if I signalled my concurrence with the views of the trial judge on the witnesses. She said:

“Certainly of the two parties, I have found the plaintiff more reliable than the defendant, which also means since the land was purchased by the plaintiff who caused the drawings to be made for him in his own name and he had resources to build, then surely the defendant [I think it was a slip, she meant the plaintiff] was the person to have procured workmen for the project.”

For the reasons I have given, it is my judgment that the decisions of the trial judge and the Court of Appeal in favour of the plaintiff in respect of plot A were correct, and accordingly this appeal by the defendant must be dismissed, and is hereby dismissed.

As to damages since the defendant does not wish to press his ground dealing with damages, the decision of the Court of Appeal on this is affirmed.

JUDGMENT OF EDWARD WIREDU JSC.

The parties to this suit are husband and wife. They had been married for a period of over 25 years and sometime in the early 1950’s, their original customary marriage was converted to one under the Marriage Ordinance, Cap 127 (1951 Rev). The title of the case therefore should not deceive anyone into thinking that it is a matrimonial cause. It is in fact a land case involving title to two plots of land conveniently described in this proceedings as plots A and B. These plots have at the commencement of the action been developed with buildings on them.

[p.392]

The plaintiff by his writ of summons issued out of the High Court, Accra on 19 June 1974 claims title to these two plots of land along with four other reliefs against the defendant. The writ was accompanied with a 21-paragraphed statement of claim. The defendant for her part, put up an adverse claim of title to the same property and for her part counterclaimed for title and also asked for a perpetual injunction restraining the plaintiff from interfering with her exclusive possession and ownership of the property.

At the close of the pleadings, the following issues were settled and agreed to as issues for trial:

“(i) Whether the plot referred to in the plaintiff’s statement of claim as plot A was purchased and paid for by the plaintiff and was conveyed to him in his own right; or whether it was paid for by the defendant and is thus held by the plaintiff, prima facie, as a trustee for the defendant.

(ii) Whether the two-storey dwelling house erected on the said plot and numbered A 299A/4, Laterbiorkorshie, Accra was financed by the plaintiff or by the defendant.

(iii) Whether the refund of the price of the plot of land referred to as plot B in the plaintiff’s statement of claim was made by the plaintiff or the defendant to the vendor, Mrs Adina A Vanderpuye.

(iv) Whether or not the plaintiff developed the said smaller plot (plot B) for his sole benefit or in pursuance of any ‘family arrangement.’

(v) Whether or not the plaintiff is entitled to the claims indorsed on his writ herein.

(vii) Any other triable issue or issues arising out of the pleadings.”

The unusual thing about the trial of this case is that three trial judges were involved in its hearing. The trial first commenced before Lamptey J (as he then was) on 18 February 1976. He heard evidence of the first defendant witness who on grounds of ill-health was permitted to testify before the plaintiff and his witnesses. This witness was the only surviving co-owner of plot A. On 18 February 1976 the evidence of the plaintiff and his first witness commenced before Lamptey J (as he then was). The record shows that the matter came before Okai J on 26 February 1983, who took over the case and commenced hearing evidence of the other witnesses for the plaintiff. On 19 June 1986 the case came before Lutterodt J (as she then was). The earlier proceedings before Lamptey J [p.393] (as he then was) and Okai J were by consent adopted for continuation of the trial. Lutterodt J (as she then was) had to continue from then on with the case for the defence. She heard the case up to a conclusion and delivered judgment on 2 April 1990, almost about sixteen years from the commencement of the action. The judgment was in favour of the plaintiff for the reliefs sought on his writ. Dissatisfied with the decision, the defendant appealed to the Court of Appeal. On 18 July 1991 the Court of Appeal delivered its judgment which affirmed the judgment of the High Court in favour of the plaintiff in respect of title to plot A. The court however allowed the appeal by the defendant in respect of plot B on her counterclaim. The court also awarded a reduced damages of ¢10,000 for trespass against the defendant in respect of plot A.

On 17 October 1991 the plaintiff appealed to this court against the decision of the Court of Appeal. Seven days thereafter, ie on 24 October 1991, the defendant also filed a cross appeal against the judgment of the Court of Appeal. Her grounds were:

“(i) The plaintiff failed to discharge the burden of proof in support of his claim.

(ii) That their lordships erred in law and in fact by relying on the weakness of the defendant’s case rather than on the strength of the plaintiff’s case at arriving at their decision.”

She asked that the decision of the High Court as affirmed by the Court of Appeal that the plaintiff is the owner of plot A be reversed and a declaration made in her favour.

Before this court, two objections were raised against the propriety of the cross appeal filed by the defendant. The plaintiff’s first complaint was that the defendant’s cross appeal was out of time. On the objections, I have had the advantage of reading beforehand the opinion of my brother Amua-Sekyi JSC and I indorse his stand on the objections. For my part, I think the commonsense approach to the objection amply support his disapproval of the objections. For a cross appeal to be filed, notice of an appeal filed should be given to the party filing the cross appeal. I need no authority to be convinced of the correctness of his reasons. Our rules of court do not support any of the objections raised and I will only add that the plaintiff’s objections raised have not been substantiated. No time limit within which to file a cross appeal is provided for in our practice rules. The test therefore is whether the cross appeal has been filed within a reasonable time after the notice of appeal was “served.” The objection is not supported by any provision in our rules of practice and the objections, in my view, fail for the above reasons.

[p.394]

On the merits of the case, I will first deal with plot B. I have had no hesitation in indorsing the conclusion of the Court of Appeal in favour of the defendant. The undisputed evidence shows that the legal title to it is still in the defendant. The evidence brought by the plaintiff to support his claim is unacceptable to prove title. The undisputed evidence shows that the plot was bought and paid for by the defendant. She later agreed and sold it to one Mrs Vanderpuye. The latter because of some difficulty she encountered in causing her title to the land to be registered decided to abrogate the agreement and to ask for a refund of her money through her mother. At that time, the defendant was in London so the obvious person Mrs Vanderpuye’s mother had to approach was the plaintiff who on his own admission agreed and refunded the purchase money of £70 to the mother of Mrs Vanderpuye. The ordinary and obvious intention of Mrs Vanderpuye and the surrounding circumstances show an intention on her part to restore the status quo. The plaintiff paid no consideration for claiming to have acquired any interest in the land. He did nothing more beyond refunding the actual purchase money. The evidence shows that he acquired no interest at all in the land. No receipt was produced to evidence a new transaction between him and Mrs Vanderpuye. He cannot justify his claim to plot B under any law recognised by our courts either customary or otherwise. He cannot come under the Conveyancing Decree, 1975 (NRCD 175) which requires a deed of conveyance. He cannot come under the customary law which requires wide publicity in the form of witnesses. He called no witness to support his claims. He failed to make out his case and the High Court in my respective view was wrong in decreeing title in his favour.

On plot A, by paragraph (1) of his statement of claim, the plaintiff pleaded as follows:

“In December 1955, whilst on transfer to Tamale, the plaintiff learnt through his then mother-in-law Madam Sophia Tackie, that plots of land were being sold at Laterbiorkorshie at £64 per plot and having indicated his intention of purchasing two of the said plots, paid an initial deposit to Emma Mills and Helena Mills through his said mother-in-law.”

In support of the above, he testified as follows:

“In early 1955 I was transferred to Tamale. I was accompanied by my wife, the defendant. In early 1956 whilst at Tamale, the defendant came down to Accra. She wrote to me from Accra. I remitted an amount of £30 to her to secure two plots. When I came [p.395] down to Accra in late 1956, I saw the vendors. By the end of 1957 I had paid to them through their agent, the late Mr Mills, a total sum of £128 for the two plots. I shall tender my document later. The vendors were Emma Mills and Helena Mills of Accra. A deed was executed and a receipt was issued. I started developing the plot early 1958.”

His evidence above is in clear conflict with his pleadings. The law as I understand it is that a party is bound by his pleadings and the acceptance in favour of a party of a case which is inconsistent with what he had put in and by his evidence is wrong and unjustified in law: see R T Briscoe (Ghana) Ltd v Preko [1964] GLR 322, SC.

There was no amendment to the pleadings. The plaintiff could also not have justifiably been held to have proved his case on his failure to call evidence by his grantor. This will mean that he was unable to prove the root of his title. In an action for a declaration of title, a plaintiff who fails to establish the root of his title must fail because such default is fatal to his case. In the instant case, the defendant called the only surviving co-owner of the disputed land. The evidence of this witness was crucial as to who in fact purchased the plot. Her evidence was clear that the land was negotiated and paid for by the defendant. No independent counter evidence was provided by the plaintiff. In effect, her evidence could not be tested with any rival evidence than the self-serving evidence of the plaintiff himself which even as was tendered, contradicted his own pleadings.

Lutterodt J (as she then was) who did not have the advantage of seeing and observing, this witness rejected her evidence on the basis that the witness was a relation of the defendant and that the reason she gave to support the claim by the defendant that she directed her to put the plaintiff’s name in the deed of conveyance could not be true. The reasons, in my respectful view, led to a faulty evaluation of the evidence. The defendant and the plaintiff are somehow also related though distantly, so also is the relationship between the witness and the defendant. No reason was ever suggested why she should come and tell a lie in favour of the defendant. She had nothing to gain by telling such a lie to perjure herself. She had no inheritable interest in the defendant’s property. The learned trial judge, Lutterodt J (as she then was), in my view, not having had the advantage of seeing and observing the witnesses in the box did not enjoy the privilege of the discretion which protects a trial judge in her findings of primary facts. In fact, she is in no better position than any of the appellate judges in determining the credibility or otherwise of the [p.396] evidence of the only surviving eye-witness in her account of what in fact actually took place resulting in the execution of exhibit A on which the plaintiff was relying.

The law on this is clear that where the evidence of a witness is material to determine an issue or where such evidence is vital to settling the issue one way or the other, then the evidence of such a person should or ought to be accepted unless it is apparent on the face of the record that it is not true: see Atadi v Ladzekpo [1981] GLR 218, CA and Nkaeguo v Kunadu [1974] 2 GLR 150. Nothing appears apparent on the face of the record to me which can justify the rejection of the vendor’s evidence. The Court of Appeal glossed over this very vital point of proof and the privilege enjoyed by trial judges with regard to issues involving the resolution of primary findings of facts. The plaintiff failed on the facts of this case to show that he bought and paid for plot A.

The rest of the evidence provided by the plaintiff was ineffective to advance his case to justify any judgment in his favour. The defendant on the other hand provided evidence as to the acquisition, supported by her vendor. She brought evidence to show how she came by the plan of the building, she brought evidence of masons engaged on the job, electricians, plumbers etc. She brought evidence to show her involvement in a police case in respect of a complaint pertaining to title to the land. She brought evidence to show her ability to put up the construction of the building financially by tendering evidence of her trading activities. In fact, she was described as a hard working woman, “a jack of all trades.” She testified as to how she made preparation for the opening of the house and laid her dead mother in state in the house. There was evidence which was not seriously challenged, that she acquired two houses at Kaneshie through the State Housing Corporation where she once worked. One of these two houses was taken in the name of the plaintiff. She also bought a car in the name of the plaintiff for their joint use. The plaintiff on the other hand by his own evidence showed that he could not have put up the building without some financial help from elsewhere. He claimed to have obtained a loan from Ghana Commercial Bank to complete the house. The evidence however shows that this same loan was secured with the disputed property. I am yet to be convinced that banks take as security for granting loans, uncompleted buildings. The evidence of the defendant cuts across this: that even at the time the loan was taken, the construction of the building had been completed. Her side of the story in respect of this loan is more consistent with the normal practice of banks taking completed buildings as security for loans granted. On the balance of probability, the defendant’s case is overwhelmingly more credible than the plaintiff’s and [p.397] ought to have been preferred to that of the plaintiff.

In my judgment, therefore, the plaintiff in whose name the legal title to the disputed property stands, holds same in trust for the defendant who has established by the evidence brought by her and on her behalf that she is the real beneficial owner of plot A and is entitled to request the plaintiff to convey legal title to her: see the case of Harrison v Gray, Jnr [1979] GLR 330. The defendant therefore succeeds on her cross appeal as regards title to plot A.

JUDGMENT OF JOYCE BAMFORD-ADDO JSC.

This is an appeal by the plaintiff-respondent (hereinafter called the plaintiff) against part of the judgment of the Court of Appeal. The defendant-appellant (hereinafter referred to as the defendant) also filed a cross appeal against part of the same judgment.

The brief facts of this case are that the plaintiff met the defendant in 1946 while he was a student at Accra Academy and she was a successful trader. In furtherance of his education, she provided financial support for him, and after his education also assisted him in finding various jobs. In 1951 he wedded her under the Marriage Ordinance, Cap 127 (1951 Rev) and they cohabited in Accra until their transfer to Tamale in about 1953. They returned to Accra in 1956.

According to the plaintiff while in Tamale his wife informed him about land being sold by the Mills sisters, owners of a large tract of land in Accra. He said his wife’s mother, deceased, arranged two plots for him to buy and he paid an initial amount of £30 through her and the rest by instalments to one Mr Mills, also deceased, till 1956 when he finished paying the total sum of £128. He did not produce any receipts from either Mr Mills or the vendors. He said in 1957 a deed of assignment was prepared and executed by him and the Mills sisters, Helena Ashia Mills and Emma Mills, vendors of the land. He claimed this land (hereinafter referred to as plot A) as his property by purchase and tendered the deed, exhibit A, in support of his claim. He called no witnesses, his mother-in-law was dead, then, and so was Mr Mills, however one of the ladies who he claimed sold the land to him was alive, ie Helena Ashia Mills, but she was not called by him, instead the defendant called her as the first defendant witness. I shall refer later in detail to the evidence of this lady, the first defendant witness, which I consider important to this case.

In respect of another plot of land adjoining plot A (hereinafter referred to as plot B), the plaintiff said that originally his wife was the owner of this land having obtained it from the Mills sisters and on which she held the proper documents. He said that she sold plot B to one Mrs Adina [p.398] Vanderpuye for £70 but in 1961 while she was away in the UK Mrs Vanderpuye’s mother approached him and told him that her daughter wanted a refund of the £70 from the defendant since she was no longer interested in the plot. According to the plaintiff, he “refunded” the said sum to Mrs Vanderpuye’s mother and later he reported this to the defendant who congratulated him for doing so. There is no evidence that there was any sale of plot B to him by Mrs Vanderpuye, and even though he had no documents on this land he claims that he became the owner of plot B when he refunded the £70 on behalf of his wife.

The plaintiff said further that he used his own money and a loan from the Ghana Commercial Bank in 1963 to put up the building on plot A. The evidence however was that in 1963 the said building had been completed and a certificate of habitation had been issued. He also claim that he used his money and a further loan from the Ghana Commercial Bank to put up an outhouse on plot B in 1970 and he tendered in evidence building permits in his name in support of his case.

He called two witnesses, the first plaintiff witness who said that in 1960 he connected a pipe from the mains to plot A and the second plaintiff witness who said he did the electrical work on plot B in 1970. This was the case for the plaintiff, and all the evidence he produced in support of his claim of ownership to both plots and the buildings thereon.

The defendant counterclaimed for both plots and gave evidence that she bought plot A from Helena Ashia Mills and her deceased sister in 1949 and paid by instalments for it until she completed payment of the purchase price, and in 1957 she requested that the documents be changed into the name of the plaintiff. That she also got the building plans changed into his name and in 1958 she started putting up the building on plot A even before the permit was issued. She claimed she had the means to build the house, being a successful trader well before 1946, and that she used her savings and proceeds from a sale of a car she bought in the name of the plaintiff in 1955. She also called witnesses who were present at the cutting of the sod at the start of construction works.

She called six witnesses in support of her claims, including the first defendant witness, Helena Ashia Mills, her vendor. The first defendant witness said in her evidence that she sold some land including plot A to the defendant who paid the purchase money to her personally in instalments. That in 1957 the defendant came to her accompanied by the plaintiff and requested her to change the documents on plot A into the name of the plaintiff because the latter had promised to wed her and had in fact wedded her. The first defendant witness did not specify dates of either the promise to marry or the date of the marriage, in fact she said she [p.399] did not know these dates, she did not also say that the promise to marry was made in 1957. This is what she said in cross-examination:

“Q When did you give the first document to the defendant?

A I made the first document in the name of the plaintiff because he came with the defendant and the defendant said I should use the plaintiff’s name in the document. This was in 1957.

Q Did you say the defendant made the final payment to you in 1951?

A The defendant started paying for it in 1949 and completed paying in 1951.

Q Look at exhibit A. This is the document you executed in favour of the plaintiff?

A That is correct. I did it on the instruction of the defendant because the plaintiff had promised to marry and wed the defendant.

Q By exhibit A you granted the land in dispute to the plaintiff?

A That is not correct. The defendant was present and it was because the defendant wished it done that way because the plaintiff had promised to wed the defendant.

Q Your story is not true.

A I have told the truth. The plaintiff did wed the defendant as promised.

Q Do you know that the plaintiff and defendant got married in 1951 and not 1957?

A I do not know.”

A reasonable interpretation of this evidence is that the defendant bought and paid for the plot from the first defendant witness, the vendor as between 1945 and 1951. The defendant in 1957 requested the vendor to prepare the document in the plaintiff’s name because according to the defendant, the plaintiff at a time earlier than 1957 promised to wed and did in fact do so. She stated positively that it was to the defendant that she sold plot A and it was the defendant who paid the purchase price. The first defendant witness’ evidence is relevant and so important in resolving the dispute as to ownership of the plot and in my opinion is the best available evidence.

The defendant called witnesses to prove how she built the house on plot A. These witnesses included the one who prepared the plans in the name of the plaintiff on the instruction of the defendant, the plumber and the electrician who worked on the building. and witnesses who attended the house warming party organised by the defendant after the completion [p.400] of the house in 1963. She stated that she financed the construction with her own savings and proceeds of the sale of her car purchased in the name of the plaintiff. In her cross-examination it came out that not only had she once purchased a car in her husband’s name but she had also in 1962 purchased an estate house No 1371 in his name. These facts were not denied by the plaintiff.

In respect of plot B the defendant stated that she acquired the plot from the Mills sisters, that she sold it to Mrs Vanderpuye for £70 but in 1961 when she was out of Ghana, the plaintiff on her behalf refunded the £70 to the mother of Mrs Vanderpuye, who was no longer interested in the plot. That the plot reverted to her and denied the plaintiff’s claim as to ownership.

Upon these facts the plaintiff sued for a declaration of title to plot A and plot B and the building thereon as well as other reliefs, and the defendant counterclaimed for title to both plots. The issues to be tried on the summons for directions were:

“(i) Whether the plot referred to in the plaintiff’s statement of claim as plot A was purchased and paid for by the plaintiff and was conveyed to him in his own right or whether it was paid for by the defendant and is thus held by him prima facie as a trustee for the defendant.

(ii) Whether the two-storey dwelling house erected on the said plot and numbered A 299A/4 Laterbiorkorshie, Accra was financed by the plaintiff or the defendant.

(iii) Whether the refund of the price of the plot of land referred to as plot B in the plaintiff’s statement of claim was made by the plaintiff or the defendant to the vendor Mrs Adina A Vanderpuye.

(iv) Whether or not the plaintiff developed the smaller plot (plot B) for his sole benefit or in pursuance of any family arrangement.

(v) Whether or not the plaintiff is entitled to the claim indorsed on his writ herein.

(vi) Whether or not the defendant is entitled to the claims specified in her counterclaim herein.

(vii) Any other triable issue or issues arising out of the pleadings.”

The trial of the case started before Okai J at the High Court up to the close of the plaintiff’s case and then it was transferred to Lutterodt J (as she then was). Both parties agreed that the proceedings so far, be adopted and the hearing continued before Lutterodt J (as she then was). After [p.401] considering and evaluating the evidence she gave judgment for the plaintiff and declared him owner of both plots A and B and granted other reliefs. The defendant appealed to the Court of Appeal and that court affirmed the decision of the trial court in respect of plot A, but gave judgment for the defendant in respect of plot B, declaring her the owner thereof. Whereupon the plaintiff appealed in respect of the decision on plot B and the defendant also cross appealed in respect of plot A to this court.

The plaintiff’s main ground of appeal is that the Court of Appeal erred in the decision in respect of plot B when there was no evidence to support such findings. Other grounds regarding the issue of trespass were filed but I would not deal with them as I think my conclusion on the main ground would resolve these other matters.

The defendant also cross appealed against the decision in respect of plot A which affirmed the High Court’s decision declaring the plaintiff owner of that plot. Her grounds of appeal are:

“(i) That the plaintiff failed to discharge the burden of proof in support of his claim.

(ii) That their lordships erred in law and in fact by relying on the weakness of the defendant’s case rather than the strength of the plaintiff’s case at arriving at their decision.”

She sought a declaration that the decision of the trial judge as affirmed by the Court of Appeal, that the plaintiff is the owner of plot A, be reversed for a declaration that the defendant rather is the owner.

The plaintiff in his statement of case argued two preliminary issues, namely that:

“(a) The defendant having lost twice, cannot cross appeal as of right in respect of plot A except with leave of the Court of Appeal or the Supreme Court under PNDCL 191.

(b) The defendant’s cross appeal is out of time as it was filed without having obtained extension of time, hence the cross appeal was incompetent and not properly before this court.”

The plaintiff’s argument that the defendant lost twice in this case cannot be right. The defendant lost in the High Court but her appeal was allowed in respect of plot B and consequently the plaintiff also became a loser in the appeal albeit of part of the judgment. In these circumstances she cannot be said to have lost twice in a row and it is my view that the Courts Amendment Law, 1987 (PNDCL 191) is not applicable to her case.

The second objection is that the defendant’s cross appeal was filed out [p.402] of time, implying that rule 8 of the Supreme Court Rules, 1970 (CI 13) specifying time limits for filing of appeals applies also to cross appeals. This argument is without merit. Rule 9 of CI 13 states that:

“9. (1) A respondent may give notice by way of cross appeal.

(2) The provisions of rule 6 of these Rules shall, mutatis mutandis, apply to a notice of a cross appeal.”

A party becomes a respondent in an appeal when the appellant files his appeal and when such a party is directly affected by the appeal. Until then he cannot be referred to as the respondent. Rule 9 of CI 13 gives the right to the respondent to file a cross appeal if so desired and states in subrule (2) that rule 6 would then apply to the filing of the cross appeal. Rule 8 of CI 13 which deals with time limits for filing cross appeals was not applicable, and since no time limit was provided for filing cross appeals, it is clearly reasonable to say that a cross appeal can be filed at any time after the filing of an appeal. The plaintiff’s contention that the defendant’s cross appeal is incompetent as having been filed out of time is therefore misconceived, and in my view, her appeal is properly before us.

I will now proceed to deal with the plaintiff’s appeal regarding plot B. It is trite law that a person who claims land must discharge the burden of proving his title and the standard of proof is on a preponderance of credible evidence. What then was the evidence on record establishing plaintiff’s title? The plaintiff said in refunding the amount of £70 on behalf of his absent wife, he became the owner of plot B. He had no title deeds and was not able to establish that Mrs Vanderpuye agreed to sell and did sell plot B to him. In his own words he merely refunded the £70 on behalf of his wife. This does not in law make him the owner of the land by purchase. Apart from his own arid evidence, he produced a building plan in his name and said he built an outhouse on the plot. The defendant denies the plaintiff’s claim of ownership and said that after the refund of the money the land reverted to her and the title deeds made between herself and Mrs Vanderpuye were returned to her. The Court of Appeal found thus:

“If Mrs Vanderpuye intended to sell the land to him she would have executed a deed in his favour, but in this case she did not, and from the relationship existing between the parties the reasonable inference is that he refunded it on behalf of the defendant because she was abroad. The plaintiff therefore held plot B and whatever stands on it in trust for the defendant.”

[p.403]

I entirely indorse this finding except for the last line. On the evidence, title to plot B never shifted to the plaintiff and since the defendant at all times remained the beneficial owner of it, the plaintiff cannot be said to have held plot B in trust for the defendant.

It was wrong for the Court of Appeal to add to their finding that the plaintiff held plot B and the building thereon in trust for the defendant. A question of trust did not arise, the £70 was rather an advancement by husband to wife. To the extent I have indicated, the Court of Appeal was right in the declaration that plot B and the building thereon belonged to the defendant. The plaintiff’s appeal against this finding therefore fails.

I will now consider the defendant’s cross appeal regarding plot A. Her grounds are that:

“(1) The plaintiff failed to discharge the burden of proof in support of his claim.

(2) Their lordships erred in law and in fact by relying on the weakness of the defendant’s case rather than on the plaintiff’s case, at arriving at their decision.”

I would like to state straightaway that I am convinced that these grounds are justified having regard to the evidence on record. It is settled law that when the burden of proof is cast upon a plaintiff he must prove his case and win on the strength of the case presented and not on the weakness of the defendant’s case, as established by Kodilinye v Odu (1935) 2 WACA 336. In the case of Asare v Appau II [1984-86] 1 GLR 599, CA, it was held as stated in the headnote that:

“. . . the common run of land suits in the courts had, as the plaintiff, a person who claimed title to land, suing as the defendant, a person in possession of the land. Such a defendant needed not, and usually did not, seek any relief in the proceedings, being content with things as they were. In that event, the plaintiff must rely on the strength of his own case, ie prove his title and not rely on the weakness of his opponent’s, ie lack of title in the defendant, so that if the plaintiff failed to prove that he was entitled to have a declaration made of his title to the land, the action ought to be dismissed, leaving the defendant in possession of the land.”

In another case of Duagbor v Akyea-Djamson [1984-86] 1 GLR 697 at 702, CA Abban JA (as he then was) stated this principle quite succinctly thus:

[p.404]

“The plaintiff having sought a declaration of title to the land in dispute, could only succeed upon the strengh of his case and not on the weakness of the co-defendant’s case. It is true that the co-defendant also counterclaimed for a declaration of title but that is beside the point. For the co-defendant’s counterclaim could not in any way lighten the weight of the burden on the plaintiff to establish his title to the land by preponderance of admissible evidence. The defence having denied the plaintiff’s title and then counterclaimed for title, a burden was placed on the plaintiff to prove his title and satisfactorily or else he must fail: see Nkyi XI v Kumah [1959] GLR 281, CA . . .”

It was similarly held in Banga v Djanie [1989-90] 1 GLR 510, CA as stated in the headnote that:

“. . . the plaintiff in a claim for declaration of title to land should win on the strength of her own case which must not be propped up by weaknesses in the case of the defence. Since the plaintiff led no evidence of root of title, possession and user, she could not rely on acts which at best could only constitute the weaknesses of the defence. Kodilinye v Odu ( 1935) 2 WACA 336 applied.

Per Francois JSC. The principle [that the plaintiff should win on the strength of his case] has for several decades been the fulcrum for determination of ownership in land matters in our courts. In recent times a dangerous trend has been erupting of equating this burden with the normal burden in civil cases of measuring success by a balance of probabilities. In my view the requirement of a higher burden of proof in land matters cannot be whittled away by glosses on the principle. This quality of proof has sometimes even been equated with proof in criminal matters, ie ‘proof beyond reasonable doubt.’ . . . Suffice it to emphasise that a high measure of proof is necessary to sustain victory in a plaintiff seeking a declaration of title to land. It seems to me that the authorities require a plaintiff to lead positive evidence to merit victory, and not merely to rely on the shortcomings of a defendant in the discharge of this obligation . . .”

I entirely agree with the learned judge in the above dictum. In this case the issues to be tried according to the summons for directions are briefly, who purchased plot A and paid for it, and whether plot A was [p.405] conveyed to the plaintiff in his own right or whether it was paid for by the defendant and is thus held by the plaintiff as a trustee for the defendant.

The plaintiff did not call the first defendant witness yet he claimed he bought plot A from her, therefore her evidence is relevant and important to the success of his case. The first defendant witness however denied selling the land to the plaintiff but said she sold it to the defendant rather, and that the document on the plot was only prepared in the name of the plaintiff on the instruction of the defendant. The first defendant witness was cross-examined at length, no doubt in an attempt to discredit her, but in my opinion, her evidence on this issue was not shaken.

It appears to me that her vital evidence at once destroyed the plaintiff’s case. But quite surprisingly the trial judge who did not herself see or hear the first defendant witness but relied on the record of her evidence, discredited her as a witness of truth and disbelieved her, giving judgment for the plaintiff. If a vendor of land to a plaintiff is not believed it is difficult to appreciate how he can be said to have proved his title. The main reason given by the trial judge for disbelieving the first defendant witness is that since the plaintiff wedded the defendant under the Marriage Ordinance, Cap 127 (1951 Rev) in 1951 it was “a pure invention” for the first defendant witness to say that she was asked to prepare the document, exhibit A, in 1957 because according to the defendant the plaintiff “promised to wed and did wed her.” In 1951 the plaintiff had already wedded the defendant, and the first defendant witness did not say that the promise to wed was made in 1957 therefore the finding of the trial judge that “the parties were wedded under the Ordinance as far back as 1951. Therefore how could the plaintiff in the presence of the defendant have used this promise of wedding to enable him have things his way?” was not warranted by the evidence and was an unreasonable inference from the facts.

Normally a finding of fact by a trial court will not be disturbed on appeal except in certain circumstances. In Nkansah v Adjebeng [1961] GLR 465 it was held as stated in the headnote:

“ . . . an appellate court is not entitled to set aside findings of fact made by a trial court unless it could show from evidence on the record that the findings are not warranted or are not reasonable inferences from the facts established by the evidence.”

Also in Nkrumah v Ataa [1972] 2 GLR 13 it was held as stated in the headnote in holding (5), that:

“An appellate court is not entitled to reverse findings of fact [p.406] made by a trial court unless those findings are not supported by the evidence. Similarly where the evaluation of the evidence depends upon the credibility of witnesses, it is normally the trial court which saw and heard the witnesses which should decide which of them to believe. It is only where it is shown that the trial court in assessing the credibility of a witness, omitted to consider the evidence which discredits him that the appellate court will be bound to interfere.”

In this case the trial court did not see the first defendant witness and we are in the same position as that court to consider her credibility from the evidence on record to see if the trial judge’s findings were erroneous. In any case, the main issue for determination was whether the plaintiff purchased the land or whether it was the defendant who paid the purchase price and asked that the plaintiff’s name be used in preparing the document, exhibit A. In other words, was the plaintiff merely holding it in trust for the defendant?

The reason why the plaintiff’s name was used in the document is not a material issue for determination nor can it be misinterpreted the way it was done by the trial judge to discredit the first defendant witness. Her evidence clearly showed that the defendant was the beneficial owner of plot A and that the plaintiff held the land in trust for his wife.

In the case of Mansah v Asamoah [1975] 1 GLR 225, CA it was held in holding (3) of the headnote that:

“ . . . Consequently an appellate court was not inhibited from disturbing the concurrent findings of the two lower courts and adjudicating the issues according to the evidence. The learned High Court judge and the district magistrate drew wrong legal inferences from facts which were either admitted or not in controversy. The appellate court was therefore in as good a position as the trial court to evaluate the evidence and form its own independent opinion while at the same time giving weight to the opinion of the inferior courts.”

It is my view that the trial judge as well as the Court of Appeal erred in rejecting the evidence of the first defendant witness as not credible. I find that the first defendant witness is a witness of truth. Consequently, it is my opinion that the plaintiff failed to establish his claim of ownership of plot A by purchase from the first defendant witness, Helena Ashia Mills.

As to the issue of who built the house on plot A, the defendant [p.407] produced overwhelming evidence that she financed the project and procured builders, etc to build same. The trial judge’s finding:

“that it was the plaintiff who financed the building of the house because he was gainfully employed, but that the defendant was even though she was a successful trader had exaggerated the extent of her wealth and had failed to prove her bank balance”

is a wrong and erroneous finding in law and against the weight of the evidence on the record.

The defendant claimed she financed the project from her savings and the proceeds of the sale of her car, whereas the plaintiff said he financed the project from his own resources and a loan from the Ghana Commercial Bank which loan was shown to have been obtained in 1963 after the actual completion of the house.

On the issue of who financed the building on plot A, the plaintiff failed to discharge the burden of proof in support of his claim, instead on the preponderance of evidence it was the defendant who financed and actually built the house. Furthermore, no burden lay on her to prove her bank balance. The plaintiff is expected to win on the strength of his case not on the weakness of the defendant’s case. On the evidence, it is my opinion that the plaintiff held plot A in trust for the defendant.

The principle of law as stated by Eyre CB in the case of Dyer v Dyer (1788) Cox Eq Cas 292 at 93, reported in [1775-1802] All ER Rep 205 at 206 is that:

“The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether freehold, copyhold, or leasehold, whether taken in the names of the purchasers and others jointly, or in the name of others without that of the purchaser, whether in one name or several, and whether jointly or successively, results to the man who advances the purchase-money.”

Green v Carlill (1877) 4 ChD 882, is also authority that where a wife hands over property belonging to her to her husband, without any intention of making a gift of it to him, he is a trustee of it for her. In Mercier v Mercier [1903] 2 Ch 98, CA, the defendant lady in 1883 married Colonel Mercier. They kept a joint banking account almost entirely composed of the wife’s income, and both the husband and the wife drew on this account. In 1891 they bought some land which was paid for from out of the joint account and was conveyed to the husband. He died intestate in 1901 and his heir-at-law claimed the land. The court held (affirming the decision of the lower court), that Mrs Mercier had not made a gift of the [p.408] purchase-money to her husband, and that the land belonged to her. As was observed per Romer and Cozens-Hardy LJJ:

“There is no distinction in principle between the presumption of a resulting trust in favour of the wife which arises when her income had been applied to a purchase in her husband’s name and that which arises when the payment has been made out of her capital.”

A number of local authorities have applied this principle, namely Quartey v Armar [1971] 2 GLR 231; Ussher v Darko [1977] 1 GLR 476, CA and Harrison v Gray, Jnr [1979] GLR 330.

In my view, the findings of fact as to the ownership of plot A by the trial judge is not supported by the evidence on record nor did the plaintiff succeed in discharging the burden of proof in support of his claim as required by law. The Court of Appeal stated in the record of proceedings that:

“The trial judge was therefore right in declaring the plaintiff owner of plot A. Where a trial judge makes a finding of fact supported by the evidence on record, the appellate tribunal will not disturb it unless the judge took into consideration irrelevant matters. The said inconsistency on the part of the defendant provided sufficient evidence of which the trial judge arrived at her conclusion

(The emphasis is mine.)

Clearly the Court of Appeal erred in affirming the decision of trial court in respect of plot A for the above quoted reason. It was wrong for both courts to rely on the weakness of the defendant’s case rather than on the strength of the plaintiff’s case to give him judgment.

For these reasons the appeal of the plaintiff in respect of plot B should be dismissed and the defendant’s appeal in respect of plot A be allowed. In the result, both plots belong to the defendant together with the buildings thereon.

JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.

The facts revealed in this appeal constitute an epitome of a social phenomenon which has happened in the country for a long time. The scenario is familiar. A young man—usually a student or a small businessman—forms a liaison with an older working woman or business woman and he is enabled by her financial support to advance himself in life. The success of the student or young businessman reflects on the woman and improves the social standing of both of them. Seth and Dinah Ogbarmey-Tetteh were cast in this mould. In their case [p.409] the omens were good. On the evidence they were paternal relatives. Again, earlier in their association, the two celebrated an Ordinance Marriage so that just before the present litigation broke out Dinah’s solicitors in reply to a letter written by Seth’s solicitors about the ownership of the house in dispute—No A299A/4, Laterbiorkorshie, Accra were able on her instructions to write concerning the marriage that Dinah: “in an erroneous belief that marriages are made in heaven and are for eternity, without seeking legal advice, had her plots conveyed to her husband [Seth].” This letter was written and dated 5 February 1974.

The claims to the houses in dispute were not the only surprises which befell Dinah. For in evidence before Okai J on 6 February 1986 Seth was able to depose under oath that Dinah “came back to Ghana in February 1974. She came to learn that the marriage had been dissolved.” In her absence in London, Seth had obtained a divorce from Dinah without Dinah’s knowledge. The battle lines were drawn and Seth on 19 June 1974 commenced the present action against Dinah.

In the present opinion, Seth will be referred to as the plaintiff and Dinah as the defendant. I have had the pleasure of reading the lead judgment and I am in full agreement with the evaluation of the evidence and the authorities bearing on the evidence. I am also in full agreement with the conclusions in that judgment. I however wish to express myself briefly on the points raised in the statement of case of both parties and other matters connected therewith.

The judgment of the High Court was given in favour of the plaintiff on 12 April 1990. By that judgment, the plaintiff was adjudged the absolute owner of two plots designated as plot A and plot B. Being aggrieved and dissatisfied with the judgment aforesaid, the defendant appealed to the Court of Appeal. Their lordships in an unanimous judgment gave plot A to the plaintiff and plot B to the defendant. This second judgment was delivered on 18 July 1991. There, the matter rested and it would appear that the defendant would have been satisfied with the judgment of their lordships in the Court of Appeal granting her the smaller plot B together with the outhouse which on the evidence straddled both plots A and B. How the defendant was going to assert title to the outhouse their lordships did not say. Be that as it may, on 17 October 1991—a day before the expiration of the date within which the plaintiff could exercise his undoubted right of appeal—by a design to upstage Shakespeare’s Shylock, the plaintiff lodged a notice of appeal to this court. In his notice of appeal, the plaintiff sought the following reliefs:

(1) That the decision of the trial judge that the plaintiff was the owner of plot B together with the building thereon be restored.

[p.410]

(2) That the damages for trespass in the sum of ¢100,000 awarded by the trial judge to the plaintiff be restored.

(3) That the costs incurred by the plaintiff in the Court of Appeal be awarded by your lordships.

(4) That costs occasioned to the plaintiff in the appeal be awarded by your lordships.

Promptly and within seven days of the lodgment of the appellant’s appeal—that is on 24 October 1991—the defendant cross appealed. The defendant also sought the following reliefs:

(i) That the decision of the trial judge as affirmed by the Court of Appeal that the plaintiff is the owner of plot A be reversed.

(ii) A declaration that the defendant is the owner of plot A.

Thus by the appeal and the cross appeal the whole litigation which began on 19 June 1974 had been recommenced before us. Before us the plaintiff has raised two points of law against the defendant and contends that:

“(1) The defendant having lost twice cannot cross appeal as of right in respect of plot A except with the leave of the Court of Appeal or the Supreme Court: see PNDCL 191.

(ii) The defendant’s cross appeal is out of time as it was filed without having obtained extension of time.”

Upon these two grounds of law, the plaintiff urges this court to dismiss the cross appeal “as incompetent and not properly before the court.”

With the greatest respect to counsel for the plaintiff, I am unable to accede to his prayer. The rule of this court governing cross appeals is rule 9 of the Supreme Court Rules, 1970 (CI 13) and it states:

“(1) A respondent may give notice by way of cross appeal.

(2) The provisions of rule 6 of these Rules shall, mutatis mutandis, apply to a notice of a cross appeal.”

Rule 6 of CI 13 to which rule 9 of CI 13 refers deals with the form and content of a notice of appeal. The time within which an appeal may be lodged to this court is governed by rule 8 of CI 13 which is not referred to in rule 9 of CI 13. Rule 9 (2) of CI 13 only says that the provisions of rule 6 of CI 13 shall apply mutatis mutandis to the notice of a cross appeal. In ordinary English, all it means is that the provisions of the rule shall be adapted as nearly as possible to suit the purposes for which the cross appeal is lodged. Then again rule 9 (1) of CI 13 speaks of a “respondent.” By rule 70 of CI 13, a respondent is defined as: “(a) in a Civil Appeal any party directly affected by the appeal other than the appellant.”

[p.411]

In his notice of appeal, the plaintiff states quite clearly that the person directly affected by his appeal is Dinah Ogbarmey-Tetteh—the defendant. These two points of law fail and they are dismissed as wholly unmeritorious.

I have already expressed my concurrence with the conclusions arrived at in the lead judgment. The plaintiff’s appeal with respect to plot B must fail. In the plaintiff’s own evidence in-chief, he said:

“The vendors gave the plot to the defendant. The defendant sold the plot to one Mrs Adina Vanderpuye for £70. Mrs Vanderpuye left for America. She is residing in New York. On my return from UK in early 1961, the mother of Mrs Vanderpuye came and said she wanted a refund of the money she gave to the defendant and that her daughter was no longer interested in that plot as she is residing abroad. At that time, the defendant was abroad. I refunded the amount of £70 and when the defendant came back from UK I told her of the refund.”

The plaintiff contends and would like this court to believe that when he used the expression “refund” what he really meant was that he bought the plot. That argument to me sounds hollow. I do not think that if his assertion were true, it would take an extra act of bravery for a husband to tell his wife that he had bought the plot. Instead, he says he meekly told the defendant, his wife, that he had refunded the money. The plain truth of the matter is that the mother of Mrs Vanderpuye had no instructions to sell the property. In common, customary practice, when the purchaser does not any longer need the goods or property he returns the goods or property to the vendor and collects his money back—a refund. This accounts for the use of the expression “refund” by both the mother of Mrs Vanderpuye and the plaintiff. It was obvious that the idea of a bargain and sale was not contemplated. The plaintiff’s first ground of appeal therefore fails and with it the other grounds of appeal contained in his notice of appeal.

The matters raised in the cross appeal have been dealt with comprehensively in the lead judgment and other opinions offered by my learned and respected sister and brothers. It has been suggested that this court should be careful not to disturb the findings of fact made by the trial judge. The argument is based primarily on section 12 of the Evidence Decree, 1975 (NRCD 323) which requires that proof must be by a preponderance of probabilities. That section defines “preponderance of probabilities” as denoting “a certain degree of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of [p.412] a fact is more probable than its non-existence.” In my view, such a test presupposes that the trier of fact has seen and heard all the witnesses and observed their demeanour. For it must be admitted that even though demeanour per se is an uncertain guide, its advantage arises where the scales may be evenly balanced and it becomes necessary to tilt it in order that the ends of justice may be attained.

The situation is not so in this appeal. The learned High Court judge, the trier of fact, confessed thus: “The judgment therefore is based on the previous proceedings in the adopted proceedings, and the evidence of the first defendant witness contained in exhibit 1 as well as the evidence given before me.” Section 12 of NRCD 323 will not in the circumstances apply to the matters raised in the appeal and this court, and indeed the Court of Appeal is entitled to review the evidence and come to its own conclusions as are warranted by law.

In the statement of claim filed on 19 June 1974 the plaintiff pleaded in part as follows:

“(3) By the first week in August 1957, the plaintiff had paid the said purchase money amounting to £128 in full and by a conveyance dated 8 August 1957, the said piece of land situate at Laterbiokorshie aforesaid comprising an approximate area of 0.315 of an acre and more particularly described in the said conveyance was conveyed by the said Emma Mills to the plaintiff absolutely and forever.

(4) The plaintiff subsequently had the said conveyance stamped and registered at the Deeds Registry [as the Lands Registry was then known] as DR No 2212/1957. The said piece of land is hereafter referred to as plot A.”

The defendant in her statement of defence filed on 18 October 1974 responded to the plaintiff’s averments in the following manner:

“(2) Save that the plaintiff paid no money whatever, paragraphs (3) and (4) of the statement of claim are admitted. The purchase money for the land comprised in the conveyance DR 2212/1957 was paid exclusively by the defendant from her own resources. The defendant accordingly contends that the said conveyance is held by the plaintiff upon a resulting trust for the defendant absolutely and beneficially.”

The defendant counterclaimed for plot A. At the close of pleadings, the summons for directions disclosed that one of the issues set down for trial was:

[p.413]

“(1) Whether the plot referred to in the plaintiff’s statement of claim as plot A was purchased and paid for by the plaintiff and was conveyed to him in his own right; or whether it was paid for by the defendant and is thus held by the plaintiff prima facie as a trustee for the defendant.”

The plaintiff in his pleading claimed he bought plot A from Emma Mills. The defendant in evidence said she bought the same property from the sisters Emma and Helena Mills. The conveyance referred to in paragraph (4) of his statement of claim and exhibited in the proceedings shows that his vendors were Emma and Helena Mills. Yet again the defendant in her pleading contended that even though the conveyance were drawn in favour of the plaintiff, yet the plaintiff merely held the plot in trust for her. In the light of these averments and the evidence on record the burden lay squarely on the plaintiff, notwithstanding that the defendant was counterclaiming for the same land or property, to produce evidence to satisfy the court that his assertions are probably true. Thus section 11 of NRCD 323 states as follows:

“11.(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue . . .

(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

In this appeal it was not enough that the plaintiff should plead the origin of his title without more if there was evidence available which should confirm his claim.

In Majolagbe v Larbi [1959] GLR 190 at 192 Ollennu J (as he then was) stated:

“Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist.”

In this appeal upon the issue joined the evidence of the vendors was [p.414] crucial to the resolution of the issue in favour of one of the parties. The plaintiff failed to call them. But the defendant called Madam Helena Mills who ascribed the following reason why she otherwise charged the defendant for the plot:

“I should have made a gift of it to the defendant since I knew her family very well but in those days we were engaged in litigation hence we needed money. The defendant took a period up to 1957 to pay the total of £128.”

In my respectful opinion, Madam Helena Mills was not shaken under cross-examination. Concerning the execution of the document, exhibit A, this is what the witness had to say:

“Q When did you give the first document to the defendant?

A I made the first document in the name of the plaintiff because he came with the defendant and the defendant said I should use the plaintiff’s name in the document. This was in or about 1957.

Q Did you say the defendant made the final payment to you in 1951?

A The defendant started paying for it in 1949 and completed paying in 1957.

Q Look at exhibit A. This is the document you executed in favour of the plaintiff?

A That is correct. I did it on the instruction of the defendant because the plaintiff had promised to marry and wed the defendant.

Q By exhibit A you granted the land in dispute to the plaintiff?

A That is not correct. The defendant was present and it was because the defendant wished it done that way because the plaintiff had promised to wed the defendant.”

Strangely though, the plaintiff was not concerned to answer the defendant’s cross appeal. The plaintiff was more concerned with the objections in point of law in the certain belief that those points would dispose of the cross appeal in his favour. I am of the opinion that the plaintiff erred; for this piece of evidence completely destroyed the plaintiff’s claim to plot A. Madam Helena Mills was certain that plot A was bought and paid for between 1949 and 1951. The plaintiff agrees that plot A was acquired in those years. Madam Mills said it was the defendant who paid for plot A by instalments and that but for her need for money for litigation she would have given the plot to the defendant free [p.415] of charge. The plaintiff’s only response to this averment in cross-examination was that what Madam Mills was saying was not true. But the plaintiff’s version of this part of his case was not put to the witness.

I accept the version of Madam Helena Mills as to how it came about that the document, exhibit A, was executed with the plaintiff as the grantee or assignee. The evidence is clear. Madam Helena Mills was the undoubted owner of the land and she had sold the land between 1949 and 1951. There was no question at that time of any document being prepared with respect to the sale of the land. The document, exhibit A, bears the date 8 August 1957. The plaintiff and the defendant were married in 1951. Therefore the plaintiff submits that if Madam Mills says that she executed the document in favour of him, the plaintiff, because the defendant told her that he had promised to marry her and wed her, then Madam Mills’ story cannot be correct.

I think the plaintiff has misread the evidence. In the light of Madam Mills’ own familiarity with the defendant she could not fail to know that the defendant had contracted an Ordinance marriage with the plaintiff in 1951. It was, in my view, in 1957 that the defendant wanting to erect a structure on the land would need the title deeds. Thus the request of the defendant to Madam Mills to use the name of the plaintiff as the purchaser of the title was because the plaintiff “had promised to marry and wed the defendant.” And then again the plaintiff “had promised to wed the defendant.” I think the grammar is very important. If indeed in 1957 the plaintiff was only about to marry and wed the defendant, it would have been foolish for Madam Mills to use expressions which suggested that the marriage and wedding had already taken place. In my view, it was in fulfilment of an earlier promise by the plaintiff to marry and wed the defendant that the defendant requested Madam Mills to prepare the document in the name of the plaintiff. In those circumstances the evidence of Madam Helena Mills, which was not in any way shaken in respect of the sale of plot A, satisfies me that the defendant was the real owner of plot A. In my view, when rival parties claim property as having been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties, unless destroyed by the other party, should incline a court to believe the case for the party in whose favour the grantor gives the evidence. Clearly the evidence adduced with respect to the sale of plot A demonstrates that the plaintiff held the said plot A in trust for the defendant.

But that does not end the matter. The plaintiff claimed that he built the house on plot A. However, the evidence which he led does not satisfy me that in fact he did so. The evidence of his witnesses was not of a [p.416] quality as would incline any reasonable person, or indeed a court, to the conclusion that the matters to which they deposed were solely referable to the construction of the house. The plaintiff contended that he raised a loan in 1963 from the Ghana Commercial Bank to put up the building on plot A. But the evidence shows that in 1963 the building had been completed and a certificate of habitation had been issued with respect to it. The plaintiff ‘s evidence was demonstrably untrue. I believe that the defendant financed the building on plot A. In exhibit A which was the letter dated 5 February 1974, the defendant’s solicitors wrote to the plaintiff’s solicitors in the following words:

“Some time thereafter she engaged contractors to erect an edifice wherein they may enjoy in bliss their connubium. Your client then had neither the desire nor the means to put up a building, but it is admitted that when the building was almost complete, inspired by the zeal and tenacity with which his wife had tackled the project, he offered his mite, albeit not a widow’s, to assist in completing the building.”

In my respectful opinion, this statement from the solicitors’ letter, reflected the truth about the manner in which the building on plot A was financed and constructed.

In the result, the cross appeal succeeds. There will be judgment dismissing the plaintiff’s appeal and allowing the defendant’s cross appeal.

DECISION

Plaintiff’s appeal dismissed.

Defendant’s cross appeal allowed.

JNNO

OPAREBEA v. MENSAH [1993-94] 1 GLR 61—75.

COURT OF APPEAL, ACCRA

16 December 1993

LAMPTEY, ADJABENG AND LUTTERODT JJA

Husband and wife—Divorce—Property—Settlement—Available reliefs—Wife claiming financial provision and beneficial interest in family assets on divorce—Wife found to have beneficial interest in assets by virtue of assistance in acquisition—Wife awarded husband’s Tesano house—Nature of relief given wife—Matrimonial Causes Act, 1971 (Act 367), s 20(1).

Husband and wife—Divorce—Property—Financial provision—Divorced wife awarded husband’s Tesano house in satisfaction of claims for financial provision and property settlement—Appeal for variation of quantum of “financial provision” by divorced wife—Definition of “financial provision”—Wife protesting quantum of both financial provision and property settlement given her—Death of husband during pendency of appeal abating award of financial provision—Whether court retaining jurisdiction to determine wife’s property rights—Proportion of award constituting property settlement—Act 367, s 28(2).

Husband and wife—Divorce—Property—Settlement—Discretion of court—Deceased husband owning more property than declared—Court unable to make new orders for financial provision on death of husband—Husband’s estate devised to others under his will—No intention on part of husband to defeat financial provision for wife evident in will—Role of court—Wife to be given additional monetary award—Act 367, s 28(2).

HEADNOTES

The appellant-wife and the respondent-husband got married in 1958. Following a breakdown of the marriage she instituted proceedings in the High Court for, inter alia, dissolution of their marriage, financial provision and a declaration that she had a beneficial interest in the family assets. The trial judge found that the appellant was not only entitled to financial provision but that she also had a beneficial interest in the respondent’s assets. Accordingly, on granting the divorce the judge ordered that the appellant be given the respondent’s Tesano house as her financial provision and her beneficial interest in the respondent’s assets. Dissatisfied with the order, the respondent appealed against that decision to the Court of Appeal. The appellant also cross appealed seeking a variation of the order on the grounds that (a) the quantum of financial provision was inadequate having regard to the total wealth of the respondent; and (b) the trial judge failed to give adequate regard to her claim for beneficial interest in the family’s assets based on her contribution in kind and service. In the course of the proceedings the respondent died and his executors withdrew the appeal lodged leaving the cross appeal to be determined. In support of her appeal, the appellant submitted that since the judge found that her assistance to the respondent in his [p.62] business constituted substantial contribution, she should have been given half of the estate of the respondent. In their opposition to the cross appeal, the executors contended that the trial court rejected the appellant’s claim for a beneficial interest in the respondent’s assets and only granted her the Tesano house as financial provision and since under section 28(2) of the Matrimonial Causes Act, 1971 (Act 367) the death of a party adversely affected by an order for financial provision abated the order, there was no basis for the appellant’s appeal. Although the Court of Appeal found that the respondent owned more property than he had declared to the trial court, the court further found, inter alia, that the respondent’s other wives, children and family members had all assisted in the running of his business; the appellant was also in business to which the respondent had also made contributions; and that in any case, the respondent had made dispositions of his estate in a will.

Held, allowing the appeal:

(1) Section 20(1) of the Matrimonial Causes Act, 1971 (Act 367) empowered a judge to make an order either for (a) settlement of property rights arising from claims of substantial contribution either in money or money’s worth; or (2) financial provision; or for both where the spouse was not merely praying for financial provision but was also alleging an interest in the property. Since the trial High Court quite clearly found that the appellant had a beneficial interest in the respondent’s assets, the order that the appellant be given the respondent’s Tesano house lumped together both the relief for financial provision for the appellant and her beneficial interest in the assets of the respondent. Achiampong v Achiampong [1982-83] GLR 1017, CA cited. Dictum of Lord Denning MR in Gissing v Gissing [1969] 1 All ER 1043 at 1046, CA applied.

(2) Although the appellant in her appeal sought a variation of the “financial provision” given her by the High Court, the expression would not be given such a narrow and restrictive interpretation as to limit it to the financial provision aspect of the order. An examination of the indorsement on her writ and the grounds of appeal made it clear that her complaint was that the quantum of both the financial provision and her beneficial interest in the family assets was grossly inadequate. In the circumstances, even if the prayer for financial provision failed because of the death of the respondent, as provided by section 28(2) of Act 367, the court would still have jurisdiction to determine whether the quantum for settlement rights was adequate. Since the judge did not specify the proportion in which the Tesano house was to cater for the two reliefs, it would be assumed that the property rights constituted half a share in the property.

(3) (Lamptey JA dissenting in part) Where a judge set out to vest property as settlement of property rights under section 20(1) of Act 367, he was exercising a discretion and was the best judge of what was adequate, having regard to the peculiar facts of the case before him, particularly the nature and extent of the contribution the party had made towards the acquisition of the property. Accordingly, an appellate court [p.63] would normally not interfere with the award. However, since on the evidence the deceased respondent owned much more property than he declared to the trial court, the appellant deserved a little more by way of settlement of property rights. But with the death of the respondent the court could not make any fresh or new orders with regard to financial provision because by the provision of section 28(2) of Act 367 that order abated with the death of the respondent. And by the provision of section 27(1) of Act 367, the court could only set aside a disposition of property of a spouse where it was clearly made with intent to defeat the financial provision or property settlement of the other spouse. In the absence of any such evidence, express or implied, in the will of the respondent in the instant case, the court would preserve the dispositions under his will but will order that the appellant be paid an additional ¢8 million from the estate by way of property rights settlement. Dictum of Amua-Sekyi JSC in Ribeiro v Ribeiro (No 2) [1989-90] 2 GLR 130, SC applied.

CASES REFERRED TO

(1) Achiampong v Achiampong [1982-83] GLR 1017, CA.

(2) Gissing v Gissing [1969] 2 Ch 85; [1969] 2 WLR 525; [1969] 1 All ER 1043, CA.

(3) Rimmer v Rimmer [1953] 1 QB 63; [1952] 2 All ER 863; 2 TLR 767, CA.

(4) Pettitt v Pettitt [1970] AC 777; [1969] 2 WLR 966; [1969] 2 All ER 385, HL.

(5) Nixon v Nixon [1969] 1 WLR 1976; [1969] 3 All 1133; 113 SJ 565, CA.

(6) Ribeiro v Ribeiro [1989-90] 2 GLR 109, SC.

(7) Wachtel v Wachtel [1973] 2 WLR 366; [1973] 1 All ER 829; 117 SJ 124, CA.

(8) Ribeiro v Ribeiro (No. 2) [1989-90] 2 GLR 130, SC.

NATURE OF PROCEEDINGS

APPEAL by the wife-appellant against the quantum of financial provision and property settlement awarded her by the High Court, Accra. The facts are sufficiently set out in the judgment of Lutterodt JA.

COUNSEL

Dr Daniels for the appellant.

Dr Twum for the respondent.

JUDGMENT OF LUTTERODT JA.

In 1958 the petitioner-cross appellant (hereinafter referred to as the appellant) got married to the original respondent, one S A Mensah, now deceased, in accordance with customary law. Following a breakdown of their marriage, she instituted proceedings in the [p.64] High Court, Accra for a number of reliefs including the following:

“(2) That the petitioner be granted maintenance pending suit and financial provision.

(3) That it be declared that the petitioner has a beneficial interest in the family assets.”

By a judgment dated 14 December 1984, the learned trial judge ordered, among other things, as follows:

“For the petitioner’s matrimonial reliefs concerning financial provision and beneficial interest in the respondent’s assets, it is hereby ordered that the petitioner be given the respondent’s house at Tesano where the petitioner resides and has already staked her interests by making extensions thereto.”

The respondent who was not at all happy with this order in particular caused his solicitors to appeal against the decision. The appellant in turn has appealed and prayed for a variation of the order by “increasing the amount of financial provision in conformity with the reliefs claimed before the High Court.”

In the course of these proceedings the respondent died and his executors were, in conformity with the rules, substituted as defendants. They however withdrew the appeal they had lodged, leaving the cross-appeal to be determined.

We would notice that although the appellant sought for these two distinct reliefs I have already referred to, (1) financial provision; and (2) a declaration that she has a beneficial interest in the family assets, the court did not grant these reliefs separately. What the learned judge did was to lump the two together and declare the Tesano house adequate for both reliefs. This the court did, after reviewing the evidence and concluding that she is not only entitled to financial provision but she indeed has a beneficial interest in the “respondent’s assets.”

It seems to me that the learned judge drew his authority from section 20(1) of the Matrimonial Causes Act, 1971 (Act 367) which reads:

“20(1) The court may order either party to the marriage to pay to the other part such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision as the court thinks just and equitable.”

The appellant is not challenging the validity of the order. Her main [p.65] complaint, I think, is that the quantum is grossly inadequate. Indeed, I do think that section 20(1) of Act 367 empowers a judge to make any of the orders specified therein where the spouse is not merely praying for financial provision but is alleging an interest in property. In other words, section 20(1) of Act 367 provides for two basic reliefs: (1) settlement of property rights arising from claims of substantial contribution either in money or money’s worth; and (2) financial provision. Achiampong v Achiampong [1982-83] GLR 1017, CA, see particularly the speech of Abban JA (as he then was), supports the views I have expressed.

I have taken the trouble to examine the scope of the order made because of the respondent’s counsel’s submission that the judge dismissed the motion of the petitioner seeking a declaration that she has a beneficial interest in the family assets, and made an order in substitution thereof. Implying thereby that she was granted only one relief—which relates to maintenance—financial relief.

True the learned judge never used the term “family assets.” Lord Denning in the Court of Appeal decision of Gissing v Gissing [1969] 1 All ER 1043 at 1046, CA explained that term thus:

“…Where a couple, by their joint efforts, get a house and furniture, intending it to be a continuing provision for them for their joint lives, it is the prima facie inference from their conduct that the house and furniture is a ‘family asset’ in which each is entitled to an equal share. It matters not…. who goes out to work and who stays at home.”

But, on the other hand, he quite clearly found in favour of the petitioner that she has a beneficial interest in the respondent’s assets. In that light my view is that he granted the substance of the petitioner’s claims as the following except of his judgment would show:

“Then follows the issue as to whether or not sufficient grounds have been established to justify the award of financial provision in her favour or claim by her of interest in the husband’s properties. The two claims are different but I treat them under one head for the sake of convenience. The clear unequivocal answer I give to this question is that the petitioner has established sufficient grounds to justify judgment being given to her on the two reliefs.”

(The emphasis is mine.)

It is trite learning that because the respondent did not appeal against any of these positive findings we cannot in any way interfere with them, neither can we upset the order that part of the Tesano house is in [p.66] settlement of her rights in the respondent’s assets.

Again, before I deal with the main issue raised in this appeal, I would like to determine this other important issued raised by the respondent’s counsel. His argument ran like this: The appellant asked for a variation of the order of financial provision. Under section 28(2) of Act 367, on the death of a party adversely affected by an order of financial provision, the order shall abate. Consequently, with the death of the respondent there is nothing there to be determined by this court.

In the first place, as I have already explained, the Tesano house took care of both reliefs. True the relief indorsed in the notice of cross appeal spoke of a variation of “financial provision” but I will not give it such a narrow or restrictive interpretation as to limit it solely to the financial provision aspect of the order. When the indorsement is read as a whole along with the grounds of appeal, I think the complaint is that the quantum for both reliefs was grossly inadequate and consequently what is prayed for is for the entire award to be enhanced. The indorsement reads:”…. that the said judgment should be raised by increasing the amount of financial provision in conformity with the reliefs claimed.” (The emphasis is mine.) The natural question is what are the reliefs (note: not relief but reliefs) claimed. They are: (1) a declaration that she has a beneficial interest in the family assets (found by the judge to be the respondent’s assets); and (2) financial provision.

In these circumstance even if the prayer for an increase in the financial provision qua financial provision fails, because of the death of the husband, this court will still have to determine whether the quantum for settlement of property rights is nevertheless adequate. Since the judge did not specify in what proportion the Tesano house was to cater for the two reliefs, I would assume half a share for the property rights settlement.

I now proceed to deal with the main issued raised by this appeal. It was submitted on her behalf that because of the role she played in the husband’s business and which no doubt led the judge to conclude that she made substantial contribution (and this finding has not been challenged), the court should have followed the decision in cases like (1) Rimmer v Rimmer [1953] 1 QB 63, CA; (2) Pettitt v Pettitt [1969] 2 WLR 966, HL and (3) Nixon v Nixon [1969] 1 WLR 1676, CA and made her an equal partner and so given her a half share of his assets. Secondly, it was urged that had the trial judge been made aware of the other properties the deceased owned, he certainly would have given her something more. For these two reasons coupled with the fact that with the exception of only one property, the evidence does show that all the properties were acquired during their marriage, bringing their total value as stipulated by the [p.67] executors to ¢436 million, the award is grossly inadequate. We have therefore been invited, as an appeal is by way of rehearing, to enhancing the award and give her a half share at least in the North Ridge business.

The learned trial judge no doubt took all the circumstances of this case into consideration before concluding that the Tesano house was adequate. I think these matters included the following:

(1) the fact that the deceased had other wives;

(2) they also contributed in no small way to his success;

(3) his nephew, a university graduate, left his employment at his request and teamed up with him to run his business; he thus contributed to his success story;

(4) he opened with his own funds a Barclays Bank account for her;

(5) he had other successes other than the store the appellant worked in. He started business as far back as 1942, some sixteen years before he met the appellant;

(6) even during the subsistence of the marriage she benefited greatly, for example the number of unsewn cloths she had;

(7) his several other liabilities; and

(8) the fact that the appellant herself is in business with her daughter. They import goods from overseas for sale in Ghana.

Her investment could, in my view, only have come from moneys obtained from the respondent. He in any case contributed to her business. I was not minded to increase this award which the judge in his discretion had made and which he thought adequate in all the circumstances. For, apart from the facts I have enumerated, there is no evidence that the appellant herself invested any moneys in the North Ridge Hotel which in any case was completed after she had left the husband and so stopped working for him. Again it is the extent of the contribution which determines the extent of her interest in any given property. But the evidence on the records does not show her contribution to the hotel business was half share. Others contributed to the man’s business from which he no doubt built the hotel.

I do not think the mere fact that the Tesano house was not evaluated makes the award a nullity. Achiampong v Achiampong (Supra) did not make valuation mandatory nor a sine qua non to the exercise of the judge’s discretion.

As was pointed out by his lordship Amua-Sekyi JSC in his judgment in the Supreme Court case of Ribeiro v Ribeiro [1989-90] 2 GLR 109 at 117, SC in applying section 20(1) of Act 367 the judge having a discretion to exercise, it was for him to:

[p.68]

“….exercise it in the best way he could. As a judge sitting in Accra where the properties are located, he must be deemed to be familiar with the localities of the three houses and to have a fair idea of their suitability as a residence … This court is not better placed than the trial court to determine what was suitable for the wife having regard to the circumstance of her case.”

True the Ribeiro case (supra) was limited only a financial provision and did not include the settlement of property rights but I am of the view that even where a judge sets out to vest property as settlement of property rights under section 20(1) of Act 367 he exercises a discretion and he is the best judge of what is adequate having regard to the peculiar facts of the case before him, particularly the nature and extent of the contribution.

However, that which has persuaded me to enhance the award is the new evidence on other properties owned by the deceased. Before the trial court his case was that he had only the following:

(1) six houses;

(2) one plot of land at MacCarthy Hill;

(3) one plot of land as Abeka;

(4) one plot of ancestral land in his home town; and

(5) a plot of land at Nkawkaw.

Before us we have discovered he owns, to be modest, a little more than he told the court. He additionally owned:

(1) eight undeveloped plots of land at MacCarthy Hill;

(2) magazine plot at Nkawkaw;

(3) two undeveloped plots at Haatso;

(4) undeveloped plot next to Ridge Hospital;

(5) cocoa farms at Prassolewm—five plots at Takoradi;

(6) twenty cattle; and

(7) a residential estate overseas to the value of ¢12.6 million.

I think the appellant deserves a little more by way of settlement of property rights (which as I have already explained is included in the order of the court). With the death of the husband, as section 28(2) of Act 367 stipulates, this court cannot make any fresh or new orders with regard to financial provision. That order made abates with the death of the other partner.

Where a party prays in aid the provision of section 27(1) of Act 367, the court can only set aside a disposition where clearly it was made with intent to defeat the financial provision or property settlement of the other party. Without evidence of that intention, a court would not set aside any disposition made by one party during the pendency of proceedings in [p.69] which the other seeks the reliefs of financial provision or property rights. This is the undoubted conclusion of his lordship Amua-Sekyi JSC in the Ribeiro case (supra).

In this particular case I find no evidence from the record, either express or implied which shows the deposition under the will was made with the intent I have described. If anything at all the manner in which the testator made sure all persons who he thinks should benefit, particularly the appellant’s children, were catered for under the said will negates any such thing.

In the circumstances, I think the better approach would be to preserve the dispositions under the said will and order the additional payment of money to her also by way of property rights settlement. The question which naturally arises is how much is she entitled to? In view of the reasons I have already advanced, it cannot be a half share of the North Ridge business. It can in my view be only a portion of such of his estate as we can elicit from the fresh evidence. I think having regard to the contribution by other persons to the deceased’s business, profits from which we can say he acquired his self-acquired properties, including this portion of the estate, that the sum of ¢8 million is reasonable and fair.

JUDGMENT OF LAMPTEY JA.

I agree that the appeal be allowed. I wish to add a few words of my own. In the High Court, the appellant, Mary Oparebea had sought, among others, the following reliefs:

“(1) an order dissolving her marriage with the respondent;

(2) financial provision; and

(3) a declaration that she has a beneficial interest in the family assets.”

The trial judge dissolved the marriage between the parties and made the following order:

“…..concerning financial provision and beneficial interest in the respondent’s assets, it is hereby ordered that the petitioner be granted the respondent’s house at Tesano …. as full and final marriage settlement.”

The appellant was aggrieved and dissatisfied with the order made by the trial judge and appealed to this court on two grounds, namely:

“(1) The quantum of financial provision awarded was inadequate having regard to the total wealth of the inadequate.

(2) The learned trial judge failed to give adequate regard to the [p.70] petitioner’s claim for beneficial interest in the family assets based on her contribution in kind and service.”

Before us, learned counsel for the appellant point out pieces of evidence on record which proved that the respondent lived with the appellant for a continuous period of 28 years. There was evidence which proved that apart from performing her duties as a wife, the appellant actively assisted and worked for the respondent in some of his business ventures. There was evidence to prove and show that the respondent acquired substantial immovable and movable properties. On the evidence before him the trial judge held that the appellant made substantial contributions towards the acquisition of the properties, movable and immovable, and the wealth acquired by the respondent. Learned counsel therefore submitted that the award made by the trial judge as financial provision was grossly and wholly inadequate. In reply, learned counsel for the respondent admitted that over and above her duties as a wife, the appellant assisted and worked for the respondent. He contended that such services as she rendered over and above those required of a wife, were services which customary law enjoined her to offer. Such services were not regarded and did not attract any reward or compensation at customary law. He submitted that the appellant was not at customary law entitled to claim any interest and/or right to the properties, movable or immovable, of the respondent founded or based on a claim that she assisted and helped in the acquisition of those properties. Counsel for the parties referred to and relied on the English cases of Wachtel v Wachtel [1973] 2 WLR 366, CA; Pettitt v Pettitt [1969] 2 All ER 385, HL; and the local cases of Ribeiro v Ribeiro [1989-90] GLR 109, SC and Ribeiro cases (No. 2) [1989-90] 2 GLR 130, SC.

I must observe that section 20(1) of Act 367 was examined and considered by the Supreme Court in the Ribeiro cases (supra). In the course of his judgment Adade JSC expressed the following opinion on the ambit and scope of section 20(1) of Act 367 thus at 135:

“In this case we are not concerned with settling property rights where the court is called upon to determine the share in any property, which belongs to one or the other of the parties. Where determination of such interest is not the issue, the question of the contributions of either party, substantial or otherwise, towards the acquisition of the property is irrelevant.”

The language of Adade JSC is plain and clear. The majority of the judges concurred in the view and opinion expressed by Adade JSC. I agree with [p.71] the opinion and interpretation placed on section 20(1) of Act 367, namely in determining whether not a spouse is entitled to claim financial provision the spouse need not lead evidence to prove and establish that he or she made a contribution towards the acquisition of the property. In the words of Adade JSC in considering a claim under section 20(1) of Act 367, contribution whether substantial or otherwise, is irrelevant.

A careful reading of the judgment before us shows that the trial judge did not follow the test laid down by the Supreme Court in the Ribeiro case (supra). The trial judge looked for evidence from the appellant seeking to prove and establish that she made some contribution towards the acquisition of property by the respondent to support her claim under section 20(1) of Act 367. This was what the trial judge wrote on this issue:

“…. the assistance (the appellant gave the respondent) surely yielded positive results for those businesses … It cannot be denied, even by the respondent that the contribution helped the business to flourish.”

In the candid opinion of the trial judge the appellant made a substantial contribution to the acquisition of the properties of the respondent. On this issue the trial judge wrote:

“I hold therefore from the facts of the case that positive services or assistance by a wife to her husband’s business for a long period of 28 years amounted to substantial contribution towards these businesses.”

With great respect to the trial judge he erred in law in looking for evidence of contribution to support the appellant’s claim under section 20(1) Act 367. In the Ribeiro case (supra) the Supreme Court indicated that to ascertain and determine a claim made under section 20(1) of Act 367 a court “must examine the needs of the party making the claim.” The court in the appropriate case must make reasonable provision for their satisfaction out of money, goods or immovable property for his or her spouse. In the instant appeal, the Ribeiro case (supra) enjoins this court to examine the needs of the appellant and thereafter this court must make reasonable provision for their satisfaction from the money, goods or immovable property of the respondent. In the court below the trial judge in exercise of the power under section 20(1) of Act 367 made the awards to which I have already made reference. In the course of their arguments and submissions on the issue of financial provision learned counsel for the parties referred us to the English cases of Wachtel (supra) and Pettitt [p.72] (supra). In the majority judgment of the Supreme Court the Pettitt case (supra) was rejected as irrelevant and therefore unhelpful. With respect to learned counsel for the respondent, I agree with the opinion that in considering a claim under section 20(1) of Act 367 the English case of Pettitt v Pettitt (supra) is irrelevant and not helpful.

The second ground of appeal argued by learned counsel for the appellant was that the trial judge failed and omitted to make a declaration of the share of the appellant in the “family assets.” The argument put forward was that the appellant made a substantial contribution towards the acquisition of the “family assets.” He submitted that the appellant was entitled to be awarded her fair share of the family assets. I have elsewhere in this judgment stated the reply of learned counsel for respondent to the above submission. No useful purpose would be served if I repeated this reply. In examining the claim to be awarded a share of the “family assets”, I have found the English case of Wachtel (supra) helpful. In that case, Lord Denning MR explained in some detail the concept of “family assets.” The master of the Rolls defined “family assets” as follows at 372:

“The phrase ‘family assets’ is a convenient short way of expressing an important concept. It refers to those things which are acquired by one or other or both of the parties, with the intention that they should be continuing provision for them and their children during their joint lives, and used for the benefit of the family as a whole ….

The family family assets can be divided into two parts: (i) those which are of a capital nature, such as the matrimonial home and the furniture in it: (ii) those which are of a revenue-producing nature, such as the earning power of husband and wife. When the marriage comes to an end, the capital assets have to be divided; the earning power of each has to be allocated.”

In the instant case, there is evidence of the immovable and movable properties of the respondent. As I have already observed, the trial judge made a positive finding of fact that the appellant made a substantial contribution towards the acquisition of these properties. Learned counsel for the appellant has invited this court basing itself on the finding of the trial judge to quantify the share of the family assets that falls to the lot of the appellant. Has this court the power to disturb the allocation of properties made by the trial judge? In dealing with this issue I have found the opinions expressed by Francois and Wuaku JJC in the Ribeiro case (supra) immensely helpful and rewarding. In that case Francois JSC was [p.73] very careful to draw a clear distinction between a claim to a share in property based on a contribution to the acquisition of that property and a claim unsupported by any such contribution towards the acquisition of the property. The opinion of Francois JSC was in the minority but was concurred in by Wuaku JSC. In the view of Francois JSC when faced with a claim based on section 20(1) of Act 367 the court cannot and ought not to make any award of immovable property if the claim is not for a beneficial interest in that property. In that case the trial court purporting to act under section 20(1) of Act 367 awarded a house to the wife who had made no contribution to the acquisition of houses by the husband. On this award Wuaku JSC observed at 126 that:

“The wife is not claiming any beneficial interest in the matrimonial home, but claiming properties which on the admitted facts the husband is the sole legal owner of. Accordingly, before the Haulage House could be conveyed to her, she must prove substantial financial contribution or title…

It would be different if the wife claims an interest in the property and was able to establish her title. Then section 21(1) of Act 367 will come into play… This section shows clearly that the court cannot under section 20(1) order a party to convey title. To do so the party must establish title to the part or all the property . . . or substantial contribution . . .”

(The emphasis is mine.)

It will be seen from the opinion of Wuaku JSC that where a claim is based and founded on evidence of substantial contribution the court may proceed under section 21(1) of Act 367 and make an appropriate award. On this same issue Francois JSC was of the opinion at 118 “that a spouse could not press with any degree of optimism an interest In the husband’s properties by virtue of mere domestic services in the house.”

This view of the law means and can only mean that where a spouse proved substantial contribution towards the acquisition of property or family assets the spouse can lawfully press with optimism a claim to a fair and reasonable share of the family assets or properties pursuant to section 21(1) of Act 367. In the instant case, the trial judge made a finding of fact that the appellant made a substantial contribution towards the acquisition of the properties of the respondent. I find that there is evidence on record to show that some of the properties were indeed acquired pursuant to decisions jointly reached by the appellant and the respondent. One of such properties is the house or building now used as the North Ridge Hotel. In respect of that property the appellant testified [p.74] as follows: … one (property) in North Ridge which the respondent and I jointly decided and converted into a hotel with 31 rooms…” In the course of her evidence, the appellant narrated the circumstances which led to the decision to turn the matrimonial home into a hotel:

“We were living in North Ridge (house) which we built as our residence (matrimonial home) but later converted to a hotel… We were in the North Ridge house in 1974 with my children and the respondent.”

The evidence was not disputed nor challenged. There can be no doubt that the appellant proved that kind of interest in the North Ridge property which Lord Denning MR categorised as “family asset.”

Again there was evidence before the court that sometime in January 1976 the appellant and the respondent jointly obtained a loan from the Ghana Commercial Bank for business purposes and jointly and severally bound themselves by a bank guarantee to repay that loan. The loan was taken for the benefit of a company which carried on business and commercial activity called S A Mensah & Co. Ltd. The contention of learned counsel for the respondent that the appellant must be seen in the above circumstances as performing and discharging the duties of an Akan wife cannot be a correct statement of Akan customary law. The business transaction between the Ghana Commercial Bank and the parties herein is purely and simply a business and commercial one. It has nothing to do with the relationship of husband and wife. The evidence of the bank transaction is in my opinion a reflection of the intention of the appellant and the respondent jointly to engage in some commercial and business ventures and activities with a view to amassing wealth and additionally acquiring real properties over a continuous period of 28 years of marriage. Indeed, there was evidence from the respondent that the appellant actively assisted him in his business ventures. He testified in part as follows: “The petitioner helped in the store … she received the moneys. She looked after my financial interests.” Again the respondent gave evidence as follows: “I opened Barclays Bank account with my money for her in case anything happened to me.”

There was further evidence from the respondent to show that over and above the obligations and duties imposed on spouses, he and the appellant supported each other in their respective business interests. The respondent gave the following evidence: “when she told me that a Mr Thompson who was a choir master, at Asamankese was owing her, I went with her to collect the debt.” Other random evidence of the assistance the respondent gave the appellant was stated by him as follows: “Q Did you discuss her [p.75] involvement in the poultry farm with her? A Yes. She told me it was too much.”

Indeed, there was evidence on record that even though the respondent and the appellant lived apart from each other and had ceased to live as husband and wife the respondent freely, willingly and cheerfully paid for two overseas trips the appellant made to America and Europe. In my opinion, the finding of fact by the trial judge that the appellant made substantial contribution towards the acquisition of family assets by the respondent was supported by the evidence on record. He therefore erred in not quantifying her fair and reasonable share of it. This court has power to affirm the declaration and quantify the award. The power is granted by article 137(3) of the Constitution, 1992. In the English case of Wachtel (supra) the court was called to quantify the share of the wife in the family assets. At holding (3) at 367 of the report appears the following:

“(3). That one third of the combined resources of the parties afforded a convenient starting point and accordingly in the circumstances, including the fact that the wife had made a substantial contribution to the home by her care of the family…”

I find that in all the circumstances of the instant case, including 28 years of continuous selfless and dedicated services both in the running of the home and business ventures and commercial activities of the respondent, the appellant is entitled twenty per cent of the family assets as disclosed by the inventory presented for purposes of obtaining probate.

JUDGMENT OF ADJABENG JA.

I agree entirely with the judgment of my sister, Lutterodt JA, and the reasons given therefor. I agree that the cross appeal be allowed because of two reasons. These are, first, that the trial judge had made a positive finding of fact that the cross-appellant had contributed substantially to the respondent’s assets, but this finding was not challenged by the respondent. Even though an appeal was filed against the judgment of the trial court, this appeal was later discontinued when the respondent died. The second reason is that after the judgment had been delivered, some fresh evidence revealed that the respondent had had more properties than was revealed to the court. It is most likely that if these additional properties had been revealed to the court at the time the award was made, the award might have been more substantial.

DECISION

Cross appeal allowed.

M C N-N

OSAFO v THE REPUBLIC [1993-94] 2 GLR 402—413

COURT OF APPEAL, ACCRA

22 December 1994

ESSIEM, FORSTER AND ACQUAH JJA

Statutes—PNDCL Laws—Commencement—Laws taking effect from date of signature unless otherwise provided in Law—PNDCL 236 made on 24 May 1990—Gazette notification of Law published on 13 July 1990—Appellant charged under PNDCL 236 for offence committed on 25 May 1990—Whether appellant properly charged—Provisional National Defence Council (Establishment) Proclamation, 1981, s 4(5), (6) and (7)—Narcotic Drugs (Control, Enforcement and Sanctions Law, 1990 (PNDCL 236).

Criminal law and procedure—Narcotic drug—Possession—Narcotic drug found in appellant’s bedroom—Evidentiary burden on appellant to exonerate his possession—Prosecution evidence that drug discovered under appellant’s bed—Appellant claiming drug found in bag left with him by a casual friend—Trial tribunal accepting testimony of prosecution witnesses—Whether appellant court to interfere with finding of trial tribunal—Inference from finding that drug discovered under appellant’s bed—Gravamen of offence of possession of drug—Whether court justified in finding appellant guilty—Evidence Decree, 1975 (NRCD 323), s 11(3)—PNDCL 236, s 2(1).

Criminal law and procedure—Sentence—Possession of narcotic drug—Imprisonment and [p.403] fine—Minimum sentence of ten years’ imprisonment for offence—Court empowered to impose sentence of both imprisonment and fine for offence—Appellant on conviction sentenced to twelve years’ imprisonment and fine of ¢5 million—Whether fine excessive—Fine reduced to ¢2million—PNDCL 236, ss 2(1) and 16(2).

HEADNOTES

Acting on a tip-off the police searched the house of the appellant at dawn on 25 May 1990 and found a polythene bag containing 134 oval shaped balls in his room. The appellant disclaimed ownership of the bag and explained that it had been left with him the previous evening, ie 24 May 1990, for safe-keeping by a casual friend (A) who had intended to spend the night in his house but had had to leave to lodge at a hotel when he found that the appellant’s girlfriend was then visiting. When the oval balls were subsequently found to contain 919.94 grammes of heroin and also the police failed to Locate A, the appellant was arraigned before the National Public Tribunal on a charge of possession of narcotic drugs contrary to section 2(1) and (2) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law , 1990 (PNDCL 236). At the trial, two of the police officers who had conducted the search led evidence on how they discovered the bag containing the drugs under the appellant’s bed. In his defence, however, the appellant claimed that the police had rather found the polythene bag in a blue bag which had been left with him by A and that the drugs belonged to A. The trial tribunal rejected the appellant’s evidence, held that the drugs belonged to the appellant and that he knew their nature and quality and accordingly, sentenced him to a term of twelve years’ imprisonment with hard labour plus a fine of ¢5million or in default ten years’ imprisonment with hard labour. In his appeal against both his conviction and sentence, the appellant contended that (i) since the offence took place on 25 May 1990 but the Gazette notification of PNDCL 236 came out on 13 July 1990, and therefore the Law came into force that day, he had been improperly charged under that Law; and (ii) he had no legal possession of the drugs even though they were found in his bedroom. The court found, inter alia, that PNDCL 236 was made on 24 May 1990.

Held, dismissing the appeal:

(1) by the provision of section 4(5), (6) and (7) of the Provisional National Defence Council (Establishment) Proclamation, 1981 unless otherwise provided in any particular Law, Laws made by the Provisional National Defence Council took effect from the date the Law was signed and not from the date of Gazette notification. Thus, since the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) was made on 24 May 1990 it came into effect on that day. And since on the evidence the appellant committed the offence on 25 May 1990, he was properly charged under PNDCL 236.

(2) Although the appellant had no burden to prove his innocence, once he admitted that the drugs were found in his room but proceeded to exonerate his possession, he was obliged under the provision of section 11(3) of the Evidence Decree, 1975 (NRCD 323) to lead such evidence as to cast doubt on the case of the prosecution. In the circumstances, it was [p.404] not enough for him to allege that the drugs belonged to someone else; he had also to establish that he did not know the nature and quality of the drugs. But the issue as to whether the polythene bag of A was determinable on the credibility of the prosecution witnesses vis-avis that of the appellant and since the trial tribunal which saw and heard them believed the prosecution witnesses, the appellate court would not interfere with that finding. Since it followed from that finding that the appellant sought to conceal the drugs, it meant that he knew the nature and quality of the drugs. In the circumstance it was immaterial whether the drugs belonged to the appellant or to A because the gravamen of the offence under section 2(1) of PNDCL 236 was possession not ownership of the drugs. Accordingly, there was sufficient evidence to justify the trial tribunal’s guilty verdict against the appellant. Dicta of van Lare JSC in Abono v Sunkwa [1962] 1 GLR 154 at 156, SC and of Balgore JSC in Iriri v Erhurhoban (1991) 1 WASC 428 applied.

(3) The minimum sentence for an offence under section 2(1) of PNDCL 236 was ten years’ imprisonment with hard labour. Although section 16(2) of PNDCL 236 empowered the trial tribunal to impose both the sentences of imprisonment and a fine on any person convicted by it; having regard, in the instant case, to the fact that the appellant was serving twelve years’ imprisonment with hard labour, the quantum of the fine was too much. Accordingly, the appeal against the sentence of the trial tribunal would be allowed and the court would substitute therefore a sentence of twelve years’ imprisonment with hard labour and a fine of ¢2 million or in default three years’ imprisonment.

CASES REFERRED TO

(1) Iriri v Erhurhoban (1991) 1 WASC 428.

(2) Benmax v Austin Motor Co Ltd [1955] AC 370; [1955] 2 WLR 418; [1955] 1 All ER 326, HL.

(3) Abono v Sunkwa [1962] 1 GLR 154, SC.

NATURE OF PROCEEDINGS

APPEAL by the appellant against his conviction and sentence by the National Public Tribunal on a charge of possessing narcotic drugs contrary to section 2(1) and (2) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236). The facts are sufficiently set out in the judgment of Acquah JA.

COUNSEL

J O Amui for the appellant.

Anthony Gyambiby, Senior State Attorney, for the Republic.

JUDGMENT OF ACQUAH JA.

This is an appeal against the judgment of the National [p.405] Public Tribunal dated 3 April 1991 wherein the appellant was convicted for possessing narcotic drugs contrary to section 2(1) and (2) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), and sentenced to twelve years’ imprisonment with hard labour and a fine of ¢5 million or in default ten years imprisonment with hard labour.

The facts are that a team of five police and five civil defence organisation personnel acting on a tip-off rushed to the Ginseng Restaurant and Night Club, Asylum Down at about 4.00 am. The club was closed and so they ordered the watchman to take them to the residence of the proprietors. The watchman therefore took them to house No 38/4, Coconut Avenue, Asylum Down. The watchman knocked at the main gate and one Samuel Ameyaw came out. Later the appellant too emerged from his room. The team introduced themselves to them and made known their mission. They allowed Ameyaw and the appellant to search them. Thereafter they began their search from room to room for narcotic drugs. In Ameyaw’s room the team found $14,000 which Ameyaw claimed ownership of and produced the relevant covering documents. In the course of searching the appellant’s room, a polythene bag containing oval shaped balls was discovered. According to the first prosecution witness, when he questioned the appellant about it he claimed it belonged to a friend called Stephen Yaw Amoako. It was later opened in the presence of the appellant and found to contain 134 oval shaped balls. The appellant and Ameyaw were taken to the police station. All attempts to apprehend this Stephen Yaw Amoako proved futile. Consequently, the appellant and Stephen Yaw Amoako were charged before the National Public Tribunal for:

“Statement of Offence:

Possession of Narcotic Drugs, contrary to section 2(1) and (2) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236).

Particulars of Offence:

Charles Kofi Osafo, businessman of Accra and Stephen Yaw Amoako of no known address on or about 25 May 1990 in Asylum Down in Accra in the Greater Accra Region and within the jurisdiction of this tribunal had in your possession, without lawful authority 134 oval shaped balls containing 919.94 grammes of heroin.”

At the trial the prosecution called three witnesses, two of whom—first [p.406] and second prosecution witnesses—took part in the operation at the premises of the appellant. These two witnesses recounted how the operation was carried out and how the drugs were discovered under the bed in the room of the appellant. The main difference in their evidence relates to the appellant’s reaction to a question about the ownership of the polythene bag when it was discovered.

For whereas the first prosecution witness said that the appellant replied that the polythene bag belonged to his friend, the second prosecution witness said that the appellant kept mute. The last prosecution witness, the third prosecution witness, was the investigation officer. He testified that because the appellant alleged that the polythene bag was in a bag brought to him on 24 May 1990 for safe-keeping by his friend, one Stephen Yaw Amoako, who he alleged was travelling the following day to Amsterdam, police wireless message was immediately sent throughout all entry points of this country for the arrest of anyone bearing the said name. Consequently, someone bearing the name of Stephen Yaw Amoako was arrested at the Aflao border, brought down to the Narcotic Unit, CID headquarters for identification. But the appellant said he was not that friend of his. He said the appellant was also taken to his house where he pointed out a blue bag, among a number of bags, as being the said bag of this friend Amoako. A number of items were found in this blue bag, including an identity card bearing a picture and particulars of this alleged Stephen Yaw Amoako. There were also two letters requesting for visas from the American and British embassies; clothing, and footwear.

On the identity card, Stephen Yaw Amoako was described as a native of Kumso in the Brong Ahafo Region. He therefore went to search for such a town in that region. But he found no such town. It was rather in the Ashanti Region that he found a town called Kumso. But from the local police and others, he was told that no such person was known there. He said his boss also made inquiries at the British and American embassies, and nothing came out about this friend Amoako. He was not known in any of them. He then tendered without objection three statements made by the appellant on 26 May 1990, 2 June 1990 and 18 July 1990.

In his defence, the appellant testified that a friend of his called Stephen Yaw Amoako came to his house on 24 May 1990 at about 10.30 pm and wanted to pass the night. He Amoako told him that he was travelling the following day to Amsterdam. Unfortunately his girlfriend was with him and so he left his bag in his care and went to find a hotel. He, the appellant, then went to bed. At about 4.30 am on 25 May 1990 the police and civil defence organisation personnel came to search his house. They [p.407] found a wrapped rubber material in the bag of Stephen Yaw Amoako. He was then taken to Ginseng Night Club and subsequently to the Police Headquarters. Later he was sent back to his house for Amoako’s bag. He said this Amoako is a casual friend whom he first met at the Makola market, and that he had never been to Amoako’s home-town. Under cross-examination, he was emphatic that the polythene bag containing the 134 oval shaped balls was found in Amoako’s bag and not under his bed. He maintained that the drugs belonged to this Amoako.

In its judgment the trial tribunal rejected the appellant’s story that the drugs were found in the bag of Amoako. It accepted the evidence of the two prosecution witnesses, the first and second prosecutions witnesses, that the drugs were found under the bed of the appellant. It further held that the drugs were found under the bed of the appellant. It further held that the drugs belonged to the appellant and that he knew the nature and quality of these drugs. It further explained that the first prosecution witness’ evidence that when he inquired from the appellant about the ownership of the drugs, he said they belonged to his friend, is not inconsistent with that of the second prosecution witness’ version that the appellant was mute when he also asked him the same question. For the two questions were not asked at the same time. It further held that having regard to the fruitless efforts made by the police to trace the said Amoako, either this Amoako never existed and was a figment of the appellant’s own imagination or if he existed, he was an active participant in the drug deal. The tribunal accordingly discharged and acquitted Stephen Yaw Amoako. But found the appellant guilty of the offence and convicted him. He was sentenced to twelve years’ imprisonment with hard labour plus a fine of ¢5 million or in default ten years’ imprisonment with hard labour.

It is this judgment that the appellant invites us to quash and thereafter acquit and discharge him. Arguing on behalf of the appellant learned counsel, Mr. J O Amui, attacked first, the law under which the appellant was charged; then the findings on which the conviction was founded; and finally the propriety of the sentence imposed on his client.

In respect of his first submission, Mr Amui pointed out that from the particulars of the offence as set out in the charge sheet, the offence took place on 25 May 1990. But PNDCL 236 under which the appellant was charged was gazetted, according to the date of the Gazette notification, on 13 July 1990. In his view, therefore, PNDCL 236 came into force on 13 July 1990. The relevant law under which the appellant ought therefore to have been charged is the Pharmacy and Drugs Act, 1961 (Act 64) and not PNDCL 236. Replying on behalf of the Republic, learned counsel, Mr Gyambiby, submitted that under the Provisional National Defence Council Government, Laws made took effect from the date they were signed and [p.408] not the date of Gazette notification, unless a contrary intention is expressed in the particular Law. Consequently, since PNDCL 236 was signed on 24 May 1990 and no contrary intention was expressed therein the appellant was properly charged under PNDCL 236.

Now section 4(5), (6) and (7) of the Provisional National Defence Council (Establishment) Proclamation, 1981 reads:

“(5) The exercise of the power of the Council to make Laws may be signified under the hand of the Chairman or such other member or members of the Council as the Council may authorise.

(6) Every Law made by the Council shall unless otherwise provided in that Law, come into force on the date it is made.

(7) Every Law made by the Council shall as soon as practicable after it is made be published in the Gazette.”

It is quite clear from the above provisions that the submissions of Mr Gyambiby are correct. Consequently, we hold that unless otherwise provided in any particular Law, Laws made by the PNDC took effect from the date the Law was signed and not from the date of Gazette notification. Thus PNDCL 236 having been made on 24 May 1990 came into effect on that date. And once it is conceded that the offence herein was committed on 25 May 1990, we are firmly of the view that he was properly charged under that Law.

Mr Amui’s submissions against the findings of fact of the tribunal were meant at establishing that the appellant had no legal possession of the drugs notwithstanding the fact that same were found in his room. He argued that the appellant’s version, which he consistently maintained througout the trial, was that the drugs were found in the bag of Amoako and that the drugs belonged to Amoako. He argued that from the identity card and other items in the bag of Amoako, the tribunal ought to have found that Amoako indeed existed.

He further argued that the drugs were indeed found in Amoako’s bag. He contended that if the tribunal had accepted the version of the appellant he would have been acquitted. In counsel’s view, the second prosecution witness’ evidence that the appellant kept mute when he asked him of the ownership of the polythene bag, contradicted the first prosecution witness’ evidence that the appellant said the drugs belonged to a friend. He argued that they are not truthful witnesses and the tribunal ought not to have accepted their version. In accepting their version, the tribunal was unfair and thereby caused substantial injustice to the appellant. Replying, Mr Gyambiby argued that the tribunal took into consideration the circumstances surrounding the search and discovery of the drugs. He said [p.409] the police had a tip-off and their tip-off was confirmed by what they discovered. Clearly then, counsel continued, there is no need for anyone to believe that the first and the second prosecution witnesses would concoct a story. He argued that there was no inconsistency as alleged and that the tribunal rightly found so. Counsel further argued that having regard to the fruitless efforts made by the police to trace the alleged Amoako, the tribunal was right in concluding that the said Amoako was a figment of the appellant’s own imagination. But even if this Amoako existed, counsel submitted, this would not by itself have exonerated the appellant. He finally urged us not to disturb the findings of the trial tribunal.

It is well settled that there is a presumption that the decision of a trial court on the facts is correct. And indeed where the findings of fact are matters peculiarly within the exclusive jurisdiction of the trial court, like findings relating to the credibility of witnesses, the Court of Appeal has no jurisdiction to interfere by substituting its own views. As Balgore JSC lucidly explained in the Nigerian case of Iriri v Erhurhoban (1991) WASC 428:

“The trial court hears the evidence of the parties and their witnesses. This opportunity allows the trial court to assess the witnesses whose evidence in chief, answer to cross-examination give the court the opportunity to assess each witness for demeanour, truthfulness, credibility and reliability. No appellate court has this opportunity as that court sees only the written record. The appellate court can therefore not substitute its eyes, ears and mind for that of the trial court in assessing the evidence. Therefore believing or disbelieving a witness or a piece of evidence is in the exclusive competence of the trial court and where such belief and disbelief is clearly supported by evidence on record, the appellate court should not interfere in such finding.”

However, where the findings do not depend upon the credibility of witnesses and the disputed issue depends upon inference to be drawn from proved facts, an appellate court is in the same position as the trial court to evaluate the evidence and set aside that of the trial court where the trial court made wrong inference from the proved facts. Thus Lord Reid in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326 at 329, HL said:

“But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court [p.410] is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

In the instant case, there is no dispute that the drugs were found in the appellant’s room. Whereas the prosecution witnesses allege that the drugs were found under the appellant’s bed the latter alleges that they were found in a bag he claims to belong to one Stephen Yaw Amoako. The tribunal after examining the evidence on record believed the prosecution’s version and held that the drugs were found under the appellant’s bed; and that whether he was in association with Mr Stephen Yaw Amoako or not, he knew the nature and quality of the said drugs. The tribunal made these findings because in its view the appellant failed to discharge this burden as far as his defence was concerned.

Now although the appellant has no burden to prove his innocence, once he admits that the drugs were found in his room, but proceeds to exonerate his possession, he has a legal obligation to lead such evidence as to cast doubt on the case of the prosecution. For as section 11(3) of the Evidence Decree, 1975 (NRCD 323) provides:

“(3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.”

The appellant’s version of the incident was that when his friend Amoako came down to his house about 10.30 pm on 24 May 1990, his girlfriend was asleep in his room. The appellant testified on this as follows:

“A When he [ie Amoako] arrived we chatted in the corridor so when I collected the bag after seeing him off, I was feeling sleepy so when I entered the room I placed it just by the bed and slept.

Q Where was your girlfriend?

A She was asleep at the time.”

And indeed according to the appellant when the team arrived for the search he himself was still sleeping. He said:

“At about 4.30 am I was asleep when I heard a knock on the door in the corridor. I woke up, opened my door and entered the corridor …Four policemen came to my room while another four went to my [p.411] brothers room…I opened the drawers of my dressing mirror which were searched by the officers. They also searched my wardrobe. I brought down all my bags and they were searched. My mattress was lifted and a search conducted under the bed.”

From the appellant’s own mouth, therefore, there was his girlfriend asleep in his room at the time this Amoako came down at about 10.30 pm. He, after chatting with Amoako, came to his room with Amoako’s bag, and slept. He woke up when the police came to the house at dawn and searched him and even lifted his mattress and searched under his bed. The question is: where was this girlfriend during the lifting of the mattress and the search under the bed? Indeed, the first and second prosecution witnesses and the appellant never alluded to the presence of any girl in the house during the search. Thus like the mystery surrounding the identity of Stephen Yaw Amoako who is alleged to own the drugs, we have another mystery surrounding the whereabouts of a girlfriend because of whom Stephen Yaw Amoako could not spend the night with the appellant. In our view, such punctuation marks in the appellant’s attempt at explaining his possession would have the tendency of discrediting him in resolving issues based on his credibility.

Now the issue as to whether the polythene bag containing the drugs was found under the bed or in the alleged bag of Amoako boils down to the credibility of the prosecution witnesses vis-a-vis that of the appellant. And the trial tribunal which saw and heard them, having believed the prosecution witnesses, we, at the appellate court are not prepared to interfere. As the Supreme Court per van Lare JSC held in Abono v Sunkwa [1962] 1 GLR 154 at 156, SC: “It is not a function of a Court of Appeal to disturb a finding where credibility of witnesses had been in question.”

Now from the finding that the polythene bag was found under the bed, it follows that the appellant sought to conceal the drugs because he knew how important they were. In other words, he knew the nature and quality of the drugs. So the tribunal rightly found. It is therefore immaterial whether the drugs belonged to the appellant or the said Amoako. The tribunal’s further finding that this Amoako might not be existing, though in our view unjustified in the face of the identity card and the other items found in the blue bag, does not derogate from the case of the prosecution. For the gravamen of the offence is possession and not ownership of the drugs. Section 2(1) of PNDCL 236 reads: “2.(1) Any person who, without lawful authority, proof of which shall be on him, has in his possession or under his control any narcotic drug commits an offence.”

[p.412]

(The emphasis is mine.) It is therefore not enough to allege that the drugs belong to someone else. One must go further and establish that he did not know the nature and quality of the drugs.

We have noted the tribunal’s explanation of the difference between the evidence of the first prosecution witness and that of the second prosecution witness on the appellant’s reaction when each of them questioned him about the ownership of the drugs, and although we agree that both the first and the second prosecutions witnesses did not ask the question at the same time, we find it difficult to accept that in the presence and obviously to the hearing of both, the appellant will react differently to the same question put to him by each of these witnesses. Be that as it may, we are of the view that this aspect of their evidence is not enough to discredit their entire evidence, especially as the appellant admits substantial part of their evidence.

We are consequently unable to uphold Mr Amui’s submissions against the findings of the tribunal. We are satisfied that there was evidence on record to justify the finding that the drugs were found under the bed, and that the appellant knew the nature and quality of the said drugs.

Mr Amui’s submission on the propriety of the sentence is based on his earlier argument that since the date of the Gazette notification of PNDCL 236 is 13 July 1990, and the offence herein was committed on 25 May 1990, the appellant ought not to have been sentenced under PNDCL 236. We have demonstrated that this argument is untenable having regard to sections 5, 6 and 7 of the Provisional National Defence Council (Establishment) Proclamation, 1981. Mr Amui however argued further in the alternative that should we hold that PNDCL 236 was the proper law, the fine of ¢5 million or in default ten years’ imprisonment with hard labour in addition to the twelve years’ imprisonment with hard labour rendered the sentence excessive. Mr Gyambiby conceded to this. Now the minimum sentence for an offence under section 2(1) of PNDCL 236 is ten years’ imprisonment with hard labour. And although section 16(2) of PNDCL 78 empowers the trial tribunal to impose both the sentence of imprisonment and a fine on any person convicted by it, we are of the opinion that the quantum of the fine was too much having regard to the fact that the appellant is also serving twelve years’ imprisonment with hard labour.

In the end, we dismiss the appeal against the conviction. We allow the appeal against the sentence, and set same aside. In its place we substitute a sentence of twelve years’ imprisonment with hard labour and a fine of ¢2 million or in default three years’ imprisonment with hard labour. [p.413]

The sentences are to run concurrently and to take effect from the date of conviction.

JUDGMENT OF ESSIEM, JA.

I agree.

JUDGMENT OF FORSTER, JA.

I also agree.

DECISION

Appeal against conviction dismissed.

Appeal against sentence allowed and fine reduced.

D R K S

PREMPEH v AGYEPONG [1993-94] 1 GLR 255—279.

SUPREME COURT, ACCRA

26 JANUARY 1993

FRANCOIS WUAKU, AMUA-SEKYI, AIKINS AND BAMFORD-ADDO JJSC

Wills—Construction—Intention of testator—Devolution under statutory or customary law—Section 49(1) and (2) of Act 372 empowering courts for purposes of devolution to be guided by customary or personal law unless contrary intention shown—Deceased excluding the application of customary law to devolution of his estate in draft will—Draft will failing to meet requirements of a will—Whether trial judge justified in accepting failed draft will as samansiw—Whether samansiw has to be death-bed declaration to be effective—Wills Act, 1971 (Act 360)—Courts Act, 1971 (Act 372), s 49(1) and (2).

Succession—Intestacy—Customary sucessssor—Title to property—Deceased survived by children—Children with interest in estate under PNDCL 111—Customary successor defending house forming part of estate against a stranger—Court declaring title in house in customary successor—Whether declaration sustainable—Intestate Succession Law, 1985 (PNDCL 111).

Succession—Intestacy—Surviving spouse—Claim by—Provisions of PNDCL 111 applicable to surviving spouse—Proof of marriage to deceased prerequisite for benefitting under PNDCL 111—Appellant and deceased in concubinary relationship—Whether appellant entitled to claim as a surviving spouse—Evidence Decree, 1975 (NRCD 323)—PNDCL 111—Customary Marriage and Divorce Registration Law, 1985 (PNDCL 112).

HEADNOTES

The testator, a lawyer, lived with the appellant as his girlfriend in the house in dispute. After his death, the appellant claimed the house as her personal property. The respondent, the customary successor of the testator, therefore brought an action against her for, inter alia, a declaration that the house formed part of the estate of the testator. Although the trial judge found that the house was the self-acquired property of the testator, he nonetheless gave judgment for the appellant because he held that exhibit 1, a draft will which the testator had had his clerk type for him but which he had neither signed nor had witnessed, constituted a valid samansiw under which the property had passed to the appellant. Aggrieved by that decision, the respondent appealed to the Court of Appeal on the grounds, inter alia, that since the deceased had in exhibit 1 specifically expressed his intention to exclude the application of any customary rule to the construction and/or implementation of the contents of that document, the trial judge erred in accepting it as a valid samansiw or parole will enforceable at law. At the hearing of the appeal, the appellant, on the ground that the deceased had referred to her as his wife in exhibit 1 brought an application to amend her pleadings and claim as a widow under the Intestate Succession Law, [p.256] 1985 (PNDCL 111). The court found that (i) the appellant had not been married to the deceased; and (ii) exhibit 1 did not satisfy the requirements of samansiw under customary law. It therefore dismissed the appellant’s application, allowed the respondent’s appeal and declared title to the house in dispute in the respondent: see Prempeh v Agyepong [1989-90] 2 GLR 407, CA. On appeal by the appellant to the Supreme Court from that decision,

Held, dismissing the appeal:

(1) the cardinal principle in the construction of wills was that, they should be so construed as to give effect to the intention of the testator, since the whole essence of a will, in any case, was the declaration of the wishes and intention of the testator. In Ghana there were two forms of wills, one under the Wills Act, 1971 (Act 360) and the other under customary law. Since the ingredients required to establish any of those two forms of wills were different, it was incumbent on the court to determine the intention of the testator as to which of those two wills he contemplated to adopt. In the instant case, the initial expression of the deceased in exhibit 1 indicated that he had intended to make a will under Act 360 and not samansiw, because he had specifically excluded a will under customary law and in any case at the time of writing exhibit 1 the deceased did not have any fear of imminent death. Accordingly, exhibit 1 which had failed as a will for not fulfilling the requirements of Act 360, could not be honoured as a samansiw. Dicta of Lord Macnaghten in Crumpe v Crumpe [1900] AC 127, HL and of Lord Thankerton in Perrin v Morgan [1943] 1 All ER 187, HL applied.

Francois JSC dissenting in part. There has been a tendency to graft on to the samansiw the trappings of a death-bed gift. Thus its purely nuncupative effect as an oral will has been qualified by the insistence of proof of an imminent fear of death. I think it is an error.

(2) Since the deceased had children who might have statutory claims in his estate under the Intestate Succession Law, 1985 (PNDCL 111), the decision of the Court of Appeal declaring title in the disputed house in the respondent, ie the customary successor, was premature and could not be legally sustained. That declaration would therefore be set aside.

(3) Bamford-Addo and Aikins JJSC. Under section 15 of the Customary Marriage and Divorce Registration Law, 1985 (PNDCL 112) it was provided that PNDCL 111 should apply to any spouse registered under PNDCL 112. Accordingly, in order for a claimant to benefit under PNDCL 111, such a claimant had to prove the existence of a valid Ordinance or customary law marriage as a matter of law. Concubinage was however not the same as a valid marriage. And although an inference of marriage could also be made in certain circumstances under the Evidence Decree, 1975 (NRCD 323), in the instant case, marriage was never an issue; neither was it pleaded nor satisfactorily proved. In the circumstances, no presumption of marriage could be made or inferred in accordance with law. Consequently, the Court of Appeal rightly refused the appellant’s application to benefit as a surviving [p.257] spouse under the provisions of PNDCL 111. Yaotey v Quaye [1961] GLR (Pt 11) 573 and In re Blankson-Hemans (Decd); Blankson-Hemans v Monney [1973] 1 GLR 464 cited.

CASES REFERRED TO

(1) Prempeh v Agyepong [1989-90] 2 GLR 407, CA.

(2) Brobbey v Kyere (1936) 3 WACA 106

(3) Otoo (Decd), In re (1927) D Ct ’26-’29, 84.

(4) Hausa v Hausa [1972] 2 GLR 469, CA.

(5) Armah (Decd), In re; Awotwi v Abadoo [1977] 2 GLR 375, CA (full bench)

(6) Sugden v St Leonards (Lord) (1876) 1 PD 154; 45 LJP 49, CA.

(7) Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187; 112 LJCh 81. HL.

(8) Crumpe c Crumpe [1900] AC 127; 69 LJPC 7; 82 LT 130, HL.

(9) Dove v Wuta-Ofei [1966] GLR 299, SC.

(10) Akyirefie v Paramount Stool of Breman-Esiam (1951) 13 WACA 331.

(11) England v Palmer (1955) 14 WACA 659

(12) Yaotey v Quaye [1961] GLR (Pt II) 573.

(13) Sackitey’s Caveat, Re [1962] 1 GLR 180.

(14) Blankson-Hemans (Decd). In re; Blankson-Hemans v Monney [1973] 1 GLR 464.

(15) Marfo v Adusei [1963] 1 GLR 225, SC.

(16) Abinabina (Stool) v Enyimadu (1953) 12 WACA 171, PC.

(17) Ampoma (Decd), In re; Oppong v Oppong [1989-90] 1 GLR 83

(18) Armah (Decd), In re; Awotwi v Abadoo [1975] 1 GLR 374, CA.

NATURE OF PROCEEDINGS

APPEAL by the appellant from the decision of the Court of Appeal in favour of the respondent wherein it reversed the judgment of the trial court in favour of the appellant wherein it declared a draft written document as a valid customary testamentary disposition. The facts are fully stated in the judgments of the court.

COUNSEL

Monica Quayson (Mrs) for the appellant.

Djabanor (with him W A N Adumua-Bossman) for the respondent.

JUDGMENT OF FRANCIOS JSC.

There is only one issue of importance in this matter and that is whether the appellant is entitled to the disputed house No 24, Block B, Asokwa, Kumasi under the beneficial dispensation of samansiw. Two other matters have been debated but they are inconsequential and may be [p.258] dismissed briefly. First, is the appellant’s proprietary claim to the disputed house with the correlated request that the court treat the deceased as a trustee acting in her interest whenever title was in issue. The facts belie such a claim. The trial judge made a clear and decisive finding that the vendor-owner sold the property to the deceased who purchased it in his own right. The judge was amply supported by the appellant’s own witness, as also the claim pressed by the deceased himself in exhibit C. The rejection of the appellant’s claim in the court’s conclusion which I quote below, cannot be successfully impugned. The judge said:

“I find that from the totality of the evidence that the offer for sale of the house in dispute was made to the late Joseph Kwasi Prempeh and that he negotiated with the First Ghana Building Society in his own right and not as the agent of the defendant. I also find as a fact that the late Joseph Kwasi Prempeh financed the purchase of the house from his own resources… [T]he house in dispute was the self-acquired property of the late Joseph Kwasi Prempeh.”

If the appellant was dissatisfied with this conclusion it is perplexing that she did not cross appeal: see Prempeh v Agyepong [1989-90] 2 GLR 407, CA. Indeed, to invoke the Intestate Succession Law, 1985 (PNDCL 111) to reap a benefit derived from a deceased spouse’s estate or even to claim under samansiw is to acknowledge a lack of proprietary interest in oneself, and amounts to an acquiescence in the trial judge’s findings. As this aspect of the matter was not reagitated in a cross appeal, it must be deemed abandoned. It cannot be resurrected now.

The second issue, arising from the statutory effect of PNDCL 111, derives its viability from proof of a recognised marriage. The respondent at the trial described the appellant as a mere girlfriend of the deceased who at the time was lawfully married to one Christie. There was no cross-examination of this. The appellant herself, in paragraph (4) of her amended statement of defence, did not put her relationship with the deceased higher than that of “friends”, which made no attempt to answer the averment in paragraph (3) of the statement of claim that the relationship had never “ripened into marriage either under the customary law or under the Marriage Ordinance, Cap 127 (1951 Rev).”

When she had the opportunity to put the record straight, the appellant stated under oath that the deceased was a family friend; she and the deceased “became friends and later lived as man and wife.” The expression “living as man and wife” is as loose and inconclusive as can be imagined. It covers a multitude of relationships and only describes an existence of cohabitation rather than connubiality. The description is [p.259] equally apt in describing the relationship of paramours as also those bonded in holy wedlock. It is colourless. the issue of marriage vel non was, however, never a critical one at the trial court where all at stake was title to a disputed house. It would be wrong for the court therefore to foreclose any future attempts at a proper definition of the appellant’s marital status. That aspect of the matter must remain open to be determined in an appropriate forum.

A claim under statute, ie PNDCL 111, cannot be summarily dismissed. It must be seriously debated. The issue of marriage was only referred to purely to reject it as an issue of consequence in the determination of this appeal. It follows that the attempt to halt the proceedings in this appeal, and to compel a pronouncement on PNDCL 111 as to the rights of members of the deceased’s family under that Law, at this late stage, must fail.

It is not denied that the deceased had children who may have a statutory claim under PNDCL 111, They cannot be prevented from urging their claims elsewhere. It follows further from this, that the judgment of the Court of Appeal declaring title in the disputed house in the respondent has jumped the gun and cannot be legally sustained. The existence of children of the deceased totally undermines the legal viability of such a declaration. I would set it aside.

Finally, I turn to the only question of relevance in this appeal, namely the viability of the samansiw alleged to have been made by the late Joseph Kwasi Prempeh. A brief survey of the facts needs to be made. The appellant and the deceased were close friends living in the most intimate relationship. The deceased attempted to make a will when he had premonition about his future. That will failed for not fulfilling the requirement of the Wills Act, 1971 (Act 360) in a number of particulars. It is however being suggested by the appellant that the intentions of the testator, as gleaned from his inchoate will dictated to his clerk, should be honoured as a valid samansiw.

The Court of Appeal roundly rejected any attempt to rescue a failed will on the wings of a samansiw. That is a stance I indorse. From tradition and history the two are different. An oral declaration before witnesses is the start of samansiw. The witnesses to a samansiw must necessarily be privy to the deceased’s wishes regarding distribution of his estate to enable them attest fully to the devises in the future, whereas witnesses to a will are completely ignorant of its contents. Accordingly, a clerk who is merely to type the intentions of a testator cannot claim to have participated at a solemn ceremony where a testators last wishes are publicly proclaimed. The clerk typist may not necessarily be an attesting [p.260] witness to a will. He merely performs the duty of typist.

The older cases illuminate this distinction; and it seems in earlier times a choice had to be made; sometimes there was no choice. Prof Allott in his Essays in African Law at p 243 states of a testator:

“If he wishes to leave his property by will, he can either make an oral declaration in front of witnesses (samansiw) according to native customary law, or make a written will in English form.”

The learned author hastened to add that it did not mean a samansiw could not be confirmed in writing. But when this was done, it did not convert the samansiw into a will. The different concepts retained their separate identities. Thus in Brobbey v Kyere (1936) 3 WACA 106, the confirmation of a samansiw in writing did not empower the legatee to claim a right of inheritance under an English will.

There has been a tendency to graft on to the samansiw the trappings of a death-bed gift. Thus its purely nuncupative effect as an oral will has been qualified by the insistence of proof of an imminent fear of death. This operated very forcibly in the minds of the Court of Appeal bench. I think it is an error. Sarbah in his Fanti Customary Laws (2nd ed) at p 85, grafted no such qualification on samansiw. He said:

“It is not only on the death-bed that a man can make testamentary disposition. A person can make his testamentary disposition while enjoying perfect health; but at the time it is made, the witnesses must be distinctly told by him, his words are his samansiw, to take effect after his death.”

I consequently do not share the conclusion of the Court of Appeal that the samansiw failed because it was not made in contemplation of death.

Another difference which Prof Allot states in his book, restricts the power to make a samansiw to those not married under the Marriage Ordinance, Cap 127 (1951 Rev). At p 236 of Essays in African Law, Prof Allot gives us the benefit of his research as follows:” Apparently a party to an Ordinance marriage can only make a will in English form, and loses his power to make an oral customary will (samansiw among the Akan).” Prof Allot cites Otto (Decd), In re (1927) D Ct ’26-’29, 84 in support. He doubts the viability of this judgment and articulates his reservations in this passage: “But the reasons of Michelin Ag. C.J. for asserting this rule are not made explicit; and one takes leave to doubt whether such a rule is required by the law or is desirable on other grounds.” See also p 240 of Essays in African Law, where he reaffirms the rule alongside his quaere. Be that as it may, this rule prevailed in the colonial Gold Coast.

[p.261]

Customary law is constantly changing especially in the area of nuncupative wills. The social and economic demands of the day have forced the pace. The ancient requirements regarding the kinship quality and plurality of witnesses, and the giving of aseda (thanks) to seal a legacy, have all suffered change. The courts in recent times have rejected or pruned very thinly these requirements—talking care not to throw away the baby with the bath water, to use the celebrated expression. Thus the pristine formulations of Sarbah, Rattray and Ollennu have had to yield to three simple rules, namely self-acquired ownership in the testator, his sanity at the time of the declaration and attestation by credible, disinterested witnesses, two at least in normal circumstances, but one permissible in extreme exigencies:see Hausa v Hausa [1972] 2 GLR 469, Ca and In re Armah (Decd); Awotwi v Abadoo [1977] 2 GLR 375, CA (full bench).

Tested by this current definition and the facts outlined above, I cannot see that Joseph Prempeh’s abortive will can be resurrected as a samansiw. I uphold the Court of Appeal’s final conclusion rejecting a samansiw. Save for the reservations made in this judgment, I will accordingly dismiss the appeal.

JUDGMENT OF WUAKU JSC.

In my opinion, the only issue raised in this appeal which needs serious consideration is whether exhibit 1 could be regarded as a samansiw according to law. Exhibit 1 to my mind consists of two separate documents. In my judgment, I will refer to the two typed sheets of paper with the handwritten corrections therein made as exhibit 1 (a) and the one sheet of handwritten paper as exhibit 1(b).

Exhibit 1(a) is the draft will of the late Joseph Prempeh which Paul Mainoo prepared sometime in June 1979 upon the instructions from the late Joseph Prempeh. Exhibit 1(b) is the result of what happened on Sunday 15 July 1979 when the late Joseph Prempeh invited his clerk Paul Mainoo to his house. This is what in part, Paul Mainoo, the late lawyer Joseph Prempeh’s clerk said:

“As soon as I arrived, the late Joseph Prempeh told me that he nearly died the previous day so I should help him in finishing his will. He brought out exhibit 1 which I had typed previously. He told me that he had made some corrections and he would like to add more. He pulled out a plain sheet and pen and gave them to me. He asked me to start writing. He dictated to me. I wrote half of the sheet. He took the pen and the sheet from me. Thereafter he continued writing from where I reached.”

[p.262]

A careful examination of exhibit 1(b) in the record of the proceedings shows that it has two different handwritings on it: From the top, lines one to twelve ending with “William Prempeh” are different from the lines continued with “The Piano.” In my opinion, the first twelve lines must be that of the witness and the rest that of the deceased. From the evidence, what he had described were the documents that he gave to Mr. Justice Prempeh. Mr. Justice Prempeh gave evidence as the first defendant witness; hence the document were tendered as exhibit 1.

Paul Mainoo continued his evidence by saying that this master on 15 July 1979 gave him a cheque to be cashed and after making some expenses to bring back to him ¢1,000. The late Joseph Prempeh also told him that “he would go to rest at Dr. Asafo-Adjei’s Clinic.” On the morning of 16 July 1979, the late Joseph Prempeh sent for Paul Mainoo and warned him “to hurry with the typing of the will”. Paul Mainoo went and cashed the cheque and decided to go to give the ¢1,000 to the late Joseph Prempeh at Dr Asafu-Adjei’s Hospital (clinic). On reaching the hospital, he was told by a nurse that Joseph Prempeh had died. He saw Dr Asafo-Adjei and gave the ¢1,000 to him to keep. He also went to Mr Justice Prempeh and told him about the death and mentioned the documents to him. According to him he handed the documents which are described as exhibit 1 to Mr. Justice Prempeh the following day.

The trial judge has held that the second defendant witness, Paul Mainoo had impressed him as an honest and trustworthy person and consequently a credible witness. Upon that the trial judge accepted exhibit 1 as a samansiw relying on In re Armah (Decd); Awotwi v Abadoo [1977] 2 GLR 375, CA (full bench). What constitutes a valid samansiw is stated therein and I need not go over that.

I consider the evidence of Paul Mainoo as very crucial in the determination of this appeal. A careful reading of what I have described as exhibit 1(a) clearly shows that what the late Joseph Prempeh intended to do was to make a will according to law but not a customary will or samansiw. He therefore invited Paul Mainoo to continue or finish his will by adding what I have described as 1(b). Paul Mainoo’s own evidence was that Joseph Prempeh said he had made corrections and wanted to add more. If 1(b) had been with Joseph Prempeh before 15 July 1979, he would not have simply said he made corrections, but that he made corrections and added more. I think that what this court has to do is to ascertain from the expressed words in exhibit 1 as a whole what is the true intent of Joseph Prempeh. What I have described as exhibit 1(b) cannot be divorced from 1(a). Consequently, I also hold the view that exhibit 1 cannot qualify as samansiw.

[p.263]

Another matter which had agitated my mind is that, reading through exhibit 1, it could be seen that Joseph Prempeh had shown a genuine desire to make a proper disposition of his self-acquired properties. Mr Justice Prempeh said that the only dispute about exhibit 1 was that it was not signed by Joseph Prempeh.

The English case of Sugden v Lord St Leonards (1876) 1 PD 154, CA came to my mind. That was the case where a testator made a will followed by eight codicils. The original will was lost or could not be traced after the death of the testor. The testator in his lifetime had often disclosed the contents of the will to the Hon Charlotte Sugden, the only unmarried daughter of the testator and who had lived with the testator for many years prior to and up the time of his death. The testimony of the single witness was should reliable and trustworthy and the oral evidence was admitted together with the codicils to probate. In this present case, there was no proper will to begin with, the defendant is relying on documentary evidence which does not meet the requirements of the law. Exhibit 1 at best was an attempt by Joseph Prempeh to make a will which had failed. Thus he died intestate.

In conclusion, I also agree that the appeal be dismissed and also that the Court of Appeal decision (see Prempeh v Agyepong [1989-90] 2 GLR 407, CA) declaring title in the plaintiff be varied.

JUDGMENT OF AMUA-SEKYI JSC.

I am of the opinion that the Court of Appeal showed a better appreciation of the law when they held that the court could not ignore the expressed intention of the late Prempeh and construe what he set out to do as the making of a customary will or samansiw: see Prempeh v Agyepong [1989-90]2 GLR 407, CA.

Before 1971 the English Wills Act, 1837 applied here as a statute of general application. A statement in a will that it was to be construed in accordance with English law was no more than a recognition of this fact. Now, it must be taken as an intention that its successor, the Wills Act, 1971 (Act 360) is to apply. This is perfectly in order as the Courts Act, 1971 (Act 372), s49, r2 permits a person to decide that the devolution of his estate shall be governed by statute rather than by customary law. When, therefore, in the document of 1979 Prempeh declared that it was to be “interpreted in accordance with English law and any law or custom to the contrary notwithstanding” he excluded the making of a customary will. You simply cannot interpret a customary will in accordance with English law.

[p.264]

As I see it, the only valid criticism that can be made of judgment of the Court of Appeal is that whereas the plaintiff asked for a declaration that the premises formed part of the intestate estate of the deceased the court declared it to be the family property of the plaintiff. Therefore, subject to an amended order in terms of the endorsement to the writ being made, I would dismiss the appeal. JUDGMENT OF AIKINS JSC.

The facts in this appeal have been stated by my learned sister Mrs. Bamford-Addo JSC and I do not think it is necessary that I repeat them. Several grounds of appeal were filed by counsel for the appellant, and these were fully argued by her in the statement of case filed on behalf of the appellant.

One of the grounds argued by counsel is that the Court of Appeal erred in law when it held: see Prempeh v Agyepong [1989-90] 2 GLR 407, CA that the learned trial judge had no power to save the void will against the expressed wishes of the testator, since the late Prempeh had expressed his intention that his will shall not be interpreted in accordance with any law or customary law but English law. Counsel argued that exhibit 1, containing the testamentary disposition of the late Prempeh’s property, was a valid samansiw and ought to have been enforced as such by the Court of Appeal, and that intention is not a requirement for determining the validity of either statutory will or samansiw (nuncupative will).

I have read the record carefully, but I have not been able to discern from my reading that what is written in ink on exhibit 1 was made on 15 July 1979 in the house of the late Prempeh when the second defendant witness, Paul Mainoo, reported there at the request of the deceased. In his evidence the second defendant witness said:

“As soon as I arrived, the late Prempeh told me that he nearly died the previous day so I should help him in finishing his will. He brought out exhibit 1 which I had typed previously. He told me that he had made some corrections and he would like to add some more.”

At this stage it is clear that the second defendant witness was not present when the deceased made the corrections on the draft will that the second defendant witness typed. Under normal practice such corrections could include additions in writing. The second defendant witness then continued his evidence:

“He pulled out a plain sheet and pen and gave them to me. He asked me to start writing. He dictated to me. I wrote half of the sheet. He took the pen and sheet from me. Thereafter he continued writing [p.265] from where I reached.”

One would expect from this sheet two completely different sets of handwriting; one by the witness and the other by his master. A close examination of pages 3 and 4 of exhibit 1 does not reveal these two sets of handwriting. As to the author of pages 3 and 4, the first defendant witness, the brother of the deceased, said it was the deceased who wrote them because it was in the deceased’s handwriting. This piece of evidence was not challenged, neither was any portion of it shown to him as different from the deceased’s handwriting, nor any suggestion made to him that any portion of it was written by the clerk, the second defendant witness. The sheet of paper containing the handwriting of the second defendant witness and that of the deceased was never tendered in evidence. It is in respect of this sheet that one may argue that it was written or said by the deceased in contemplation of death and in the presence of the second defendant witness. Nobody knows the contents of this sheet.

Since the two pages of typing on exhibit 1 was made in June 1979 and there is no record was to when the corrections and additions were made by the deceased before the exhibit was handed over to the second defendant witness on 15 July 1979, that document cannot pass as having been made or confirmed on 15 July 1979 and can only be regarded as an incomplete testamentary deposition or statutory will of the deceased. It cannot be regarded as the deceased’s “samansiw” or a valid nuncupative will enforceable according to customary law.

With respect to “intention”, I think what the Court of Appeal was stressing in Prempeh v Agyepong (supra) is that wills must be so construed as to give effect to the intention of the testator, and cited the English cases of Perrin v Morgan [1943] 1 All ER 187, HL and Crump v Crumpe [1900] AC 127, HL to buttress its contention. Lord Thankerton stated in the Perrin case (supra) at 195 the cardinal principle of construction of wills, which is also applicable in Ghana. He said; “In England, as in Scotland, the cardinal rule of construction of wills is that they should be so construed as to give effect to the intention of the testator….” And Lord Macnaghten in Crumpe v Crumpe (supra) at 132-133, HL said:

“In his will a testator may explain what he is doing, or what he means to do, by any form of words he pleases, provided he makes his meaning clear. Here, I think, the testator has made his intention clear. I find an indication of his intention in the first place in the revocation clause, but all the other circumstances point to the same conclusion.”

[p.266]

The Court of Appeal then continues in Prempeh v Agyepong (supra) at 414:

“Counsel for the [respondent] has argued that the court should interpret exhibit 1 in accordance with law irrespective of the intention of the testator. In other words, the court must propound the document as samansiw if it satisfies the ingredients of the law but must not look at the intentions of the testator. This submission is not only unfortunate but it is also bad in law. The maxim is, animus hominis est anima scripti (intention is the soul of an instrument). In fact, the whole essence of a will is the declaration of the wishes (intentions) of the testator. One cannot pass a document as a will or samansiw if it does not contain the intentions (wishes) of the maker.”

The court then referred to section 49(1) of the Courts Act, 1971 (Act 372) which states.

“49.(1)… the Court when determining the law applicable to an issue arising out of any transaction or situation, shall be guided by the following rules in which reference to the personal law of a person are references to the system of customary law to which he is subject or to the common law where he is not subject to any system of customary law…”

And rule 2 of the seven rules stated thereunder stipulates:

“Rule 2. In the absence of any intention to the contrary, the law applicable to any issue arising out of the devolution of a person’s estate shall be the personal law of that person.”

(The emphasis is mine.) The Court of Appeal then concluded at 416 as follows:

“When a judge therefore finds it possible to save a void statutory will by declaring it a valid samnasiw under customary law for the purpose of the devolution of the testator’s estate, he can do so, but only if the deceased has expressed no contrary intention to the applicability of the customary law or personal law.”

I, for my part, do not see anything wrong with the law as stated by the Court of Appeal. Apart from the fact that the whole gamut of a will is the declaration of the wishes or intention of the testator, since in Ghana there are two types of wills, one made under the Wills Act, 1971 (Act 360) and the other under customary law, the ingredients required to establish any of [p.267] these two forms of wills being different, it is incumbent upon the court to determine the intention of the testator as to which of these two wills he contemplated to adopt.

In my view, the initial expression of the deceased in exhibit 1, namely:

“I JOSEPH KWASI PREMPEH—Barrister-at-Law, Kumasi in the Ashanti Region of Ghana make this my last will and testament of my self-acquired bona fide properties herein.

I HEREBY revoke all former wills and codicils and other testamentary dispositions in whatever form and according to whatever custom hereinafter made by me and declare this to be interpreted in accordance with English law, and any law or custom to the contrary notwithstanding'”

indicates that he intended to make a will under the Act 360 and not samansiw; as he had specifically excluded a will under customary law, and at the time of writing he did not have any fear of imminent death, otherwise he would not have put in a clause about the devolution of a house he intended building at Tarkwa near Suame, Kumasi. The court ought to be circumspect in transforming a statutory will into a customary will simply because the statutory will has failed.

The next issue is whether the Intestate Succession Law, 1985 (PNDCL 111) is applicable in this case. Counsel for the appellant’s argument is that even though PNDCL 111 came into force on 5 July 1985 and the action in this case was commenced by a writ of summons filed on 4 October 1983, judgment was delivered by the trial court on 12 November 1987, ie after the coming into force of the Law, and by virtue of the transitional provisions of the Law, ie section 21(1), the Law is applicable in this case as the action was pending when the Law was promulgated. Section 21(1) of PNDCL 111 stipulates:

“21.(1) Notwithstanding the provisions of section 1 of this Law or any other enactment the provisions of this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a Chief or Head of Family under customary law at the commencement of this Law in respect of the administration or distibution of the estate who died before such commencement, and for the purposes of this section the provisions of the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112) and the Administration of Estates Act, 1961 (Act 63) as amended by the Administration of Estates (Amendment) Law, 1985 (PNDCL 113) shall be deemed to be applicable to such [p.268] claim or adjudication”.

Counsel’s argument is based on the premise that the deceased was survived by a spouse (ie the appellant) and children, and for that matter, in the words of counsel, “the appellant’s case is clothed with the protection of PNDCL 111 and that the respondent should not have been given the relief of recovery of possession of the disputed house.” Counsel urges that since the action in this case was brought on behalf of the estate of the late Prempeh, statements made voluntarily by the deceased are binding on the respondent as successor. The statements referred to are that the late Prempeh described the appellant as a wife in exhibit 1 and further introduced her to the whole world as his wife. Counsel further urges that as these statements were voluntarily made by the deceased they are fatal to his cause and he is bound by them, and so are his successors and privies, and they should not be permitted to retract from them.

In my view, merely referring to a woman as his wife does not mean that the woman is properly married to the declarant either under the Marriage Ordinance, Cap 127 (1951 Rev) or under customary law. To prove the marriage, evidence must be led to that effect. I must say that I am not convinced by the arguments advanced by counsel on this issue.

It should be remembered that the question whether or not the respondent was the wife of the deceased was not made an issue at the trial. In paragraph (3) of her statement of claim the respondent as plaintiff stated that:

“(3) At all material times, the late Joseph Kwasi Prempeh (Decd) and the defendant lived together in some kind of loose association but their relationship, though it lasted, never at any time before the death of Joseph Kwasi Prempeh ripened into marriage either under the customary law or under the Marriage Ordinance.”

In reply to this the appellant deposed in paragraph (4) of her statement of defence and counterclaim that:

“(4) The defendant denies the averment contained in paragraph (3) of the statement of claim but says that the defendant and the late Joseph Kwasi Prempeh were friends and from time to times the said late Joseph Kwasi Prempeh acted as the defendant’s adviser and agent.”

This assertion was repeated in paragraph (4) of her amended statement of defence filed pursuant to leave of court granted on 18 May 1987. And in [p.269] her evidence in-chief the appellant said that the late Kwasi Prempeh was a family friend, and that after the death of her husband in 1971 she and the deceased became friends and later lived as man and wife. My understanding of this statement, taking into consideration the averments in the pleadings, is that the appellant lived with the deceased as his mistress and not a wife at law, either customary or statutory.

In my judgment, the statements of the appellant preclude her from asserting now that she was the legal wife of the late Prempeh, and therefore fails to qualify as a wife or a spouse to let the provisions of PNDCL 111 enure to her benefit. As regards the children, since they were not joined as a party to the action they cannot take advantage of the Law.

The next point taken by counsel for the appellant is that the Court of Appeal erred in refusing to accede to her request to amend the statement of defence. Counsel’s request for the amendment was to invite the court to apply the provisions of PNDCL 111 to facts found by the trial judge, and to bring the pleadings, according to counsel, “in line with the evidence already on record.” The intended amendment is to enable the respondent to claim that she was the wife of the deceased and to use whatever evidence on record to support her contention. As stated above, there is no convincing evidence on record establishing such a marriage and no issue had been joined on that. As at the close of the case for the defendant-appellant she had insisted that she and the deceased were never married, but were friends and the deceased only acted as her adviser and agent. I therefore agree with the Court of Appeal when it stated that “if the amendment is granted, it would be necessary to adduce further evidence to establish that fact,” that is to say that the respondent and the deceased were properly married,and also that it would enable the respondent to claim a relief quite different from what she had originally claimed. The application was therefore rightly refused by the Court of Appeal.

Before I conclude, it seems to me that there was a submission by counsel for the appellant that the learned trial judge was wrong in overruling the objection that the learned trial judge was wrong in overruling the objection that the customary successor had no capacity to sue in respect of the estate, because at that time PNDCL 111 had come into operation and the intestate was survived by a spouse and children. Counsel argued that by merely amending the title of the suit the trial judge could not cure the defect, and that the suit should have been dismissed for lack of capacity to sue. I do not think there is any merit in this argument. the suit was brought on behalf of the estate of the deceased, and the appellant was claiming the property in dispute as her own self-acquired property and not as a spouse of the deceased, and therefore even if PNDCL 111 had been brought to his notice the learned trial judge could [p.270] not have dismissed the suit because there was no convincing and acceptable evidence on record to support the claim of the appellant that she was lawfully married to the deceased.

In my view, the amendment to the title of the suit made by the trial judge by deleting the words” administratrix” and leaving the action in her capacity as “customary successor of the estate of Joseph Kwasi Prempeh” was proper to avoid multiplicity of suits: see Dove v Wuta-Ofei [1966] GLR 299, SC; Akyirefie v Paramount Stool of Breman-Esiam (1951) 13 WACA 331 and England v Palmer (1955) 4 WACA 659.

In the result the appeal is dismissed. Since the suit was brought on behalf of the estate of the deceased, I would give judgment for the respondent and declare title in the disputed house in the estate of the deceased, and order recovery of possession accordingly. Save as aforesaid I affirm the decision of the Court of Appeal.

JUDGMENT OF JOYCE BAMFORD-ADDO JSC.

The brief facts of this case are that the plaintiff filed a writ at the High Court claiming as follows:

“(a) A declaration that house No 24, Block B, Asokwa, New Amakom Extension, Kumasi forms part of the estate of the late Joseph Kwasi Prempeh.

(b) An order of possession of the said house.

(d) Perpetual injunction restraining the defendant from interfering with the plaintiff’s ownership and possession of the said house.

(e) An order that the defendant be made to pay monthly rents of the said house from the date of death of Joseph Kwasi Prempeh to the date of judgment at the rate of ¢100 per month.”

The plaintiff sued in her capacity as the successor to the deceased Joseph Kwasi Prempeh who died in July 1979. The defendant counterclaimed for:

“(a) A declaration that the late Joseph Kwasi Prempeh held the lease in respect of the building as trustee for the defendant.

(b) A declaration that the paper writing that was read on the 40th day of the death of the late Joseph Kwasi Prempeh was a valid samansiw.

The trial judge held that house No 24, Block B, Asokwa, New Amakom Extension, Kumasi was the self-acquired property of the deceased but that the paper writing of Joseph Kwasi Prempeh read on the 40th day of his death, exhibit 1, was a valid samansiw or parole will and [p.271] enforceable at law. He dismissed the plainitff’s action and held that the defendant’s counterclaim (b) was proved.

The plaintiff appealed to the Court of Appeal on the grounds that:

“(1) The judgment was against the weight of evidence.

(2) The learned trial judge erred in law by ignoring the words in exhibit 1, the alleged samansiw, by which the late J K Prempeh expressed his intention to exclude the application of any customary law rule to the construction and/or implementation of the contents of that exhibit.

(3) Having regard to the evidence on record the learned trial judge erred in law in holding that the paper writing of Joseph Kwasi Prempeh (deceased) tendered in evidence as exhibit 1 by or on behalf of the defendant was a valid samansiw or parole will and enforceable at law.”

The Court of Appeal allowed the appeal in Prempeh v Agyepong [1989-90] 2 GLR 407, CA stating thus per Ampiah JA (as he then was ) at 419:

“I give judgment for the plaintiff (the appellant) and declare title in the disputed house in her and her family and order recovery of possession accordingly… The defendant’s counterclaim is dismissed. The defendant will be given up to one month to vacate the premises.”

The defendant-respondent-appellant (hereinafter referred to as the defendant) appealed to this court and a summary of her grounds of appeal are that:

(1) The Court of Appeal erred in holding that exhibit 1 was not a valid samansiw.

(2) That the appellate court erred in holding that the defendant was not the wife of Joseph Prempeh (Decd) and was therefore not entitled to certain benefits under the Intestate Succession Law, 1985 (PNDCL 111).

(3) That the appellate court erred in disallowing the amendment of the defendant made in that court, since it was only an amendment to bring the pleadings in line with the overwhelming evidence on record that she was a wife of the deceased and therefore that PNDCL 111 was applicable to the case.

At the hearing the defendant applied for an order to serve to serve the son and daughter of the deceased Prempeh with notice of this case as persons [p.272] directly affected by this appeal and whose interest would be affected by the outcome of this case under PNDCL 111. This application was made under rule 10(2) of the Supreme Court Rules, 1970 (CI 13) which gives this court the power at its discretion to order service of notice to be served on any party. The applicant is not the guardian of the said children and their natural mother who is alive has not shown any interest in this case even though she is herself a co-administratrix with the plaintiff.

First of all this case commenced in 1983 before the passage of PNDCL 111 and was an action by the house in dispute as family property. The defendant counterclaimed as owner or alternatively as a beneficiary under samansiw. She amended her counterclaim after the passage of PNDCL 111 in 1985 but did not claim as a spouse under the said Law. In 1990 at the court of Appeal she attempted to change the nature of this whole case, when she alleged that she was the wife of the deceased under customary law and entitled to benefit under PNDCL 111. The said court in Prempeh v Agyepong (supra) at 419 rejected her attempt on the following grounds:

”No issue was joined on that fact whether or not the defendant ws ever married to the deceased. There is thus no convincing or acceptable evidence on record to support the assertion that the defendant was married to the late Joseph Prempeh and therefore was a ‘spouse’ of the deceased. If the amendment is granted, it would be necessary to adduce further evidence to establish that fact and, more seriously, if the amendment is granted, it would change the nature of the claim by the defendant; it would enable the defendant claim a relief quite different from what she had originally claimed. For the above reasons, I do not think it would be just to grant the amendment at this stage of the proceedings. I would refuse the application.”

This refusal was made one of the grounds of appeal by the defendant in this court, and the defendant has followed with the present application for an order to serve certain persons. I support the reasons given by the Court of Appeal in refusing the amendment so as to apply PNDCL 111 to the case. Therefore I would also refuse the application to serve the persons named in the said application on the ground that PNDCL 111 is not applicable to this case, and therefore that they would not be affected by the outcome of this case. Further reasons why I think PNDCL 111 is not applicable would be discussed later in this judgment when dealing with the relevant ground of appeal.

I would now consider two main grounds of appeal, ie ground (2) and ground (3) together. These are that the Court of Appeal erred in [p.273] disallowing the amendment sought by the defendant in order, according to her, to bring the pleadings in line the overwhelming evidence on record that the defendant was the wife of the deceased and therefore entitled to certain benefits under PNDCL 111 which provides for the devolution of the intestate’s estate on a ”spouse” of a deceased dying after 1985. Under section 4 of PNDCL 111 a surviving spouse and children are entitled to the household chattels and a house of the deceased. Section 21 of PNDCL 111 state that:

”21. (1) Notwithstanding the provisions of section 1 of this Law or any other enactment the provisions of this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a Chief or Head of Family under customary law at the commencement of this Law in respect of the administration or distribution of the estate of an intestate who died before such commencement, and for the purpose of this section the provisions of the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112) and the Administration of Estates Act, 1961 (Act 63) as amended by the Administration of Estates (Amendment) Law, 1985 (PNDCL 113) shall be deemed to be applicable to such claim or adjudication.”

(The emphasis is mine.)

The Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112), s 15 states that PNDCl 111 shall apply to any “spouse” of a customary law marriage registered under that Law. This in effect means that in order for a claimant to benefit under PNDCL 111 such a claimant must prove strictly the existence of a valid Ordinance or customary law marriage as a matter of law. The defendant did not claim as the wife of the deceased in the statement of her counterclaim so as to benefit under PNDCL 111, nor was the claim an administration or distribution claim. The issues for trial did not include an issue whether or not the defendant was a wife of the deceased and even after the passage of PNDCL 111 when she amended her counterclaim, she never claimed as a wife. In fact, in her statement of claim she alleged that the deceased was her friend who acted as her adviser and agent from time to time, She did not lead any evidence as to the existence of a valid customary law marriage performed before witnesses as to make her the wife envisaged under PNDCL 111. Her claim that she and the deceased were friends living together as man and wife appears to be supported by the plaintiff who said that they “were mere friends but never legally married.” “Concubinage” is not the same as a valid marriage and a “spouse” under PNDCL 111 is one who has [p.274] contracted a valid customary marriage. In Yaotey v Quaye [1961] GLR (Pt 11) 573 at 574 it was held as stated in the headnote that:

“(3) the question whether the relationship between a man and a woman is one of marriage or of concubinage is a question of law to be determined from the facts and circumstances of the relationship;

(4) the essentials of a valid customary marriage are:

(a) agreement by the parties to live together as man and wife;

(b) consent of the families of the man and woman to the marriage. Such consent may be implied from the conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family;

See also Re Caveat by Clara Sackitey [1962] 1 GLR 180.

In In re Blankson-Hemans (Decd); Blankson-Hemans v Monney [1973] 1 GLR 464 a certain lady, Y, pleaded on the death of the deceased who had married the plaintiff under the Marriage Ordinance, Cap 127 (1951 Rev) in 1963 that she was customarily married to the deceased in 1961. That being also a widow, and having a child with the deceased she was as much entitled to a grant of letters of administration as the plaintiff. She did not give evidence at the trial but her counsel pleaded that marriage should be inferred from all the circumstances. As stated in the headnote:

“Held: the assertion in Y.’s pleadings of a prior subsisting customary marriage between her and the deceased was a positive assertion capable of positive proof. The submission that marriage should be inferred was not in line with the pleadings and could not be countenanced. In any event, there was no principle of customary law that after a man has lived in concubinage for some time with a woman, their relationship should be deemed to have ripened into marriage. Gym v. Insaidoo, High Court, Sekondi, 10 August 1965, unreported, cited.”

In this case the defendant did not plead any customary law marriage and there was no satisfactory proof of such a marriage, therefore no presumption of marriage could be made in accordance with law. The trial judge therefore erred when he stated that “the defendant was the widow of the deceased” or inferentially that she was the wife of the deceased. The defendant argues that a valid marriage between the deceased and the [p.275] defendant must be inferred from certain pieces fo evidence on the record. But in the case of Re Blankson-Hemans (supra) at 467 Koranteng-Addow J (as he then was) stated:

“It is my considered view that when the fact of marriage is in dispute as it is in this case, it has to be proved strictly and affirmatively like any other disputed fact. It does not have to be inferred.”

Inference of marriage can be made in certain circumstances as stated in section 31 of the Evidence Decree, 1975 (NRCD 323). In the circumstances of this case marriage was never an issue, it was neither pleaded nor proved by witnesses to the marriage and the same cannot be inferred as we are being invited to do. The Court of Appeal rightly refused to apply PNDCL 111, and rightly refused the defendant’s application to amend her defence.

Secondly, the defendant’s earlier claim was different and inconsistent with her new claim under PNDCL 111. In the case of Marfo v Adusei [1963] 1 GLR 225, SC it was stated int he headnote, holding (4), that:

“(4) An allegation of fact, not pleaded but admitted in evidence, which is inconsistent with, and is a departure from the averment made by the plaintiff in his statement of claim, is not entitled to favourble consideration.”

Mills-Odoi JSC delivering the judgment asked at 231:

“Was the learned commissioner therefore justified in giving consideration in favour of the plaintiff to the matters which were not pleaded by him and which were admitted in evidence, viz. that the first defendant granted the plaintiff extension of time for a further period of one year? We think he was not, in view of the fact that the evidence complained of is an allegation of fact which is inconsistent with, and a departure from the averment made by the plaintiff in his statement of claim.

See also the Privy Council case of Stool of Abinabina v Enyimadu (1953) 12 WACA 171, PC. In this case, not only was there no evidence of a valid customary law marriage on record to justify the application of PNDCL 111. But to do this would change the whole nature of the case of appeal, take the parties by suprise and result in injustice to both the plaintiff and even to the defendant. The defendant’s earlier claims impliedly meant that the deceased had not died intestate in respect of the [p.276] house in dispute, therefore how could PNDCL 111 be said to be applicable when that Law applied only to intestate estates? Furthermore, for section 21 of PNDCL 111 to apply there must be pending before the High Court in 1985 an administration or distribution case regarding the intestate estate of a deceased: see the case of Ampoma (Decd); Oppong v Oppong [1989-90] 1 GLR 83 where it was held that unless a settlement, claim or adjudication was pending in court before 1985 section 21 of PNDCL 111 would not be applied to such a case. The attempt by the defendant in the circumstances of this case to apply PNDCL 111 to this matter in 1990 was rightly rejected by the Court of Appeal. I am of the view that the appeal in respect of grounds (2) and (3) should fail.

Regarding ground (1), the defendant argued that the Court of Appeal erred in declaring that the paper writing, exhibit 1, was not a valid samansiw. The said court held that since exhibit 1 was not a valid will under the Wills Act, 1971 (Act 360) it cannot be held to be a samansiw because it did not satisfy the essential requirements fo a valid samansiw as enunciated in the case of In re Armah (Decd); Awotwi v Abadoo [1975] 1 GLR 374, CA which set out those essential requirements as follows:

“(a) the declaration should have been made in contemplation of death;

(b) there should be credible witnesses present who could testify that the dispositions were made in their presence and to their hearing;

This cited case is one where an oral disposition was taken down in writing and after typing it was signed by the declarant who was in hospital and in fear of death. The circumstances of the said case and this present one are dissimilar in that exhibit 1, which was wrongly accepted as a samansiw by the learned trial judge, was made in two parts on different dates. The typed written part was a draft will made by the deceased lawyer in his office in June 1979 when he was not in contemplation of death. A witness, the second defendant witness, give evidence of the circumstances under which it was made thus:

“In June the late boss (Prempeh) invited me to his office and told me he wanted to prepare his will and asked me to take down some notes. He dictated to me and I took them and had them typed. After typing, I sent the draft to him. He did not tell me anything about it again until July 1979.”

[p.277]

This draft will was neither signed nor witnessed and at the beginning of it the deceased stated quite clearly that:

“I HEREBY revoke all former will sand codicils and other testamentary disposition in whatever form and according to whatever custom hereinafter made by me and declare this to be interpreted in accordance with English law, and any law or custom to the contrary notwithstanding.”

The intention of the deceased was clearly to make exhibit 1 his will and not a samansiw under customary law.

The second handwritten part of exhibit 1 was made on l5 July 1979 in circumstances narrated by the second defendant witness thus:

“The day was a Sunday. He invited me to his house. I went with my friend called Gyamfie, a tailor by profession. As soon as I arrived, the late Joseph Prempeh told me that he nearly died the previous day so I should help him in finishing his will. He brought out exhibit I which I had typed previously. he told me that he had made some corrections and he would like to add some more. He pulled out a plain sheet and pen and gave them to me. He asked me to start writing, He dictated to me. I wrote half of the sheet. He took the pen and the sheet from me. Thereafter he continued writing from where I reached. After that he told me that he would give me a cheque to withdraw the money Monday morning. He asked me to use part to buy stationery and give part to a certain Alhaji and reserve ¢1,000 for him. He told me he would go to rest at Dr Asafo-Adjei’s Clinic. After giving the cheque to me he handed me exhibit 1. The following morning he called me again to his house and warned me to hurry up with the typing of the will.”

(The emphasis is mine.)

This evidence clearly shows that the deceased wanted the second defendant witness to help him in finishing his will and not in making a samasiw. The handwritten part was clearly meant to be a continuation of the earlier typed part of the proposed will. The defendant has argued that the two parts of exhibit 1 should be read as one whole document, a propositon with which I am in entire agreement. Reading exhibit 1 as a whole, can it be said to constitute a valid samansiw even if it is not a valid will under Act 360? I am clearly of the view that it cannot and the reason for this [p.278] view is that exhibit 1 does not satisfy the essential requirements of a valid samansiw as enunciated in In re Armah (Decd): Awotwi v Anadoo (supra). The first requirement that a declaration of the deceased must be made in contemplation of fear of death, cannot be said to have been satisfied when exhibit 1 was made in June 1979, or even in July 1979 when the written part was made. If it was the deceased’s intention to make a samansiw, then being a lawyer, he would have amended the first part of the will which excluded the application of customary law. Also those parts of exhibit 1 which stated as follows:

“I intend to erect a house at Tarkwa near Suame Kumasi—if I am able to do so this house should belong to my family…one third to Justice Prempeh and William Prempeh if they do not predecease me to be shared between them equally and if they do not predecease me to be shared between them equally and if they do, it should go to my sisters. The remaining one third to any subsequent children by me.”

(The emphasis is mine.) amount, in my view, to future intentions and negatives a findings that the deceased was in contemplation of death when making exhibit 1. On the contrary, a person in this frame of mind cannot talk of others predeceasing him or an intention to build a house or to have more children in the future. I would not therefore be persuaded by the argument that because the deceased died later, he was in immediate fear of death or in contemplation of death either in June 1979 or 15 July 1979 when making exhibit 1. Furthermore, to hold thus would be a complete departure from the deceased’s intention to make a will not samansiw and would indeed be contrary to the deceased’s intention. I am satisfied that exhibit 1 was not made in anticipation or contemplation of death and consequently cannot he held as a valid samansiw under customary law so as to benefit the defendant.

Even if exhibit 1 is read in two parts and a very favourable interpretation put on the second handwritten part, namely that it was made in contemplation of death because the deceased died the next day, such a finding would still not enure to the benefit of the defendant because she was not mentioned therein. Exhibit 1 is clearly an invalid will because it was not signed or witnessed and is also not a valid samansiw. The Court of Appeal was therefore right when in Prempeh v Agyepong (supra) at 416, CA it criticised the learned trial court’s ruling that exhibit 1 was a samansiw in these words:

“When a judge therefore finds it possible to save a void statutory will by declaring it a valid samansiw under customary law, for the [p.279] purpose of the devolution of the testator’s estate, he can do so, but only if the deceased has expressed no contrary intention to the applicability of the customary law or personal law. Since the late Prempeh had expressed his intention in exhibit 1 that his will shall not be interpreted in accordance with any customary law but English law, the learned trial judge had no power to save the void will against the expressed wishes of the testator even if he had power to convert the void statutory will into a samansiw. Under those circumstances the learned trial judge was under a duty to declare that the maker had died intestate.”

I agree with Courts of Appeal and it seems to me that even if the deceased had not clearly excluded the application of the customary law to exhibit 1, a court cannot change the nature of that exhibit, ie an abortive will, into a valid samansiw unless the essential requirements of a valid samansiw are present.

It is my considered opinion that exhibit 1 is not a valid samansiw, and therefore that the deceased died intestate in respect of the house in dispute. The intestate estate is to be distributed by the plaintiff-successor. The appeal on this ground also should fail.

DECISION

Appeal dismissed.

JNNO

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NEW PATRIOTIC PARTY v ATTORNEY-GENERAL (31ST DECEMBER CASE) [1993-94] 2 GLR 35—192