HIGH COURT, ACCRA
DATE: 3 DECEMBER 1970
ABOAGYE J
NATURE OF PROCEEDINGS
ACTION for an injunction to restrain the defendants from executing the provisions of N.L.C.D. 400. The facts are fully set out in the judgment of the court.
COUNSEL
Reindorf for the plaintiff.
M. C. Dodoo, Principal State Attorney, for the defendants.
JUDGMENT OF ABOAGYE J.
The plaintiff’s claim in this suit is for an injunction to restrain the defendants by themselves, servants, or agents or otherwise from going into execution in the suit entitled, Republic v. Benneh, High Court, 9 December 1969, unreported.
The State had, pursuant to the provisions of the National Liberation Council (Investigation and Forfeiture of Assets) (Further Implementation of Commissions’ Findings) (No. 3) Decree, 1969 (N.L.C.D. 400),
entered judgment in this court on 9 December 1969, against the plaintiff herein, for the sum of N¢15,302.46.
The statement of claim is brief and concise and for the purpose of this ruling it is relevant to quote it in extenso. It is as follows:
[p.79] of [1971] 1 GLR 78
“1. Plaintiff has been served, at the instance of the first defendant, with a document dated 20 November 1969 entitled “entry of Judgment—under Order 41 R.S.C.,’ purporting to be an entry of judgment in this court against plaintiff for the sum of N¢15,302.46 in an alleged suit entitled Republic. v. Benneh.
- In pursuance of the said entry of judgment the sheriff has caused to issue a writ of fi.fa. for the purpose of attaching and selling compulsorily certain properties of plaintiff.
- No unsatisfied judgment has been pronounced against plaintiff herein in favour of the State or of any other person in the sum of N¢5,302.46 or in any other sum, and there has been no suit or matter before this court with the title in paragraph 1 above referred to in which the said sum or any other sum has been claimed against plaintiff herein.
- The said entry of judgment purports to be pursuant to the provisions of N.L.C.D. 400.’
- The said N.L.C.D. 400, which was made on 30 September 1969, is repugnant to the Constitution, 1969, and in particular to articles 12 and 18 thereof, wherefore the said N.L.C.D. 400 is under article 1 (2) of the Constitution, void and of no effect.
- Plaintiff’s claim therefore is under article 28 of the Constitution for an order of injunction to restrain the defendants, their agents, servants and assigns from carrying out any or all of the provisions of the said N.L.C.D. 400.”
In their statement of defence the defendants averred, inter alia, that their entry of judgment referred to by the plaintiff was legal and proper and that N.L.C.D. 400 does not contravene any provision of the Constitution as alleged by the plaintiff.
From the pleadings it is quite obvious that the only material issue to be tried is whether or not N.L.C.D. 400, by virtue of which judgment was entered against the plaintiff, is void and of no effect because it contravenes articles 12 and 18 of the Constitution. If the decree is valid then everything done under it will also be valid. If, on the other hand, it is invalid as being repugnant to articles 12 and 18 of the Constitution then everything done under it including the entry of judgment against the plaintiff and the subsequent attachment of his property in execution of the judgment will be unlawful.
Although the question of jurisdiction was not raised by learned attorney for the defendants it struck me and I asked counsel on both sides to argue it out on the hearing of summons for directions. Mr. Dodoo for the defendants argued that this court had no jurisdiction to hear the suit since it is only the Supreme Court which can declare the decree null and void. Mr. Reindorf on the other hand argued that under article 106(1) of the Constitution this court has the power to declare the decree void since the subject-matter of the suit before the court is one arising under articles 12 and 18 of the Constitution which articles fall within those over
[p.80] of [1971] 1 GLR 78
which, by article 28 the High Court has concurrent jurisdiction with the Supreme Court.
As I have said earlier on, the gist of the plaintiff’s claim is that N.L.C.D. 400 is repugnant to articles 12 and 18 of the Constitution and so void. The claim is therefore covered by article 2 of the Constitution which says:
“2. (1) Any person who alleges that an enactment or anything contained in or done under the authority
of that or any other enactment is inconsistent with, or is in contravention of, any provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect.
(2) The Supreme Court shall, for the purposes of a declaration under the provisions of the preceding clause, make such orders and give such directions as it may consider appropriate for giving effect to or enabling effect to be given to the declaration so made.”
I therefore hold that I have no jurisdiction to entertain this suit and I accordingly dismiss the plaintiff’s claim with liberty to bring an action in the Supreme Court for the determination of the validity or otherwise of N.L.C.D. 400. The defendants will have their costs which I assess at N¢50.00.
DECISION
Plaintiff ‘s claim dismissed.
- G. K.
