SUPREME COURT
DATE: 31 JULY 1970
APALOO, SIRIBOE, SOWAH, ANIN AND ARCHER JJA
NATURE OF PROCEEDINGS
RULING of the Court of Appeal sitting as the Supreme Court under the Transitional Provisions of the Constitution, 1969, on a matter referred to it by the High Court (Coussey J.).
COUNSEL
Kwaku Bonsu for the plaintiffs.
H. Tettey, Principal State Attorney, for the defendant.
JUDGMENT OF APALOO J.A.
Apaloo J.A. delivered the ruling of the court. This matter comes before this court sitting as the Supreme Court on a reference by the High Court (Coussey J.), under the provisions of article 106 of the Constitution, 1969. The actions were commenced by two different plaintiffs against certain named individuals and in both suits, damages were sought for wrongful seizure of two cars. The first writ was issued on 26 September 1968 and the second on 9 October 1968. On 29 October 1968, the Republic of Ghana was ordered to be substituted for the defendants by order of the court.
This was at the request of the plaintiffs. The result was that when the Constitution came into force on 22 August 1969, these actions for damages were pending in the court against the Government of Ghana. As the facts grounding the relief sought were the same and the identical defence is relied on in both suits, the court, on the application of the parties, consolidated both suits for hearing and determination. It is in this manner that they were referred to us.
In so far as the case stated relates the facts, they are as follows: The first suit relates to car No. GF 5079. It is a Skoda car which originally belonged to the Convention People’s Party. The party apparently sold it to the plaintiff at some unspecified date before the change of government. The car was seized on the instructions of the National Liberation Council-the then Government-on 20 March 1966 at Kumasi. It was then sold at a price of N¢400.00. The plaintiff’s complaint was that the car was her property and ought not to have been sold. That is why she sought damages against the defendant.
The car in the second suit is a Mercedes Benz No. VR 242. It was purchased by the plaintiff who was a member of Parliament. It was seized at Wenchi on 28 February 1966, on the instructions of the National Liberation Council. At the date of seizure, nothing was owed to the government from the plaintiff. The car was sold but as a result of representations made to the government, it was retrieved from the purchaser and returned to the plaintiff. The damages which the plaintiff sought were for the seizure.
[p.32] of [1971] 1 GLR 30
These facts were not disputed by the defendant. The latter, however, relied on section 13 (3) of the Transitional Provisions of the Constitution and claimed that the suits were not maintainable by reason of the provisions of that subsection. The plaintiffs dispute this and the true interpretation of this section thus became an issue before the High Court. The latter, in obedience to article 106 (2) of the Constitution, referred the question of interpretation to this court and formulated two questions for our decision.
In the first suit, the learned judge asked us to determine:
“Whether by virtue of section 13 (3) of the Transitional Provisions, if the National Liberation Council gave instructions to seize a car and it was erroneous then, the Government was covered by the provisions of section 13 (3) of the Constitution.”
In the second suit, the question was:
“Whether the act of seizure of the car was necessary in the circumstances and is covered by section 13 (3) of the Transitional Provisions of the Constitution or whether under the National Liberation Council Decree No. 61 only vehicles on which persons owed could be seized.”
The way in which the questions were framed, shows that the learned judge was considerably influenced in his view of the issues by the National Liberation Council (Impounded Vehicles) Decree, 1966 (N.L.C.D.
61). That decree which was promulgated on 11 July 1966, reads as follows:
“It shall be lawful for the National Liberation Council to sell or cause to be sold any vehicle impounded by or under the authority of the National Liberation Council as regards which there exists an unpaid amount of any loan granted by the Government or by the Ghana Commercial Bank upon the recommendation of the Government.”
This paragraph is subject to a proviso which it is unnecessary for present purposes to set out. Although this decree was actually promulgated in July 1966, it was, by a legal fiction of which we are not unfamiliar, said to be effective from 24 February 1966. It would seem therefore that the object of this decree was to enable the National Liberation Council to give good title to persons to whom the vehicles which it had impounded were sold or might be sold provided money was owed on them to the government or the bank. Nothing done under that decree can now be questioned, nor is the validity of the decree itself relevant on the question raised for determination before the High Court.
The learned judge, however, thought so and his formulation of the questions submitted for our decision was therefore coloured by that belief. Whether the National Liberation Council was in error in seizing or causing these cars to be seized is, for present purposes, of no moment. The only question which was properly raised before the High Court and which raised squarely an issue of the interpretation of a provision
[p.33] of [1971] 1 GLR 30
of the Constitution is: On the undisputed facts, did the government bring itself under the umbrella of section 13 (3) of the Transitional Provisions? If it did, the morality or otherwise of the defence is irrelevant. The court is under a constitutional obligation to decline jurisdiction and deny the plaintiffs any remedy. To determine this question, it is necessary to set out the relevant provision.
Section 13 (3) reads:
“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 the 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 relating to, or consequent upon, 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
(c) the establishment of the National Liberation Council; or
(d) the establishment of this Constitution.”
The acts complained of in these cases are the seizures of the cars. Those acts were authorised by the National Liberation Council and were, for all practical purposes, its own act. The question therefore is: Do those acts relate to or were they consequent upon the overthrow of the Convention People’s Party? If aye, then cadit quaestio, there must be an end of this case.
Mr. Tettey for the government, contends that the seizure was traceable either directly or indirectly to the overthrow of the former government and was the type of act envisaged by section 13 (3) of the Transitional Provisions. Mr. Kwaku Bonsu for the plaintiffs disputes this and argues that the National Liberation Council could not have contemplated the seizure of the two cars to assist or bring about the events contemplated by section 13 (3). For this argument, he draws heavily on the provision of N.L.C.D. 61 and points out that at the date of the seizures, nothing was owed on them to the government or the bank.
As we have already pointed out, whether the seizures were lawful or not is irrelevant for the purpose of construing section 13 (3). The question for which an answer is required is really a short one which does not admit of a great deal of elaboration. It is, were the seizures of the cars consequent upon the overthrow of the former government? The words “consequent upon” are not terms of art and have no recognised legal meaning. They must therefore be given their ordinary dictionary meaning. According to the Concise Oxford Dictionary, the key adjective
[p.34] of [1971] 1 GLR 30
consequent” means “following as a result.” In one case, the seizure was effected only four days after the overthrow of the former government and in the other case the seizure was made within a month of it. The seizures were so proximate in time to the overthrow of the government that it would be a perfectly normal use of language to say that the seizures followed as a result of the change or were “consequent upon” it. And in so far as we are entitled to draw any inference from this, we think the National Liberation Council must have considered the seizures necessary for its own purposes. The fact that it enacted legislation several months afterwards to enable it make a good title to a prospective purchaser does not affect the question.
The position therefore is, that the plaintiffs instituted proceedings against the Government of Ghana before the coming into force of the Constitution in respect of acts of seizure which were consequent upon the overthrow of the government in power before the formation of the National Liberation Council. In our judgment, the entertainment of such an action is forbidden by the peremptory provisions of subsection (3) of section 13 of the Transitional Provisions. We think therefore, that the High Court should decline jurisdiction and strike out the suits.
In forming this view, we are not unmindful of the provisions of subsection (1) of section 13 which reads as follows:
“Subject to the provisions of this section, legal proceedings pending immediately before the coming into force of this Constitution before any Court, including civil proceedings by or against the Government, shall not be affected by the coming into force of this Constitution and may be continued accordingly.”
We think this section enables civil proceedings by or against the government which were pending before 22 August 1969, to be continued save in so far as no other provision of this section provides otherwise. In our judgment, subsection (3) provides otherwise and bars the further prosecution of these suits.
This is, no doubt, a hard result for the plaintiffs and we regret it. But we cannot bring ourselves to believe that this point was taken by the defence to enable it to avoid the payment of compensation to the plaintiffs. We incline to the view that this contention of law was raised to obtain an authoritative pronouncement of the meaning of this action from the court. If that be right, we venture to hope that it would be possible for the defendant to pay reasonable compensation to the plaintiffs for the loss they must have suffered by reason of the seizures. The case of the plaintiff Adwoa Donkor is particularly deserving of compensation as her car was sold outright and the whole of the proceeds paid to government chest on the erroneous belief that she was indebted to government on the car. But such payment would, in the view that we take of the true meaning of section 13 (3), be ex gratia only.
In conclusion, the answer to the two questions referred to us, is that in both cases, the provisions of section 13 (3) preclude the court
[p.35] of [1971] 1 GLR 30
from entertaining either of the two consolidated suits. They ought therefore, to be struck out. We direct that the High Court shall act in accordance with this decision.
DECISION
Order accordingly.
N. A. Y.
