Case Brief: Tuffour v. Attorney-General

Tuffour v. Attorney-General [1980] GLR 637-667 ^[1]

With the coming into force of the 1979 Constitution, the incumbent Chief Justice, Mr Justice Fred Kwasi Apaloo, was purported to be nominated as Chief Justice by the President of the Republic of Ghana in consultation with the Judicial Council. Parliament purported to vet the said Mr Apaloo in Parliament and subsequently rejected his nomination.

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

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

But the Attorney-General raised a preliminary objection that the Court lacked jurisdiction; the plaintiff did not have capacity; the speaker of Parliament could not be joined to the suit.

He argued that any matter coming under Article 2 of the Constitution was to be determined by the Supreme Court properly so-called and properly so constituted but not by a Court of Appeal sitting as a Supreme Court.

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

On the competency of the Speaker of Parliament as the first defendant, the Attorney-General argued that neither this Court nor any other Court had the power to call in question any proceedings of Parliament.

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

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

Again, he argued that the Speaker of Parliament is properly sued because to say the Speaker could not be brought to Court was to say that the actions of Parliament could not be challenged.

The Court made pronouncements on the preliminary objections and the case proceeded.

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

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

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

On the other hand, the Attorney-General conceded Mr Apaloo was Chief Justice but he submitted that the Courts he presided over were different from which the new Constitution created; in that a new Supreme Court had been superimposed on to the hierarchy of courts.

Since there was no Supreme Court, no Justice could be holding office of a justice of the Supreme Court. He averred that Mr Apaloo was a Chief Justice of the Court of Appeal. To qualify him to be Chief Justice now, he must be a member of the Supreme Court. And he must go through the procedure under article 127(1).

He equally argued that in any event by Mr Apaloo subjecting himself to the parliamentary vetting, he had waived off his immunity the Constitution provided. This means that with his own conduct, Mr Apaloo, his privies and those claiming interest were estopped from challenging the consequences of that conduct.

Issues:

1. Whether or not the plaintiff has capacity to institute the instant action?
2. Whether or not the Court has jurisdiction to entertain the instant action?
3. Whether or not the Speaker of Parliament can be joined to the suit?
4. Whether or not the incumbent Chief Justice waived off any immunity provided by the Constitution by his conduct?
5. What was the status of the Chief Justice before the coming into force of the Constitution, 1979?

Held:

1. The plaintiff has capacity.
2. The court has jurisdiction to entertain the present matter.
3. The Speaker of Parliament cannot be joined in the suit.
4. The rights of the Chief Justice could not be waived off by his conduct.
5. The Chief Justice was the Chief Justice of the Republic of Ghana.
6. The incumbent Chief Justice became the Chief Justice after the coming into force of the Constitution, 1979
   
   

Reasoning:

The Constitution confers on every citizen of Ghana by Article 1(3) the right to resist anyone who tries to abolish the Constitution or a part of it. One method by which the right could be enjoyed is to seek interpretation of certain provisions of the Constitution which goes to determine whether a person is trying to abolish the Constitution. This right is cast upon every citizen of Ghana. In such matters the plaintiff need not have a personal interest but the interest of the general public.

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

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

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

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

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

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

To the Court, “shall be deemed” was a legislative device used to say a thing is something else which it, in fact, is not. Its definition is contained in the case of St. Aubyn v. Attorney-General.^[2] The Constitution, 1979 employed such phrase to give the first President and the first Parliament of the third Republic their legitimacy under the 1979 Constitution as though they were elected under the Constitution. And this was true of public officers holding public offices.

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

Per Sowah, JSC at pp. 647 and 648:

A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach [p.648] to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time. And so, we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given effect. Perhaps it would not be out of place to remember the injunction of St. Paul contained in his First Epistle to the Corinthians, Chapter 12, verses 14-20 (King James Version): “”For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing? If the whole were hearing, where were the smelling? But now are they many members, yet but one body.”” (The emphasis is ours.) And so a construction should be avoided which leads to absurdity. And when a particular interpretation leads to two, shall we say “”inconsistent”” results, the spirit of the Constitution would demand that the more reasonable of the two should be adhered to. We must have recourse to the Constitution as a whole.

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

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

(b) that the law and custom of Parliament is a distinct body of law and, as constitutional experts do put it, “”unknown to the courts.”” And therefore the courts take judicial notice of what has happened in Parliament. The courts do not, and cannot, inquire into how Parliament went about its business. These constitute the state of affairs, as between the legislature and the judiciary which have been crystallized in articles 96, 97, 98, 99, 103 and 104 of the Constitution. Of particular importance to us are the provisions of article 96 of the Constitution. They confer on Parliament freedom of speech, of debate and of proceedings in Parliament. The article also states categorically: “that freedom shall not be impeached or questioned in any Court or place out of Parliament.” The courts cannot therefore inquire into the legality or illegality of what happened in Parliament. In so far as Parliament has acted by virtue of the powers conferred upon it by the provisions of article 91 (1), its actions within Parliament are a closed book.

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