EDUSEI vs. ATTORNEY-GENERAL AND ANOTHER [1997-1998] 2 GLR 1

CASES REFERRED TO:

(1) Nana Yiadom I v Nana Amaniampong [1981] GLR 3, SC.

(2) Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC.

(3) Edusei v Attorney-General [1996-97] SCGLR 1.

(4) Practice Direction (Reviews in the Supreme Court) [1987-88] 2 GLR 274.

(5) Bisi v Kwayie [1987-88] 2 GLR 295, SC.

(6) Nasali v Addy [1987-88] 2 GLR 286, SC.

[p.4] of [1997-1998] 2 GLR 1 (7) Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC.

(8) Ababio v Mensah (No 2) [1989-90] 1 GLR 573, SC.

(9) Afranie liv Quarcoo [1992] 2 GLR 561, SC. (10) HaigvAgee, 453 US 280 (1981). (11) Jaundoo v Attorney-General of Guyana [1971] AC 972, PC.

(12) Nyarko v Minister of Local Government (1956) 2 WALR 147.

(13) New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC.

(14) Mosi v Bagyina [1963] 1 GLR 337, SC.

(15) Republic v High Court, Accra; Ex parte Darke [1992] 2 GLR 440, SC.

(16) Gbedemah v Awoonor-Williams (1970) 2 G & G 438, SC.

(17) Tait v Ghana Airways Corporation (1970) 2 G & G 527, SC.

(18) Practice Direction (Practice and Procedure of the Supreme Court) [1981] GLR 1, SC. (19) New Patriotic Party v Inspector General of Police [1993-94] 2 GLR 459, SC.

(20) Kent v Dulles, 2 L Ed 1204.

(21) Attorney-General v Alli [1989] LRC (Const) 474.

(22) Tinyefuza v Attorney-General, Constitutional Petition 1 of 1997, 25 April 1997, Uganda Constitutional Court.

(23) Longwe v Attorney-General, High Court, Malawi, Misc Civil Appeal No 11 of 1993, unreported. (24) Ferriera v Levin [1996] 1 BCLR 1, CC.

(25) Romesh Thappar v The State of Madras (1950) 594 India Supreme Court.

(26) Republic v Tommy Thompson Books Ltd (No 2) [1997-98] 1 GLR 611, SC; [1996-97] SCGLR 484.

(27) Kwakye v Attorney-General [1981] GLR 9; [1981] GLR 994, SC.

(28) Potin v Wood [1962]2 WLR 258; [1962] 1 QB 594; 105 SJ 1105, CA.

(29) McCardle; Ex parte (1869) 7 Wall 506.

(30) Kumnipah II v. Ayirebi [1987-88] 1 GLR 265, SC.

(31) Donoghue v Stevenson [1932] AC 562; [1932] All ER Rep 1; 147 LT 281 HL. (32) Green v United States, 356 US 165 (1959).

[p.5] of [1997-1998] 2 GLR 1 (33) Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554.

(34) Hallett’s Estate, In re; Knatchbull v Hallet (1879) 13 ChD 696.

(35) Republic v Maikankan [1971] 2 GLR473, SC.

(36) Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, CA.

(37) Bilson v Apaloo [1901] GLR 24, SC.

(38) Clark (C & J) Ltd v Inland Revenue Commissioners [1973] 2 All ER 513; [1973] 1 WLR 905; affirmed [1975] 1 All ER 501 801; [1975] 1 WLR 413, CA.

(39) Addo v Sabrah [1968] GLR 154.

(40) Ditcher v Denison (1857) 11 Moo cc 324; 31 LTOS 61 22 JP 337.

(41) Ghana Bar Association v Attorney-General, 7 January 1995, unreported; [1995]1 GSCJ 11. (42) Meister, In re; Lucious and Bruning Ltd [1914] WN 390 [1914] 31 TLR 28; 59 SJ 25. (43) Darko v Amoah [1989-90]2 GLR 214, SC.

(44) People Popular Party v Attorney-General [1971] 1 GLR 138.

(45) New Patriotic Party v Attorney-General (CIBA Case) [1996-97) SCGLR 729.

(46) Ademola II v Thomas (1950) 12 WACA 81; on appeal, sub nom Akisatan v Thomas (1950) 12 WACA 90, PC.

(47) Republic v Secretary for Chieftaincy Affairs; Ex parte Sam [1987-88] 1 GLR 189, CA. (48) Asare v Oppong [1967] GLR 433, CA.

(49) Commissioner of Police v Akyeampong [1963] 1 GLR 402, SC.

APPLICATION for review of the majority decision of the Supreme Court dismissing the applicant’s action invoking the original jurisdiction of the court for the enforcement of his fundamental rights and freedom, on the grounds that the Supreme Court had no concurrent original jurisdiction with the High Court in the enforcement of such fundamental human rights and freedoms. The facts are sufficiently set out in the judgment of Acquah JSC.

Nana Akufo-Addo (with him Akoto Ampaw) for the applicant.

[p.6] of [1997-1998] 2 GLR 1

Hon Martin Amidu, Deputy Attorney-General, for the respondent.

Bambord-Addo JSC. This is an application by the applicant asking for a review of the decision of this court dated 13 February 1996 and reported as Edusei v Attorney-General [1996-97] SCGLR 1, which held that the court has no jurisdiction to hear the case brought before it in the above-mentioned case. Since jurisdiction is a fundamental issue, the absence of which would render any decision of a court null and void, it is of utmost importance for a court to ensure that in any case brought before it, it has the requisite jurisdiction to hear and determine that case. Where there is lack of jurisdiction, a court ought to decline jurisdiction. In the same manner where a court has jurisdiction in any case, it should accept jurisdiction and adjudicate on it. It would be wrong in a such case to decline jurisdiction, as this would result in injustice to an applicant and would constitute exceptional circumstance for which a review would be granted under article 133 of the Constitution, 1992.

The plaintiff-applicant (hereinafter referred to as the plaintiff) by a writ and accompanying statement of case, invoked the original jurisdiction of this court for the following reliefs, namely a declaration that:

“1 (i) Section 5(1) and 12(3) of the Passport and Travel Certificate Decree, 1967 (NLCD 155) which seek to give the Minister of Foreign Affairs (Member Responsible) wide discretionary powers in the grant, refusal, revocation cancellation or impounding of passports and travel certificates; section 5(2)(a),(b)(ii) and (iii) which provides that the Minister of Foreign Affairs (Member Responsible) shall not issue a passport to specified categories of persons, and section 17(e) which seeks to give the Minister of Foreign Affairs absolute discretion in refusing to grant travel certificates are inconsistent with, and a contravention of the letter and spirit of the Constitution and especially article 11 (1),(2) and (3) and 21 (1)(g). Accordingly the said sections of NLCD 155 are null and void and unenforceable.

(ii) As a citizen of Ghana by birth, the plaintiff has a constitutional right to enter and leave Ghana and a

[p.7] of [1997-1998] 2 GLR 1 fortiori to a passport to enable him exercise and enjoy that right.

(2) An order directing the Minister of Foreign Affairs and the Director of the Bureau of National Investigations (BNI) to return to the plaintiff his old passport to enable the plaintiff to apply for a new passport.”

The defendants admit that the plaintiff is a citizen of Ghana and conceded that the right to a passport was inherent in the freedom of movement guaranteed under article 2 1(1)(g) of the Constitution, 1992. Before the hearing at the Supreme Court, a preliminary objection to jurisdiction was raised by the defendants on the ground that the plaintiff’s case was not a proper case in which the original jurisdiction of the court under article 130 (1)(a) of the Constitution could be invoked. The defendants submitted that the plaintiff had clothed a human rights enforcement issue as a request for interpretation of the Constitution, 1992 and that the proper forum for such an action was the High Court as provided under article 33 of the Constitution, 1992 namely “31 (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.”

The issue for decision is whether the plaintiff’s claim concerns a question of interpretation which would enable him to invoke the original exclusive jurisdiction of the Supreme Court, or whether he is in actual fact seeking only an enforcement of his fundamental rights, in which case the proper forum would be the High Court. The endorsement on the plaintiff’s writ of summons sought an interpretation of various clauses of the Passport and Travel Certificate Decree, 1967 (NLCD 155) in an attempt to render those clauses inconsistent with the Constitution, namely article 21 (1)(g) and therefore to have them declared null and void and unenforceable.

Article 21(1)(g) which deals with general fundamental freedoms provides as follows:

“21 (1) All persons shall have the right to—

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(g) freedom of movement which means the right to move freely in Ghana, the right to leave and enter Ghana, and immunity from expulsion from Ghana.”

I do not find any difficulty in understanding the import of these words, which in my opinion does not need to be interpreted by the court at all. The plaintiff claimed in his writ and endorsement 1 (ii) that “he had a constitutional right to leave Ghana and a fortiori to a passport to enable him to exercise and enjoy that right.” The defendants on their part conceded this fact that the right to a passport is inherent in the freedom of movement guaranteed under article 21(1)(g) of the Constitution, 1992. If the two parties both understand the words in article 21(g), and NLCD 155 and are in agreement as to their meaning, wherein lies the issue of interpretation which would clothe the Supreme Court with jurisdiction under article 130(1)(a) of the Constitution, 1992 to enable it to assume jurisdiction to interpret provisions of the Constitution, 1992 vis-à-vis the challenged clauses of NLCD 155? In the circumstances of this case it is clear that the question of interpretation is not called for. The second relief of the plaintiff which supports this view (as stated earlier) is a request for an order that the plaintiff is entitled to a passport, even though he had not applied for one nor had been refused one. It is evident that he is in effect seeking an enforcement of his fundamental human right of freedom of movement, hence his request for a passport. To obtain this relief the applicant should have applied to the High Court for an enforcement of his human rights. Rather he clothed his claim in interpretative garb to enable him invoke the original jurisdiction of this court.

In the similar case of Nana Yiadom I v Nana Amaniampong [1981] GLR 3 at 8, Apaloo CJ giving the ruling of the court, delivered himself thus:

“The plain truth of the matter is that the original jurisdiction of this court has been wrongly invoked. We will accordingly accede to the challenge to our jurisdiction Perhaps we should point out, at least for the benefit of the profession, that where the issue sought to be decided is clear and is not resolvable by interpretation, we will firmly resist any invitation to pronounce on the meaning of constitutional

[p.9] of [1997-1998] 2 GLR 1 provisions. It would, we think, be a waste of mental effort and a thoroughly pointless exercise.”

See also the case of Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, Sc. In that case this same issue of jurisdiction was raised as a preliminary issue. It was stated at 613 in that case, inter alia, that:

“In deciding the issue of jurisdiction, matters to take into consideration include the statute which invests jurisdiction as well as the true nature of the claim having regard to the pleadings, issues and reliefs sought or the actual effect of the reliefs, regardless of the words used or the manner in which the claim and reliefs are couched.”

Considering the reliefs sought in this case and having regard to the surrounding circumstances, I find that this is not a case which calls for the interpretation of the Constitution so as to vest the Supreme Court with the appropriate jurisdiction under article 130 (l)(a); but rather a case of enforcement of human rights which should have been instituted at the High Court. In consequence, I hold that the majority decision of the Supreme Court dated 13 February 1996 on the issue of lack of jurisdiction was correctly decided.

The plaintiff is here requesting for a review of that decision and the only ground for a review has been stated and restated in this court, as contained in Practice Direction (Reviews in the Supreme Court) [1987-88] GLR 274, namely: “The only ground for review is that the circumstances are exceptional and that in the interest of justice there should be a review.” Various decisions of this court have identified circumstances which could be said to be exceptional, some of which are: Bissi v Kwayie [1987-88] 2 GLR 295, SC; Nasali v Addy [1987-88] 2 GLR 286, SC; Mechanical Llyod Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC, Ababio v Mensah (No 2) [1989-90] 1 GLR 573, SC and Afranie II v Quarcoo [1992] 2 GLR 561, SC.

Considering and applying these decided cases to the facts of the case before us, and the fact that I have earlier held the Supreme Court’s decision to be correct, I do not find in this case any exceptional circumstances, which in the interest of justice calls for a review of the decision of the Supreme Court that it has no jurisdiction to entertain this case. It would have been otherwise if

[p.10] of [1997-1998] 2 GLR 1 the Supreme Court’s decision on jurisdiction had been wrongly decided.

For the above reasons, the application for a review fails and must be dismissed.

Charles Hayfron-Benjamin JSC. On 22 April 1998 I cast my vote in favour of reviewing the judgment of the court in this self-same case dated the 13 February 1996 and reported as Edusei v Attorney-General [1996-97] SCGLR 1. I indicated that owing to the vagaries of our Supreme Court secretariat, I would later file my reasons for so voting.

As my learned brethren and sisters pressed to render their opinions, I was thus privileged to listen to them. It seemed to me that they were reiterating the former views which the majority had taken in this case on 13 February 1996. If I understood the view of the majority correctly then, it appeared the majority had refused to reach the merits at that time because in their view the issue of the enforcement of “fundamental human rights” was by our Constitution, 1992 “exclusively” committed to the jurisdiction of the High Court. Of course the expression “exclusively” does not occur in that context in the relevant article of the Constitution which spells out the jurisdiction of the Supreme Court. Article 130 (1) of the Constitution, 1992 states:

“130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms’ as provided in article 33 of the Constitution, the Supreme Court shall have exclusive original jurisdiction . . .

In my respectful opinion the expression “subject to” is not coterminous with “exclusively.” The English and foreign legal learning on the expression “subject to” would seem to suggest a proviso or a condition without which in this context a jurisdiction may not be assumed. But this is not so. As I said, I listened intently to the opinions of my learned and respected sister and brethren, and having checked his draft opinion, I find myself in total agreement with my learned and respected brother Atuguba JSC in his excellent disquisition on the concurrent jurisdiction of this court on issues affecting the fundamental human rights. In my respectful opinion therefore, the expression “subject to” within the context of this Constitution, 1992 means that if there is no other provision in the Constitution, 1992 by which a remedy may be

[p.11] of [1997-1998] 2 GLR 1 obtained, then the High Court will have specific jurisdiction to grant redress in matters involved in breaches of the provisions of chapter 5 of the Constitution, 1992. The power thus conferred by article 130 is complementary to and not an ouster of any jurisdiction conferred on this court by the Constitution. Nor would article 2 of the Constitution otherwise make sense. This article provides a blanket cover for litigating (a) any 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 “which is inconsistent with or in contravention of a provision of this Constitution.” (The emphasis is mine). Of course article 2 1(l)(g) is a provision of the Constitution, 1992 and in the view of Amua-Sekyi JSC in the case under review, i.e. Edusei v Attorney-General (supra) at 7 that:

“the possession of a passport or other travel document is a sine qua non for every person who leaves Ghana to travel abroad or who, having left Ghana, desires to return, it goes without saying that if the plaintiff has an unrestricted right of entry into the country then he is entitled to be issued with the necessary document or papers to enable him to return.”

Clearly then, under article 2 of the Constitution, 1992 any act of any person with respect to the provision of “an enactment . . .” “which is inconsistent with or is in contravention of a provision of this Constitution . . .” is entitled to “bring an action in the Supreme Court for declaration to that effect.” I do not see how such a clear provision of the Constitution, 1992—granting such exclusive jurisdiction to this Court—may be abridged or ousted even by implication by the proviso to article 130.

In my opinion the applicant’s principal relief in this case under review sought for a declaration that sections 5(1), and (2)(a)(b)(ii) and (iii), 12(3) and 17(e) of the Passports and Travel Certificate Decree, 1967 (NLCD 155) are inconsistent with article 21(1)(g) of the Constitution, 1992. In my respectful opinion the duty of this court was clear—to inquire into the nature and object of the plaint and to determine whether the provisions of NRCD 155 were inconsistent with those parts of article 21 of the Constitution, 1992 referred to in his writ of summons. This court was then entitled to conclude whether or not those sections in the Decree were inconsistent with or in contravention of the Constitution, 1992. The issue of fundamental human rights, if at all, was

[p.12] of [1997-1998] 2 GLR 1 collateral to the main presentation. Regrettably, my learned and respected brethren in the majority took stances which, quoting from the opinion of Justice Brennan in the American case of Haig v Agee, 453 US 280 (1981) “are extreme over-simplifications of constitutional doctrine or mistaken views of the law and facts of the case.” Now that the matter comes up for review, I can reiterate my agreement with the opinion expressed by Mr Justice Brennan quoted above.

At the risk of appearing to criticise my learned and respected brethren, there are more reasons than their numbers for refusing to reach the merits of the case. It is trite learning that a review is not an appeal. But if I heard them correctly in conference, their view is that this case was a human rights issue presented in the form of a request for interpretation and enforcement of the Constitution, 1992. In their opinion this court should have declined jurisdiction since by article 33 only the High Court had jurisdiction and could be approached by any method known to the High Court. It was even suggested that it was a common law principle. I will not belabour this point. But there was the Privy Council case of Jaundoo v AG of Guyana [1971] AC 972 which appears to shed some light on the real basics, if they cared, of the opinion of the majority of my learned and respected brethren. In the character of the clear advice tendered by the English judges to Her Majesty after deliberations on appeals from the Commonwealth States which still retain judicial contact with Britain, Lord Diplock considered the provisions of articles 18 and 19 of the Guyana Constitution and having set down article 19 in extenso, proceeded to consider in particular article 19(6) which, though more detailed and comprehensive, was in many ways similar to our article 33. While I am not bound by this decision, I must express my sincere regard for the authority of the pronouncement.

In the Jaundoo case (supra), as in this case, the Rules of Court Committee had not made the rules governing the procedure and practice in fundamental human rights issues and the Privy Council, in my view rightly, in the context of the Constitution of Guyana decided that when the matter affects the human rights of the citizen and the authority required to settle the rules of practice and procedure for approaching the High Court had not done so, any recognised legitimately available method for approaching the High Court (in this instant) will be proper. As Lord Diplock remarked at 97 of the report, such great importance does the

[p.13] of [1997-1998] 2 GLR 1

Constitution attach to the chapter on fundamental human rights that: “It will have a hollow ring unless the fundamental rights which it bestows upon ‘every person in Guyana’ are buttressed by an effective legal remedy.” I am in full agreement with this view However, it is easy to take a peripheral view of article 19(6) of the Guyana Constitution and over simplify dicta in the Jaundoo judgment (supra) and conclude that the proposition therein stated in that Report constitutes a useful guide to the determination of similar issues arising under our Constitution, 1992. The unsuspecting may not appreciate that there are serious distinctions between the two Constitutions which the majority of my learned and respected brothers failed to take cognizance of in refusing to reach the merits of the instant case at.

First, their lordships in the Privy Council in the Jaundoo case did not refer to any jurisdiction conferred upon any other court with a jurisdiction similar to that conferred on this court by article 2 of the Constitution, 1992. Next, it is obvious from a reading of the article 19 of that Constitution that there is no Supreme Court in Guyana as we know it within our municipality. The hierarchy of courts in that country consists of lower courts, High Court, Court of Appeal and Privy Council. It will be observed that article 19 which was the point for decision is, as have said, a comprehensive adoption of the essential elements of articles 2, 33 and 130 of our Constitution, 1992, but with all powers vested in the High Court In that Constitution, article 19(1) which states, inter alia, the conditions for seeking redress in fundamental human rights issues, is subject to section (6) thereof which requires the rules-making body to make rules to govern practice and procedure in the High Court. Thus a litigant suing for redress or for a declaration that any enactment or act or omission is inconsistent with a provision of the Constitution or is inconsistent with his fundamental human rights is necessarily limited in forum to the High Court. Their lordships were struck by the urgency of the word “redress” and therefore stated at 983 of the report that: “The procedure adopted must be such as will give notice of the application to the person or legislative or executive authority against whom redress is sought and afford to him or it an opportunity of putting the case why the redress should not be granted”

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I am in agreement with this procedure for the speedy ventilation and resolution of a human rights grievance where no other court can be approached. But where, as within our municipality, other courts exists which have concurrent and enhanced jurisdiction in matters touching and concerning the inconsistency with or contravention of “a provision of the Constitution,” it will be idle for a court of competent jurisdiction to pretend that the provisions of chapter 5 of our Constitution, 1992 cannot be the subject of any declaration. Going to court is one and winning one’s case is another. Therefore if the jurisdiction exists it will be wrong of a court to decline to deliver a verdict one way of the other.

In this case, it was suggested that the applicant’s case before the original court was caught by paragraph 6 of the Practice Directions (Practice and Procedure of the Supreme Court) [1981] GLR 1. In respect of the determination of the issue of concurrent jurisdiction of this court with any other lower court, I found it necessary to render below just a short part of the paragraph 6 which reads: “It is also to be noted that where a cause or matter can be determined by a superior court other than the Supreme Court, the jurisdiction of the lower court shall first be invoked.” (The emphasis is mine). I am not here concerned with the remainder of the paragraph under reference which promises dire consequences on counsel or client for such infractions, but the Supreme Court must decide not that it has no jurisdiction in the matter but that the matter “can be determined by a superior court” to whose jurisdiction the application “shall first be invoked.” I do not think that beats the imagination of any average person to conclude that under paragraph 6, the Supreme Court has concurrent jurisdiction with the Superior Court which is capable of determining “a cause or matter” namely, the High Court.

I have taken a little time to dilate on the differences in the formulations of the fundamental human rights practice and procedures between the Constitution of Guyana and our Constitution, 1992 largely because, as I say, we tend to over-simplify matters and reach conclusions which may not accord with the history and principles upon which our Constitution is founded. The Guyana Constitution is founded on the Westminster model while our Constitution is largely founded on the United States of America model with the inclusion of other experiences from the written Constitutions of other countries. But in the area of

[p.15] of [1997-1998] 2 GLR 1 fundamental human rights, it must be said that the matters enumerated in the Constitution, 1992, in chapter 5 thereof are based firmly on the sum total of our national experiences and our nation’s subscription to international conventions and protocols on fundamental human rights. Amua-Sekyi JSC wrote in his contribution in the main case (as reported in [1996-97] SCGLR 1 at 13):

“They remind one of the Preventive Detention Act, 1958 and its successors which empowered the executive or its agents to order the detention without trial of any citizen of Ghana if ‘satisfied that order is necessary’ in specified circumstances. In case after case, among then’ 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 523, SC; Republic v Inspector-General of Police, Ex parte Ibrahim and Tettey [1977] GLR 7; Republic v Assistant Director of Prisons, Ex parte Dagomba [1979] GLR 1, the courts turned away hapless individuals who were challenging the legality of their detention under the various enactments.”

Thus was born article 2 of our present Constitution, 1992 which—unlike the attitude of the predecessor of this court in Re Akoto (supra) in declaring the presidential oath to protect civil liberties and human rights akin only to a non-justiciable “coronation oath”—gives the present Supreme Court power to enforce the provisions of the Constitution, 1992 prevent breaches thereof and declare laws void as being inconsistent with or in contravention of the Constitution. This court, having been granted such awesome authority in the defense of the Constitution, 1992 and in particular in the protection of the civil and human rights of all who live and work within our municipality, cannot cringe from determining issues of human rights on the ground that “exclusive” jurisdiction therefore lay in some other forum. As I have said, the jurisdiction is there. But by the mechanics of the practice direction referred to in this opinion, this court may control which of such cases it may determine itself and which of such cases the parties may “first” invoke the jurisdiction of the High Court.

Such a practice must necessarily involve our understanding and appreciation of the international conventions and protocols on fundamental human rights and freedoms. Briefly, these conventions and protocols may be divided into two categories, namely (a) human rights—civil and political and (b) human

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Rights—economic, social and cultural. I cannot explain these twin concepts better than cite their formulations from a Russian publication entitled A Dictionary of International Law (translated from the Russian and edited by Murad Saifulin Cand Sc (Law) 1986), where the editor classifies civil and political rights as including:

“equality; the prohibition of discrimination; the right to take part in the conduct of public affairs; the prohibition of subjecting anyone to cruel, inhuman or degrading treatment or punishment; the prohibition of slavery, slave-trade and forced or compulsory labour; the right to liberty and security of person; the right to liberty of movement and freedom to choose one’s residence, including the right to freely leave any country; the right to freedom of thought, consciousness and religion; the right to hold opinions without interference and the right to freedom of expression; the right of peaceful assembly; the right to freedom of association; etc.”

Economic, social and cultural rights are also classified as including:

“the right to work; the right of everyone to just and favourable conditions of work; the right to form trade unions; the right of trade unions to function freely; the right to strike; the right to social security, including social insurance; the right to protection and assistance to the family, mothers and children; the right to an adequate standard of living; the right to the highest attainable standard of physical and mental health; the right to education; the right to take part in cultural life, etc.”

It is obvious that civil rights are not “individual rights” as contended by one of my learned and respected brethren. In my respectful opinion, no one person can assemble anywhere for any lawful purpose. Consequently a civil right must ensure to the benefit of a group, a class or even to the whole society. Thus a judgment in a civil rights action must result in a judgment in rem and binding on all persons for all time until circumstances change the shape of these. On the other hand, human rights issues are concerned with individual rights and judgments in respect of such breaches must necessarily be in personam. This must be so because article 33(4) of the Constitution, 1992, unlike the article referred to in the Guyana Constitution, specifies the nature of the

[p.17] of [1997-1998] 2 GLR 1 redress which the High Court may grant. Observing those remedies carefully, it is obvious that the remedies are in the nature of supervisory writs. The nature of these writs were clearly discussed by Dennison J from his seat in the High Court, Accra in Nyarko v Minister of Local Government (1956)2 WALR 147. I do not know how be the application of the prerogative writs to any statute could be declared inconsistent with or in contravention of a provision of the Constitution, 1992.

In the instant application it was obvious that the applicant was litigating his civil right—“the right to liberty of movement and freedom to choose one’s residence including the right to freely leave any country,” incident to which was the possession of a passport. The respondent admitted he was in possession of the applicant’s passport but that: (i) the applicant had not demanded for its return; and (ii) that in any case the passport had expired. I, of course, rejected these excuses and gave my reasons therefor. A judgment on the merits of the applicant’s presentation would have settled the issues for all time.

Reinforcing the concurrent jurisdiction of this court with the High Court on human rights issues, I would like to return to Amua-Sekyi JSC’s opinion in this self-same case :see [1996-97] SCGLR 1 at 10 where his lordship wrote:

“In New Patriotic Party v Inspector-General of Police 30 November 1993, this court declared sections 7, 8, 2(a) 13 of the Public Order Decree, l972 (NRCD 68) void and in New Patriotic Party v Attorney-General (31 December case), 8 March 1994 this court declared that notwithstanding the provisions of the Public Holidays Law, 1989 (PNDCL 220), it was no longer lawful to declare 31 December of each year a public holiday and use public funds to celebrate the occasion. On the learned Ag Attorney-General’s own admission, if the provisions of NLCD 155 complained of are found by this court to be inconsistent with any provision of the Constitution, they shall, to the extent of the inconsistency, be void and this court will have jurisdiction under articles 2(1) and 130 so to declare. Therefore, the correct legal position is that these articles permit a person who alleges that any provision in any enactment, whether made before or after the Constitution came into force, is in conflict with any provision of the Constitution to bring an action for a declaration.”

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The matter of our competence to assume jurisdiction was settled in these two cases mentioned above. It was contended that the decision in the New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC could not be followed because the issue of jurisdiction was not raised. If, as my learned and respected brethren contend, the issue of jurisdiction was not raised, it was not necessary for the court to address itself on a non-existent objection. In any case the respondent, the Attorney-General, knew the law and the Constitution and was prepared to admit that:

“if the provisions of [NLCD 155] complained of are found by this court to be inconsistent with any provision of the Constitution they shall, to the extent of the inconsistency, be void, and this court will have jurisdiction under Articles 2(1) and 130 so to declare.”

Surely, by the same token, this court had jurisdiction to declare sections of the Public Order Decree, 1972 (NRCD 68) and provisions of the Public Holidays Law, 1989 (PNDCL 220) null and void as being inconsistent with or in contravention of a provision or provisions of the Constitution.

In my respectful opinion, there was ample argument in favour of reviewing the judgment. Special circumstances for so reviewing a case must include a situation where this court, being normally bound by the force of our Constitution to follow its previous decision, has failed to do so without ascribing cogent reasons therefor or where this court itself must apply the principle in Mosi v Bagyina [1963] 1 GLR 337, SC in correcting itself.

Thus, for now, as Amua-Sekyi JSC wrote in his original opinion in this self-same case (as reported in [1996-97] SCGLR 1 at 9):

“Speedy justice is what is aimed at, not a curtailment of the jurisdiction of the Supreme Court; nor is it intended to give the timorous, the obsequious or the indolent an excuse for shelving the determination of cases and turning them over to another court or judge.”

This court fails to express the hopes of the framers of the Constitution and the expectations of our people if, in spite of clear authority in support of its jurisdiction in matters affecting the enforcement of fundamental human rights, it tends to “cross(ed) to

[p.19] of [1997-1998] 2 GLR 1 the other side of the road and pass(ed) him by” as in the parable of the Good Samaritan (Luke 10:31)when it sees the problem.

Ampiah JSC. I will also dismiss the application.

Kpegah JSC. In this application, the plaintiff is seeking a review of our previous decision declining jurisdiction to determine his claim as a court of first instance. The ground on which this court had earlier declined jurisdiction was that the plaintiff’s claim, no matter how it was framed, was in essence and substance a claim seeking the enforcement of his fundamental human rights; and by the combined effect of articles 33(l),130(1) and 140(2) of the Constitution, 1992 this was a claim which fell within the exclusive jurisdiction of High Court as a court of first instance The Supreme Court has only appellate jurisdiction in such matters under article 33(3) of the Constitution, 1992.

The right to a review in this court is no longer as a result of the indulgence of the court, but is now a constitutional right conferred by article 133(1) of the Constitution, 1992which provides as follows:

“133. (1) The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by rules of court.”

And rule 54 of the Supreme Court Rules, 1996 (C I 16) provides the grounds and conditions as follows:

“54. The Court may review any decision made or given by it on any of the following grounds —

(a) exceptional circumstances which have resulted in miscarriage of justice;

(b) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given.”

By the nature of this application, the only proper ground which could be urged, and which indeed had been urged upon us, is that there is an exceptional circumstance which had occasioned a miscarriage of justice. Until the coming into force of the Constitution, 1992 and the Supreme Court Rules, 1996 (CI 16),

[p.20] of [1997-1998] 2 GLR 1 this was the sole ground on which an applicant for a review could have approached this court. There is no dearth of authority as to the standard of proof required to be achieved before this court can be induced to review its own solemn decision; the applicant must not only establish that there is a special circumstance for which reason a second look must be taken at his case, but also that the said circumstance had occasioned a miscarriage of justice to him. This standard had been set obviously because of the time-honoured principle that it is in the public’s interest that there be an end to litigation.

While there may not be any judicial definition of what ”exceptional circumstance” is, there are, however, several authorities as to what a review application is not intended to be: a second bite at the cherry or, in plain language, a rearguing of a point all over again. In the case of Republic v High Court, Accra; Ex parte Darke [1992] 2 GLR 440 at 467, SC, said:

“. . . there is no indication as to what the special or exceptional circumstance should be, or what type of threat should be posed to the attainment of justice in a case before the court which will permit a review of its judgment. Being a discretionary power, it has been left to the court itself to determine, as two cases are hardly ever fought on the same facts. There is, however, unanimity as to what a review procedure was not intended for.”

The main ground urged in support of the instant application for a review is that this court erred in declining jurisdiction in the matter. As has earlier been pointed out, although it can be said there is some uncertainty about what this court will consider to be an exceptional circumstance warranting a review of an earlier decision, I think it can be said that jurisdiction being so fundamental in any legal or judicial proceedings, its wrongful assumption or declinature will constitute an exceptional circumstance for a party to successfully make a case for a review. In such a case there is no need to go further and establish that there has been a miscarriage of justice since it can be presumed from the very act of wrongful assumption or declinature of jurisdiction per se.

My lords, I have said it before and I want to repeat it here that in determining the scope or extent of our original jurisdiction, we must read together articles 2(1) and 130(1) of the Constitution, 1992. And reading the two articles together, our exclusive original

[p.21] of [1997-1998] 2 GLR 1 jurisdiction can be said to be in respect of the following situations:

(i) enforcement of all provisions of the Constitution, except those provisions contained in chapter 5 dealing with fundamental human rights; or

(ii) the interpretation of any provision of the Constitution; or

(iii) an issue whether an enactment is inconsistent with any provision of the Constitution.

See Gbedemah v Awoonor-William (1970) 2 G & G 438 and also Tait v Ghana Airways Corporation (1970) 2 G & G 527 which approved and applied the Gbedemah case.

The issue raised in the application before us is whether or not the majority were right in declining jurisdiction in view of the reliefs claimed by the plaintiff. As learned counsel for the plaintiff puts it: “The fundamental submission of the applicant is that this court, with all due respect, erred in holding that the case was in reality and solely one of the enforcement of the human rights provisions of the Constitution, and that it was the High Court that had exclusive jurisdiction to hear the case in the first instance.”

To support his assertion, learned counsel submitted that the first relief sought by the plaintiff was a declaration that certain sections of the Passport and Travel Certificate Decree, 1967 (NLCD 155) are inconsistent with or a contravention of certain provisions of the Constitution and therefore null and void. And since it is only the Supreme Court which has the authority under the Constitution to make such a declaration, it was wrongful for us to have declined jurisdiction. The fallacy of this argument is that this is the constitutional apparel with which the real claim was clad in order to induce us to assume jurisdiction.

I will recall the reliefs the plaintiff claimed in the action:

“(i) That sections 5(1) and 12(3)of the Passport and Travel Certificate Decree, 1967, (NLCD 155) . . . section 5(2)(a) and (b) (ii), (iii) . . . and section 17(e) . . . are inconsistent with, and a contravention of the letter and spirit of the Constitution, and especially articles 11(1), (2) and (3) and 21 (1)(g).

Accordingly, the said sections of NLCD 155 are null and void and unenforceable.

[p.22] of [1997-1998] 2 GLR 1

(ii) As a citizen of Ghana by birth the plaintiff has a constitutional right to enter and leave Ghana a fortiori to a passport to enable him exercise and enjoy that right.

(iii) An order directing the Minister of Foreign Affairs and Director of BNI to return to the plaintiff his old passport to enable plaintiff apply for a new passport.”

In his written submission, learned counsel for the plaintiff, Nana Akuffo-Addo, explained that clerical error was responsible for referring to article 11(1), (2) and (3) instead of article 17 of the Constitution and asked the court to correct the error accordingly. Although he did not make a formal application seeking leave to amend his writ and statement of case, as required by the rules of this court, I personally, suo motu, allowed the amendment. While those in the minority did not consider and never referred to article 17 of the Constitution, 1992, both Ampiah and Adjabeng JJSC referred to the said article without formally amending the writ and statement of case, which may indicate an implied acceptance of the proposed amendment.

After examining the reliefs sought in the writ and the statements of case (as amended), the majority held the view that the plaintiff’s claim was in essence and substance a claim for the enforcement of his fundamental human rights but dressed up as a constitutional issue; and that such a claim is cognisable by the High Court as a court of first instance. This was what I said (in Edusei v Attorney-General [1996-97] SCGLR 1 at 59):

“My view of the case before us is that it is really an action brought to enforce the fundamental rights of the plaintiff but which has been dressed-up in a rich constitutional apparel to make it attractive to this court so that we can give it audience . . . ”

My brother Adjabeng JSC expressed himself in the same report at 60 thus:

“It is quite clear, however, from the papers filed by the plaintiff that his real complaint is an alleged violation of and the enforcement of his human right ‘to enter and leave Ghana and a fortiori to a passport to enable him exercise and enjoy that right.’ This is confirmed by the fact that the plaintiff also seeks a declaration that as a citizen of Ghana by birth he has such a constitutional right; he also seeks ‘An order directing

[p.23] of [1997-1998] 2 GLR 1 the Minister of Foreign Affairs and Director of BNI to return to the plaintiff his old passport to enable the plaintiff apply for a new passport.’ It must be said that this court cannot assume jurisdiction merely because the plaintiffs claim has been framed in such a way as to appear as a constitutional matter to be dealt with by the Supreme Court.”

And in his opinion Ampiah J S C also said at 35-36:

“The plaintiff seeks his reliefs under articles 17(1–(3), and 21 (l)(g) of the Constitution . . . These provisions speak of the rights of the individual citizen.”

After considering the import of articles 130(1), 140(2) and 33(1) of the Constitution, 1992, Ampiah JSC continued at 37 thus:

“It is quite clear from these provisions that the forum for the enforcement of one’s Fundamental Human Rights, etc in the first instance, is the High Court.”

The assessment of the plaintiff’s case as one which in reality was seeking to enforce his fundamental human rights, which is not within our enforcement jurisdiction, is being attacked as an erroneous decision.

In this application the plaintiff has not been able to convince me why the earlier view of his case was erroneous. We therefore have to apply paragraph 7 of our Practice Direction reported in [1981] GLR 1, which says: “The Supreme Court would not entertain any cause or matter dressed up as a constitutional issue which in essence or substance is an issue cognisable by a lower superior court.” I think, collectively, the majority did discuss extensively whether the plaintiff could be said to be invoking our interpretative jurisdiction or not, and they answered the question in the negative. As to whether he could be said to be invoking our enforcement jurisdiction instead, the majority took the view that issues of enforcement of certain provisions of the Constitution arose but this court has no jurisdiction to enforce those provisions as a court of first instance.

This should lead me to a consideration whether the Supreme Court has concurrent jurisdiction with the High Court in the enforcement of the fundamental human rights of individual or not as is being urged upon us in this review application. Since I had exhaustively dealt with this issue in my original judgment which is

[p.24] of [1997-1998] 2 GLR 1 sought to be reviewed through this application, I would prefer leaving this aspect to the fresh minds who have joined the review panel to exercise their minds over it. I can only reiterate my views briefly thus: If one reads articles 2(1) and 130(1) together with articles 33 and 140(2), one comes to the inescapable conclusion that the enforcement jurisdiction of the Supreme Court does not include the enforcement of those provisions of the Constitution relating to the liberties of the individual as a court of first instance This has been specifically assigned to the High Court.

There is some talk of this court assuming jurisdiction under article 129(4) of the Constitution, 1992 which provides as follows “(4) For the purpose of hearing or determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”

(The emphasis is mine.) The above provision of the Constitution, 1992 does not permit the Supreme Court to claim concurrent original jurisdiction with all adjudicating tribunals created by the Constitution or under any other law. The influential condition is that the Supreme Court must first be determining a matter “within its jurisdiction” before it can have all the powers, authority and jurisdiction vested in any court. A distinction must therefore be made between “jurisdiction” properly so-called and ”judicial power.” The two concepts are often confused as meaning the same thing. “Jurisdiction” in its accepted connotation is often defined as:

“the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limit of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means”.

See Halsbury’s Laws of England (3ed), Vol 9 at pages 350-351. And perhaps the most distinguishing factor between “jurisdiction” and “judicial power” lies in the fact that judicial power is often

[p.25] of [1997-1998] 2 GLR 1 exercised by all the courts in the exercise of their legitimate jurisdiction but none of the courts possesses all the jurisdiction to enable it exercise judicial power.

Unless this distinction is maintained, it can be argued that the Supreme Court has original jurisdiction in chieftaincy matters under article 129(4) of the Constitution, 1992. But it could be said that when the Supreme Court is properly seized with an appeal from the National House in a chieftaincy matter under article 131(4) of the Constitution, 1992, it has all the powers, authority and jurisdiction of the chieftaincy tribunals which had previously dealt with the matter; and it could make any order which the said tribunal could have made since as an appellate court it has all the powers and jurisdiction of the lower court or adjudicating tribunal I am therefore of the firm view that before article 129(4) can be resorted to by this court, the matter or determination must be “within its jurisdiction.” I dare say that this article will be relevant and visible when the Supreme Court, being the final court of the land, is exercising its appellate, review and supervising jurisdictions rather than its exclusive original or reference jurisdictions.

In view of all I have said I am of the view that this court properly declined jurisdiction to hear the a plaintiffs claim as a court of first instance and will dismiss the review application.

Adjabeng JSC. I agree with the opinion of my sister, Bamford-Addo JSC just read, and that of my brother, Acquah JSC about to be read, that the application be dismissed.

Acquah JSC. My lords, the basic issue, as I see it, in this review application is whether or not the Supreme Court has concurrent original jurisdiction with the High Court in the enforcement of the provisions on fundamental human rights and freedoms enshrined in the Constitution, 1992 of Ghana. For, I certainly agree with the applicant that the issue of jurisdiction, be it a wrongful assumption or rejection, is such a fundamental issue as to constitute an exceptional circumstance entitling a party affected to apply for a review. But as to whether he will eventually succeed in his quest for a review, is of course, another matter.

The background of this application is that the applicant, a Ghanaian citizen, had his passport withdrawn following investigations into some of his activities. Thereafter, he was sent

[p.26] of [1997-1998] 2 GLR 1 off to United States of America (USA) in exchange for another person who had been arrested in the USA on charges of spying for the Ghana Government. After staying in the USA for sometime, he sought to return home, and so instructed his solicitors in Ghana to request from the Foreign Ministry and the Bureau of National Investigation for the restoration of his old passport. After waiting for sometime without any response from the said authorities, he filed this writ invoking the original jurisdiction of this court against the Attorney-General and the Bureau of National Investigations for:

“1. A declaration that:

(i) Section 5(1) and 12(3) of the Passports and Travel Certificate Decree, 1967, (NLCD 155) which seeks to give the Minister for Foreign Affairs (Member Responsible) wide discretionary powers in the grant, refusal, revocation, cancellation or impounding of passports and travel certificates;

(ii) section 5(2)(a) and (b)(ii), (iii) which provides that the Minister for Foreign Affairs (Responsible Member) shall not issue a passport to specified categories of persons, and section 17(e) which seeks to give the Minister for Foreign Affairs absolute discretion in refusing to grant travel certificates are inconsistent with and a contravention of the letter and spirit of the Constitution, especially articles 17(1), (2) and (3) and 21(1)(g). Accordingly the said section of NLCD 155 are null, void and unenforceable.

(iii) As a citizen of Ghana by birth, the plaintiff has a constitutional right to enter and leave Ghana and a fortiori to a passport to enable him exercise and enjoy that right.

2. An order directing the Minister of Foreign Affairs and the Director of BNI to return to the plaintiff his old passport to enable plaintiff apply for a new passport.”

At the hearing, the Attorney-General resisted the action on a number of grounds including the jurisdiction of this court to entertain at first instance the reliefs sought. He contended, inter alia, that the action raises no issue of interpretation and that it is essentially for the enforcement of the applicant’s fundamental rights and freedoms, and therefore the Supreme Court has no

[p.27] of [1997-1998] 2 GLR 1 concurrent original jurisdiction with the High Court in these matters.

At the hearing, the Attorney-General resisted the action on a number of grounds including the jurisdiction of this court to entertain at first instance the reliefs sought. He contended, inter alia, that the action raises no issue of interpretation and that it is essentially for the enforcement of the applicant’s fundamental rights and freedoms, and therefore the Supreme Court has no concurrent original jurisdiction with the High Court in these matters.

In its judgment delivered on 13 February 1996, this court had no doubt that the applicant was indeed seeking the enforcement of his fundamental rights and freedoms. And by a majority of three to two, it dismissed the action on grounds that it had no such concurrent original jurisdiction with the High Court.

Emboldened perhaps by this split decision, the applicant now seeks this review, contending in his statement of case: “that the dismissal of plaintiffs suit on jurisdiction grounds was a fundamental error, this would constitute an exceptional circumstance and that in the interest of justice the decision ought to be reviewed.”

The applicant thus anchors his review on two grounds, namely, exceptional circumstances and the interest of justice. His submissions grounded on the interest of justice are two-fold. He refers to the case of New Patriotic Party v Inspector-General of Police [1993-94] 2 GLR 459, SC and contends, rightly in my view, that that case bears close affinity to his case. He then submits that since the Supreme Court assumed jurisdiction in this New Patriotic Party v Inspector-General of Police (supra), the interest of justice requires that he ought not be shut out of this court on the ground of jurisdiction. Relying on a number of foreign decisions, he submits that human rights issues are matters of great importance and therefore when such issues are brought before this highest court, everything must be done to do substantial justice to the issues therein rather than allow technicalities to impede the course of justice. He relies in particular on Kent v Dunes, 2 L Ed 2d 1204; Attorney-General v Alli [1989] LRC (Const) 474; Tinyefuza v Attorney-General, 25 April 1997, Uganda Constitutional Court, Constitutional Petition 1; Longwe v The Attorney-General, High Court, Malawi, Misc Civil Appeal No 11 of 1993, unreported; Ferreira v Levin (1996) (I) BCLR I (CC);

[p.28] of [1997-1998] 2 GLR 1

Romesh Thappar v The State of Madras (1950) India Supreme Court 594.

Now, the issue in this review application is basically one of jurisdiction, which of course requires the interpretation of the relevant constitutional provisions. Thus, unless it is demonstrated that the above foreign decisions were based on identical provisions as our relevant constitutional provisions, the fact that those foreign courts assumed original jurisdiction in those actions, can be of no assistance in determining whether our Supreme Court has concurrent original jurisdiction with our High Court in redressing human rights abuses, especially as in the instant case, the applicant failed to set out the relevant statutory provisions on the jurisdiction of the foreign courts.

In this regard, let me reiterate a very pertinent advice I gave in my opinion in Republic v Tommy Thompson Books (No 2) [1996-97] SCGLR 484 at 501. There, I said in relation to the use of foreign decisions in the interpretation of the provisions of our Constitution:

“Now the Constitutions and laws on which the foreign decisions were made, differ in their express provisions from that of the 1992 Constitution of Ghana . . . Accordingly in seeking to apply to the interpretation of our 1992 Constitution what has been said in particular cases about other Constitutions, care must be taken to distinguish between judicial reasoning which depended on the express words used in the particular constitution under consideration, and reasoning which depended on what, though not expressed, is nonetheless a necessary implication from the subject-matter and structure of the Constitution and the circumstances in which it had been made. For a national Constitution is a reflection of that nation’s history and the embodiment of the noble aspirations of its framers. Accordingly, notwithstanding the invaluable scholarship in foreign decisions, what is required of us is originality in the interpretation of our Constitution, paying particular attention to its language, and construing the words in such a way as to advance the intent of the framers—intent nurtured on our peculiar history and social circumstances.”

Apaloo CJ made the same point in Kwakye v Attorney-General [1981] GLR 944 at 958 when he said that in the exercise of the interpretative jurisdiction of this court:

[p.29] of [1997-1998] 2 GLR 1

“We must have regard to the terms of our particular Constitution whose specific reference points are largely unique to our national history. In this area, more than others, judicial pronouncements in other jurisdiction on the particular facts of their experience are not likely to be of much assistance; the range of judicial wisdom embodied in them will, of course, influence our judicial reflections. 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.”

Clearly then, whether the Ghana Supreme Court has concurrent original jurisdiction with the Ghana High Court in redressing human rights abuses, will depend entirely on the language of our relevant constitutional provisions and not on the decision of any foreign Court. For in the case of Romesh Thappar v The State of Madras (supra), for example, decided by the India Supreme Court, articles 32(1) and 266(1) of the Indian Constitution, read: “32(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” And article 226(1) also says:

“226 (1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority, including in appropriate cases, any Government within those territories, order or writs . . . for the enforcement of any rights conferred by Part III and for any other purposes.”

From the above provisions, it is crystal clear that the Indian Supreme Court has concurrent original jurisdiction with the Indian High Court in redressing human rights abuses. The question therefore is, does the Constitution, 1992 of Ghana, have a provision identical with article 32(1) of the Indian Constitution? Certainly not! Thus, to rely on the decision of the Indian Supreme Court on this issue of jurisdiction will undoubtedly undermine the language and integrity of our Constitution, 1992

[p.30] of [1997-1998] 2 GLR 1

Interest of justice

Now, before dealing with the main issue of jurisdiction, let me briefly discuss the two submissions on the interest of justice. First, that of technicalities. I concede that the general tendency of our courts and those in other jurisdictions has been a movement from the clutches of technicalities to doing substantial justice in the particular circumstances of each case. A positive assertion to this effect was made over hundred years ago by Bowen LJ to his American colleagues in the following words (quoted in Potin v. Wood [1962] 2 WLR 258 at 262, CA):

“It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.”

But then an objection on grounds of lack of jurisdiction is not one of technicality. It is a fundamental objection which questions the very foundation and authority of a court to sit and adjudicate on the matter before it. And it is indeed because of. the fundamental nature of the issue of jurisdiction that the applicant herein contends that the dismissal of his action on grounds of lack of jurisdiction constitutes a fundamental error vitiating the majority judgment and entitling him to this review.

Jurisdiction is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject-matter and the parties Jurisdiction defines the powers of court to inquire into facts, apply the law, make decisions and declare judgment. Thus the Oxford Advanced Learners Dictionary defines jurisdiction as: “authority to carry out justice and to interpret and apply law; right to exercise legal authority. . .” Chief Justice Salmon P Chase stated the effect of lack of jurisdiction in Ex parte McCardle 7 Wall 506 (1869) (quoted at page 80 of Constitutional Law for a Changing America (2nd ed) by Epstein & Walker) in the following words:

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”

Thus, in Kumnipah II v Ayirebi [1987-88] 1 GLR 265, SC Amua-Sekyi JSC rightly pointed out that a person affected by a judgment

[p.31] of [1997-1998] 2 GLR 1 which is a nullity on the ground of want of jurisdiction is entitled unconditionally to have it set aside. Accordingly, to describe an objection on grounds of lack of jurisdiction as a technicality is a serious misconception of the nature and potency of jurisdiction.

Let me emphasise that a court of law does not do justice according to a particular judge’s emotional reaction to the suit, but according to law. And no court, irrespective of its position in the court’s hierarchy, is competent to sit on a case if the statute creating that court did not vest it with jurisdiction. And in the instant case, the minority did not ignore the issue of jurisdiction, but proceeded on their firm conviction that the Supreme Court has concurrent original jurisdiction with the High Court.

The other submission is that since this court assumed jurisdiction in New Patriotic Party v Inspector-General of Police (supra), a case quite similar to the instant one, the interest of justice requires that jurisdiction ought to have been assumed by the majority. This raises, in some respects, the issue of judicial precedent. Precedent is admittedly an important and useful factor in our decision-making process. But a rigid adherence to it may be inimical to the development of the law. For one cannot, for example, help but reflect on what would have been the effect on English Law if the majority decision of three to two had been the other way in the case of Donoghue v Stevenson [1932] AC 562, HL.

Certainly, stare decisis promotes the important considerations of consistency and predictability in judicial decisions, and represents a wise and appropriate policy in most instances. But that doctrine has never been thought to stand as an absolute bar to reconsideration of a prior decision, especially with respect to matters of constitutional interpretation. For where a court errs in its construction of a statute, correction may always be accomplished by legislative action. But the cumbersome process of amending a constitutional provision, coupled with the injunction on Parliament in article 107(a) of the Constitution, 1992, impose a duty on this court to re-examine a precedent where its reasoning or understanding of the Constitution is fairly called into question And whenever the said precedent is found to be unsatisfactory, to refuse to follow it. Article 107(a) provides: “Parliament shall have no power to pass any law– (a) to alter the decision or judgment of any Court as between the parties subject to that decision or judgment” In my view therefore, a constitutional decision of this

[p.32] of [1997-1998] 2 GLR 1 court should be open to discussion when it is supposed to have been founded in error, so that our judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.

In Green v United States, 356 US 165 (1958) (quoted at page 23 of Constitutional Law for a Changing America (supra), Justice Black said:

“Ordinarily it is sound policy to adhere to prior decisions but this practice has quite properly never been a blind, inflexible rule. Courts are not omniscient . . . Indeed, the court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time and where compelling reasons present themselves, to refuse to follow erroneous precedents; otherwise mistakes in interpreting the Constitution are extremely difficult to alleviate and needlessly so.”

Thus, of the 105 precedents overruled by the United States Supreme Court between 1953 and 1990 terms, 68.6 per cent involved constitutional issues. In Ghana, article 129(2) of the Constitution, 1992 does not bind this court to follow the decision of any court, while 129(3) thereof empowers this court to depart from its previous decision if it appears right to do so.

Now, it is not everything said in a decision that constitutes binding judicial precedent. As the late Cecilia Koranteng-Addow J rightly stated in Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554 at 564:

“It is the reason or principle on which a question before a court has been decided, which is binding as a precedent. It is the ratio decidendi of a judgment of a superior court which sets a precedent for itself or inferior courts to follows.”

And Sir George Jessel in In re Hallett’s Estate; Knatchbull v Hallet (1879) 13 ChD 696 at 712 also said: “The only, use of authorities or decided cases is the establishment of some principle which the judge can follow out in deciding the case before him.”

In New Patriotic Party v Inspector-General of Police (supra) the reliefs claimed were:

“(i) 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

[p.33] of [1997-1998] 2 GLR 1 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 obtaining 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, especially article 21(1)(d) therefore null, void and unenforceable.

(ii) Under the Constitution no permission is required of the police or any other authority for the holding of a rally or demonstration or procession or public celebration of any traditional custom by any person, group or organisation.”

In their accompanying statement of case, the New Patriotic Party (NPP) pleaded in paragraph (4) thereof:

“(4) The plaintiff says that the right of its members to embark on a peaceful demonstration is enshrined and guaranteed by article 21(1)(d) of the Constitution as a fundamental human right.”

The plaintiff then pleaded instances where their members had been prevented from going on demonstration and then concluded in paragraph (11) as follows:

“(11) The plaintiff says that in each case the prohibition of the holding of these rallies and the arrest of its members on a peaceful demonstration were effected by first defendant in violation of the fundamental human rights of the plaintiff and its members as enshrined in the Constitution, especially article 21(1)(d) thereof.”

It is clear from the above pleadings and indeed the written legal submissions that the New Patriotic Party was essentially seeking the enforcement of the fundamental rights of its members to demonstrate freely without interference as guaranteed in article 21(1)(d) of the Constitution, 1992. And that the issue of interpretation, if it did arise, was only incidental to the realization of this objective. It is also equally clear from the pleadings that the [p.34] of [1997-1998] 2 GLR 1 defendant did not plead nor raise the issue of jurisdiction. Consequently, that court could not, especially as the parties had no opportunity to address on that issue, make any pronouncement on whether or not it had original jurisdiction in the matter before it. And since the court made no such pronouncement, its decision cannot constitute a precedent on the issue of jurisdiction.

Of course, if the issue of jurisdiction had been raised in New Patriotic Party v Inspector-General of Police (supra), the court would have undoubtedly adverted its attention to the well-established principle on the scope of the Supreme Court’s original jurisdiction in the interpretation and enforcement of the provisions of the Constitution, as enunciated in Gbedemah v Awonoor-Williams (1970)2 G & G 438, and later cited and approved in a number of cases including: Tait v Ghana Airways (1970) 2 G & G 529; Republic v Maikankan [1971] 2 GLR 473, SC; Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, CA; Ghana Bar Association v The Attorney-General [1995-96] 1 GLR 598, SC. According to the principle, for a person to be able to invoke the original jurisdiction of the Supreme Court, the writ of summons or statement of claim or both, must prima facie raise an issue relating to: (a) the interpretation of the provisions of the Constitution, or (b) the enforcement of a provision of the Constitution, or (c) a question whether an enactment was made ultra vires Parliament, or any other authority or person or under the Constitution. On the question, when an issue of interpretation arises, the court held that interpretation does not arise where the language of the provision is clear and unambiguous.

Accordingly, on the basis of the above principle, Bamford-Addo, JSC in Ghana Bar Association v Attorney-General (supra) at 613-614 set out the relevant factors in considering the issue of the Supreme Court’s original jurisdiction in the following words:

“In deciding the issue of jurisdiction, matters to take into consideration include the statute which invests jurisdiction as well as the true nature of the claim having regard to the pleadings, issues and reliefs sought or the actual effect of the reliefs, regardless of the words used or the manner in which the claim and reliefs are couched. I agree with the test provided in the case of Gbedemah v Awoonor-Williams (1969) 2 G & G 438 as applied in the case of Tait v Ghana Airways Corporation (1970) 2 G & G 527 (Court of Appeal sitting as

[p.35] of [1997-1998] 2 GLR 1 the Supreme Court). In deciding whether this court is seized with jurisdiction in the present claim, I intend to apply that test.”

(The emphasis is mine.) But unfortunately the issue of jurisdiction was not raised in New Patriotic Party v Inspector-General of Police (supra), and the opportunity was thus lost in applying the above test to the materials before their lordships. In sum therefore, once the issue of jurisdiction was not raised and pronounced upon in New Patriotic Party v Inspector-General of Police (supra), same cannot constitute a precedent on jurisdiction.

On the other hand, the very assumption of jurisdiction by the court in New Patriotic Party v Inspector-General of Police (supra) without question, cannot also constitute lawful justification for this court to continue assuming jurisdiction in subsequent cases. For the equitable principles of estoppel have no place when it comes to the interpretation and enforcement of the provisions of the Constitution. As Adade JSC aptly put it in Bilson v Apaloo [1981] GLR 24 at 69-70 thus:

“But it is said that the Court of Appeal has been sitting five all the time, and no one has raised a finger.

That does not mean that a finger can never be raised. It has been raised now, and we cannot force it down. If, in my reckoning, an error was committed then, there is no reason why that error should be perpetuated simply because it has been done with impunity in the past. ‘Public policy and common sense’ pleaded by the defendant, cannot be suffered to oust the operation of what, in my view, are the clear prescriptions of the constitutional provision.”

In the instant review, going by the test ably set out above by Bamford-Addo, JSC, although the applicant couched his reliefs as seeking the interpretation of certain provisions of the Constitution, 1992 vis-à-vis sections of the Passport and Travel Certificate Decree, 1967 (NLCD 155), it is clear from his statement of case and written submissions that he was in substance and in effect seeking the enforcement of his fundamental right under the Constitution, 1992. Thus at page 10 of his written submissions filed on 11 August 1990, he summarises the substance of his action, in the following words:

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“The plaintiff here is a citizen of Ghana who has brought an action against the government of Ghana in the Ghana Supreme Court to enforce a right . . . founded on his constitutional right as a citizen of Ghana under the Ghana Constitution. Finally . . . no one can thereby deny or take away or suspend the enforcement and enjoyment of a citizen’s constitutionally guaranteed right in his own country.

(The emphasis is mine.) It follows then that the applicant’s relief for a declaration that certain sections of the NLCD 155 are inconsistent with the Constitution, 1992 are only a means of securing the enforcement of his fundamental rights. To this end, having regard to the provisions of articles 33(1), 130(1) and 140(2), has this court original jurisdiction to entertain his action? The majority at the ordinary bench says “No”, while the minority says “Yes.” Which is which?

The issue of jurisdiction

Now, the arguments for the concurrent original jurisdiction of the Supreme Court, advanced by the applicant at the ordinary bench, are premised first, on their interpretation of article 33(1); second, on the combined effect of articles 33(1) and 130(1) and finally on the fact that the Rules of Court Committee had not yet, in accordance with article 33(4) of the Constitution, 1992, made rules of court on the practice and procedure for the superior courts in redressing human right abuses.

In Gbedemah v Awoonor-Williams (supra) the court examined articles 228(1) and 106(1) of the Constitution,1969, now articles 2, 33(1) and 130(1) of Constitution, 1992, and made definite pronouncement on the scope of the Supreme Court’s enforcement jurisdiction, and whether under article 28(1), now 33(1) of the Constitution, 1992, the Supreme Court can also entertain at first instance human rights cases. At 440 of the report, Azu-Crabbe JA (as he then was), reading the unanimous opinion of the Court of Appeal sitting as the Supreme Court, said:

“In the whole of the Constitution there were only two articles—article 2 and article 28—which have the word “enforcement” in a marginal note on the side of the main provisions. In our view, it is not without significance that the powers to enforce in article 28 are excluded from the original jurisdiction of the Supreme Court. This article which is found

[p.37] of [1997-1998] 2 GLR 1 in chapter 4 of the Constitution deals with the enforcement of the fundamental human rights—liberty of the individual. Under article 28 any person who alleges that his fundamental rights and freedoms have been infringed can seek redress by initiating proceedings in the High Court, which alone is vested with original jurisdiction in matters affecting the liberty of the individual.”

(The emphasis mine.) Later down in the unanimous opinion, his lordship continued at the same page thus: “The word enforcement in article 106(1) is not defined in the Constitution, and unless we can find words within the corners of the Constitution that restricts its application, we will conclude that it means the enforcement of the provisions of the Constitution, other than the provisions of article 12 to 27 [ie those on fundamental human rights.]”

(The emphasis mine.) The court then dismissed the preliminary objection and assumed jurisdiction because article 71(2)(ii) in respect of which Mr Awoonor-Williams founded his claim was not part of the human rights provisions.

It is thus evidently clear that Gbedemah v Awoonor-Williams (supra) authoritatively settled the point that the original jurisdiction in the enforcement of human rights abuses, as far as the courts are concerned, was vested only in the High Court, and that the Supreme Court had no concurrent original jurisdiction with the High Court in such matters. For the Supreme Court’s powers of enforcement under article 2 did not cover the enforcement of human rights violations which are expressly reposed in the High Court under article 33(1) of the Constitution, 1992.

The decision in Gbedemah v Awoonor-Williams (supra) notwithstanding, I will proceed to examine each of the three arguments set out above. Article 33(1) of the Constitution, 1992 reads “33. (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.”

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The argument is that article 33(1) of the Constitution,1992 is permissive in language and does not specifically exclude the original jurisdiction of the Supreme Court. The permissiveness is alleged to be founded on two expressions: first “without prejudice to any other action that is lawfully available”, and secondly, “may apply . . .”

Now, on a reading of article 33(1) of the Constitution, 1992, it is quite clear that the first expression refers to any possible cause of action which may arise from a violation of one’s fundamental right and freedom, independent of that victim’s constitutional right of seeking redress for the said violation. Thus, for example, if someone’s personal liberty is violated through wrongful arrest and detention, the victim may, while in detention, resort to the High Court on a habeas corpus application for his release and may thereafter sue for damages for unlawful arrest and detention at a court with jurisdiction to award the damages he seeks. The action for unlawful arrest and detention is one which is lawfully available to the victim following the violation of his personal liberty. And this is all that the first expression deals with. It does not mean that one can file this habeas corpus application at the Supreme Court. No!

In respect of the second expression, the “may” gives the victim of a human right violation, the option of going to court to seek redress. The victim is under no compulsion to go to court for redress if he does not wish to do so. In the example given above, the victim in detention may decide not to seek his release, but wait till the authority releases him, after which he may sue for damages for unlawful arrest and detention. Or some people may even not take any such action at all, and may console themselves in God’s retribution. The “may” indicates the freedom of the victim to decide on what to do. For, to compel such a victim to seek redress in court would equally amount to a violation of his fundamental right and freedom of thought, conscience and belief as guaranteed in article 21 (1)(b) of the Constitution, 1992.

But if, however, the victim decides to go to court for redress, then he ought to apply to the High Court as provided in article 33(1) and confirmed in article 140(2) of the Constitution,1992 which provides: “140(2) The High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms guaranteed by this Constitution.” In no other court in the Constitution, 1992 is such original jurisdiction vested. To contend therefore that the two

[p.39] of [1997-1998] 2 GLR 1 expressions discussed above are permissive and do not exclude the original jurisdiction of the Supreme Court is not only untenable, but would even lead to the absurd result that all the other courts can by that argument exercise such jurisdiction. For, the Supreme Court is not specifically mentioned in article 33(1) of the Constitution, 1992.

It is also important to note, in relation to the expression “may apply”, that under the Constitution, 1992, apart from the judiciary, the Commission for Human Rights and Administrative Justice created in chapter eight thereof, is also empowered to handle complaints, investigate violations and offer redress in human rights issues. Thus a victim of human rights violation may decide not to seek redress at the courts but at the Commission for Human Rights and Administrative Justice which is empowered under article 218 of the Constitution, 1992, to, inter alia, investigate and take “appropriate action to call for the remedying, correction and reversal” of human rights abuses. It is clear therefore that there is nothing in article 33(1) of the Constitution, 1992 that can support the contention that the Supreme Court has concurrent original jurisdiction with the High Court.

But it is further contended that the Supreme Court’s concurrent original jurisdiction can be inferred from the reading of article 33(1) and 130(1) together of the Constitution, 1992. Article 130(1) of the Constitution, 1992 reads:

“130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive 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 or Parliament or any other authority or person by law or under this Constitution.”

For a proper analysis and understanding of this provision, I will break it down into two parts: the “subject to” part, and the main part. The “subject to” part is:

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“Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution . . .”

The rest of the provision is the main part which outlines the Supreme Court’s exclusive original jurisdiction in the matters set out in sub-clauses (a) and (b) thereunder.

Now, it must be noted that the expression “subject to” appearing at the beginning of article 130(1) of the Constitution,1992 is generally used in legislation to serve as a warning and thereby avoid an apparent conflict between different provisions of the same enactment or between different enactments: see Clark (C&J) Ltd v Inland Revenue Commission [1973] 1 WLR 905 and Addo v Sabrah [1968] GLR 154. In the latter case, which dealt with the original jurisdiction of the High Court in rent disputes, the relevant paragraph 27 of the Courts Decree, 1966 (NLCD 84) provided:

“27. Subject to and in accordance with the provisions of this Decree and any other enactment for the time being in force, the High Court shall have— (a) original jurisdiction in all matters . . .”

In explaining the purpose and effect of the expression “subject to” at the beginning of paragraph 27 of NLCD 84, Charles Crabbe J, (as he then was), that acknowledged authority in legislative drafting, said at 158:

“The expression ‘subject to’ is used in legislation to serve as a warning. It is used to indicate a modification and thereby point out that the particular provisions in which it is used is not complete by itself. It is used to avoid an apparent conflict between different provisions of the same enactment or between different enactments or between different parts of the same enactment. To resolve a conflict that would otherwise be apparent, it was, in my view, desirable that a warning should be given. It is therefore clear to me that paragraph 27 of the Courts Decree is incomplete as it stands, for the whole of that paragraph cannot be read and construed without looking at other provisions of the Decree with which it might be in conflict. Not only that. It has to be read in conjunction with ‘any other enactment for the time being in force.”

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His lordship then proceeded at 159 to state the effect of the “subject to” part of paragraph 27 thus: “The effect of this is that if there is any enactment which confers specific jurisdiction on any court or authority or body, the High Court is precluded from dealing with that matter save perhaps on an appeal.”

(The emphasis is mine.) Indeed, in the Constitution, 1992, the expression “subject to” appears in over fifty provisions. For example, it appears in article 5(1), 6(2), 11(5), 17, 39(11), 50(1), 55(3), 55(10), 55(17), 58(3), 69(4), 92(11), 94(c), 93(2), 120, 113, 136(5), 110(1), 244(4), 278(1) and 278(4) of the Constitution, 1992. Article 136(5), for instance, reads:

“(5) Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law.”

Article 129(3) of the Constitution, 1992 in respect of which 136(5) is subject to, also reads:

“(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

Now, it can be seen from the above two provisions, ie articles 129(3) and 136(5) of the Constitution,1992, that, had it not been for the “subject to” to part of article 136(5), there would have been a dilemma for the Court of Appeal whenever that court is faced with a choice between a decision of it which is in conflict with that of the Supreme Court on a question of law. But by virtue of the “subject to” part of article 136(5), whenever such a situation occurs, the main part of article 136(5) of the Constitution,1992 gives way to the “subject to” part, to enable the Court of Appeal follow the decision of the Supreme Court as provided in article 129(3) of the Constitution, 1992 instead of its previous inconsistent decision. The Court of Appeal is thereby, in effect, precluded from following its own previous inconsistent decision because of the “subject to” part of article 136(5) of the Constitution, 1992.

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The net result of the above analysis is that where a statutory provision is expressed to be “subject to” another statutory provision or statute, this generally makes the “subject to” provision prevail over the main provision, whenever there appears to be conflict or incongruity in reading the two provisions together.

Now, in the instant case, in respect of article 130(1) of the Constitution, 1992, the main part thereof show that the Supreme Court has exclusive original jurisdiction in respect of the matters set out in sub-clause (a) and (b) thereunder. And under sub-clause (a), the exclusive original jurisdiction is in respect of the interpretation and enforcement of all the provisions of the Constitution, 1992. But then article 33(1), as conclusively confirmed by article 140(2) of the Constitution, 1992, shows that the High Court also has original jurisdiction in the enforcement of the human rights and freedoms provisions in chapter five of the Constitution, 1992. In that situation, the main part of article 130(1) of the Constitution, 1992 which talks of the Supreme Court’s exclusive, and the emphasis is on the word “exclusive”, original jurisdiction in the enforcement of all the provisions of the Constitution, 1992 which by that must necessarily include those on fundamental human rights, cannot be reconciled with the allocation of the same original jurisdiction in human rights provisions to the High Court in articles 33(1) and 140(2) of the Constitution, 1992. In other words, if that jurisdiction is exclusive to the Supreme Court, as the main part of article 130(1) of the Constitution, 1992 provides, then that exclusive original jurisdiction cannot be shared with the High Court nor any other court.

Accordingly, to remove this conflict between the exclusiveness of the Supreme Court’s original jurisdiction and the High Court’s original jurisdiction in articles 33(1) and 140(2) of the Constitution, 1992, the “subject to” part of article 130(1) of the Constitution, 1992 precludes the Supreme Court from exercising original jurisdiction in the enforcement of human rights abuses, so as to preserve the exclusiveness of the Supreme Court’s original jurisdiction in the enforcement of all the other provisions of the Constitution, 1992, except those on the fundamental human rights and freedoms. For, just as the “subject to” part of article 136(5) of the Constitution, 1992 precluded the Court of Appeal from following its own previous inconsistent decision because of article 129(3) of the Constitution, 1992, so the “subject to” part of article 130(1) of the Constitution, 1992 precludes the Supreme Court,

[p.43] of [1997-1998] 2 GLR 1 from exercising original jurisdiction in the enforcement of fundamental human rights freedoms provisions as same had already been vested in the High Court under article 33(1) of the Constitution, 1992. It is by such an interpretation of article 130(1) of the Constitution, 1992 that one can give meaning and content to the exclusiveness of the original jurisdiction vested in the Supreme Court in the main part of article 130(1) of the Constitution, 1992. The word “exclusive” was not used in article 130(1) of the Constitution, 1992 without significance. And an interpretation which fails to bring out the meaning and effect of the word “exclusive”, would be myopic. For as the Privy Council cautioned in Ditcher v Denison (1857) 11 Moo PCC 324 at 337:

“It is also a good general rule in jurisprudence that one who reads a legal document, whether public or private, should not be prompt to ascribe, should not without necessity or some sound reason, impute to its language tautology or superfluity, and should be rather at the outset inclined to suppose each word intended to have some effect, or be of some use.”

The word “exclusive” in article 130(1) of the Constitution, 1992 was therefore not put down for fun but intended to vest in the Supreme Court a jurisdiction not to be shared with any other court. Not surprisingly therefore, the unanimous decision in Gbedemah v Awoonor-Williams (supra), as already pointed out, came to the conclusion as I have done, when in defining the exclusive original jurisdiction in the enforcement of the provisions of the Constitution, 1969 the Court stated at 440 that the Supreme Court’s power of enforcement “. . . means the enforcement of the provisions of the Constitution, other than the provisions of article 12 to 27” [ie those on fundamental human rights].”

The same conclusion was also reached by Bamford-Addo JSC in Ghana Bar Association v Attorney-General, Supreme Court, 7 January 1995, unreported, wherein the Ghana Bar Association sought a declaration that section 57 of the Courts Act, 1993 (Act 459) and 15(1) of the Chieftaincy Act, 1971 (Act 370) were inconsistent with article 140(1) of the Constitution, 1992. After meticulously examining Gbedemah v Awoonor-Williams (supra), the Constitutional Proposals, and the relevant provisions of the Constitutions, 1969 and 1992, Bamford-Addo JSC said:

“Unless a person can bring his case within the situations indicated in Gbedemah v Awoonor-Williams as approved in

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Tait v Ghana Airways Corporation, the original jurisdiction of this court cannot be invoked. There are other constitutional arrangements for an aggrieved person to call upon another court to intervene before the matter travels to us by way of appeal. The original jurisdiction is a special and exclusive jurisdiction which can be invoked in the circumstances indicated already.”

Her lordship then went on to make a crucial distinction between article 2(1) and 33(1) of the Constitution, 1992, thus:

“It is necessary to maintain the distinction between a suit to enforce the constitution and one which is intended to enforce a personal or proprietary right which has been breached. While the former action can be brought by invoking the original jurisdiction of the Supreme Court, the latter is enforceable in the High Court.”

She thereafter quoted articles 33(1) and 140(1) of the Constitution, 1992 and concluded thus: “In my view, article 2(1) is not for the enforcement of rights—whether individual or corporate rights. That is the function of article 33(1) of the Constitution . . . Article 2(1)is for the enforcement and interpretation of the Constitution. This is the ratio decidendi in Tait v Ghana Airways Corporation (supra) So in People’s Popular Party v Attorney-General (supra) when the party alleged its right under the Constitution were breached, it properly went to the High Court to seek a redress or remedy.”

The above excellent and impeccable exposition of Bamford-Addo JSC clearly explodes the proposition that the Supreme Court has concurrent original jurisdiction with the High Court in the enforcement of human rights actions. Thus a reading of articles 33(1) and 130(1) of the Constitution, 1992 together does not, in any way, bear out the contention that the Supreme Court has concurrent original jurisdiction with the High Court in human right abuses. Such a contention is clearly inconsistent with the exclusiveness of the original jurisdiction vested in the Supreme Court in the main part of article 130(1). It is, indeed, a failure to appreciate the import of the “subject to” part of article 130(1) and

[p.45] of [1997-1998] 2 GLR 1 the meaning and effect of the word “exclusive” in the main part of the same article, that leads to the untenable concurrence notion.

No practice and procedure rules

The last argument for the concurrent original jurisdiction is founded on the absence of rules of court governing the practice and procedure of the superior courts in human rights and freedoms violation. Going strictly by the argument, it is not only the High Court, but the Supreme Court itself cannot also entertain that original jurisdiction because the rules required under article 33(4) are meant not only for the High Court but the superior courts which include the Supreme Court. The logical conclusion of this argument should be that because of the absence of the rules of court required under article 33(4), human rights abuses cannot be redressed at all in the courts. And the only avenue left for a victim ought to be the Commission for Human Rights and Administrative Justice. For, if there are no rules to enable the High Court exercise it’s original jurisdiction, no such rules had equally been made to enable the Supreme Court exercise any such original jurisdiction. But there can certainly be no failure of justice.

Now, article 33(4) of the Constitution, 1992 reads: “The Rules of Court Committee may make rules of court with respect to the practice and procedure of the Superior Courts for the purposes of this article.” As I have already pointed out, the said rules of court have as yet not been made. But does this mean that there should be no means of seeking redress in human rights violations at the High Court? This question was considered in the Privy Council case of Jaundoo v Attorney-General of Guyana [1971] AC 927, PC. In that case, article 8(1) which was part of the human rights provisions of the Guyana Constitution guaranteed that there should be no compulsory acquisition of a person’s property except in accordance with a written law and the payment of compensation. Article 19(1)(4) of the same Constitution gave a right to a victim of human rights violation, to seek redress at the High Court with a further right of appeal to the Court of Appeal and finally to the Privy Council. Article 19(6) thereof directed Parliament to make rules on the practice and procedure for seeking redress at the said courts. At the time of Jaundoo’s case (supra) Parliament had not made the said rules. Now, Jaundoo, a land owner, fearing that her constitutional right under article 8(1) of the Constitution was about to be infringed by the government’s threat to construct a

[p.46] of [1997-1998] 2 GLR 1 new road upon part of her land, took out an originating notice of motion against the Attorney-General for redress under article 19 of the Constitution. The High Court of Guyana dismissed her application not on the merits but on grounds that originating notice of motion was improper. Her appeal to the Court of Appeal was also dismissed by a majority of two to one, with the opinions of their lordships being as diverse and conflicting on the proper procedure to be adopted in such circumstances. At the Privy Council, their lordships referred to the statement of the law in In re Meister, Lucius and Bruning Ltd [1914] 31 TLR 28 at 29, which reads:

“Where the Act (s.c. Constitution) merely provides for an application and does not say in what form that application is to be made, as a matter of procedure it may be made in any way in which the court can be approached.”

To this statement of the law, their lordships added at 983 that:

“The procedure adopted must be such as will give notice of the application to the person or the legislative or executive authority against whom redress is sought and afford to him or it an opportunity of putting the case why the redress should not be granted.”

This Privy Council decision in Jaundoo v Attorney-General of Guyana (supra) was referred to with approval by Francois JSC in his opinion in Darko v Amoah [1989-90] 2 GLR 214 at 219, SC wherein his lordship said:

“In any event it is elementary that where the procedure for utilising a substantive legal provision has not been spelt out, a litigant is entitled to adopt the nearest, reasonable mode of utilising the right accorded by the law.”

Again Robert Hayfron-Benjamin J (as he then was) adopted the statement of the law in In re Meister, Lucius and Bruning Ltd (supra) in the People’s Popular Party v Attorney-General [1971] 1 GLR 138. In that case, the People’s Popular Party, a registered political party under the Political Parties Decree, 1969 (NLCD 345), was refused a permit by the police to hold protest marches in respect of a political issue, even though a permit had been given to another group to protest on a similar issue. The police did not assign any reason for the refusal. The People’s Popular Party thereupon, by an originating summons, sought a High Court’s

[p.47] of [1997-1998] 2 GLR 1 order to compel the police to issue the permit to them, submitting that their liberty of association, movement and assembly, as provided in the Constitution, 1969, had been infringed. The Rules of Court Committee had then not made rules governing the practice and procedure for the enforcement of the fundamental human rights. Thus, as to whether the Peoples Popular Party could seek redress at the High Court by originating summons, his lordship at 145, of the report said:

“Article 28(4) of the Constitution provides that, ‘The Rules of Court Committee may, by constitutional instrument, make Rules of Court with respect to the practice and procedure of the Superior Court of Judicature for the purposes of this article.’ No such rules have so far been made. It is however a rule of practice that where a statute provides for an application to the court without specifying the form in which it is to be made, and the normal rules of court do not expressly provide for any special procedure, such applications may be made by an originating motion. See Re Meister Lucius and Bruning Ltd [1914] WN 390 . . . I am satisfied that . . . their application is properly before this court.”

The legal position therefore is that where an enactment confers an actionable right on a person, but there are no rules specifically provided for vindicating that right because either that enactment provided none, or it rather directed an authority to make the said rules which are yet to be made, an aggrieved person is entitled to adopt the nearest reasonable procedure of utilising the right accorded by the law—a procedure which must be such as to give notice to the person or legally authorized authority against whom redress is sought, and afford to him or it an opportunity of putting his side of the case. For where there is an actionable right there must be a remedy for vindicating that right.

Accordingly, in the instant review, the absence of rules of court by the Rules of Court Committee cannot amount to a failure of justice nor imply that there can be no means of seeking redress at the High Court. Furthermore, the absence of such rules of court cannot also justify a recourse to the exclusive original jurisdiction of the Supreme Court set out in article 130(1) of the Constitution, 1992.

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Conclusion

From the above exposition, it is clear that each of the arguments advanced in support of the view that the Supreme Court has concurrent original jurisdiction with the High Court in redressing human rights abuses under the Constitution, 1992 is untenable, and the majority at the ordinary bench, were therefore justified in dismissing the plaintiff’s action on grounds of jurisdiction. The application for review will therefore be dismissed.

Atuguba JSC. This is an application for review of the decision of this court, dated 13 February 1996, dismissing the plaintiff’s action wherein he sought the reliefs already recounted in the rulings that have preceded mine.

The applicant contends that in so far as his said action was dismissed for want of jurisdiction, an exceptional circumstance has thereby arisen since this court “assumed jurisdiction” in the case of the New Patriotic Party v Inspector General of Police [1993-94] 2 GLR 459, SC which is, in all relevant respects, identical to the present case. He in substance contends that:

“Once the jurisdiction of the Supreme Court has been properly invoked . . . that court has power under article 129(4) of the Constitution to exercise ‘all the powers, authority and jurisdiction vested in any court established under this Constitution or any other Law’”

This, the applicant submits, includes the power to enforce the human rights provisions of the Constitution, 1992.

Article 129(4) of the Constitution, 1992 reads in full as follows “(4) For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”

(The emphasis is mine.) I have come to the conclusion that this court indeed has a concurrent jurisdiction with the High Court in the enforcement of the fundamental human rights by a process of

[p.49] of [1997-1998] 2 GLR 1 reasoning that is not quite the same as that of the applicant. It seems to me that if one goes by the applicant’s route alone, it is workable only where the issue of the fundamental human rights is incidental or ancillary to the main original action before this court. In other words, where the real substance of an action before this court is within the jurisdiction of this court but then touches an issue of fundamental human rights coincidentally, then such an issue can as well be entertained by this court by reason of article 129(4) of the Constitution, 1992. This, to my mind, in this connection, is the crux of article 129(4) of the Constitution, 1992 which is premised on this court having to deal with, “a matter within its jurisdiction and the amendment, execution or enforcement of judgment or order made in any other matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law.”

(The emphasis is mine.) In other words, article 129(4) of the Constitution, 1992 cannot by itself initially confer jurisdiction on this court in the fundamental human rights. Some such reasoning has all along been the core ratio decidendi of such cases as Tait v Ghana Airways Corporation 2 G & G 527 and Yiadom v Amaniampong [1981] GLR 3.

The case of New Patriotic Party v The Attorney-General (the CIBA Case) [1996-97] SCGLR 729 could illustrate this point. There the New Patriotic Party challenged the constitutionality of certain provisions of the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) which, inter alia, required certain specified organisations to be compulsorily registered with that council on grounds that touched and concerned the freedom of association, a fundamental human right. The action succeeded in part. The rights of the New Patriotic Party itself were not affected in that action. The involvement of the fundamental human rights in that case was therefore only incidental.

The predecessors of article 130(1) of the Constitution, 1992 are article 106(1) of the Constitution, 1969 which provided as far as is relevant that.

[p.50] of [1997-1998] 2 GLR 1

“106. (1) The Supreme Court shall, save as otherwise provided in article 28 of this Constitution, have original jurisdiction, to the exclusion of all other courts,

(a) in all matters relating to the enforcement or interpretation of any provision of this Constitution . . .”

And article 118(1) of the Constitution, 1979 also provided that:

“118. (1) The Supreme Court, shall, except as otherwise provided in article 35 of this Constitution, have original jurisdiction, to the exclusion of all other Courts,

(a) in all matters relating to the enforcement or interpretation of any provision of this Constitution.”

However the Constitution, 1992 has, in modified language, provided in article 130(1) as follows:

“130 (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in—

(a) all matters relating to the enforcement or interpretation of this Constitution.”

(The emphasis is mine.) The differences in the language used in the Constitutions, 1969 and 1979 and the Constitution, 1992 with regard to the original jurisdiction of this court are crucial and unaccidental. The background to the said provisions of the Constitutions, 1969 and 1979 has vividly been related by a keen Ghanaian constitutionalist, (now Professor C E K Kumado) in his article “Judicial Review of Legislation in Ghana since independence” (1980)12 RGL 67, particularly at p 82 where he states: “The Decree which set up the Constitutional Commission had emphasised that the commission’s proposals should incorporate the doctrine of ‘separation of powers.’ It was to include provisions for a separate and independent judicial organ and to ensure that the said Constitution provides an effective machinery for the protection of individual freedoms. The commission remained alive to these injunctions.”

[p.51] of [1997-1998] 2 GLR 1

(The emphasis is mine.) The “effective machinery for the protection” of individual rights was provided by the specific recourse to the High Court in the provisions concerning the fundamental human rights under the Constitution, 1969. It was not surprising therefore that the legislature used the words “save as otherwise provided . . .” in the Constitution, 1969 (article 106(1)) and “except as otherwise provided . . .” in the Constitution, 1979 (article 118(1). The emphasis is mine).

It is well-known that in Gbedemah v Awoonor-Williams (1970) 2 G&G 438 the Court of Appeal, sitting as the Supreme Court, held that article 106(1) of the Constitution, 1969 ousted the jurisdiction of the Supreme Court from the enforcement of the fundamental human rights. This interpretation was quoted with approval by the Court of Appeal sitting as the Supreme Court, in Tait v Ghana Airways Corporation (1970) 2 G 8 G 527. However in Kwakye v Attorney-General [1981] GLR 9 at 13, SC, the Supreme Court in its unanimous ruling on a preliminary objection to its jurisdiction held, per Apaloo CJ, that: “The plaintiff claims that he was not tried but that a prison sentence of 25 years was allegedly imposed on him in his absence. He says that act contravened chapter 6, the human rights provisions of the Constitution, and invites us to so declare.

That the Constitution, 1979, clothes this court with jurisdiction to make the declaration sought by the plaintiff in a fit case is hardy in doubt. Article 2(1)(b) enacts that:

‘2 (1) A person who alleges— . . .

(b) that any act or omission of any person, is inconsistent with, or is in contravention of, a provision of this Constitution, may at any time bring an action in the Supreme Court for a declaration to that effect.’

(The emphasis is ours.)

It is precisely that complaint that the plaintiff makes. If we construe 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.”

[p.52] of [1997-1998] 2 GLR 1

(The emphasis is mine.) Then in answer to the reliance placed on the ouster clause of section 15(2) of the transitional provisions, Apaloo CJ at 14 said:

“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.”

(The emphasis is mine.) It is of great significance that a few months prior to this ruling in Kwakye’s case (supra), the esteemed late Cecilia Koranteng-Addow J had in almost identical circumstances entertained an application for habeas corpus in Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554, as a fundamental human rights action and in overruling similar objections to jurisdiction of the High Court at 575, she held:

“Where a person seeks to enforce article 35, the jurisdiction of the High Court is not ousted by article 118(2).

Article 15(2) of the transitional provisions may provide an answer, which cannot be questioned, to the charge, but before resort is had to it, the factual question as to whether this is a matter which the transitional provisions is sought to protect must be answered. Otherwise how can the court tell when one is an A.F.R.C. convict?”

(The emphasis is mine.) Earlier at 565, she refused to refer the matter to the Supreme Court because until the factual aspect of it had been determined, no issue of interpretation of the Constitution would arise. It is clear therefore that the action in Kwakye v Attorney-General (supra), was an action to enforce fundamental human rights and was entertained as such. Clearly then, when the Constitution, 1992 came to be framed, the legislature was faced with a situation where the Court of Appeal had construed a similar provision to exclude the original jurisdiction of the Supreme Court from the enforcement of the Fundamental Human Rights, whereas the Supreme Court in the Kwakye case had held the contrary Whether in response to that situation or not, the legislature is presumed to know the law and the plain fact is that article 130(1) of the Constitution, 1992 is substantially differently worded both in the choice of new opening phraseology and grammatical restructuring of the provision relating to the Supreme Court’s

[p.53] of [1997-1998] 2 GLR 1 jurisdiction vis-à-vis the enforcement of fundamental human rights. In place of “save as otherwise provided” in article 106(1) of the Constitution, 1969 and “except as otherwise provided” in article 118(1) of the Constitution, 1979 we now have “Subject to the jurisdiction of the High Court” in article 130(1) of the Constitution, 1992 followed by “shall have exclusive original Jurisdiction” as opposed to “. . . have original jurisdiction, to the exclusion of all other courts” commonly employed in articles 106(1) and 118(1) of the Constitutions, 1969 and 1979, respectively.

The phrase “subject to” does not mean “save as” or “except as”, though the latter two expressions mean one and the same thing. Nor is “Subject to . . . shall have exclusive original jurisdiction” the same as “save as (or ‘except as’) . . . shall have original jurisdiction, to the exclusion of all other courts.” In the latter case it is the residue of the original jurisdiction less what has already been taken out of it by the expropriating words, “save as” or “except as” that then becomes exclusive, but “shall have exclusive original jurisdiction” cannot mean not having original jurisdiction; there is original jurisdiction, but it should not be exclusive where it is “subject to” the jurisdiction of another court.

In Ademola II v Thomas (1946) 12 WACA 81 the Nigerian Supreme Court had to construe the following provision in section 12 of Ordinance No 23 of 1943 Laws of Nigeria:

“Subject to such jurisdiction as may for the time being be vested by Ordinance in native courts, the jurisdiction by this Ordinance vested in the Supreme Court shall include all His Majesty’s civil jurisdiction which at the commencement of this Ordinance was, or at any time afterwards may be exercisable in Nigeria, for the judicial hearing and determination of matters in difference, or for the administration or control of property and persons, and also all His Majesty’s criminal jurisdiction which at the commencement of this Ordinance was, or at any time afterwards may be exercisable for the repression of punishment of crimes or offences or for the maintenance of order; and all such jurisdiction will be exercised under and according to the provisions of this Ordinance and not otherwise. Provided that, except in so far as the Governor may by order in council otherwise direct and except in suits trans-

[p.54] of [1997-1998] 2 GLR 1 ferred to the Supreme Court under the provisions of section 25 of the Native Courts Ordinance, 1933, the Supreme Court shall not exercise original jurisdiction in any suit which raises any issue as to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a native court nor in any matter which is subject to the jurisdiction of a native court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.”

It was contended that this provision ousted the jurisdiction of the Nigeria Supreme Court in any matter where jurisdiction had been conferred on a native court. Rejecting that argument, the West African Court of Appeal held at 83 as follows:

“It appears to us that no other reasonable interpretation can be given to them than that the Supreme Court shall exercise its jurisdiction subject to that of the Native Courts so that, where a Native Court has exercised or is exercising the jurisdiction vested in it by Ordinance, the jurisdiction of the Supreme Court shall not supersede it and shall not be exercised in the same matter. This is a limitation obviously desirable wheresoever there may exist courts of equal and concurrent jurisdiction within the same area and such an interpretation gives coherence to the whole section and meaning to each part thereof.”

(The emphasis is mine.) The decision of the West African Court of Appeal on appeal, sub nom Akisatan v Thomas (1950) 12 WACA 90 was confirmed by the Privy Council. It is true that the proviso to the provision played an important role in its interpretation, but the Privy Council emphasised that even without that proviso the construction of it by the WACA was right. At 91 Lord Simonds who delivered the judgment of the Privy Council said:

“It was not contended before their Lordships that the present suit raised any issue in respect of which it was specifically enacted by the proviso to the section that the Supreme Court should not exercise original jurisdiction. But it was contended that the effect of the opening words of the section ‘subject to such jurisdiction as may for the time being be vested by ordinance in Native Courts’ was to oust the jurisdiction of the Supreme Court and to vest exclusive jurisdiction in a native court in any matter in respect of which

[p.55] of [1997-1998] 2 GLR 1 jurisdiction has been vested by ordinance in that Native Court.”

The emphasis is mine.) His lordship roundly held at 92 that:

“The opening words, upon which the appellants rely, do not necessarily bear the meaning for which they contend, which is in effect to read them as if they ran ‘Except in those matters in respect of which jurisdiction may from time to time be vested in Native Courts.’ On the contrary they would, even without the proviso, be fairly susceptible of the meaning which is given to them by the Court of Appeal and which might perhaps be very briefly stated by saying that the words ‘subject to’ are equivalent to ‘without prejudice to.’”

Continuing he said:

“But, if it is clear that the Ordinance contemplates concurrent jurisdiction, this is inconsistent with the vesting of exclusive jurisdiction in the Native Courts, where ex facie the Supreme Court would have jurisdiction. On the other hand, it appears to their Lordships that, since by the terms of the Ordinance the jurisdiction vested in the Supreme Court was to include all His Majesty’s jurisdiction, etc., the careful draftsman might well think it desirable to make it clear that this enactment was not to prejudice the Native Courts in the exercise of such jurisdiction as might from time to time be vested in them Accordingly the section opens with words which are apt to provide that safeguard.

Further, it may be observed that neither in section 12 of the relevant Ordinance, nor in any other Ordinance, to which their Lordships’ attention has been called, whether relating to the establishment of Native Courts or to the constitution of the High Court of the Protectorate or of the Supreme Court, is the appropriate word “exclusive” used in relation to the jurisdiction vested in native Courts. Both in the Ordinance of 1943 and in earlier Ordinances where it is intended to vest exclusive original jurisdiction in such Courts this result is achieved by a limitation of or exception from the jurisdiction of the High Court or Supreme Court.”

(The emphasis is mine.) In the English case of C & J Clark Ltd v Inland Revenue Comrs [1973] 2 All ER 513, Megarry J had to [p.56] of [1997-1998] 2 GLR 1 construe the words “subject to” in section 78 of the Finance Act, 1965. At 520 he stated: “I cannot see why the simple phrase ‘subject to’ should be subject to such delicate adjustments; and if it were, I can foresee trouble, if, say, subsection (6) of a section with ten subsections began ‘subject to subsection (1) above and to the following provisions of this section.’ In my judgment, the phrase ‘subject to’ is a simple provision which merely subjects the provisions of the subject subsections to the provisions of the master subsections. Where there is no clash, the phrase does nothing: if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision. Where it appears in the opening words of section 78(14), it does nothing, in my judgment, to demonstrate that subsection (2) allows an apportionment to be made even if there has been no shortfall.”

Applying these principles, I am unable to see any conflict between article 130(1) and articles 140 and 33(1) of the Constitution, 1992. The latter provides:

“33. (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.”

(The emphasis is mine.) My approach is internally supported by the context of the Constitution, 1992 itself. For example, article 137(1) of the Constitution, 1992 provides:

“137. (1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this Constitution, appeals from a judgment, decree or order of the High Court and Regional Tribunals and such other appellate jurisdiction as may be conferred on it by this Constitution or any other law.”

(The emphasis is mine.) Consequently, for example, it is provided thus in article 131(3) of the Constitution, 1992 that:

“(3) The Supreme Court shall have appellate jurisdiction, to the exclusion of the Court of Appeal, to determine matters

[p.57] of [1997-1998] 2 GLR 1 relating to the conviction or otherwise of a person for high treason or treason by the High Court.”

(The emphasis is mine.)

This clearly demonstrates that the words “subject to . . .” in article 137(1) of the Constitution, 1992 could not have by themselves operated to exclude the appellate jurisdiction of the Court of Appeal from convictions for “high treason or treason by the High Court” under article 131(3) of the Constitution,1992 if the words “to the exclusion of the Court of Appeal” were not therein inserted. It is a trite principle of the construction of statutes that the legislature does not waste its words or use them for no purpose. Certainly the words “to the exclusion of the Court of Appeal” were meant to prevent the Court of Appeal from having concurrent appellate jurisdiction with the Supreme Court in convictions “for high treason or treason by the High Court,” which would have been the resultant position without them, despite the words “subject to” in article 137(1) of the Constitution,1992. It also shows that if the legislature had similar intent in relation to the jurisdiction of the Supreme Court in the enforcement of the fundamental human rights which is clearly comprehended by the words of articles 2(1) and 130(1) of the Constitution, 1992, it similarly would have used that phrase of exclusion in article 33 (1) of the Constitution,1992 instead of the words “without prejudice to any other action that is lawfully available,” words which are very accommodating and respectful of the Supreme Court’s jurisdiction in the enforcement of fundamental human rights.

It is also to be noted that though section 15(1) of the Chieftaincy Act, 1971 (Act 370) vests exclusive jurisdiction in chieftaincy matters in traditional councils subject to its other provisions, it has not been held that its effect is to oust that jurisdiction when another provision also confers jurisdiction in such matters on another authority: see Republic v Secretary for Chieftaincy Affairs, Ex parte Sam [1987-88]1 GLR 189, CA. In Ghana Bar Association v Attorney-General, Supreme Court, Accra,7 January 1995, unreported, this court held that having regard to the words “subject to” in article 140(1) of the Constitution, 1992, the High Court has no jurisdiction in chieftaincy matters in view of the other provisions relating to chieftaincy. It is clear however that the court was much swayed by the facts (a) that the ordinary courts are not suitable for the adjudication of matters steeped in tradition

[p.58] of [1997-1998] 2 GLR 1 for which the chieftaincy tribunals are better equipped by reason of the customary background of their panel and (b) the consistent exclusion of the ordinary courts from chieftaincy matters by prior legislation. The case of Asare v Oppong [1967] GLR 433 which held that appeals from workmen’s compensation actions still lay from the circuit court to the High Court and not the Court of Appeal even though an amendment sought to vest the Court of Appeal with jurisdiction over decisions of a circuit court, turned on the peculiar wording of paragraph 36 of the Courts Decree, 1966 (NLCD 84) which provided:

“36. Without prejudice to any powers or rights otherwise expressly provided for in the provisions of this Decree or in any other enactment for the time being in force, any person aggrieved by a decision of a Circuit Court, other than a decision in a summary trial of a criminal case may, subject to and in accordance with those provisions, appeal to the Court of Appeal.”

(The emphasis is mine.) The crucial difference lay in the words: “. . . and in accordance with those provisions” which made it difficult to appeal to the Court of Appeal having regard to the provisions of section 21 of the Workmen’s Compensation Act 1963 (Act 174) which directed appeals from the Circuit Court in such matters to the High Court.

This is reinforced by Commissioner of Police v Akyeampon [1963] 1 GLR 402, SC in which it was held that section 8(1)(b) of the Courts Act, 1960 (Cap 9) which provided for “the hearing of appeals from any decision of a High Court or Circuit Court in criminal matter exercised in accordance with the provisions of this or any other enactment,” was circumscribed by section 14 of CA 9 which limited it to only an appeal by a defendant who had been convicted or whose conviction had been upheld by a circuit court and for which reason the prosecution could not appeal under section 335 of the Criminal Procedure Code, 1960 (Act 30) which provided that: “The prosecution . . . may appeal from a decision of a Circuit Court in its appellate jurisdiction under this Part to the Supreme Court in accordance with section 14 of the Courts Act 1960 (C.A.9).” (The emphasis is mine.) I am also encouraged by S Y Bimpong-Buta, a keen Ghanaian legal scholar, who has stated at page 21 of the Ghana Bar Association publication entitled Lectures in Continuing Legal Education 1993-1994 that:

[p.59] of [1997-1998] 2 GLR 1

“It appears, given the wording of article 130 of the 1992 Constitution, that the Supreme Court has concurrent original jurisdiction with the High Court to determine and give redress in respect of an application by an aggrieved person—alleging in relation to him, a contravention of the Fundamental Human Rights and Freedoms enshrined in chapter 5 of the 1992 Constitution.”

He further states at 26:

“Under article 2 of the 1992 Constitution, the Supreme Court has original jurisdiction relating to the enforcement of the provisions of the Constitution. This jurisdiction is distinct from an action to enforce the provisions relating to the Fundamental Human Rights and Freedoms which is concurrently vested in the High Court under articles 33(1) and 140(2) of the Constitution.”

In view of Kwakye v Attorney-General (supra), I cannot endorse the view that article 2 of the Constitution, 1992 does not cover the fundamental human rights. I therefore, hold that the applicant succeeds on his ground relating to jurisdiction.

As to the prayer for the return of his old passport or a new one, I think the same was rightly dismissed. That prayer in so far as the old passport is concerned involves some sort of renvoi. He desires its return to him only to return it, attached to his intended application for a new one to the same Ministry of Foreign Affairs. Since it is not disputed that an old passport is the property of the Ghana Government under the Passports and Travel Certificates Decree, 1967, its custody by the respondents is proper and does not in the circumstances of this case prejudice the applicant’s right or ability to apply for a new one. There is no miscarriage of justice occasioned by the dismissal of that prayer. In any case, the fact that he is a citizen of Ghana or any other fact which can be established by the production of the old passport has been established abundantly in the original proceedings and judgment of this court in this case. It has been therein clearly admitted that the applicant is a citizen of Ghana and that the old passport is in the custody of the respondents, and all this has been upheld by the original decision of this court. I do not see how in these circumstances the retention of the old passport of the applicant prejudices the applicant in any way.

[p.60] of [1997-1998] 2 GLR 1

As to a new passport, he has not yet applied for one and he certainly cannot seek and does not seek, in the circumstances of this case, that the necessity for an application for a new passport by him be dispensed with. Consequently, no further issues fall for adjudication until he applies for one and is refused or threatened with a refusal. It is trite law that if a decision of a court is otherwise supportable, the same ought not to be disturbed simply because some or all the actual reasons for the same are erroneous.

Subject therefore to what I have held concerning jurisdiction, I would also dismiss this application.

Application for review dismissed

LSNA