REPUBLIC vs. EDWARD WIREDU; EX PARTE AMIDU [2001-2002] 1 GLR 272

CASES REFERRED TO

(1) Akunto v Fofie [1973] 1 GLR 81, CA.

(2) Armah v Armah (1969) CC 73.

(3) Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SC GLR 224.

(4) Sam (No 2) v Attorney-General [2000] SCGLR 305.

(5) Amidu v Kufour, Supreme Court, 25 April 2001, unreported.

(6) Kaneba v Minister of Home Affairs [1994] 2 LRC 263.

(7) Mensima v Attorney-General [1996-97] SCGLR 676.

(8) Pumbun v Attorney-General [1993] 2 LRC 317.

(9) Longwe v Intercontinental Hotels [1993] 4 LRC 221.

(10) Akufo-Addo v Quashie-Idun 2 G & G 368.

(11) Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd [1998-99] SCGLR 1.

(12) Ansah v Ansah [1977] 2 All ER 638.

(13) Ekwam v Pianim (No 1) [1996-97] SCGLR 117.

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

APPLICATION by the plaintiff under article 33 of the Constitu- [p.276] of [2001-2002] 1 GLR 272 tion, 1992 against the Acting Chief Justice before the High Court, Accra for a declaration, inter alia, that the refusal of the respondent to list his ex parte application for an interim injunction against the President and four others constituted a contravention of his funda mental human rights and freedoms under articles 2, 17(1) and (2), 19(3), 23 and 33(5) of the Constitution, 1992. The facts are sufficiently stated in the ruling.

Applicant, Martin ABK Amidu, in person.

Kuwornu, Senior State Attorney, for Addo, Solicitor General, for the respondent.

Ansah JA. This is an application brought under article 33 of the Constitution, 1992 alleging the contravention of the fundamental human rights and freedoms guaranteeing equality before the law, freedom from discrimination, right to fairness and fair hearing and administrative justice. The reliefs sought from this court as a result of the alleged contraventions are detailed in a statement filed in support of the above-mentioned application.

For the sake of clarity and a proper appreciation of the essence of this application, I shall set them out in full here. They are:

“(i) A declaration that:

(a) the refusal by the respondent to list and put the applicant’s urgent ex parte application for interim injunction CM 4/2001 filed on 29 January 2001 before the Supreme Court for a possible hearing or directions constitutes a contravention of the applicant’s fundamental human rights and freedoms under articles 2, 17(1) and (2), 19(13), 23 and 33(5) of the Constitution, 1992 and as enshrined in articles 2,3, 7 and 19 of the African Charter on Human and People’s Rights;

(b) the demand by the respondent that the applicant should repeat his application for interim injunction on notice to the defendants before the respondent will permit the Supreme Court to hear the applicant’s application for interim injunction filed on 29 January 2001 CM 4/2001 or give further directions an invasion of the applicant’s fundamental human

[p.277] of [2001-2002] 1 GLR 272 rights and freedoms under articles 2, 3, 17(1) and (2), 19(13), 23 and 33(5) of the Constitution, 1992 and as enshrined in articles 2, 3, 7 and 19 of the African Charter on Human and People’s Rights; and (c) the conduct of the respondent in disabling the Supreme Court from deciding on the urgency of the applicant’s ex parte application for interim injunction to restrain breaches of the Constitution, 1992 under articles 2 and 3 of the Constitution, 1992 constitutes an interference and contravention of the applicant’s fundamental human rights and freedoms under articles 2, 17(1) and (2), 19(13), 23 and 33(5) of the Constitution, 1992 and the African Charter on Human and People’s Rights aforementioned.

(ii) Such directions or orders as this court may consider necessary and appropriate to redress the invasion and contravention of the applicant’s fundamental human rights and freedoms aforesaid.”

The grounds upon which the applicant seeks these reliefs are stated in paragraph (3) of the statement referred to above. There is no material difference between what is contained in the said paragraph (3) and the affidavit filed in support of the application, except to say that the affidavit is a longer version of the statements and also contains several exhibits otherwise not found in the statement Therefore as the affidavit contains the facts grounding the application in a far greater detail than the statement, I once again reproduce it in full here. The salient parts are as follows:

“(2) The respondent, Edward Kwame Wiredu, is a justice of the Supreme Court of Ghana and performs the functions of the Chief Justice by virtue of being the most senior justice of the Supreme Court in the absence of the Chief Justice.

(3) On 29 January 2001 I commenced an action in the Supreme Court (writ 2/2001) as the plaintiff against John Agyekum Kufuor (the President of Ghana) and four other persons as the defendants for unconstitutional conduct, among other reliefs.

(4) On the same day I applied ex parte for an interim injunc-

[p.278] of [2001-2002] 1 GLR 272 tion to urgently restrain the defendants by motion No CM 4/2001 ‘from continuing to violate the Constitution and the Presidential Office Act, 1993 (Act 463).’ (5) The registrar of the Supreme Court informed me that he could not give a date for the hearing of my urgent interim application until he contacted the respondent who was performing the functions of the Chief Justice who was absent from the country.

(6) On 30 January 2001 the registrar of the Supreme Court informed me that the respondent had requested him to demand that I bring my application on notice.

(7) I was surprised at the respondent’s conduct, which amounted to denying me of my fundamental constitutional rights and freedoms to an urgent hearing by the court as required by the Constitution, 1992 and the practice of the court.

(8) I therefore wrote a letter to the respondent on 30 January 2001 pleading with him to fix a date for the Supreme Court to hear my application or give directions in the matter. A copy of the letter is annexed herewith and marked exhibit MAA 1.

(9) On 1 February 2001 the respondent wrote to me demanding that I bring another application on notice.

A copy of the respondent’s letter is annexed herewith and marked exhibit MAA 2.

(10) On 2 February 2001 I replied to the respondent’s letter aforesaid and begged him not to frustrate my genuine efforts to defend breaches of the Constitution, 1992. A copy of my letter is annexed herewith and marked exhibit MAA 3.

(11) The respondent in his efforts to ensure that the Supreme Court was disabled from hearing my application until after the second defendant, Jake Obetsebi-Lamptey and the third defendant, Elizabeth Ohene, had been appointed as Ministers of State on 7 February 2001 then wrote to me that the earliest my application could be heard was 13 February 2001. A copy of the respondent’s said letter is annexed herewith and marked exhibit MAA4.

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(12) The respondent by his conduct facilitated the vetting of the second and third defendants by Parliament on 31 January 2001, their approval for appointment by Parliament on 6 February 2001, and their subsequent appointment by the President on 7 February 2001 without the Supreme Court having had the opportunity to consider my application for interim injunction.

(13) To the best of my knowledge, in accordance with the laws of Ghana and the practice of the Supreme Court, the Supreme Court has heard ex parte applications for injunction and had either granted or refused the application, or ordered that it be served on the affected defendants before hearing.

(14) To the best of my knowledge once I had lawfully filed my ex parte application for interim injunction in the Supreme Court, the respondent had no authority either as the most senior justice of the Supreme Court or in any other capacity to demand that I filed another application on notice before he would put my application before the Supreme Court for hearing or directions.

(15) The respondent’s conduct disabled the Supreme Court from considering my application before 7 February 2001 when two of the defendants, Jake Obetsebi-Lamptey and Elizabeth Ohene, were appointed as Ministers of State and subsequently rendered my case against them to be said to be moot.

(16) To the best of my knowledge and belief the respondent’s conduct infringed, interfered with, and contravened my fundamental constitutional rights and freedoms to equality before the law, freedom from discrimination, to a fair hearing and fairness, and to administrative justice guaranteed by the Constitution, 1992 and the African Charter of Human and People’s Rights as incorporated under article 33(5) of the Constitution, 1992, among others.

(17) To the best of my knowledge and belief in pursuing his unconstitutional conduct, the respondent was on a frolic of his own as an individual and not as a justice of the Supreme Court or the most senior justice of the

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Supreme Court is by law required to act.”

To this affidavit, the respondent filed an affidavit, remarkable for its brevity in opposition. It was in this affidavit that the respondent indicated that he would support the affidavit with a statement filed on his behalf to oppose the facts supporting the application. The respondent did well to state that the application itself was misconceived, frivolous, vexatious, malicious and did not disclose any reasonable cause of action and therefore ought to be dismissed in limine. That point was not pressed further in that it was not taken as a preliminary point, for counsel for the respondent made no intimation of that to the court. Neither could he tell the court of his desire to do so for the court to rule on it.

In the course of his submissions in support of the application, the application submitted that what was referred to as a statement by the respondent could not be called as such as it was neither filed, signed nor exhibited. To him it was a hearsay matter which he could ignore. It was not shown satisfactorily in what respect it was a hearsay matter. The reply was that the statement was an annexure numbered No 3.

Now, in this case, the respondent deposed to an affidavit which was described by the applicant as being terse. In this affidavit filed in opposition to the application, paragraph (2) thereof referred to this statement filed, which statement was a response to the averments raised in the applicant’s affidavit. Admittedly, the statement was not signed; it also did not bear any filing date. The affidavit which referred to this statement was, however, filed and signed by the deponent. Now, assuming the statement should have borne a filing date and a signature of the deponent, should it be rejected and not considered by this court as contended by the applicant? I do not think so.

My reason for so saying is that even if all these should have been done but was not done, then the objection raised is rather technical. When an objection is so technical the courts have approached the issue as to what use the objected document could be put to in this way. And I refer to Akunto v Fofie [1973] 1 GLR 81, CA. In that case, an intended appellant was found not to have signed the notice of appeal either by himself or his lawyer and there was also no indication that they had appointed one of the appellants

[p.281] of [2001-2002] 1 GLR 272 who signed the notice as their lawful attorney to sign the notice either. Siriboe JSC said at 93 that even if there was a defect at all it was procedural which was cured when leave was granted by the court to counsel for the appellants to argue the additional ground without any objection by the other side. In arriving at this conclusion His lordship referred to Armah v Armah, Court of Appeal, 21 April 1969, unreported; digested in (1969) CC 73. In that case, it was contended that a divorce petition not signed by the petitioner but by his solicitor when a rule of court expressly stated that such petition should be signed by the petitioner was on account of that null and void. Amissah JA reviewed a number of cases on defects, which are so fundamental as to amount to a nullity and those, which are mere irregularities. He then said that: “If a defect is an irregularity which is curable, then the proceedings will be saved under this rule.”

The rule in question was Order 70, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). That rule is as follows:

“1. Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”

I have not been shown any rule of practice said to have been breached when the statement was not signed or the one which laid it down that the statement filed in support of an affidavit should be filed, especially when the affidavit itself was also filed and made reference to that statement. I hold then that even if in that circumstance, the statement was not filed, nor signed when this should have been done, then it was defective. However, for the reason that it did not stand-alone but was attached to the files affidavit, then the defect was more of a procedural nature and was therefore curable. And therefore must be saved under Order 70, r (1) of LN 140A. But in this case, I do not consider that the statement should be filed separately, I do not hold that it was fundamentally defective that it should be declared null and void, as the applicant would want this court to do. To do so would be

[p.282] of [2001-2002] 1 GLR 272 tantamount to defeating the ends of justice by dabbling in excessive technicalities. Accordingly, the statement filed in support of the affidavit would be admitted for use in this application.

I have also been compelled into taking this course of action for the reason that even where an affidavit is defective in the sense that there is any irregularity in the form the court or judge may nevertheless receive it for use under Order 38, r 14 of LN 140A. One may read the case of Okofoh Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224, which buttresses this point. The same treatment should be accorded this statement.

The other crucial point I would like to consider at this stage is how the applicant chose to describe the defendant; in other words, the capacity in which the respondent was sued. He chose to describe the respondent as the “most senior justice of the Supreme Court.” This situation must be covered by article 144(6) of the Constitution 1992. It reads:

“(6) Where the office of the Chief Justice is vacant, or where the Chief Justice is for any reason unable to perform the functions of his office— (a) until a person has been appointed to, and has assumed the functions of, that office; or (b) until the person holding that office has resumed the functions of that office; as the case may be, those functions shall be performed by the most senior of the Justices of the Supreme Court.”

In the interpretation section of the Constitution, 1992, article 295(2) also states that:

“(2) In this Constitution and in any other law — (a) a reference to the holder of an office by the term designating his office, shall, unless the context otherwise requires, be construed as including a reference to a person for the time being lawfully acting in or performing the functions of that office”

The issue is how is a person who for the time being is performing the functions of the office of the Chief Justice called? The Shorter Oxford English Dictionary defines “Acting” as performing temporary or special duties Also in BBC English Dictionary, it was

[p.283] of [2001-2002] 1 GLR 272 stated that when used in front of a title of a job the indication is that someone is only doing that job temporarily. It is the same as saying that he who does a job temporarily is acting. I am certain in my mind that the applicant knew that in the particular context of this case, the Chief Justice was at all material times, for reasons well known to all who cared to know, unable to perform the functions of his office and also that his office was vacant. In other words, the conditions in article 144(6)(a) of the Constitution, 1992 apply fully in this case. It only shows who should perform the functions of the office of the Chief Justice for the meantime, ie the most senior of the Supreme Court judges. When he does, he is then acting in the office of the Chief Justice. It was by virtue of this fact that the respondent came to perform the functions of the office and in his capacity as the most senior of the justices of the Supreme Court. When so acting, he was acting in that office. The defendant well knew of the capacity in which the respondent found himself. For proofs: see exhibit MAA1, a letter by the applicant to the respondent dated 30 January 2001 wherein the applicant described the defendant as: “His Lordship, the Acting Chief Justice.” Exhibit MAA3 by the self same applicant dated 2 February 2001, which bore the same description of the respondent. On top of it all see the various responses to the letters of the respondent in which he signed same as the Acting Chief Justice. With all these constitutional provisions and in fact the applicant’s own choice of words and epithets for the respondent on as late as February 2001, it is wondered how he should sue him only in June 2001 and merely describe him as “the most senior justice of the Supreme Court.” It is simply wrong to have called him as such and so wrong was all the argument put forward to justify his ill-chosen description. I would not have had to write so much on such a simple matter had the applicant made the necessary concession when the point was pressed on him. He rather chose to find support and succour in other parts of the Constitution, 1992. His efforts were valiant but did not offer the necessary and needed help. But alas, the point need not to be pressed further any more than that such mere misnomers can be cured by a simple amendment. And this I gladly do so suo motu and by adding the words “Acting Chief Justice’ immediately after the name of the respondent on the motion and wherever the title of this suit shall appear or becomes necessary to

[p.284] of [2001-2002] 1 GLR 272 refer to him. I in the same vein order to be deleted and I hereby delete the words “the most senior Justice of the Supreme Court” from the title of the suit and wherever it appears.

Having disposed of these preliminarily matters, I now proceed to determine the application on its merit. I have already set out the respective affidavits for and against the remedy sought from this court and I need not to do so again here. It is sufficient to state that reading the affidavits and their attachments carefully, the applicant’s case is that he issued a writ invoking the original jurisdiction of the Supreme Court under articles 2 and 130 of the Constitution, 1992, for certain remedies against the defendants in that suit. After that he applied for an injunction against those defendants the same day while the substantive action was pending in court. He applied ex parte for that order. When he filed his motion the applicant sought a date from the Acting Chief Justice to fix for the hearing of his motion. The Acting Chief Justice was said by the registrar to have asked the applicant to bring his application on notice. The applicant refused to oblige and rather demanded a date to fix his ex parte application. In the course of time, the respondent wrote to inform the applicant that the earliest time his application could be heard was 13 February 2001. What transpired then was that on 31 January 2001, the second and third defendants in the action before the Supreme Court, were vetted by Parliament and approved for appointment on 6 February 2001 and subsequently appointed by the President on 7 February. The Supreme Court never had the opportunity to consider his application for interim injunction, ex parte According to the applicant, the respondent has no authority to make the demand he did once he brought the application to the Supreme Court. Had that demand not been made the two persons, namely Jake Obetsebi-Lamptey and Elizabeth Ohene, would not have been appointed Ministers of State and his substantive action against them could not have been said to be moot by the Supreme Court. The applicant then said that the respondent’s conduct amounted to an infringement and interference and a violation of his fundamental constitutional rights and freedoms of equality before the law, freedom from discrimination, right to a fair hearing and fairness in administrative justice guaranteed by the Constitution, 1992 and the African Charter of Human and People’s Rights as incorporated under article 35 of the Constitution, 1992 Also, in all that he did,

[p.285] of [2001-2002] 1 GLR 272 the respondent was on a frolic of his own and not as a justice of the Supreme Court.

The application was said to have been misconceived, frivolous, vexatious, malicious and one which did not disclose any reasonable cause of action. On the other hand, the contention of the respondent was that he first got to know of the applicant’s writ and the ex parte application only when exhibit MAA1 was written to him by the applicant. On receipt of MAA1 he called for the docket and after studying same and having noticed that the writ has not been served he commented on this in exhibits MAA2 and MAA3 and recommended that the application be brought on notice to the defendants in the action. Ex parte applications, though not unknown in the Supreme Court had not been elevated to one backed by principle based on and approved by the Supreme Court Rules, 1996 (CI 16) in a form of Practice Directions which bind the court. Moreover, the applicant could not dictate a date for the hearing of his ex parte application. In all that he did, he did not act in his personal capacity but as the Acting Chief Justice. What was more, the action before the Supreme Court had been determined against the applicant with the result that the ex parte application was merged in the final decision given in the action in writ number 8/2001 entitled Amidu v Kufuor. That suit is no longer pending. It was also strongly contended that having discontinued his action before the Supreme Court without any right to bring a fresh action, the present application is an abuse of the process of the court and on account of that must be struck out.

It is incumbent upon he who comes to court to seek reliefs under article 33 of the Constitution, 1992 such as the present applicant to show that he is entitled to the reliefs he seeks. He is to show what articles in the Constitution he is relying on, the articles on the fundamental human rights and freedoms said to have been or is likely to be contravened and that the contravention affects or is in relation to him: see the case of Sam (No 2) v Attorney-General [2000] SCGLR 305 and also the Namibian case of Kanesa v Minister of Home Affairs [1994] 2 LRC 263. That is to say that it is not enough for a plaintiff in an action under article 33(1) of the Constitution, 1992 to simply come to court to seek reliefs alleging contravention of myraid of articles without showing how they were also contravened and how they affected him.

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I must confess that the number of articles referred to by the applicant is very impressive for the sake of its sheer numbers and this court will have to examine each and everyone of them to see how relevant it is when it becomes necessary to do so. The first of these articles referred to was article 2 of the Constitution, 1992. It reads:

“2. (1) A person who alleges that—

(a) an enactment or anything contained in or done, under the authority of that or any other enactment, or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

This article shows where a person who alleges a contravention of a constitutional provision has to seek redress by way of a declaration and that is the Supreme Court. In so far as the present action is not before the Supreme Court, then without saying more, the application is at a wrong forum. It may be fair to say that the applicant first went to the Supreme Court on writ number 4/2001 by virtue of this article 2. Article 3 of the Constitution, 1992 deals with the defence of the Constitution and the duty to perform these functions is defined in clear terms. Article 3(4) of the Constitution, 1992 says:

“(4) All citizens of Ghana shall have the right and duty at all times— (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and

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

It is obvious that the said clause 3 envisages the violent overthrow or the suspension of the Constitution like in a coup d’etat; in that event, clause (4)(a) is a call to arms to resist the infamous act. That clarion call is to all citizens of Ghana. That

[p.287] of [2001-2002] 1 GLR 272 event has nothing to do with the present application; yet there is one sense in which the Constitution should be defended and that is when this time the call to arms is not onto the use of conventional weapons from the ordinary armoury but to judicial arms from the legal arsenal. But when one refers to the latter one refers effectively to the enforcement of the constitutional provisions.

Article 17 is a well-known provision, specifically catered for in the Constitution, 1992. It talks of equality before the law. It is clear that the antithesis of equality before the law is inequality before the law, which is the same as discrimination before the law. The matter is put beyond any reasonable doubt in clauses (2) and (3). Those clauses not only refer to discrimination and complete abhorrence to same, but defines the words in clear and unmistakeable terms. That so far as the purpose of this article is concerned, the scope of that article is specific. It is limited to:

“. . . only or mainly to their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons of one description are subjected to disabilities or restrictions to which persons of another description are not made subject or are granted privileges or advantages which are not granted to persons of another description.”

A case in point is Mensima v Attorney-General [1996-97] SCGLR 676. In that case the plaintiffs’ action before the Supreme Court was founded on the fact that the defendants were found to have harassed the plaintiffs by impounding their products and preventing them from distilling akpeteshie on the ground that plaintiffs did not belong to any registered distillers cooperatives as required by regulations 3(1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) itself made under the Liquor Licensing Act, 1970 (Act 331). The plaintiffs therefore went to the Supreme Court under article 2(1) of the Constitution, 1992 for a declaration that the said regulations 3(1) and 21 both of LI 239 were inconsistent with the letter and spirit of the Constitution particularly the exercise of their fundamental human rights of freedoms of association guaranteed under article 21(1)(e) of the Constitution,1992. Acquah JSC with whom Atuguba JSC concurred said as per holding (2) in the headnote that:

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“Undoubtedly, the executive had the power to regulate the economic activities of the country for the public good. But the exercise of that, like the individual’s exercise of his fundamental rights and freedoms, must be exercised within the limits of the Constitution. Accordingly, the exercise of the executive power must be such as not to erode those rights and freedoms. The executive power must be exercised in such a way as to maintain the equilibrium between the enjoyment of the individual’s rights and freedoms and the preservation of law, order and the welfare of the public. The issue was not whether the executive had power to regulate economic activities but whether in exercising its power, it had exceeded the bounds of reasonableness and thereby unjustifiably encroached on the individual’s right of association guaranteed in article 21(1)(c) of the Constitution.”

The Supreme Court unanimously upheld regulation 21 of LI 239 as being constitutional as being consistent with and did not violate the freedom of association under article 21(1) as though restrictive in nature still left the distiller with a choice. It was in that same case where Bamford-Addo JSC spelt out in an obiter dictum the meaning of article 33(1) of the Constitution, 1992.

A Tanzanian case of Pumbun v Attorney General [1993] 2 LRC 317 was also referred to by the applicant. That was also another fundamental rights case dealing with access to the court as well as equality before the law. In that case, the facts were that there was a statutory requirement, in section 6 of the Government Proceedings Act 1967 to the effect that the Attorney-General’s fiat or consent had first to be obtained before proceedings could be brought against the government. The issue was whether that requirement was justified as it smacked of derogation from a basic human right. The court found no difficulty in finding that the said section 6 violated the basic human right of unimpeded access to the court to have one’s grievances heard and determined there.

There was this Zambian case of Longwe v Intercontinental Hotels [1993] 4 LRC 221 cited by the applicant. There the petitioner was refused entry into a bar of a Lusakan Intercontinental Hotel on the ground that she was unaccompanied when the hotel had adopted a policy of excluding women unaccompanied by men

[p.289] of [2001-2002] 1 GLR 272 from entering the bar. It was held by that court that the petitioner had been discriminated against on the basis of gender, which was contrary to the Zambian Constitution. No doubt our Constitution, 1992 has a similar provision in article 17(2) as explained in article 17(3). But then this was a sex discrimination case. It is to that extent not on all fours with the facts of the present case. Equally, the Mensima case (supra) was discrimination on economic or occupational grounds as well as freedom of association. It is also completely incongruous to the facts of this case. It is recognised that in those cases certain pronouncements were made on fundamental human rights and freedoms. Yet, in a case of this nature it is very important that the facts leading to those pronouncements are studied carefully to find whether or not they related to or are similar to those in the present case or the case in respect of which they were cited.

I need also to state that in seeking to refer to such cases in respect of submissions made in cases involving the Constitution, 1992 the directions seem to be as given by Bamford-Addo JSC in Sam (No 2) v Attorney-General [2000] SCGLR 305 at 315 where the learned justice of the Supreme Court said that: “In interpreting our Constitution, it is important to note that the Constitution should be interpreted in the light of its own wording and not by reference to other Constitutions in other jurisdictions, for example, that of the United States. Our Constitution is peculiar to us and we must therefore interpret it in accordance with its clear words as well as its spirit. . . No reliance should be placed on the requirements of the Constitutions in other jurisdictions, whose Constitutions are structured to suit their individual needs.”

Those are wise words indeed, which I most respectfully wish to and do hereby adopt. It is for this reason that I hold that the foreign cases cited by the applicant must be confined to the facts grounding them and the applicant has also made it clear that he cited them not as binding upon this court but for their persuasive force. I agree with that submission.

Now, the applicant did not mince his words when he submitted even as he made it clear in his motion paper that he came to court basing himself on the grounds he proffered and he relied on article [p.290] of [2001-2002] 1 GLR 272

33 of the Constitution, 1992. This article had been referred to so much in this application and elsewhere that I believe it would be very useful to quote it here. It 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.

(2) The High Court may, under clause (1) of this article, issue such directions or orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.”

What then are human rights? I have chosen to ask this question as even though this is one of the most often mentioned words in the Constitution and elsewhere, it will not be far from right to state that only a few people understand them to any appreciable degree. I can do no better than to quote the definition of Professor Henkin in (1981) 81 Columbia LR at p 1582 and these are:

“. . . claims which every individual has or should have upon the society in which she or he lives. To call them human rights suggest that they are universal, they are due of every human being in every human society. They do not differ in geography or history, culture or ideology, political or development. They do not depend on gender or race, class or status. To call them ‘rights’ implies that they are claims ‘as of right’ and not merely appears to grace or charity or brotherhood or love. They need not be earned or deserved but claims of entitlement and corresponding obligation in some political order under some applicable law.”

The epithet normally used, “fundamental”, shows that it is so basic and important that it is inviolable, ever abiding and cannot be whittled away or trampled upon with impunity except, as the law

[p.291] of [2001-2002] 1 GLR 272 of the land would allow. As stated already, the applicant upon whom the duty is cast to pinpoint the rights which have been infringed did refer to quite a number of them and as seen already some of them are not germane and apposite to this application. The right which can be said to have been shown with some clarity to have been infringed is the right to access to the courts. How that came is best epitomised by the applicant’s demonstration that when he wanted to bring an application for interlocutory injunction ex parte the respondent said he should rather do it on notice. To the applicant, by so doing, the respondent denied him access to the courts for it was only the Supreme Court qua Supreme Court, which alone could pronounce on the propriety of his application and not the respondent. If the respondent acted in excess of his administrative power then he was not fair in doing so.

By the action of the respondent, his motion ex parte could not be heard with the result that when the substantive action came to be decided, the very act which he wanted to restrain in the interim had been done and the Supreme Court held that, that issue raised had become moot on account of which the action was dismissed. That point must be wrong. The fact was clear that the moot issue was only one of the grounds upon which the motion entitled Alamisi Amidu v John Agyekum Kufuor, civil motion No 8/2001, SC dated 25 April 2001 was decided against the plaintiff therein. There were other grounds upon which the dismissal of the action was based. Some of them dealt with the immunity from prosecution or civil proceedings enjoyed by the President while in office under article 57 of the Constitution, 1992; whether or not the President could be sued in his personal capacity, whether or not the plaintiff had a cause of action; and the failure to file the letters of appointments of the other defendants in the suit, whether or not there was any substantive Attorney-General when the writ was issued and the propriety in suing which rendered the writ against him null and void. A careful reading of the judgment above referred to will bear these points out. It was very wrong to create the impression that the dismissal of the action was based only on the moot issue alone. That being so, it can be said with some confidence that it was not the conduct of the respondent vis-à-vis the ex parte motion which led to the defeat of the applicant before the Supreme Court.

It is pertinent to note that the ex parte application was filed on

[p.292] of [2001-2002] 1 GLR 272

29 January 2001, the same day the writ was filed was beyond doubt. It is also true that on 2 February 2001 the motion on notice for interim injunction was filed. That was the day exhibit MAA3 was written by the applicant to the respondent. I have gleaned this information from the judgment above referred to and especially the judgment of Ampiah JSC. The third and fourth defendants in civil motion No 8/2001, Mr Jake Obetsebi-Lamptey and Miss Elizabeth Ohene, were approved by Parliament on 6 February 2001. It is not known what fate the motion suffered at the Supreme Court, but at least it is clear that it was filed on 2 February 2001 and before approval was given by Parliament for their nomination. Why was the applicant unable to prosecute the motion if it was not heard at all but filed on 2 February, 2001.

The Chief Justice, it must be observed is the head of the judiciary. As such head, the general efficiency of that organ is his responsibility. He could advise and encourage members of the judiciary and the Judicial Service as a whole, including everything necessary for the efficient administration of the courts, short of telling his judges in every echelon of the system how individual cases before them should be decided. On these powers and duties of the Chief Justice: see the case of Akufo-Addo (Chief Justice of Ghana) v Quashie-idun 2 G & G 368 at 370, CA. The Chief Justice has the implied power under article 297(c) of the Constitution, 1992 to do all that is necessary to be done to enable him to do and enforce the doing of the act or thing which he had been authorised to do. The implied power of the Chief Justice is not limited to himself but extends to others but more particularly under article 297(j) of the Constitution, 1992:

“(j) where a power is conferred or a duty is imposed on the holder of an office as such, the power may be exercised and the duty shall be performed by the person for the time being charged with the performance of the functions of that office.”

Now, any reference to the Chief Justice includes the Acting Chief Justice: see article 295(2) of the Constitution, 1992. But all said and done, the real issue in this application is not whether or not the respondent has or did not have the power to do what he did, though it must be readily admitted that he has the power at least an

[p.293] of [2001-2002] 1 GLR 272 implied one to offer the advice he gave to the applicant when he sought same from him as exhibit MAA1 would tend to support or show. Rather the issue is, in so exercising his powers did he infringe the rights of the applicant herein?

It goes without saying that the applicant is entitled to rights of access to the courts which cannot be taken away from him, except within legal bounds. The only advice the respondent admitted to have given the applicant was to bring the motion for an order of interim injunction on notice to the defendants. That piece of advice in itself was not devoid of merit, neither was it unreasonable. Here was the first defendant, the Chief Executive of the Republic of Ghana and upon whom the Ghanaian electorates had only a few months earlier entrusted the administration of the country for the next four years, desiring or wanting to appoint some persons in certain positions to advise and assist him in discharging the functions of his exalted office efficiently. Here were the persons ready to assume the office contemplated for them, ready to discharge their functions for the good governance of the country. On the other hand, there was the present applicant expressing serious misgivings about the whole exercise and wanting to ventilate his grievances and seek a redress also in the interest of the country and having gone to court in the first place with the aim to halt the process initiated by the President. If the applicant herein succeeds, the whole governmental machinery or nearly so would grind to a halt. The consequence would be very catastrophic for Ghana. There will be chaos, anarchy and disorder of an unprecedented magnitude in the country with its attendant, unimaginable and dire consequences both locally and elsewhere. Sheer common-sense will dictate that the defendants should be served with the motion so as to defend themselves as well as the action. The law must be allowed to operate but in an orderly and fair manner. He chose to proceed ex parte. Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd [1998-99] SCGLR 1 described and delineated the circumstances under which it would be proper to grant ex parte applications and orders of injunctions. Acquah JSC said at 7:

“. . . ex parte applications and orders for injunctions are undoubtedly anomalies in our administration of justice. And had the Rules of Court not permitted such applications and

[p.294] of [2001-2002] 1 GLR 272 orders to be made, they would have been nullities. That to prevent the misuse of ex parte applications for injunctions the practice, as sanctioned by case law, is that such applications are to be resorted to only in cases of extreme emergency, where the interest of justice requires that the courts should intervene immediately without notice to the party affected. This implies that the urgent situation must be such that it will be improper or even imprudent to give notice of the application to the other party. And if a court is satisfied that the situation is urgent enough to require its intervention the ex parte order that the court would make thereon should be for a very limited time of about seven days. For it is certainly not permissible—and indeed it is a travesty of justice—for a court to make an ex parte order remain in force, pending the final determination of the suit, or pending the determination of the application on notice to the other side.”

Similar observations were made in the case of Ansah v Ansah [1977] 2 All ER 638 at 642, CA; an English Court of Appeal decision. I deduce from the opinion of Acquah JSC referred to above that ex parte applications must be used sparingly and but for the rules of court they would not have been permitted. I have combed the Supreme Court Rules, 1996 (CI 16) to see if any provision had been made to sanction ex parte applications for injunctions in that court and I found none. Neither did I find any practice direction sanctioning such application to be made at the Supreme Court. The applicant said that practice was known to the Supreme Court Ekwam v Pianim (No 1) [1996-97] SCGLR 117 was cited to me. That case dealt with the practice and procedure in the Supreme Court on interim injunctions. It was an application to that court for an interim injunction to restrain the New Patriotic Party from holding a delegates’ congress until after the disposal of the main suit then pending before the Supreme Court. The application was made ex parte and the New Patriotic Party made some representations to the effect that they be served as interested parties who will be affected by the orders of the court. Kpegah JSC sitting as a single justice of the Supreme Court agreed and ordered that the New Patriotic Party should be served with the application The

[p.295] of [2001-2002] 1 GLR 272 learned justice of the Supreme Court said at 118 that: “. . . it is the duty of this court to keep the door to the shrine of justice well open rather than to close it.”

That must be true of that court in 1996 as it is today. If that is the declared and undisputed duty of that court, then it must be observed at all times. I think it is fair and reasonable to say that where the interested party is no less a figure than the President of the nation who was just about settling down in the high office into which he had just been elected, then if he is to be proceeded against in the highest court of the land he must be allowed to be heard in the matter. The best way to do this is to serve the application on notice on him. The respondent who is the acting head of the judiciary must be presumed to be well versed and knowledgeable in these matters. It would be an unpardonable negation of his duties if he did not offer the needed guidance and advice to the applicant or any other person who wanted to resort to this mode of application described as being anomalous. I would even go to the extent of saying that in the particular circumstance of this case he was bound to do that. I cannot imagine what the situation would have been like if when the applicant put the matter before him he had failed or refused to tell him what he did only for him to quickly assemble a panel only to throw out the application after hearing the applicant in the court room. What an exercise in futility that would be in the highest court of the land but that is what the applicant had told this court should have been done. Who would have profited from this exercise?

The defendant should live up to the expectations of his office, he must not only display candour but he must express as well and to all manner of persons who bring themselves before him for his directions. This duty the respondent performed with distinction. Admittedly, in performing his administrative functions, the respondent is to be guided by article 23 of the Constitution, 1992 which demanded that he acted fairly and reasonably within the scope of the requirement imposed on him by law. From what has been said so far the respondent complied fully with the standards and test set for him under that article. It was the applicant who in mounting the action as a whole did not apparently consider article 57(5) of the Constitution, 1992. It provided that and I quote: “The President shall not, while in office as President, be personally liable to any

[p.296] of [2001-2002] 1 GLR 272 civil or criminal proceedings in court.”

Amidu v Kufuor (supra) spelt out the full implications in this article and came out with the conclusions that he could be sued only in the name of the Attorney-General. This was not done by the present applicant. Far from the applicant being denied access from the courts he was shown the better and fairer way to do so. He sought to go to court in a particular manner. The dangers in this course in so doing were pointed out to him and he was not left alone without the correct method shown to him. He refused to comply with it believing quite clearly in the propriety of the path he chose to thread upon to the Supreme Court. I have said earlier that he later took a “U” turn and brought the motion on notice on 2 February 2001. If that motion could not be heard, then it was because of the preliminary objection raised by his adversary. I am not aware that that decision has been reviewed in his favour. That meant all the points raised were right and against him for the several reasons given in the judgment by the majority of the Supreme Court judges. One would have thought that the applicant could have taken the result in good faith, for with that judgment all the matters raised in the interlocutory application merged into that judgment; that must be very plain.

I now turn to the method adopted to seek the reliefs under article 33(4) of the Constitution, 1992 which said that the Rules of Court Committee may make rules of court with respect to the practice and procedure of the superior courts for the purpose of this article, that is article 33. No such rules have so far been made, at least not to my knowledge, but this is not the first time the Rules of Court Committee failed to make rules for the practice and procedure in those circumstances. This also happened under article 28(4) of the Constitution, 1969 when the issue arose in the case of People’s Popular Party v The Attorney-General [1971] 1 GLR 138. Hayfron-Benjamin J (as he then was) said at 145: “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.”

I have read article 33(2) of the Constitution, 1992 carefully and

[p.297] of [2001-2002] 1 GLR 272 found that it shows the remedies available to the applicant. I have also read article 33(5) very carefully and the impression is clear that the remedies envisaged go beyond what are stated in article 33(2) They are and include declarations as sought by the applicant in this case. But the point sought to be made is that whether or not it is article 33(2) or 33(5) of the Constitution, 1992 which is applicable in this matter or whether or not the applicant has come to court the proper way, that is with or without leave of the court for the reliefs, the point does not arise; it will only so arise when this court comes to the conclusion that his fundamental rights have indeed been infringed and he is entitled to a remedy or the one he seeks. If he does not get to the legal armoury there is no point considering what sort of weapon is best suited for him. That point does not simply arise.

Fundamental human rights, necessary as they are for the enjoyment of the citizen, must be handled with extreme caution. It is clear and must be protected. The protection and enjoyment must however be within legally recognised bounds, and the person who styles himself as aggrieved must show beyond doubt that his rights have indeed been infringed. In determining whether or not the rights are infringed the court must undergo a painstaking examination of all the facts disclosed and put at its disposal. This is the time to eschew fear, for the judge can ill-afford to be described as a timorous soul. Fundamental human rights is not a one way affair, with all roads leading only to the citizen. The other avenue must also be looked at and considered carefully to meet the national interest. The court is in a very good position to determine what is good in the national or public interest, that is why there are so much restrictions in the enjoyment of those rights even under our own Constitution, 1992. It must be ensured that whiles the citizen enjoys his rights and freedoms, he does not do so in a manner that will grind the whole governmental machinery to a halt. That is a good ingredient to a dish of anarchy, chaos and disharmony in the nation, a dish which nobody will like to be served with, let alone taking a morsel thereof to sample. See the comments on fundamental human rights in the case popularly referred to as the Benneh case.

The applicant is asking for a declaration, a discretionary remedy I will consider the role played by him in the whole episode. If he

[p.298] of [2001-2002] 1 GLR 272 had commenced his proceedings on the right note by giving notice to his defendants so that they could be heard, the end of justice will be better served. The clear words of Hayfron-Benjamin J (as he then was) in the PPP case (supra) at 143 are still relevant today in this case in particular. For the conduct of the applicant who I describe in very modest terms as the architect of his own doom and also for the reason that his whole complaint has finally been determined by the Supreme Court on its merits, a matter fully determined by the Supreme Court or a court of competent jurisdiction for the same to be resuscitated in another court of the land is a clear abuse of the court process. Also that the respondent was fair and candid in a manner in which he exercised his discretion, the ‘applicant suffered no injury in the enjoyment of his rights, especially his rights of access to the courts.

I find no merit whatsoever in the application. It is not necessary to go beyond this point and consider the points raised for or against the application except to say that it is devoid of merit and it is frivolous and an abuse of the process of the courts. The application is accordingly dismissed. Costs of ¢500,000 is awarded to the respondent.

Application dismissed.

EKD-O