TSIKATA vs. ATTORNEY-GENERAL [2001-2002] 2 GLR 1

CASES REFERRED TO:

(1) Payne v Bradley [1962] AC 343; [1961] 2 All ER 882; [1961] 3 WLR 281, HL. (2) Beswick v Beswick [1968] AC 58, HL.

(3) Atta v Kankan [1963] 1 GLR 54.

(4) iredu v Mim Timber Co Ltd [1963] 2 GLR 167, SC.

(5) Wilmot v Wilmot [1981] GLR 521.

(6) Republic v Central Regional House of Chiefs Judicial Committee; Ex parte Aaba [2001-2002] 1 GLR 221, SC; [2001-2002] SCGLR 545.

(7) Amidu v Kufour [2001-2002] SCGLR 86.

(8) Youngstown Sheet & Tube v Sawyer, 343 US 579 (1952).

(9) Yeboah v J H Mensah [1998-99] SCGLR 492.

(10) Agbevor v Attorney-General [2000] SCGLR 403.

(11) Republic v High Court, Accra; Ex parte Afoda [2001-2002] SCGLR 768.

(12) Hooker’s Settlement, In re; Heron v Public Trustee [1955] Ch 55; [1954] 3 All ER 321; [1954] 3 WLR 606.

[p.8] of [2001-2002] 2 GLR 1 (13) H’s Settlement, In re [1939] WN 318.

(14) Heyting v Dupont [1963] 1 WLR 1192; [1963] 3 All ER 97; 107 SJ 681.

(15) Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808; [1963] 1 All ER 326; [1963] 2 WLR 802, HL.

(16) Aylmer, In re; Ex parte Bischoffsheim (1888) 20 QBD 258.

(17) Apaloo v Electoral Commission of Ghana [2001-2002] SCGLR 1.

(18) Ankrah v Chochoe (1949) 12 WACA 469.

(19) Oil & Fats Co Ltd v Hooper [1992] 1 GLR 326, CA.

(20) City of Heidelburg v McPherson [1964] VR 783.

(21) Amegashie v Dablah [1965] GLR 296.

(22) Sikpo v Lassinueh (1922) FC ‘22, 29.

(23) Hastings (No 3), In re [1959] Ch 368; [1959] 1 All ER 698; [1959] 2 WLR 454, DC. (24) Nsiah v Asare [1959] GLR 17.

(25) Asare v Teing [1960] GLR 155.

(26) Quist v Kwantreng [1961] GLR (Part II) 605.

(27) Captan v Minister for Home Affairs (1970) G&G 457.

(28) Okorie alias Ozuzu v The Republic [1974] 2 GLR 272, CA.

(29) Republic v High Court, Kumasi; Ex parte Abubakari (No1) [1998-99] SCGLR 84. (30) Tuffuor v Attorney-General [1980] GLR 637, CA (sitting as SC).

(31) Chokolingo v Attorney-General of Trinidad & Tobago [1981] 1 All ER 244, PC. (32) Republic v High Court, Accra; Ex parte Attorney-Gene-General (Delta Foods Case) [1999-2000] 1 GLR 258, SC; [1998-99] SCGLR 595.

(33) Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 All ER 211; [1971] 1WLR 1520; 115 SJ 407, CA.

(34) Bakuma v Ekor [1972] 1 GLR 133, CA.

(35) Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208; [1969] 2 WLR 163, HL.

[p.9] of [2001-2002] 2 GLR 1 (36) Benneh v The Republic [1974] 2 GLR 47, CA.

(37) Golden Chemical Products Ltd, In re [1976] 3 WLR 1; [1976] 2 All ER 543.

(38) R v Skinner [1968] 2 QB 700; [1968] 3 All ER 124; [1968] 3 WLR 408, CA.

(39) Pillai (N Rengasamy) v Comptroller of Income Tax [1970] AC 1124; [1970] 2 WLR 1053, PC. (40) Carl-Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1964] 3 WLR 905; [1964] 3 All ER 326; 108 SJ 672, CA.

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

(42) Republic v Judicial Secretary; Ex parte Torto [1979] GLR 444, CA.

(43) Tower Hamlets London Borough Council v Chetnik Development Ltd [1988] 1 All ER 961, HL. (44) CFAO v Zacca [1972] 1 GLR 366, CA.

(45) Patu-Styles v Amoo-Lamptey [1984-86] 2 GLR 644, SC.

(46) Republic v Liberty Press Ltd [1968] GLR 123.

(47) R v Colvin (1957) 3 WALR 89.

(48) Hall v Hall [1963] P 378; [1963] 2 All ER 140; [1963] 2 WLR 1054, CA.

(49) Osman v Tedam (1970) 2 G & G 466, CA.

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

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

(52) Nsiah v Amankwaah [1998-99] SCGLR 132.

(53) Youhana v Abboud [1974] 2 GLR 201, CA.

(54) Darko v Amoah [1989-90] 2 GLR 214, SC.

(55) A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 77, CA (full bench). (56) Election of First President, In re; Appiah v Attorney-General (1970) G & G 530, CA. (57) Daswani v Commissioner of Police (No 2) [1964] GLR 54.

(58) National Democratic Congress v Electoral Commission of Ghana [2001-2002] 2 GLR 340, SC;

[2001-2002] SCGLR 936.

[p.10] of [2001-2002] 2 GLR 1 (59) Amidu v Electoral Commission [2001-2002] 1 GLR 457, SC; [2001-2002] SCGLR 595. (60) National Media Commission v Attorney-General [2000] SCGLR 1; [1999-2000] 2 GLR 581, SC. (61) Republic v Yebbi & Avalifo [2000] SCGLR 149; [1999-2000] 2 GLR 50, SC. ACTION by the plaintiff who had been arraigned before the Fast Track High Court on a charge of causing financial loss to the State under articles 2(1) and 130(1) of the Constitution, 1992 for, inter alia, a declaration by the Supreme Court that there is no Fast Track High Court with criminal jurisdiction to try criminal cases established under the Constitution, 1992. The facts are sufficiently stated in the judgments of Bamford-Addo, Kpegah, Acquah and Akuffo JJSC.

Professor E V O Dankwa (with him R L S Agbenoto) for the plaintiff.

Hon Nana Akufo-Addo, Attorney-General (with him Gloria Akuffo (Ms), Deputy Attorney-General; Osafo-Sampong, Director of Public Prosecutions and E A Addo, Solicitor-General) for the defendant.

Bamford-Addo JSC. The plaintiff has invoked the exclusive original jurisdiction of the Supreme Court under articles 1(2) and 130(1) of the Constitution, 1992 of Ghana, which gives the Supreme Court exclusive original jurisdiction in all matters relating to the enforcement or interpretation of this Constitution. Article 1 of the Constitution, 1992 provides that:

“1. (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.

2. This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.”

[p.11] of [2001-2002] 2 GLR 1

Article 2 of the Constitution, 1992 has provided how the supreme law is to be enforced. Accordingly, it states:

“2. (1) A person who alleges that—

(a) an enactment of 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.”

(The emphasis is mine.)

Our mandate here is that whenever any person alleges that any act or omission of another is inconsistent or is in contravention of any part of the Constitution, 1992 the Supreme Court has jurisdiction to interpret the particular article and if it is so found, to declare that act null and void. In this way the Constitution, 1992 is enforced.

In this case, the Attorney-General sought to try the plaintiff on a criminal charge for a criminal offence under section 179A of the Criminal Code, 1960 (Act 29) at the so-called “Fast Track High Court” which has been set up by the Chief Justice. The plaintiff therefore issued a writ in this court, and in the writ he claims that the Fast Track High Court was an unconstitutional court with no legal mandate to try him in respect of the offence with which he had been charged. In other words, that the creation of the “Fast Track High Court” was inconsistent with the Constitution, 1992 and therefore not a court of competent jurisdiction which can try him. The defendant on his part claimed that the “Fast Track High Court” was legally and constitutionally set up and is a division of the ordinary High Court. That it was set up under article 139(3) of the Constitution, 1992.

It is necessary therefore for this court to interpret article 139(3) of the Constitution, 1992 particularly the word “divisions” in that article to find out whether that article gave the Chief Justice the power to set up the Fast Track High Court.

In the plaintiff’s writ the following declarations were sought, namely:

“(1) A declaration that there is no ‘Fast Track High Court’ with jurisdiction to try criminal cases established under

[p.12] of [2001-2002] 2 GLR 1 the Constitution of the Republic of Ghana, and there is therefore no constitutional foundation for the plaintiff to be prosecuted before such court.

(2) A declaration that the oral demand by agents of the defendant to the plaintiff to appear before a ‘Fast Track High Court’ when no such court for trail is provided for in the Constitution of the Republic of Ghana, is an infringement on articles 125 and 126 of the Constitution, 1992 establishing the judiciary.

(3) An injunction against the defendant and their agents restraining them from seeking to proceed with a trial of the plaintiff before the purported ‘Fast Track High Court.’ (4) A declaration that the summons signed by a justice of appeal served on the plaintiff commanding him ‘in the President’s name to appear in person before this court . . .’ is in contravention of articles 1(1) and 125(1) of the Constitution, 1992.

(5) A declaration that there is no ‘Fast Track High Court’ established under the Constitution, 1992 of the Republic of Ghana and therefore a summons to appear before such a ‘court’ is null and void.”

The facts of this case according to the plaintiff are that on 7 February 2002 two police officers from the Criminal Investigation Department of the Police Service went to his residence and informed him that the criminal proceedings that had been initiated against him before the Circuit Tribunal, Accra since 30 November 2001 were being discontinued by the Attorney-General’s Office. They provided the plaintiff with a copy of the nolle posequi notice filed in the registry of the Circuit Tribunal, Accra to that effect. They also informed him that he was to appear the next morning Friday 9.00 am at the “Fast Track High Court,” Accra.

The summons requiring the appearance of the plaintiff before the “Fast Track High Court” was served on the plaintiff. This summons is marked TT4 in the plaintiff’s documents supporting his writ. The form of the summons was different from specimen Form 6 provided for use in the Criminal Procedure Code, 1960 (Act 30) as the proper

[p.13] of [2001-2002] 2 GLR 1 form required to initiate criminal proceedings before a court in accordance with section 62 Act 30. This specimen Form 6 as prescribed in Act 30 forms part of the Code. The following are the contents of Form 6:

“In the District Court . . .

To A.B. of Whereas your attendance is necessary to answer a complaint of [state shortly the offence complained of with time and place].

You are hereby commanded in the name of the Republic to appear in person before this Court, . . . at . . . on the day of 19. . . ,and on every adjournment of the Court until the case be disposed of.

Issued at . . . on the . . . day of . . . 19 . . .

(Signature of Magistrate)”

But in the summons served on the plaintiff, ie document TT4 the command stated that: “You are hereby commanded in the name of the President . . .” instead of in the “Republic,” which was the correct name to be used to summon the accused person to court. The plaintiff submitted that the use of the “President’s” name instead of the name of the “Republic” rendered the summons a nullity: see relief 4 set out above.

I think it would be appropriate to deal with this issue at this stage. Article 125(1) of the Constitution, 1992 provides that: “125(1) Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” (The emphasis is mine.) The combined effect of articles 1(1) and 125(1) of the Constitution, 1992 as well as section 62 and Form 6 of Act 30, is that criminal justice shall be administered in the name of the Republic but this provision was not complied with, in that the name of the President rather than Republic was used to summon plaintiff,—then the accused, to appear before the Fast Track High Court which is contrary to the provision of the said laws, and is inconsistent with the provisions of the Constitution, 1992 as stated above. In consequence thereof the summons ought to be declared null and void and I so declare.

Again it is the case of the plaintiff that the “Fast Track High

[p.14] of [2001-2002] 2 GLR 1

Court” to which he was summoned to appear to face a criminal charge and which summons I have already declared as null and void, is not a legally created court, unknown to the Constitution, 1992 or any other law, and as such it is an unconstitutional court with no power to try him for the criminal offence with which he had been charged, namely causing financial loss to the State contrary to section 179A(1) of the Criminal Code, 1960 (Act 29). The defendant, as I said, on his part contended that that court is a division of the High Court, Accra established under article 139(3) of the Constitution, 1992 and as such the court was properly created by the Chief Justice pursuant to power given him under article 139(3) of the Constitution, 1992 which can try the plaintiff on the criminal charge referred to above.

Issues were joined and the memorandum of issues filed sets out the following issues to be determined.

“1 Whether or not there was a court known as a ‘Fast Track Emmanuel Court.’ 2 Whether or not the Fast Track High Court, if it exists, is a court of competent jurisdiction known to the Constitution, 1992.

3 Whether or not there is any basis for an injunction to restrain the defendant from proceeding with the prosecution of the plaintiff before the said Fast Track High Court.”

Now chapter eleven of the Constitution, 1992 deals with the judiciary and article 126 thereunder sets out the courts which make up the judiciary and the mode or exercise of power of the judiciary. Accordingly, article 126 provides:

“126. (1) The Judiciary shall consist of—

(a) the Superior Courts of Judicature comprising— (i) the Supreme Court;

(ii) the Court of Appeal; and

(iii) the High Court and Regional Tribunals.

(b) such lower courts or tribunals as Parliament may by law establish.”

These are the superior courts known to the Constitution, 1992 and also other lower courts as Parliament may by law establish. One

[p.15] of [2001-2002] 2 GLR 1 such law is the Courts Act, 1993 (Act 459). All courts are established by law and not in any other way. Whether a court falls within the courts envisaged by article 126 of the Constitution, 1992 depends on the law that created it, ie by an Act of Parliament which sets out the jurisdiction and composition, as well as the rules of practice and procedure affecting these constitutionally created courts. Nowhere in the Constitution was power given by article 139(3) to the Chief Justice for the creation of a new court without appropriate legislation. In the case of the chieftaincy tribunals, it was done under article 274 of the Constitution, 1992 and section 39(c) of Act 459. Also, under article 126(1)(a)(iii) the Regional Tribunal was set up as one of the superior courts of judicature but was given only criminal jurisdiction: see section 23 of Act 459 which deals with the Regional Tribunal, which is separate from the normal High Court.

Under Act 459, s 24(1) it is provided:

“24. (1) Subject to the provisions of the Constitution, this Act and any other law, a Regional Tribunal shall have concurrent original jurisdiction with the High Court in all criminal matters and shall in particular try—

(a) the special offences specified under Chapter 4 of Part III of the Criminal Code 1960 (Act 29);

(b) offences arising under— (i) Customs, Excise and Preventive Services Management Law, 1993 (P.N.D.C.L. 330);

(ii) Income Tax Decree, 1975 (SMCD 5);

(iii) Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236); and (c) any other offence involving serious economic fraud, loss of state funds or property.”

(The emphasis is mine.) It was also provided under section 25(2) of Act 459 that the rules of procedure under Act 30, the Evidence Decree, 1975 (NRCD 323) and other rules applicable to the High Court in criminal trials was to apply unchanged to the Regional Tribunal.

It is a cardinal principle that all courts are creation of statute on which they depend for their legality and any court created in a contrary way has no legal stature or constitutional foundation for its existence. It is also a requirement that lower courts or tribunals must

[p.16] of [2001-2002] 2 GLR 1 be created by legislation as was done in the setting up of the Regional Tribunal, the circuit courts and tribunals and community tribunals under sections 23, 40, 43 and 46 respectively of Act 459. Similarly chieftaincy tribunals were also created by law, which law also provided for their jurisdiction and composition, as well as their rules of practice and procedure. If even lower courts are set up by law, it is difficult to imagine why the purported superior court, such as the Fast Track High Court, could be set up legally without statutory backing.

In fact, the defendant claimed that the Fast Track High Court was a division of the High Court and was created by virtue of article 139(3) of the Constitution, 1992. The question which calls for an answer is this, if its claimed that the Fast Track High Court is a branch or “division” of the High Court, Accra, then what was the need to alter its jurisdiction and give it a special limited civil jurisdiction instead of the normal jurisdiction given the High Court in both criminal and civil matters? And why are some of the normal rules of practice and procedure applicable to the ordinary High Court different from that of the Fast Track High Court? The answer to these questions indicate clearly that considering the form and species of the Fast Track High Court, it is undoubtedly a new court, just as the Regional Tribunal is a new court, different from the ordinary High Court. This is because the jurisdiction of that special court, ie the Regional Tribunal is limited to only criminal jurisdiction even though it is said to be equivalent to the High Court. The Fast Track High Court is also supposed to have only civil jurisdiction when it was created and some different rules of procedure from those of the ordinary High Court contained in the High Court (Civil Procedure) Rules, 1954 (LN 140A) and applicable to the High Court in the exercise of its original civil jurisdiction. No mention was made of any criminal jurisdiction for the Fast Track High Court and all the forms of that Court concern civil cases. I am of the view that the Fast Track High Court is different from the ordinary High Court.

Next, what is the meaning of the word “divisions” as envisaged under article 139(3) of the Constitution, 1992? According to article 139(3) of the Constitution, 1992: “(3) There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.” (The emphasis is

[p.17] of [2001-2002] 2 GLR 1 mine). In interpretation of statutes, headings and side notes are useful guides. It is to be noted that article 139 of the Constitution, 1992 comes under the heading “High Court” and the side notes thereof concern “Composition of High Court and qualification of justices.” Another rule and principle of interpretation is that words take their meaning, in case of ambiguity, from the context in which they appear. The placing of article 139(3) of the Constitution, 1993 under “Composition of High Court and qualification of justices” must not be lost sight of as it is a useful guide in interpreting the word “division” under article 139(3). A close scrutiny of the provision of this article informs me that the particular subject matter which article 139(3) is concerned with, is as stated in the side notes thereof, namely the judges who compose the High Court and their qualifications. It is in this context that the word “divisions” must be interpreted. Under article 139(1) of the Constitution, 1992 it is provided:

“139. (1) The High Court shall consists of—

(a) the Chief Justice;

(b) not less than twenty Justices of the High Court; and

(c) such other Justices of the Superior Court of Judicature as the Chief Justice may, by writing signed by him, request to sit as High Court Justices for any period.

(2) The High Court shall be constituted—

(a) by a single Justice of the Court; or (b) by a single Justice of the Court and jury; or (c) by a single Justice of the Court with assessors; or (d) by three Justices of the Court for the trial of the offence of high treason or treason as required by article 19 of this Constitution.

(3) There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.

(4) A person shall not be qualified for appointment as a Justice of the High Court unless he is a person of high moral character and proven integrity and is of at least ten years’

[p.18] of [2001-2002] 2 GLR 1 standing as a lawyer.”

(The emphasis is mine.) The word “division” as mentioned in article 139(3) of the Constitution, 1992 is the word to be interpreted here. The word “division” in judicial parlance refers to a number of different meanings depending on the context in which it appears. For instance, the word division could be used to describe the two main jurisdictions possessed by a court, ie criminal division or civil division of a court. The word “division” could also be used to describe a branch of the High Court which deals with a particular subject matter, handled by such branch or “division”, for example, commercial and industrial division, because such court handles commercial and Industrial matters. If it is probate matters, then that branch could be referred to as the “Probate Division.” The word “division” is also used to describe the territorial or geographical divisions of the High Court or other courts. If the word “division” has only one meaning, there would be no ambiguity in the word “division” used in article 139(3) of the Constitution, 1992 and therefore no need for interpretation of same.

What then is the meaning of the word “division” as envisaged in article 139(3) of the Constitution, 1992? As I find it, it is referable to the geographical divisions into which the High Court is divided. It is to these divisions, that the Chief Justice is mandated to constitute with duly qualified High Court judges. This provision is found in the company of other provisions dealing with composition of courts with judges; see the side notes indicating the subject dealt with in the said article. This is the context in which division should be interpreted. Considering that the legislature does not make provisions in vain, every word has a purpose and the purpose of the said subclause is to make provision for the composition of the regional divisions of the High Court.

Accordingly, it is my considered opinion that the word “division” in article 139(3) of the Constitution, 1992 refers only to the territorial, regional or geographical divisions into which the High Court is divided. Any different meaning put on that word, considering the context in which it appears, would do violence to the meaning and would also lead to absurdity. Having in article 126 of the Constitution, 1992 named the courts which comprise the judiciary and specified how other courts are to be created by only

[p.19] of [2001-2002] 2 GLR 1

Parliament, it would be absurd to say that in a later article power to create new courts would be given to the Chief Justice contrary to the procedure for the creation of courts earlier specified. But clearly what article 139(3) of the Constitution, 1992 does not do is to give power to the Chief Justice to create a new court or as the defendant put it, a division of the High Court different in species referred to as the Fast Track High Court. Certainly as I said before, the article does not deal with the setting up or creation of new courts, or divisions of the High Court; it only deals with the provision of qualified judges for the geographical division of the High Court. The Chief Justice therefore has no power to create any court different from the existing ones without parliamentary backing.

I have also considered certain principles and rules of interpretation namely: that where words are in pari materia or are the self-same words as those sought to be interpreted, the meaning that has been attached to those words either in earlier or latter statutes, in corresponding context, would as much as possible be adopted unless it would result in absurdity. This is because the meaning given to similar words in the same context in an earlier or later statute would throw a light on the meaning of the words sought to be interpreted. In this wise the Courts Ordinance, 1935 (Cap 4) repealed, which was applicable to Ghana contained similar words in the same context as contained in article 139(3) of the Constitution, 1992.

In the case of Payne v Bradley [1962] AC 343, HL Lord Denning in interpreting the words “private gain” under the Betting and Lotteries Act 1934 and the Small Lotteries and Gaming Act, 1956 considered a number of other statutes including even later ones made after the statute sought to be interpreted. He said at 357-358 of the report as follow:

“Take next section 17 of the Betting and Gaming Act, 1960, which permits the use of gaming machines. True, it is later in date than the Act of 1956. But it is permissible to look at a later statute, not perhaps to construe the earlier statute, but to see the meaning which Parliament puts on the self-same phrase in a similar context, in case it throws any light on the matter . . .

[p.20] of [2001-2002] 2 GLR 1 the legislature has throughout used the words ‘purposes of private gain’ quite consistently so as to denote the direct benefit which accrues to an individual when money goes into his pocket or money’s worth gets into his hands, as distinct from the indirect benefit which accrues to him as a member of a society or club by reason of the improvement of its accommodation or amenities which he shares with the other members.”

(The emphasis is mine.) When a provision in question has been reenacted in the same or similar form in a succession of statutes the origins of those provisions can be considered: see Beswick v Beswick [1968] AC 58, HL.

Applying this principle I have resorted to Cap 4 where in similar context, the word “division” was used. There “judicial division” or “division” contained in section 2 of the interpretation section of Cap 4 (which was repealed by the Courts Act, 1960 (CA 9)) defines “judicial division” or “division” as follows “Judicial Division” means a Judicial Division, the formation of which has been provided for by an order of the Chief Justice under Section 22 of this Ordinance.” And section 22 of Cap 4 provides that:

“22. (1) For the purposes of the administration of justice, the Chief Justice, with the approval of the Governor, may by order under his hand provide for the formation of Judicial Divisions throughout the Colony and from time to time may in like manner amend, vary, alter or revoke any such order.

(2) Judicial Divisions shall be separate and distinct from any districts heretofore or hereafter formed by the Governor for administrative purposes under this or any other Ordinance, and shall not necessarily conform with the boundaries or descriptions of such districts.

(3) Every order of the Chief Justice under this section, and every amendment, variation, alteration or revocation of any such order shall be published in the Gazette.”

(The emphasis is mine.)

The divisions mentioned in section 22 of Cap 4 refers only to geographical or territorial divisions of the High Court. The following section, ie section 23 of Cap 4 also deals with the power of the Chief Justice to assign puisne judges to those

[p.21] of [2001-2002] 2 GLR 1 particular judicial divisions. These provisions are in pari materia with the provision of article 139 of the Constitution, 1992 which deals with the same subject matter. The meaning of “division” stated in Cap 4 has the same meaning as “division” envisaged in article 139(3) of the Constitution, 1992 which “division” stated there means the geographical divisions into which the High Court is divided in all the regions of Ghana, eg High Court; Kumasi, High Court; Sunyani, High Court; Accra, etc. This same issue was further clarified by Mr Y Yeboah in his article in the 1991-92 Review of Ghana Law Special Anniversary Edition at pp 8 and 31 when considering an earlier statute than Cap 4, ie the Courts Act, 1876 which [earlier on had] applied to Ghana before. At p 8 he said:

“Under sections 23 and 24 [of the Courts Ordinance, 1876] the colony was divided into the Eastern, Central and Western Provinces; and Divisional Court sat in the capital of each province, with a proviso, however, that where necessary, ‘several Divisional Courts may be held concurrently in the same province’. Under this provision, a second Divisional Court for the Eastern Region sat at Keta.”

Further at p 31 under the heading “High Court’s Geographical Jurisdiction” Mr Yeboah had this to say; “The High Court’s geographical jurisdiction has been subject also to varying dimensions since 1876. Under the 1876 Ordinance, each Divisional Court exercised jurisdiction only within a particular province or territory geographically delineated. This limitation to a distinct geographical area was abolished in 1971 with the result that the High Court was considered to be a single court throughout the whole country with branches in the regional capitals.”

This explanation as to the meaning of “divisions” by the learned author fortifies my view that “division” mentioned under article 139(3) of the Constitution, 1992 is in respect of geographical divisions of the one High Court in all the regional capitals of Ghana and these divisions were made by legislation. The regional divisions of the High Court was made by the Judicial Division (Colony Order, 1954 (LN 89) which divided the Colony under

[p.22] of [2001-2002] 2 GLR 1 section 22 of the Cap 4 into various geographical divisions. Division of the High Court into geographical divisions as can be seen is made by legislation as shown above. It clearly follows that “division” means, as I have said earlier, the geographical divisions already existing which have been preserved by section 115 of the Courts Act, 1993 (Act 459). Nowhere in the Constitution or any other law was provision made for the creation by the Chief Justice of a division of the High Court or a new court like the Fast Track High Court.

I must emphasise that all courts, including the circuit court and the circuit tribunals, the community tribunals and the Regional Tribunals as well as the chieftaincy tribunals were all creations of statute under Act 459. A court created without statutory backing is illegal, yet in the case of the Fast Track High Court it was created by guidelines which has no legal effect. Further any division of a court and its composition can be created by statute: see the Lands Court created under section 24 Cap 4 which provides that:

“24. (1) There shall be a Division of the Supreme Court, to be known as the Lands Division, which shall exercise within such area or areas as the Governor may from time to time by order specify, jurisdiction in all causes and matters relating to the ownership, possession or occupation of lands, specifically assigned to the Lands Division by this or any other Ordinance. The Judges of the Lands Division, to be known as Land Judges, shall be, and shall be deemed always to have been, the Chief Justice and so many Puisne Judges as the Chief Justice may from time to time assign to the Lands Division.”

Likewise the Regional Tribunal was a new court created under the Constitution, 1992 and Act 459, s 23 thereof with its own jurisdiction and composition.

What then is the Fast Track High Court? Is it a division of the High Court? No. Is it a new court not mentioned in the Constitution, 1992? The answer is yes, considering the nature and species of that purported court. If the Fast Track High Court is a new court by my calculation, could it have been created by the guidelines which is not a statute? Even if it were a new court as done in legally created new courts, its jurisdiction which has to be

[p.23] of [2001-2002] 2 GLR 1 certain and precise and not capable of enhancement without statutory authority is precisely set out. The Fast Track High Court is devoid of all these requirements.

The irresistible conclusion in view of the above reasons leads me to the conclusion that article 139(3) of the Constitution, 1992 deals only with regional divisions of the High Court which are already in existence and which divisions are required to be constituted by the judges nominated by the Chief Justice. It does not give the Chief Justice the power to create new court divisions of the High Court such as the Fast Track High Court by mere guidelines, which has no statutory effect.

I have also resorted to case law for guidance: see Atta v Kankan [1963] 1 GLR 54. In Wiredu v Mim Timber Co Ltd [1963] 2 GLR 167, SC it was held as stated in the headnote in holding (3) that: “The High Court under the Courts Ordinance, Cap. 4 (1951 Rev.), repealed, as under the Courts Act, 1960 (CA 9) was just one High Court exercising jurisdiction throughout the country. It was divided into judicial divisions merely for the convenient administration of justice but not for the purposes of limiting the jurisdiction of each judicial division to only matters arising within its division . . .”

Consequently, it is right to say that the division of the High Court into judicial divisions as noted above was merely geographical and for the convenient administration of justice and does not, as claimed by the defendant, refer to special divisional courts to be created by the Chief Justice: see also Wilmot v Wilmot [1981] GLR 521 where the meaning of “judicial division” was given to the same effect. Even though it is a judgment of the High Court, I cite it for its persuasive value.

In a divorce case before the High Court, Sekondi the respondent raised a preliminary objection to the jurisdiction of the court, before the time of pleading, by which he questioned the propriety of the proceeding being instituted in the registry of the Sekondi High Court instead of the Accra High Court registry basing himself on the new Order 5, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as substituted by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), counsel for the respondent applied to the court to transfer the suit to Accra for hearing and

[p.24] of [2001-2002] 2 GLR 1 determination on the sole ground that the respondent was residing and carrying on business in Accra. The petitioner’s counsel resisted the objection and application for transfer of the suit to Accra because in his view it was not an action within the meaning of Order 5, r 1 of LN 140A, as amended by LI 1107. The Court held, allowing the preliminary objection as stated in holding (1) of the headnote:

“(1) Order 5, r. 1 of L.N. 140A as amended by L.I. 1107, unambiguously comprehended not only the concept of a substantive jurisdiction of the High Court, but also its procedural jurisdiction with regards to venue. And it was for the purposes of avoidance of doubt as to the continuing validity of Order 5, r. 1 with respect to the limitations of the High Court’s jurisdiction as to venue, that L.I. 1107 enacted a new Order 5, r. 1. Under the new rule, the judicial divisions of the High Court created under Cap. 4 continued their existence under a new nomenclature, namely, a region of Ghana coterminous with the erstwhile judicial division.”

(The emphasis is mine.) In discussing “judicial division” in the said case the judge said “judicial division” as used in the principle rules (ie LN 140A) meant a judicial division of the Supreme Court established in 1876 and the word “region” as used in LI 1107 means any region in contemporary Ghana. . . Now each region of Ghana constitutes a judicial Division of the High Court of Justice. This view of Twumasi J (as he then was) is correct and accords with my own view of the meaning to be given to the word “division” in article 139(3) of the Constitution, 1992.

In considering the above matters, the irresistible conclusion that I have arrived at is that article 139(3) of the Constitution, 1992 does not deal with the setting up of courts nor does it empower the Chief Justice to create either a new court or a division of the High Court such as the Fast Track High Court. Nor could such a court, be created by mere guidelines. The guidelines is only meant to be a guide as to the proper operation of the electronic gadgets used in the court. Also unlike a legal court, the jurisdiction given is normally certain and precise but this is not so in the case of Fast Track High Court which is contrary to the practice whereby statutory legislation provides certain and specific jurisdiction which

[p.25] of [2001-2002] 2 GLR 1 admits of no additions or amendments without the necessary statutory backing. Rules of practice and procedure meant for courts are made in the same way by statute and similarly amended, yet all these requirements were missing and ignored in the setting up of the Fast Track High Court. The jurisdiction given to the illegally set up Fast Track High Court is limited to the following matters, namely:

(i) Investors and Investment;

(ii) Banks;

(iii) Specified commercial and Industrial disputes;

(iv) Election petitions;

(v) Human Rights;

(vi) Prerogative writs; and

(vii) National revenue (of substantial) value brought by or against CEPS, IRS and other government departments or agencies.

With an option to increase this list later on. As can be seen the jurisdiction given at the time of its creation was civil not criminal and all the forms used in the Fast Track High Court are forms for civil cases between a plaintiff and a defendant and provision is also made for costs, applicable only to civil cases. If in the first list of cases to be tried by Fast Track High Court no criminal jurisdiction was provided, with legal courts the stated jurisdiction cannot be changed on ad hoc basis without any legal backing as the Fast Track High Court seeks to do. With legal courts, rules of practice and procedure are made only by the Rules of Court Committee under article 157 of the Constitution, 1992 which provides:

“157. (1) There shall be a Rules of Court Committee which shall consist of—

(a) the Chief Justice, who shall be Chairman;

(b) six members of the Judicial Council other than the Chief Justice nominated by the Judicial Council;

(c) two lawyers, one of not less than ten and the other of not more than five years’ standing, both of whom shall be nominated by the Ghana Bar Association.

(2) The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the

[p.26] of [2001-2002] 2 GLR 1 practice and procedure of all courts in Ghana.”

(The emphasis is mine.) See also section 80 of Act 459 which makes the same provision. The Fast Track High Court did not comply with the above legislation but rather provided in the said guidelines certain rules of practice and procedure for the said court. Surely, such a court cannot be a division of the High Court nor a properly created new court of any known species. Consequently, the Fast Track High Court has no constitutional or legal foundation for its existence. This quite apart from the fact that the Chief Justice is not empowered under article 139(3) of the Constitution, 1992 to create any new courts.

As regards the rules made by the guidelines, admittedly some parts of the guidelines are concerned with the proper management of the electronic equipment in use at the court and those are exempted from the necessity for legal backing, but not the rules or practice and procedure specified therein. Some of these new rules of practice and procedure concern time limits. According to the guidelines, judgment in a case should be given within three days but not beyond seven days from the conclusion of addresses after trial, whereas under LN 140A the time provided was six weeks: see LI 1107 which amends the rules, namely High Court Civil (Procedure Amendment) Rules, 1977 (LI 1107). See also Republic v Central Regional House of Chiefs Judicial Committee; Ex parte Aaba [2001-2002] 1 GLR 221, SC.

Another peculiar feature distinguishing the Fast Track High Court from the ordinary High Court is the method of initiating a civil case. According to page 2 of the guidelines: “A writ filed at the Fast Track High Court Registry will not automatically be placed on the Fast Track list until approved by His Lordship the Chief Justice.” No criteria for making that decision is set out. If the said decision goes in favour of the applicant, the case is put on the list of Fast Track High Court. If it is not, then it goes to the general list of the High Court. This is a novel procedure unknown to LN 140A. There permission is not sought from the Chief Justice before a case is placed on the cause list. After filing a writ and when the case is ripe for hearing it is distributed to judges of the High Court with regard to the subject matter of the case. This practice of the Fast Track High Court is different from the rules of procedure of the

[p.27] of [2001-2002] 2 GLR 1

High Court and it is unknown in civil cases heard at the ordinary High Court. This practice may even be said to be contrary to article 17 of the Constitution, 1992 which says that all persons shall be equal before the law. Yet this practice could be said to give the impression that some litigants would be enabled to enjoy privileges like early delivery of justice not available to all litigants due to the fact that not all courts have been computerised now. It is important that uniform rules of procedure statutorily made, be made to apply to all courts of the land in respect of particular matters.

Considering all the above stated reasons, my view is that the Fast Track High Court does not conform with the nature and species of the legal and constitutional courts known to the law. The method of its setting up, its jurisdiction and its composition, and some of its rules of procedure and practice are all made contrary to law and further no criminal jurisdiction was intended to be given to the Fast Track High Court upon its purported setting up. The Fast Track High Court is really not what it purports to be, namely a division of the High Court, nor was it created under article 139(3) nor was it cognisable by the Constitution, 1992 or any other law. It has no legal or constitutional foundation for its existence and is therefore unconstitutional.

I have not arrived at this conclusion by reason of the wrong nomenclature given to the court, because if that were the only reason against its existence, the name Fast Track High Court, it could be said to be a mere a mistake capable of rectification, and this would not strike at the very foundation of the court. This was not part of the reasons why the writ was issued nor was it an issue in the case.

Also my conclusion was not based on the electronic recording technology used by the court to record its proceedings. Indeed, the Chief Justice is empowered by section 69(1) of Act 459 to adopt any means as he determines and he has rightly determined that the courts should be computerised and electronic technology be used to record proceeding in all courts starting with the High Court. This is undoubtedly a laudable improvement in the expeditious delivery of justice and has been supported by both the government and the people of Ghana. This issue was never raised in the trial nor was the case fought on that basis since the mere use of the said technology in the Fast Track High Court is no reason for declaring

[p.28] of [2001-2002] 2 GLR 1 that court unconstitutional.

In conclusion the answer to the issues raised are in my view as follows:

(1) The Fast Track High Court is an unconstitutional court.

(2) The Fast Track High Court does not exist as a court of competent jurisdiction known to the Constitution, 1992.

(3) Consequently, there is basis for an injunction to restrain the defendant from proceeding with the prosecution against the Plaintiff in the so-called Fast Track High Court.

The Fast Track High Court is not created under article 139(3) of the Constitution, 1992; it is supposed to be a division of the ordinary High Court by the defendant but no law provided for its creation, and it was created not by legislation but by the guidelines which has no legal effect and therefore the said court has no constitutional foundation in law or constitutional legal backing for its existence.

For the above reasons, it is my view that the plaintiff succeeds in this case and is entitled to all the reliefs sought.

Ampiah JSC. Tsatsu Tsikata, the plaintiff in this action was a former chief executive of the Ghana National Petroleum Corporation (GNPC). He was arraigned before the Fast Track High Court of the High Court and charged with the offence of causing financial loss to the State contrary to section 179A(1) of the Criminal Code, 1960 (Act 29). Particulars of the offence were that he, “. . . in or about February 1993 in Accra in the Greater Accra Region wilfully caused Ghana National Petroleum Corporation (GNPC) to guarantee a loan of FRF 5,500,000 from Caisse Francaise de Development to Valley Farm, a private company, which loan Valley Farm failed to repay resulting in the GNPC repaying the loan and thus causing the State to incur a loss of the said amount.”

This case which was initially before the Circuit Tribunal, Accra was transferred to the Fast Track High Court apparently for expeditious trial.

So far as the proceedings before this court are concerned, the

[p.29] of [2001-2002] 2 GLR 1 plaintiff has not protested against the charge laid against him; he has challenged the competency of the court to try him. He contended that the Fast Track High Court as constituted was not known to the Constitution, 1992 and therefore had no jurisdiction to try him. Accordingly, he brought this writ invoking the original jurisdiction of this court to enforce the provisions of the Constitution, 1992 by way of:

“(1) A declaration that there is no ‘Fast Track High Court’ with jurisdiction to try criminal cases established under the Constitution, 1992 of the Republic of Ghana, and there is therefore no constitutional foundation for the plaintiff to be prosecuted before such court.

(2) A declaration that the oral demand by agents of the defendant to the plaintiff to appear before a ‘Fast Track Court’ when no such court for trial is provided for in the Constitution of the Republic of Ghana, is an infringement of articles 125 and 126 of the Constitution, 1992 establishing the judiciary.

(3) An injunction against the defendant and their agents restraining them from seeking to proceed with a trial of the plaintiff before the purported ‘Fast Track High Court.”’

This writ which was issued on 11 February 2002 was with leave of the court amended on 16 February 2002 to include the following reliefs:

“(4) A declaration that the summons signed by the justice of appeal served on the plaintiff commanding him ‘in the President’s name’ to appear in person before this court is in contravention of articles 1(1) and 125 of the Constitution, 1992.

(5) A declaration that there is no ‘Fast Track High Court’ established under the Constitution, 1992 of the Republic of Ghana and therefore a summons to appear before such a ‘court’ is null and void.”

On 28 February 2002, this court by a majority of five is to four upheld the claims by the plaintiff and reserved its reasons for 20 March 2002. I was one of the majority. I now proceed to give my

[p.30] of [2001-2002] 2 GLR 1 reasons.

The main issues which arose for determination in this action, to my mind, were:

(i) Whether or not there is a court known as the Fast Track High Court which is a division of the High Court.

(ii) Whether or not the “Fast Track High Court”, if it exists, is a court of competent jurisdiction to try both civil and criminal cases.

(iii) Whether or not the summons served on the plaintiff commanding him in the President’s name to appear before the “Fast Track High Court” offended against provisions of the Constitution, 1992.

I intend to deal first with the last issue since there seems to be no real dispute, though the defendant contended that whatever mistake or error had been made in the issue of the summons had gone only to the form and not the substance of the issue. He further con tended that the subsequent notice served on the plaintiff had cured the defect or normalised the process and validly put the plaintiff, as an accused, before the court. The plaintiff, however, insisted in paragraph (11) of his amended statement of case that that act was in contravention of the Constitution, 1992. He argued, “In respect, particularly of criminal proceedings which seek to determine guilt or innocence of a person on a criminal charge, there is no room for ambiguity and doubt about the designation of the court before which the person is brought. A simple and straight forward adherence to the court designations provided for in the Constitution avoids such ambiguity and doubt.”

He referred to article 125(1) and (3) of the Constitution, 1992 in support of his contention.

Article 125(1) of the Constitution, 1992 states: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” Thus, the issue of a summons in the President’s name, however inadvertently made, he contended further, infringed a provision of the Constitution, 1992 and was therefore null and void; more so, when the Constitution, 1992, art [p.31] of [2001-2002] 2 GLR 1

125(3) provides that:

“(3) The Judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”

In this country, it is provided by section 60 of the Criminal Procedure Code, 1960 (Act 30) that criminal proceedings may be instituted summarily either:

“(a) by making a complaint and applying for the issue of either a warrant or summons . . . or (b) by bringing a person arrested without a warrant before the Court upon a charge contained in a charge sheet . . .”

Even though section 60(2) of Act 30 provides that:

“(2) The validity of any proceedings instituted or purporting to be instituted in pursuance of subsection (1) shall not be affected either by any defect in the complaint or charge sheet or by the fact that a summons or warrant was issued without any complaint, or, in a case of a warrant without a complaint on oath,” the plaintiff, as an accused person, was entitled to be put before a court recognised under the Constitution, 1992. The plaintiff was not raising objection only to the President’s commanding him to appear before the court, but also to the very court he was being commanded to appear before, namely the “Fast Track High Court”. These situations are not covered by section 60 of Act 30 which deals with defects in the complaint or charge sheet or the absence of complaint in the charge sheet or warrant having been issued without a complaint on oath.

To understand and appreciate the stand of the plaintiff, it would be necessary to look at the summons in question, namely exhibit TT4. The summons is headed: “IN THE MAGISTRATES COURT, FAST TRACK HIGH COURT 1.” One may wonder whether the plaintiff was to appear before, a “magistrates court” or a “Fast Track High Court 1. “The summons was issued under section 59 of the Criminal Procedure Code. Of which Criminal

[p.32] of [2001-2002] 2 GLR 1

Procedure Code? It is not discernible from the form, but obviously it was not issued under section 59 of Act 30 which deals with “withdrawal from prosecution in trials and preliminary investigations before district Courts.” It has thus been issued under a provision which has long been repealed and which does not exist! Contained in this form (exhibit TT4) is also the statement, “YOU ARE HEREBY commanded in the President’s name to appear in person before this Court at . . .”

That has been conceded as a mistake. That may be so, but that does not prevent the plaintiff from challenging the authority of the President to summons him before a court when under the Constitution, 1992 the President has no authority to do so. It was this summons which brought the plaintiff to the court. I am sure if he had failed to appear a bench warrant would have been issued for his arrest despite the defect in the summons. He was therefore entitled under article 1(1) of the Constitution,1992 to say that the conduct or act of the President or any of his agents as contained in exhibit TT4 was in contravention of the provisions of the Constitution, 1992.

One may argue that this was a very minor issue, but one should realise that to arraign a person before a court to be tried for an offence the outcome of which might affect one’s liberty, is not an issue to be joked about. It is necessary that in the administration of justice, an accused person must be made to know with certainty not only the court before which he is to appear to answer a charge, but also the authority for that court and the charge he is to face in that court.

I shall come back to the issue of this document later in my reasons but suffice it to say that I am satisfied that the plaintiff was right in seeking a declaration to that effect. I would in the circumstances declare the summons (exhibit TT4), as long as it remains in the proceedings and affects the plaintiff, null and void as contravening the provisions of the Constitution, 1992.

What is this Fast Track High Court? Is it a division of the High Court? And, has it jurisdiction, if it exists at all, to try criminal cases? These were some of the questions being asked. In paragraph (3) of the defendant’s statement of case he states:

“(3) In further answer to paragraph (2) of the plaintiff’s statement of case the defendant avers that the Fast

[p.33] of [2001-2002] 2 GLR 1

Track Court is a division of the High Court established pursuant to article 139(3) of the Constitution, 1992 and by virtue of the fact that this division of the High Court is equipped with sophisticated technological devices geared to making speedy disposal of cases possible, the name Fast Track High emerged and hence the name ‘Fast Track High Court.’ ”

Article 139(3) of the Constitution, 1992 states: “(3) There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.” See also section 14(3) of the Courts Act, 1993 (Act 459).

What is a “division” of the High Court that the Chief Justice is empowered to establish under article 139(3) of the Constitution, 1992? Query, even though the Constitution, 1992 art 144(6) provides, inter alia, that:

“(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. . . those functions shall be performed by the most senior of the Justices of the Supreme Court.”

Can any such person acting in the place of the Chief Justice establish a “division” of the High Court under this provision of the Constitution, 1992?

Be that as it may a “division” of the High Court is not defined in the Constitution, 1992, we may have to look elsewhere. The most appropriate place is the High Court (Civil Procedure) Rules, 1954 (LN 140A). Order 1, r 1 of LN 140A states: “‘Judicial Division’ and ‘Division’ means any judicial division of the Supreme Court provided for by order of the Chief Justice under section 19A of the Courts Ordinance (Cap 4).” By rule 22 of the Supreme Court (Civil Procedure) (Amendment) Rules, 1958 (LN 93).

“22. Subject to the provisions of rule 1 of these Rules, the word ‘High’ shall be substituted for the word ‘Supreme’ wherever it occurs in the Orders and rules (including the marginal notes) and forms of the principal Rules specified in the First Schedule hereto.”

[p.34] of [2001-2002] 2 GLR 1

Rule 21(a) of LN 93 provides that: “(a) The words ‘In the High Court of Justice’ shall be substituted for the words ‘In the Supreme Court’ wherever they occur in the headings thereof.” Cap 4, as amended was repealed by section 156 of the Courts Act, 1960 (CA 9) which was itself repealed by the Courts Act, 1993 (Act 459). Thus, the ‘Judicial Division’ and ‘Division’ referred to in Order 1, r 1 of LN 140A means a judicial division of the High Court.

Since article 126(1)(a) of the Constitution, 1992 establishes the superior courts of judicature vide article 126(1)(a) and provides by article 142(1) of the Constitution, 1992 that: “There shall be established in each region of Ghana such Regional Tribunals as the Chief Justice may determine” there cannot be any territorial divisions of the judiciary without parliamentary approval.

Power is also given to Parliament to establish such lower courts or tribunals vide article 126(1)(b) of the Constitution, 1992. Consequently, the Chief Justice for the purposes of the administration of justice may establish divisional courts without reference to Parliament but these divisional courts can only be judicial divisions and must be established in accordance with the constitutional provision, namely article 139(3) of the Constitution, 1992. (Compare the provision under article 136(4) of the Constitution, 1992 and also section 10(4) of Act 459). It is a notorious fact that there exists three divisions of the Court of Appeal—one doing criminal appeals and two doing civil appeals with a specified number of judges assigned to the criminal appeals’ division; these judges could be re-assigned.

What is required of the Chief Justice under article 139(3) of the Constitution, 1992 if he is so determined to establish a division of the High Court, is for him to establish such a judicial division or divisions of the High Court, consisting of specified number of judges to each division assigned to dispose of specific causes of action with the same rules of the High Court. I have no doubt in my mind that that has been the clear intention of the Chief Justice. (then acting Chief Justice). Exhibit TT5 which was served on the plaintiff (then the accused) to appear in court was a clear demonstration of that intention. The heading of that form reads: “IN THE FAST TRACK COURT AT ACCRA ‘COMMERCIAL AND INDUSTRIAL.’” This purported division of the High Court has been established to deal with commercial and industrial cases. Significantly, the “Republic” is described as the “Plaintiff” and the

[p.35] of [2001-2002] 2 GLR 1 plaintiff herein (the accused person) has been described as the “Defendant.” On this form is indicated “Judgment” and “Costs”, a clear manifestation of an intention to create this court as a civil court to deal specifically with commercial and industrial cases. Even though this is supported to be a charge sheet, there is no charge indicated on this form.

Indeed, the Guidelines issued on the “Fast Track” system indicates in no uncertain terms that the division of the High Court contemplated is to deal with civil cases only. At p 2 of the Guidelines (exhibit AM1) it is stated:

“The ultimate objective of Fast Track Court is to ensure that a civil case filed there is disposed of completely and judgment given within a maximum of six months from the first day of filing, making allowances for contingencies, exigencies and exceptional circumstances . . .

The cases to be handled in this Division, (as set out in the Guidelines) are those directly involving 1. Investors and investments.

2. Banks.

3. Specified Commercial and Industrial disputes.

4. Election Petitions.

5. Human Rights.

6. Prerogative Writs.

7. National Revenue (of substantial value and brought by or against CEPS, IRS, and other Government Departments or Agencies.”

The list was to be expanded in the course of time to include other cases.

In the light of these, what answer do we give to an accused person brought before this court who seeks a declaration that the court before which he has been brought lacks jurisdiction to try criminal cases? The answer is obvious. Looking at the defective summons issued to him to appear before this court and the subsequent service on him of a process which is obviously designed for a civil court, I am satisfied that the plaintiff was entitled to the declaration he sought.

The cases intended to be tried in this purported division of the

[p.36] of [2001-2002] 2 GLR 1

High Court are all civil. What then is the Fast Track High Court? Is it a division properly so established under the Constitution, 1992 or is it just a name attached to a court? In paragraph (11) of the defendant’s statement of case he stated:

“(11) The defendant avers that the introduction of the Fast Track High Court pursuant to article 139(3) of the Constitution, 1992 represents the commitment to the in novative use of information technology in the administration of justice and there can be nothing unconstitutional about a proactive venture which is geared to the disposal of cases faster than the other non-mechanised courts. The whole idea is to eventually computerise and mechanise all the courts of the land aimed at making the court process more efficacious and more user-friendly for litigants and their lawyers. When this is eventually realised, the judiciary would have succeeded in making our system of justice one of the speediest and most responsive in Africa, if not the world. The hue and cry about justice delayed is justice denied would then be a thing of the past.”

This is a re-echoing of the Chief Justice’s observations in the Guidelines (exhibit AM1) when he said, among other things that:

“The fundamental objective of the FAST TRACK project is to reduce to the maximum of six months (averagely) the total disposal of a case from the date of filing to the delivery of final judgment . . .” THE FAST TRACK SYSTEM has been designed to be able to take on board the proposed computerisation and mechanisation of the entire court systems being developed with the assistance of donor agencies.”

The Fast Track idea which has been referred to variedly in the Guidelines as a “project”, a “system”, a “process” and a “court” is a very laudable one. It is not the name, the process, the project or system which is unconstitutional but the attempt to use it as a division of the High Court without regard to the proper establishment of a division of a High Court under article 139(3) of the Constitution, 1992. Undoubtedly, this system has been

[p.37] of [2001-2002] 2 GLR 1 proposed or designed as a fast system for the expeditious disposal of cases. This intention is summed up by the two officials who have helped immensely to establish the system, in their “Acknowledgment” in the Guidelines (exhibit AM1) thus, “it is the hope or the Judicial Service that funds would be made available from DONORS and similar organisations to expand the project to help solve the perennial problems of delay in the trial of cases in the country.”

To refer to this Fast Track System as a division of the High Court, presupposes that the other High Court is a “Slow Track” Division of the High Court. No such division exists in the judiciary. We may also ask, what becomes of the other branches of the High Court if they are all eventually computerised and mechanised? Do they become Fast Track Divisions of the High Court? If it is intended to create or establish a division of the High Court, properly so-called, under the Constitution, 1998 then certain conditions must be complied with administratively, otherwise, it becomes unconstitutional since it would have failed to satisfy constitutional requirements or provisions. The purported “division” of the High Court has given itself some rules in the Guidelines, for example, a judgment is supposed to be given within seven days of completion of hearing. Rule 2A (5) of the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), however, provides that judgments in the High Court must be delivered within six weeks of close of hearing. There is thus a conflict in the rules. Which one must prevail? What happens if a judge fails to deliver a judgment within the stipulated time given in the Guidelines?

The only body competent to make rules for the courts (including the High Court) is the Rules of Court Committee. Article 157 of the Constitution, 1992 provides:

“157. (1) There shall be a Rules of Court Committee which shall consist of—

(a) the Chief Justice, who shall be the Chairman;

(b) six members of the Judicial Council other than the Chief Justice nominated by the Judicial Council;

(c) two lawyers, one of not less than ten and the other of not more than five years’ standing, both of whom

[p.38] of [2001-2002] 2 GLR 1 shall be nominated by the Ghana Bar Association.

(2) The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.”

The High Court as it exists at the moment has rules for regulating the practice and procedure in that court, namely LN 140A. If the Fast Track High Court is to be a division of the High Court, then these rules must apply to it. But where it is intended that some new rules should apply to this division to regulate the practice and procedure therein, then the rules must have a constitutional backing as required under article 157 of the Constitution, 1992 otherwise the new rules become invalid. The request contained in the Guidelines of this so-called division of the High Court, that one must apply to have one’s case put in the Fast Track High Court, is delimitation of the individual’s right of free access to the Courts.

The so-called Fast Track Division of the High Court is therefore non-existent constitutionally. The High Court as it exists now, as provided by article 140(1) of the Constitution, 1992, has, “140. (1) . . . Subject to the provisions of the Constitution, … jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.”

The High Court therefore has jurisdiction to try all the cases listed in the Guidelines and others that may arise. Except a division of the High Court is being established to deal with specific aspects of its jurisdiction, say land, probate, admiralty, matrimonial Causes, etc etc, there is no need for the establishment of any division to deal with its normal jurisdiction. The fast track system as a system could be used or applied in the High Court in its dealings with its normal jurisdiction, but the name “Fast Track” should not be used to establish a division of the High Court under article 139(3) of the Constitution, 1992. Indeed, in accordance with the objective for fast tracking cases, the fast track system ultimately is to be used in all the courts from the community tribunals to the Supreme Court. The fast track system—although not known by that name then, has been used in expeditiously disposing of some treason trials.

[p.39] of [2001-2002] 2 GLR 1

Brobbey JA, sitting as an additional High Court judge used a similar system to dispose of criminal cases in the High Court without establishing that court as a “division” of the High Court. The plaintiff, if he is to be tried for any offence, can be tried in any branch of the High Court using the fast track system but not in a so-called fast track division of the High Court, which I have found not to exist constitutionally.

It was for these reasons that I upheld the declarations sought by the plaintiff. I would, until the plaintiff is put before a court competent to try him for any criminal offence he may have committed, restrain the purported Fast Track Division of the High Court from trying him.

Kpegah JSC. On 28 February 2002, I voted allowing the plaintiff’s claim as indorsed on his writ of summons. I now proceed to give my reasons why my vote was cast to allow the declarations sought by the plaintiff. But, before I do so, I would like to recall a dictum of mine in the case of Amidu v Kuffour [2001-2002] SCGLR 86 at 139 where I said:

“Every student of the Constitutional Law of Ghana might have felt, after reading the celebrated case of In re Akoto [1961] GLR (Part II) 523, SC that if the decision had gone the other way, the political and constitutional development of Ghana would have been different. ‘Different’ in the sense that the respect for individual rights and the rule of law might have been well entrenched in our land, and we who now occupy this court would have had a well-beaten path before us to tread on in the discharge of the onerous responsibilities imposed upon us by the Constitution, 1992 of this country.”

The crucial constitutional issues raised in this case are, broadly speaking, two main issues:

(i) whether or not the criminal summons served on the plaintiff commanding him “in the President’s name to appear in person” before the Fast Track High Court is an “act” which interferes with, and undermines the independence of the judiciary and therefore inconsistent with the provisions which guarantee the indepen

[p.40] of [2001-2002] 2 GLR 1 dence of the judiciary; to be specific articles 125(1) and 127(1) of the Constitution, 1992; and

(ii) whether or not the so-called Fast Track High Court is a division of the High Court as anticipated under article 139(3) of the Constitution, 1992.

But, before I proceed, I need to give the antecedents of the case which has led to the plaintiff’s action in this court. Mr Tsatsu Tsikata, who is the plaintiff in this case, claims that he had earlier been arraigned before the circuit tribunal on 30 November 2001 on a charge of causing financial loss to the State contrary to section 179A of the Criminal Code, 1960 (Act 29). When the case was called on 8 January 2002 the prosecution applied for a three weeks’ adjournment to enable them “conduct further investigations and decide what to do.” The case was subsequently adjourned to 29 January 2002. On this day the prosecution failed to attend court and the case had to be adjourned again; this time to 26 February 2002.

However, before the next adjourned date, two police officers from the Criminal Investigation Department called at his residence on 7 February 2002 to inform him that the Attorney-General’s Department had decided to withdraw the case against him at the Circuit Tribunal, Accra and subsequently entered a nolle prosequi in the case. He was served with a copy of the nolle prosequi and then requested to appear the next day before the “Fast Track High Court.” This procedure itself is questionable under the Criminal Procedure Code, 1960 (Act 30) which requires the court to discharge the accused after the entry of nolle prosequi. This implies the presence of both the accused and the prosecutor in court.

Mr Tsikata declined to respond to this verbal invitation and rather chose to bring an action in this court seeking the following declarations:

“(1) A declaration that there is no “Fast Track High Court” with jurisdiction to try criminal cases established under the Constitution of the Republic of Ghana, and there is therefore no constitutional foundation for the plaintiff to be prosecuted before such court.

(2) A declaration that the oral demand by agents of the defendant to the plaintiff to appear before a ‘Fast

[p.41] of [2001-2002] 2 GLR 1

Track High Court’ when no such court for trial is provided for in the Constitution of the Republic of Ghana, is an infringement of articles 125 and 126 of the Constitution establishing the judiciary.

(3) An injunction against the defendants and their agents restraining them from seeking to proceed with a trial of the plaintiff before the purported ‘Fast Track High Court.’”

The plaintiff issued his writ at 1:40pm on Monday 11 March, 2002. On the same day, however, Mr Tsikata was served with a criminal summons to appear before the Fast Track High Court, Accra on the next day; that is on 12 March 2002. The plaintiff reacted to the service of the criminal summons on him by filing a motion seeking leave of this court to amend his writ by adding two more reliefs and his statement of case correspondingly. The reliefs sought to be added are:

“(4) A declaration that the summons signed by a justice of appeal served on the plaintiff commanding him ‘in the President’s name to appear in person before this court . . .’ is in contravention of articles 1(1) and 125(1) of the Constitution.

(5) A declaration that there is no ‘Fast Track High Court’ established under the Constitution, 1992 of the Republic of Ghana and therefore a summons to appear before such a ‘court’ is null and void.”

During our maiden sitting on this case, we granted leave to the plaintiff to amend his writ and statement of case. We also adopted the proposed amended writ and statement of case as having been filed. The Attorney-General, Nana Akufo-Addo decided to waive his right of reply to the amended writ and statement of case and chose to rely on his original statement of the defendant’s case filed on 19 February 2002. Attached to the defendant’s statement of case and marked as exhibit AM1 was a document entitled GUIDE-LINES FOR FAST TRACK COURT.

The facts so far narrated sufficiently cover the first issue I have earlier set out to enable me conveniently dispose of that issue. That is whether a criminal summons issued to a citizen and comman-

[p.42] of [2001-2002] 2 GLR 1 ding him to appear “in the President’s name” is “an act” in terms of article 2(1)(b) of the Constitution, 1992 which is inconsistent with, or contravenes article 125(1) and 127(1) of the Constitution, 1992 and thereby undermines the independence of the judiciary as enshrined in the Constitution.

INDEPENDENCE OF THE JUDICIARY

There is now a growing determination on the part of peoples of the modern state to have enshrined in their constitutional process the concept of the rule of law, or what is called in other jurisdictions “due process.” It has been realised that the only way to achieve this is to ensure the independence of the judiciary. Our founding fathers had this vision; hence “Freedom and justice” as our national motto. The independence of the judges is an essential prerequisite to the achievement of this goal. This is why the framers of our Constitution, 1992 have crystalised and given practical meaning to this vision by guaranteeing, in a very robust language, the independence of the judiciary in article 125(1) as follows: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” (The emphasis is mine.) And article 127(1) of the Constitution, 1992 in an equally robust language, states: “In the exercise of the judicial power of Ghana, the Judiciary . . . shall not be subject to the control or direction of any person or authority.”

It may appear an overstatement to say that the concept of separation of powers underpins our constitutional arrangement. But how this type of constitutional arrangement should operate, and what it actually entails is stated by Justice Jackson of the US Supreme Court in Youngstown Sheet & Tube Co v Sawyer 343 US 579 at 635 (1952) thus:

“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”

But one thing which can positively be said as not being within the

[p.43] of [2001-2002] 2 GLR 1 contemplation of the concept of separation of powers is the interference of one branch in the affairs of the other.

The complaint of the plaintiff as contained in paragraphs (13) and (14) of his amended statement of case is that:

“(13) The summoning of the plaintiff ‘in the President’s name to appear before this court’ is also in contravention of articles 1(1) and 125(1) of the Constitution, 1992 and it is the constitutional responsibility of the Attorney-General, whose office is provided for under article 88 of the Constitution, 1992 to ensure that the initiation and conduct of all prosecutions of criminal offences is in compliance with constitutional provisions article 88(3) and (4).

(14) Continuation of criminal proceedings initiated before a forum not recognised under the Constitution, 1992 to determine the guilt or innocence of the plaintiff is a flagrant contravention of articles 1(1) and 125(1) of Constitution, 1992.”

In the defendant’s statement of case, the Attorney-General did not advert to this complaint. Before us, however, the Attorney-General, Nana Akufo-Addo, admitted that the criminal summons which was issued “in the President’s name” was a trivial error; and that it could not be traced to his office. He also urged that although the process was irregular or unlawful, the plaintiff had the choice to either obey or refuse to honour the process and not attend court. But once he came to court and a new charge sheet was read to him he could not complain about the unlawfulness of the original criminal summons served on him. For the later proposition the learned Attorney-General relied on Blackstone.

The Attorney-General should rather have anchored his submission on section 83(1) of Act 30 instead of going to the Westminster for Blackstone’s argument based on the common law position. This is what ‘section 83(1) of Act 30 provides: “Any irregularity or defect in the substance or form of a summons or warrant, . . . shall not affect the validity of any proceedings at or subsequent to the hearing of the case . . .” I will therefore prefer to consider the argument of the learned Attorney-General as to the irregularity of the summons as being based upon section 83(1) of

[p.44] of [2001-2002] 2 GLR 1

Act 30 rather than on Blackstones’s views which he himself said represents the common law position.

If the provisions of article 2(1)(b) of the Constitution, 1992 are properly analysed, it will be discovered that the Constitution, 1992 is not only the fundamental law of the land but also a code of conduct as well. This is because “any act or omission of any person” which is “inconsistent with, or is in contravention of a provision” of the Constitution, 1992 entitles a citizen to sue in this court for a declaration to that effect. All that a plaintiff must establish before us is that there had been “an act” or “omission” by somebody and that such “act” or “omission” is in contravention or inconsistent with a provision of the Constitution, 1992. I think the issuing of a criminal summons and its service on the plaintiff to compel his attendance in court is a sufficient “act” within the meaning of article 2(1)(b) of the Constitution, 1992. On the issue of when a citizen can invoke our enforcement jurisdiction, this is what I said in the case of Yeboah v J H Mensah [1998-99] SCGLR 492 at 525:

“In my view, we cannot ignore, but have to decide, the very important question as to when a citizen can use his guaranteed right to move the Supreme Court for the enforcement of the Constitution when he alleges that the ‘act or omission of a person is inconsistent with, or is in contravention’ of the Constitution. This right is not limited by any provision of the Constitution . . . We, therefore, under articles 2(1) and 130(1), have no discretion, and once a person establishes the violation of the fundamental law by another we must so declare as a matter of course.”

I have earlier on at 517 given the rationale as:

“The Constitution is the Supreme law of the land, and, all persons must look at it and adjust their actions or conduct accordingly. And it has to be emphasised that one of the primary functions of the Supreme Court, apart from adjudicating constitutional matters, is promoting and safeguarding constitutional values.”

And if the issuing of a criminal summons to Mr Tsikata commanding him “in the President’s name” to appear before a court

[p.45] of [2001-2002] 2 GLR 1 is held to be “an act” under article 2(1)(b) of the Constitution, 1992, which view I hold, this is a threat to the independence of the judiciary as guaranteed under articles 125(1) of the Constitution, 1992 which mandatorily requires that Justice “shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.”

It is also a contravention of article 127(1) of the Constitution, 1992 which insulates the judiciary from the control or direction of any person or authority “in the exercise of the judicial power of Ghana.” The summons as issued to the plaintiff clearly interferes with the independence of the judiciary since it not only violates but also undermines the judicial power reposed in the judiciary. The presidency has no court to which a citizen can be summoned in its name. The English practice of being brought to court in the name of the Crown is not applicable in Ghana.

In what can be described as an epoch-making decision in the case of Agbevor v Attorney-General [2000] SCGLR 403, this court resisted the attempt of the executive to undermine the independence of the judiciary by interfering in its administrative functions, contrary to article 127(1) of the Constitution, 1992. In the Agbevor case (supra), we held that the President had no disciplinary authority over the judiciary and could not remove the plaintiff from office.

It must be pointed out the point raised by the Attorney-General about irregularity cannot be sustained because section 83(1) of 30 is an existing law which must be read with such modifications, adaptations etc as to make it consistent with the Constitution, 1992. It has to succumb in the face of such a positive violation of the Constitution, 1992. The Attorney-General urged us to consider the breach as trivial and technical and treat it as such. With much respect, I cannot accept such an argument when an act contravenes the Constitution, 1992. The moment we allow breaches of the Constitution, 1992 to be calibrated into segments and some treated as “trivial” and some as “technical” to which we can give a blind judicial eye and decline to sanction such breaches, we shall only succeed in permitting the Constitution, 1992 to be slowly pecked at or nibbled at and before we realise it, it would have been undermined to the extent that every violation may become tolerable. Such a scenario is too frightening to contemplate and

[p.46] of [2001-2002] 2 GLR 1 should be rejected. A breach is a breach and there should be no concept like “ a technical or trivial breach” in our constitutional law. The constitutional process embarked upon by this country is still too fragile for us to risk such concepts into out enforcement jurisdiction.

As was pointed out in paragraph 87 of the Memorandum on the proposals for 1969 Constitution: “if rules of conduct or of procedure are laid down they are intended to be obeyed.” (The emphasis is mine.) This underscores what I had said earlier that the Constitution, 1992 apart from being the fundamental law of the land, is also a code of conduct for every citizen, and, like all codes of conduct, must be obeyed. In this regard a distinction must be made between a judicial process initiating criminal prosecution and the trial itself. A criminal summons is not the same as a charge sheet which can be amended. It is a judicial process which one must obey or risk being arrested on bench warrant. It is incapable of amendment once it is issued and served on the accused; hence the attempt to insulate its effectiveness against any defect in substance and form under section 83(1) of Act 30. Of course, this section cannot apply when the alleged defect infringes a constitutional provision.

This leads me to the Attorney-General’s submission that if the plaintiff felt the criminal summons was unlawful because it was issued “In the President’s name” instead of in the name of the Republic, he could have chosen not to appear. But once he appeared and a new charge sheet was read to him, he could not complain. Quite apart from the plaintiff risking arrest, this court has decided in the case of Republic v High Court, Accra; Ex parte Afoda [2001-2002] SCGLR 768 at 773 that it was not for a party to determine if a judicial process was legal or not, and then decide to disobey the process if he considered it unlawful. This is what the court said:

“… the fact that an order of, or a process from, a court of competent jurisdiction is perceived and considered void or erroneous should not give a party who is affected by the order, or to whom the process is directed, the slightest encouragement to disobey it; and when cited for contempt, only to turn round to justify the said disobedience by the fact that the order ought not to have been made or the process issued

[p.47] of [2001-2002] 2 GLR 1 in the first place. The proper thing to do is to either obey, or sue for a declaration to that effect or apply to have it set aside. The proponent of the order then assumes the burden to justify the order on which he relies and so prove that the order or the process was not improvidently made. As a matter of public policy it is important that the authority of the court and sanctity of its process and orders be maintained at all times. It is too dangerous to give to a litigant and his counsel the right to decide which orders or process of the court are lawful and therefore deserving of obedience, and if not, must be disobeyed. An order or process of a court of competent jurisdiction cannot be impeached by disobedience. That way, we would needlessly be empowering lawyers, in their various chambers, to have supervisory jurisdiction over the courts. That is an effective way to undermine, if not destroy, the administration of justice.”

And as to the Attorney-General’s plea that the unlawful summons cannot be traced to his office, the least said about it the better. Because under article 88(3) of the Constitution, 1992 “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.” I have examined the criminal summons very closely and noticed it has been printed in the year 2000. I am firmly of the view that the issuance of the criminal summons and its service on the plaintiff to compel, “in the President’s name”, his attendance in a court is “an act” within the intendment of article 2(1)(b) of the Constitution, 1992 which infringes articles 125(1) and 127(1) of the Constitution, 1992.

Having disposed of the first issue, I will now turn my attention to the second issue; that is, “whether or not the so-called ‘Fast Track High Court’ is a ‘division’ of the High Court as anticipated under article 139(3) of the Constitution, 1992 of Ghana.” The decision of this court given on 28 February 2002 addressed only this issue. What, therefore, the decision meant, or in the lawyer’s language, the ratio decidendi of our decision, was that the court known as the “Fast Track High Court” is not a “division” of the High Court as known in law and envisioned under the Constitution, 1992.

The plaintiff in his statement of case did say that there is no

[p.48] of [2001-2002] 2 GLR 1 court under the Constitution, 1992 known as the “Fast Track Court” or the “Fast Track High Court.” He did not rest his case on this element alone. But his solicitors went further and in a brief averment in paragraph (3) of his statement of case, baited the defendant by averring that the said Fast Track High Court is not a division of the High Court as known to the Constitution, 1992 in Article 139(3). The gravemen of the plaintiff’s case is to be found in paragraphs (2) and (3) of the statement of case thus:

“(2) It is the case of the plaintiff that the Constitution, 1992 of the Republic of Ghana in making provision for the administration of justice does not establish any court known as the ‘Fast Track High Court.’ Article 125(1) of the Constitution, 1992 provides that: ‘Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” In article 126(1) of the Constitution, 1992 it is further provided that:

‘126. (1) The Judiciary shall consist of—

(a) the Superior Courts of judicature comprising—

(i) the Supreme Court;

(ii) the Court of Appeal; and

(iii) the High Court and Regional Tribunals.

(b) such lower courts or tribunals as Parliament may by law establish.’ Nowhere is there provision for a ‘Fast Track High Court’ nor has Parliament under article 126(1)(b) exercised its power to establish any ‘Fast Track High Court.’ The Courts Act, 1993 (Act 495) does not establish a ‘Fast Track High Court.’ (3) Nor can the ‘Fast Track High Court’ as is currently operating be said to be the creation of a division of the High Court as anticipated under article 139(3) of the Constitution, 1992.”

The Attorney-General on the other hand, asserted that the Court named “Fast Track High Court” is a division of the High Court as provided for under the said article 139(3) of the Constitution, 1992

[p.49] of [2001-2002] 2 GLR 1 and as proof of his assertion attached a document headed GUIDELINES FOR THE FAST TRACK COURT marked as exhibit AM1. In a preface to this document the authors declared: “The Fast Track Court is a Division of the High Court.” Although it is the position of the Attorney-General that the court is a division of the High Court, in a startling proposition in paragraph (10) of the statement of the defendant’s case he maintained that it “has the same composition, powers and jurisdiction of the existing High Court as established under the Constitution.” (The emphasis is mine.)

And earlier in paragraph (6) of the statement of the defendant’s case the Attorney-General contended as follows:

“. . . divisions of the High Court . . . created by the Chief Justice pursuant to article 139(3) of the Constitution . . . have the same power, authority and jurisdiction as the High Court They all have original jurisdiction in all matters civil and criminal. The Fast Track High Court is therefore constitutional in all aspects.”

The simple issue, therefore, which this court faced and had to determine was whether the court popularly known as the “Fast Track High Court” is a “division” of the High Court as envisioned in article 139(3) of the Constitution, 1992 and whether the Chief Justice can administratively create a division of the High Court.

Of course, the determination of this issue will necessarily have to involve a consideration of the import of article 139(3) of the Constitution, 1992. The question of what type of facilities is available in the court contemplated by article 139(3) of the Constitution, 1992 is wholly irrelevant to the construction we put on the said article since this factor cannot be an aid to interpretation. We must realise that the Constitution, 1992 itself defines “court” as “a court of competent jurisdiction established by or under the authority of this Constitution and includes a tribunal”.

In view of what I will refer to as the novel propositions of the learned Attorney-General in paragraphs (6) and (10) of his statement of case to the effect that a “division” of the High Court has original jurisdiction in all matters, both civil and criminal, and that it can be administratively created, it is proper for me to set out at this stage what can be said, speaking jurisprudentially, to be the [p.50] of [2001-2002] 2 GLR 1 essential features or attributes of a “division” of a court. The other aspect of my judgment will deal with how “courts” in general and in particular a “division” of a court are created or established; I will then examine some aspects of our legislative history on the establishment of “courts” and “divisions”. Next to be considered will be the construction to be put on article 139(3) of the Constitution, 1992 and how a division of the High Court can be established under it.

What then are the features or attributes of a “division” of say the High Court which can be said to be recognised by legal philosophy or jurisprudence? It is important to emphasise that every student of the law who has read jurisprudence knows, or ought to know, that “division” of a court can be created only in respect of, or in relation to two matters or areas: The first is territorial (eg Eastern Division, Ashanti Division); the second area is the subject-matter area (eg Land Division, Probate Division, Criminal Division etc). It must be pointed out that although it is true to say that the procedures in the various divisions differ (eg the procedure in the Probate Division differs from the procedure in say the Matrimonial Causes Division or Chancery Divisions), it is legal heresy to say that a “division” of a court can be created based solely on the practice and procedure in that court or the facilities available in it. So that any claim that the Fast Track High Court is a division of the High Court can be a valid assertion only if the claim relates to the subject-matter area of the High Court’s general jurisdiction; for example “Commercial and Industrial Division” or “Criminal Division.”

Another essential attribute or feature of the “division” of a court is that the creation of a division derogates from that court’s general jurisdiction and limits it to a specific subject area. For example, probate matters cannot be filed in a Criminal Division of the High Court; so also land matters cannot be filed in matrimonial causes division of the High Court, vice-versa.

This proposition is, of course, subject to the fact that the statute or the legal instrument creating the “divisions” may provide to the contrary. For example, the new Supreme Court Act, 1981, in section 5(1) creates only three divisions of the High Court of Justice in England. And it expressly provided in section 5(5) that all jurisdiction vested in the High Court under the Act belongs to all

[p.51] of [2001-2002] 2 GLR 1 divisions alike. This is what section 5(5) says: “Without prejudice to the provisions of the Act relating to the distribution of business in the High Court, all jurisdiction vested in the High Court under this Act shall belong to all the Divisions alike.” It had earlier provided in section 4(3) as follows: “All the judges of the High Court shall, except where this Act expressly provides otherwise, have in all respects equal power, authority and jurisdiction.”

In deciding, therefore, whether the Fast Track High Court is a division of the High Court or not, the practice and procedure, or facilities available to it become irrelevant; perhaps what is very relevant is the subject matter area of the court. There is a document before us tendered by the plaintiff and marked exhibit TT5 and another one tendered by the Attorney-General and marked exhibit AM1 which together suggest that the so-called Fast Track High Court was originally intended to be the “Commercial and Industrial” division of the High Court but had not been properly established when it was hurriedly inaugurated. Because if it is a court which retains its original jurisdiction in all matters, both civil and criminal, then it cannot meet the criteria of a “division”. having lost one of its essential attributes, that is being limited to a specific subject matter area as anticipated under article 139(3) of the Constitution, 1992. And, assuming without admitting, that exhibit AM1 that is the GUIDELINES FOR FAST TRACK COURT is of any legal value, the subject areas listed as capable of being handled in this division of the High Court are those directly involving:

(i) Investors in investments.

(ii) Banks.

(iii) Specified commercial and industrial disputes.

(iv) Election petitions.

(v) Human rights.

(vi) Prerogative writs.

(vii) National revenue (of substantial value) and brought by or against Customs Excise and Preventive Service, Internal Revenue Service and other government departments or agencies.

The above position is contrary to the pleaded case of the Attorney-General that the Fast Track High Court is a division created by the Chief Justice pursuant to article 139(3) of the Constitution, 1992

[p.52] of [2001-2002] 2 GLR 1 and has “the same powers, authority and jurisdiction as the High Court . . . They all have original jurisdiction in all matters civil and criminal.”

If the above list of cases triable by the court is anything to go by, it does not support their pleaded case. The document (exhibit AMI) limit the court’s “jurisdiction” to certain civil law areas; and does not cover criminal cases at all. That means by their own regulation the Fast Track High Court has no “jurisdiction” to try criminal cases.

It is stated that “this list will be expanded in the course of time to include other cases.” Who has the power to expand the list and “confer jurisdiction” on the court over the expanded list, we are not told. In any case, the list does not include criminal cases. Whether a particular court can try a particular case or some cases or not, involves serious jurisdictional problems and it cannot be seriously submitted by any lawyer who knows what it takes to create or establish a court that “jurisdiction” can be administratively conferred on any court or withdrawn from a court. I will very soon demonstrate in this judgment that an individual, unlike the legislature, has no power to confer jurisdiction on a court, let alone create a court administratively. I have introduced this piece, as to what the creation of a division of a court means or entails in law, and what the attributes are, very early for a better appreciation of this opinion.

COURT AS A CREATURE OF STATUTE

As a result of our long association with the English justice system, we have inherited, like others in the common law countries, English jurisprudence in the establishment of courts. In England, courts are established by the authority of the Crown as the fountain of justice. This authority of the Crown is exercised in various ways:

(i) The first is by statute: For example the Supreme Court of Judicature established by the Judicature Act, 1873 (36 & 37 Vict 66). This was later repealed by the Judicature Act, 1925 (15 & 16 Geo 5, c49).

(ii) Another way is by charter—An example is the High Court in India (SR & 0 Rev 1904, VI, India pp 3, 16,

[p.53] of [2001-2002] 2 GLR 1

25, 41; SR & O 1916 (No 100); 1919 (No 369); 1922 (No 12 29).

(iii) The other way a court may be created is by letters patents. An example is the Newfoundland Act, 1824 (5 Geo 4, c67), ss 1, 20 which gave power to the King, by his charter or letters of patent under the Great Seal to institute a superior court of judicature in Newfoundland. The court was however actually instituted by Charter (SR & O Rev, 1904. ix, Newfoundland, p 5).

(iv) The last method I would like to touch is by Order in Council. An example is the Eastern African Court of Appeal Order in Council, 1921 (SR & O, 1921, No 1210).

In all these cases it will be realised that some law, in the nature of an enactment, is needed to establish a court. In these modem times, these courts would have been established by either the Constitution or the legislature. I will be right, therefore, to say that a court, properly so-called, is always a creature of statute or of substantive law. And the statute which creates a court will determine the jurisdiction it should have. th The learned authors in Halsbury’s Laws of England (4 ed), Vol 10, para 715 recognise this so in defining the term “jurisdiction” said:

“By ‘jurisdiction’ is meant 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 limits of this authority are imposed by the statute, charter or commission under which the court is constituted, and may be extended or restricted by similar means.”

(The emphasis is mine.) An individual, therefore, has no power as the legislature has, to establish a court and grant it jurisdiction. This was recognised in the case of Re Hooker’s Settlement; Heron v Public Trustee [1955] Ch 55 at 58 by Danckwerts J when he said:

“An ordinary person has not the power, as the legislature has, of course, to impose upon a judge of the Chancery Division a jurisdiction which is not given him by the procedure of the courts or by any statute. It seems to me that this is an attempt

[p.54] of [2001-2002] 2 GLR 1 to make the judge an arbitrator without his consent.”

In the Hooker’s case (supra), the plaintiff, then Catherine Eva Hooker, settled a trust fund on herself for life. The settlement contained a clause by which the settlor could revoke the trusts of the settlement with the consent of a judge of the Chancery Division. No jurisdiction existed in the rules of the Supreme Court or under any statute for a judge to make that type of order. A preliminary point was taken to decide whether the court had jurisdiction to make the order. It was held that this was not a proper clause and the summons asking for the consent of the court to a deed revoking the settlement must be dismissed. See also the case of In re H’s Settlement [1939] WN 318 where Simonds J also expressed the view that a settler was not entitled to make any power or trust exercisable with the consent of the Chancery Division or with the consent of a judge of that division. He said that the legislature could impose upon the court a duty to exercise a discretion, but in his opinion a private person could not do so.

Another case in which it was held that parties cannot confer jurisdiction on a court where none exists is the case of Heyting v Dupont [1963] 1 WLR 1192 at 1194-1195 where Plowman J said: “. . . Mr. Muir Hunter suggested that . . . in a case of this sort, . . . it is not for the court, mero motu, to decline jurisdiction. I was not convinced that the duty of the court was to accept jurisdiction by acquiescence and I, therefore, decided to consider the matter . . .

On making my own researches into the matter, I find that the duty of the court was stated by Lord Wright in Westminster Bank Ltd. v (Edwards [1942] AC 529, 536) as follows: ‘Now, it is clear that a court is not only entitled but bound to put an end to proceedings if at any stage and by any means it becomes manifest that they are incompetent. It can do so on its own initiative, even though the parties have consented to the irregularity, because, as Willes J. said in City of London Corporation v Cox [(1866) LR 2 HL 239, 283, HL] in the course of giving the answers of the judges to this House, ‘mere acquiescence does not give jurisdiction.”

(The emphasis is mine) The next is the case of Essex County

[p.55] of [2001-2002] 2 GLR 1

Council v Essex Incorporated Congregational Church Union [1963] 2 WLR 802 at 808, HL where Lord Reid said:

“But the appellants say that the respondents cannot be allowed to maintain this point now because they consented to the matter being dealt with by the tribunal . . . In my judgment, it is a fundamental principle that no consent can confer on a Court or tribunal with limited Statutory jurisdiction any power to act beyond that jurisdiction, or can estop the consenting party from subsequently maintaining that such Court or tribunal has acted without jurisdiction”

See also the case of In re Aylmer; Ex parte Bischoffsheim (1888) 20 QBD 258 where Lord Esther MR also reiterated the rule that the consent of parties cannot give the court a jurisdiction which it does not otherwise possess.

This issue of jurisdiction is very important in view of the subject areas carved out as the type of cases the “Fast Track Division of High Court” will have jurisdiction over and deal with. The question to ask is, can an individual administratively decide that a “division” of the High Court cannot exercise the jurisdiction conferred on it by the Constitution, 1992 but rather it should confine itself to a specific area of cases and try only those as is done in the GUIDELINES FOR THE FAST TRACK COURT—exhibit AM1? I am particularly frightened, if not horrified, by the proposition that an administrative directive could be held to have a limiting effect on, or inhibit a provision of the Constitution, 1992 thereby derogating from it. In the case of Apaloo v Electoral Commission of Ghana [2000-2001] SCGLR 1, this court held, unanimously, that a constitutional Instrument cannot be varied by an administrative directive. Therefore the attempt to limit in exhibit AM1—THE GUIDELINES FOR THE FAST TRACK COURT the substantive jurisdiction of that court to some cases only is against article 140 of the Constitution, 1992 which confers jurisdiction on the High Court. The burden of my submission so far is to show that a statute or some legal instrument or an enactment is required in the creation, not only of a court, but the creation of a division as well. Exhibit AM1 cannot achieve this because it has no legal effect. However, if that is the purpose for tendering it, then it is an unmitigated disaster.

[p.56] of [2001-2002] 2 GLR 1

It has never been part of legal philosophy or jurisprudence to entrust to an individual the awesome power or authority to administratively establish a court and confer jurisdiction on it. No he has no such power.

He will only be creating a panel of arbitrators against their will. That the individual can administratively create a court has not been part of legal thought. And if ever the power to establish a court or a division of a court and determine its jurisdiction, either territorially or over the subject matter or over parties, is granted to any authority, the power has always been exercised through some accepted legal means. The basic position derived from our legislative history is that an Act of Parliament or other statutory instrument is always needed to create a court which does not proceed according to the common law. And since no court in our jurisdiction has the procedure of which is according to the common law, a substantive law is always necessary to create a court; not courts only, but also the divisions of such courts because this will entail curtailing the general jurisdiction of that court when a “division” of it is created. You can only administer a court when it has been established or created. But you cannot in law administratively create a court.

LEGISLATIVE HISTORY ON THE ESTABLISHMENT OF COURTS AND DIVISIONS

It is important to trace our legislative history on the establishment of courts and the creation of divisions in order to ascertain whether we have ever departed from accepted legal thinking and practice, that is that a court is a creature of statute, and proceeded to grant an individual a purely administrative power to establish a court or create a division out of an existing court system. More so when the later procedure will necessarily lead to circumscription, either territorially or subject area wise, of the jurisdiction originally granted the court by the statute or law establishing it, of course, unless itself provides otherwise. After researching this area of the law, I have come to the conclusion that our legislative history is not only akin to, but also bears absolute allegiance to the English practice and the basic legal concept that a “court” is always a creature of statute.

(a) SUPREME COURT ORDINANCE, 1876 (CAP 4)

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By letters patent the settlements on the Gold Coast and Lagos were constituted and erected into one colony known as the Gold Coast Colony. In 1876 it became necessary to provide for the administration of justice in the colony. The Supreme Court Ordinance (No 4 of 1876) was enacted with section 3 establishing the Supreme Court of the Gold Coast Colony. Under section 11 the Supreme Court could exercise all the jurisdiction, powers, authorities vested in or capable of being exercised by the High Court of England. The only jurisdiction excepted was that of the High Court of Admiralty. “Divisions” of the Supreme Court were specifically created by section 23 of the Ordinance which proceeded to actually name the judges who could sit in such divisions. The section further provided that “the Chief Justice shall be at all times qualified to sit in any Divisional Court in any Province.”

Section 20A of Ordinance No 4 of 1876 should be of interest to us in this historical analysis. It gives the Governor power to limit the jurisdiction of the court, It provides:

“The Governor in Council may from time to time by Order;

(1) declare that the jurisdiction of the Supreme Court shall not extend to any part of the Colony specified in such Order;

(2) impose within any part of the Colony specified in such Order any limitation in respect of the class of causes or matters to which the jurisdiction of the Supreme Court shall extend and apply;

(3) revoke, alter or amend any Order made as aforesaid. On the publication in the Gazzette of any Order made under this section the jurisdiction of the Supreme Court shall be exercised in accordance with the terms of such Order and not otherwise.”

The Governor was thus given power to limit the jurisdiction of the court, either territorially or over “causes or matters” the court could deal with; he however had to exercise the power by an Order in Council.

In the present day Ghana such a power belongs to the legislature and would have been exercised through an Act of Parliament However, as has been pointed out earlier, the so called Fast Track Division of the High Court had its “causes or matters” jurisdiction

[p.58] of [2001-2002] 2 GLR 1 limited by only exhibit AM1 which has absolutely no legal value, or is of no legal consequence.

(b) THE COURTS ORDINANCE, 1935 (CAP 4)

The Supreme Court established under section 3 of the Courts Ordinance, 1935 (Cap 4) like its predecessor in Ordinance No 4 of 1876, has all the jurisdiction, powers and authorities which were vested or capable of being exercised by the High Court in England: see section 15 of Cap 4. In section 22 it endows the Chief Justice with the power to form “Judicial Divisions” which were mainly territorial in character. It is important to emphasise that this power does not relate to subject matter area or does not cover the substantive jurisdiction of the Supreme Court relating to “causes and matters” which fall within its jurisdiction but rather relates to territorial jurisdiction only. For the avoidance of doubt I would quote section 22 in full. It provides:

“2. (1) For the purposes of the administration of justice, the Chief Justice, with the approval of the Governor may by order under his hand provide for the formation of Judicial Divisions throughout the Colony and from time to time may in like manner amend, vary, alter or revoke any such order;

(2) Judicial Divisions shall be separate and distinct from any districts heretofore or hereafter formed by the Governor for administrative purposes under this or any other Ordinance, and shall not necessarily conform with the boundaries or descriptions of such districts.

(3) Every order of the Chief Justice under this section, and every amendment, variation, alteration or revocation of any such order shall be published in the Gazette.”

Although the Chief Justice has authority to create a Judicial Division “by order under his hand” any such order shall be published in the Gazette. In present times this will be done through a legislative instrument and published in the Gazette. This is because consistent with legal thought on the subject, he cannot be allowed to do this administratively.

The most significant change introduced by Cap 4 of 1935, was to specifically establish a division of the Supreme Court for a

[p.59] of [2001-2002] 2 GLR 1 subject area. Section 24 established a Land Division of the court and vested it with exclusive jurisdiction in land cases with land judges sitting in Land Courts determining such matters. For a better appreciation of points earlier made, and points to be made in this judgment, I will quote section 24 in full and analyse a decided case on a similar provision. It provides:

“24. (1) There shall be a Division of the Supreme Court, to be known as the Lands Division, which shall exercise within such area or areas as the Governor may from time to time by order specify, jurisdiction in all causes and matters relating to the ownership, possession or occupation of lands, specifically assigned to the Lands Division by this or any other Ordinance. The Judges of the Lands Division, to be known as Land Judges, shall be, and shall be deemed always to have been, the Chief Justice and so many Puisne Judges as the Chief Justice may from time to time assign to the Lands Division.

(2) For the more convenient despatch of business, a Land Court of the Lands Division of the Supreme Court (hereinafter called a ‘Land Court’) may sit at any time and place within and area specified under subsection (1) of this section and shall (subject to the provision of section

25 of this Ordinance) be fully constituted by a single Land Judge.

(3) The provisions of this or any other Ordinance relating to a Divisional Court in the exercise of its civil jurisdiction shall, unless the context otherwise requires, apply mutatis mutandis to the Land Court.

(4) Subject to the provisions of section 19 of this Ordinance a Land Court shall have exclusive original jurisdiction to hear and determine any cause or matter relating to the ownership, possession or occupation of land.”

The case in which a provision in pari materia with section 24 of the Courts Ordinance, 1935 (CAP 4) was considered is the case of Ankrah v Chochoe (1949) 12 WACA 469. The reported facts are that the plaintiff/respondent brought an action against three defendants. Against two of the defendants who were the trustees of her husband’s will she claimed an order to take possession of certain land alleged to form part of the residuary estate of the

[p.60] of [2001-2002] 2 GLR 1 testator, and as against the third defendant delivery of possession of the said land and an order for accounts of all rents and profits accrued since the death of the testator. The action was commenced in the divisional court of the eastern judicial division of the Supreme Court which had all the powers, jurisdiction etc of the High Court of England and could hear all cases. The case proceeded in that court before Dennison Ag J, who gave judgment in favour of the plaintiff. Against that judgment, the third defendant who was not one of the trustees appealed to the West African Court of Appeal where it was argued that the case involved trust and could be heard at the Chancery Division in England. Although in the course of the proceedings in the trial court no objection was raised to the jurisdiction of the divisional court in the eastern judicial division to try the case, the point was raised on appeal that since the suit was one relating to the ownership, possession or occupation of land, the action was properly cognisable by the land court of the land division of the Supreme Court. The court held that a claim for recovery of possession of land and for an account of mesne profits is a cause or matter relating to the ownership, possession, or occupation of land within the meaning of section 20A of the Gold Coast Courts Ordinance (as amended) and therefore falls within the exclusive jurisdiction of the land court. A divisional court has, consequently, no jurisdiction to try such a claim. The appeal was therefore allowed.

The case is very illustrative of some of the points mentioned earlier in this judgment as to the attributes or features of a “division” which relates to a subject area: That is the creation of such a division limits the jurisdiction of that division to its subject area and grant it exclusive jurisdiction unless the statute creating the division otherwise provides.

In the Chochoe case (supra) the divisional court within the eastern judicial division where the action was initiated had general jurisdiction like the High Court of England. But it was held to be the wrong forum because the issue related to land for which exclusive jurisdiction was vested in another forum, namely the land court of the land division.

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THE EFFECTS OF THE COURTS ACT, 1960 (CA 9)

The Supreme Court (Civil Procedure) Rules, 1954 (LN 140A), Order 5, r 1 recognised the judicial division (which are territorial in character) created in the Courts Ordinance (Cap 4). But with the enactment of the Courts Act, 1960 (CA 9), the Courts Ordinance (Cap 4), as amended was repealed and the provisions for the creation of divisions were affected. The High Court was thus considered as one indivisible High Court uninhibited by any concept like “Judicial Divisions”, and the High Court of Justice would be duly constituted by one Justice thereof. The case of Wiredu v Mim Timber Co Ltd [1963] 2 GLR 167, SC is relevant. It states in holding (3) of the headnote thus:

“(3) The High Court under the Courts Ordinance, Cap 4 (1951 Rev.), Repealed, as under the Courts Act, 1960 (CA 9) was just one High Court exercising jurisdiction throughout the country. It was divided into judicial divisions merely for the convenient administration of justice but not for the purposes of limiting the jurisdiction of each judicial division to only matters arising within its division. Thus a decision of a judicial division seised with a case which could have been properly instituted in another division could be valid unless at the trial an objection was raised either by a party to the proceedings or the judge himself.”

With the abolition of judicial divisions under the Courts Ordinance, Cap 4 the notion gained currency that one could issue a writ in any branch of the High Court in any region. This led to the passing of High Court (Civil Procedure) (Amendment) Rules, 1979, (LI 1107) to regulate, as to venue, the commencement of action Commenting on this new Order 5, r 1 of LI 1107 Twumasi J (as he then was) in the case of Wilmot v Wilmot [19811 GLR 521 made a good analysis of the new rule. This is what he said at 524: “Needless to emphasise, Order 5, r 1 should be read as amended by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), and, when it is so read, it becomes crystal clear that short of the substitution of the words ‘Judicial Division’ used in the old rule for the word ‘Region’ the amendment substantially re enacts the old rule ‘Judicial

[p.62] of [2001-2002] 2 GLR 1

Division’ as used in the principal rules meant a judicial division of the Supreme Court established in 1876 and the word ‘Region’ as used in the L.I. 1107, means any region in contemporary Ghana . . . It is clear from the new Order 5, I particularly sub-rule (8) that, what appears to many people to be the High Court’s jurisdictional omnipotence, exists only under well-defined conditions. This is borne out by the fact that a vigilant defendant can incapacitate the High Court by a timeous objection to its jurisdiction with regard to venue.”

This case clearly demonstrate that under the new Order 5, r 1, the judicial divisions were created under a new nomenclature. And as was finally pointed out by Twumasi J (as he then was) at 525, “Now each region of Ghana constitutes a judicial division of the High Court of Justice. Order 5, r. 1(8) of the LI 1107 re-enacts the old Order 5, r. 1(e) which is crucial for this application.”

There are several cases which recognise the regional limitations as to venue if it came to the commencement of action in the High Court of justice. One such case is Oils and Fats Co Ltd v Hooper [1992] 1 GLR 326, CA where the Court of Appeal held:

“Where an action was brought against the defendant in the wrong region contrary to the mandatory provisions of Order 5, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by rule 1(6) of the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107), the court under rule 1(8) of LI 1107 was clothed with jurisdiction to try the suit unless either the trial judge reported the matter to the Chief Justice for a transfer to the proper venue, or the defendant raised objection to the jurisdiction as to venue before or at the time he was required to plead to the action”

It is therefore true to say, as Twumasi J (as he then was) did, that technically there still exists “Judicial Divisions” (territorially based) in the High Court of justice but this time under different nomenclature—namely, “regional divisions.” This aspect of the analysis is very important because it will become very relevant when we come to consider the type of division contemplated by article 139(3) of the Constitution, 1992. Is it territorial division or subject area division or both.

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ESTABLISHMENT OF DIVISIONAL COURTS – THE ENGLISH PRACTICE

The burden of my argument in examining our legislative history has been to show that at no time had a “judicial division” (which is territorial) or a “divisional court” (which is subject matter oriented) been created without a legislative support. Also where a power has been given to an authority to either establish a “judicial division” or a “divisional court” the power has never been exercised administratively but always with a statutory support. This is consistent with the basic concept in law that a court is a creature of statute.

I would now like to take a brief look at the practice in England, a country with which no one can deny, we share a common jurisprudence in this area of the law. They introduced the administration of justice into this country. In England “Divisional Courts” were first established pursuant to section 41 of the Judicature Act, 1873. Divisions of the High Court of Justice were created by section 31 of the said Judicature Act, 1873 for the more convenient dispatch of its business. The divisions created were five: The Chancery Division, the Queen’s Bench, the Common Pleas, the Exchequer, and the Probate, Divorce and Admiralty Divisions. Later, the Supreme Court of Judicature (Consolidations) Act, 1925 was passed to consolidate the Judicature Acts, 1873-1910, and other enactments relating to the Supreme Court of Judicature in England and the administration of justice therein.

The 1925 Act maintains some of the divisions, namely Chancery Division, King’s Bench Division and Probate Division. The most significant aspect of the provision is that it names the various categories of judges who will sit in these divisions; for example, the Chancery Division will consist of the Lord Chancellor as president and a number of puisne Judges; for the King’s Bench Division it will consist of the Lord Chief Justice, who will be president, plus a number of puisne judges.

In the recent Supreme Court Act, 1981 the pattern emerged clearer. Section 5(1) thereof provides: “There shall be three divisions of the High Court namely— (1) (a) The Chancery Division, consisting of the Lord Chancellor who shall be president thereof, the Vice-

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Chancellor, who shall be vice-president thereof, and such of the puisne judges as are for the time being attached thereto in accordance with this section.

(b) The Queen’s Bench Division, consisting of the Lord Chief Justice, who shall be the president thereof, and such other puisne judges as are for the time being so attached thereto; and (c) The Family Division, consisting of the President of the Family Division and such puisne judges as are for the time being so attached thereto.

(2) The puisne judges of the High Court shall be attached to the various Divisions by direction of the Lord Chancellor, and any such judge may with his consent be transferred by direction of the Lord Chancellor, but shall be so transferred only with the concurrence or the senior judge of the Division from which it is proposed to transfer him.

(3) Any judge attached to any Division may act as additional judge of any other Division at the request of the Lord Chief Justice made with the concurrence of the President of the Family Division or the Vice-Chancellor, or both, as appropriate.

(4) Nothing in this section shall be taken to prevent a judge of any Division (whether nominated under section 6(2) or not) from sitting whenever required, in a divisional court.”

I have endeavoured to quote the section as a whole not because it is binding on us but it is very illuminating. After reading this section, one would think that the law-giver was responding to article 139(3) in our Constitution, 1992 — like deciding on the number of divisions and naming of the judges who would sit in these divisions before finally touching on the issue of subject area and jurisdiction.

Indeed, all the Ordinances considered in my historical analysis of our legal landscape, namely Ordinance (No 4 of 1876), Courts Ordinance of 1935 (Cap 4) comply with the composition of the divisions as contemplated under article 139(3) of the Constitution, 1992, the number of the divisions were apparent, so also the judges who would sit in these divisions. But exhibit AMI provides

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“Judges who are to sit on FT cases would be coded”: whatever that means. Under the heading “Judges at Fast Track Court” the judges are listed as:

“(i) Motion Judge There shall be one Judge who sits daily to dispose of motions on cases where pleading have not been concluded.

(ii) Substantive Trial Judge The Judge assigned to try the case will be the substantive judge who will be seised with the entire case from summons for directions till delivery of Judgment.”

These arrangements do not satisfy the requirements of article 139(3) of the Constitution, 1992 in the least. That article requires the assignments of some judges of the High Court to the divisions before the Chief Justice can judiciously invite another to sit as an additional judge of the division. The composition of the court has not been addressed in their own “Guidelines.”

ARTICLE 139(3) AND THE FAST TRACK HIGH COURT

I have endeavoured to demonstrate that in legal philosophy or jurisprudence, a “court” is always a creature of statute and it derives its jurisdiction, either territorial or subject matter, from the law creating it. And that the jurisdiction can only be varied, altered, revoked or amended by the same means. We have also seen that this basic concept in law applies whenever it is intended to create a division of a court. Therefore, that a “court” cannot be created administratively should be beyond legal controversy. This should include the submission that one cannot administratively vary, alter, amend or revoke a jurisdiction statutorily conferred. The Guidelines FOR FAST TRACK COURT, exhibit AM1 cannot, and does not, meet the requirements of a law capable of satisfying these legal conditions.

I would want to think that it is in the light of this legal truism that the High Court of Justice was itself created by article 126(1)(a)(iii) of the Constitution, 1992. And I also want to think that it is in recognition of this legal concept that the same

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Constitution, 1992 confers jurisdiction on the High Court in article 140. Having established the High Court and conferred jurisdiction on it, the Constitution, 1992 in article 139(3) only provided for divisions of the High court with such number of justices as the Chief Justice may decide. Article 139(3) reads: “(3) There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.” The provision is silent on how, what is to be determined by the Chief Justice, is to be made; the number of divisions and their composition.

The question to ask is whether this provision empowers the Chief Justice to create any division of the High Court administratively? In my view, the words are so clear and unambiguous that no serious act of interpretation is needed before we can ascertain the intentions of the framers of the Constitution, 1992. But in case the word “determine” would pose any problems so as to be interpreted to mean “create” I want to say, I beg to differ; not in this context. The word “determine” as used in the context in which it occurs, means no more than make up one’s mind or decide.

In the Australian case of City of Heidelburg v McPherson [1964] VR 783 a section of the Local Government Act 1958-1986 (Vic) came up for interpretation. Section 583 makes certain provisions where any council “determines” that the execution of any works for the construction of a private street is necessary O’Bryan J said at 785:

“I would have thought that when a Council says, by resolution, through its Councillors, that ‘it is of opinion that so and so,’ it means quite clearly that it has made up its mind, decided, or determined, whichever word you like to use, that these works are necessary . . . The word determines in this context means no more than decided or forms the opinion.”

My plebeian understanding of the provisions of article 139(3) of the Constitution, 1992 is that the Chief Justice has only to decide on the number of divisions and the number of justices who will constitute each division or sit in the said divisions. The question is how does he carry out his decision since the provision is silent on it? But we must always remember that the legislature is always

[p.67] of [2001-2002] 2 GLR 1 presumed to know the existing state of the law.

The framers of the Constitution, 1992 know that the Chief Justice cannot implement his decision administratively because they are presumed to know the principles about the establishment of a court and its division (either territorially or subject area) and yet failed to provide how it should be done. The only intelligent conclusion is that the power to give legal effect to his decision has been reserved for Parliament under article 298 of the Constitution, 1992 which states:

“298. Subject to the provisions of Chapter 25 of this Constitution, where on any matter, whether arising out of this Constitution or otherwise, there is no provision, express or by necessary implication of this Constitution which deals with the matter, that has arisen, Parliament shall, by an Act of Parliament, not being inconsistent with any provision of this Constitution, provide for that matter to be dealt with.”

More so when “court” is defined in the Constitution, 1992 itself meaning “a court of competent jurisdiction established by or under the authority of this Constitution and includes a tribunal.”

To prove that the Fast Track High Court is a division of the High Court, the defendant tendered a document as exhibit AM1. In the foreword to this document, the then Acting Chief Justice after mentioning the need for expeditious disposal of cases wrote:

“It is against this background that I have caused to be established the FAST TRACK DIVISION OF THE HIGH COURT—a division which applies modern case management practices and seeks to introduce new judicial administrative mechanisms that facilitate faster processing and trial of cases.”

EXHIBIT AM1—GUIDELINES FOR FAST TRACK COURT

This document was tendered by the defendant as proof, as he put it in paragraph (5) of his statement of case; “The Chief Justice in conformity with the power vested in him by article 139(3) of the Constitution, 1992 section 14(3) of the Courts Act and section 69(1) of the Courts Act (Act 459), caused to be established the FAST TRACK DIVISION OF THE HIGH COURT — a division

[p.68] of [2001-2002] 2 GLR 1 which applies modern case management practices and seeks to introduce new judicial administrative mechanism that facilitate faster processing and trial of cases.” An echo from the Ag Chief Justice’s Foreword. (The emphasis is mine.) If one takes a close look at the words of this paragraph one comes to the inescapable conclusion that the division is being “created” solely on the basis of the practice and procedure of that court through the means of the facilities available there. But as pointed out earlier, it is a proposition familiar to all lawyers that divisions of a court are established on territorial basis (known as “Judicial Divisions”) and on subject matter basis (known as Divisional Courts).

For example, land division, criminal division, probate division, etc. A “division” can therefore be justified in law only if it is territorially based or subject matter based. A division properly created can be computerised but computerisation per se is not a necessary legal condition for the creation of a division. In any case, the defendants are relying on this exhibit to prove the creation or establishment of a division as envisaged in article 139(3) of the Constitution, 1992. The very first sentence in the forward states: “The Fast Track Court is a Division of the High Court.” This exhibit AM1 liberally provides for the practice and procedure of the court. Under the topic “Processing of Fast Track Cases” it is stated “A Writ filed at the Fast Track Registry will not automatically be placed on the Fast Track list until approval by His Lordship the Chief Justice.” A form is designed, called Form 1, for such applications. This is contrary to Order 2, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) which allows for the writ filled to be accepted immediately. A twenty-four hour service of processes is also imposed. And only two services shall be attempted after which a certificate of non-service shall be filed. Another area is pleadings where time for filing must be scrupulously adhered to and that “applications for extension of time are frowned upon and are invariably declined.” This clogs the discretion given a High Court judge in LN140A when it comes to extension of time. After completion of a case a judge of the Fast Track Division is required to give his judgment in seven days. This is contrary to the stipulation in LI 1107 that a judge of the High Court shall deliver his judgment six weeks after the conclusion of case before him: see Republic v Judicial Committee of the Central

[p.69] of [2001-2002] 2 GLR 1 Regional House of Chiefs; Ex parte Aaba [2001-2002] 1 GLR 221, SC.

There is a provision also for execution. It states: “All executions of any kind in the Fast Track cases shall be approved and directed by the Chief Registrar of the High Court and promptly, carried by the Chief Bailiff.” Will this be done at the expense of the rules in LN 140A which regulate execution or not”?

In short exhibit AMI is not only the basis for the establishment of “The Fast Track Division of the High Court” but provides for the practice and procedure in that court contrary to article 157(2) of the Constitution, 1992. This is what the article says: “The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.” (The emphasis is mine.) This constitutional instrument will then be laid before Parliament for twenty-one working days. These blatant violations of the fundamental law, all lawyers know, cannot be countenanced. And we whose duty it is to defend the Constitution, 1992 against any violation must always be prepared to act promptly and decisively. The saying that justice must be done even if the heavens fall, will be meaningless unless it is linked-up with an equally important saying that the bench is not for timorous souls.

Adjabeng JSC. By his amended writ of summons, the plaintiff claimed five reliefs. These are as follows:

“(1) A declaration that there is no ‘Fast Track Court’ with jurisdiction to try criminal cases established under the Constitution of the Republic of Ghana, and there is therefore no constitutional foundation for the plaintiff to be prosecuted before such court.

(2) A declaration that the oral demand by agents of the Defendant to Plaintiff to appear before a ‘Fast Track Court’ when no such Court for trial is provided for in the Constitution of the Republic of Ghana, is an infringement of articles 125 and 126 of the Constitution establishing the Judiciary.

(3) An injunction against the defendants and their agents restraining them from seeking to proceed with a trial of the plaintiff before the purported ‘Fast Track

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Court.’ (4) A declaration that the summons signed by a justice of appeal served on the plaintiff commanding him ‘in the President’s name to appear in person before this Court …’is in contravention of articles 1(1) and 125(1) of the Constitution, 1992.

(5) A declaration that there is no ‘Fast Track High Court’ established under the Constitution, 1992 of the Republic of Ghana and therefore a summons to appear before such a ‘Court’ is null and void.”

The plaintiff filed an amended statement of case by which he elaborated on his contention that “there is no ‘Fast Track High Court’ with jurisdiction to try criminal cases established under the Constitution of the Republic of Ghana . . .” The plaintiff’s amended statement of case also explained why he contends that the summons served on him which commanded him in the name of the President to appear is in contravention of articles 1(1) and 125(1) of the Constitution, 1992.

In his statement of case in answer to the plaintiff’s statement of case the defendant, the Honourable Attorney-General, made some significant points which, in my view, have greatly simplified this matter. The Honourable Attorney-General contended that the “Fast Track High Court” is a division of the High Court established by His Lordship the Chief Justice. In paragraphs (2),(3), (4), and (5) of his statement of case, the defendant averred as follows:

“(2) In answer to paragraph (2) of the statement of case of the plaintiff, it is the case of the defendant that the Constitution of the Republic of Ghana in making provision for the administration of justice makes mandatory provision in article 139(3) for the creation or establishment of such divisions of the High

Court consisting of such number of justices as the Chief Justice may determine.

(3) In further answer to paragraph (2) of the plaintiff’s statement of case the Defendant avers that the Fast Track High Court is a division of the High Court established pursuant to article 139(3) of the Constitution and by virtue of the fact that this division of the High

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Court is equipped with sophisticated technological devices geared to making speedy disposal of cases possible, the name Fast Track emerged and hence the name Fast Track High Court.

(4) In further answer to paragraph (2) of the statement of the plaintiff’s case, the defendant avers that the Constitution, 1992 was not crafted to contain names of the divisions of the High Court which may be established under article 139(3) of the Constitution, 1992 and, therefore, it is not surprising that the plaintiff did not see any. It is not meant to be there.

(5) Paragraph (3) of the statement of the plaintiff’s case is denied. On the contrary, the Fast Track High Court is a division of the High Court as anticipated under article 139(3) of the Constitution and section 14(3) of the Courts Act 1993 (Act 459). The Chief Justice in conformity with the power vested in him by article 139(3) of the Constitution, sections 14(3)and 69(1) of Act 459 caused to be established the Fast Track Division of the High Court—a division which applies modem case management practices and seeks to introduce new judicial administrative mechanisms that facilitate faster processing and trial of cases. (See Fast Track Docket and Case Management Guidelines for Fast Track Court attached marked AM1).”

In his oral submissions at the hearing of the matter, counsel for the plaintiff, Prof E V O Dankwa, referred to article 139(3) of the Constitution, 1992 and submitted that if the Fast Track High Court was a division of the High Court as the defendant claimed, then it should comply with the said article 139(3). That is to say, according to counsel, that the division must consist of such number of justices as the Chief Justice may determine. Counsel also referred to the Guidelines for Fast Track Court exhibited by the defendant and marked as AM1, and submitted that these guidelines dealt with only civil cases. In respect of the summons served on the plaintiff which is the subject of the plaintiff’s relief (4) Prof Dankwa argued that the summons should have been issued in the name of the Republic and not in the President’s name as it stood.

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Counsel therefore contended that the summons as it stood contravened articles 1(1) and 125(1) of the Constitution, 1992.

In his reply to the oral submissions made by the plaintiff’s counsel, the Honourable Attorney-General conceded that there was an error in the summons issued and served on the plaintiff to appear before the said Fast Track High Court. And that the said summons was wrongly issued in the name of the President. He, however, argued that this error was of no legal significance or effect as the error was corrected when the plaintiff appeared before the Fast Track High Court. The Honourable Attorney-General supported this rd submission with a quotation from Blackstone’s Criminal Practice (1993, 3 ed), p 998.

I must say here at once that I am not convinced by the argument that because the erroneous summons was or might be corrected when the plaintiff appeared before the court the existence of which is being challenged here, the issue of the erroneous summons is of no legal effect before us. It must not be forgotten that the plaintiff in his relief (4) is contending that the said summons is in contravention of articles 1(1) and 125(1) of the Constitution, 1992. It cannot be disputed that the matter raised is a constitutional issue. And this is an issue before us because we are sitting as a constitutional court and not a criminal court. Since it is clear that the said summons was wrongly issued in the name of the President, we have no alternative, in my view, than to declare it null and void so that it cannot be used again.

In respect of the crucial issue as to whether a Fast Track High Court with jurisdiction to try criminal cases has been established by our Constitution, 1992 the Honourable Attorney-General, in his submissions at the hearing of this case, re-echoed the averments in his statement of case, quoted earlier in this opinion. That is, that the Fast Track High Court is a division of the High Court created by the Chief Justice under article 139(3) of the Constitution. Is it in fact a division of the High Court? And when was it created, and by what means? Article 139(3) of the Constitution, 1992 provides that: “(3) There shall be in the High Court such divisions consisting of such number of justices respectively as the Chief Justice may determine.” Frankly, I have not found any evidence in all the papers filed by the defendant in his action which shows or suggests that His Lordship the Chief Justice has created any division of the

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High Court or, to be precise, a division of the High Court to try criminal cases. I find it difficult, therefore, to understand the assertion that what is being challenged in this action is a division of the High Court.

Before the old or former judicial divisions of the High Court (then called Supreme Court) could be created, a law had to be passed for the purpose. That was section 22 of the Courts Ordinance, Cap 4 (1935 Rev). And rules were made in the old Order 5, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) to govern the institution of the various suits in the various judicial divisions of the said High Court. When later it became necessary that the old judicial divisions of the High Court should be made to coincide with the various regions of the country, it was found necessary to enact a law to effect the change. Hence the enactment of the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107) to amend the said old Order 5, r 1 of LN 140A to effect the change: see section 6(b) of LI 1107. See also the decision of Twumasi J (as he then was) in the case of Wilmot v Wilmot [1981] GLR 521.

Again, when it became necessary to create the old or former land court as a division of the High Court, section 24 of CAP 4 was enacted to create a land division of the High Court (then called the Supreme Court). This section 24 of Cap 4 contained elaborate provisions in respect of the establishment of this division of the court, its composition, jurisdiction, etc. See also sections 25 and 2 of the said Cap 4. In my view, therefore, if the Fast Track High Court was created as a division of the High Court to try criminal cases, as the Honourable Attorney-General claimed, it should have been backed by law. There is no evidence that this was done. The Fast Track High Court which sought to try the plaintiff could not and cannot, therefore, be a division of the High Court.

What I have gathered from exhibit AM1, that is “Fast Track Docket Case Management Guidelines for Fast Track Court”, put in evidence by the defendant, and exhibit TT5, put in evidence by the plaintiff, indicates an attempt being made, on a trial basis, to make the High Court use modern technology to dispose of some categories of civil cases expeditiously. These are commercial industrial, bank, and investment-related cases. Indeed, exhibit TT5, the docket on the plaintiff’s criminal case, referred to earlier in this

[p.74] of [2001-2002] 2 GLR 1 opinion, is headed: “IN THE FAST TRACK COURT at ACCRA COMMERCIAL & INDUSTRIAL.” It is quite clear from these exhibits, therefore, that the so-called Fast Track High Court is intended to be used as a civil court and not a criminal court. In my view, it is wrong to use it as a criminal court to try the plaintiff. I am of the firm opinion that it is wrong to use this court to try criminal cases summarily when we have a whole host of courts with summary criminal jurisdiction in this country to try such cases. We have the community, circuit and Regional Tribunals with summary criminal jurisdiction to deal with such cases. Indeed, the plaintiff’s case was started in the Circuit Tribunal, Accra. But if it is felt that such a court is necessary to try criminal cases expeditiously, then it must be set up properly. This is because the liberty of the individual is so important that it must not be toyed with.

In conclusion, I am of the firm view that the court which sought to try the plaintiff is not a division of the High Court created to try criminal cases. I am satisfied that there is no evidence to support the creation by the Chief Justice of any such division of the High Court. Consequently, the plaintiff’s action ought to succeed. Hence my decision to give judgment in his favour.

Adzoe JSC. My lords, my learned brothers and sister have already set out in clear terms the facts and issues at stake in this case. I need not repeat them. This is a delicate case and, in my opinion, the law is on the plaintiff’s side. When the defendant decided to arraign the plaintiff before the courts for his alleged crimes, it ought to have dawned on him that the law will regulate every step taken in the proceedings.

It is clear that no one previously ever questioned the constitutionality of the so-called Fast Track High Court since it started holding its proceedings, but that is no argument to suggest that the question cannot now be raised. The functions of a defence lawyer at a criminal trial include protecting the constitutional rights of his client. This is what the plaintiff and his lawyers are doing. The mistakes in previous trials should not be built into pyramids of illegalities. And I must say that the decision of the majority in this case only confirms our oath to defend the Constitution, 1992 and protect the liberties of the people of Ghana. I personally cannot

[p.75] of [2001-2002] 2 GLR 1 sacrifice that oath for political expediency. The law must prevail.

The pith of the plaintiff’s claim is that there is no Fast Track High Court established under the Constitution, 1992 of the Republic of Ghana. He therefore claims the following reliefs:

“(1) A declaration that there is no ‘Fast Track High Court with jurisdiction to try criminal cases established under the Constitution of the Republic of Ghana, and there is therefore no constitutional foundation for the plaintiff to be prosecuted before such court.

(2) A declaration that the oral demand by agents of the defendant to the plaintiff to appear before a ‘Fast Track High Court’ when no such court for trial is provided for in the Constitution,1992 of Republic of Ghana, is an infringement of article 125 and 126 of the Constitution, 1992 establishing the judiciary.

(3) An injunction against the defendant and their agents restraining them from seeking to proceed with trial of the plaintiff before the purported ‘Fast Track High Court.’ (4) A declaration that the summons signed by a justice of appeal served on the plaintiff commanding him ‘in the President’s name to appear in person before this Court . . .’ is in contravention of articles 1(1) and 125(1) of the Constitution, 1992.

(5) A declaration that there is no ‘Fast Track High Court established under the Constitution, 1992 of the Republic of Ghana and therefore a summons to appear before such a ‘court’ is null and void.”

In fuller amplification of those reliefs, he explained in paragraph (27) of an affidavit accompanying the claim filed on 15 February 2002 that:

“To the best of my information and belief, no ‘Fast Track’ division of the High Court has been established in accordance with the provisions of the Constitution, 1992. Indeed, the objective of a comprehensive programme of accelerating the wheels of justice in all courts would be undermined by the establishment of such a division.”

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What I understand the closing sentence in that affidavit as saying is that if the mere fact of computerisation and mechanisation of the courts will constitute them into “divisions” of the courts and clothe them with the kind of jurisdiction claimed to inhere in the “Fast Track High Court”, it would undermine the administration of justice. In other words, he is saying that the fact that a High Court has been computerised and mechanised to speed up proceedings for the quick disposal of cases, does not, by itself transform that court into a division of the High Court with any special powers of jurisdiction. According to him a division of the High Court can only be established by or under the Constitution, 1992 and if it is not so established, then it is not the creature of the Constitution, 1992 and must therefore be declared as unconstitutional, null and void. In fact the plaintiff is not objecting to the name “Fast Track High Court”; he is disputing the claim that there is any such thing as a Fast Track division of the High Court.

In answer to this claim, the defendant, the Attorney-General of the Republic, maintains that there is a Fast Track division of the High Court. I think it would be better to quote some relevant portions of his statement of case filed on 19 February 2002:

“(2) In answer to paragraph (2) of the statement of case of the plaintiff, it is the case of the defendant that the Constitution, 1992 of the Republic in making provision for the administration of justice makes mandatory provision in article 139(3) for the creation or establishment of such divisions of the High

Court consisting of such number of justices as the Chief Justice may determine.

(3) In further answer to paragraph (2) of the plaintiff’s statement of case the Defendant avers that the Fast Track High Court is a division of the High Court established pursuant to article 139(3) of the Constitution, 1992 and by virtue of the fact that this division of the High Court is equipped with sophisticated technological devices geared to making speedy disposal of cases possible, the name ‘Fast Track’ emerged and hence the name ‘Fast Track High Court.’

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(4) In further answer to paragraph (2) of the statement of the plaintiff’s case, the defendant avers that the Constitution, 1992 was not crafted to contain names of the divisions of the High Court which may be established under article 139(3) of the Constitution, 1992 and, therefore, it is not surprising that the plaintiff did not see any. It is not meant to be there.

(5) Paragraph (3) of the statement of the plaintiff’s case is denied. On the contrary, the Fast Track High Court is a division of the High Court as anticipated under article 139(3) of the Constitution, 1992 and section 14(3) of the Courts Act, 1993 (Act 459). The Chief Justice in conformity with the power vested in him by article 139(3) of the Constitution, sections 14(3) and 69(1) of Act 459, caused to be established the Fast Track Division of the High Court — a division which applies modem case management practices and seeks to introduce new judicial administrative mechanisms that facilitate faster processing and trial of cases. (See Fast Track Docket and Case Management Guidelines for Fast Track Court attached marked AM1).

(6) In answer to paragraph (4) of the plaintiff’s statement of case, the defendant avers that under the Constitution, 1992 there is one High Court for the whole of the Republic, although its judges may sit in any place within the country as determined by the Chief Justice. Likewise divisions of the High Court may be created by the Chief Justice pursuant to article 139(3) of the Constitution and such courts have the same power, authority and jurisdiction as the High Court and may also sit anywhere within the country as the Chief Justice may determine. They all have original jurisdiction in all matters civil and criminal. The Fast Track High Court is therefore constitutional in all aspects.”

It is therefore clear that the central issue in controversy is whether or not there is a Fast Track division of the High Court established by or under the Constitution, 1992, as provided for by

[p.78] of [2001-2002] 2 GLR 1 article 139(3). The fate of the plaintiff’s case hangs on a resolution of this one question.

Rule 50 of the Supreme Court Rules, 1996 (CI 16) of this court requires that in a case like this both parties may file a memorandum of the issues that would be tried by the court. Where they do not agree, each party may file his own memorandum of issues. The defendant nevertheless filed his memorandum of issues together with his statement of case and, I presume, without consulting the plaintiff. The issues set down by him are:

“(1) Whether or not there is a court known as Fast Track High Court.

(2) Whether or not the Fast Track High Court, if it exists, is a court of competent jurisdiction known to the Constitution.”

These are not the issues in controversy. The issues are (1) whether or not a Fast Track High Court division has been established under the Constitution: and (2) if there is such a division, whether that court has jurisdiction to try criminal cases and therefore try the plaintiff for the offence charged. Those are not the same as the issues set down by the defendant. The defendant appears to have misunderstood the issues raised by the claim and it is no wonder that he failed to answer the substance of the plaintiff’s arguments.

It must be understood that a court is a creature of law. Indeed every court must be created or established by law. In Halsbury’s Laws of England (3 d, Vol 9, 809 and 810) it has been explained that courts are created by the authority of the sovereign. And that great jurist, Kelsen, in his characteristic illuminating style once wrote: “Surely, law cannot just mean what officials do, or what courts will do, since it takes a law to make an official or a court”: see Kelsen: General Theory of Law and State (1949) at p 61. Our own Constitution, 1992 has this definition of a court: “court means a court of competent jurisdiction established by or under the authority of this Constitution and includes a tribunal.” The High Court itself is the creature of law. We can trace its origins to the Supreme Court Ordinances of 1876 and 1935. In 1876 the Gold Coast Colony, comprising Lagos and the Gold Coast, used their own legislature to pass the Supreme Court Ordinance, No 4 of 1876 which established the Supreme Court of the Gold Coast Colony

[p.79] of [2001-2002] 2 GLR 1 with powers “to possess and exercise all the jurisdiction, powers and authorities of . . . Her Majesty’s High Court of Justice in England.” Section 12 of the Ordinance gave the court “all civil jurisdiction” and “all criminal jurisdiction.”

When the Gold Coast and Lagos were separated in 1935, the Courts Ordinance, 1935 established a new Supreme Court of the Gold Coast which was also to “possess and exercise all the jurisdiction powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England.” Divisional Courts were created under this Ordinance and these Divisional Courts later became the High Courts. The High Court was recreated by the Constitution, 1960. Under the Constitution, 1969 it was one of the superior courts of judicature and has retained that status up to today. It has always been regarded as one court having general jurisdiction in civil and criminal matters over the whole country. It is not easily appreciated by many people, including even lawyers, that there have been divisions of the High Court; but the truth is that there have been divisions and we must understand what a division of the High Court means in order to understand the plaintiff’s denunciations.

Establishing a division of a court involves the question of jurisdiction. The jurisdiction of a court is the authority which the court has to hear and determine matters litigated before it. It has two elements — the elements of subject matter and venue. Subject matter jurisdiction relates to the type and nature of actions and matters that the court can take cognisance of, eg murder or land case, or chieftaincy dispute. Some people refer to it as substantive jurisdiction. The court’s jurisdiction with regard to venue relates to the geographical area or extent of territory over which the court may exercise its authority and powers. It is therefore normally referred to as the geographical or territorial jurisdiction. Twumasi J (as he then was) described jurisdiction in Wilmot v Wilmot [1981] GLR 521 at 524 as follows:

“In its conceptual sense, the jurisdiction of every court has two major connotations of varying degrees of importance: Firstly, there is the jurisdiction of a court to try well-defined causes and matters. This is the court’s substantive jurisdiction. Secondly, there is the jurisdiction with regard to venue. This is procedural jurisdiction”

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The jurisdiction of a court is always conferred on the court by the enactment creating the court. Sowah J (as he then was) made this point clear in the case of Amegashie v Dablah [1965] GLR 296. In that case, a local magistrate was hearing a land case when a new law was passed taking that type of case out of the jurisdiction of the local courts. The magistrate, therefore, suspended further proceedings and sought advice from the High Court judge as to what to do. The High Court judge advised him to proceed and complete the hearing. The magistrate then heard the case and gave judgment. On appeal, Sowah J (as he then was) set aside the judgment, holding that the magistrate had no jurisdiction to hear the case. At 297 of the report, the learned judge said:

“I am looking at the statute which gave jurisdiction to the local magistrate and asking whether or not at the time that he delivered judgment he had jurisdiction to do so. For it is not the High Court which confers jurisdiction on courts of inferior jurisdiction. Those courts are the creations of statute and their jurisdiction is defined by the enactments which created them. They therefore have jurisdiction in accordance with the provisions and intendments of the Act creating them.”

The learned judge mentioned courts of inferior jurisdiction only because in the particular circumstance, a superior court purported to confer jurisdiction on an inferior court, and, but for that, it is a general principle of law that the jurisdiction of a court is conferred by the enactment which creates that court.

In Sikpo v Lassinueh (1922) FC ’22, 29 the then Native jurisdiction Ordinance (Cap 82) empowered a Provincial Commissioner’s Court to transfer a case from one native tribunal to another native court, or to the “court” which by definition included the court of the Provincial Commissioner. But the Provincial Commissioner’s Court had no original jurisdiction in land causes. However, the Provincial Commissioner’s court purported to transfer a land suit from a native court to the Provincial Commissioner’s court itself and tried it at first instance without any objection by the defendant. On appeal, the question of jurisdiction of the Provincial Commissioners court was raised for the first time.

The appellate court held that even though the Provincial

[p.81] of [2001-2002] 2 GLR 1

Commissioner’s court had power to cause the transfer, it could only transfer the case to a court which by the statute creating it is vested with original jurisdiction in land causes. The proceedings before the Provincial Commissioner’s court were therefore declared null and void, notwithstanding the fact that no objection was raised to its jurisdiction at any stage during the course of the trial itself. There is no denial that our court system was structured on the English system; therefore we need to learn from that system when necessary. The High Court in England has always had divisions. A study of those divisions will leave no doubt in anyone’s mind that divisions of the High Court are always created by statute. The High Court in England was created by the Judicature Acts of 1873-1875. It was one High Court but was divided into five divisions—Chancery, Queen’s Bench, Common Pleas, Exchequer, Probate, Divorce & Admiralty divisions. The Queen’s Bench, Common Plea and Exchequer were later consolidated into the Queen’s Bench division in 1880 by Order in Council dated 16 December 1880. In 1925 the court was divided into three divisions—Chancery, Queen’s Bench, Probate, Divorce and Admiralty—by the Supreme Court of Judicature (Consolidated) Act, 1925. It is now regulated by the Supreme Court Act, 1981 and has three divisions—Chancery, Queen’s Bench and Family Divisions. th Richard Bruce is a Barrister-at-Law of Gray’s Inn. In his book entitled Success in Law (4 ed), at p 52-55, he discusses these three divisions, and I deem it vital to quote portions of the text: “The High Court, created by the Judicature Acts 1873-5, is now regulated by the Supreme Court Act 1981. It consists of the Lord Chancellor, the Lord Chief Justice, the President of the Family Division and the Vice-Chancellor.”

He then described the divisions as follows:

“(i) Queen’s Bench Division: This is the largest division of the High Court and is the successor to the old common-law courts. It is staffed by the Lord Chief Justice (referred to in the law reports as Lord Taylor C.J.) and about seventy puisne judges. A large number of judges is required because the division also staffs the Crown Courts (discussed in Unit 2.2) where the judges exercise

[p.82] of [2001-2002] 2 GLR 1 a mainly criminal jurisdiction.

(ii) Chancery Division: As the name suggests, the principal judge of this division is theoretically the Lord Chancellor. In practice, however, it is headed by the Vice-Chancellor (whose name is written in the form ‘Sir Donald Nichols, V-C’). No jury is present and the court sits in London. Its jurisdiction includes trusts, mortgages, the sale of land and company matters. The division also has a limited appellate capacity from hearings of the Inland Revenue Commissioners, who exist to determine disputes between tax inspectors and payers.

(iii) Family Division: This is the most recently established division, having been created by the Administration of Justice Act 1970. There are about sixteen puisne judges headed by the President (identified in the law reports as ‘Brown P’). Its original jurisdiction is a wide one covering, as it does, a field of human activity where so much can and does go wrong — divorce, nullity, legitimacy, wardship and the property and financial disputes which can be the most bitterly contested part of a broken marriage.

‘There is also a limited appellate jurisdiction over decisions of magistrates’ courts when these are sitting as so-called ‘domestic courts’ dealing with matters such as desertion, Custody, access to children and maintenance.”

It can be realised that each division is a court by itself—with a head of the division and with its own judges. Each division exercises some distinct jurisdiction, original, or appellate, or both. These matters are clearly spelt out by the statutes which create the divisions. This is the kind of division in article 139(3) of the Constitution, 1992.

What is significant to bear in mind is that the High Court of England, like the High Court in Ghana, has always been one High Court, notwithstanding the divisions. The divisions are created in order to distribute the business of the High Court so as to speed up the work of the High Court. In the case entitled In Re Hastings (No

[p.83] of [2001-2002] 2 GLR 1

3) [1959] Ch 368 at 380. Harman J observed:

“The courts that used to sit in banc have been swept away and their places taken by Divisional Courts, which are entirely the creatures of statute and rule. Applications for a writ of habeas corpus are assigned by Rules of Supreme Court, Order 54, r 1, to Divisional Courts of the Queen’s Bench Division, and that is the only place to which a suppliant may go.”

Here in Ghana our own High Court over the years has had divisions created, and like the English High Court, those divisions were always created by enactment. An “enactment” is defined by section 32 of the Interpretation Act, 1960 (CA 4) as an Act of Parliament or statutory instrument, and an Act of Parliament is defined as including the Constitution.

The Supreme Court Ordinance, 1876 which created the Supreme Court of the Gold Coast Colony created divisions of that court and called them Divisional Courts. Section 23 of the Ordinance which created the divisions provided:

“23. For the more convenient despatch of business Divisional Courts of the Supreme Courts shall be holden in each province, and every such Divisional Court may; subject to the power of transfer hereinafter enacted exercise all or any part of the original jurisdiction civil and criminal, vested in or for the time being capable of being exercised in such province Supreme Court. If necessary several Divisional Courts may be held concurrently in the same province. A Divisional Court of the Supreme Court shall be fully constituted by any one of the Judges thereof; but may consist of two Judges. Any Puisne Judge appointed by the Government to exercise jurisdiction in any province shall be qualified and empowered to sit in any Divisional Court of such province. The Chief Justice shall be at all times qualified to sit in any Divisional Court in any province. Whenever two Judges shall sit in a Divisional Court the Senior Judge according to the order of their precedence under this Ordinance shall have two votes in case of difference in opinion.”

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The fact that the divisional courts were to be “holden in each province” indicates that these are territorial divisions dealings with venue. The divisions were created even though the Supreme Court was, by section 12 of the Ordinance, vested with “all Her Majesty’s criminal jurisdiction” and “all Her Majesty’s civil jurisdiction.” And it must be noted that the said section 23 clearly defines the composition and jurisdiction of the Divisional Court. Again when the Supreme Court of the Gold Coast was created in 1935, the Supreme Court Ordinance, Cap 4 (1935 Rev) intending to create territorial divisions provided in section 22(1) as follows:

“22. (1) For the purposes of the administration of justice, the Chief Justice, with the approval of the Governor, may by order under his hand provide for the formation of Judicial Divisions throughout the Colony and from time to time may in like manner amend, vary, alter or revoke any such order.”

Note that words “by order under his hand” which simply means a law, an enactment.

The most important provision of the 1935 Ordinance (Cap 4), within the scope of our searchlight, however, was section 24 which created the Land Division of the court. It provides:

“24. (1) There shall be a Division of the Supreme Court, to be known as the Lands Division, which shall exercise within such area or areas as the Governor may from time to time by order specify, jurisdiction in all causes and matters relating to the ownership, possession or occupation of lands, specifically assigned to the Lands Division by this or any other Ordinance. The Judges of the Lands Division, to be known as Land Judges, shall be, and shall be deemed always to have been, the Chief Justice and so many Puisne Judges as the Chief Justice may from time to time assign to the Lands Division.”

It is patently clear that this provision has actually created the Lands Division. It is only then that the Ordinance in s 24(2) describes the court which will sit in that division. The court was called “Land Court.” Section 24(2) reads as follows:

[p.85] of [2001-2002] 2 GLR 1

“(2) For the more convenient despatch of business, a Land Court of the Lands Division of the Supreme Court (hereinafter called a ‘Land Court’) may sit at any time and place within an area specified under subsection (1) of this section and shall (subject to the provisions of section 25 of this Ordinance) be fully constituted by a single Land Judge.”

Section 24(4), of Cap 4 provided that the Land Court “shall have exclusive original jurisdiction to hear and determine any cause or matter relating to the ownership, possession or occupation of land” in certain geographic areas or in areas where the Native Courts could not exercise their jurisdiction, section 25 made provision for trials with the aid of assessors, and section 26 made provision for the exercise of the Land Court’s original and appellate jurisdiction.

Thus in the case of Nsiah v Asare [1959] GLR 17 at 19, Ollennu J (as he then was) noted as follows: “Section 24 of the Courts Ordinance created a division of Her Majesty’s High Court known as the Lands Division, namely this Court, and empowered it to ‘exercise within Ghana jurisdiction in all causes and matters relating to the ownership, possession, or occupation of land, specifically assigned to the Lands Division by this or any other Ordinance.”

And in Asare v Teing [1960] GLR 155 at 156 Ollennu J (as he then was) again made this observation “The jurisdiction of the Land Court, a division of the High Court, both original and appellate, was given by section 24 sub-section (1) of the Courts Ordinance, Cap 4.”

When after independence the Courts Ordinance was repealed and replaced with the Courts Act, 1960 (CA 9) the impression was created that the territorial divisions created by the Ordinance no longer existed, an impression which led the late Lawyer E D Kom to say in his book, Civil Procedure (1976 ed), p2 that: “There are no longer judicial divisions that existed under the Courts Ordinance, Cap 4: see Annang v Northern Assurance Co Ltd (1967) CC 98, and a plaintiff can commence his action stricto sensu in any branch of the High Court in any Region, but quaere, whether a plaintiff can commence an [p.86] of [2001-2002] 2 GLR 1 action in the High Court, Tamale, in respect of land situate in the Volta Region where the defendant and must of his witnesses reside.”

In order to correct that impression and remove the confusion, a new legislative instrument had to be passed. The High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1107) was passed to create new geographical divisions of the High Court on regional basis. Twumasi J (as he then was) summed up the position in Wilmot v Wilmot (supra) at 525, when he said:

“There is little doubt that it was for the purpose of avoidance of all doubts about the validity of Order 5, r 1, that the Rules of Court Committee, in their wisdom, made the High Court (Civil Procedure) (Amendment) Rules, 1977. Under the new Order 5, r 1, the judicial divisions created under Cap 4 continued their existence under a new nomenclature.

Now each region of Ghana constitutes a judicial division of the High Court of Justice. Order 5, r 1(8) of the L.I. 1107 re-enacts the old Order 5, r 1(e) which is crucial for this application.”

The authorities I have referred to above leave me in no doubt that a division of the High Court must be created by an enactment just as the High Court itself was created. The process cannot be dissimilar. The learned Attorney-General maintains that the “Fast Track High Court” was established as a division of the High Court. He is not saying that the name has been adopted because that court has been mechanised and computerised. His case is that the court has been created or established as a division of the High Court pursuant to the powers conferred on the Chief Justice by article 139(3) of the Constitution, 1992. So I ask: Has the court been established in accordance with law as a division of the High Court? My answer is, no. There is no evidence that any enactment has been passed establishing that court. The affidavit evidence furnished by the defendant and his submissions, both written and oral, suggest that the division was purported to have been established by the Honourable Chief Justice in the exercise of his administrative powers.

That, in my opinion, is contrary to law. He purported to be

[p.87] of [2001-2002] 2 GLR 1 acting under article 139(3) of the Constitution which provides as follows: “There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.” This provision should be fairly easy to construe. Those who are not familiar with the law may find it difficult to read and understand. But to the trained lawyer its effect should be obvious. If we read the text carefully and apply the law, we must be able to determine how that provision is to operate. A division of the court may be created only by law and never by administrative direction. The Chief Justice as the administrative head of the judiciary can only recommend to Parliament what divisions he requires, and the number of judges who are to constitute each division, and leave it to Parliament to pass a law establishing the division. The Honourable Attorney-General knows, or ought to have known, that the Chief Justice cannot establish a court by an administrative fiat. Such a court will not have any legal basis and may not be any better than the head of family’s arbitration court. Parliament must pass a law establishing whatever division the Chief Justice requires. The law so passed by Parliament will make all the requisite provisions that will constitute a court of law—for example, provisions for the number of judges who must constitute the court and the court’s areas of substantive or territorial jurisdiction. The division must have its rules of court which only the Rules of Court Committee established under article 157 of the Constitution, 1992 is empowered to make. Article 157(2) of the Constitution, 1992 provides that: “The Rules of Court committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.” A division of the High Court must have its own rules because even though it is still part of the High Court, the normal rules of the High Court may not be suitable or adequate for application in the particular division. It is for such reasons that article 139(3) of the Constitution, 1992 cannot be construed as giving the Chief Justice power to establish a court by the exercise of his administrative powers. I agree with the learned Attorney-General that the Chief Justice can cause a division of the High Court to be established; but I disagree that the Chief Justice all by himself can establish it.

I have looked at exhibit AM1 which the defendant relies on. Everything in it shows that the court is unconstitutional. Exhibit

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AM1 carries the title FAST TRACK DOCKET AND CASE MANAGEMENT; GUIDELINES FOR FAST TRACK COURT. This document has a foreword written by the Hon Chief Justice (in his acting capacity at the time) introducing the reader to the Guidelines. He expressed great concern about the problem of delays in the administration of Justice, and then continued as follows:

“It is against this background that I have caused to be established the Fast Track Division of the High Court—a division which applies modem case management practices and seeks to introduce new judicial administrative mechanisms that facilitate processing and trial of cases.”

There is also a preface to exhibit AM1 under the hands of Justice S A Brobbey and Kwesi Ainuson suggesting they are the authors of the exhibit. The opening sentence reads: “The Fast Track Court is a division of the High Court.”

The question which must be answered is, how was the division established? It is a question the defendant has to answer to show that the Fast Track High Court was established in accordance with law. Whoever thought he was establishing a division of the High Court might have realised that rules, as I have already indicated, will be required to regulated proceedings before the court. They therefore provided “Guidelines” as a substitute for rules of court. I will refer to some of these guidelines briefly. I will break them down under sub-headings for the sake of clarity.

(1) Commencement of action

(a) Fresh Fast Track cases are to be filed only at the Fast Track Registry.

(b) A writ filed at the Fast Track High Court will not automatically be placed on the Fast Track list until approved by His Lordship the Chief Justice.

(c) Before a writ is filed, the plaintiff or his lawyer must fill an application form which will be sent to the Chief Justice to indicate whether he “rejects” or “accepts” the case coming before the Fast Track High Court. The same rules apply if you want a case already pending before the High Court to be transferred to the Fast Track

[p.89] of [2001-2002] 2 GLR 1

High Court.

(2) Court Fees Various levels of fees will be computerised.

(3) Service of documents

(a) Certificate of proof of service of documents shall be effected within 24 hours after service.

(b) There are bailiffs, but it is further provided that the court Manager is empowered to serve documents where the party to be served is in the court room.

(4) Execution

All executions of any kind in Fast Track cases shall be approved and directed by the Chief Registrar of the Court and promptly carried by the Chief Bailiff.

(5) Proceedings in court:

(a) Adjournments are not entertained. If a case is to be adjourned the adjournment shall never exceed 72 hours.

(b) When the trial has commenced, the court will hold counsel to his commitment to continuous trial and proceed without counsel or the witness.

(c) Counsel are to reduce their addresses into writing.

(d) Counsel should reduce into writing all authorities on which he will rely and serve them on his opponent and the court before the start of arguments.

(e) Where counsel relies on Ghanaian authorities, it is imperative that photocopies of the original text be made available to the trial judge and opposing counsel.

(f) Before the start of a trial, counsel will be required to disclose all exhibits to be tendered in the day’s trial to the opponent’s counsel.

(6) Pleadings and procedure:

The Guidelines adopt almost all the High Court civil procedure rules with regard to pleadings but have prescribed its own rules for the handling of interlocutory applications. In addition, even though

[p.90] of [2001-2002] 2 GLR 1 our rules do not fix a time within which to complete a trial, the Guidelines suggest that in the Fast Track High Court a trial may not take more than five weeks. And whereas the High Court Rules require that judgment be given within six weeks after close of the case, the Guidelines say that judgment must be delivered within seven days from the conclusion of counsel’s addresses.

Considering all these, I cannot agree with the learned Attorney-General that the court is properly established under the Constitution, 1992. This is not a court as contemplated by article 139(3) of the Constitution, 1992. There is no enactment establishing the court. There are no rules to regulate the court’s procedure and practice. The judges who are to constitute the court are not known. Every decision is left in the hands of the Chief Justice. He holds the keys to the doors and decides who should go before the throne of Justice. Clearly such a court does not fit into the definition of a court under our Constitution, 1992. It only resurrects in my mind the horrific spectre of the type of equity which John Selden described in 1617 as a “a roguish thing” whose justice he likened to the measure of the Chancellor’s foot.

With the greatest respect, the Chief Justice does not have the power and authority to make rules of court and no officer working under him has any such power on the instructions of the Chief Justice. Indeed, for this court to accept and endorse the Guidelines as rules of court is to bid farewell to the rule of law. For unless and until we have proper rules of law regulating procedure in that court, there will never be true justice administered there. Rules of court must be predetermined as law and published and made available to the public and the legal profession. It must be law in order to command respect and compliance.

My lords, the plaintiff seeks a further declaration that there is no Fast Track High Court with criminal jurisdiction to try him. I have already expressed the opinion that no Fast Track division of the High Court has been established under the Constitution, 1992. But I want to assume that the Fast Track High Court has in fact been established. If I take it that exhibit AM1, the Guidelines, is the law which has created the court, it will describe the jurisdiction of the court. That will assist me in determining whether or not the court has criminal jurisdiction to try the plaintiff. At page one of exhibit AM1, the opening paragraph reads as follows:

[p.91] of [2001-2002] 2 GLR 1

“Cases which are handled in this Division of the High Court are those directly involving:

1. Investors and investment.

2. Banks.

3. Special Commercial and Industrial disputes.

4. Election petitions.

5. Human Rights.

6. Prerogative Writs.

7. National Revenue (of substantial value) and brought by or against CEPS, IRS and other Government Departments or Agencies.

This list will be expanded in the course of time to include other cases.”

Divisions are normally created for the distribution of the workload on the High Court. What the division’s jurisdiction is, is prescribed by the law which constitutes it as a division. Having been given a special jurisdiction carved out of the jurisdiction of the High Court, a division of the court is normally precluded from assuming the general jurisdiction of the High Court unless, perhaps, a statute permits it to exercise the general powers as well. In the instant suit before us, exhibit AM1 shows that the Court’s jurisdiction is purely civil and in respect of commercial and industrial cases. Apart from exhibit AM1, the plaintiff also exhibited the photocopy of what he claimed to be the case docket in respect of his case. That document bears the inscriptions “In the Fast Track Court at Accra—COMMERCIAL and INDUSTRIAL” and refers to the parties as the “plaintiff” and the “defendants.” The evidence before us does not suggest that the court is clothed with jurisdiction in criminal matters; neither is it stated that it is to exercise the jurisdiction conferred in the Guidelines in addition to the general jurisdiction of the High Court. I think Ollennu J (as he then was) was right when he said that jurisdiction cannot be inferred, it must be conferred, otherwise it does not exist: see Quist v Kwantreng [1961] GLR (Part II) 605. It is indicated in the Guidelines that the jurisdiction of the court may be “expanded.” Assuming that exhibit AM1 is the enactment which created the court, then the jurisdiction of the court has not yet been expanded to include criminal jurisdiction.

[p.92] of [2001-2002] 2 GLR 1

The third relief claimed by the plaintiff is a declaration that the criminal summons commanding him in the President’s name to appear before the court is unconstitutional. He says the summons contravenes articles 1(1) and 125(1) of the Constitution, 1992. Article 1(1) of the Constitution, 1992 provides:

“1. (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.”

Article 125(1) of the Constitution, 1992 also provides: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” The argument is that to mount a criminal prosecution in the name of the President is contrary to the provisions of the Constitution, 1992. Clearly, the President is not the Republic of Ghana. He is one very prominent individual citizen of Ghana, but subject to the Constitution, 1992 and all other laws of this country. More significantly, he is the Head of State and also Head of Government—see article 57(1). As Head of Government the executive authority of government vests in him and he must exercise it in accordance with the provisions of the Constitution, 1992—see article 58(1). All executive acts are to be expressed to be taken in his name—see article 58(4). It must follow without argument that if a criminal summons issues at the command of the President the only inescapable conclusion is that it is the executive which is initiating the prosecution. Such act certainly contravenes the Constitution, 1992. It is in breach of article 88(3) of our Constitution, 1992 which provides that: “The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences”, meaning that the power to initiate criminal proceedings does not lie with the President. To do so will amount to usurping the constitutional right of the Attorney-General.

Not only does the summons issuing in the name of the President offend the letter of the Constitution, 1992 but is also offends its spirit as well. Criminal justice is a process which involves all three arms of government. The spirit that is hovering imperceptibly over

[p.93] of [2001-2002] 2 GLR 1 the Constitution, 1992 in this regard is whispering a warning that for the protection of our lives and liberties no one branch of government should be permitted to decide the fate of persons accused of crime. Our laws are therefore so structured that when Parliament defines what conduct amounts to crime, the police and other intelligence agencies, representing the executive, effect the arrest of those who are suspected of crime, and if they are charged and become accused persons, they are tried by the judiciary. The decision to prosecute is left to the discretion of the Attorney-General who, by his office, is the representative of the people and must perform his functions with impartial detachment in the best interest of the whole nation.

I think it is unfortunate that the Hon Attorney-General, having conceded the error in the summons, failed to address its constitutional dimensions. Instead, his argument was that when the plaintiff realised that the summons was an improper summons he should have ignored it and chosen not to appear before the court; and his contention is that since the plaintiff obeyed the summons and appeared before the court only to be confronted with a charge that was properly laid, he cannot be heard to complain. Lega1 ingenuity at its apogee! And he had Blackstone by his side proclaiming to us the old common law position which he knows cannot override the Constitution, 1992. As I ask myself: How many of our citizens could have detected the error in the summons? If they discovered it, how many would have had the effrontery and temerity to ignore the summons with the impunity suggested by the learned Attorney-General? If the plaintiff, Mr. Tsatsu Tsikata, had refused to appear before the court as he was commanded to do because in his view the summons was improper, would not the Attorney-General have a right to ask for bench warrant for his arrest? And if the plaintiff were arrested would he not have been given accommodation in one of our police or prison cells? And if it had happened that way, would the plaintiff not have been wrongfully deprived of his liberty in contravention of the constitutional guarantees of liberty? Therefore, the summons was not a mere aberration, but a serious contravention of the Constitution, 1992 and must be so declared as unconstitutional.

On the whole, I find the plaintiff’s case well grounded and established. The evidence belies the impression prostituted all

[p.94] of [2001-2002] 2 GLR 1 along by those at the helm of affairs, and unwittingly accepted by the good people of Ghana, that the Fast Track High Court has been established as a division of the High Court to prosecute people who committed serious economic crimes against the State. In fact, the mechanisation of the courts is a very laudable programme intended to modernise court procedures and quicken the pace of trials so as to avoid delays in the administration of justice, but that programme should not be abused. Already section 69 of the Courts Act, 1993(Act 459) provides for recording of proceedings. The said section 69(1) provides: “In any proceedings before a court the court may cause oral evidence to be recorded by shorthand, tape recorder or by such other means as the Chief Justice may determine.” That is a purely administrative matter which does not involve the establishment of a court under article 139(3) of the Constitution, 1992. It is also evident from the defendant’s own evidence that a real division was intended to be created within the High Court. But it was never created. The creator’s task was not complete. Haste set in and wrecked the programme.

Perhaps, the only unpleasant lesson of this case is that justice must never be rushed; rather, it must always be meshed with the requirements of the law!

Edward Wiredu CJ. On 28 February 2002 I supported the dismissal of the plaintiff’s writ as disclosing no constitutional issue for determination. My reasons are in the joint effort of the opinion to be read by my brother Acquah JSC.

Acquah JSC. My Lords this opinion is written in support of the detailed reasoning of our noble and respected sister, Sophia Akuffo JSC about to be read. The facts of the case would therefore not be recounted as she had narrated them.

The case of the plaintiff is founded on two legs. First, that the Fast Track High Court is not a court sanctioned by article 126(1) of the Constitution, 1992, and consequently is unconstitutional. Secondly, the summons served on him to appear before the Fast Track High Court is also invalid because it purports to summon him in the name of the President instead of the Republic as demanded by articles 1(1) and 125(1) of the Constitution, 1992.

Both submissions are bereft of any sound legal foundation.

[p.95] of [2001-2002] 2 GLR 1 They are porous and legally untenable. Article 126(1) of the Constitution, 1992 establishes the superior courts of Ghana as the Supreme Court, the Court of Appeal, the High Court and the Regional Tribunals. It is important to observe that while the Regional Tribunals are described in the plural, the Supreme Court, Court of Appeal and the High Court are each described in the singular. The Constitution, 1992 therefore establishes only one Supreme Court, one Court of Appeal and one High Court. But it is common knowledge that we have first, divisions in the Court of Appeal, that is the civil and criminal divisions; and secondly, High Courts set up in all the regional capitals. Thus, we have High Court Accra; High Court, Ho; High Court, Sekondi; High Court, Sunyani, etc etc. In addition, we have other High Courts designated to handle commercial, criminal and other cases. And under the Constitution, 1992, Chief Justice Philip Archer established a number of High Courts not only in the regional capitals but in some district capitals. Some of the High Courts so established are: High Court, Denu; High Court, Nkawkaw; High Court, Hohoe; High Court, Tarkwa; High Court, Mampong; High Court, Goaso; High Court, Agona Swedru; High Court, Akim Oda. How were these High Courts established in the districts? By an Act of Parliament, legal instrument or what? There is no such Act of Parliament or any legal instrument in support of the courts established in the district capitals. Now does the fact that these divisions of the Court of Appeal and the High Court are not mentioned in article 126(1) or any part of the Constitution, 1992, make them unconstitutional? We are sure that the plaintiff would be the first to admit that the divisions of the Court of Appeal and the High Court situate in all these places, including the High Courts in the district capitals and dealing with specific cases, are all constitutional.

Why then the fuss about the Fast Track High Court? Why should the plaintiff contend that the Fast Track High Court alone ought to be inserted in article 126(1) or some part of the Constitution, 1992 before he will recognise it as constitutional? Certainly all these courts are constitutional because in respect of the divisions in the Court of Appeal, the Chief Justice is empowered under article 136(4) of the Constitution, 1992 to set up divisions of that court; and in respect of the High Court article 139(3) of the same Constitution, 1992 empowers the Chief Justice to set up all

[p.96] of [2001-2002] 2 GLR 1 those divisions of that Court. These various divisions of the courts are not listed in article 126(1) of the Constitution, 1992 because it is not article 126(1) which authorises the setting up of the divisions of the superior courts.

Now, it is instructive to note that in the colonial days under the Courts Ordinance, Cap 4, where a Chief Justice had power to establish judicial divisions with the approval of the Governor, the establishment of any such judicial division was required by section 22(3) of the said Courts Ordinance (Cap 4), to be published in the Gazette. But in the Constitution, 1992 no such requirement of publication in the Gazette is imposed on the Chief Justice in articles 136(4) and 139(3) thereof in establishing divisions of the Court of Appeal and the High Court. Indeed, the entire Cap 4 had been repealed by section 156 of the Courts Act, 1960 (CA 9).

Article 139(3) of the Constitution, 1992 reads: “There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.” (The emphasis is mine.) Let’s compare the above provision with article 157(2) of the same Constitution, 1992. It reads: “157(2) The Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice and procedure of all Courts in Ghana.” (The emphasis is mine.) It is clear from these two provisions that while article 127(2) of the Constitution, 1992 prescribes the method by which the Rules of Court Committee should make rules, article 139(3) of the Constitution, 1992 does not prescribe any method by which the Chief Justice may set up divisions in the High Court. He is given the discretion to do so. And article 296(c) which regulates the exercise of discretionary power makes it clear that in the case of the discretion vested in the Chief Justice, he is not, by virtue of the fact that he is a judge, to do so by constitutional instrument or statutory instrument. It reads:

“296. Where in this Constitution or in any other law discretionary power is vested in any person or authority— . . .

(c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power.”

[p.97] of [2001-2002] 2 GLR 1

(The emphasis is mine.)

Thus, the Chief Justice in the exercise of his discretion under article 139(3) of the Constitution, 1992 may adopt any method deemed necessary by him. He can do this in writing or even orally. He can indeed call the chief registrar and instruct him that henceforth all tax cases should be put before High Court 20 and that that court should now be Tax High Court. He can do the same for commercial, family and criminal cases. Or he may by a letter under his hand set up such divisions.

Indeed, the Chief Justice has power not only to set up divisions of the High Court but also has authority under section 38 of the Courts Act, 1993 (Act 459) to determine the sitting places of the Supreme Court, Court of Appeal and the High Court. The section reads:

“38. Subject to the provisions of clause (4) of article 136 of the Constitution, the sittings of the Supreme Court, the Court of Appeal, the High Court or a Regional Tribunal shall be usually held in such places as the Chief Justice may determine, except that the proceedings of any such Court shall not be invalidated by the fact that the sittings of the Court in relation to any proceedings took place in a place other than a place determined under this section.”

(The emphasis is mine.)

At this juncture, let me point out that article 159 of the Constitution, 1992 cannot by any ingenious reasoning be said to be relevant in the setting up of the Fast Track High Court. It is very clear from the unambiguous language of this article that it deals with regulations for the efficient performance of the functions of the Judicial Service and the Judicial Council, and not the Chief Justice’s power of establishing division of Courts. It reads:

“159. The Chief Justice may, acting in accordance with the advice of the Judicial Council and with the approval of the President, by constitutional instrument, make regulations for the efficient performance of the functions of the Judicial Service and the Judicial Council under this Chapter.”

Now, it is extremely important to note that the power of the Chief Justice under article 139(3) of the Constitution, 1992 is only

[p.98] of [2001-2002] 2 GLR 1 to set up divisions in the High Court, and not, in setting up the division, to oust the constitutional jurisdiction of the High Court in the division so set up. If the article intended to give the Chief Justice such extra power, the article would have read: “There shall be in the High Court such divisions with such jurisdiction consisting of such number of justices respectively as the Chief Justice may determine.” (The emphasis is mine.) Since article 139(3) of the Constitution, 1992 did not contain words like “such jurisdiction” and consequently did not empower the Chief Justice to confer any extra jurisdiction on the division he sets up, any division in the High Court established by the Chief Justice continues to be vested with all the constitutional jurisdiction of the High Court. This means that if the Chief Justice after establishing High Court 20 as a Tax High Court with Justice X presiding, later on instructs that a particular divorce case be put before that High Court 20, such an instruction would be perfectly in order, because the Tax High Court being a High Court has jurisdiction to hear divorce suits. The instruction to put the divorce suit before the Tax High Court needs not be in writing, just as the establishment of the division too needs not be in writing.

In the case of the establishment of judicial divisions in the colonial days under Cap 4, as earlier noted, the establishment of any judicial division, together with any subsequent variation, alteration and amendment of a division, were required by section 22(1) and (3) thereof first, to be under the hand of the Chief Justice, and secondly, published in the Gazette. The section reads:

“22. (1) For the purpose of the administration of justice, the Chief Justice, with the approval of the Governor, may by order under his hand provide for the formation of Judicial Divisions throughout the Colony and from time to time may in like manner amend, vary, alter or revoke any such order … (3) Every order of the Chief Justice under this section, and every amendment, variation, alteration, or revocation of any such order shall be published in the Gazette.”

(The emphasis is mine.)

On the other hand, under article 139(3) of the Constitution, 1992, the Chief Justice is not required in the establishment of the

[p.99] of [2001-2002] 2 GLR 1 divisions in the High Court to do so by an order under his hand or cause the establishment to be published in the Gazette. The Chief Justice is indeed not required to set up divisions in the High Court by constitutional instrument, statutory instrument or an amendment of the Constitution. Nor cause any publication to be made in respect of any division he sets up. He is further not required to seek the permission of even the Judicial Council nor any authority before he sets up any division of the Court. It follows that any contention to the effect that the exercise of the Chief Justice discretion under article 139(3) of the Constitution, 1992 should take any particular form would be mischievous and inconsistent with the clear language of articles 139(3) and 296(c) of the Constitution, 1992.

The Fast Track High Court in its present state is a division of the High Court set up by the Chief Justice under article 139(3) of the Constitution, 1992. It is a division by virtue of its reliance on technology in the hearing of cases, in contradistinction to the other High Courts which still rely on manual dexterity. Indeed, in his speech at the launching of his public forum at M Plaza Hotel on 31 July 2001 his Lordship Justice E K Wiredu (then acting Chief Justice) said of the Fast Track High Court in the following words: “The Fast Track Court is the normal High Court with an innovation within the general framework of the proposed automation, reform and modernisation of the Judicial Service initiated by the Legal Sector Reform Programme under the World Bank and the ten year reform programme under the Good Governance Programme of the NLRP/UNDP. I wish to emphasise that there are only two experimental courts in Accra. The majority of our courts are in great need of modem equipment and working tools.”

Certainly the use of such technology does not oust the statutory jurisdiction of the High Court embedded in the Fast Track High Court. Accordingly, the Guidelines relied on by the plaintiff cannot oust the constitutional jurisdiction of the High Court in the Fast Track High Court. It is not the Guidelines which set up the Fast Track High Court. And the fact that criminal cases have not been listed in the Guidelines of the Fast Track High Court does not prevent that court from trying criminal cases. The Fast Track High

[p.100] of [2001-2002] 2 GLR 1

Court as a High Court has jurisdiction in all matters, including criminal ones. And since the plaintiff’s case was a criminal case, same was properly before the court. Indeed, when all the divisions of the High Court become automated, the Fast Track High Court will cease to be a division of the High Court. It is a division in its present experimental stage.

On the whole the fallacy in the plaintiff’s contention stems from the following misconceptions:

“(a) That article 126(1) of the Constitution, 1992 names the various divisions of the High Court and should therefore name the Fast Track High Court.

(b) That a division of the High Court must be set up by a statutory or constitutional instrument or by a constitutional amendment.

(c) That once a division of the High Court is set up, that division loses all the statutory jurisdiction of the High Court except that of the division.”

As demonstrated above, each of these points is patently fallacious.

The other argument about the summons is also a non-starter. For it is trite law that under our criminal legislation a defect in the summons is of no moment. Section 83 of the Criminal Procedure code, 1960 (Act 30) provides: “Any irregularity or defect in the substance or form of a summons or warrant. . . shall not effect the validity of any proceedings at or subsequent to the hearing of the case.. ”. (The emphasis is mine.) In the instant case the plaintiff admitted that when he appeared at the Fast Track High Court, the charge sheet was headed “Republic v Tsatsu Tsikata.” Why then the noise about the summons? Thus the dissenting vote.

Atuguba JSC. The facts of this case have been amply recounted by my sister Sophia Akuffo JSC whose judgment I have had the privilege of reading beforehand. I will therefore repeat them only when necessary.

The plaintiff seeks a “declaration that the summons signed by a justice of appeal served on the plaintiff commanding him in the President’s name to appear in person before this court. . . [below]” is in contravention of articles 1(1) and 125(1) of the Constitution, 1992 The Attorney-General referred us to Blackstone. The net

[p.101] of [2001-2002] 2 GLR 1 result of the Attorney-General’s submission on this issue is that a summons is of no legal significance since the important thing is the presence of the accused in court. There is no doubt that the submission of the Attorney-General has the support of section 83 of the Criminal Procedure Code, 1960 (Act 30) which provides as follows:

“83. (1) Any irregularity or defect in the substance or form of a summons or warrant, and any variance between a summons or warrant and the written complaint, or between a summons or warrant and the evidence adduced at any enquiry or trial on the part of the prosecution against an accused whose attendance has been procured by the summons or warrant, shall not affect the validity of any proceedings at or subsequent to the hearing of the case, but if any variance appears to the Court to be such that the accused has been thereby deceived or misled, the Court may, at the request of the accused, adjourn the hearing of the case to some future date and in the meantime remand the accused or admit him to bail in the manner hereinafter mentioned”

(The emphasis is mine.) I understand this section to be a saving provision designed to validate a trial which ensures upon the presence of the accused procured by a defective summons. In the first place, I wonder whether, despite the inclusion of the word “substance” the words any “irregularity or defect in the substance or form of a summons. . .” can be construed to cure a fundamental defect or irregularity in such a summons. It is trite learning that such similar wording in respect of civil matters has been held not to validate fundamental defects as opposed to mere irregularities or defects.

In any event, I do not think that this provision disentitles the accused from questioning the validity of the summons before he appears for the trial. The plaintiff, to impeach the summons in this case relies on articles 1(1) and 125(1) of the Constitution, 1992. Article 1(1) provides:

“1. (1) The sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the

[p.102] of [2001-2002] 2 GLR 1 limits laid down in this Constitution.”

Article 125(1) of the Constitution, 1992 on the other hand provides: “125. (1) Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” (The emphasis is mine.) If article 1(1) of the Constitution, 1992 were to be given its literal meaning, interesting questions could arise. However, on the principle of generalia specialibus non derogant I should have thought that article 125(1) of the Constitution, 1992 is the special provision which should govern this matter rather than generalia of article 1(1) of the Constitution, 1992. There is no doubt that the summons issued in this case is a step in the administration of justice. Its role is stated in section 60 of Act 30 as follows:

“60. (1) Criminal proceedings may be instituted before a … Court in either of the following ways—

(a) by making a complaint and applying for the issue of either a warrant or a summons . . .”

Even if section 83 of Act 30 were to be given its fullest literal construction as validating all irregularities and defects, whether “in the substance or form” thereof, a summons would still have a role in the institution of criminal proceedings aforesaid; since it would have, whether resorted to defectively or properly, brought the accused before the court for trial. In any case section 72 of Act 30 further gives teeth to a summons thus:

“72. If the accused does not appear at the time and place appointed in and by the summons and his personal attendance has not been dispensed with under section 70, the Court may issue a warrant to apprehend him and cause him to be brought before such Court.”

(The emphasis is mine.) There is therefore no doubt that the summons served on the plaintiff in this case was served in the course of the administration of justice. It was honourably conceded by the Attorney-General that the issuance of the summons in the name of the President is wrong.

I however disagree with the Attorney-General’s submission that [p.103] of [2001-2002] 2 GLR 1 the defect is immaterial, aforesaid. It is plain that this summons ought, in compliance with article 125(1) of the Constitution, 1992, to have been issued in the name of the Republic of Ghana and not the President. Even though at common law and under Act 30, a defect in summons is regarded as immaterial, I do not think that position can be maintained if the Constitution provides otherwise. For example, as Akufo-Addo CJ said in delivering the judgment of the Court in Captan v Minister for Home Affairs (1970) 2 G & G 457 at 458:

“While the sovereign power of a State over aliens is absolute, it is given to any people drawing up a Constitution for their governance to provide for the diminution of their inherent sovereign power in any field covered by that power to an extent desired by them . . .”

(The emphasis is mine.) The effect of the breach is best conveyed by the words of Azu Crabbe CJ in delivering the judgment of the Court in Okorie alias Ozuzu v The Republic [1974] 2 GLR 272 at 282 CA when he said:

“In the opinion of this court, it is irrelevant that an infringement of a constitutional right has not occasioned a miscarriage of justice. Any breach of the provisions of the Constitution carries with it ‘not only illegality, but also impropriety, arbitrariness, dictatorship, that is to say, the breaking of the fundamental law of the land’: see The Proposals of the Constitutional Commission for a Constitution for Ghana, 1968, p.22, para.88.”

See also Republic v High Court, Kumasi; Ex parte Abubakari (No 1) [1998-99] SCGLR 84. However, the court expunged the inadmissible statement obtained in breach of the Constitution, 1992 but sustained the appellant’s conviction which was supported by the rest of the evidence. The final decision in the Okorie case (supra) shows that depending on its nature, a breach of the provision of the Constitution need not be fatal for all purposes.

If the summons is allowed to stand in the name of the President rather than the Republic of Ghana it would infringe the stringent independence of the judiciary as copiously enshrined in articles 125(1) and 127(1) and (2) of the Constitution, 1992. The judiciary

[p.104] of [2001-2002] 2 GLR 1 is required by article 125(1) of the Constitution, 1992 to administer justice in the name of the Republic and cannot contrary to that provision be compelled, albeit unconsciously, to administer the same rather in the name of the President. The judiciary itself cannot waive its independence under articles 125(1) and 127(1) and (2) of the Constitution, 1992 by acquiescing in the administration of justice in the name of the President or other authority or person, rather than the Republic. That independence is a jus publicum and not a jus privatum and therefore as laid down in Tuffuor v Attorney-General [1980] GLR 637, CA, sitting as SC is not open to waiver.

However, in Chokolingo v Attorney-General of Trinidad & Tobago [1981] 1 All ER 244 at 247, PC it is reported that:

“Kelsick JA was of opinion that the proper procedure for dealing with this kind of contempt was by criminal prosecution rather than by the summary procedure that had in fact been adopted by the Law Society . . .

The appellant exercised his right under s 82(1)(c) of the Constitution to appeal to the Judicial Committee of the Privy Council from the decision of the Court of Appeal and by leave of this Board the Attorney-General was substituted for the Law Society as respondent, so that the application under s 6(1) should be properly constituted.”

(The emphasis is mine.) Again in Republic v High Court, Accra; Ex parte Attorney-General (Delta Foods Case) [1998-99] SCGLR 595, the plaintiff sued the Minister for Food and Agriculture rather than the Attorney-General, contrary to article 88(5) of the Constitution, 1992 which provides:

“(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

(The emphasis is mine.) Founding himself on this provision, the Attorney-General applied to this court for certiorari to quash the judgment of the High Court therein. This court unanimously dismissed the said application, holding, as per the headnote:

“(1) the effect of article 88(5) of the Constitution, 1992 by

[p.105] of [2001-2002] 2 GLR 1 directing that the Attorney-General, and no other else, should be named the defendant in all civil proceedings against the State meant that in the instant action by the plaintiffs, the Attorney-General, and not the Minister of Food and Agriculture, ought to have been made the defendant — not to assume liability but as the nominal defendant. The failure to name the Attorney-General as a defendant in a suit where he ought to be so named should not, depending upon the circumstances in each case, be fatal, if the amendment could easily be effected (as in the instant case) by substituting him for the wrong defendant in the exercise of: (i) the court’s supervisory powers under article 132 of the 1992 Constitution and section 5 of the Court’s Act, 1993 (Act 459); (ii) under the court’s general jurisdiction under article 129(4) namely, to exercise all the powers, authority and jurisdiction vested in the court whose judgment or conduct is the subject-matter of the suit before the court; or (iii) in the exercise of the court’s powers in fitting situations and in the interest of justice to amend the record by substituting a new defendant for the one sued. Pearlman ( Veneers) SA (Pty) Ltd v Bernhand Bartels [1954] 3 All ER 659, CA and dictum of Kpegah J (as he then was) in Kuma v Bart-Plange [1989-90] 1 GLR 119 at 128 cited.”

I think that the defect in the summons in this case can and should be cured by an amendment substituting the Republic for the President, therein. It is pertinent to set out an extract from one of the judgments I relied on in that case. In Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 All ER 211 at 218, CA Stephenson LJ said:

“Another objection to the proposed substitution is simply that it is a substitution, not the mere correction of a misnomer, as in Pearlman (Veneers) SA (Pty) Ltd v Bartels ([1954] 3 All ER 659), and a new party never can be, or at least never ought to be, added to a suit after judgment, either under the inherent jurisdiction of the court or under RSC Order 15. I see no reason why the court should not have such jurisdiction to substitute when only by doing so can it do justice. The cases in which such jurisdiction should be

[p.106] of [2001-2002] 2 GLR 1 exercised must be rare, but the peculiar facts of this case make it, in my judgment, one of them. Finally, it is said that we are amending a nullity, something which has never been done, and cannot be done, under our inherent jurisdiction or under the rules. That may be logical, but it is, in my judgment, quite unreal. We are effecting the true intention of all those concerned in this case, as expressed in the consent judgment, to put an end to this litigation—something I should be sorry to think we had no jurisdiction to do.”

(The emphasis is mine.) The provisions of article 125(1) of the Constitution, 1992 relied on by the plaintiff do not say that justice shall be destroyed or not administered, but that it should be administered in the name of the Republic. If the amendment enables this to be done, it thereby effectuates the intention of the Constitution as therein expressed and cannot be faulted.

Even though Act 30 takes such a contemptuous view of a summons that it does not deem it necessary to provide for an amendment thereof, I think this court has an inherent jurisdiction to make or order such an amendment. I also think that this court can order such an amendment under article 126(4) of the Constitution, 1992 which provides:

“(4). In the exercise of the judicial power conferred on the Judiciary by this Constitution or any other law, the Superior Courts may, in relation to any matter within their jurisdiction, issue such orders and directions as may be necessary to ensure the enforcement of any judgment, decree or order of those courts.”

(The emphasis is mine.) The lacuna in Act 30 about the power to amend the summons cannot obstruct the operation of this provision and in any event Act 30, being an existing law, will have to be subjected to article 11(6) of the Constitution, 1992 which provides as follows:

“(6) The existing law shall be construed with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable

[p.107] of [2001-2002] 2 GLR 1 effect to be given to, any changes effected by this Constitution.”

(The emphasis is mine.) I would therefore order that the trial court do amend the summons to stand in the name of the Republic instead of the name of the President. Subject to this amendment, I would dismiss the plaintiff’s claim concerning this summons. That was the similar course unanimously pursued by this court in the Delta Foods case (supra).

I now come to the hornet’s nest. Before I delve into its merits, I must say that I can only deal with such matters as have been raised by the parties in their pleadings, for those constitute the adjudicative province of a court, if it is not to travel ultra fines litis. See Bakuma v Ekor [1972] 1 GLR 133 at 147, CA where Azu Crabbe CJ, quoting from Anisminic v Foreign Compensation Commission [1969] 2 AC 147, HL said:

“Lord Pearce again said in the case at p. 195: ‘Lack of jurisdiction may arise in various ways. There may be absence of those formalities or thing which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction’.”

(The emphasis is mine.) Fundamental issues, such as go to the jurisdiction of a court can of course, suo motu be considered. Sc also where issues are so interconnected with other matters, though not raised by the parties, that they cannot be ignored: see Benneh v The Republic [1974] 2 GLR 47 at 93–94, CA (full bench) where Apaloo JA (as he then was) delivering the majority judgment said:

“It is suggested that N.L.C.D. 253 sinned against the Constitution and was void on that account inasmuch as it prevented unimpeded access to the courts. It is not easy to see on what principle of justice an adverse decision can be arrived at against the defendant on any such view. The

[p.108] of [2001-2002] 2 GLR 1 validity or otherwise of that law was never put in issue. No argument of any sort was addressed to us by the plaintiff on that law. The respondent was not invited to defend the validity of that Decree. The claim which the appellant made to the court below was that the respondent should be restrained from proceeding into execution against him by reason of an alleged judgment based on N.L.C.D. 400. He sought no more than the invalidation of that legislation.

The issues which he himself settled and on which he invited the court’s decision were:

‘(a) Whether or not Decree 400 was valid.

(b) Whether the plaintiff’s action was barred by section 13(3) of the Transitional Provisions.’

These were the issues that were fought both in the High Court and before the ordinary bench of this court. It was indeed only on the issue of the validity of N.L.C.D. 400. that we remitted this matter to ourselves and it was in respect of it that we invited argument. It certainly would come as a surprise to the defendant that one of the grounds on which an adverse decision to him was rested, was the invalidity of N.L.C.D. 253.

For the Court itself to raise this issue and found a conclusion on it, even in part, would hardly conform to our conception of the role of a judge in our adversary system of administering justice as an umpire in a dispute. Such appellate decisions as Oloto v Williams (1944) 10 W.AC.A 23, Dam v Addo [1962] 2 G.L.R. 200, S.C., Odoi v Hammond [1971] 1 G.L.R. 375, C.A., Seraphin v Amua-Sekyi [1971] 2 G.L.R. 132, C.A. and the English decision of Esso Petroleum Co. Ltd. v Southport Corporation [1956] A.C. 218, H.L. counsel a court against founding a conclusion on an issue not raised or canvassed by the parties or pronouncing for a party on a case inconsistent with the one he put up . . . Although the validity of N.L.C.D. 72 was not formally put in issue, since it is said to be in addition to the impugned N.L.C.D. 400, one can see some rationale in considering it. What of N.L.C.D. 253? It’s relevant paragraph, that is 4 merely forbade the Court questioning a finding of a commission established under N.L.C.D. 72 by

[p.109] of [2001-2002] 2 GLR 1 the known prerogative remedies of certiorari, mandamus and prohibition. The case at bar was not that the plaintiff, after the coming into force of this Constitution, applied to the court by any of those remedies to challenge the finding against himself and was met by N.L.C.D. 253. As far as we are aware, he at no time questioned the finding that he had acquired assets unlawfully. So that finding stood against him to the present day. What he complained about was that the law by which the State sought to enforce this finding against him fell foul of the Constitution and was invalid on that account. We think any consideration of the validity or otherwise of N.L.C.D. 253, is wholly irrelevant to this case. In our judgment it would be wrong to found any adverse conclusion against the defendant on it.”

(The emphasis is mine.) It is true that pleadings are generally servants not masters, but in certain situations as demonstrated by this passage, they can be masters.

What then are the issues in this case? The plaintiff himself filed none. In the peculiar circumstances of this case, however, when a consensus to a hearing on the merits, instead of the interlocutory application then pending before this court was adopted as well as the summary adoption of amendments sought by the plaintiff, one can only glean the plaintiff’s issues from his amendment writ and statement of his case. As far as I can gather them they are that:

“(1) The ‘Fast Track Court’ or ‘Fast Track High Court’ is a creature unknown to the Constitution of Ghana.

(2) The said court cannot even be said to be the creation of a division of the High Court.”

These can be culled from paragraphs (2) and (4) and (8) of his amendment statement of case dated 15 February 2002. They are as follows:

“(2) It is the case of the plaintiff that the Constitution of the Republic of Ghana in making provision for the administration of justice does not establish any court known as ‘Fast Track Court.’ Article 125(1) of the Constitution, 1992 provides that: ‘Justice emanates from the people and shall be administered in the name of the

[p.110] of [2001-2002] 2 GLR 1

Republic by the Judiciary which shall be independent and subject only to this Constitution.’ In Article 126(1) it is further provided that:

‘The Judiciary shall consist of— (a) the Superior Courts of Judicature comprising— (i) the Supreme Court;

(ii) the Court of Appeal; and (iii) the High Court and Regional Tribunals.

(b) such lower Courts or tribunals as Parliament may by law establish.’ Nowhere is there provision for a ‘Fast Track Court’ nor has Parliament under Article 126(1)(b) exercised its power to establish any ‘Fast Track Court.’ The Courts Act 1993 Act 495 does not establish a ‘Fast Track Court.’ (3) Nor can the ‘Fast Track Court’ as is currently operating be said to be the creation of a division of the High Court as anticipated under Article 139(3) of the Constitution.

(4) A cause list headed ‘Fast Track Court’ is published separately from the cause lists of the High Court by a ‘Court Manager’, and at the entrance to what were formerly known simply as High Court, there are now distinct notices stating ‘Fast Track Court’. The redenomination of these High Courts is in contravention of the Constitution of the Republic of Ghana.

(8) the Constitution established the High Court as well as Regional Tribunals as part of the Court structure of the Republic of Ghana and empowers Parliament to establish lower Courts. An attempt to denominate the institutionally established Courts in a manner that varies their constitutional designation is a contravention of the Constitutional provisions establishing these Courts and is an affront to the sovereignty of Ghana as provided for in Article 1(1). ‘The sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of Government are to be exercised in the manner and within the limits laid down in this Constitution.”

[p.111] of [2001-2002] 2 GLR 1

Indeed, all the issues and contentions of the plaintiff are based on his central grievance, namely, that the Fast Track Court neither answers to the category of superior courts expressly specified by the Constitution, 1992 nor “such lower courts or tribunals as Parliament may by law establish,” as provided under article 126(1) of the Constitution, 1992. For convenience I will repeat that provision:

“126. (1) The Judiciary shall consist of—

(a) The Superior Courts of Judicature comprising— (i) the Supreme Court;

(ii) the Court of Appeal; and

(iii) the High Court and Regional Tribunals.

(b) such lower courts or tribunals as Parliament may by law establish.”

(The emphasis is mine.) It baffles me, with the greatest respect to the high calibre of the plaintiff and his counsel, as lawyers, that, when Parliament in exercise of its power to create “such lower courts or tribunals” under article 126(b) establishes “lower courts and tribunals” which are designated by it as “circuit” and “community” tribunals, such names are acceptable to the plaintiff and they pass for courts duly established in conformity with the Constitution, 1992; even though such courts bearing such names cannot be found in the Constitution, 1992 but when a court is similarly created pursuant to the provisions of article 139(3) of the same Constitution, 1992 and designated as “Fast Track” or the like, this is so flagrantly unacceptable to the plaintiff that he must go to war over it. The former situation is accepted by the plaintiff in his statement of case as follows:

“Parliament in exercise of its powers under article 126(1)(b) of the Constitution, 1992 has also established circuit and community tribunals under the Courts Act, 1993 (Act 459), sections 40 and 46 and granted them specified criminal jurisdiction. There has been no similar legislation creating any ‘Fast Track Court.”

Is article 139(3) not part of the same Constitution, 1992 as article 126(1)(b)? Are the powers involved in the two articles not of the same nature? Under article 126(1)(b) of the Constitution, 1992 the

[p.112] of [2001-2002] 2 GLR 1 power is to create “such lower courts or tribunals as Parliament may by law establish.” The nature of the courts to be created by Parliament under that provision, apart from the adjective “lower”, is governed by the words “such . . . as.” Under known rules of construction, I will give those words their ordinary dictionary meaning. The word “such,” according to Webster’s Seventh New Collegiate Dictionary means, inter alia, “of a kind or character to be indicated or suggested.” (The emphasis is mine.) The same dictionary defines the word “as”, inter alia, to mean “in accordance with what or the way in which.” (The emphasis is mine.) It is clear from these definitions and the context in which they are used here, that the word “as” is the resultant product of the word “such.” All told, the expressions in this context mean that Parliament under those provisions is free to establish lower courts, of a kind or description, to be determined by it. Even if I were to construe them ejusdem generis the result would be the same.

Similarly, article 139(3) of the Constitution, 1992 provides as follows: “(3) There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.” (The emphasis is mine.) I would unhesitatingly also hold that these provisions mean that the Chief Justice is free to establish in the High Court divisions of such a kind or description as he may deem meet.

The powers under articles 126(1)(b) and 139(3) of the Constitution, 1992 are of course, by necessary implication, subject to whatever restrictions that expressly or by necessary implication the Constitution, 1992 places on them. Thus, though not stated in the Constitution, 1992, Parliament cannot under article 126(1)(b) establish a lower court or tribunal to try criminal cases occurring beyond Ghana’s territorial boundaries, except in certain special situations. Such a court will not be “a court of competent jurisdiction” within article 295(1) of the Constitution, 1992. Nor can the Chief Justice assign a member of the lower courts to be a judge of a division of the High Court created by him, since article 139(1)(c) of the Constitution, 1992 provides as follows:

“139. (1) The High Court shall consist of—

(c) such other Justices of the Superior Court of Judicature as the Chief Justice may, by writing signed by him request to sit as High

[p.113] of [2001-2002] 2 GLR 1

Court Justices for any period.”

The pleadings do not suggest any such excesses.

Going back to the issue of nomenclature, which is central to the plaintiff’s case, it would be seen that in creating circuit and community tribunals in exercise of its powers under article 126(1) of the Constitution, 1992 Parliament does not affix the word “lower” to the actual nomenclature of those courts; it only gives them that status or description in the body of Act 459 in section 39 as follows:

“39. The following are by this Act established as the Lower Courts and Tribunals of Ghana— (a) Circuit Court and Circuit Tribunal;

(b) Community Tribunal; . . .”

Could one validly contend that since “lower courts or tribunals” are covered by the designation. “The Judiciary” in article 126(1) of the Constitution, 1992, the designation of these courts without the addendum “lower” to the actual names given them, falls foul of the Constitution, 1992? As noted before, the plaintiff himself finds them acceptable and in conformity with the Constitution, 1992 without such addenda. The question whether such tribunals are “lower” tribunals as required by the Constitution, 1992 cannot be answered from the names of those tribunals. In proceedings in these circuit and community tribunals no one ever affixes the rank, “lower tribunal” to them, as laid down in article 126(1) of the Constitution, 1992 and yet they are such by operation of law, to be culled from the texts of the Constitution, 1992 and Act 459.

Similarly, whether the Fast Track High Court is a division of the High Court as laid down in article 139(3) of the Constitution, 1992 is referable to the evidence of its establishment by the Chief Justice, not from its bare name. Some evidence is provided by the defendant in his exhibit AM1 attached to his statement of case dated 19 February 2002, which shows that the present Chief Justice, then the Acting Chief Justice, after recitals as to the defect and the mischief to be thereby addressed; stated categorically: “It is against this background that I have caused to be established the Fast Track division of the High Court—a division which applies modern case management practices

[p.114] of [2001-2002] 2 GLR 1 and seeks to introduce new judicial administrative mechanisms that facilitate faster processing and trial of cases.”

Then in a “Preface” by Justice SA Brobbey who, it can be inferred from exhibit AM1, assisted the Chief Justice in establishing the division, stated: “The Fast Track Court is a Division of the High Court. It applies modern records and case management systems which facilitate expeditious delivery of justice.”

(The emphasis is mine). It is therefore clear that the “Fast Track Court”, is synonymous with the “Fast Track Division of the High Court.”

I must remark at this juncture that an administrative head is not required by law to do everything by himself. Thus, in In re Golden Chemical Products Ltd [1976] 3 WLR 1 Brightman J held that the powers of Ministers of State cannot reasonably be expected to be exercised all by themselves personally, and that their subordinates can do so on and on their behalf; by their authorisation or even by the structure of departmental organisation. See also Regina v Skinner [1968] 2 QB 700, CA.

And in Apaloo v Electoral Commission [2001-2002] SCGLR 1, I held that though the Electoral Commission could not perform its duties through unofficial third parties, it could do so through its official agents. Specifically in Pillai (N Rengasamy) v Comptroller of Income Tax [1970] AC 1124 at 1134, PC, Lord Diplock, delivering the judgment of the Privy council stated that the Chief Justice is not expected to do everything by himself and further, that, even though there be no evidence of delegation by him to an officer under him, the maxim omnia praesumuntur rite esse acta applies.

As I have tried to show, ut supra, the Chief Justice, under article 139(3) of the Constitution, 1992 is entitled to create a division of the High Court and denominate it as “Fast Track division of the High Court”, just as Parliament has similarly done under article 126(1)(b) of the Constitution, 1992 with regard to lower courts and tribunals. The plaintiff’s counsel castigated exhibit AM1 as being unsigned and therefore of no evidential value. There is however no doubt that the purported document is of public character. Under section 9 of the Evidence Decree, 1975 (NRCD 323) this court can take judicial notice of certain facts. This is trite learning, so I need not set out its provisions here. As the facts purported to be covered

[p.115] of [2001-2002] 2 GLR 1 by exhibit AM1 are of a public character and in any event well known, especially to judges of this court, they can be judicially noticed; and therefore the question of absence of signature, (over which there seems to be divergence of judicial opinions) is of no consequence. In Carl Zeiss Stiftung v Rayner & Keeler Ltd [1964] 3 WLR 905 at 912-913, CA Lord Denning MR said:

“In Taylor v Barclays [(1882) 2 Simon Rep. 213, 220] Sir I. Shadewell V.C. said ‘I conceive it is the duty of the judge in every Court to take notice of public matters which affect the government of this country.’ So here we ought to take notice of this public matter, namely, whether Her Majesty’s Government recognises or not the German Democratic Republic.”

(The emphasis is mine.) And in New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, Abban JSC (as he then was) held that he was bound to take judicial notice of an editorial in a past publication of the Daily Graphic, because such newspapers are available in the public libraries of Ghana.

In any case if exhibit AM1 were to be rejected by this court it, would not improve the plaintiff’s position. The setting up of the Fast Track Court is an official act and is presumed to be regular, donec probetur in contrarium. Thus in Republic v Judicial Secretary; Ex parte Torto [1979] GLR 444, CA where it was contended that an executive instrument affecting the judiciary was not made, as was apparent from the Judicial Secretary’s letters on the issue on the advice of the Judicial Council, Anin JA (as he then was) (Annan and Charles Crabbe JJA (as they then were) concurring), held at 451-452 as follows: “On the validity of the enactment, I have no doubt whatsoever that the learned judge’s reasoning is sound; and I respectfully endorse it. The relevant maxim is that, omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium (All things are presumed to have been done properly and with due formalities, until it is proved to the contrary). This common law rule means in practice that ‘formal requisites to judicial, official, or public acts, or to titles to property which are good in substance, will be

[p.116] of [2001-2002] 2 GLR 1 rd presumed’: see Halsbury’s Laws of England (3 ed.), Vol. 15 at p. 348, para. 628 and the cases cited under footnote (e). The reasons given for this presumption appear to be the improbability of any person assuming functions unless he were duly appointed and of a public dereliction of duty. As Lindley L.J. put it in Harris v Knight (1890) 15 P.D. 170 at pp. 179-180, C.A.:

‘The maxim, ‘Omnia praesumuntur rite esse acta,’ is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but when the actual observance of all due formalities can only be inferred as a matter of probability. The maxim is not wanted where such observance is proved, nor has it any place where such observance is disproved. The maxim only comes into operation where there is no proof one way or the other; but where it is more probable that what was intended to be done was done as it ought to have been done to render it valid; rather than that it was done in some other manner which would defeat the intention proved to exist, and would render what is proved to have been done of no effect’ . . .

Where the maxim applies — as in this case — the rule is that the evidential or provisional burden of displacing it rests on the party who alleges want of due compliance with the requisite formalities or non-performance of any statutory condition precedent. Such a burden is not discharged by a bare assertion made in an argument; it must be established by relevant evidence. In this case, however, the respondent herein, having raised the matter, failed to adduce or point to any piece of relevant evidence to sustain his allegation of the Supreme Military Council’s omission to seek advice from the Judicial Council before passing LI 1168.”

Except in case of arrest, this common law position has been restated in section 37 of the NRCD 323 as follows: “37.(1) It is presumed that official duty has been regularly performed.” (The

[p.117] of [2001-2002] 2 GLR 1 emphasis is mine.) The plaintiff has led no evidence at all to rebut this presumption.

If the Chief Justice has established a judicial division of the High Court, is it wrong to refer to it as a court? The Constitution, 1992 itself does not shed light on the legal implications arising from the creation of a judicial division. Resort must therefore be made to the common law. As held by the House of Lords in Tower Hamlets London Borough Council v Chetnik Developments Ltd [1988] 1 All ER 961, HL the rules of the common law can, with express or implied modifications be applied to a statutory provision. The Constitution, 1992 itself has promised in article 11(5) and (6) to work in harmony with the existing law, which includes the common law, subject to necessary modifications, adaptations, qualifications and exceptions. In CFAO v Zacca [1972] 1 GLR 366 at 393, CA Sowah JA (as he then was) (Lassey JA (as he then was) concurring)) held concerning the Court of Appeal, that “De jure, the ordinary bench and the full bench may be two divisions of the same court.” This was clarified to conclusion in Patu-Styles v Amoo-Lamptey [1984-86] 2 GLR 644, SC. The Courts (Amendment) Decree, 1972 (NRCD 101), s 3(2)(a) and (b) and the constitution, 1979, Sched 1, s 5, respectively provided that:

“(2) A full bench of the Court of Appeal shall have jurisdiction— (a) to review and determine a decision of the Court of Appeal or any Justice or Division thereof upon a question of law, where such Justice or Division gives leave for such review and determination.

(b) to review and determine any other decision of the Court of Appeal or any Justice or Division thereof, where it appears to a full bench of such Court that there has been a miscarriage of justice.”

Upon these provisions, the Supreme Court held, as per the headnote, as follows:

“(2) For the purpose of review proceedings the two divisions of the Court of Appeal, i.e. the ordinary and full bench, could not be regarded as one court because:

(i) section 5 of the transitional provisions of the

[p.118] of [2001-2002] 2 GLR 1

Constitution, 1979, spoke specifically of review proceedings pending before the full bench and not just the Court of Appeal generally. The lawmakers must be deemed to have known the state of the law when they were writing section 5 of the transitional provisions. They knew the Court of Appeal had two arms, yet they chose to mention expressly one arm, not both arms or the Court of Appeal generally, and

(ii) the review jurisdiction given under section 3(2) of NRCD 101 was not exercisable by the ordinary bench. It was exclusive to the full bench. The two divisions could not therefore be regarded as one and the same court in areas where they clearly had different powers. They were two separate courts.”

(The emphasis is mine.) In Republic v Liberty Press Ltd [1968] GLR 123 at 133–134 Akufo-Addo CJ appeared to have approved the decision in R v Colvin (1957) 3 WALR 89 that a contempt of one judicial division of the High Court could not be punished in another division of the same High Court. In similar situations in England it has been held in Hall v Hall [1963] 2 All ER 140, CA that an order of custody by the Probate, Divorce and Admiralty Division could be superseded by a custody order of the Chancery Division which had made a wardship order concerning the same child.

From all this, I conclude that the Fast Track Division, having been specially established by the Chief Justice with the special jurisdiction to try cases using fast track procedures is also a court in law; though it is still part of the general, if I may so put it, High Court. It is therefore not wrong to call it “Fast Track Court.” Since it is part of the High Court, it can also correctly be called “The Fast Track High Court.” This court looks at substance and not form in ascertaining the effect of a constitutional provision. If the Fast Track Court, however described, is in fact referable to that same judicial division of the High Court established by the Chief Justice as the Fast Track Division of the High Court, then variations in nomenclature would be of no avail. Thus in Osman v Tedam (1970) 2 G & G 466 the Court of Appeal had to solve a constitutional puzzle in which a statutory provision sought to disqualify

[p.119] of [2001-2002] 2 GLR 1 members of a “Regional Executive Committee” of the Convention People’s Party whereas under the constitution of that Party its executive body at the regional level was designated “Regional Steering committee.” The court held that notwithstanding the variance in nomenclature, the two expressions referred to one and the same body and therefore the defendant was disqualified. At 469 Archer JA (as he then was) said:

“The draftsman has used the expression Regional Executive Committee instead of Regional Steering Committee to make it clear that the administrative or executive body of the party at the regional level was what he meant. Moreover, in the Constitution of the party, there is mention of National, Regional, District or Branch Executives. But the party chose to christen the Regional Executive Committee as the Regional Steering Committee. The crux of the matter is what is the body at the regional level which can be identified as the ‘Regional Executive Committee.’ The answer must be the Regional Steering Committee. Otherwise, nonsense would be made of the expression ‘Regional Executive Committee’ in N.L.C.D. s 345 and 347. Did the legislature intend a non existent body when it mentioned the Regional Executive Committee?

Surely, that cannot be the case and it is the duty of this Court to find out whether such a body existed or to identify the body and to give effect to the Decrees.”

(The emphasis is mine.) Then later he stressed this point as follows:

“Unfortunately, it seems in this case that the expression ‘Regional Executive Committee’ is not defined in the Decrees. But it is the duty of the Court to identify that body and the exercise of identification can be successfully carried out by scrutinising the Constitution of the dissolved Convention People’s Party.”

He concluded thus:

“When one reads the whole of the Convention People’s Party Constitution together with the two Decrees 345 and 347, it

[p.120] of [2001-2002] 2 GLR 1 cannot be said that the draftsman made a mistake . . . Here is a remarkable example of how any application of the literal or ordinary rule of interpretation will make N.L.C.D. 345 and 347 ineffective. It seems that if the literal rule will render the Decrees inoperative then some other rule of interpretation should be applied. As the main intention and object on N.L.C.D. 345 and 347 were to disqualify members of the Regional Executive Committee, then a construction should be put on the expression ‘Regional Executive Committee’ so as to fulfil the intention and the objects of the Decrees.”

(The emphasis is mine.) Similarly, this court and its predecessors have consistently held that no matter the form in which a suit is couched, if its real substance shows that it is a suit relating to some matter over which this court has no jurisdiction, the form will not prevail: see Tait v Ghana Airways Corporation (1970) 2 G & G 527, Yiadom I v Amaniampong [1981] GLR 3 and Nsiah v Amankwaah [1998-99] SCGLR 132. These principles also apply to the interpretation of documents.

In the face of all this, I cannot see the substance in the extensive indulgence in, if I may say so without disrespect, arid, puritantical and metaphysical dialectics concerning the nomenclature of the Fast Track Court.

The plaintiff also complains in his paragraph (4) as follows:

“A cause list headed ‘Fast Track Court’ is published separately from the cause lists of the High Court by a ‘Court Manager,’ and at the entrance to what were formerly known simply as High Court, there are now distinct notices stating ‘Fast Track Court.’ The re-denomination of these High Courts is in contravention of the Constitution f the Republic of Ghana.”

(The emphasis is mine.) It is clear that such court managers cannot fall into the category of officers called judicial officers under articles 148 and 161 of the Constitution, 1992. Their appointments, however, are covered by article 158 of the Constitution, 1992 which provides as follows:

“158 (1) The appointment of officers and employees of the

[p.121] of [2001-2002] 2 GLR 1

Courts other than those expressly provided for by other provisions of this Constitution, shall be made by the Chief Justice or other Justice or other officer of the Court as the Chief Justice may direct in writing.”

(The emphasis is mine.) This power is meant to be exercised toties quoties necesse sit and now necesse est and it has been exercised, and cannot be faulted.

Having established the Fast Track Division of the High Court, the Chief Justice has power to do all those things that are incidental to the creation of that court. These obviously will include whatever it requires to equip it to make it operational. Hence article 297(c) of the Constitution, 1992 provides as follows:

“(c) where a power is given to a person or authority to do or enforce the doing of an act or a thing, all such powers shall be deemed to be also given as are necessary to enable that person or authority to do or enforce the doing of the act or thing.”

(The emphasis is mine.) In the past, as necessity dictated, territorial and substantive subject matter judicial divisions such as Land Courts were created.

It is clear that for the first time in our national and judicial history, in response to the need to update the trial facilities and procedures of the courts as far as modem technology can permit, the Chief Justice (then in an acting capacity) has created a division of the High Court of Justice which is specially procedural in nature .It is a division, as stated earlier by the then acting Chief Justice. “which applies modern case management practice and seeks to introduce new judicial administrative mechanisms that facilitate faster processing and trial of cases.” It is clear from this that since the Fast Track Division or Court is solely procedural as to its special jurisdiction or area of operation, its substantive jurisdiction is wholly preserved both as to civil and criminal matters, and more, under article 140 of the Constitution, 1992. It cannot therefore be said that it lacks either of them. The Guidelines for its operations do not fetter it: see Youhana v Abboud [1974] 2 GLR 201 at 210, CA where Apaloo JA (as he then was), commenting on the then choice of law rules, said “In any case, I think since these rules are

[p.122] of [2001-2002] 2 GLR 1 only to guide us I do not consider that they should be interpreted as compulsive.” (The emphasis is mine.) And Archer JA (as he then was) also said at 218, quoting from Bennion, “This wording is intended to show that the rules are laying down principles rather than rigid instructions.” (The emphasis is mine.) They can however be adopted and applied by the Fast Track Court in addition to the normal procedure rules either in civil or criminal matters. The Fast Track Guidelines indicate a rough list of cases which may be given preference, and although they are mostly civil in nature there is an indication therein that the list could be expanded; see p 2 where it is stated “This list will be expanded in the course of time to include other cases” and p 19 accordingly has procedures for criminal trials including indictments.

The creation of the Fast Track Division necessitates the making of rules by the Rules of Court Committee, to fit its enhanced procedures, under article 157 of the Constitution, 1992. In the interim that no such rules have as yet been made, the known rule both in civil subject to Order 74 of LN 140A, and criminal matters is to adopt the nearest existing or other convenient rules (including in this case, the Guidelines): see Darko v Amoah [1989-90] 2 GLR 214, SC; A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177, CA; Re Election of First President; Appiah v Attorney-General (1970) 2 G & G 530, CA and Daswani v Commissioner of Police (No 2) [1964] GLR 54. If there be friction between any existing law and the new order brought about by the creation of the new judicial division the Constitution, 1992 requires, as aforementioned, its modifications, adaptations and qualifications and exceptions necessary to bring it into conformity with the provisions of the Constitution, 1992 or otherwise to give effect to, or enable effect to be given to, any changes effected by the Constitution, 1992: see article 11(5) and (6) of the Constitution, 1992 aforesaid. It is the existing law which must bow to the Constitution, 1992 and any changes its operation may entail; not that the Constitution, 1992 should bow to the existing law. The power of establishing judicial divisions in Ghana under article 139(3) is different from its counterparts in past legislation in Ghana, such as the Courts Ordinance Cap 4 or the Supreme Court of Judicature (Consolidation) Act 1925 of England, and extreme care must be taken in relating them to this case.

[p.123] of [2001-2002] 2 GLR 1

To conclude, I can see no substance in the plaintiff’s case about the validity of the establishment of the Fast Track Division of the High Court of Ghana and I would dismiss the same.

Akuffo JSC. My lords, on 28 February 2002 this court, by a majority of five to four, granted the plaintiff the reliefs he sought by his writ herein. However, the reasons for so doing were reserved to today. I dissented from the decision and my reasons for doing so are as follows:

The brief background of this case is that, according to the plaintiff, on 7 February 2002, two police officers notified him that the defendant had discontinued certain criminal proceedings that had been instituted against him before the Circuit Tribunal, Accra. He was further informed that, instead, he was to appear before the “Fast Track Court” the following day. On 11 February 2002 the plaintiff filed a writ invoking the original jurisdiction of this Court under article 2 of the Constitution, 1992. Subsequently, according to the plaintiff, on 11 February 2002, the same policemen, once again, came to his residence to serve on him a summons to appear before the Fast Track Court. The summons, signed by a justice of the Court of Appeal, commanded the plaintiff “in the President’s name to appear before this Court. . .” The plaintiff then amended his writ and claims.

By his writ herein (as amended with the leave of the court) the plaintiff claimed the following reliefs:

“(1) A declaration that there is no ‘Fast Track Court’ with jurisdiction to try criminal cases established under the Constitution of the Republic of Ghana, and there is therefore no constitutional foundation for the plaintiff to be prosecuted before such court.

(2) A declaration that the oral demands by agents of the defendant to the plaintiff to appear before a ‘Fast Track Court’ when no such court for trial is provided for in the Constitution of the Republic of Ghana, is an infringement of articles 125 and 126 of the Constitution establishing the judiciary.

(3) An injunction against the defendant and their agents restraining them from seeking to proceed with a trial of the plaintiff before the purported ‘Fast Track

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Court.’ (4) A declaration that the summons signed by a justice of appeal commanding him ‘in the President’s name to appear in person before this Court . . .’ is in contravention of articles 1(1) and 125(1) of the Constitution.

(5) A declaration that there is no ‘Fast Track High Court’ established under the Constitution and consequently any summons to appear before such a ‘court’ is null and void.”

Since this is an action instituted pursuant to article 2(1) to invoke the original jurisdiction of the Court, there is the need to make a determination of whether or not any of these claims properly arise under the article. If they do not, then we would have no jurisdiction to make any such declarations. Article 2(1) provides that:

“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.”

(The emphasis is mine.) We have, in this court, previously made it quite clear that unless a plaintiff is able to demonstrate the manner in which a provision of the Constitution, 1992 has been contravened or the factors at the core of his complaint are inconsistent with a provision of the Constitution, 1992, we cannot exercise our jurisdiction under this article: see NDC v Electoral Commission of Ghana, Writ No 6/2001, unreported Supreme Court judgment dated 14 June 2001 and Amidu v Electoral Commission [2001-2002] 1 GLR 457, SC. It was, therefore, incumbent upon the plaintiff herein to show that a particular provision of the Constitution, 1992 has been contravened or that a specified thing is inconsistent with that or any other particular provision, and then

[p.125] of [2001-2002] 2 GLR 1 demonstrate the manner in which such contravention or inconsistency has occurred. This the plaintiff has dismally failed to do and in my view, none of the reliefs claimed by him properly arise under article 2 of the Constitution, 1992.

Although it might appear from certain portions of the plaintiff’s pleadings and his counsel’s submissions that the challenge was only aimed at the constitutionality of the criminal jurisdiction of the Fast Track High Court, it is clear from the totality of the case made by the plaintiff and, in particular, the relief claimed in paragraph (5) of the writ, that he was challenging the very existence of the said court and it is from that angle that I have chosen to deal with this matter.

From the pleadings (see in, particular, paragraphs (2), (3), (7), (8), (10), (11), (12), (13)–(15) and (18) of the plaintiff’s statement of case and paragraphs (14)–(16), (13) and (27) of the plaintiff’s affidavit verifying facts) and the oral submissions made before this court on 26 February 2002 by E V. O Dankwa, counsel for the plaintiff, the essence of the plaintiff’s case is that:

“(a) Since the Constitution, 1992 contains no provision establishing a Fast Track High Court and the existing courts preserved by section 3(1) of the transitional provisions did not include such a court, and Parliament has not exercised its powers under article 126(1)(b) of the Constitution, 1992 to establish any such court nor can it be said that such a court has been set up as a division of the High Court pursuant to article 139(3) of the Constitution, 1992, there is no properly, legally or constitutionally established court known as the Fast Track High Court.

(b) The Constitution, 1992 only makes provision for a High Court and the denomination or designation of any court as the Fast Track High Court or Fast Track Court, with a separate cause list headed as such and issued by a court manager, a separate registry and a courtroom labelled as such, is an affront to the sovereignty of the people of Ghana and in contravention of the Constitution, 1992 and not even the objective of accelerating the adjudication process warrants any re-denomination of any court from that which has been denominated by the Constitution, 1992.

[p.126] of [2001-2002] 2 GLR 1

(c) The creation of any new court operating with the same powers as the High Court requires a constitutional amendment and there has been no such amendment. Therefore, any proceedings “before a forum not recognised under the Constitution” are null and void.

(d) Particularly in respect of criminal proceedings, there is no room for doubt or ambiguity as to the designation of the court before which an accused person is being brought and such ambiguity can be avoided only by a strict adherence to the designations set out in the Constitution, 1992.

(e) Since under article 1(1) of the Constitution, 1992 the sovereignty of Ghana resides in the people and under article 125(1) of the Constitution, 1992 justice is to be administered in the name of the Republic, a summons issued in the name of the President is in contravention of these provisions and, therefore, null and void and cannot effectively, legally or constitutionally initiate criminal proceedings against the plaintiff, or any person for that matter.

(f) Proceedings before the ‘purported’ Fast Track High Court undermine the administration of justice and the constitutional order of Ghana.

(g) Consequently, on a true and proper interpretation of articles 125, 126 and 139 of the Constitution, 1992, any attempt to launch prosecution in an ‘unconstitutional forum’ must be prevented.”

The defendant’s case, as I discern from the statement of case and oral submissions of the Hon Attorney-General, Nana Akufo-Addo, is that:

“(a) In making provision for the administration of justice the Constitution, 1992, in article 139(3) also made provision for the creation or establishment of such divisions of the High Court as the Chief Justice shall determine.

(b) The Fast Track High Court is nothing more than a division of the High Court created by the Chief Justice pursuant to his powers under article 139(3) of the

[p.127] of [2001-2002] 2 GLR 1

Constitution, 1992 as re-echoed in section 14(3) of the Courts Act, 1993 (Act 459). It has the same composition, powers and jurisdiction as the High Court and is subject to the same rules of procedure.

Its only distinguishing feature is that it is equipped with technological devices, and is guided by docket and case management guidelines which foster speedy disposal of cases; hence its name.

(c) Section 69 of Act 459 envisages the use of such mechanical means for the generation and storage of records of court proceedings as the Chief Justice may determine.

(d) The Constitution, 1992 has not been crafted to contain or stipulated what names any divisions that may be created under article 139(3) must bear. Therefore, the current denomination of the computerised division of the High Court as the Fast Track High Court is constitutional and consequently, it is a court of competent jurisdiction and any prosecution therein is constitutional.

(e) Admittedly, the command appearing on the face of the summons requiring the plaintiff, ‘in the name of the President’ to appear before the court was erroneous, however, the defendant is not responsible for that error and, in any event, the error is one of form rather than substance.

(f) In law an irregularity on the face a criminal summons to appear before a court does not affect the validity of the proceedings in the court.”

In my view, three core issues arise from the suit herein, the determination of which will, substantively, dispose of the plaintiff’s claims herein, although it needs to be appreciated that running through this entire case, are also issues of effective institutional management. The core issues are:

(a) whether or not, the existence of the Fast Track High Court is inconsistent with or in contravention of any provision of the Constitution, 1992.

(b) whether or not trial of criminal proceedings at the Fast

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Track High Court is inconsistent with or in contravention of any provision of the Constitution, 1992 and

(c) whether or not on a true and proper interpretation of the Constitution, 1992, particularly article 1(1) and 125(1) a summons commanding a person to appear in court ‘in the name of the President’ is inconsistent with or in contravention of the Constitution, 1992.

On the first issue, there is no doubt, whatsoever, in my mind that the court known as the Fast Track Court or the Fast Track High Court is a division of the High Court and, as such, a court of competent jurisdiction whose existence is sanctioned by the Constitution, 1992. Indeed, after the most critical scrutiny of the plaintiff’s pleadings and the most thorough examination of the Constitution, 1992, I still cannot fathom any rational basis for the challenge the plaintiff has mounted against the constitutionality of the court and it appears to me that the plaintiff’s concerns relate to nomenclature and matters of management procedures, rather than issues of constitutional substance. This is evident from the fact that the plaintiff’s main challenge against the Fast Track High Court is founded on the contention that no such court is expressly mentioned in article 126 or any other part of the Constitution, 1992. However, article 2 of the Constitution, 1992 requires that there be a provision, which the plaintiff seeks to enforce. So in this case, what provision is he seeking to enforce, a non-existent one?

Article 126(1) of the Constitution, 1992 states that:

“126 (1) The Judiciary shall consist of—

(a) the Superior Courts of Judicature comprising— (i) the Supreme Court;

(ii) the Court of Appeal; and

(iii) the High Court and Regional Tribunals.

(b) such lower courts or tribunals as Parliament may by law establish.”

As is glaringly evident from this provision, the Constitution, 1992 makes no attempt to stipulate the designation or nomenclature of any divisions, units or branches that may be set up within any of these courts or tribunals. Now, in the case of the Court of Appeal, it can be seen that although this provision speaks of a singular

[p.129] of [2001-2002] 2 GLR 1 currently two divisions of the Court of Appeal, criminal and civil and indeed, measures are far advanced to locate two new appellate venues in Kumasi, as part of judiciary’s efforts to bring justice closer to the people and thereby minimise the wastage and inconvenience to the public entailed in the present arrangement whereby every case on appeal, must of necessity be heard in Accra. It can also be seen that the provision refers to the High Court in singular terms, although, as is common knowledge, within the general precincts of what is popularly referred to as ‘the Accra Courts’ there are no less than thirteen courtrooms, each functioning as the High Court. The High Court, in fact, functions in every region of Ghana but from the juridical standpoint, there is only one High Court in Ghana. From the time the Constitution, 1992 came into effect on 7 January 1993 a number of new venues have been created that function as part of the High Court, which is itself a component part of a single Ghanaian superior court of judicature. But then, it seems to be part of the Plaintiff’s case that, by virtue of section 3 of the transitional provisions of to the Constitution, 1992, the only legitimate superior courts in Ghana are those that were in existence before the coming into force of the Constitution, 1992 and no new courts may be set up without a constitutional amendment. Is this a true interpretation of the transitional provisions? I think not.

Section 3 of the transitional provisions to the Constitution, 1992 read as follows:

“3. (1) The Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of this Constitution shall be deemed to have been established under this Constitution and shall perform the functions of the Supreme Court, the Court of Appeal and the High Court specified respectively in Chapter 11 of this Constitution.

(2) All proceedings pending before any court referred to in subsection (1) of this section immediately before the coming into force of this Constitution may be proceeded with and completed in that court notwithstanding anything in this Constitution.”

The sole purpose of section 3 of the transitional provisions to the

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Constitution, 1992 is quite clear; it simply serves as a device of convenience to assure that the coming into force of the Constitution, 1992 (the supreme law of Ghana) would not create a hiatus in the administration of justice. This is the same purpose served by sections 1(1) and 2(1) of the transitional provisions to the Constitution, 1992 in respect of the first President and members of the first Parliament of Ghana who were, in reality, elected before the Constitution, 1992 came into legal effect and who, without such a saving device, could not have been considered legitimate under the relevant dictates of the Constitution, 1992 without undergoing another election: see Tuffuor v Attorney-General [1980] GLR 637, CA (sitting as SC). Consequently, neither article 126 nor section 3 of the transitional provisions to the Constitution, 1992, whether by themselves or in conjunction, can by any stretch of the imagination be interpreted to circumscribe what courts may constitutionally exist within the High Court.

Furthermore, it is my respectful view that the absence of an express provision in the Constitution, 1992 prescribing the doing or existence of any particular act or thing cannot be interpreted or construed as a proscription of the doing or existence of the act or thing, so long as such act or thing is not against the spirit of the Constitution, 1992. On the contrary, anything not expressly proscribed by the Constitution, 1992 is presumed to be permissible, unless otherwise demonstrated. This only stands to reason and it is abstruse and puerile to accept the plaintiff’s stance that the Fast Track Court or Fast Track High Court (call it what you will) is unconstitutional because it is not specifically mentioned in the Constitution. Such acceptance is not only based on a legal fallacy but it is also dangerous and can only lead to absurdity and the stultification of the organic dynamism that must inform constitutional development. Indeed, the acceptance of such a proposition is likely to open the floodgates for all manner of spurious and facetious writs challenging all manner of things and institutions simply because they have not been specifically provided for or referred to in the Constitution, 1992.

Our Constitution, 1992 like any written constitution, is not designed to function or serve as an all-encompassing recipe book of compendium embodying the entire do’s and don’ts in national governance or existence. Accordingly, as the learned Sowah JSC

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(as he then was) exhorted in Tuffuor v Attorney-General (supra) at 647:

“Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development.”

And as my esteemed brother Acquah JSC expressed it in National Media Commission v Attorney-General [2000] SCGLR 1 at 11:

“. . . it is important to remind ourselves that we are dealing with our national Constitution, not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers in them. It gives certain rights to persons as well as bodies of persons, and imposes obligations as much as it confers privileges and powers. All these duties, obligations, powers, privileges and rights must be exercised and enforced not only in accordance with the letter, but also with the spirit, of the Constitution. Accordingly, in interpreting the Constitution, care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework.”

In this case, however, what is at stake is a specific provision of the Constitution, 1992 in article 139(3), which the plaintiff would wish us to ignore in its entirety, in favour a contorted construction of article 126(1) of the Constitution, 1992 and a skewed interpretation of section 3(1) of the transitional provisions of the Constitution, 1992. This we cannot do without doing injury to the cohesive framework of the Constitution, 1992.

Thus, the mere fact that the Constitution, 1992 makes no mention of a Fast Track Court cannot be interpreted to mean that no such court (or any other court by whatever name) may be established as a division of any of the courts established under article 126(1) of the Constitution, 1992 especially where, as in the present circumstances, the establishment of a division in such court is sanctioned by express provisions of the Constitution, 1992. By

[p.132] of [2001-2002] 2 GLR 1 virtue of article 125(4) of the Constitution, 1992 the Chief Justice is the head of the judiciary and, as such, responsible for the administration and supervision of the judiciary. In pursuance of this function, the establishment of divisions in the Court of Appeal and the High Court is the preserve of the Chief Justice specifically conferred by articles 136(4) (in the case of the Court of Appeal) and 139(3) (in the case of the High Court) of the Constitution, 1992. Not even Parliament has any role to play in the matter, since by the terms of article 126(1)(b), its powers to establish courts is limited to lower courts and tribunals. Article 139(3) of the Constitution, 1992 reads as follows: “There shall be in the High Court such divisions consisting of such number of Justices respectively as the Chief Justice may determine.” The clarity of language and intent is such that one would reasonably presume that it needs no further expatiation and it is no surprise that the language of these constitutional provisions is duplicated, word for word, in Act 459, in sections 10(4) and 14(3) respectively. The simple import of these provisions is that the Chief Justice has the discretion to set up divisions in the High Court (and the Court of Appeal). What these articles confer is an administrative discretion. It will also be observed that neither of the aforesaid provisions of the Constitution, 1992 prescribe any particular nomenclature, description, or designation that any division thus established must bear. Nor do they specify the particular method by which the Chief Justice may exercise the discretion thus conferred. In my humble opinion, this silence on the part of the Constitution, 1992 is deliberate and enables the Chief Justice to exercise his discretion in the matter by administrative directives. I am fortified in this view by the fact that, elsewhere in the Constitution, 1992, whenever a particular mode of action is required of the Chief Justice in exercise of a discretion or power vested in him, it is expressly prescribed. Thus, for example, in article 144(4) of the Constitution, 1992 the exercise of the power of the Chief Justice to appoint panel members of Regional Tribunals (other than the chairmen thereof) specifically requires prior consultation with the requisite Regional Co-ordinating Council and the advice of the Judicial Council. Likewise, in article 148 of the Constitution, 1992, although the power to appoint judicial officers is vested in the Chief Justice, he can only exercise it on the advice of the Judicial Council and with

[p.133] of [2001-2002] 2 GLR 1 the approval of the President. Also, by virtue of article 159, where the Chief Justice makes regulations for the efficient administration of the Judicial Service and the exercise of the functions of the Judicial Council, he must do so on the advise of the Judicial Council and by way of constitutional instruments. See also articles 151(1) and 152(1)(a) of the Constitution, 1992 for other examples relative to the exercise of certain powers and discretions by the Chief Justice.

Now, although in paragraph (3) of his statement of case the plaintiff avers that it cannot be said that the Fast Track High Court “as is currently operating” is the creation of a division of the High Court as anticipated under article 139(3) of the Constitution, 1992 the purport of this averment is, to say the least, quite obscure. Yet nowhere in his pleadings or his counsel’s submissions was any effort made to furnish any cogent facts or legal arguments to bolster such an averment and he failed to demonstrate what else had been anticipated by the provisions of that article beyond the clear words used therein. All that he says in paragraph (4) of his statement is that:

“A cause list headed ‘Fast Track Court’ is published separately from the cause lists of the High Court by ‘a Court Manager,’ and at the entrance to what were formerly known simply as High Court, there are now distinct notices stating ‘Fast Track Court.’”

It is not clear to me whether or not this paragraph is intended to strengthen the aforesaid averment. If so, it fails. These are mere matters of labels, designations and management details which have nothing to do with any particular provision of the Constitution, 1992.

The need for a separate process line for the Fast Track High Court is amply explained in exhibit AM1, entitled “Fast Track and Docket Management Guidelines For Fast Track Court” (hereinafter referred to as the Guidelines), annexed to the defendant’s affidavit verifying facts. It is evident from the Guidelines that this court is, essentially, a pilot project to test the efficacy of the application of electronic tools (Information Technology or ‘IT’ for short) in record management and adjudication, as well as to demonstrate the

[p.134] of [2001-2002] 2 GLR 1 effectiveness of good case and trial management through a stricter application of the existing rules of procedure, in the reduction of delay and enhancement of accuracy in the judicial process. It is also evident from the guidelines that the ultimate objective of the project is to expand and introduce this automated system throughout the entire system of courts in the country, as part of a broader programme to reform and modernise the Judicial Service. This is a salutary objective whose time is long overdue because the ends of justice are better served when its delivery is timely and founded on accuracy and, indeed, the judiciary is bound to take advantage of the cost and time savings that technology makes possible. Otherwise, eventually, the point will be reached when it might well be a denial of due process for courts to fail to incorporate in its processes the benefits of readily available technology.

It is trite knowledge that there are teething problems involved in the introduction of IT into any institution. This is all the more so where the institution is an ancient and tradition-bound one, and no prudent institution can or should embark on the introduction of IT into its processes with a “big bang.” Rather, in every jurisdiction (or institution) that has successfully introduced IT into its operations, the process has been a planned and phased one, commencing with a handful of courtrooms. This makes perfect sense and affords a safe environment within which to fine-tune the novel operations before applying them across the board. Moreover, as anyone with the most cursory knowledge of process automaton is aware, the introduction of IT, where it is intended to encompass, in a comprehensive fashion, the entire system or mode of operations, necessarily has an impact on established work processes and these have to be adjusted so as to enhance and optimise the efficacy of the new devises and systems. As is evident from the guidelines, the project encompasses not only the automation of courtroom processes, but also the registry and docket management elements of the judicial process. How can a radically new (radical and new to the Ghanaian judicial system) technology be introduced into a process and all its parameters (including flow and software design) tested without the creation of a separate process line, if the institution is to avoid start-up confusion? And how does an institution test a new process line without operational guidelines

[p.135] of [2001-2002] 2 GLR 1 and the establishment of administrative avenues for monitoring and evaluation? It is clear that, the avenue the Chief Justice chose for the effective management of these necessary introductory activities was the establishment of a division in the High Court within which to test and refine the new processes. This was an administrative action sanctioned by the Constitution, 1992 in article 139(3). Therefore, the Fast Track Court is not a court purporting to exercise the powers of the High Court, it is part of the High Court.

My lords, it is also my humble opinion that the fact that access to the Fast Track High Court is limited can also not be a justification for declaring the existence of the court unconstitutional. As I have already stated, the court is, in reality, a pilot project and it would, therefore, not be prudent to open it up, on inception, to all comers, which, bearing in mind the current snail pace of proceedings in most trial courts, would result in a flood of petitions from litigants for their cases to be placed in the automated court, thus making the project difficult to manage. Nor can the fact that, besides High Court judges, many of the judges functioning in the court are members of the Court of Appeal justify any conclusion that the Fast Track High Court is a special court, since under article 139(1)(c) of the Constitution, 1992 the High Court consists of, inter alia: “such other Justices of the Superior Court of Judicature as the Chief Justice may, by writing signed by him, request to sit as High Court Justices for any period.” The plaintiff produced no evidence of any instance where any appeal court judge, sitting in the Fast Track High Court, did so without the requisite authorisation.

As has already been pointed out above, the other salient feature of the Fast Track High Court, evident from the guidelines, is effective case and trial management. One of the cardinal duties of the judiciary is to ensure prompt and cost effective resolution of matters before the courts; and effective case and trial management is nothing more than the application of the rules of procedure with fairness and commonsense to achieve the goal of securing just, speedy and cost effective determination of legal proceedings. Thus, the guidelines enjoin parties and the judge to observe a rigid and strict adherence to the time schedules stipulated by the rules of procedure; and the use of adjournments and inordinate interlocutory applications, which normally cause needless delays, are expressly discouraged. The most superficial analysis of the High Court (Civil

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Procedure) Rules, 1954 (LN 140A) and the Criminal Procedure Code, 1960 (Act 30) (both of which are for ease of reference referred to hereinafter as the “rules”) will show that the strictures of the Guidelines are no departure from the provisions of these rules, which are essentially geared to assure just and timely disposal of all cases. All that the Guidelines do is to reinforce and place special emphasis on some of the salient efficiency tools available under the rules, taking into account the obvious fact that, indeed, it is the general neglect of these existing efficiency rules that have, to a large extent, resulted in the long delays in the disposal of cases and the huge backlog that have come to characterise the Ghanaian judicial system and brought the judiciary into disrepute. Quite clearly, the Guidelines are not a substitute for the rules nor do they constitute a special set of rules or regulations for a special court and no reasonable mind can possibly construe them as such. Rather, they seek to place more emphasis on the handling of cases with the maximum efficiency and despatch afforded by the rules and consistent with justice. If the plaintiff is aware of any special set of rules, of procedure applicable only to the Fast Track High Court, he did not advert our attention to such nor did he furnish us with any copies thereof.

Of course, it may be reasonably expected that one of the valuable outcomes of the automation project will be the generation of improved practices and techniques, which will inform the nature of reforms and amendments that ought to be made to the existing rules to make them more in tune with efficient application of technology and reinforce effective case and trial management. That is one of the advantages and objectives of initiating a change process on a project basis. In any event, even in the courts not yet automated, it is open to judges to insist on rigid adherence to stipulated time limits, be more strict in the exercise of their powers to manage cases before them with greater efficiency and to limit the use of those discretions given them by the rules so as to prevent any party using adjournments and interlocutory applications to slow down the judicial process. Indeed it is my personal hope that, pending the extension of automation throughout the judicial system, all judges, particularly trial judges in all courts, will make more frequent use of the procedural efficiency management tools afforded them by the rules to foster greater control over the

[p.137] of [2001-2002] 2 GLR 1 progress of cases and thereby reduce delay and cost.

Given the harrowing experience of our not so distant past, one might readily appreciate any fears or squeamishness about any forum the plaintiff might perceive to be a special court functioning entirely outside the aegis of the mainstream system of courts. Most citizens of Ghana still recall the special courts and the public tribunals (as well as the special military tribunals that had the power to try civilians for certain crimes), where the right to counsel was not guaranteed, where there was no right of recourse to judicial review, where justice was hurried with such indecency as to amount to justice buried and where the protection afforded by habeas corpus orders were ousted. However, such fears and concerns cannot reasonably lead to a conclusion that the Fast Track High Court is a special court that contravenes a provision of the Constitution, 1992, without the support of cogent facts.

Having concluded that the Fast Track High Court is a division of the High Court whose existence is sanctioned by the Constitution, 1992, I will now deal with the next issue of whether or not the trial of criminal proceedings at the Fast Track High Court is inconsistent with or in contravention of any provision of the Constitution, 1992. Article 140(1) of the Constitution, 1992 provides that:

“140. (1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.”

(The emphasis is mine.) Consequently, since the Fast Track High Court is a division of the High Court it necessarily follows that it has jurisdiction to try criminal matters. Unlike the Regional Tribunals, there are no exceptions in the Constitution, 1992, or Act 459, which limit this criminal jurisdiction: see Republic v Yebbi & Avalifo [2000] SCGLR, 149. In my view, the fact that, in the Fast Track High Court, IT and sound case management are applied to speed up the criminal adjudication process cannot derogate from the constitutionality of either the court or the process. Certainly, there is no provision in the Constitution, 1992 that stipulates a minimum time within which criminal proceedings must be

[p.138] of [2001-2002] 2 GLR 1 concluded. Rather, above all else, every party before a court is entitled to due process, and an efficient and speedy disposal of criminal proceedings inures to the benefit of not only the Republic of Ghana, but also the accused person who, if adjudged, innocent is thereby enabled to resume his/her life that much sooner.

Which then brings me to the final issue that I have defined hereinabove. There is no doubt (and the defendant has admitted this) that there is an error on the face of the document summoning the plaintiff to attend the court. However, does the issue of a summons commanding a person “in the President’s name” to attend a court render the summons unconstitutional by virtue of articles 1(1) and 125(1) of the Constitution, 1992 as asserted by the plaintiff?

Article 1(1) of the Constitution, 1992 reads as follows:

“1. (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.”

My understanding of this provision is that, since the sovereignty of Ghana resides in the people of Ghana and the Constitution, 1992 represents the sovereign will of the people, the Constitution, 1992 is supreme and the powers of government must be exercised in a manner that is in consonance with its provisions. It is for this reason that, in article 2(1) of the Constitution, 1992, this court may strike down as unconstitutional any act or thing that is in contravention of or not in consonance with a provision of the Constitution, 1992. And article 125(1) of the Constitution, 1992 stipulates that: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” I understand this provision to mean that, since the people of Ghana are sovereign, justice ultimately also resides in them. However, for the sake of convenience, it is to be administered on their behalf by the judiciary and, therefore, in the exercise of this sovereign duty, the judiciary is independent and subject only to the Constitution, 1992.

Stroud’s Judicial Dictionary (5ed, 1986) defines the word “summons” as: “The process by which a proceeding is commenced [p.139] of [2001-2002] 2 GLR 1 or by which (generally) a step is taken . . .” There is no doubt that, in law, the process by which an accused person is brought before a court of law does not, per se, have any effect on the jurisdiction of the court or the validity of the proceedings. Section 83 of the Criminal Procedure Code, 1960 (Act 30) makes this quite clear in the following terms: “Any irregularity or defect in the substance or form of a summons or warrant. . . shall not affect the validity of any proceedings at or subsequent to the hearing of the case . . . ” (The emphasis is mine.) This is because, generally, it is when the accused has appeared (in answer to the summons) or been brought (upon a warrant of arrest) before the court and entered his plea to the charges against him that the court gains jurisdiction over the case and the proceedings. The mode by which his attendance was procured is, for this purpose irrelevant. Consequently, any defect on the face of the summons is a mere matter of form, which has no effect on the validity of the substantive proceedings. In any event, it is evident from exhibit TT5 that the plaintiff’s case before the Fast Track High Court was entitled “Republic v Tsatsu Tsikata.” Thus, the requirement of article 125(1) of the Constitution, 1992 that justice must be administered in the name of the Republic had been duly observed once the matter came before the court. But, in any event, regardless of the format of the title of the case, the fundamental principles at stake in any criminal proceeding are due process and the safeguarding of the fundamental human rights of the accused, not mere matters of form. To declare unconstitutional the summons served upon the plaintiff serves no valuable or meaningful purpose since, once he appeared before the court and a plea was entered, the court was empowered to proceed with his trial.

Moreover, it is noteworthy that chapter 5 of the Constitution, 1992, extensive though the compass of the fundamental human rights stipulated therein are, makes no mention of the process by which attendance of accused persons at criminal proceedings may be procured. The closest it comes to such are the provisions in articles 14, 15 and 19 of the Constitution, 1992 dealing with protection of personal liberty, respect for human dignity and the right to fair trial respectively. The plaintiff has not pleaded any breach of his fundamental rights (which in any case he cannot do in this court in an action under article 2 of the Constitution, 1992 and

[p.140] of [2001-2002] 2 GLR 1 these are not issues that necessarily arise from a defective summons. Consequently, there is no basis, constitutional or otherwise, for granting to the plaintiff any of the reliefs he claimed.

Finally, I wish to observe that the Fast Track High Court is not the first attempt on the part of the judiciary to apply technology and sound case management to its processes so as to reduce delay and enhance overall efficiency. Over the years, various Chief Justices, with the aim to foster more effective application of the rules have issued numerous directives. Furthermore, in the mid-seventies, an attempt at mechanised recording of court proceedings resulted in the wiring of the Court of Appeal and most of the High Courts in the country for microphones and tape recorders. Unfortunately, this programme was abortive because of lack of adequate funding. Again, in the late eighties, two judges were sponsored by a donor to study the application of modem court practices and recording systems in eight states of the United States of America. They were expected to spearhead the implementation of the new systems upon their return. Once again, owing to lack of funds, there were no tangible outcomes. Over the years, a number of recommendations have been made for the automation of the courts, the implementation of which could not be sustained because of lack of funds, and regrettably, the judicial process remained moribund and mired by delays and inefficient service delivery. The Fast Track High Court project is the latest effort, but sadly, by their decision in this case, the learned majority members of this court may have sounded one more death knell and induced yet another abortion of an attempt to improve, st comprehensively, access to justice and usher the Ghanaian judicial process into the 21 Century. Without doubt, contrary to the intent and purpose of article 2 of the Constitution, 1992, the only interest that has been served by the decision in this action is the plaintiff’s personal interests, not those of the People of Ghana. The negative repercussions of this decision are likely to be felt by every person who comes before the seat of justice and has to wait for years, if not decades, before his trial is concluded; therein lies the injustice of the outcome of this case.

Judgment for the plaintiff.

DRKS