where the words of the provisions were imprecise, or ambiguous. Putin another way, it would arise if one party invites the court to declare that the words of the article had a double meaning or were obscure or else meant something different from or more than what they were said; (b) where rival meaning had been placed by the litigants on the words of any provision of the Constitution; (c) where there was a conflict in the meaning and effect of two or more articles of the Constitution and the question was raised as to which provision should prevail; and (d) where on the face of the provision, there was a conflict between the operation of particular institutions set up under the Constitution
In summary then, whereas the original jurisdiction to interpret and enforce the provisions of the 1992 Constitution is vested solely in the Supreme Court, every court and tribunal is duty-bound or vested with jurisdiction to apply the provisions of the Constitution in the adjudication of disputes before it. And this jurisdiction is not taken away merely by a party's reference to or reliance on a provision of the Constitution. If the language of that provision is clear, precise and unambiguous, no interpretation arises and the court is to give effect to that provision.
When seeking to invoke the exclusive original jurisdiction of the court for interpretation and enforcement, plaintiffs must demonstrate, through their writ and the reliefs sought, that their case raises a genuine and substantial issue requiring interpretation or enforcement. This requirement is particularly significant because, while the four principles enumerated by Anin JA in Republic v. Special Tribunal; Ex Parte Akosah [1980] GLR 592 hold importance, Anin JA emphasised that there is no need for a case of "enforcement or interpretation" when the language of the Constitution article in question is clear, precise, and unambiguous. Therefore, to invoke the court's jurisdiction for interpretation and enforcement, the plaintiffs must establish that their case presents an issue that necessitates interpretation or enforcement beyond what is already clear and unambiguous in the Constitution.
It is to be appreciated that if the meaning of a Constitutional provision is so plain that it raises no contest in interpretation, then every court in this country is enjoined to apply that meaning. However, if parties raise rival positions regarding the meaning and application of the text of the Constitution or the words of a constitutional provision are imprecise, unclear, or ambiguous, then the exclusive jurisdiction of this court is properly invoked for the resolution of the proper interpretation to place on the relevant provision under article 130. See the oft-cited decision in Republic v. Special Tribunal; Ex Parke Akosah 1980 GLR 592. Again, if there is a breach of the Constitution, the enforcement jurisdiction of this court conferred in article 2 is rightly invoked.
In our view, the test for determining whether an issue of interpretation arises was aptly articulated by Anin JA in the case of Ex Parte Akosah (supra). While the test requirements are well- established and require no elaboration, their application, in this case, is crucial. So far, it is evident in this suit that both parties have placed rival meanings on the scope and purpose of Articles 21(4), 31 and 32 of the Constitution, 1992 in the determination of which of these Articles ought to form the basis for the promulgation of Act 1012. It is for this reason that the plaintiffs seek a declaration that the Imposition of Restrictions Act, 2020 (Act 1012) contravenes or is inconsistent with articles 21, 31, 32, 58, 93(2) and 125(3) of the 1992 Constitution. The Attorney General, however, disagrees with this position. Therefore, there is a potential conflict between the plain meaning of articles 21(4) and 31 and 32, necessitating an interpretation of which of these provisions should take precedence in determining the constitutionality or otherwise of Act 1012.
In summarizing the case law on enforcement or interpretation, Anin JA in Republic v. Special Tribunal; Ex parte Akosah [1980] GLR 592 listed the circumstances under which it could be said that an issue for enforcement or interpretation arises as (a) where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than they say; (b) where rival meanings have been placed by the litigants on the words of any provision of the Constitution (c) where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision shall prevail; (d) where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and interpretation.
A Constitutional issue is not raised on account of a Plaintiff’s absurd, strained and farfetched understanding of clear provisions in the Constitution. For a person to assert a manifestly absurd meaning contrary to the very explicit meaning and effect of clear words in the Constitution does not mean that a genuine issue of interpretation of some relevant Constitutional provision has arisen”
"Where the words of a provision are precise, clear and unambiguous, or have been previously interpreted by this court, its exclusive interpretative jurisdiction cannot be invoked or exercised. This is important for ensuring that the special jurisdiction is not needlessly invoked and misused in actions that, albeit dressed in the garb of a constitutional action, might be competently determined by any other court. Consequently, it has become our practice that in all actions to invoke our original jurisdiction, whether or not a Defendant takes objection to our jurisdiction, or even expressly agrees with the Plaintiff that our jurisdiction is properly invoked, we take a pause to determine the question of the competence of the invocation of our jurisdiction, before proceeding with the adjudication of the matter or otherwise". (emphasis supplied.)
"The real test as to whether there is an issue of constitutional interpretation is whether the words in the constitutional provisions the court is invited to interpret are ambiguous, imprecise, and unclear and cannot be applied unless interpreted. If it were otherwise, every conceivable case may originate in the Supreme Court by the stretch of human ingenuity and the manipulation of language to raise a tangible constitutional question. Practically, every justifiable issue can be spun in such a way as to embrace some tangible constitutional implication. The Constitution may be the foundation of the right asserted by the plaintiff, but that does not necessarily provide the jurisdictional predicate for an action invoking the original jurisdiction of the Supreme Court."
The position of the law from the above line of authorities is that for a genuine issue of interpretation to arise, there ought to be demonstrated by a Plaintiff such ambiguity, imprecision or absence of clarity in a provision of the Constitution for the interpretation jurisdiction of the court to be properly invoked to address same. It follows therefore that where the words contained in a constitutional provision are clear and unambiguous or that those provisions have been already interpreted in a previous matter, the interpretative jurisdiction of this court cannot be said to have been properly invoked.
Where the words of a provision are precise, clear and unambiguous, or have been previously interpreted by this court, its exclusive interpretative jurisdiction cannot be invoked or exercised. This is important for ensuring that the special jurisdiction is not needlessly invoked and misused in actions that, albeit dressed in the garb of a constitutional action, might be competently determined by any other court. Consequently, it has become our practice that in all actions to invoke our original jurisdiction, whether or not a Defendant takes objection to our jurisdiction, or even expressly agrees with the Plaintiff that our jurisdiction is properly invoked, we take a pause to determine the question of the competence of the invocation of our jurisdiction, before proceeding with the adjudication of the matter or otherwise
Consequential reliefs and the enforcement jurisdiction
We find from the examination of the reliefs sought in the instant action that reliefs (i), (j) and (k) are by themselves inextricably linked with and dependent on the declaratory reliefs sought in the proper exercise of the interpretative jurisdiction of this court and their availability depend on the assumption of jurisdiction to determine reliefs (a) to (h) which we have found do not provoke any issue for interpretation. Therefore reliefs (i) to (k) when examined and accessed independently do not seek the enforcement of any provision of the constitution relative to the Plaintiffs’ presumed cause of action.
Constitutional issue arising in proceedings before the Supreme Court
In effect, where a constitutional issue emerges from the proceedings in the ordinary jurisdiction of the Supreme Court, it shall proceed to deal with it in accordance with law. The ordinary bench of the Court was right in dealing with the constitutional issue which emerged from its proceedings.
Dismissal where the constitutional provisions are clear
In any event, we are of the firm view that no genuine question of constitutional interpretation or enforcement arises on the face of the provisions of article 20(1) and (2) of the Constitution referred to by the plaintiffs. The provisions are so clear and devoid of any ambiguity that they do not call for any interpretation or enforcement by the Supreme Court. See Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, and Republic v Maikankan & Ors [1971] 2 GLR 473.
In conclusion therefore, we hold that no legitimate question of constitutional interpretation and enforcement has been raised by the writ to invoke the original jurisdiction of this court. We find that the substance of the Plaintiffs’ action is about the interpretation of constitutional provisions which are sufficiently clear and admit of no ambiguity. There being nothing to enforce from the formulation of reliefs endorsed by the Plaintiffs, and our original interpretation jurisdiction not having been properly invoked, we dismiss the Plaintiffs’ action in its entirety.
Effect of agreement between the parties on the Court’s duty
Notwithstanding the consensus on the main point of law, this Court must still perform its constitutional duty to interpret and enforce the Constitution. The mere agreement of the parties cannot on its own nullify a statute; it is the prerogative of this Court to pronounce on the constitutionality or otherwise of the provision of an impugned statute, as the case may be.
we must yet emphasize that in considering the matter before a Court, the mere fact of agreement between the parties as to the position of law does not abrogate the Court's solemn duty to diligently interpret and apply the law, particularly in matters implicating an interpretation or enforcement of constitutional provisions.
In the instant case, while we take note that the Defendant is in agreement with the Plaintiff that our interpretative and enforcement jurisdictions have been properly invoked, we shall examine the issue with the view to arriving at our own determination whether or not as contended by the parties, our jurisdiction has been properly invoked by the Plaintiff’s writ.
Enforcement of the Constitution distinguished from enforcement of human rights
Consequently, as this Court possesses interpretative and enforcement jurisdictions under Articles 2(1) and 130(1) of the Constitution, no necessity arises that requires a dissection into whether the plaintiffs’ suit is justiciable to invoke this Court's original jurisdiction. This is because, after consideration of most of the plaintiffs’ reliefs and the statements of the case, there is no doubt that an issue of enforcement arises. However, this enforcement does not pertain to the enforcement of a basic and fundamental human right and freedom as envisaged under Article 33(1) of the Constitution, 1992. In a situation where a person seeks to enforce the Constitution without infringing a fundamental human right, as is evident in this matter, the proper forum is the Supreme Court under Article 130(1).
Forum for a challenge to the constitutionality of an Act
The plaintiffs failed to seek redress in the Supreme Court which is the proper forum if they sincerely believed that they had a genuine question for interpretation or enforcement of the Constitution. They instead kept pressing arguments that Act 703 is void before Judges who were bound to give effect to the provisions of the Act of Parliament that had been brought to their attention. We think that both the High Court and the Court of Appeal were right in dismissing the suit of the plaintiffs in the face of the clear provisions of Act 703 which they had no power to strike down.
The salutary position of law therefore is that for the original and exclusive jurisdiction of the Supreme Court to be properly invoked pursuant to Article 2(1), there must be the existence of a real interpretative or enforcement issue.
All parties before this court must be mindful of the consistent reminder of this court from cases such as Adumoah Twum IIv. Adu Twum 11[2000] SCGLR 165 distilled in its first holding that the originalJurisdiction vested in the Supreme Court under Articles 2(1) and 130(1) to interpret and enforce the provisions of the Constitution is a special Jurisdiction to be invoked in suits raising genuine or real issues of interpretation of a provision of the Constitution ; or enforcement of a provision of the Constitution ;or a question whether an enactment was made ultra vires Parliament or any other authority or person by law or under the Constitutiorf'.
In framing reliefs and raising legal issues for determination when invoking our original interpretative or enforcement jurisdiction under articles 2(1) and 130(1), parties must exercise prudence in presenting issues germane to a conclusive and compelling determination. The reliefs and issues must be linked to specific acts or omissions on the part of persons which contravene the supreme law of the land. Failing such linkages, we shall treat the writ as opinion only and will proceed to dismiss it based on our thirty-year-old decision in Billson v Attorney-General [1993-94] 1 GLR 104, SC.
Plaintiff's right to invoke the jurisdiction of this Court pursuant to Article 2(1) of the 1992 Constitution of Ghana is not without limitation. To bring an action in this Court on the authority of Article 2(1), the plaintiff must allege 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 the Constitution. The third of the issues presented before this Court does not allege "any act or omission of any person" or "an enactment or anything contained, or done under the authority of that or any other enactment" that is inconsistent with or in contravention of a provision of the 1992 Constitution. Rather, that last issue invites this Court to answer a purely academic or hypothetical question, a possibility that has not materialized or ripened into a concrete set of facts associated with a particular person or enactment. We decline that invitation, as indeed we must. Both a plaintiff's right to bring a suit under Article 2(1) and this Court's jurisdiction or power to entertain such a suit are limited to actual cases about actual facts. This Court does not sit in judgment of merely academic or hypothetical questions.
The plaintiff will be on course to seek an interpretation of section 34, or an aspect of it, if he moves against a particular person in respect of an act or omission of that person, and he, for a defence, seeks shelter under section 34. It is then that is will be profitable for the court to determine whether the defendant or his act or omission is covered by section 34 or not. It is then that an interpretation or a declaration may be called for. On the pleadings as they now stand, any declaration made will be an empty declaration, a declaration in a vacuum. Ours is to interpret the constitution in the context of disputes. Ours is not to tender advice to prospective litigants; that is the role of solicitors in private practice. I agree with the defendant in this case that the plaintiff’s writ does not disclose a cause of action. I will dismiss it.
Although it may be right to say that there is no law which inhibits the jurisdiction of this court in matters involving the interpretation of the constitution, I think it will be worth while applying the concept of judicial self-governance or self-restraint in such matters. The judicial authority of which this court is the beneficiary or endowed with is essentially jurisdiction to deal with real or substantial disputes which affect the legal rights or obligations of parties who appear before us, and whose interest are adverse to each other. These competing interests will necessarily call for specific reliefs through conclusive and certain judicial decree or decrees. In these circumstances the matter could be said to be justiciable and not otherwise. The principle of justiciability precludes us from giving advisory opinions based on hypothetical facts which are not part of an existing controversy.
The plaintiff invites this court to give him judgment upon proof of axioms. The answers to his plaints are obvious, self-evident and unambiguously stated in the various articles of the Constitution of 1992 to which the plaintiff himself has referred. This court cannot accede to sterile claims in which the defendant is bound to agree with the plaintiff.
Is there then a controversy? Is there then a duty, a right, a liability that can be established by this court? The answer is yes! There is a right, a duty cast upon every citizen of Ghana to go to the Supreme Court for determination whether a person or persons is, or are, seeking to abolish the constitutional order established by the Constitution. There is a controversy regarding the status of the incumbent Chief Justice, the determination of which depends upon an interpretation of the Constitution. Once there is a controversy, a justiciable issue, we believe that under the wing of interpretation as contained in paragraph (a) of clause (1) of article 1 1 8, the court has jurisdiction to entertain the issue raised by the plaintiff's writ. And the plaintiff is thus properly before this court.
The doctrine of mootness applies when, during a lawsuit or claim proceedings, an event or changed circumstances transpire that render the continued hearing or determination of the claim pointless or unnecessary.
However, before refusing to decide a question on mootness grounds, it was necessary to establish that subsequent events had unequivocally demonstrated that the alleged wrongful conduct would not reasonably occur again. In cases where such a clear establishment was lacking (as was the main issue under consideration), the court would examine the question to prevent the proliferation of multiple lawsuits. It is pertinent to note that actions that have the capacity for repetition or possess the potential to undermine the rule of law ought to undergo constitutional examination.
However, article 71 is an entrenched provision of the fundamental law of the land, the 1992 Constitution, pursuant to article 290. It also moderates an activity that will be potentially cyclical as long as Ghana remains a nation, unless changed by the processes outlined in article 290 for amendment of entrenched provisions of the Constitution. Its weight and import for good governance are therefore such that this court must address the issues raised by the litigation, because they may arise again.
Parliamentary election disputes and the original jurisdiction
What this court has been called to do is to interpret and enforce article 94 (2) (a) with regard to the qualification of the 1st defendant to become and remain a Member of Parliament. In all the decided cases of this court referred to by counsel for the 1st defendant which dealt with procedure provided in the rules for performing an act or the court with proper jurisdiction for hearing and dealing with Parliamentary election disputes, this Court did not find any "act or omission" on the part of any person which warranted the invocation of its original interpretative jurisdiction.
On the other hand, it has also been the settled position of this Court that it is not precluded from engaging its exclusive jurisdiction to interpret and enforce the provisions of the Constitution where that jurisdiction arises under article 2 (1) and article 130 (1), even if there is within the same cause of action, a concurrent jurisdiction of the High Court to settle the validity of an election under article 99 of the Constitution. See the decisions of this Court in New Patriotic party v. National Democratic Congress and others [2000] SCGLR 461 and Ex Parte Zanetor Rawlings cited supra.
We must however be quick to point out that no court, save the Supreme Court, has the power to strike down an Act of Parliament on grounds of same being inconsistent with the provisions of the Constitution. Therefore, where a Plaintiff, such as in this instance, alleges that an Act is inconsistent with the provisions of the Constitution, and thereby invokes the Court’s jurisdiction to have the said inconsistent portions struck down, then this Court ought to investigate the basis of the claim to ascertain the viability of the Plaintiff’s action within the framework of this Court’s exclusive original jurisdiction.
Retrospective effect of a declaration of unconstitutionality
As a general rule, a declaration of unconstitutionality, applies both retrospectively and prospectively. Under the doctrine of prospective overruling, which has its origin in American jurisprudence, and which has been adopted, developed and applied in deserving cases in other jurisdictions, including India, Malaysia, Signapore, United Kingdom, Uganda and other Commonwealth countries, this court has power to decide whether, to limit the retroactive effect of the declaration of invalidity. The rationale for the the rule is to provide a pragmatic solution to total chaos or anarchy, inconvenience, hardship and injustice in the administration of justice, following a declaration of unconstitutionality, in those clearly bona fide cases where isses had been determined in the honest belief that the impugned legislation was valid law. A key factor that should influence the invocation of the rule is the extent of the entrenchment of the existing rule. Invoking the doctrine would thus prevent an indiscriminate wholesale nullification of long standing settled issues and decisions based on the invalidated law, a potential source for large scale re-litigation of settled rights and obligations and a multiplicity of suits.
Now, for a person to qualify to invoking the original jurisdiction of the court in terms of Article 130 of the Constitution, for interpretation of provisions of the constitution and to seek its enforcement as enshrined in Article 2(1), that person must either be a citizen of Ghana or a juristic person, duly recognized by law as having rights and duties comparable to natural persons.
Article 2 of the Constitution grants standing to “any person” to initiate an action to enforce the Constitution against any contravention, and this has been affirmed in our jurisprudence as an important mechanism to uphold the rule of law. As was observed in TUFFUOR VS. ATTORNEY-GENERAL [1980] GLR 637, every Ghanaian citizen has the right to invoke jurisdiction to protect the constitutional order from subversion. This Court reiterates that public-spirited Plaintiffs have locus standi to invite the Court’s intervention when an enactment or act is alleged to violate the Constitution, and such actions serve to strengthen our constitutional democracy by ensuring that no inconsistency or breach of the constitution prevails.
A person who alleges that an enactment or anything contained in or done under the authority of that or any other person, or an act or omission is inconsistent or in contravention of a provision of the Constitution may bring an action to the Supreme Court, and the phrase a person “has been construed as a Ghanaian citizen both natural and corporate bodies which are recognised by law as artificial Ghanaian entities that may bring an action without demonstrating personal interest, but where the right to be enforced is an individual fundamental human rights, the proper forum shall be the High Court in accordance with article 33 of the Constitution. Irrespective of how the enforcement or the interpretation jurisdiction of the Supreme Court is couched, its exclusive jurisdiction shall not be available to the plaintiff where any other court shall also have jurisdiction.
This is the constitutional criterion by which all acts can be tested and their validity or otherwise established. A plaintiff under article 1 (2) of the Constitution reed not have any community of interest with any person or authority. His community of interest is with the Constitution.
The plaintiff is not claiming any right of his has been infringed or is being threatened with infringement. We cannot make a declaration in a vacuum. This is exactly what the plaintiff is asking us to do and we must decline any such invitation. The plaintiff, in my view, has no standing and his suit must be dismissed.
