BENNEH v. THE REPUBLIC AND ANOTHER [1971] 2 GLR 354

DIVISION: IN THE COURT OF APPEAL

DATE: 7 JUNE 1971

BEFORE: KOI LARBI, ANIN JJ.S.C. AND LASSEY J.A.

CASES REFERRED TO

(1) Levandowsky v. Attorney-General [1971] 1 G.L.R. 49, C.A.

(2) Swaniker v. Adotei Twi II, Supreme Court, 14 February 1966, unreported; digested sub nom. Adotei Twi II v. Kwashie in (1966) C.C. 89.

(3) Captan v. Minister of Interior, Supreme Court, 16 January 1970, unreported; digested in (1970) C.C. 35.

(4) Donkor v. Republic of Ghana; Donkor v. Republic of Ghana (Consolidated) [1971] 1 G.L.R. 30, S.C.

(5) People’s Popular Party v. Attorney-General [1971] 1 G.L.R. 138.

NATURE OF PROCEEDINGS

APPEAL from a decision of Aboagye J. wherein he ruled that the High Court had no jurisdiction to try a case involving the validity of N.L.C.D. 400 vis-a-vis the Constitution, 1969, arts. 1 (2), 12 and 18. The facts are fully set out in the judgment of Koi Larbi J.S.C.

COUNSEL

Joe Reindorf for the appellant.

N. M. C. Dodoo, Principal State Attorney, for the respondents.

JUDGMENT OF KOI LARBI J.S.C

He read the judgment of himself and Anin J.S.C. On 26 April 1971 we unanimously dismissed this appeal from the ruling of Aboagye J. reported in [1971] 1 G.L.R. 78, and the court intimated that it would later give its reasons for its decision. This we now proceed to do so.

By his writ of summons, the plaintiff-appellant (hereinafter referred to simply as “the plaintiff”) claimed against the defendants-respondents hereafter referred to as “the defendants” for short) the following relief: “Injunction to restrain the defendants by themselves, servants, or agents or otherwise from going into execution in the suit entitled

`In the matter of Investigation and Forfeiture of Assets (Further Investigation of Commissions Findings) (No.

3) Decree 1969, N.L.C.D. 400. Between: The State, judgment/creditor And Isaac William Benneh, judgment/debtor’.”

[p.357] of [1971] 2 GLR 354

In his statement of claim, the plaintiff set out as indicated in (1971] G.L.R. 78 at p. 79, the material facts upon which he relied in support of the relief claimed thus:

“1. Plaintiff has been served, at the instance of the first defendant, with a document dated 20 November 1969, entitled `Entry of Judgment-under Order 41 R.S.C.,’ purporting to be an entry of judgment in this court against plaintiff for the sum of N¢15,302.46 in an alleged suit entitled Republic v. Benneh.

2. In pursuance of the said entry of judgment the sheriff has caused to issue a writ of fi. fa. for the purpose of attaching and selling compulsorily certain properties of plaintiff.

3. No unsatisfied judgment has been pronounced against plaintiff herein in favour of the State or of any other person in the sum of N¢15,302.46 or in any other sum, and there has been no suit or matter before this court with the title in paragraph 1 above referred to in which the said sum or any other sum has been claimed against plaintiff herein.

4. The said entry of judgment purports to be `pursuant to the provisions of N.L.C.D. 400.’

5. The said N.L.C.D. 400, which was made on 30 September 1969, is repugnant to the Constitution, 1969, and in particular to articles 12 and 18 thereof, wherefore the said N.L.C.D. 400 is under article 1 (2) of the Constitution, void and of no effect.

6. Plaintiff’s claim therefore is under article 28 of the Constitution for an order of injunction to restrain defendants, their agents, servants and assigns from carrying out any or all of the provisions of the said N.L.C.D. 400.”

The defendants admitted paragraphs 1, 2 and 4 of the statement of claim, and relied squarely on N.L.C.D.

400. They contended that “Decree 400 does not contravene any provision of the Constitution as alleged or at all.” They denied paragraphs 3, 5 and 6 of the statement of claim and pleaded that the plaintiff is not entitled to the relief sought or to any other relief.

On the hearing of the summons for directions, the learned judge suo motu raised the issue of the court’s jurisdiction to entertain the action and invited arguments thereon from counsel for both parties. In his ruling reported in [1971] G.L.R. 78 the learned judge at p. 80 dismissed “the plaintiff’s claim with liberty to bring an action in the Supreme Court for the determination of the validity or otherwise of N.L.C.D. 400.” The ratio decidendi is contained in the penultimate paragraph of the ruling at p. 80 (supra) which states as follows:

“the gist of the plaintiff’s claim is that N.L.C.D. 400 is repugnant to articles 12 and 18 of the Constitution and so void. The claim is therefore covered by article 2 of the Constitution which says: [p.358] of [1971] 2 GLR 354

`2 (1) Any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, any provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect.

(2) The Supreme Court shall, for the purposes of a declaration under the provisions of the preceding clause, make such orders and give such directions as it may consider appropriate for giving effect to or enabling effect to be given to the declaration so made.’

I therefore hold that I have no jurisdiction to entertain this suit.”

Mr. Joe Reindorf, learned counsel for the plaintiff relied on three grounds of appeal before us. Grounds one and two which were argued together are as follows:

“(1) The learned trial judge erred in holding that under article 106 of the Constitution he had no jurisdiction to entertain the plaintiff’s claim.

(2) The learned trial judge erred in holding that article 28 of the Constitution did not confer on him jurisdiction to entertain plaintiff’s claim.”

He submitted that where a cause of action can be brought under article 28 of the Constitution, the Supreme Court’s original jurisdiction under article 106 ceases to be exclusive; it exists concurrently with the original jurisdiction of the High Court under article 28; and the plaintiff has a choice of two forums, either the High Court or the Supreme Court.

The sole relief claimed in the High Court is an order of injunction against the defendants to restrain them from levying execution against the plaintiff’s property. The basis of the claim is that N.L.C.D. 400 which purports to confer a legal right on the defendants for levying the said execution is repugnant to the Constitution and ought, therefore, to be struck down as being null and void by virtue of article 1 (2) of the Constitution. The defendants, on the other hand, contended that N.L.C.D. 400 is valid and not repugnant to the Constitution, and steps taken under the said decree are, therefore, lawful. The defendants furthermore pleaded that there is no legal basis for the plaintiff’s action for an injunction against the Republic.

The general rule is that a court cannot stultify itself by entertaining an action in which the relief claimed cannot be enforced. In its recent decision entitled Levandowsky v. Attorney-General [1971] G.L.R. 49, C.A. this court invoked this general rule and held that the trial judge rightly refused a motion for leave to levy execution against the respondent (Attorney-General representing the Government of Ghana): since section 15 (4) of the State Proceedings Act, 1961 (Act 51), enacted that: “no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Republic of any such

[p.359] of [1971] 2 GLR 354 money or costs as aforesaid …”The court observed in the Levandowsky case (supra) at p. 50 that: “It seems to us plain that we cannot stultify ourselves by making any orders which cannot be lawfully enforced and if as counsel admits, he cannot competently levy execution against the respondent, then this application is pointless.

We cannot help thinking that counsel for the applicant overlooked the provisions of section 15 (4) of Act 51. We believe that had the learned judge’s attention been drawn to it, his decision would have been founded on the simple ground that such an order would be wholly futile.”

This decision in Levandowsky v. Attorney-General (supra) is binding upon us; for under article 109 (3), “the Court of Appeal shall be bound by its own previous decisions and all Courts inferior to the Court of Appeal shall be bound to follow the decisions of the Court of Appeal on questions of law.” Admittedly, it was section 15 (4) of Act 51 forbidding execution against the Republic which was in fact relied upon in the Levandowsky case. However, the ratio decidendi in that case is equally applicable to this case; since the only relief claimed in the writ herein is an order of injunction against both the Republic and a public servant acting in his official capacity; and since the said Act 51 prohibits the grant of the relief of injunction in any civil proceedings against either the Republic or any servant of the Republic acting in his official capacity.

The court below could not stultify itself by granting the relief of injunction which it was incompetent to enforce against either defendant; because sections 13 (1) proviso (a) and 13 (2) of Act 51 prohibit the grant of such a relief of injunction in any civil proceedings against both defendants. If we may quote the relevant enactment in full: Section 13 (1) provides that:

“In any civil proceedings by or against the Republic, the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between private persons, and otherwise to give such appropriate relief as the case may require:

Provided that-

(a) where in any proceedings against the Republic any such relief is sought as might in proceedings between private persons be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance,….”

Section 13 (2) provides that:

“The court shall not in any civil proceedings grant any injunction or make any order against a servant of the Republic if the effect of

[p.360] of [1971] 2 GLR 354 granting the injunction or making the order would be to grant relief against the Republic which could not have been obtained in proceedings against the Republic.”

In the result, we agree with the conclusion reached by the learned High Court judge that he lacked jurisdiction to entertain the suit; but, instead of the reason advanced by him in support of his decision, we would justify his conclusion on the simple ground that, having regard to the mandatory terms of section 13 (1) proviso (a) and 13 (2) of Act 51, the court lacked jurisdiction to grant the only relief of injunction claimed and that the court could not stultify itself by being called upon to make an order it could not lawfully decree against the defendants herein. It was for these reasons that the appeal was dismissed as being without merit.

JUDGMENT OF LASSEY J.A.

I have the misfortune to differ from the final result and the reasons for the final result arrived at by my learned brothers in this appeal. Although I had the opportunity of reading in advance the draft of the written reasons of the majority of the members of the court which have just been read, it is a matter of some regret that I have not been able to persuade myself that the previous order of this court which I concurred in making on 26 April 1971 at first sight shortly after arguments in the case had concluded dismissing the appeal is a right one. That order seems to me to be in the nature of a non-speaking order in the sense that it was reached without any reasons being given to support it. After re-perusing the essential points canvassed by counsel, on reflection I have formed the definite conclusion that the order of 26 April 1971 dismissing the appeal was made in error, and that the proper order which ought to have been made instead was to have allowed the appeal and remitted the case back to the High Court for determination on its merit.

In view of the compelling conviction I now hold that I acted wrongly in acceding to the order dismissing the appeal, I must consider whether any authority exists in the rules which should permit me to correct that order which has already been given. I confess my mind was much exercised about the regularity of the course I propose to take in changing from the previous order of the court to which I was a concurring party, but after a patient and careful study of the terms of rule 33 of the Rules of Supreme Court, 1962 (L.I. 218), I am satisfied that, as the only limiting considerations necessary for exercising the power of review under the rule are the requirements of justice and the existence of exceptional circumstances in this appeal, I can justifiably correct the previous order which I wrongly joined in making at first blush. Rule 33 regulates the limited circumstances in which the court can review its previous order or decision. Under the rule the court will have to be satisfied, first that exceptional circumstances exist, and secondly that it is in the interest of justice that there should be a review.

In the circumstances of the present appeal, the order dismissing the appeal was reached without forming any definite conclusions on all the

[p.361] of [1971] 2 GLR 354 material points raised. That order which was announced on 26 April 1971 was reached as a result of first impression which we formed of the case shortly after argument of counsel had concluded. If that order were the result of a reasoned judgment or conclusion on the case, I will have no difficulty at all now in expressing my full agreement with it.

The previous order the correctness of which I now find difficult to defend seems to me to be merely a procedural one in the sense that the result of the dismissal of the appeal does not affect the decision on the substantive question raised, namely, the question of interpretation. The result of the order dismissing the appeal at this stage of the case only means that it is the Supreme Court and not the High Court which has power to try the main issue of interpretation. But as the language of article 28 of the Constitution is not such as to prohibit altogether the exercise of an original jurisdiction over the matter by the High Court, I am convinced that the order of dismissal of the appeal which I erroneously acceded to in delivering cannot now remain and should be reversed. Although there does not seem to be any singularly authoritative decision in the reports in support of the course I now take in the appeal in differing from the order of dismissal made on a previous occasion, I find the principle behind the statement of Ollennu J.S.C. (as he then was) that the court must be able to recognise and correct its own error or omission that is apparent or evident in the ruling delivered in Swaniker v. Adotei Twi II, Supreme Court, 14 February 1966, unreported; digested sub nom. Adotei Twi II v. Kwashie in (1966) C.C. 89 a useful guideline in attempting to review a previous order or ruling of this court which I now consider to be wrong. It is in the light of the principle underlying this decision that I decide to register my dissent, and in doing so I wish to emphasize that it is not out of any disrespect to the great learning and experience shown in the written reasons of my brothers.

It is fitting to begin by setting out briefly the context in which the action giving rise to the appeal arose. The respondents served the appellant with an entry of judgment which was alleged to be pursuant to N.L.C.D. 400, and, in consequence, proceeded to attach the property of the appellant in execution of an unsatisfied judgment. The appellant also claimed that the decree relied on was repugnant to or was inconsistent with articles 12 and 18 of the Constitution both provisions which guarantee to him the right not to be deprived of his property without compensation. The appellant therefore applied for an injunction to issue against the respondents to restrain them from carrying out any of the provisions of N.L.C.D. 400. Such being the sequence of events, the crucial question which the High Court was called upon to determine was whether N.L.C.D. 400 is valid or not in relation to articles 12 and 19 of the Constitution. The determination of this issue involves also the consideration of the primary point whether or not the High Court is competent to entertain the action. Aboagye J. ruled as reported in [1971] G.L.R. 78, that he had no jurisdiction over the matter, his reason for so holding being that as the issue which [p.362] of [1971] 2 GLR 354 fell for determination affects the interpretation of an enactment which was alleged to be repugnant to or inconsistent with the provisions of the Constitution, it is the Supreme Court which under article 2 (1) of the Constitution, 1969, has the necessary jurisdiction to try it. On that score the judge held that the appellant’s action was not maintainable in the High Court and proceeded to dismiss it. The appellant appealed against that decision to this court.

Such being the legal position and the facts, the question now is whether on those facts and the law the learned judge was right in law in holding, as he did, that he lacked the necessary jurisdiction to hear the case. On one view of the High Court’s judgment it might appear that if proper legal argument had been addressed to the court about its competency to entertain the action, and the relevant articles of the Constitution also fully explained and the sequence of events appreciated, the court might have decided the issue of jurisdiction probably differently. I quote a paragraph from the judgment appealed from to show how the learned judge reasoned. The judge said at p. 79:

“From the pleadings it is quite obvious that the only material issue to be tried is whether or not N.L.C.D. 400, by virtue of which judgment was entered against the plaintiff, is void and of no effect because it contravenes articles 12 and 18 of the Constitution … then everything done under it including the entry of judgment against the plaintiff and the subsequent attachment of his property in execution of the judgment will be unlawful.”

It would seem clear from this passage in the judgment that the learned judge did not, as the record of the appeal shows, have the full benefit of legal argument, and so did not appreciate, in my consideration, the true legal significance of the issue about the exercise of original jurisdiction over the matter of law raised before him. The reason why I say this is because the reasoning behind his decision assumed that once a question of a constitutional nature concerning the interpretation of a provision of the law is involved, then the original jurisdiction of the Supreme Court under article 2 (1) of the Constitution should automatically be invoked. Were that to be so, it would mean then that the exercise of the original jurisdiction primarily, at any rate, given under article 28 of the Constitution to the High Court over matters relating exclusively to articles 12 to 27 is whittled away by article 2 (1) which makes the exercise of that exclusive jurisdiction by the High Court altogether illusory. In this regard, the contention in this appeal that under article 106 (6) the High Court does not possess an exclusive original jurisdiction over the matters in articles 12 to 27, but that it shares the exercise of that jurisdiction with the Supreme Court also, cannot seem to me to be a right one. The terms of article 28 are unambiguously plain and they direct the High Court exclusively to interpret and enforce the Constitution if a question arises in the application of the specific matters mentioned in articles 12 to 27.

[p.363] of [1971] 2 GLR 354

In the present appeal, if the question of the jurisdiction of the High Court to entertain the appellant’s claim had been raised by counsel in the first instance and sufficient legal argument also addressed to the court about the difference in definition under the Constitution between the words “enactment” and “Decree,” I am not sure that the result would have been the same as that reached by the judge when considering the point of law taken by himself suo motu. The only argument which the judge seemed to have received from counsel for the respondents was to the effect that the court did not have jurisdiction since it is the Supreme Court only which can declare the particular Decree null and void. Counsel for the appellant, Mr. Joe Reindorf, on the other hand, also replied that under article 106 (1) of the Constitution the High Court also has power to declare N.L.C.D. 400 void since the subject-matter of the suit before the court was one arising under articles 12 and 18 of the Constitution which articles fell within those over which by virtue of article 28 the High Court has concurrent jurisdiction with the Supreme Court. Judging from the nature of the legal points canvassed by counsel regarding the competency of the Supreme Court to try the issue involved, the learned judge of the High Court might have thought that the word “enactment” under article 2 (1) of the Constitution meant the same thing as the word “Decree” if only for the purpose of vesting an original jurisdiction in the Supreme Court. With respect, I do not think this is the proper construction of article 2 (1) of the Constitution which provides that: “Any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, any provision of this Constitution may bring an action in the Supreme Court for a declaration to that effect.”

What is alleged in this case to be in contravention of the provision of the Constitution is not an “enactment” but a “Decree” which by definition under the Constitution “includes a Decree by the National Liberation Council or under its authority and any statutory instrument made under the authority of any such Decree.” It is clear that part of article 2 of the Constitution on which the respondents placed reliance, and which also the learned judge of the High Court considered did not vest him with jurisdiction to entertain the action, provides that: [His lordship here read the provisions of the article as set up above and continued:] By constitutional definition an “enactment” means “an Act of Parliament or a constitutional instrument or a statutory instrument.”

What the appellant alleges violates his right to own property under articles 12 and 18 is N.L.C.D. 400 and not an “enactment” under article 2 (1). It, therefore, seems to be reasonably plain from the definition that “Decree” means some provision of the law which is different in meaning from that attributed to “enactment” in article 2 (1) of the Constitution. All that the appellant alleges in his pleadings is that the operation of the

[p.364] of [1971] 2 GLR 354 relevant provisions under N.L.C.D. 400 in relation to him in respect of his property contravenes his rights of protection derived under article 12 and 18 of the Constitution, and calls upon the High Court in the exercise of its powers under article 28 to interpret and pronounce upon the validity or invalidity of that Decree. There are no words, in my opinion, in article 2 (1) of the Constitution which suggest that the word “enactment” there used connotes the same meaning as the word “decree,” but the respondents’ argument implies that the two words shall be construed synonymously as meaning the same thing so as to amount to a complete ouster of jurisdiction in the High Court over the question of law. Speaking for myself, I find no similarity in the meaning of definition of the two words as used in the Constitution for which the respondents contend the Supreme Court has an original jurisdiction. In my view of the matter, the proper construction or interpretation as to validity or invalidity of N.L.C.D. 400 is not dependent on article 2 (1), and, as the correct determination of this issue turns on the true definition and meaning attributed to the word “Decree” under the Constitution, I am satisfied that the original jurisdiction of the High Court under article 28 is not ousted in favour of the Supreme Court whose jurisdiction over the question involved can only arise in its appellate capacity.

The other alternative argument raised on the appellant’s side invited the court to infer the existence of jurisdiction in the High Court over the issue involved by virtue of article 106 (2) which also empowers the High Court to retain the appellant’s action before it and then refer to the Supreme Court for its decision the point of law arising in the action and after that the High Court can rightly dispose of the action in accordance with the decision given by the Supreme Court. To this extent, counsel for the appellant submitted that the learned judge of the High Court should not have struck off the suit. This argument suggests that in respect of the point of law involved even if the High Court is not competent to decide that issue which involves consideration of whether or not N.L.C.D. 400 is repugnant or is inconsistent with the provisions of the Constitution, it can still retain the appellant’s claim before it pending the decision of the Supreme Court on a reference to it. To this contention counsel for the respondents showed no real opposition, as his submission has been that the High Court has no jurisdiction to share with the Supreme Court over the particular matter of law arising in the appeal. I think Mr. Reindorf must have found precedent for his argument in such recent decisions on the matter as Captan v. Minister of Interior, Supreme Court, 16 January 1970, unreported; digested in (1970) C.C. 35 and Donkor v. Republic of Ghana; Donkor v. Republic of Ghana (Consolidated) [1971] 1 G.L.R. 30, S.C., where the High Court retained the respective actions before it and referred the incidental constitutional issues which arose in them to the Supreme Court for its decision before finally [p.365] of [1971] 2 GLR 354 disposing of the respective actions in accordance with the decisions given by the Supreme Court. The same procedure was followed with approval by Hayfron-Benjamin J. in the High Court in the recent case of People’s Popular Party v. Attorney-General [1971] 1 G.L.R. 138. Thus in all these cases the position was accepted that the High Court had the jurisdiction to entertain the respective actions which it should dispose of in accordance with the decision of the Supreme Court on a reference to it.

But in the present case I take the viewpoint that the legal question arising is not of the same nature as those which arose in any of the cases already mentioned. The legal position arising here is different in this sense that the nature of the constitutional issue which is to be determined relates to the interpretation or construction of a Decree which is said to be in contravention of the rights of property conferred on the appellant under articles 12 and 18 of the Constitution, and therefore, under the requirements of article 28 there is a complete ouster of the exercise of jurisdiction by the Supreme Court over those matters. Such being the legal position, it seems to me that Mr. Reindorf’s submission that the High Court ought not to have struck off the case but should have referred the question of law arising to the Supreme Court is untenable.

Article 28 of the Constitution under which the High Court derives exclusive original jurisdiction to hear the matter involved in this appeal recites as follows:

“Where any person alleges that any provision of articles 12 to 27 inclusive of this Constitution has been, or is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the High Court of Justice for redress.”

In the light of the powers .given to the High Court under this article to decree certain remedial measures for the protection of rights of property reserved to the appellant under articles 12 and 18 of the Constitution, the appellant is entitled to invoke the exercise of the original jurisdiction by the High Court in view of his allegation in the pleadings that his rights to his property under articles 12 and 18 are being contravened. In this sense can it be said that the Supreme Court by inference can arrogate to itself power to share in the exercise of the exclusive jurisdiction possessed by the High Court in respect of the related matters mentioned under articles 12 to 27? I can find nothing in the wording of articles 28 or 106 which confers any such original jurisdiction on the Supreme Court. It follows from the way I reason in the matter that the question involved in this appeal cannot properly be entertained by the Supreme Court in the exercise of its original jurisdiction.

Furthermore, it seems clear to me that judging from the felicity of the language used in article 28, it cannot be the intention of the Constitution makers to guarantee to the High Court the exercise of an exclusive original jurisdiction in these specific matters under the Constitution, and [p.366] of [1971] 2 GLR 354 at the same time whittle away the exercise of the jurisdiction it derives under article 28 by virtue of the operation of article 2 (1) of the Constitution. If the specific problem with which the High Court was confronted should relate to the enforcement of a provision of the Constitution so as to invoke the exercise of the original jurisdiction of the Supreme Court under article 106 (2), then the exercise of that jurisdiction is bound to cripple the power of the High Court under article 28 completely. It does not, therefore, seem reasonable to me that the intention is to restrict the powers of the High Court in respect of the matters mentioned under articles 12 to 27 to that crippling state. There is, therefore, in my view, no justification for the contention that in respect of the particular question arising in the circumstances of this appeal both the High Court and the Supreme Court derive mutually exclusive original jurisdiction to entertain it.

A further consideration which should not be overlooked in this case is the viewpoint taken of the application of the proviso to section 13 (1) of the State Proceedings Act, 1961 (Act 51), which while it forbids the High Court to issue an injunction against the Republic or its servants, however permits it to declare at least the rights of the parties. Alive to the restriction imposed by the provision of section 13 (1) of Act 51 on the power of the High Court to issue an injunction against the Republic, the submission put forward by counsel for the appellant on the application of section 13 (1) of Act 51 to the circumstances in this case was to the extent that the provisions of the Act would seem to be inconsistent with the Constitution itself. Mr. Dodoo for the respondents replying, referred to the total ban on the exercise of jurisdiction by the High Court to issue an injunction against the Republic which is imposed by the general terms of the Act, but did not say anything further about the legal effect of the application of its proviso on the power of the High Court to make a declaration regarding the rights of the parties. It is relevant to quote here the proviso to section 13 (1) of the Act which says that:

“(a) where in any proceedings against the Republic any such relief is sought as might in proceedings between private persons be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties.”

This particular provision seeks to prevent the issue of an injunction against the Republic or its servants, and the operation of the provision would seem to me to be inconsistent with the Constitution which provides the contrary. But as the appeal was never brought to this court on the ground also that the provisions of Act 51 are inconsistent with the Constitution, I do not think I can properly express any concluded view on whether the submission of counsel is right or not, and I am, indeed, anxious not to do so now.

[p.367] of [1971] 2 GLR 354

The pertinent question raised by the application of the proviso to section 13 (1) of Act 51 is whether, assuming if the major problem raised in the appeal relates to the enforcement and interpretation of the Constitution, that by itself ousts the original jurisdiction which the High Court derives to make a declaration of the rights of the parties, notwithstanding that it cannot issue an injunction? Under article 126 (1) of the Constitution, section 13 (1) of Act 51 which prohibits the issue of an injunction against the Republic may now be applied with such modifications and adaptations as may be necessary to bring the existing law into conformity with the Constitution. Such being the position, it seems public interest reasonably requires, in my opinion, that the particular provision of Act 51, ought to be modified so as to make it possible for the High Court to grant the relief of an injunction against the Republic. But if I am wrong in this view which I hold as to the application of the provisions of Act 51, as the question involved depends on whether the High Court has the jurisdiction to entertain the appellant’s action at all, I think the proviso to the section standing by itself is unambiguously plain in its directions so as to vest jurisdiction in the High Court for the purposes at least of declaring the rights of the appellant in relation to the property sought to be attached.

The question then arises: what is the nature of the right which the High Court in the exercise of its limited jurisdiction under the proviso can make in a case like this? The answer is that the High Court can have the power to declare that the appellant’s property has been or is being wrongly attached and may proceed to grant the consequential relief sought by him. Or it may be that if the appellant is not able to establish his claim, that is, if the court should hold that N.L.C.D. No. 400 is not repugnant to or inconsistent with the provision of the Constitution as alleged, then it falls to the High Court to proceed to declare the right of the respondents that the attachment of the appellant’s property is lawful, and that ends the matter. It is because this is the way I have come to look at the principal question of law involved in this appeal, and how it should be determined, that I cannot resist coming to the conclusion that the order I subscribed to in making on 26 April 1971 ought to be corrected by allowing the appeal and remitting the case back to the High Court for its determination. The result is that the appeal, in my view, ought to be allowed, and it is allowed. The case is remitted back to the High Court to be determined. I award N¢50.00 costs to the appellant as against the respondents.

DECISION

Appeal dismissed.

S. A. B.