ADUAMOA II vs. TWUM II [1999-2000] 2 GLR 409

CASES REFERRED TO

(1) Gbedemah v Awoonor-Williams (1969) 2 G & G 428.

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

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

(4) Edusei (No 2) v Attorney-General [1998-99] SC GLR 753.

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

(6) Republic v Maikankan [1971] 2 GLR 473, SC.

ACTION invoking the original jurisdiction of the Supreme Court under article 2(1) and 130(1) of the Constitution, 1992 for a declaration, inter alia, that the defendant, having been convicted by the National Public Tribunal on the offence of defrauding by false pretences, contrary to section 131 of the Criminal Code, 1960 (Act 29), was not qualified to act as a chief pursuant to the provisions of article 275 of the Constitution, 1992. The facts are sufficiently set out in the ruling of the court delivered by Acquah JSC.

Nutifafa Kuenyehia for the plaintiffs.

Dr Seth Twum for the defendant.

Afrifa Gyasie, Chief State Attorney, for the Attorney-General.

Acquah JSC. Delivered the ruling of the court. My Lords, the original jurisdiction vested in the Supreme Court under articles 2(1) and 130(1) of the Constitution, 1992 to interpret and enforce the provisions of the Constitution, is a special jurisdiction meant to be invoked in suits raising genuine or real issues of interpretation of a provision of the Constitution, or the 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 Constitution: see Gbedemah v Awonoor-Williams. (1969) 2 G&G 438; Tait v Ghana Airways Corporation (1970) 2 G & G 527 Yiadom I v Amaniampong [1981] GLR 3, SC; Edusei v Attorney-General [1996-97] SC GLR 1, on review Edusei v Attorney-General (No

[p.412] of [1999-2000] 2 GLR 409

2) [1998-99] SGCLR 753 and Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, CA.

This special jurisdiction is not meant to usurp, or to be resorted to in place of any of the jurisdictions of a lower court. In other words, where our said jurisdiction has been invoked in an action which properly falls within a particular course of action at a lower court, this court shall refuse to assume jurisdiction in that action, notwithstanding the fact that it has been presented as an interpretation enforcement suit or both. For, a large number of actions which fall within specific causes of action can be presented in the form of interpretation or enforcement actions or both. For example, if someone goes to farm or commences building on another person’s land, the latter can file a suit at the Supreme Court invoking its original jurisdiction for a declaration that the said entry unto his land constitutes an invasion of his right to his property under article 18 of the Constitution, 1992, damages for such violation, and an order to recover his property. But it is quite clear that such a suit is really a land suit falling within the jurisdiction of the lower court with the authority to handle claims of the value of the land in dispute.

In Tait v Ghana Airways Corporation (supra) the plaintiff, a pilot, was employed by the defendant in a written service agreement dated 1 January 1967. On 24 April 1967, a DC-3 plane he was piloting from Kumasi to Accra crashed in a field near Takoradi with a loss of a passenger. He was suspended “without prejudice” and an enquiry into the cause of the crash was held. The report of the enquiry was presented to the Government and his suspension was withdrawn. But in a letter dated 29 May 1970, signed by the managing director of the defendant, he was informed that his service with the defendant were no longer required and ordered to vacate his official bungalow. Dissatisfied with the termination of his services, he invoked the original jurisdiction of the Supreme Court under article 106(1)(a) of the Constitution, 1969, (the equivalent of article 130(1)(a) of the Constitution, 1992) for:

“(a) A declaration that his dismissal from the employment of the defendant corporation communicated to the plaintiff by a letter dated 29 May 1970 purporting to be signed by the managing director of defendant corporation, is

[p.413] of [1999-2000] 2 GLR 409 wrongful and invalid under the Constitution, 1969, in particular articles 138 and 140 there of.

(b) Consequential relief.”

Article 138 of the Constitution, 1969 dealt with the protection of public services, while article 140 dealt with appointments of public officers. The action of the plaintiff was clearly one founded in employer-employee relationship, particularly that of wrongful dismissal, and did not involve an enforcement or both or interpretation of the provisions of the Constitution referred to. Not surprising therefore, the Supreme Court in refusing to assume jurisdiction, said at 529 of the Report: “We have already held that on its construction and having regard to the issues settled, the plaintiffs action is essentially one of wrongful dismissal and does not, therefore, fall within the ambit of article 106(1)(a) … It is an action for wrongful dismissal under the common law, which is part of the laws of Ghana. . . Since our original jurisdiction is limited to article 106, we are driven to the conclusion that this court is not seised with jurisdiction to try this suit as a court of first instance.”

Now, where the thrust of the action is not one of enforcement or interpretation, and that the issue of interpretation, if it arises, is ancillary to the determinate of the claims of the parties, the proper procedure is for that suit to be filed at the court or tribunal which has jurisdiction over the claims of the parties. And if that court, in the course of determining the claims, takes the view that the said issue is one of interpretation, that court can refer that issue to the Supreme Court under article 130(2) of the Constitution, 1992. Article 130 reads of the Constitution, 1992:

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

(a) all matters relating to the enforcement or interpretation of this Constitution; and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.

[p.414] of [1999-2000] 2 GLR 409

(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”

Article 130(2) of the Constitution, 1992 therefore empowers any court below to refer to the Supreme Court for determination any issue relating to article 130(1) thereof.

Now it is very important to understand and appreciate that the Constitution, 1992 is the fundamental and supreme law of the land, the provisions of which no other law is permitted to contradict. As stated in article 1(2) thereof:

“(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.”

Therefore all courts, tribunals, institutions, including the Government, and all individuals are bound by its provisions. Accordingly, all courts, tribunals and indeed all adjudicating authorities in Ghana are obliged to apply the provisions of the Constitution, 1992 in the adjudication of disputes before them. Thus, in a land suit by an alien plaintiff for declaration of title to a portion of stool land, the court before whom the suit is pending, is obliged to apply the provisions of chapter 21 of the Constitution, 1992, (dealing with lands and natural resources) to the determination of the claim. It is only where in the determination of such a claim before the lower court, an issue of interpretation or that of the validity of a law vis-à-vis the provisions of the Constitution, 1992 arises, that the lower court is obliged to stay proceedings and refer the said constitutional issue to the Supreme court for determination. Short of that, the lower court is within its rights to study the relevant provisions of the Constitution and apply them to the resolution of the claims. For as Bannerman CJ said in Republic v Maikankan [1971] 2 GLR 473 at 478, SC: “. . . a lower court is not bound to refer to the Supreme Court every submission alleging as an issue the determination of question of interpretation of the Constitution or of any other

[p.415] of [1999-2000] 2 GLR 409 matter contained in article 106(1)(a) or (b). If in the opinion of the lower court the answer to a submission is clear and unambiguous on the face of the provisions of the Constitution or laws of Ghana, no reference need be made since no question of interpretation arises and a person who disagrees with or is aggrieved by the ruling of the lower court has his remedy by the normal way of appeal, if he so chooses. To interpret the provisions of article 106(2) of the Constitution in any other way may entail and encourage references to the Supreme Court of frivolous submissions, some of which may be intended to stultify proceedings or the due process of law and may lead to delays such as may in fact amount to denial of justice.”

When then does a real or genuine issue of interpretation or enforcement of a provision of the Constitution, 1992 arise for determination by the Supreme Court, either in the exercise of its original jurisdiction under article 130(1)(a) or in its reference jurisdiction under article 130(2) of the Constitution, 1992? In Tait v Ghana Airways Corporation (supra) at 528, the court said:

“. . . unless the words of an article of the Constitution are imprecise and ambiguous, an issue of interpretation does not arises. Where the language of the Constitution is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. The mere fact that a party invokes in support of his case, a provision of the Constitution which is couched in plain unambiguous language, does not turn an action the true nature of which is one of wrongful dismissal into one relating to the interpretation of a provision of the Constitution within the meaning of article 106(1)(a).”

In the Republic v Special Tribunal; Ex parte Akosah (supra), at 605 the court after examining the relevant authorities on the subject, came to the conclusion that an issue of enforcement or interpretation of a provision of the Constitution would arise in any of the following eventualities:

“(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 do declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;

[p.416] of [1999-2000] 2 GLR 409

(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 of interpretation.”

At 605 of the Report, the court continued:

“. . . there is no case of ‘enforcement or interpretation’ where the language of the article of the Constitution is clear, precise and unambiguous . . Again, where the submission made relates to no more than a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case of interpretation arises.”

In summary then, whereas the original jurisdiction to interpret and enforce the provisions of the Constitution, 1992 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.

With these basic principles in mind, let us now turn to the instant suit. One Nana Gyakorang Adu Twum II, Chief of Kade in the Akyem Abuakwa Traditional Area, was convicted by the erstwhile national public tribunal on 29 March 1993 on a charge of defrauding by false pretences, contrary to section 131 of the Criminal Code, 1960 (Act 29) and sentenced to six month imprisonment with hard labour. He was also ordered to pay a fine of ¢10,000 or in default to serve a further sentence of three months imprisonment with hard labour. A year thereafter, the plaintiffs, claiming to be citizens of Ghana and hailing from Kade, invoked the original jurisdiction of this court under articles 2 and 130(1)(a) of the Constitution, 1992 against the chief, for:

“(a) A declaration that the defendant, having been convicted by the National Public Tribunal on 29 March 1993 on the

[p.417] of [1999-2000] 2 GLR 409 offence of defrauding by false pretences, contrary to section 131 of the Criminal Code 1960 (Act 29), is not qualified to be or act as a chief pursuant to the provisions of article 275 of the Constitution,

1992. The defendant is accordingly destooled as the Kadehene of Akyem Abuakawa,

(b) An order that the defendant vacates the Kadehene’s palace fourteen days after this court’s order.

(c) An order that the defendant renders an account of all stool properties to the kingmakers of the Kade stool.”

In their statement of case, the plaintiffs recounted the facts as set out above and contended that by virtue of that conviction the defendant was disqualified from acting as a chief in accordance with article 275 of the Constitution, 1992.

The defendant in his statement of case admitted being the chief of Kade, and that he had been convicted by the National Public tribunal. But he contended that the trial was engineered and piloted by the fifth and sixth plaintiffs who had been agitating for his destoolment.

On the orders of the court, the Attorney-General was served with copies of the pleadings. In his answer to the plaintiffs’ case, the Attorney-General pleaded, inter alia, as follows:

“(2) . . . it is submitted that the procedure adopted by the plaintiffs in their writ is improper for the following reasons:

(a) Despite the manner in which the case is couched, there is no doubt that the object of the plaintiffs is to remove the defendant, or to destool him, if in fact, he has been convicted for high treason, high crime or for an offence involving the security of the state, fraud dishonesty or moral turpitude?

(b) Since the object of the plaintiffs is the removal or destoolment of a chief who has acted in breach of article 275, the appropriate remedy for the plaintiff is to file destoolment proceedings at the judicial committee of the Akim Abuakwa Traditional Council stating reasons why Nana Gyankorang Adu Twum II can no longer exercise the functions and duties of chief of Kade.

[p.418] of [1999-2000] 2 GLR 409

(c) This view of the matter is supported by the Supreme Court decision in Nana Yiadom I v Amaniampong [1981] GLR 3, SC.”

Now, as borne out by their writ of summons, the plaintiffs seek a declaration that the defendant is not qualified to be a chief, an order to destool him, to remove him from his palace, and finally account for all stool properties. The defendant is admitted to be presently the chief of Kade. And obviously, the effect of these reliefs is to seek his destoolment. Is such an action, not a cause or matter affecting chieftaincy?

A cause or matter affecting chieftaincy is defined in section 66 of the Chieftaincy Act, 1971 (Act 370) as follows:

“Cause or matter affecting chieftaincy means any cause, matter, question or dispute relating to any of the following— (a) The nomination, election, appointment or installation of any person as a chief or the claim of any person to be nominated, elected, appointed or installed as a chief.

(b) The destoolment or abdication of any chief.

(c) The right of any person to take part in the nomination, election, appointment or installation of any, person as a chief or in the destoolment of any chief.

(d) The recovery or delivering of stool property in connection with any such nomination, election, appointment, installation, destoolment or abdication.

(e) The constitutional relations under customary law between chiefs.”

The reliefs claimed by the plaintiffs obviously fall within the above definition. And the fact that the plaintiffs claim to base their action on a provision of the Constitution, 1992 does not change the true nature of the action. For, as Apoloo CJ said in Yiadom I v Amaniampong (supra) at 5-6: “A chief becomes one because he is placed on a stool, that is, enstooled. When he is removed from it, he is said to be destooled. These are the expressions which both usage and legislation have hallowed: see section 51 of the Chieftaincy Act, 1971 (Act 370). The fact that both the plaint and plaintiff’s counsel shrank from using these expressions does

[p.419] of [1999-2000] 2 GLR 409 not lead us to believe that these proceedings are in substance and truth other than destoolment proceeding.”

The Constitutions, 1992 which granted to the Supreme Court original jurisdiction to interpret and enforce provisions of the Constitution also guaranteed in chapter 22 thereof the institution of chieftaincy and vested in the chieftaincy tribunals, the jurisdiction to determine any cause or matter affecting chieftaincy. In this wise, the Supreme Court was vested with final appellate jurisdiction from the decisions of the judicial committee of the National House of Chiefs. The Supreme Court has no jurisdiction to determine at first instance, actions seeking the destolment of a chief, or seeking an order for a chief to vacate from his palace, or ordering him to render accounts of stool properties. Neither is the Supreme Court’s original jurisdiction to interpret and enforce the provisions of the Constitution meant to be employed in place of the jurisdictions vested in the chieftaincy tribunals. Accordingly, notwithstanding the manner in which the plaintiffs’ action is presented, it is clear that its proper forum is the appropriate chieftaincy tribunal. And, if in the course of the determination of the action at that chieftaincy tribunal, the tribunal takes the view that the meaning of article 275 is not clear and therefore needs the interpretation of the Supreme Court, that tribunal is entitled under article 130(2) of the Constitution, 1992 to refer this issue to this court, and stay its proceedings to await our opinion. Our jurisdiction has therefor been wrongfully invoked and this action ought to be and is hereby struck out.

Action struck out.

LSNA