APALOO vs. EDWARD WIREDU [2001-2002] 2 GLR 335

CASES REFERRED TO

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

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

PRELIMINARY OBJECTION by the defendant to an action by the plaintiff challenging the eligibility of the defendant, the Acting Chief Justice, as a justice of the superior court of judicature and praying for an order to restrain him from working as justice of the superior court of judicature. The facts are sufficiently set out in the ruling.

Quashie-Idun for the defendant.

C B K Zwennes for Parliament.

Appau J. The plaintiff in this action sued the defendant who is presently the Acting Chief Justice of Ghana challenging his eligibility as a superior court judge, and praying for an order to restrain him from working as a superior court judge. The endorsement on the amended writ of the plaintiff indicates the reliefs the plaintiff is seeking. These

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are:

“(1) A declaration that the appointment of the defendant as a judge of the High Court by the National Liberation Council was wrongful.

(2) A further declaration that any promotion based on the void appointment is also null and void of no legal consequence.

(3) A declaration that the purported recall of the defendant to the bench without judicial adjudication clearing him of corruption, is null and void and of no legal consequence.

(4) An order of perpetual injunction restraining the defendant from working as a judge of the superior court of judicature.”

The plaintiff attached to the writ an application for interlocutory injunction to restrain the defendant from presenting himself to Parliament for vetting and also to prevent Parliament from vetting the defendant for the position of Chief Justice for which he has been nominated by the President of the Republic. The crux of the plaintiff’s claim and the application for injunction was that at all material times that the defendant has been working as a superior court judge for the past 30 years or so, he was not qualified to work as such so the President could not have nominated him for the post of Chief Justice of Ghana.

The defendant entered a conditional appearance to the whole action and filed a notice to raise a preliminary objection to the suit. It is this objection in limine which I have been obliged in law to determine. According to counsel for the defendant, led by Quashie-Idun, Esq, the gist of the plaintiff’s claim is a challenge to the constitutionality of the defendant’s appointment as justice of the superior court of judicature. According to leading counsel, whatever happened before 1969 and after, notwithstanding, the defendant was duly appointed to his present position under the Constitution, 1992 and is therefore legally holding that position. Counsel said any challenge to his position or any subtle moves to have him removed are matters which have to be decided upon a proper interpretation of the Constitution, 1992, a task which article 130(1) of the Constitution, 1992 does not mandate this court to do.

Counsel again referred to article 146 of the Constitution, 1992 on

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the procedure by which a justice of the superior court could be removed from office and submitted that the High Court, and for that matter this court, has no power to declare the validity or otherwise of the defendant’s appointment as a superior court judge. Counsel therefore prayed for the dismissal of the entire suit and all other applications following same.

Mr C B K Zwennes, appearing for Parliament which was notified about this action, associated himself with the submissions made by counsel for the defendant. He referred to Part Three of the first Schedule to the Constitution, 1992 on the transitional provisions, particularly paragraph 4(1) which validates the appointment of the defendant to his present position and submits that it is the interpretation of this section of the Constitution, 1992 which is being called into question.

In reply to the submissions by defence counsel, counsel for the plaintiff contended that the objections raised were baseless as the reliefs the plaintiff is seeking do not call for the interpretation of any constitutional provision. Counsel referred the court to some Supreme Court cases, viz, Republic v Maikankan [1971] 2 GLR 473, SC and Yiadom I v Amaniampong [1981] GLR 3, SC which in the opinion of the court have no place at all in the issue presently at stake.

I have considered the submissions made by counsel for the defendant and the plaintiff, plus the useful additions made by counsel for Parliament and I am quite at a loss as to why counsel for the plaintiff thinks this court has the power to make the declarations he is asking for. What I want to remind counsel for the plaintiff of is that there is nothing like promotion in the strict sense of the word with regard to appointments to the bench. Any appointment to any hierarchy of the court is a fresh appointment not a promotion as such, that is why all appointees are required to take and subscribe to oaths of allegiance and the judicial oath upon an appointment. The present defendant is therefore not at post because of any appointment made by the National Liberation Council in 1968.

As counsel for the defence rightly pointed out, the defendant derived his present position from the Constitution, 1992 as provided under paragraph 4(1) of Part Three of the First Schedule to the Constitution, 1992. It reads:

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“4 (1) A Justice of the Supreme Court, the Court of Appeal, or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under this Constitution.”

If therefore, it is the case of the plaintiff that at the time the Constitution, 1992 validated the appointment of the defendant as a Supreme Court judge or a justice of the superior court of judicature, he was not qualified to be appointed as such, then the question of interpretation with regard to this section of the Constitution, 1992 and again whether or not acts done by the previous governments to wit, the National Liberation Council and the Provisional National Defence Council affecting the position of the defendant were properly done or not come to the fore.

In my view, these are questions which fall squarely under article 130(1) of the Constitution, 1992 for which exclusive jurisdiction has been reserved for the Supreme Court. I do not want to be tempted to stray into unfriendly waters where I am not supposed to swim for fear of being consumed by sharks.

Apart from the enforcement of the fundamental rights and freedoms of individuals, all other matters bordering on the interpretation and enforcement of the Constitution, 1992 and also for the determination as to whether acts done by the National Liberation Council or the Provisional National Defence Council were done in excess of their powers or not are matters exclusively preserved for the able mind of the Supreme Court. I have not reached that stage so I cannot assume that jurisdiction which clearly, I do not have.

I therefore uphold the objection raised by counsel for the defendant and state without any equivocation that I am not clothed with any authority to determine the substantive suit before me; likewise all the various applications flowing from same. Who am I to declare that a superior court judge is not qualified to hold his post? I therefore dismiss the suit for want of jurisdiction.

Action dismissed.

E K D-O