Tuffour v. Attorney-General [1980] GLR 637-667 [1] With the coming into force of the 1979 Constitution, the incumbent Chief Justice, Mr Justice Fred Kwasi Apaloo, was purported to be nominated as Chief Justice by the President of the Republic of Ghana in consultation with the Judicial Council. Parliament purported to vet the said Mr Apaloo in Parliament and subsequently rejected his nomination. The plaintiff, Dr Kwame Amoako Tuffour, invoked the original jurisdiction of the Supreme Court under the article 118(1)(a) of the 1979 Constitution. The plaintiff sought a declaration that upon the coming in force of the 1979 Constitution, Mr Apaloo was deemed to have been appointed Chief Justice of the Republic and as such became president and member of the Supreme Court. He also sought a declaration that the purported nomination by the President, the purported vetting and rejection by Parliament were each, acts effected in contravention of the Constitution and were therefore all null, void and of no effect. And he sought a declaration that Mr Apaloo remained Chief Justice of the Republic and President of the Supreme Court. But the Attorney-General raised a preliminary objection that the Court lacked jurisdiction; the plaintiff did not have capacity; the speaker of Parliament could not be joined to the suit. He argued that any matter coming under Article 2 of the Constitution was to be determined by the Supreme Court properly so-called and properly so constituted but not by a Court of Appeal sitting as a Supreme Court. He further averred that the plaintiff did not have capacity because anyone coming under Article 118 must have a cause of action for which a relief could be granted. The plaintiff had no relief claimed for himself. And a person invoking Article 118 must have a personal cause of action and in this case, it is the incumbent Chief Justice that had a cause of action but not the plaintiff. On the competency of the Speaker of Parliament as the first defendant, the Attorney-General argued that neither this Court nor any other Court had the power to call in question any proceedings of Parliament. The counsel for the plaintiff argued however that, the nature of the plaintiff’s writ was an action seeking an interpretation and enforcement of certain provisions of the Constitution. The matter of the tenure of office of the Chief Justice was of interest to every Ghanaian and so the plaintiff has capacity to bring this action. Since the Constitution itself did not say a person should have an interest. He further argued that the Court had jurisdiction since it was a Court of Appeal exercising the jurisdiction of the Supreme Court by virtue of the provisions of Section 3 of Part III of the First Schedule to the Constitution relating to Articles 51, 117 and 118 and that Article 2 directly referred to Article 118. Again, he argued that the Speaker of Parliament is properly sued because to say the Speaker could not be brought to Court was to say that the actions of Parliament could not be challenged. The Court made pronouncements on the preliminary objections and the case proceeded. On the substantive matter, the lead counsel for the plaintiff submitted that on the coming into force of the 1979 Constitution, a new order was created. And for there to be continuity between the old and new orders the framers put in place schemes by which certain office holders were deemed to have been appointed into the equivalent offices upon the coming into force of the Constitution. To him, one such scheme was article 127(8) and (9). And he forcefully argued and urged upon the Court that upon a true and proper construction of article 127, those Justices of the Superior Court of Judicature who held office on 23rd September 1979 retained their offices upon their taking the oaths referred to in the Second Schedule. He argued that Mr Justice Apaloo who was the Chief Justice of the Republic became the Chief Justice under the 1979 Constitution. And thus, having been pronounced Chief Justice by the Constitution itself, it was incompetent for him to be nominated, endorsed and subjected to parliamentary approval. On the other hand, the Attorney-General conceded Mr Apaloo was Chief Justice but he submitted that the Courts he presided over were different from which the new Constitution created; in that a new Supreme Court had been superimposed on to the hierarchy of courts. Since there was no Supreme Court, no Justice could be holding office of a justice of the Supreme Court. He averred that Mr Apaloo was a Chief Justice of the Court of Appeal. To qualify him to be Chief Justice now, he must be a member of the Supreme Court. And he must go through the procedure under article 127(1). He equally argued that in any event by Mr Apaloo subjecting himself to the parliamentary vetting, he had waived off his immunity the Constitution provided. This means that with his own conduct, Mr Apaloo, his privies and those claiming interest were estopped from challenging the consequences of that conduct. Issues: Whether or not the plaintiff has capacity to institute the instant action? Whether or not the Court has jurisdiction to entertain the instant action? Whether or not the Speaker of Parliament can be joined to the suit? Whether or not the incumbent Chief Justice waived off any immunity provided by the Constitution by his conduct? What was the status of the Chief Justice before the coming into force of the Constitution, 1979? Held: The plaintiff has capacity. The court has jurisdiction to entertain the present matter. The Speaker of Parliament cannot be joined in the suit. The rights of the Chief Justice could not be waived off by his conduct. The Chief Justice was the Chief Justice of the Republic of Ghana. The incumbent Chief Justice became the Chief Justice after the coming into force of the Constitution, 1979 Reasoning: The Constitution confers on every citizen of Ghana by Article 1(3)
