IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT OF GHANA

ACCRA

_________________________________

CORAM: WIREDU, AG. CHIEF JUSTICE

MRS. J BAMFORD-ADDO, J.S.C.

AMPIAH, J.S.C.

KPEGAH, J.S.C.

ADJABENG, J.S.C.

ACQUAH, J.S.C.

ATUGUBA, J.S.C.

MS. AKUFFO, J.S.C.

LAMPTEY, J.S.C.
CM NO. 8/2001

25TH APRIL, 2001

MARTIN ALAMISI AMIDU ....

PLAINTIFF/RESPONDENT

VERSUS

1. JOHN AGYEKUM KUFUOR

PRESIDENT OF GHANA

OFFICE OF THE PRESIDENT

ACCRA

2. THE ATTORNEY-GENERAL

ATTORNEY-GENERAL'S DEPT.

ACCRA

3. JAKE OBETSEBI-LAMPTEY

NEW PATRIOTIC PARTY

HEADQUARTERS - ACCRA

4. ELIZABETH OHENE

NEW PATRIOTIC PARTY

HEADQUARTERS – ACCRA ....

DEFENDANTS/APPLICANTS

5. JOSHUA HAMIDU

NEW PATRIOTIC PARTY

HEADQUARTERS – ACCRA

________________________________________________________________
________________________

RULING

EDWARD WIREDU, AG. CHIEF JUSTICE

This ruling is the outcome of a preliminary objection raised on behalf of the

Defendants by the Attorney General on the following grounds:
(1) This Court lacks jurisdiction to entertain the Plaintiffs action against the
Defendants herein;

(2) That no cause of action is disclosed by Plaintiff's Writ and the Statement of
Case;

(3) That the questions raised in the Plaintiff's action for determination are
moot; and for such further or other Orders as to this Honourable Court may
seem it.

Article 11 of the 1992 Constitution Provides as follows:—

11. (1) The law of Ghana shall comprise

(a) this Constitution;

(b) enactment’s made by our under the authority of the Parliament established
by this Constitution;

(c) any Orders, Rules and Regulations made by any person or authority under a
power conferred by this Constitution;

(d) the existing law; and

(e) the common law.

From the above it will be observed that there are five different kinds of laws
which are recognised and enforceable in the courts of Ghana.
Each Court in Ghana has it's own jurisdiction prescribed for it under the laws of
Ghana. Some of these laws are not enforceable directly by invoking the original
jurisdiction of the Supreme Court. Save those specifically provided for under
Article 130 (1) and (2) of the Constitution which read as follows:—

ARTICLE 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.

(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.

That there are different kinds of laws in Ghana in addition to the provisions of
the Constitution itself is also buttressed by Article 1(2) which states in effect
that any law which is inconsistent with any provision of this Constitution is to
the extent of such inconsistency void. See also Article 2 (1) (a).
The events which have provoked this case are provided by the Plaintiff in his
Statement of Claim paragraphs 2 - 7 with particular reference to paragraphs 5
& 6.

The said paragraphs read as follows:—

2. The 1st Defendant is the President of the Republic of Ghana and is being
sued as a person whose conduct is violating the Constitution of Ghana.

3. The 2nd Defendant is the Attorney-General and the Principal Legal Adviser
to the Government who is being sued as the person against whom all civil
proceedings affecting the state shall be instituted.

4. The 3rd, 4th and 5th Defendants are private citizens of Ghana and members
of the New Patriotic Party (a Political Party and a corporate body registered
under the laws of Ghana) who are holding themselves out as Officers or Staff in
the Office of the President of Ghana.

5. After the 1st Defendant assumed office as the President of Ghana, he

purported to appoint the 3rd, 4th and 5th Defendants as Chief of Staff,
Presidential Adviser for Public Affairs and National Security Adviser
respectively.

6. The purported appointment by 1st Defendant of the 3rd, 4th and 5th
Defendants as Staff in the Office of the President were done without
consultation with the Council of State as required by the Constitution and the
law of Ghana. (the emphasis is mine).

7. The 3rd, 4th and 5th Defendants have since their illegal and unconstitutional
appointment by the 1st Defendant intentionally and deliberately held
themselves out and acted as Officers of Staff in the Office of the President.
It is clear from the above that the 1st Defendant as the President of the
Republic of Ghana is alleged to have violated the provisions of the law
governing the appointment of some members of staff of his office.

The question then is, what kind of law is the Plaintiff complaining about i.e.
(the alleged or the purported appointments).

The answer to the above question posed, is in my judgment the Presidential

Office Act 1993 (Act 463). This Act is the creator of the various positions and
other office holders of the President's Office. Such staffers are not the creature
of the Constitution. Nowhere in the Constitution is mention made of the
positions allegedly held by the 3rd, 4th and 5th Defendants as stated in
paragraphs 5 and 6 of the Plaintiff's statement of claim. The positions as
mentioned in paragraphs 5 and 6 supra cannot be the subject matter of
adjudication by invoking the original jurisdiction under Article 2(1)(b) of the
Constitution on which the Plaintiff is basing his claim.

I am of the respectful view therefore that the alleged violation of the provision
of a statute such as Act 463 fails outside a provision of the Constitution. For an
action to lie in this Court under Article 2 (1) (b) a specific provision of the
Constitution itself must be the subject for consideration.

The enforcement and interpretation of Act 463 of 1993 in this regard lies
elsewhere and not in this Court. Act 463 is not an extension of any provision of
the Constitution but a Statute which deals with the Offices of the President. Its
provisions are not to be elevated to the status of a provision of the
Constitution. In my judgment therefore this Court lacks jurisdiction to
entertain the Plaintiff's action.

I will now deal with the 1st Defendant in this case. The 1st Defendant
undisputedly is the President of Ghana and the Commander-In-Chief of the
Ghana Armed Forces. In the course of writing my opinion I received the
opinion of my sister Sophia Akuffo, J.S.C. She has exhaustively and eruditely
reviewed the facts of this case and dealt with the law as far as the 1st
Defendant is concerned. To avoid repeating the facts and the law I can say and
I say here that I endorse her views. I agree that the action by the Plaintiff
against the 1st Defendant in his personal capacity is misconceived and ought to
be dismissed.

With regard to the 2nd Defendant the Attorney-General, I unfortunately have

to part company with her. I am of the respectful view that at the time of filing
his writ the Plaintiff knew well that there was no Attorney-General at post. I
am of the view that if there was, the Plaintiff would have been content with
suing the 2nd Defendant alone as the Defendant instead of going against the
1st Defendant also who was performing his executive functions. On the
arguments put forward by my sister Sophia Akuffo, J.S.C. as to joinder of
parties, the rules of Court presume that the person sought to be joined must
be known to exist as rightly argued by her. In the instant case, however the
post of the Attorney General was vacant and no one had been put in place, at
the time the said writ was filed. He could not therefore be joined as a party. I
think in this regard the haste with which the Plaintiff issued out his writ ought
not be disregarded. The writ ought to be struck out as having been
prematurely issued. I hold in my judgment that the Attorney-General who
under the Constitution is answerable in Court for the executive acts of the 1st
Defendant, who had not been put in place at the time the Plaintiff issued his
writ is entitled to move for the writ to be set aside. In my view it is impossible
to join a non-existing personality.

With regard to the rest of the Defendants, I associate myself with her views
and ask myself, following the case of Ghana Bar Association Vrs. Attorney
General & Abban, S.C. December 5th 1995 unreported, what have the 3rd, 4th
and 5th Defendants done or omitted to do to make them answerable in Court
under Article 2 (1) (b) of the Constitution? Article 2(1)(b) reads

"(1). A person who alleges that—

(b) any act or omission of any person is inconsistent with, or is in contravention
of a provision of this Constitution, may bring an action in the Supreme Court
for a declaration to that effect.”

The above quoted article presupposes that the person sued must have done or
omitted to do something in contravention of a provision of the Constitution
which can provoke an action under 2(1)(b).

The obvious answer to the above question is that they have done nothing on
the facts of this case. Admitting even that the facts allegedly made by the
Plaintiff are true, they did not appoint themselves as to make them answerable
for the act of whoever appointed them. As pointed out in the able opinion of
my sister Sophia Akuffo they are the objects of the 1st Defendant's action.

Finally, the present undisputed position of the 3rd Defendant at the date when
the submissions were made in this case was that he had already been sworn in
as a Minister of State for Presidential Affairs, the 4th Defendant as a Minister
of State responsible for Media Relations and the 5th Defendant as Security
Adviser. The above appointments are now matters of public notoriety and it
also shows that none of these Defendants i.e. 3rd, 4th and 5th holds any office
under Act 463 of 1993 as claimed by the Plaintiff as specified in his statement
of case.

In BARAKE VRS. BARAKE, High Court, Accra of 25th June, 1990 unreported
Brobbey, J. (as he then was) had this to say:

“If we should provide any meaningful service to the people of this society
wherein our Courts operate, it is imperative that we in the Courts muster
sufficient courage to take cognisance of the happenings in our society and
ensure that our judgments duly reflect facts of common notoriety. Facts so
notorious that everyone in our society can be deemed to be aware of, can be
said to be matters in respect of which judicial notice can be taken".
On this score I accept the argument that the case is now moot and no useful
purpose will be served by going into the merits. On the present facts Plaintiff
has not been able to prove that the alleged appointments complained about
have been made.

MRS. BAMFORD-ADDO, J.S.C.

I agree.

ACQUAH, J.S.C.

My Lords, does this Court have jurisdiction to entertain a suit, the subject-
matter of which seeks to challenge an executive action of the President of the
Republic? The learned Attorney-General says that there is no such jurisdiction,
while Mr. Martin Amidu vehemently contends otherwise. But first, the facts.

Following the victory of the New Patriotic Party (NPP) in the December 2000
parliamentary and presidential elections, Mr. J. A. Kufuor was sworn in as the
President of the Republic on 7th January 2001. Not long thereafter, a number
of persons were announced as assisting the President in the performance of
his official duties. Three of such persons are Mr. Jake Obetsebi-Lamptey,
Elizabeth Ohene and Joshua Hamidu. Taking the view that the appointments of
these persons were improper, Mr. Martin Amidu, filed the instant action at the
Supreme Court, against Mr. J. A. Kufuor as 1st defendant, the Attorney-General
as 2nd defendant, and Jake Obetsebi-Lamptey, Elizabeth Ohene, and Joshua
Hamidu as 3rd, 4th and 5th defendants respectively, claiming:

1. A declaration that:

(i) On a true and proper interpretation of the Constitution, particularly articles

58 (1) and (2), 91(1) and (2), 190 and 295 thereof, and sections 2, 3, 4 of the
Presidential Office Act 1993 (Act 463) the 3rd, 4th and 5th defendants cannot
be appointed by the President as staff of the Presidential office without
consultation with the Council of State.

(ii) The conduct of the 1st Defendant President John Agyekum Kufuor, in
appointing 3rd, 4th and 5th Defendants as staff of the Presidential office
without consultation with the Council of State is inconsistent with and in
contravention of the latter and spirit of the Constitution.

(iii) The conduct of the 3rd, 4th and 5th defendants in holding themselves out
and action as officers or staff in the office of the President is inconsistent with
and in contravention of the Constitution.

(iv) Accordingly, all acts undertaken by the 3rd, 4th and 5th defendants as
officers or staff in the office of the President are inconsistent with and in
contravention of the Constitution, null, void and without effect whatsoever.

2. Perpetual injunction restraining the 1st defendant President from appointing

the 3rd, 4th and 5th defendants as staff to the Presidential office without
consulting the Council of State.

3. Perpetual injunction, restraining the 3rd, 4th and 5th defendants from
continuing to hold themselves out and acting as officers or staff in the office of
the President.

4. Such other orders or directives as the Court may seem fit to give effect to
the above declaration.

At the time this writ was filed, Parliament had not yet approved the
nomination of any person to the office of Attorney-General.
On 9th February 2001 after the Honourable Nana Akufo Addo had been sworn
into the office as the Attorney-General, he filed this motion seeking an order to
set aside the writ and statement of case on grounds that

i. This Court lacks jurisdiction to entertain the plaintiff's action against the
defendants herein.

ii. That no cause of action is disclosed by plaintiff's writ and the Statement of
Case and

iii. That the questions raised in the plaintiff's action for determination are
moot.

In an affidavit opposing the application, Martin Amidu swore, inter alia,:

"4. The plaintiff/respondent says that the President of Ghana in amenable to

the jurisdiction of this court in the exercise of the executive authority
conferred on him by the Constitution.

5. The plaintiff/respondent says further that the purported appointment of the

3rd, 4th and 5th defendants/applicants as Chief of Staff, Presidential Adviser
on Public Affairs, and National Security Adviser respectively by the 1st
defendant/applicant without consultation with the Council of State cannot be
said to be an exercise of the executive authority conferred on him by the
Constitution.

6. The plaintiff/respondent says in addition that a declaration or a declaration

in the nature of quo warranto can be made by the court against the 1st
defendant/applicant in this action in addition to an order of injunction, or
mandamus pursuant to article 2 of the Constitution.
7. The plaintiff respondent contends that there are triable issues between the
parties in this action.

8. The plaintiff/respondent contends further that the mere subsequent

approval by Parliament and appointment of the 3rd and 4th
defendants/applicants as Ministers of State on 6th February 2001 does not
render this action moot.

9. The plaintiff/respondent says that the 2nd defendant/applicant was used

only in a nominal capacity.

10. The plaintiff/respondent says further that the fact that there was no
substantive person appointed as the Attorney-General at the time the writ and
statement of case were filed did not mean that no action could be commenced
against the State in the name of the Attorney-General.

11. The plaintiff/respondent maintains that the application to set aside the writ
and statement of case has no merit whatsoever."

Moving his motion, the learned Attorney-General, advanced a number of

arguments. He contended, inter alia, that since the complaint relates to the
performance by the President of his executive function, this court has no
jurisdiction to go into the matter. He referred to the doctrine of the separation
of powers underlying the 1992 Constitution, and argued that any such
interference by this Court would violate this doctrine. Furthermore, it was
wrong for the President to be sued since article 57(4) grants him immunity
from legal proceedings while in office subject to the operation of the
prerogative writs.

He further contended that since the institution of his action, the 3rd and 4th
defendants have been nominated for ministerial positions, and that Parliament
has approved the said nominations. Consequently the plaintiff's actions is now
moot and no more live for adjudication. He pointed out that at the time the
writ was issued no one had been appointed to the office of the Attorney-
General, and that since the personality of the office is important, the action
cannot be entertained. He cited in support of his arguments cases like NPP vrs.
President J. J. Rawlings, Writ No, 15/9 of 3rd May 1994; and J. H. Mensah vrs.
Attorney-General (1996-97) SCGLR 320.

Mr. Martin Amidu in his response to the arguments of the Attorney-General,

vehemently disagreed with each of the above arguments. Referring to article
2(1) of the 1992 Constitution he submitted that this Court has jurisdiction to
entertain his action. Conceding that his action is not one seeking a
prerogative order, he nevertheless argued that the President was amenable to
the jurisdiction of this Court under article 2. He said that the Attorney-General
was sued as a nominal defendant and therefore the absence of a substantive
Attorney-General at the time he issued his writ, was immaterial. He further
submitted that notwithstanding the approval of the 3rd and 4th defendants by
Parliament, his compliant could still be heard.

There is no doubt that the 1992 Constitution prescribes a government

consisting of three branches: the legislative, executive, and the judicial. Each
playing a distinct role.

Apart from these three branches of government, the Constitution also

establishes a number of offices, bodies and institutions.

Now each of these branches of government, offices, bodies and institutions is,
of course, subject to the Constitution, and is therefore required to operate
within the powers and limits conferred on it by the Constitution. And in order
to maintain the Supremacy of the Constitution and to ensure that every
individual organ of state, body or institution operates within the provisions of
the Constitution, authority is given in article 2 thereof, to any person who
alleges that the conduct or omission of anybody or institution is in violation of
a provision of the Constitution to seek a declaration to that effect in the
Supreme Court.
Thus so long as an individual, body, institution or organ of the government
performs its functions in accordance with the relevant Constitutional
provisions and the law, the Supreme Court has no business or jurisdiction to
interfere in the performance of its functions. But where it is alleged before the
Supreme Court that any organ of Government or an institution is acting in
violation of a provision of the Constitution, the Supreme Court is duty bound
by articles 2(1) and 130(1) to exercise jurisdiction, unless the Constitution has
provided a specific remedy, like those of articles 33 and 99 for dealing with
that particular violation.

It follows therefore that no individual nor creature of the Constitution is

exempted from the enforcement provision of article 2 thereof. No one is above
the law. And no action of any individual or institution under the Constitution is
immuned from judicial scrutiny if the constitutionally of such an action is
challenged. Thus the doctrine of the political question found mainly in the US
Constitutional jurisprudence by which the courts refuse to assume jurisdiction
in certain disputes because the subject-matter of those disputes are alleged to
be “ textually committed” to that institution, is inapplicable in our
constitutional law because of the power granted to any person in article 2 of
our Constitution to challenge the constitutionality of any action or omission of
an individual or institution. For under the 1992 Constitution if even the body in
question is independent from any other authority, the Courts can still assume
jurisdiction in disputes alleging that that institution is acting in violation of the
Constitution.

Because article 295(8) provides:

“No provision of this Constitution or of any other law to the effect that a
person or authority shall not be subject to the direction or control of any other
person or authority in the performance of any functions under this
Constitution or that law, shall preclude a court from exercising jurisdiction in
relation to any question whether that person or authority has performed those
functions in accordance with this Constitution or the law" (emphasis mine).
Thus in J. H. Mensah vrs. Attorney-General (1996-97) SCGLR 320 at 368, it was
explained:

“... if by the political question doctrine, it is meant that where the Constitution
allocates power or function to an authority, and that authority exercises that
power or function within the parameters of that provision and the Constitution
as a whole, a court has no jurisdiction to interfere with the exercise of that
function, then I entirely agree that the doctrine applies in our Constitutional
jurisprudence. For this is what is implied in the concept of the separation of
powers. But if by the doctrine, it is meant that even where the authority
exercises that power in violation of that constitutional provision, a court has no
jurisdiction to interfere because it is the Constitution which allocated that
power to that authority, then I emphatically disagree.

For two reasons: First, articles 2(1) and 130(1) of the 1992 Constitution
empower this Supreme Court to declare null and void not only any enactment
but also any act of omission of any person which is inconsistent or in
contravention of the Constitution, Secondly, if even the power or function is
entrusted exclusively to an authority ... and in the exercise that function the
authority is subject to no direction or control of anybody, article 295(8) of the
1992 Constitution still empowers the Ghanaian Courts to enquire into whether
that authority is exercising that function in accordance with the Constitution".

Consequently I hold that this Court has jurisdiction under article 2(1) and
130(1) in respect of suits challenging the constitutionality of an executive
action of the President. As to whether the President should personally be
made a defendant to such an action is another matter depending on the scope
of the immunity from legal action granted to the President while in office.

Generally speaking, the head of state, in most jurisdictions, is granted absolute

immunity from legal proceedings in any civil or criminal actions while in office.
But the head of state's immunity from legal proceedings in respect of actions
arising from the performance of his official duties while in office, raises an
interesting problem.

A head of state, is certainly the first citizen of every state, and as Justice
William Douglas said in Youngstown Street & Tube Co. vrs. Sawyer 343 US 579
(1952) at 663.

"... represents the people and is their spokesman in domestic and foreign
affairs. The office is respected more than any other in the land. It gives a
position of leadership that is unique. The power to formulate polices and
mould opinion inherent in the Presidency and conditions out national life".

But to grant the President immunity from such actions may remove the
needed accountability which he owes to the people whom he represents.
While to allow him to be subject to such suits could make the execution of
presidential duties impossible. The question therefore is whether the President
while in office should not be granted any immunity at all from legal
proceedings in respect of actions arising from the performance of his official
duties, or be granted qualified immunity, or absolute immunity.

In the US, the Supreme Court's first significant venture into the area of
executive immunity came in the aftermath of the Civil War. In Mississippi vrs.
Johnson 4 Wall 475 (1867) the court was asked to enjoin the president from
executing laws passed by Congress the grounds that the laws were
unconstitutional the Court unanimously held that the president was immune
from such suits.

Kenya, grants absolute immunity to the President in article 14(2) of the 1992
Constitution (Revised 1998) in the following:

"No civil proceedings in which relief is claimed in respect of anything done or

omitted to be done shall be instituted or continued against the president while
he hold office or against any person while he is exercising the functions of the
office of President."

But in Namibia and Eritrea, the President has no immunity from legal
proceedings in respect of acts done in his official capacity. Thus article 31(1) of
the 1990 Constitution of Namibia provides:

"No person holding the office of the President or performing the functions of
President may be sued in any civil proceedings save where such proceedings
concern an act done in his or her official capacity". (emphasis mine)

Likewise article 43 of the 1996 Constitution of Eritrea too provides:

"Any person holding the office of the President may not be sued in any civil
proceedings or charged for a crime, save where such proceedings concern an
act done in his official capacity as President..." (emphasis mine).

What is the position in Ghana? Article 57(4) and (5) of the 1992 Constitution
provide:

"57(4) Without prejudice to the provisions of article 2 of this Constitution, and

subject to the operation of the prerogative writs, the President shall not while
in office, be liable to proceedings in any court for the performance of his
functions, or for any act done or omitted to be done, or purported to be done,
or purported to have been done in the performance of his functions, under this
Constitution or any other law.

(4) The President shall not while in office as President be personally liable to
any civil or criminal proceedings in court".
These two provisions are not new in our Constitutional jurisprudence. The
1979 Constitution reproduced them in article 44(9) and (10) thereof while the
1969 Constitution reproduced them with some modifications in its article 36(6)
and (7).

Now article 57(5) bars the institution of civil and criminal actions against the
President while in office. Such actions may be instituted within three years of
the President leaving office: Article 57(6).

Clause (4) of article 57 deals with legal actions against the President in the
performance of his duties while in office. The clause deals with three matters:
first, the provisions of article 2; second, the operations of the prerogative
writs, and finally immunity from legal proceedings subject to actions falling
under article 2 and those of the prerogative writs.

As earlier explained, article 2 empowers any person who believes that a

provision of the Constitution is being or has been breached to seek the
relevant declaration from the Supreme Court. Article 2(3) directs any individual
or institution in respect of whom the Supreme Court gives a direction, to obey
and carry out the terms of the order or direction. And if the order or direction
is to the President or Vice-President, then article 2 (4) provides that failure on
his part to comply with such an order constitutes a high crime under the
Constitution and a ground for his removal from office. It stands to reason
therefore that for any such order or directive to be meaningful and satisfy the
requirements of audi partem principle, the President or Vice President must
have an opportunity in the said suit to be heard.

The President's immunity is also subject to the operation of the prerogative

writs. These are actions for habeas corpus and orders of mandamus, certiorari,
prohibitions and so on, directed against the President in the performance of
his official functions.
Apart from actions under article 2 and those seeking prerogative orders the
President has immunity from legal proceedings in the performance of his
functions under the Constitution.

But it is important to emphasise that the grant of such immunity to the

President does not mean that legal proceedings cannot be instituted for relief
arising from any damage, harm or otherwise caused to an individual in the
exercise of the executive authority of the President. In the event of such
situations, actions, may be instituted against the Attorney-General, who as
provided in article 88(5) of the Constitution:

"shall be responsible for the institution and conduct of all civil cases on behalf
of the State; and all civil proceedings against the State shall be instituted
against the Attorney-General as defendant".

What the immunity is article 57(4) does is to prevent the institution of such
actions against the President personally. Article 57(4) does not and cannot,
under a regime of the rule of law, forbid legal actions challenging any conduct
or omission of the executive arm of the State.

Now the scope of article 57(4) fell for determination in NPP vrs. the President
of the Republic of Ghana, Flt. Lt. J. J. Rawlings and Anor. (supra) wherein the
President was personally sued on his nomination for District Chief Executives
of the District Assemblies. On the issue whether under article 57(4) the
President could personally be made a defendant, Amua-Sekyi and Aikins, JJ.S.C.
held that article 57(4) granted the President qualified immunity and that he
can be sued personally in respect of actions under article 2 and those seeking
prerogative orders. Justice Abban and Mrs. Bamford-Addo, JJ.S.C. were positive
that the President could not be personally sued and that in all such actions, the
Attorney-General should be the proper defendant. Ampiah, J.S.C. on the other
hand expressed his view thus:
"Article 57(4) which exempts the President from being brought before the
Court personally for acts done in the exercise of his functions under the
Constitution, excludes actions brought under Article 2 and also proceedings
involving prerogative writs. Any person alleges that there has been executive,
legislative or judicial act which is inconsistent with or in contravention of the
provisions of the Constitution may bring an action against any person
(including the President) who is alleged to have done the act or authorised the
doing of that act. That action could be against that person alone or jointly with
the Attorney-General". (emphasis mine)

As said earlier on, article 57(4) is a reproduction, word by word, of article 44(9)
of the 1979 Constitution of Ghana. Now the rationale for granting to the
President, qualified and not absolute immunity from proceedings arising in
connection with the performance of his official duties, was clearly and
unambiguously articulated at paragraph 122 page of the 1978 Memorandum
to the 1979 Constitution in the following words:

"We are, however, convinced that even an executive President should not be
endowed with unlimited powers nor be immune from constitutional controls.
On the contrary, we believe that the President should exercise the executive
power of the State in accordance with the Constitution and subject to
conditions clearly stipulated in that Constitution". (emphasis mine)

Hence the subjection of the President's immunity to the enforcement actions

in article 2 of the Constitution. The language of article 57(4) is so clear that I
cannot bring myself to agree with my brethren who hold that the President
cannot be sued personally in actions under article 2 and those of the
prerogative writs.

But what is meant or implied by suing the President personally? Certainly no

by using the personal name of the President, as is done in this case, but by
naming the Presidency as the defendant. Like, "His Excellency, The President of
the Republic of Ghana (Mr. J. A. Kufuor)." For so long as he is in office he is
entitled to be addressed properly anywhere he is or mentioned.
The next objection of the learned Attorney-General is that the plaintiff's action
is moot with the approval by Parliament of the 3rd and 4th defendants as
ministers.

As defined in Black's Law Dictionary, 6th edition, an action is generally

considered moot when it no longer presents a justiceable controversy because
issues involved have become academic or dead. This may happen when the
matter in dispute has either been resolved already and hence no need for
judicial intervention or events happening thereafter have rendered the issue
no longer live. In either situation, unless the issue is a recurring one and likely
to be raised again between the parties, the courts would not entertain such a
dead issue. Let me illustrate with two American cases. First, the case of De
Funis vrs. Odegaard 416 US 312 (1974). Rejected for admission to the
University of Washington Law School, Marco De Funis brought a personal suit
against the school, alleging that it had engaged in reverse discrimination, that
it had denied him a place, but accepted statistically less qualified minority
students. In 1971 a trial court found merit in his claim and ordered that the
University admit him.

While De Funis was in his second year of law school, the state's high court
reversed the trial judge's ruling. He then appealed to the US Supreme Court. By
that time, De Funis had registered for his final quarter in school. In a per
curiam opinion the Court refused to rule on the merits of De Funis's claim,
asserting that it was moot: At page 319 to 320 the court said:

"Because (De Funis) will complete his law school studies at the end of the term
for which he has now registered regardless of any decision this Court might
reach on the merits of this litigation, we conclude that the court cannot,
consistently with the limitations of Art III of the Constitution, consider the
substantive constitutional issues tendered by the parties".
In Roe vrs. Wade 410 US 113 (1973) on the other hand the Court legalized
abortions performed during the first two trimesters of pregnancy. Norma
McCorvey, also known as Roe, was pregnant when she filed a class of action
challenging the constitutionality of the Texas criminal abortion law, in 1970.

When the Court handed down the decision in 1973, she had long since given
birth and put her baby up for adoption. But the justices did not declare the
case moot. Why? De Funis had been admitted to law school, and he would
"never again be required to run the gauntlet". Roe could become pregnant
again; that is, pregnancy is a situation capable of repetition or recurrence.

In Ghana, this Court in J. H. Mensah vrs. Attorney-General (supra), relying on

US vrs Concentrated Phosphate Exp Assn 393 US 201, and US vrs. W. T. Grant
& Co. 345 US 629, held that if the question though moot, was certainly not
likely to re-occur, the courts would not waste their time to determine dead
questions and issues. And that for the court to decline deciding a moot
question it must be established that subsequent events had made it absolutely
clear that the alleged wrong behaviour could not reasonably be expected to
occur. I still hold that this holding represents the correct statement of the law.

In the instant case, does the approval of Parliament, render the plaintiff's
action moot or pointless for adjudication?

From his reliefs and statement of case the gravamen of plaintiff's case is that
the alleged appointment of the 3rd, 4th and 5th defendants to the offices of
Chief of Staff Presidential Advisor for Public Affairs and National Security
Adviser respectively without consulting the Council of State was contrary to
the Constitution and the Presidential Office Act 1993 (Act 463). Thus in
paragraphs 5 and 6 of his statement of cases the plaintiff pleaded:

"5. After the 1st defendant assumed office as the President of Ghana he
purported to appoint the 3rd, 4th and 5th defendants as Chief of Staff,
Presidential Advisor for Public Affairs, and National Security Adviser
respectively".

6. The purported appointment by 1st defendant of the 3rd, 4th and 5th
defendants as staff in the office of the President were done without
consultation with the Council of State as required by the Constitution and Laws
of Ghana".

Now neither does Act 463 nor the Constitution create any office called Chief of
Staff, Presidential Adviser for Public Affairs and National Security Adviser, to
require the Council of State's consultation in the appointment of person to
them. Sections 3 and 4 of Act 463 provide.

"3(1) The Presidential Officer shall be made up of—

(a) persons appointed as presidential staff under this Act one of whom shall be
appointed as head of the office; and

(b) such other public officers as may be seconded or transferred to the office.

(2) subject to section 2 members of the office shall be assigned such duties as
the President may determine.

4(1) The President shall, acting in consultation with the Council of State
appoint such persons as he considers necessary to hold office as presidential
staff in the office.

(2) The number of person that may be appointed under subsection (1) of this
section and the grade of the officers shall be determined by the President."
It is clear from the above provisions that it is the President's prerogative to
determine the number and designation of persons he desires to appoint as his
staffers, and that those appointed under section 4(1) are required to be so
appointed in consultation with the Council of State. Thus the alleged offices of
the 3rd, 4th and 5th defendants must be shown to be offices coming under
section 4(1) of Act 463 to support any allegation that such appointments
require the Council of State's consultation.

But with the Parliamentary approval of the offices of the 3rd and 4th
defendants, is Council of State's consultation still needed to perfect these
appointments? If the answer to the question is in the negative, as it certainly
is, what then is left in the plaintiff’s action worthy of adjudication? Which
provision in the Constitution and Act 463 requires the President to consult the
Council of State in nominating people for ministerial positions. Indeed if the
plaintiff had not hurriedly rushed to issue this writ, he would have realized that
the offices he was complaining of were not contemplated by the President to
be offices under Act 463, and consequently did not require consultation with
the Council of State.

The plaintiff thought the offices were those under section 4(1) of Act 463, but
events thereafter have shown that they are not.

In respect of the 5th defendant there is similarly nothing to show that it is an

office under Act 463.

I think it is important to appreciate that it is notevery appointment by the

President that requires the consent of a Council of State, or Parliament. For
example, appointments under section 7 of Act 463 do not need the consent
nor consultation of any body.

Whoever therefore alleges that a particular Presidential appointment requires

the consent of another body, must clearly demonstrate the relevant law and
regulation showing that that particular appointment indeed requires that
approval.

In the instant case I am fully satisfied that the subsequent approval by

Parliament had unequivocally shown that the offices complained of were not
those contemplated under Act 463, and that the said Parliamentary approval
had glaringly exposed the fallacy underlying the plaintiff's action and rendered
same pointless for adjudication. The plaintiff's action is nothing but an exercise
in futility. I would accordingly uphold the preliminary objection and dismiss the
action.

ATUGUBA, J.S.C.

As the facts of this matter have been stated in the rulings that have preceded
mine I would not repeat them except where necessary.

As to the first contention that "this court lacks jurisdiction to entertain the
Plaintiff's action against the Defendants herein", the same is partially well
founded. The first defendant is the President of Ghana and it was the
contention of the Honourable Attorney-General, Nana Akufo-Addo that he
enjoys immunity from suit or court proceedings generally under article 57(4)
which provides:

"(4) without prejudice to the provisions of article 2 of the Constitution, and

subject to the operation of the prerogative writs, the President shall not, while
in office, be liable to proceedings in any court for the performance of his
functions, or for any act done or omitted to be done, or purported to be done
in the performance of his functions, under this Constitution or any other law".
(emphasis supplied).

The proper construction of this provision is quite a vexed question. I must

confess that if it were open to me so to hold, I would have eagerly held that
the President could be sued in the performance or purported performance of
his functions under the constitution, since that would advance
constitutionalism, the rule of law and the negation of the bemoaned days of Re
Akoto & Ors. But as was aptly put by Smith, J. in BALOGUN V. EDUSEI (1958) 3
WALR 547 at 553: "The Courts of Justice exist to fulfil, not to destroy the
law…”.

It does not appear that there is any real controversy over the fact that article
57(4) does confer some immunity from court process on the President, but it is
the extent of it, that is said to fall short of actions under article 2 and the
prerogative writs. Thus in BILSON V. APALOO (1981) GLR 24 at 54 S.C. Anin
J.S.C. delivering the judgment of himself and that of Sowahand Charles Crabbe
JJ.S.C. said:

"It would be noticed that article 44(9) relied on by the plaintiff, itself does not
create a right of action; it merely confers a qualified immunity from suit on the
President while in office but significantly saves actions brought under article 2
and by the prerogative writs... "

It is noticeable that article 44(9) of the 1979 Constitution which was thus
construed is in the ipsissima verba of article 57(4) of the 1992 Constitution.
Counsel for the plaintiff naturally relied on this decision for his contention that
his suit against the President, is proper.

This contention has the support of the wellsettled principle of construction as

stated by James L.J. in Ex Parte Campbell; Re Cathcart (1870) I.R. 5 Ch. App 703
at 706 that:

“Where once certain words in an Act of Parliament have received a judicial

construction in one of the Superior Courts and the Legislature has repeated
them without any alteration in a subsequent statute… the Legislature must be
taken to have used them according to the meaning which a court of competent
jurisdiction has given to them.” (emphasis supplied).
See also ATTORNEY-GENERAL OF NEW ZEALAND V. ORTIZ (1983) 3 All ER C.A. It
is a trite law, as laid down in TUFFOUR V. ATTORNEY-GENERAL (1980) GLR 637
C.A. SAM V. ATTORNEY-GENERAL, S.C. Writ No. 5/98 dated 10th May, 2000 and
others, that a written national Constitution ought not to be construed
according to the ordinary rules of construction of statutes. But that does not
mean that they can be excluded altogether from the construction of such a
Constitution. Sowah, C.J. (as he later became), the chief protagonist of this
principle in the Tuffour case, later stated in THE REPUBLIC V. HIGH COURT,
ACCRA Ex Parte ADJEI (1984-86) 2 GLR 511, S.C. that whether these ordinary
rules of construction do or do not apply to the construction of the Constitution
depends on the particular circumstances of each case.

After all these rules of construction are part of the common law which is part
of the existing law under article 11(5) of the 1992 Constitution and are therein
allowed to operate unless they are inconsistent with the Constitution.
Accordingly, they have been applied, sometimes extensively in constitutional
cases, see KUENYEHIA V. ARCHER, 25th May, 1993, NEW PATRIOTIC PARTY V.
ATTORNEY-GENERAL (the 31st December case), 8th March, 1994, etc.

However the principle about the prior construction of similar statutory words,
supra, is a rebuttable presumption. In DIRECTOR OF PUBLIC PROSECUTIONS V.
LUFT (1976) 3 WLR 32 H.L. at 41 the House of Lords held that a long standing
wrong construction of the words of a statute in pari materia is no bar to its
correction.

If the President can be sued in respect of the performance of his functions,

actual or purported, under the 1992 Constitution, such action can be brought
under articles 2 and 130 of the Constitution. But if that is so then it would
mean that the immunity from suit granted to the President under article 57(4)
in respect of the performance of his functions, actual or purported, has been
negated completely. That would mean that those provisions purporting to
confer the said immunity on him have been rendered meaningless or useless.
It is however a settled rule of construction that all statutory provisions ought, if
possible, to be given effect, whether those provisions are in the same statute
or in different statutes, which conflict, and may therefore imply a repeal of the
earlier one by the later statute. I reiterated this principle in NATIONAL MEDIA
COMMISSION V. ATTORNEY-GENERAL, SUIT No. 2/96 dated 26th January,
2000, S.C. In PATTINSON V. FINNLUGLEY DRAINAGE BD (1970) 2 WLR 622 at
624 Bean J, quoted the following passage from Maxwell on the interpretation
of statutes, 12th edition (1969) with approval. "A later statute may repeal an
earlier one either expressly or by implication. But repeal by implication is not
favoured by the courts. ‘Forasmuch', said Coke, ‘as Acts of Parliament are
established with such gravity, wisdom and universal consent of the whole
nation, for the advancement of the commonwealth, they ought not by any
constrained construction out of … general and ambiguous words … to be
abrogated"(emphasis supplied) This is particularly, true of a written national
constitution. As my learned and respected brother Acquah J.S.C. aptly put it in
NATIONAL MEDIA COMMISSION V. ATTORNEY-GENERAL, supra, "But to begin
with, it is important to remind ourselves that we are dealing with our National
Constitution not an ordinary Act of Parliament. It is a document that expresses
our sovereign will and embodies our soul. It creates authorities and vests
certain powers in them. It gives certain rights to persons as well as bodies of
persons. And imposes obligations as much as it confers privileges and powers.
All these duties, obligations, powers, privileges and rights must be exercised
and enforced not only in accordance with the letter but also with the spirit of
the Constitution. The parts must fit together logically to form a rational,
internally consistent framework. And because the framework has a purpose,
the parts are also to work together dynamically, each contributing something
towards accomplishing the internal goal. Each provision must therefore be
capable of operating without coming into conflict with any other”.

Applying this salutary principle, I would hold that the way to avoid a conflict
between the provisions conferring immunity from suit on the President and
article 2 of the Constitution is to hold that the President’s immunity shields
him from suit in respect of the performance of his functions, actual or
purported under the Constitution but his acts in those respects can still be
challenged by suing the Attorney-General under article 88, particularly under
clause 5 thereof, which provides:
“(5) The Attorney-General shall be responsible for the institution and conduct
of all civil cases on behalf of the State and all civil proceedings against the State
shall be instituted against the Attorney-General as the defendant”.

This is because the acts of the President in the discharge of his constitutional
functions are acts of the government or the state. This, mutatis mutundis, is
substantially what this court decided in THE REPUBLIC V. HIGH COURT, ACCRA,
Ex Parte, ATTORNEY-GENERAL; [Delta Food case] (1998-1999) SCGLR 583 S.C.
After all, such an action would still be governed by article 2. This is further
buttressed by the Report of the Committee of Experts (Constitution) on
Proposals for a Draft Constitution of Ghana. At page 3 the Committee stated in
paragraph 3 thereof as follows:

“3. The Committee operated on the cardinal principle that we should not re-
invent the wheel. Accordingly whenever we found previous constitutional
arrangements appropriate, we built on them. In this connection, we relied
substantially on some of the provisions of the 1969 and 1979 Constitutions of
Ghana to the extent that they are relevant to the general constitutional
structure proposed in this report". (emphasis supplied).

Then at page 22 paragraph 34, the committee clearly and unambiguously

stated as follows:

“34. The Presidential immunity from legal proceedings provided in Article 44

clauses 9 - 11 of the 1979 Constitution of Ghana is meant to preserve the
dignity of the office of the President, but should not preclude proceedings
against the state in appropriate cases. The proper procedure in such cases is to
institute proceedings against the Attorney-General, as the official
representative of the Republic" (emphasis supplied)

It is quite clear therefore that the Committee, though sub silento, endorsed the
construction of the President's immunity from suit as expounded by Archer,
Sowah and Apaloo JJ.A. (as they then were) in SALLAH V. ATTORNEY-GENERAL
(1970) 2 G&G 493, at 493, 502 AND 507 respectively. They had to construe
articles 36(7) (8) and 47 of the 1969 constitution, the provisions of which, save
as the substitution of article 2 for article 47, are substantially the same as those
under the 1979 and 1992 Constitution. In my view the substitution of article 2
for article 47 was to make it clear that where actions can’t lie against the
President they may lie against the State under that article.

Indeed since the same acts of the President can be challenged under article 2
against the state rather than against the President, it is difficult to think that
article 2 suffers any real prejudice by reason of the Presidential immunity from
suit.

This court has often upheld the clear intention of the framers of the
Constitution wherever revealed by the Committee of experts’ reports on the
matter. Indeed resorting to the appropriate passages of the said Report, this
court departed from the requirement of locus standi for Ghanaian citizens for
the purposes of constitutional actions under article 2, even though previous
decisions, inclusive of this court’s own decisions and some earlier dicta
required the contrary, see BILSON V. ATTORNEY-GENERAL, S.C. 12th December
1994. However, compare NEW PATRIOTIC PARTY V. ATTORNEY-GENERAL (CIBA
CASE) (1996-1997) S.C. GLR 796, and SAM V. ATTORNEY-GENERAL, supra.

Indeed it is refreshing to note that BILSON V. APALOO (1981) GLR 24 S.C. relied
on by the Plaintiff, was before that, one of those decisions which required
locus standi generally, for actions under the 1992 Constitution.

It is true that in LETANG V. COOPER (1964) 3 WLR 573 C.A. at 578 Lord Denning
M.R. cautioned against too much adherence to committees' memoranda
because the Legislature might as well use language that departs from their
recommendations; but as shown supra, the Committee of experts
recommendations on the presidential immunities, referred to the ipsissima
verba provisions of the 1979 Constitution.
I would therefore hold that the Plaintiff’s action against the President in this
case flies in the face of his constitutional immunity from suit and cannot be
entertained. I however refrain from saying that in other proceedings against
the State, an order cannot be made against the President. After all the
Constitution omnia potest. It is for these reasons that I support the majority
decision of this court in NEW PATRIOTIC PARTY V. THE PRESIDENT OF GHANA
& ANOTHER dated 3rd May, 1994, despite the views of Adade J.S.C. and others
in NEW PATRIOTIC V. ATTORNEY-GENERAL (31st December case) supra, which
tend to support the view that the President can be sued under article 2 of the
1992 Constitution.

As to whether the action properly lies against the 3rd to 4th defendants, I
doubt whether the decision in Ghana Bar Association v. Attorney-General &
Abban S.C. December 5th 1995, is not open to divergent views. A person
wrongly appointed to an office and acting in it can be sued, see GHANN V.
TAMAKLOE (1957) 2 WALR 353, ADEGBENRO V. AKINTOLA (1963) 3 WLR 63
P.C. and NINGKAN V. GOV’T OF MALAYSIA (1970) A.C. 379 P.C. I would
therefore not say that they have been wrongly sued.

As to whether the action is now moot because the appointments impugned

have, as at now been regularly made, it was held by this court in J. H. MENSAH
V. ATTORNEY-GENERAL (1996-97) SCGLR 320 that if the matter could still arise
in future then the action is not moot. Similarly in MERRICKS V. NOTT-BOWER
(1964) 2 WLR 702 C.A. at 707 Denning M.R. said:

"if a real question is involved, which is not merely theoretical, and upon which
the court’s decision gives practical guidance then the court in its discretion can
grant a declaration". (emphasis supplied)

In EASTHAM V. NEW CASTLE UNITED FOOTBALL CLUB (1963) 3 WLR 574 even
though the transfers of the policemen who were plaintiffs had long taken place
and would not be reversed, it was held that the action would still serve a useful
purpose to the various police authorities as to the scope of their powers.
Similarly there is no indication that the President has exhaustively made all his
necessary appointments. In fact some are still going on. A declaration on the
issue could still be useful to the President and other relevant officials, like the
Council of State. In TUFFOUR V. ATTORNEY-GENERAL, supra, it was held that
since a citizen has the duty to defend the Constitution, he can bring an action,
(if there is a controversy), for an interpretation simpliciter, even though no
further relief be sought by him. Indeed, since, as was held in the said TUFFOUR
case a Constitution is a living organic document which mirrors the experiences
of its people in the past and their aspirations for the future, then interest in a
constitutional matter would be a recurrent affair and therefore not moot;
especially as similar appointments would fall to be made virtually every 4
years. It has also been said in OKORIE @ OZUZU V. THE REPUBLIC (1974) 2 GLR
272 C.A. that the question whether a breach of the constitution causes some
injury such as miscarriage of justice is irrelevant since the mere breach of the
constitution carries with it the stigma of illegality, impropriety, etc. It seems to
me therefore that the upholding of the supremacy of the Constitution is itself
of great constitutional utility. This action is therefore not moot. The
declaratory jurisdiction of this Court is not discretionary or the same as a
declaratory action at common law as BILSON V. APALOO (1981) GLR 24 S.C.
would seem to conceive it to be.

However, the ground on which I concur in upholding the preliminary objection,

generally, is that the plaintiff's action arises under certain clauses of the
Constitution as well as under ordinary legislation; namely, the Presidential
Office Act, 1993 (Act 463). Section 4(1) thereof provides:

"4(1) The President shall, acting in consultation with the Council of State
appoint such persons as he considers necessary to hold office as presidential
staff in the office". (emphasis supplied.).

On the other hand article 70(1) provides:

“70(1) The President shall, acting in consultation with the Council of state,
appoint-
X X X

(e) the holders of such other offices as may be prescribed by this Constitution
or by any other law not inconsistent with this Constitution”. Article 91 similarly
provides: "91(1) The Council of State shall consider and advise the President or
any other authority in respect of any appointment which is required by this
Constitution or any other law to be made in accordance with the advice of, or
in consultation with, the Council of State". (emphasis supplied).

By virtue of these provisions, I think that a default in an appointment under

Section 4(1) of the said Presidential Office Act, 1993 (Act 463) can be
challenged, as here, under these provisions in this Court. In NEW PATRIOTIC
PARTY V. NATIONAL DEMOCRATIC CONGRESS, 21st November 2000, S.C. I
concurred in dismissing the plaintiff's action in that case because it was one
that could be instituted either under article 94(3)(b) of the Constitution or
under section 9 of the Representation of the People Law, 1992 PNDCL 284. In
such a situation since the action could have been instituted in the High Court
which, apart from the Fundamental Human Rights, can enforce ordinary
legislation or the common law, the Plaintiff's action, straightaway in this Court,
without first resorting to the High Court violated paragraph 6 of the Practice
Direction of this Court as published in 1981 GLR 1. The Plaintiff's action in this
case suffers, in consimili casu with the NPP v. NDC case, supra, the defect of
violating the said Practice Direction,

No compelling reasons, or at all, have been given for this violation.

Consequently I have no grounds for waiving non-compliance with the said
Practice Direction under rule 79 of the Rules of this Court, C.I. 16.

I do not consider it necessary to deal with the other submissions.

I would therefore also strike out the Plaintiff's action for want of jurisdiction.
SOPHIA A. B. AKUFFO, J.S.C.

By a writ issued by the Plaintiff/Respondent (hereinafter referred to as 'the

plaintiff') against the Defendants/Applicants (hereinafter referred to as 'the
defendants') the plaintiff, pursuant to the powers of this court under article 2
of the Constitution seeks the following declarations:—

1. That on a true and proper interpretation of articles 58 (1) and (2), 190 and
295 of the Constitution, and sections 2, 3 and 4 of the Presidential Office Act,
1993 (Act 463) the 3rd, 4th and 5th defendants cannot be appointed by the
President as staff of the Office of the President without consultation with the
Council of State.

2. That the conduct of the 1st defendant in appointing the above-mentioned

defendants as staff of the Presidential Office without prior consultation with
the Council of State is inconsistent with and in contravention of the letter and
spirit of the Constitution.

3. That the conduct of the 3rd, 4th and 5th defendants in holding themselves
out and acting as staff of the Office of the President is inconsistent with and in
contravention of the Constitution.

4. That all acts undertaken by the said three defendants are void and of no
effect.

In this application, the Attorney General, the 2nd defendant in the said writ,
prays this court, to set aside the plaintiff's writ or strike out the action, on the
ground that this court lacks jurisdiction to entertain the Plaintiff's action,
because:—
1. The writ and statement of claim disclose no cause of action based on Article
2(1) of the Constitution.

2. The questions raised for determination by the plaintiff's action are moot.

The plaintiff, in his affidavit in opposition herein, urges the court to decline the
application for the reasons that:—

1. The 1st defendant, as the President of the Republic of Ghana is amenable to

the jurisdiction of the court in the exercise of the executive authority conferred
on him by the Constitution.

2. The appointment of the 3 officials, by the 1st defendant, without prior

consultation with the Council of State cannot be said to be a constitutionally
sanctioned exercise of executive authority.

3. Under Article 2 of the Constitution, the court has the power, to entertain his
action and to make declarations in the nature of quo warranto, as well as
injunction or mandamus.

4. There are triable issues raised by the plaintiff's action and moreover, the
matter had not been rendered moot merely by the subsequent appointment of
the 3rd and 4th defendants as Ministers of State.

5. Since the 2nd defendant was sued in a nominal capacity, the fact that, as at
the date of the filing of the writ, there was no substantive Attorney General
does not mean that no action could be commenced against the state in the
name of the Attorney General.
During the hearing of the application, the Attorney General, relying on the
authority of The New Patriotic Party v. The President, Flt. Lt. (Rtd.) J. J.
Rawlings and the Attorney General, unreported S.C. Judgment dated 3rd May
1994, J. H. Mensah v. The Attorney General, (1996-97) SCGLR 320, submitted
that: —

1. The writ against the President, in his personal capacity, is improper.

2. By virtue of article 57(4), executive actions by the President cannot be

questioned in this manner.

3. The writ is defective because at the time it was issued there was no
substantive Attorney General in office.

4. The matters giving rise to the action have been overtaken by events and the
action is, therefore, moot.

The plaintiff, on the other hand, contended that the precedents cited by the
Attorney General rather supported his case since Article 57(4) is subjected to
Article 2 and prerogative writs. Furthermore, according to the plaintiff, under
Article 2, this court has the power to make whatever orders it sees fit,
therefore, in matters of this nature, the proper approach must be to take each
writ on a case-by-case basis. He further contended that the decision in J. H.
Mensah v. the Attorney General (supra) did not operate to suspend the
operation of the Constitution, nor did it oust the possibility of making the
Attorney General a nominal defendant pursuant to article 88(5). On the issue
of mootness, the plaintiff argued that the cause of his action is still alive and
must be determined. He, therefore, submitted that the writ was properly
issued against the defendants and that it does disclose triable issues.

Before tackling the issues that properly arise from this application, I wish to
touch upon the submission that, since the writ predates the appointment of a
substantive Attorney General, it is defective. In J. H. Mensah V. the Attorney
General, the question arose as to whether or not an action may be instituted
against the Attorney General when Parliament has not previously given its
approval to any person to act or hold himself out as such. This court held that,
because it is stipulated under article 88(1) that the Attorney General shall be a
Minister of State and the principal legal advisor to the government, the
individual personality of the office holder is paramount. I see no reason to
depart from this conclusion.

Does it then follow that, for this reason alone, the writ herein is so incurably
bad that it must be struck out? I do not think so. Part IV of the Supreme Court
Rules, 1996 (Cl 16) spells out the procedure applicable to actions, brought
under article 2, to invoke the original jurisdiction of the Supreme Court. In
Rules 45(3) and (4), it is provided as follows:—

“(3) A copy of the writ shall be served on each of the parties mentioned in the
writ as directly affected who shall be considered as the defendants, and on the
Attorney General, if not named specifically as a defendant.

(4) The Court may, at any time on its own motion or on the application of a
party order that any other person shall be made a party to the action in
addition to or in substitution for any other party."

In my opinion, the clear intent of these rules of procedure is to assure that, in

all actions to invoke the original jurisdiction of the court, effect is duly given to
article 88(5), firstly, by requiring the service of a copy of the writ on the
Attorney General, and secondly, by empowering the court to order the
addition or substitution of any other person, which 'any other person'
presumably includes the Attorney General. The rationale for these rules is
quite obvious; actions to invoke the original jurisdiction of this court are
presumed to be of crucial importance to the enforcement of the supreme law
of the land, the Constitution, and it is, therefore, in the interest of the public
that such actions not be defeated merely by the non-joinder or misjoinder of
any party, including the Attorney General. Indeed, even in ordinary civil actions
before the High Court, Rule 6 of the High Court (Civil Procedure) (Amendment)
(No. 2) Rules, 1977 (LI 1129) affords litigants and interested persons a similar
safeguard and empowers the High Court, either on its own motion, or on
application, to order the striking out of a party or the joinder of another person
in the suit, so as to ensure that the matters in issue are thoroughly determined
and finally disposed of.

Consequently, although at the time the writ herein was issued against the
Attorney General no person had been approved by Parliament to occupy the
position, the writ is not thereby rendered so incurably defective as to dictate
that it is struck out. All that needs to be done is to order that the Attorney
General, now that Parliament has duly granted its approval, be deemed to
have been properly joined as a defendant.

Turning now to the matter at hand, clearly this application raises two
fundamental issues:—

a. Whether or not the writ discloses any cause of action properly arising under
Article 2(1)? And if so

b. Whether or not the plaintiff's action is in any case moot?

In dealing with issue (a) I will first consider the question of whether the 1st,
3rd, 4th and 5th defendants have been properly brought before this court. I
will then consider whether, in the circumstances of this case, it was proper for
the plaintiff to have brought his action under Article 2(1).

It is presumed that every word contained in the Constitution was placed

therein after the utmost deliberation. Consequently in the construction and
enforcement of the Constitution, it is necessary to read and apply each
provision in such a manner as would not do injury to any provision merely for
the sake of upholding another provision therein. Therefore, within the context
of this matter, we need to consider the cumulative effect of Articles 2(1), 57(1)
and (4) and 88.

Article 57(1) states that:—

"There shall be a President of the Republic of Ghana who shall be the Head of
State and Head of Government and Commander-in-Chief of the Armed Forces
of Ghana."

According to Article 57(4):—

"Without prejudice to the provisions of Article 2 of this Constitution, and

subject to the operation of the prerogative writs, the President shall not, while
in office, be liable to proceedings in any court for the performance of his
functions, or for any act done or omitted to be done, or purported to be done,
or purported to have been done or purporting to be done in the performance
of his functions, under this Constitution or any other law." (My emphasis)

And Article 88(5) stipulates that:—

"The Attorney General shall be responsible for the institution and conduct of
all civil cases on behalf of the State; and all civil proceedings against the State
shall be instituted against the Attorney General as defendant." (My emphasis)

Under article 2 clause (1)(b), a person who alleges that any act or omission of
any person is inconsistent with or in contravention of a provision of the
Constitution may bring an action in this court for a declaration to that effect.
Therefore, since the plaintiff issued his writ pursuant to article 2, does that
mean that it was proper for him to have made the President a defendant
therein. The answer is 'no'. In the case of the New Patriotic Party v. the
President of Ghana, Flt. Lt. (Rtd.) J. J. Rawlings (unreported S.C. Judgment
dated 3rd May 1994,), it was held, by a majority of this court, that, although
the President has procedural immunity from civil proceedings, his official
actions may be challenged through prerogative writs or action brought
pursuant to article 2. However, the Attorney General would be the only proper
defendant in any such challenge. That was a case wherein the New Patriotic
Party sued the then President of Ghana, together with the Attorney General,
for a declaration that the appointment of District Secretaries by the said
President was inconsistent with and in contravention of the Constitution. The
then Attorney General raised the issue of whether or not, under the
Constitution, the President is personally amenable to suit and, whereas Amua-
Sekyi and Aikins, JJ.S.C., were of the opinion that he is, Abban, J.S.C., (now C.J),
Bamford-Addo and Ampiah, JJ.S.C., were of the contrary view. His Lordship
Abban expressed himself thus:—

"Article 57(5) and (6) of the 1992 Constitution gives complete immunity in civil
and criminal proceedings to the President while in office. But it seems to me
that the immunity which article 57(4) of the Constitution grants to the
President is not absolute. That is, article 57(4) does not confer substantive
immunity in so far as prerogative writs and actions brought under article 2 of
the Constitution are concerned. "Thus, official acts of the President can be
challenged either by means of prerogative writs or by instituting action in the
Supreme Court under article 2 of the Constitution. However, I am of the view
that in such cases, it would not be right to make the President a defendant. By
virtue of article 57(1) of the 1992 Constitution, the President is not only the
Head of State but also the Head of Government; and article 58(1) vests the
executive authority of Ghana in the President. So whenever the President
carries out executive duties vested in him by the Constitution or by any other
law, he does so as a government of Ghana. "... In the particular circumstances
of the present case, the suit herein should be brought against the Attorney
General only as defendant for and on behalf of the Government of Ghana, in
accordance with article 88(5) of the Constitution. That is, the Attorney General
is the proper defendant and not the President."

Elsewhere in his learned opinion, His Lordship continued as follows:—

"There is therefore no doubt that the official acts of the President can be
questioned in the Supreme Court under Article 2 of the Constitution and also
through the use of prerogative writs. But as I have already stated, in such case,
as in the present one, only the Attorney General should appear in the suit as
defendant for and on behalf of the government or the state for that
matter ......

In the writ issued by the plaintiff herein, the conduct at the root of the
complaint is the action of the President in making staff appointments to the
Office of the President. If this is not an act done or purported to be done by
the President officially and in his capacity as President, then I cannot imagine
what else could be. Therefore, to borrow the words of my learned sister Mrs.
Bamford-Addo, J.S.C., in the above-mentioned NPP case, if the President,
according to article 57, is the Head of State and has acted in his official capacity
in appointing or purporting to appoint the 3rd, 4th and 5th defendants, which
action is alleged to be unconstitutional, then, it is not the Head of State himself
who should be sued, but the Attorney General, as dictated by article 88(5).
That this was the intent of the framers of the Constitution is evidenced by
paragraph 34 of the Report of the Committee of Experts (Constitution) on
Proposals for a Draft Constitution of Ghana, wherein it is explained that:—

"The Presidential immunity from legal proceedings provided in Article 44

clauses 9-11 of the 1979 Constitution of Ghana is meant to preserve the dignity
of the office of the President, but should not preclude proceedings against the
state in appropriate cases. The proper procedure in such cases is to institute
proceedings against the Attorney General, as the official representative of the
Republic."

Consequently, I have no hesitation in concluding that the President is not a

proper party to the plaintiff's suit and he must be struck out as a defendant. In
arriving at this conclusion, I am not unmindful of the concern expressed by
Amua-Sekyi, J.S.C., in the aforementioned NPP case, to the effect that since,
under Article 2(4), failure by the President to obey or carry out the terms of an
order or direction addressed to him by the Supreme Court, in the exercise of
its powers under Article 2(2) to issue consequential orders or directions, would
constitute a ground for removal from office, to hold that the President cannot
be made a party to an action under Article 2 would offend against the audi
alteram partem rule. However, it is my view that the regime created by Article
2 constitutes an exception to this rule, since the mere existence of such a
ground for removal would not automatically remove the President, for the
Constitution provides specific procedures for the removal of a President.

What about the propriety of the inclusion of the 3rd, 4th and 5th defendants
as parties to the suit? The plaintiff issued his writ because he claims that the
appointment of the 3rd, 4th and 5th defendants as staff in the Office of the
President is unlawful and unconstitutional. Clearly, therefore, they have been
included in the suit only because of their alleged appointments and not
because of any unconstitutional acts, they themselves, may have committed.
They did not appoint themselves and, as such therefore, what provision of the
Constitution has any of them contravened and what acts on their parts might
we legitimately declare unconstitutional pursuant to article 2? As was stated
by Hayfron Benjamin, J.S.C, in the case of Ghana Bar Association v. the
Attorney General & Abban, S.C judgment dated December 05, 1995, wherein
the Ghana Bar Association, in a suit against the Attorney General challenging
the constitutionality of the appointment of Justice I. K. Abban to the office of
Chief Justice, joined Justice Abban as 2nd defendant:—

“At a glance, it is obvious that the 2nd Defendant – the object of the power
conferred on the PRESIDENT – cannot be involved in this case. He has not
committed any infraction with respect to the Constitution and no action can be
brought against him which can be founded on Article 2 of the Constitution.”

The same may be said of the 3rd, 4th and 5th defendants in the plaintiff’s suit;
they are merely the objects of the President’s action. Therefore, their names
must be struck out as defendants to the plaintiff’s writ.

In view of the foregoing, assuming there is proper cause of action raised by the
plaintiff’s writ, the only proper defendant would be the Attorney General.
However, there remains the question of whether or not the executive action
complained of by the plaintiff may be subjected to judicial scrutiny by way of a
writ under article 2. There is no doubt that as already discussed above,
executive action is subject to judicial scrutiny, provided the writ is one properly
issued pursuant to Article 2, or is a prerogative writ. In Ghana, the Constitution
is the supreme law and every act performed by the President in the exercise of
his executive authority, must be referable to the word or spirit of the
Constitution, or a law properly existing under the Constitution. However, a
writ, such as the Plaintiff's, issued under Article 2(1)(b), must necessarily show
that the act complained of is in contravention of a provision of the
Constitution.

Although there are several provisions in the Constitution governing

appointments into certain positions by the President, these do not include of
staff appointments to the Office of the President. Rather, the latter
appointments are governed by the Presidential Office Act, 1993 (Act 463). If it
is alleged that any appointments are in breach of this legislation, there are
other legal processes by which such appointments may be challenged and the
proper course of action for the plaintiff is to pursue such processes, not to seek
to enforce such legislation by way of a writ under Article 2.

Consequently, it is my view that, indeed, the plaintiff's writ does not disclose a
proper cause of action under article 2 and must, therefore, be struck out.
Hence I do not see the need to advert my mind to the issue of mootness.

LAMPTEY, J.S.C.

I agree that the plaintiff's writ and statement of case be struck out and the
action be dismissed against all the five defendants. I wish however to express
my opinion on some of the issues raised.
I must preface my opinion with the unambiguous statement that this court has
no jurisdiction to hear and determine the plaint before it. I agree with and
adopt the opinions expressed so clearly and succinctly by the majority of this
court on the issue of jurisdiction.

The action of the plaintiff cited Mr. John Agyekum Kufuor as the 1st defendant.
The address for service was stated as "office of the President State House
Accra." The plaintiff in providing the address of 1st defendant referred to and
described 1st defendant as "President of Ghana”. Since the plaintiff
commenced the action on relying on the power and right guaranteed to him,
among others, on article 2(1)(a) and (b) of the Constitution I reproduce in
particular article 2(1)(b) as follows:

"2(1) A person who alleges that

(b) any act or omission of any person is inconsistent with or is in contravention

of a provision of this Constitution may bring an action in the Supreme
Court ........ for a declaration ......"

Is it the intention of the law makers that the "person" whose act or omission of
the alleged breach should and must be sued in his person. The answer in my
views is and must be in the positive. Prima facie the plaintiff must be right in
law to sue Mr. John Agyekum Kufuor, as the 1st defendant in the instant case.
However the plaintiff at paragraph 2 of his statement of case averred as
follows:

“2. The 1st defendant is the President of Ghana and is being sued as person
whose conduct is violating the Constitution of Ghana."

Further and better particulars of the conduct of 1st defendant were stated at
paragraphs 5, 6 and 8. These are:
“5. After the 1st defendant assumed office as the President of Ghana he
purported to appoint the 3rd, 4th and 5th defendants as Chief of Staff,
Presidential Adviser for Public Affairs and National Security Advisor
respectively.

6. The purported appointment by the 1st defendant of the 3rd, 4th and 5th
defendants as staff in the Office of the President were done without
consultation with the Council of State as required by the Constitution and laws
of Ghana.

8. By virtue of the conduct of the defendants state resources are being

misappropriate and misapplied by the defendants without any constitutional
authority whatsoever."

In my view the statement of case shows and establishes that the conduct
complained of was the conduct of the President of Ghana. The action must not
be mounted against Mr. John Agyekum Kufuor. In my understanding of the
Constitution and the facts stated by the plaintiff the proper and lawful party to
sue is the President of Ghana and not John Agyekum Kufuor.

In further support and explanation of my view, I cite Article 60(9) and (12) of
the Constitution as follows:

"60(9) The Vice-President shall, before commencing to perform the functions

of the President under clause (6) of this article, take and subscribe the oath set
out in the second schedule to this Constitution in relation to the office of
President.

(12) The Speaker shall, before commencing to perform the functions of the
President under clause (11) of this article take and subscribe the oath set out in
relation to the office of President."
I must point out and draw attention to the fact that the Constitution enjoined
the Vice-President and the Speaker each to take and subscribe the respective
oaths of their offices before they each assumed that office. The Constitution at
article 60(9) and (12) imposed a legal obligation on the Vice President and the
Speaker to each take and subscribe the oath of a President before they each
assumed office as President. My understanding of these Constitutional
provisions is that the office of President is not personal to the holder for the
time being in office. In my view the President of Ghana is the person who at
any point in time has taken and subscribed the oath of President.

I find further support for my view on article 58(1) of the Constitution. This
provision reads as follows:

"58(1) The executive authority of Ghana shall rest in the President and shall be
exercised in accordance with the provisions of this Constitution."

The Constitution in clear and plain language spelt out the functions and duties
of the Vice-President at article 60(1) and of the Speaker at article 101 of the
Constitution. Thus when the Speaker, acting legally and constitutionally as
President of Ghana, is alleged to have violated and breached a provision of the
Constitution a plaintiff cannot sue the Speaker by his or her true name, or sue
him or her as "Speaker" or as "acting President" because it would be wrong in
law to sue in the name of the person for the time being occupying the high
office of President. I agree with and accept the opinion that in cases of this
nature, that is, when the exercise of the executive authority and power is
alleged to be unconstitutional, the proper and lawful party to sue is the
Attorney-General. On this issue article 88(5) of the Constitution provides:

"88(5) The Attorney-General shall be responsible for the institution and

conduct of all civil cases on behalf of the State; and all civil proceedings against
the State shall be instituted against the Attorney-General as defendant."
This provision clearly makes the Attorney-General the party to sue in civil
proceedings against the President when he has exercised executive power of
state.

The provision at article 57(5) of the Constitution is in language following:

"57(5) The President, shall not while in office as President, be personally liable
to any civil or criminal proceedings in Court".

In my opinion, the above provision clearly and plainly guaranteed to the

President while in office qua President, total and complete immunity from the
jurisdiction of the courts, in simpler language, the President cannot be sued in
the civil courts and or criminally prosecuted in the criminal courts. This legal
immunity is intended to continue for a period of three years only after the
President leaves office as President. In my view this constitutional provision
gives further support to my opinion that it was wrong to sue Mr. John
Agyekum Kufuor as 1st defendant.

The Hon. Attorney-General and the plaintiff each addressed us on the issue
whether or not the plaintiff's writ and statement of case disclosed a cause of
action. I must preface this opinion with the statement that as at the date of
considering the arguments and submission of counsel for parties the plaintiff
failed and omitted to provide further and better particulars called for by the
statement of case filed on behalf of the defendants. I received a copy of the
memorandum of issues filed by the plaintiff on the 2nd April 2001. The
defendant caused to be filed the memorandum of issues on 19th March 2001.

To deal carefully and critically with the claim of the plaintiff before the court, I
again refer to the statement of case of plaintiff as I have reproduced same
elsewhere in this Ruling, in particular, paragraphs 5, 6 and 8. In reply to the
averments cited therein the defendants caused to be filed a statement of case.
I reproduce the relevant paragraphs as follows

“7. In answer to paragraph 5 of the plaintiff's statement of case, the 3rd, 4th
and 5th defendants aver that the 1st defendant exercising his executive
authority called in aid the expertise of the 3rd, 4th and 5th defendants to assist
him in the performance of his functions as advisers and spokesperson to the
1st defendant.

9. In further answer to paragraph 6 of the plaintiff's statement of case, the

defendants aver that the plaintiff has not shown any evidence to indicate that
the 1st defendant has appointed the 3rd, 4th and 5th defendants as staff in the
office of the President."

There can be no doubt that paragraph 9 of the defendants' statement of case

raised a serious issue, namely that the case put forward by the plaintiff was not
supported and or verified by further and better particulars. The defendants
specifically disputed and denied the substance of plaintiff's case at paragraphs
6, 7 and 9 as follows:

“6. The 3rd, 4th and 5th defendants admit that they are citizens of Ghana and
members of the New Patriotic Party but deny they are holding themselves out
as staff in the office of the President.

7. In answer to paragraph 5 of the plaintiff's statement of case, the 3rd, 4th

and 5th defendants aver that the 1st defendant exercising his executive
authority called in aid the expertise of the 3rd, 4th and 5th defendants to assist
him in the performance of his functions as advisers and spokesperson to the
1st defendant.

(9) In further answer to paragraph 6 of the plaintiff's statement of case the

defendants aver that the plaintiff has not shown any evidence to indicate that
1st defendant has appointed the 3rd, 4th and 5th defendants as staff in the
office of the President".

The substance of the defendant's case as I understand it is a complete and

total denial of plaintiff's case. They have denied and challenged their
appointment as staff in the Office of the President. In my view there must be
evidence from the plaintiff to establish and support his case. I do not find such
material before the court.

Be that as it may, I proceed to consider whether or not the plaintiff has a cause
of action against the defendants because the defendants admit unequivocally
that 1st defendant appointed them “to assist him in the performance of his
functions as advisers and spokesperson to the 1st defendant”.

The case of the plaintiff simply put is that the appointments were made and
announced without the prior consultation with the Council of State. The
conduct of the defendants breached and violated the Constitution. I note that
the plaintiff did not cite article 70 (1)(e) to support his case. I find it relevant
and helpful. Article 70 (1)(e) provides:

"70(1) The President shall, acting in consultation with the Council of State
appoint ----

(e) the holders of such other offices as may be prescribed by this Constitution
or by any other law not in consistent with this Constitution"

Pursuant to the above provision the Presidential Office Act, 1993 (Act 463) was
passed into law.

I must now turn to Act 463 which provided the plaintiff the reason and genesis
of his case. S.4(1) provides as follows:
"4(1) The President acting in consultation with the Council of State shall
appoint such persons as he considers necessary to hold office as presidential
staff in the Office".

It is accepted by all the parties that as at the date of the writ and statement of
case of the plaintiff a Council of state was not in being and existence. It
therefore cannot be controverted that any purported appointments made
pursuant to S.4(1) of Act 463 would be unlawful, that is, the appointment(s) is
or are in flagrant breach of Act 463. The case of the defendants, simply
expressed, is that the appointments were in the capacities of "advisers and
spokesperson" respectively to the 1st defendant. They stated further they
were chosen for their "expertise". Finally they challenged the plaintiff to
produce evidence of their appointments as "Chief of Staff", "Presidential
Adviser for Public Affairs" and "National Security Adviser". In view of the issue
raised by the parties I must examine Act 463 to ascertain what positions or
offices have been created by it. S.4(1) provided for the appointment of
presidential staff. The appointment as Presidential Staff must be in writing.
The plaintiff failed and or omitted to establish and prove his case by supplying
copies of the warrants or letters of appointment in respect of 3rd, 4th and 5th
defendants. He failed and omitted to explain his default in this matter. In my
view, the omission and failure to provide the court with the supportive
documents was fatal to his case in the light of S.7 of Act 463. This section
provides as follows:

"7. The President may appoint for specified periods such consultants or experts
as he may require for any specific assignments".

In the instant case, the defendants claimed that they were appointed because
of their "expertise". I must point out that the President in exercising the power
and right to appoint under S.7 of Act 463 does not need to consult with the
Council of State. It would be seen that the appointments complained of may
lawfully be made pursuant to S.7 of Act 463 bearing in mind the
uncontroverted defence put forward in the statement of case.
I find further that the plaintiff did not in his statement of case indicate that the
post of "Chief of Staff", "Presidential Adviser for Public Affairs" and "National
Security Adviser" are all offices created under S.3(1)(a) of Act 463. In my
opinion since the defendants disputed and denied the averments contained in
the statement of case and in the absence of material supportive of his case,
the plaintiff's writ and statement of case did not disclose a cause of action.

Another serious issue raised for determination by the plaintiff would be found
at paragraph 8 of his statement of case. It reads—

"8. By virtue of the conduct of the defendants state resources are being
misappropriated and misapplied by the defendants without any constitutional
authority whatsoever".

There can be no doubt in any one's mind that the above averment needs to be
proved and supported by material in the statement of case. The defendants
denied paragraph 8 of the statement of case at paragraph 11 of their
statement of case as follows:

"11. The defendants categorically deny paragraph 8 of the Statement of case of

plaintiff and aver that it is without foundation."

It cannot be disputed that the plaintiff was enjoined to file such other
statement or documents as would seek to support and establish the averment
at paragraph 8 of his statement of case. This Court is therefore confronted
with the bare assertion of the plaintiff that State resources are being
misapplied and misappropriated by the defendants. When it is pointed out
that the allegation of misappropriation of State funds, prima facie, constitute
on accusation that crime is being committed by the defendants, this court was
entitled to receive such material as would enable it to rule that plaintiff has a
cause of action against the defendants. It seems to me that the plaintiff failed
and or omitted to provide the court with material to support his claim and case
against each and every one of the defendants that they had each misapplied
and misappropriated State resources. In the absence of material from the
plaintiff, it is difficult if not impossible for me to venture to think what
declaration this court would make on this very serious issue of misapplication
and misappropriation of State funds. I do not have a shred of evidence of
misapplication and or of misappropriation before me to support and buttress
the case of the plaintiff. I am satisfied that the plaintiff's writ and statement of
case did not disclose a cause of action for this further reason.

AMPIAH, J.S.C.

This is an application by the Defendants to have set aside the Writ filed against
them by the Plaintiff.

In his writ, filed on 29th January, 2001 to invoke the original jurisdiction of this
Court, the plaintiff claims against the Defendants—

(1) A declaration that:

(i) On a true and proper interpretation of the Constitution, particularly articles

58(1) and (2), 91(1) and (2), 190 and 295 thereof, and Sections 2, 3 and 4 of the
Presidential Office Act, 1993 (Act 463) the 3rd, 4th and 5th Defendants cannot
be appointed by the President as Staff of the Presidential Office without
consultation with the Council of state.

(ii) The conduct of the 1st Defendant, President John Agyekum Kufuor, in
appointing 3rd, 4th and 5th Defendants as Staff of the Presidential office
without consultation with the Council of State is inconsistent with and in
contravention of the letter and spirit of the Constitution.
(iii) The conduct of the 3rd, 4th and 5th Defendants in holding themselves out
and acting as Officers or Staff in the Office of the President is inconsistent with
and in contravention of the Constitution.

(iv) Accordingly, all acts undertaken by the 3rd, 4th and 5th Defendants as
Officers or staff in the Office of the President are inconsistent with and in
contravention of the Constitution, null, void and without effect whatsoever.

(2) Perpetual injunction restraining the 1st Defendant President from

appointing the 3rd, 4th and 5th Defendants as Staff to the Presidential Office
without consulting the Council of State.

(3) Perpetual injunction, restraining the 3rd, 4th and 5th Defendants from
continuing to hold themselves out and acting as Officers or Staff in the Office of
the President.

(4) Such other orders or directives as to the Court may seem fit to give effect to
the above declaration."

Before process in this action could come to a close, the Applicants herein filed
this application contending inter alia that,

“(1) This Court lacks jurisdiction to entertain the Plaintiff's action against the
Defendants herein;

(2) ... No cause of action is disclosed by Plaintiff's Writ and the Statement of
Case;

(3) ... The questions raised in the Plaintiff's action for determination are moot;
and for such further or other orders to this Honourable Court may seem fit".
An application for interim injunction to restrain the Defendants from exercising
the functions of whatever office they were holding seemed to have outlived its
purpose, by the available evidence on record, as at 6th February, 2001,
Parliament had approved the nominations of the 3rd and 4th Defendants as
substantive Ministers of State.

The Writ and the Statement of Case of the Plaintiff, as well as the Statement of
Case of the Defendants were not attached to the application. It is required that
in such applications all the necessary documents and orders upon which the
applicant relies must be attached or exhibited. For a fuller understanding and
appreciation of the nature of issues posed in his application however, I would
look at these writ and statement of cases if only to do justice in the case.

The Plaintiff in this action seeks a declaration as to the true and proper
interpretation of the Constitution in particular, Articles 58(1) and (2), 91(1) and
(2), 190 and 295, and also Sections 2, 3, 4 of the Presidential Office Act, 1993
(Act 463). He contends that in a true and proper interpretation the
appointment of the 3rd, 4th and 5th Defendants as Staff of the Presidential
Office, without consulting the Council of State was inconsistent with and in
contravention of the letter and spirit of the Constitution. To my mind, the claim
calls for the interpretation of provisions of the Constitution.

The Applicants contend that the writ discloses no cause of action and that the
Court lacks jurisdiction to entertain the action.

Article 2(1) (b) of the Constitution provides:—

"A person who alleges that—

(a) X X X X
(b) any act or omission of any person is inconsistent with, or is in contravention
of a provision of this Constitution, may bring an action in the Supreme Court
for a declaration to that effect." (emphasis supplied).

Also, Article 130(1) of the Constitution gives exclusive jurisdiction to the

Supreme Court in “all matters relating to the enforcement or interpretation of
the Constitution."

It is therefore only the Supreme Court which can interpret a provision of the
Constitution when that question arises. And when that issue becomes
contentious in any other Court, that Court "shall stay the proceedings and refer
that 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"- vide Article 130(2) of the Constitution.

Thus, where in this action the Plaintiff seeks a declaration on the interpretation
of a provision of the Constitution, and alleges that someone's conduct is
inconsistent with, or in contravention of a Constitutional provision, it cannot
be said either that there is no cause of action or that the Court lacks
jurisdiction to entertain the action.

The allegation may not be true, but it remains an issue to be determined one
way or another. And, the interpretation must be done as requested. The
Supreme Court is the only Court to do that.

It is a cardinal principle of law that when an issue of jurisdiction is raised, it is

not proper for the Court to decide on the merits of the case; this may prejudice
a subsequent hearing of the case. It must be noted that all the issues raised in
this application, have been set down for determination in the Memorandum of
Issues filed on behalf of the Defendants. I will therefore as much as possible
refrain from going into the merits of the issues raised in this writ.
CAN THE PRESIDENT BE SUED PERSONALLY?

Article 57(4) of the Constitution provides—

"Without prejudice to the provisions of article 2 of this Constitution, and

subject to the operation of the prerogative writs, the President shall not, while
in office, be liable to proceedings in any court for the performance of his
functions, or for any act done or omitted to be done, or purported to be done,
or purported to have been done or purporting to be done in the performance
of his functions, under this Constitution or any other law."

And sub-clause (5) of this article provides further—

"The President shall not, while in office as President be personally liable to any
civil or criminal proceedings in Court."

'The Attorney-General shall be responsible for the institution and conduct of all
civil cases on behalf of the State; and all civil proceedings against the State
shall be instituted against the Attorney-General as Defendant' - vide Article
88(5) of the Constitution.

It follows therefore that save for matters or acts done within article 2 of the
Constitution or matters or acts for which a prerogative writ could be issued, all
other actions against the President, while in office, shall be brought against the
Attorney-General on behalf of the State as the Principal Legal Adviser to the
Government. I had an occasion to give an opinion on this issue in the NPP vrs
the President of the Republic of Ghana, Flt. Lt. (Rtd) J. J. Rawlings and the
Attorney-General, S.C. (unreported) dated 3rd May, 1994. In that case, I stated
inter alia that no action could be brought against the President in his personal
capacity. That was a case under Article 2 of the Constitution. I have since
reconsidered my opinion. I am in agreement with my learned brother Amua
Sekyi, J.S.C. (now retired), in that case, that if the action fell within article 2 or
prerogative proceedings were brought against the President, the President
could be sued in his personal capacity.

In this action, the Attorney-General has been sued as "..the person against
whom all civil proceedings affecting the state shall be instituted". It is being
contended that since there is no substantive holder of that office, there could
not be a defendant in the action. I do not think that it is necessary to have a
substantive holder of that office before that office is made a defendant. If that
were so, it would mean that since all actions against the State should be
brought in the name of the Attorney-General, no action could be brought
against the State until such time that a holder of that office is appointed.
Where an action is brought against the Attorney-General or the Attorney-
General sues and the incumbent dies or vacates his office, there is no
application for substitution because that office as long as it exists could be
represented in the action and whoever takes over that position subsequently,
continues with the action. The Attorney-General need not prosecute or defend
the action personally. It is different where the Attorney-General is sued or
brings an action in his personal capacity. In which case if he vacates his office
or dies, there should be substitution, if the case persists. I do not think the
joinder of the Attorney-General in these proceedings would in any way
invalidate the proceedings as the Court would have to determine the issues or
questions in dispute so far as they affect the rights and interests of all persons
who are parties to the proceedings.

With regard to the other Defendants (ie. 3rd, 4th & 5th) it cannot be said that
they are not interest in the issues to be determined, if there is a cause of
action. They are alleged to be beneficiaries of the acts of the 1st Defendant. It
would be against the rules of natural justice if they were not heard before they
were condemned or commended. The Court would have to determine the
issues as they affect them. I think they are necessary parties to the action.

What is the cause of action?

All citizens of Ghana have the constitutional right and duty at all times to
defend the Constitution. (See Article 3(4) of the Constitution). Article 2
empowers any person to bring an action in the Supreme Court for a
declaration as to whether any person has acted or omitted to act consistently
with, or in contravention of a provision of the Constitution. And, the court shall
for that purpose, make such orders and give such directions as it may consider
appropriate for giving effect or enabling effect to be given to the declaration.
No one can deny any person his right to seek such a declaration.

The Plaintiff in the instant case alleges that the 1st Defendant as President has
appointed the 3rd, 4th and 5th Defendants to positions namely, Chief of Staff,
Presidential Adviser for Public Affairs and National Security Adviser
respectively in the Office of the President without consultation with the
Council of State, an act, which violates the Constitution. He wants a declaration
to that effect. The Applicants contend that,

"...The 1st Defendant in exercising his executive authority called in aid the
expertise of the 3rd, 4th and 5th Defendants to assist him in the performance
of his functions as Adviser and Spokesperson to the 1st Defendant." (See
paragraph 7 of the Statement of Case of the Defendants).

And that,

"... 1st Defendant had raised the Status of the 3rd and 4th Defendants by
nominating them as Ministers designate." (See paragraph 17 of the
Defendants' Statement of Case).

Thus, an issue has been joined as to whether or not there have been such
appointments. The Applicants contend that there has been no statutory
publication of such appointments and that no evidence has been led to
establish that. Newspaper publications cannot, they submit, be used to
establish that fact.
That no Council of State has yet been put in place is not denied. It is a
notorious fact that such appointments have been made; this was published in
the local newspapers. Of course since processes for the commencement of
hearing of the action had not been concluded, it is difficult to determine what
evidence would be given to establish these appointments, save from the
publications in the newspapers. As to whether these alleged appointments
qualify as 'Presidential Staff' as defined under Section 16 of the Presidential
Office Act, 1993 (Act 463), is also an issue to be determined. Until then
however, Section 156 of the Evidence Decree, 1975 (NRCD 323) provides that
—

"Printed materials purporting to be newspapers or periodicals are presumed to

be authentic."

Section 4(1) and (2) of the Presidential Office Act, 1993 (Act 463) provides—

"(1) The President shall acting in consultation with the Council of State appoint
such persons as he considers necessary to hold office as Presidential Staff in his
Office.

(2) The number of persons that may be appointed under sub-section (1) of this
Section and the grade of the Officers shall be determined by the President."
(emphasis supplied).

And, "The Presidential Office shall be made up of—

(a) Persons appointed as Presidential Staff under this Act one of whom shall be
appointed head of the office;

(b) Such other public officers as may be seconded or transferred to the office".
(See Section 3(1) of Act 463).
Thus in so far as the appointment of the Presidential Staff is concerned, Section
4(1) of Act 463 must be complied with.

Article 70(1) of the Constitution provides—

"(1) The President shall, acting in consultation with the Council of State appoint
—

(a) X X X X X

(b) X X X X X

(c) X X X X X

(d) X X X X X

(e) the holders of such other officers as may be prescribed by this Constitution
or by any other law not inconsistent with the Constitution." (emphasis mine).

In fact it is in the letter and spirit of the Constitution that Act 463 was enacted.

Section 2 of Act 463 provides—

"The function of the Office is to provide the President and the Vice President
such services as they may require for the efficient and effective
implementation of the executive functions of the President and Vice President
under the Constitution, or any other law."
And, Article 91(1) of the Constitution states—

"The Council of State shall consider and advise the President or any other
authority in respect of any appointments which is required by this Constitution
or any other law to be made in accordance with the advice of, or in
consultation with the Council of State."

It cannot be said that the Presidential Act, 1993 (Act 463) is inconsistent with
the Constitution. The "such other officers" include the Presidential Staff as
prescribed by Act 463 and, "such other officers" must be appointed in
consultation with the Council of State. An appointment without such
consultation is inconsistent with and in contravention of not only Act 463 but
also Article 70(1) of the Constitution, by which authority the appointments are
to be made. The Presidential Staff are there to assist the President in the
effective and efficient performance of his functions. Naturally the President
would need some expert advisers. It cannot be said that the three Defendants
are the only advisers he has, but the fact remains that the three Defendants
are the only persons he has so far named and appointed as his expertise
advisers to assist him in the performance of his functions in his Office as
President. The question is, who are these officers who have been so
appointed? The Plaintiff claims that they are members of the Presidential Staff.
The Defendants say that they are only advisers. An issue is therefore joined for
the determination of the Court.

The Applicants say that the issue is moot as these appointees have since been
'raised' in their status and have been nominated as Ministers designate. The
Writ for the action was filed on 29th January, 2001. A motion ex-parte for
interim injunction to restrain further commission of the alleged violation of the
Constitution and to prevent the alleged appointees from acting was filed on
29th January 2001, the same day the Writ was filed. This could not come on.
However, a repeat application, this time, on notice for interim injunction was
filed on 2nd February, 2001. This also could not come on because of the
instant application by the Defendants to have the Writ set aside. Meanwhile
on 6th February, 2001, the "raised" status of the 3rd and 4th Defendants was
put before Parliament and approved. It is therefore not correct to say that at
the time the Writ was issued, the issue was moot. Be that as it may, I am of the
opinion that there exist issues which are capable of determination for future
conduct of the framers of the Constitution, the Legislature and the Executive-
see US vrs. Concentrated Phosphate Exp. Assn. 393 US 201 and US vrs. W.T.
Grant Co. "345" US 629.

In conclusion, I am satisfied that a cause of action is established on the face of

the records. Pertinent issues have been raised and the Court would have to
determine these issues. This Court has jurisdiction to determine these issues. It
would fail in its duties if it does not determine the declaration sought. I would
accordingly dismiss the application and set the action down for determination
on the merits.

KPEGAH, J.S.C.

I will preface this ruling with the words of Lord Delvin in his book entitled, THE
JUDGE, Oxford University Press, 1979 at page 4 where he said:—

"If a judge leaves the law and makes his own decision, even if in substance
they are just, he loses the protection of the law and sacrifices the appearance
of impartiality which is given by adherence to the law. He expresses himself
personally to the dissatisfied litigant and exposes himself to criticism. But if the
stroke is inflicted by law, it leaves no sense of individual injustice; the losing
party is not a victim which had been singled out; it is the same for everybody,
he says. And how many a defeated litigant has salved his wounds with the
thought that the law is an ass."

These words of wisdom were quoted by Aikins, J.S.C. in the case of J. H.

MENSAH VRS. ATTORNEY-GENERAL (1996-97) SCGLR 320. Like him, I will allow
myself to be guided by these words of wisdom from a man who can easily be
rated as one of the best jurists of his time. Coupled with this is the traditional
saying among the legal fraternity that the Bench is not for timorous souls.

Every student of the Constitutional Law of Ghana might have felt, after reading
the celebrated case of IN RE AKOTO (1961) 2 GLR 523, that if the decision had
gone the other way the political and constitutional development of Ghana
would have been different. "Different" in the sense that respect for individual
rights and the rule of law might have been well entrenched in our land, and we
who now occupy this Court would have had a well-beaten path before us to
tread on in the discharge of the onerous responsibilities imposed upon us by
the Constitution of this country.

In this action, Mr. Martin Amidu is complaining that certain appointments

made or purported to have been made by the President, Mr. John Agyekum
Kufuor to the Office of the President contravenes or is a violation of some
provisions of the Constitution; and he seeks a declaration to the effect that, by
appointing Mr. Jake Obetsebi-Lamptey to the Office of the President as Chief of
Staff, Ms. Elizabeth Ohene as Spokesperson in the Office of the President and
Lt. General (Rtd) Joshua Hamidu as National Security Advisor to the President
without first consulting with the Council of State is a violation of the letter and
spirit of the Constitution. Mr. Amidu (hereinafter referred to as the Plaintiff)
argues that by the said appointments President Kufuor (hereinafter referred to
as the 1st Defendant) acted in breach of Sections 3 and 4 of the Presidential
Office Act, 1993, (Act 463) and article 91 of the Constitution. He, therefore
invoked our original jurisdiction under Articles 2(1)(b) and 130(1)(a) of the
Constitution and sought a declaration that:—

(i) On a true and proper interpretation of the Constitution, particularly articles

58(1) and (2), 91(1) and (2), 190 and 295 thereof; and sections 2, 3 and 4 of the
Presidential Office Act, 1993 (Act 463) the 3rd, 4th and 5th Defendants cannot
be appointed by the President as Staff of the Presidential Office without
consultation with the Council of State.
(ii) The conduct of the 1st Defendant, President John Agyekum Kufuor, in
appointing 3rd, 4th and 5th Defendants as Staff of the Presidential office
without consulting with the Council of State is inconsistent with and in
contravention of the letter and spirit of the Constitution.

(iii) The conduct of the 3rd, 4th and 5th Defendants in holding themselves out
and acting as Officers or Staff in the Office of the President is inconsistent with
and in contravention of the Constitution."

The Plaintiff further asked for a declaration that all acts done or undertaken as
Staff in the President's office are null and void. He, also asked for the ancillary
reliefs of injunction, or such orders or directions as this Court may deem fit or
appropriate.

In a statement of case filed on behalf of the Defendants, the Solicitor General,

raised a number of factual and legal issues upon which the application to set
aside the Plaintiff's writ and statement of case is premised. The relevant
averments in the Defendants' statement of case are:—

“3. The Defendants aver that the executive authority of this nation resides in
the 1st Defendant and in the exercise of this authority this Court lacks
jurisdiction to entertain the Plaintiff's claim against the Defendant.

X X X X

5. The 2nd Defendant admits paragraph 3 of the Plaintiff's statement of case

but denies that he could be sued at the point of time that the Writ and
Plaintiff's statement of case were issued and filed.

X X X X
7. In answer to paragraph 5 of the Plaintiff's statement of case the 3rd, 4th
and 5th Defendants aver that the 1st Defendant exercising his executive
authority called in aid the expertise of the 3rd, 4th and 5th Defendants to
assist him in the performance of his function as advisers and spokesperson to
the 1st Defendant.

X X X X

9. In further answer to .... the Plaintiff's statement of case the Defendants

aver that the Plaintiff has not shown any evidence to indicate that the 1st
Defendant has appointed the 3rd, 4th and 5th Defendants as Staff in the Office
of the President.

X X X X

17. The Defendants aver that before the Plaintiff filed his Writ and the
statement of case, the 1st Defendant had raised the status of the 3rd and 4th
Defendants by nominating them as Ministers designate.

18. The Defendants say further that since the nomination of the 3rd and 4th
Defendants, Parliament had as of 6th February 2001 approved the
appointment of the 3rd and 4th Defendants as Ministers and have been sworn
in as such Ministers.

19. Regarding the position of the 5th Defendant the Defendants say that his
position or status is not contemplated under the Constitution and therefore no
provision of the Constitution is violated.

20. It is further averred by the Defendants that the appointments of the 3rd,
4th and 5th Defendants by the 1st Defendant and, which is the subject of
attack by the Plaintiff, is a prerogative of the 1st Defendant and this Court lacks
or any other Court jurisdiction to entertain any action brought against the 1st
Defendant in this regard.

21. The Defendants aver that the action brought by the Plaintiff is frivolous and
an abuse of this Court's process."

On the very day that the Defendants statement of case was filed, the Solicitor
General immediately proceeded to file a motion seeking to set aside the
Plaintiff's writ and statement of case on three main grounds; namely,

(i) that this Court lacks jurisdiction to entertain the Plaintiff's action against the
Defendants;

(ii) that the Plaintiff's writ and statement of case disclose no cause of action;
and

(iii) that the questions raised in the Plaintiff's action for determination have
become moot.

Before proceeding any further I would like to deal with an issue which is
germane to this case. The point was raised in argument, based on paragraph 9
of the Statement of Defendants' case, that the Plaintiff's failure to exhibit the
letters of appointment is fatal to his case since the Defendants had, in the said
paragraph 9, denied his averments.

The Plaintiff countered this argument by submitting that the fact of the said
appointments are common knowledge having been so published by both the
electronic and print media to which there had not been any official denial.
Fortunately, Section 156 of the Evidence Decree, 1975, (NRCD 323) provides:
"Printed materials purporting to be newspaper or periodicals are presumed to
be authentic."

My brother Acquah, J.S.C. in the case of NPP VRS. NDC & ORS. (2000) SCGLR
461 at page 508 commenting on the efficacy of the said section 156 in judicial
proceedings said:

"[T]he law recognises the existence of newspapers as sources of information,

and accordingly, provides in section 156 of the Evidence Decree, 1975 (NRCD
323) that:

'Printed materials purporting to be newspapers or periodicals are presumed to

be authentic.'

This does not mean that whatever is stated in a newspaper is true. What the
provision does is to give recognition to the existence of a newspaper. It would
certainly be outrageous in my view, for anyone to make capital out of the fact
that the source of the Plaintiff's information is a newspaper when even the
Courts rely on publications in newspapers for a variety of purposes including
substituted services, as authentic means of giving notice to those entitled to be
given such notices. It would be unfathomable for this Court to refuse to
assume jurisdiction on grounds inter alia, that the Plaintiff's source is the
newspaper.” (emphasis supplied).

Concluding his discourse on section 156 of the Evidence Decree, Acquah, J.S.C.
said:

"After all, instances abound where parties to suits have relied on newspaper
publications in support or defence of their case."

He then cautioned that

"no fetish should be made of the fact that the Plaintiff's source of information
is THE GHANAIAN TIMES."

Section 156 of the Evidence Decree entails more than merely give recognition
to a newspaper. The important words in the provision are "presumed to be
authentic". The word "authentic" is defined in the Chambers Dictionary (New
Edition) as "genuine; authoritative; true, entitled to acceptance, of established
credibility". Used in relation to writing it means "trustworthy, as setting forth
real facts".

We should be wary of setting aside a Plaintiff's Writ and Statement of Case for
failing to disclose evidence of a pleaded fact, which is denied, when there is a
legal presumption, though rebuttable, in the Plaintiff's favour in respect of that
fact. It will certainly be a thin ground on which to decline jurisdiction and set
aside the writ and statement of case in an important constitutional case which,
in my view, involves so much law.

The Plaintiff's action was provoked by various announcements in both the

electronic and print media that the 1st Defendant had appointed the 3rd, 4th
and 5th Defendants to certain staff positions in the Office of the President
when the Council of State has not been constituted because in such
appointments the Council of State must be consulted. In respect of the 3rd
Defendant for example, it was carried in both the print and electronic media
on the 8th and 9th of January, 2001 that he had been appointed the Chief of
Staff in the President's Office. This was how the "Daily Graphic” of 9th January,
2001 presented the news of the 3rd Defendant’s appointment: "JAKE MADE
CHIEF OF STAFF". The story that followed was:

"The President, Mr. John Agyekum Kufuor, has appointed Mr. Jake Obetsebi-
Lamptey as Chief of Staff, Office of the President."

The same news item was carried in the EVENING NEWS of the previous day.
In respect of the 4th Defendant, Ms. Elizabeth Ohene, her appointment was on
the 4th day of January, 2001 and carried in the DAILY GRAPHIC of 5th January,
2001. The caption read: "ELIZABETH OHENE NAMED PUBLIC AFFAIRS ADVISER"
with the following story:

"The President-elect, Mr. John Agyekum Kufuor, has appointed Ms. Elizabeth
Ohene, one-time Editor of the Daily Graphic as his Advisor on public affairs. A
press release issued from the Office of Mr. Kufuor yesterday, said in her
capacity as Public Affairs Advisor, Ms. Elizabeth Ohene will be responsible for
all media-related activities of the President-elect. The release signed by Mr.
Jake Obetsebi-Lamptey, Campaign Manager of Mr. Kufuor, said Ms. Ohene
would also be responsible for all statements issued on behalf of the President-
elect."

This story was also carried by the other print and electronic media. It does
seem, therefore, that Ms. Ohene's appointment was made by the President
even before he assumed office on the 7th January, 2001. The 1st Defendant,
therefore, could not have been exercising his executive authority, not having
been vested with such authority, to call in aid the expertise of the 4th
Defendant as Spokesperson to assist him in the performance of his functions as
pleaded in the Statement of Defendants' case. The release which announced
the appointment of the 5th Defendant, Lt. Gen. Joshua Hamidu, as the
National Security Advisor to the President was signed by the 4th Defendant in
her appointed capacity. The appointment of the 5th Defendant was captioned
in the DAILY GRAPHIC of 12th January, 2001 thus: "HAMIDU MADE NATIONAL
SECURITY ADVISER". The story under this headline was:

"The President, Mr. J. A. Kufuor, has appointed Lt. Gen. Joshua Hamidu as
National Security Advisor, a press release signed by Ms. Elizabeth Ohene,
Presidential Advisor of Public Affairs announced yesterday. Lt. Gen. Hamidu is a
former Chief of Defence Staff."
In moving the motion to set aside the Plaintiff's writ and statement of case, the
learned Attorney-General, Nana Akufo-Addo raised a number of issues. First,
that the 1st Defendant as President of Ghana, being vested with the executive
authority of the state is not amenable to the jurisdiction of any court in the
exercise of that authority. For this submission he relied on the decision of this
Court in the case NPP VRS. FLT. LT. (RTD) J. J. RAWLINGS & ANOR. Suit No.
15/93 (Unreported) dated 3/5/94 where by a 3-to-2 majority this Court held
that the President was not amenable to court proceedings for the performance
of his official functions whilst in office. Thus, the per curiam decision placed
the President, in the due exercise of his powers, whether constitutional or
statutory, political or otherwise, beyond the reach of judicial proceedings. The
J. J. RAWLINGS' case will be examined in greater detail in this ruling. However,
it is worth mentioning at this stage that the court failed to consider the issue
whether a President can under any circumstances be compelled through the
judicial process to perform a purely ministerial act under a positive law
otherwise for impeachment under article 2(4).

The second point raised in support of the motion was that there being no
substantive Attorney-General when the writ was issued the joinder of the 2nd
Defendant (Attorney-General) as a party was improper and the writ against
him was null and void. Third, that by the nomination of the 3rd and 4th
Defendants by the President as Ministers of State and their subsequent
approval by Parliament as Ministers of State, the questions raised by the
Plaintiff's action had become moot and this court should accordingly decline
jurisdiction. Admittedly, the function of a Court of law in our jurisdictions is to
determine issues of law and fact when properly raised before it in a dispute
between parties. The question then is, how far does the American principle of
mootness based on the "case" and "controversy" requirement of Article III (2)
of their Constitution and as applied in the case of DEFUNDIS VRS. ODEGAARD,
416 U.S. 312, apply under Article 2 of our Constitution, if it does at all. The
assault on the competence of this Court to adjudicate the Plaintiff's case is
based on the above basic grounds. There are other strands to the challenge
raised in argument which will be considered in the course of this opinion.

The Plaintiff on the other hand urged us to reject the Attorney-General's

position because the action is brought under Article 2 of the Constitution; that
in such a situation the President, while in office, can be sued personally for
infractions of any constitutional provision in the discharge of his executive
functions. As to the second point, the absence of a substantive Attorney-
General, the Plaintiff argued that the Attorney-General was sued only as a
nominal Defendant and the fact that nobody had then been appointed to the
position was not a sine qua non. And on mootness the Plaintiff argued that the
principle of mootness is not contemplated in respect of actions brought under
Article 2 of the Constitution.

The last two points were considered in the case of J. H. MENSAH VRS.
ATTORNEY-GENERAL (1996-97) SCGLR 320. The then Attorney-General, Dr.
Obed Asamoah together with his Deputy, the present Plaintiff, raised
preliminary objections to the Plaintiff's action. First, that the issues which fell
for determination had become moot; and secondly, that on the basis of the
Plaintiff's own showing, the action could not be maintained against the
Attorney-General because, he too, like the retained Ministers, had not been
approved by Parliament. The present Attorney-General who then appeared for
the Plaintiff in the J. H. MENSAH's case resisted the application on the ground
that the Attorney-General was sued as a nominal defendant. This argument
was accepted by the court. At this point I crave indulgence to digress and
indicate some aspects of this ruling in advance.

In this ruling apart from answering the major questions raised, I may also
consider other points indirectly raised in the course of argument:

How far American principles of judicial self-restrain can be applied in our

Constitutional adjudications, particularly the political question doctrine and the
principle of ripeness.

This discussion will dove-tail into a consideration of the plea of mootness, its
origin and scope, since it is raised in this case. I intend to do this because we
have not been consistent in our applications of these principles. In some cases
there are dicta suggesting that American doctrines of judicial self-restrain
developed as a result of the "case" and "controversy" requirement of article III
(2) of the American Constitution are not applicable in our circumstances. But in
other cases, some of the principles are given tacit approval or applied. These
principles have been developed by American Courts as a convenient way of
avoiding jurisdiction in certain cases. One of these principles, the mootness
doctrine, has now been pleaded in bar to our jurisdiction in this case.

I think this offers us an opportunity to confront once and for all these
discretionary avoidance principles of American jurisprudence and determine
how relevant they are to our circumstance instead of the selective approach
we have been adopting so far; otherwise such approach will deprive our
jurisdictional decisions of any principled content or basis.

A review of some of the cases in which these doctrines have been applied or
rejected may help illustrate our ambivalence towards these principles. For
example, in the recent case of NPP VRS. NDC & ORS. (SUPRA) at 505-506, the
following words of caution were given against these discretionary avoidance
principles:

"Generally an action is speculative if it is not grounded on real situations but

on conjectures and therefore not ripe for adjudication. In United States
constitutional jurisprudence, such an action is discussed under the doctrine of
ripeness. For article III of the United States Constitution requires a court to
consider whether a case has matured or ripened into a controversy worthy of
adjudication before it can be determined."

After this preliminary observation the caution was sounded thus:

"Now a close study of the United States Constitutional jurisprudence vis-a-vis

the language and provisions of our 1992 Constitution, clearly shows that the
United States doctrine of ripeness, like most of their principles of judicial self-
restraint, is inappropriate in the interpretation of our Constitution. In J. H.
MENSAH VRS. ATTORNEY-GENERAL (1996-97) SCGLR 320 this Court finally
decided that the political question doctrine as applied in the United States was
inapplicable in our jurisprudence."

But, in J. H. MENSAH VRS. ATTORNEY-GENERAL (1996-97) SCGLR 320 the Court,

while rejecting the political question doctrine, one of the principles of judicial
self-restraint, proceeded to apply the doctrine of mootness another principle
of judicial self-restrain which had been developed in the United States
specifically because of the "Case" and "Controversy" requirement of Article
III(2) of their Constitution. The first holding in the J. H. MENSAH VRS.
ATTORNEY-GENERAL (SUPRA) states:

"The preliminary objection by the Defendant would be dismissed: (a) the

principle guiding the court in refusing to decide moot questions was quite
settled. If the question, though moot, was certainly not likely to re-occur, the
courts would not waste their time to determine dead questions and issues.
Thus for the court to decline deciding a moot question, it must be established
that subsequent events had made it absolutely clear that the alleged wrong
behaviour could not reasonably be expected to occur. Where it was not so
established (as in the instant case) the court would go into the question to
forestall a multiplicity of suits."

The court, for the above holding, relied on two United States Supreme Court
decisions; namely U.S. VRS. CONCENTRATED PHOSPHATE EXP. ASSN. 393 U.S.
201; and U.S. VRS. W.T. GRANT & CO. 345 US 629.

It does appear from the first holding, does it not, that the court approved the
doctrine of mootness as applicable to our Constitutional adjudications but only
found it inapplicable to the case before it for, in the words of Aikins, J.S.C., "the
issue in the instant case is still alive".

The other so-called American doctrine often applied with some inconsistency is
the political question doctrine the development of which is based on the
doctrine of separation of powers which underpins the American Constitution,
like ours, rather than any specific provision in the American Constitution. It was
applied in the case of TUFFOUR VRS. ATTORNEY-GENERAL (1980) GLR 632
without the court specifically saying so; but the principle was rejected in the
case of NPP VRS. ATTORNEY-GENERAL (THE 31ST DECEMBER CASE) Suit No.
18/93 (unreported) dated 8/3/94. The issue again arose in the case of G.B.A.
VRS. ATTORNEY-GENERAL & ANOR. (THE ABBAN CASE) Suit No. 8/95
(unreported) dated 5/12/95 where THE 31ST DECEMBER CASE was criticised
and the doctrine applied in the ABBAN case. This is what Hayfron-Benjamin,
J.S.C. said in his supporting opinion:

"This leads me to a consideration of the second of what I have termed the twin
pillars constituting jurisdiction. Whether this action can be maintained, or
more properly, whether this Court can clothe itself with jurisdiction to hear
and determine the matter. I have already referred to the opinion of my learned
and respected brother Kpegah, J.S.C. in particular and to the concurring
opinion of my learned and respected sister and brethren. I do not think it is
necessary for me in this opinion to discuss the principle of the non-justiciable
political question. It is certainly one of the grounds upon which the jurisdiction
of this Court may be ousted". (emphasis supplied).

One of the grounds on which the Court declined jurisdiction in the Abban case
therefore was non-justiciable political question doctrine. And commenting on
the case of TUFFOUR VRS. ATTORNEY-GENERAL (SUPRA) in ABBAN CASE,
Hayfron-Benjamin, J.S.C. said:

"In my respectful opinion in the case of TUFFOUR VRS. ATTORNEY-GENERAL

(1980) GLR 639, this Court discussed in full the scope and limits of our
jurisdiction with respect to dealings with other arms of government. Although
in the TUFFOUR case, Supra, their Lordships did not use the term - non-
justiciable political question, I think they reached conclusions, which accord
with JUSTICE BRENNAN'S dictum in the American case of BAKER VRS. CARR,
369, US, 186 (1962)".
This was not to be the end of the matter. In the case of J. H. MENSAH VRS.
ATTORNEY-GENERAL (1996-97) SCGLR 320 the Court rejected the avoidance
principle of political question doctrine and held that the court had jurisdiction
to determine political questions. It is interesting that the ABBAN CASE which
disapproved of NPP VRS. ATTORNEY-GENERAL (31ST DECEMBER CASE) was not
referred to but rather the latter was relied upon although it was severely
criticised in the ABBAN CASE which, as indicated, the Court never referred to in
J. H. MENSAH VRS. ATTORNEY-GENERAL (SUPRA). The argument could
therefore be made that this case was decided per incuriam.

It seems to me, therefore, that this Court had not been consistent in its
application of the so-called American principles of political question doctrine to
our circumstance. One may therefore legitimately ask to what extend such
applications or rejections of these so-called discretionary avoidance principles
of the American jurisprudence have been based on principled grounds, or to
what extend they were AD HOC invocations or applications of prudential
judgments. I find it irresistible to consider some of these principles for fear that
such an inconsistent approach by this Court may deprive our jurisdictional
decisions of any principled basis; especially when one of these principles have
been cited in bar to our assumption of jurisdiction in the instant case.

I will be discussing these concepts and their relevance to our circumstance and
finally link the discussion with what we actually mean and must do in our
jurisprudence when a defendant moves a court to have the plaintiff's writ and
statement of claim set aside for "failing to disclose any cause of action”. What
factors or considerations must a court take into account before granting or
refusing such a request will be part of the burden of this opinion.

After this self-explanation why I will be delving into areas which may “appear",
I use the word advisedly, to some as not really necessary for the decision, I will
revert to a consideration of some of the legal issues raised.

THE IMMUNITY OF THE PRESIDENT WHILE IN OFFICE

It is trite learning that a court can be said to lack jurisdiction either because it
has no jurisdiction over the subject-matter of a claim, or over any of the
parties. The learned Attorney-General's contention is that since the 1st
Defendant, His Excellency President J. A. Kufuor, was exercising his executive
authority he is not amenable to the jurisdiction of this court or any other court
while in office. He supported his argument with the decision of this court in the
case of NPP VRS. FLT. LT. (RTD) J. J. RAWLINGS & ANOR. Suit No. 15/93
(unreported) dated 3rd May, 1994 where this court in a 3 to 2 majority
decision interpreted article 57(4) to mean that the President, while in office, is
immune from any judicial proceedings in the performance or purported
performance of his official functions. Article 57(4) of the Constitution states:

"Without prejudice to the provisions of article 2 of this Constitution, and

subject to the operations of the prerogative writs, the President shall not,
while in office, be liable to proceedings in any court for the performance of his
functions, or for any act done or omitted to be done, or purported to be done,
or purported to have been done or purporting to be done in the performance
of his functions, under this Constitution or any other law."

That the executive authority of Ghana vests in the President of the Republic is
very clear from the language used in article 58(1) of the Constitution. However,
this same article doth enjoin the President that while exercising his undoubted
executive authority he must do so in accordance with the provisions of the
Constitution. It states:

"The executive authority of Ghana shall vest in the President and shall be
exercised in accordance with the provisions of this Constitution." (emphasis
supplied).

So that article 58(1) not only grants executive power to the President but also
imposes a mandatory duty on him to do so in accordance with the provisions
of the Constitution. This duty is enforceable because "any act or omission of
any person" which is alleged to be inconsistent with, or to be in contravention
of a provision of the Constitution can be challenged in the Supreme Court
under Article 2 to which the immunity of the President is made subject. As was
poignantly pointed out by Amua-Sekyi, J.S.C. in the RAWLINGS case,

"If words have any meaning, the term 'any person' must include the President
of the Republic; and, if it does, then there is no reason why he cannot be called
upon to answer for alleged infringements of constitutional provisions."

The submission that article 58(1) while vesting the President with executive
authority also, expressly, or at least by necessary implication, imposes an
enforceable duty on him to observe the provisions of the Constitution in the
process, is underscored by the provisions in clause 2 of the said article 58
which makes it clear that the President's executive authority "shall extend to
the execution and maintenance of the Constitution and all laws made under or
continued in force by this Constitution".

It does appear, therefore, that there is sufficient internal evidence in article 58

not only of the vesting of the executive authority in the President, but also the
imposition of a duty on him to exercise those powers in accordance with the
provisions of the Constitution and any other law made or continued under the
Constitution. This duty is enforceable, and can be enforced by recourse to our
enforcement jurisdiction under article 2 of the Constitution to which the
President's immunity from judicial proceeding is made subject.

I have read the case of NPP VRS. FLT. LT. (RTD) J. J. RAWLINGS & ANOR.
(SUPRA) several times and find that the views and sentiments expressed by
Amua-Sekyi, J.S.C. in his minority opinion accords with those of my own. This is
what he said:

"Although the President is the first citizen, he is not above the law. The
medieval fiction that the 'king can do no wrong', which the sophist interpreted
to mean that if the action was wrong, then it was not that of the king, has no
place in a republican setting which prides itself on all citizens being equal
under the law and therefore obliged to act in conformity with it. We recognise
that an executive President being the most powerful person in the State is the
one who has the greatest capacity for wrong-doing. We do not need a Petition
of Right or a notional defendant like the Attorney-General before we can
exercise our democratic right of calling an erring President to order under
Article 2 which not only commands him to obey any order or directions this
court may give, but also makes his failure to obey any order or direction a
ground for his removal from office."

What happens when the President refuses to perform a public duty imposed
on him by a Statute. He must, like anybody, be amenable to the prerogative
writ of MANDAMUS to compel him to discharge the duty. As was observed by
Apaloo, J.A. (as he then was) in the case of SALLAH VRS. ATTORNEY-GENERAL
(1970) 2 G & G 493,

"It ought, however, to be borne in mind that the immunity from legal
proceedings granted to the President in the performance or purported
performance of his constitutional or other legal duty is not absolute. His
immunity from Court proceedings does not extend to proceedings taken
against him by any of the prerogative writs. It would follow from this that if the
President failed or neglected to perform a public duty imposed on him by law,
a person affected by his failure can compel him in Court by the prerogative
order of Mandamus."

The above dictum of Apaloo, J.A. (as he then was) implies the submission that
the order could be enforced if the President deliberately refuses to comply.

Such an order can only be enforced by contempt proceedings, which

proceedings being quasi-criminal are inappropriate for the citation of a
"nominal contempt nor" like the Attorney-General; personal demand is
required before such a procedure can be invoked.
And for a contempt proceeding to be successful the party proceeded against
must be proved to have been guilty of a wilful or intentional, or deliberate
disobedience of the order, and if this is not fully and satisfactorily made out,
the Court will refuse to commit. The words "wilful", "intentional" or
"deliberate" require a particular state of mind on the part of the person
alleged to be in contempt. Can this necessary state of mind be attributed to "a
nominal defendant" like the Attorney-General for him to be committed. For all
we know, he might have advised the President to obey the order.

Also, an application for contempt can result in the contemptnor being

committed to prison. Will a "nominal contemptnor" like the Attorney-General
go to prison instead of a recalcitrant and obstinate President?

Should we decline to over-rule the RAWLINGS' case and hold that the
President is not amenable to any judicial proceedings even if, in the
performance of his duties he breaches the Constitution, we may possibly be
condemning the citizens of this country to the calamity which befell the nation
after the RE: AKOTO case. And this Court would have reneged on one of its
functions - the maintenance of the culture of Constitutionalism. In my
dissenting opinion in the case of YEBOAH VRS. J. H. MENSAH (1998-99) SCGLR
492 at page 517, I said:

"The Constitution is the Supreme Law of the land, and, all person must look at
it and adjust their actions or conduct accordingly. And it has to be emphasised
that one of the primary functions of the Supreme Court, apart from
adjudication of constitutional matters, is promoting and safe-guarding
constitutional values." (emphasis supplied)

I cannot conclude this aspect of my opinion without again calling in aid the
words of my brother Amua-Sekyi, J.S.C. in the RAWLINGS case (Supra):
"In the light of the foregoing, I am of the opinion that whenever it is alleged
that the President acted in a manner inconsistent with or in contravention of a
provision of the Constitution, an action may be brought against him under
Article 2 for a declaration to that effect, and for consequential orders, including
an injunction. President Rawlings was, therefore, properly made a defendant in
this suit."

For the name "President Rawlings" substitute the name "President Kufuor" and
this will adequately reflect my humble view in this case.

ATTORNEY-GENERAL

The point was also raised that since there was no substantive Attorney-General
before the writ was issued, the writ against the 2nd Defendant is null and void
and should be dismissed accordingly. This argument was earlier made in the
recent case of J. H. MENSAH VRS. ATTORNEY-GENERAL (SUPRA) by the then
Attorney-General but the present Attorney-General, Nana Akufo-Addo, who
then appeared for the Plaintiff countered this line of argument by submitting
that the Attorney-General was sued as a nominal defendant. This argument
found favour with the Court which held that the Plaintiff was right in
contending that the Attorney-General was constitutionally a nominal
Defendant in the action. Currently, this is the view I hold and the case of J. H.
MENSAH VRS. ATTORNEY-GENERAL (SUPRA) should lay to rest the contention
of the Honourable Nana Akufo-Addo that the writ was void against the 2nd
Defendant because he had not been appointed before the writ was issued. In
any case the point could not defeat the action as the non-joinder or mis-
joinder of a party cannot defeat an action.

APPLICATION OF AMERICAN CONCEPTS OF JUDICIAL SELF-RESTRAIN AND

OTHER PRINCIPLES TO OUR CONSTITUTIONAL ADJUDICATION

(a) POLITICAL QUESTION-AKIN TO AMERICAN CONSTITUTION OR INHERENT IN

DOCTRINE OF SEPARATION OF POWERS
Our Constitution, like the American Constitution, is a written Constitution
underpinned by the doctrine of the separation of powers. And it is important
to say that being a written Constitution, it has, like the American Constitution,
certain fundamental or basic attributes. The first is that the people of Ghana
VOLUNTARILY, in the words of the Preamble "do hereby adopt, enact and give
to ourselves this Constitution". And under the Constitution the people of
Ghana have exercised their "natural and inalienable right to establish a
framework of government". The second attribute is that the form of
government envisages three important branches or arms of government - that
is the EXECUTIVE, LEGISLATURE and JUDICIARY. The third attribute is that these
various departments of government have their respective powers laid down
with limits not to be infringed or transgressed by any arm of government. But
these limits, expressed in a written Constitution, would be meaningless and
serve no purpose if freely ignored or infringed by the organs intended to be
restrained. Although power is dispersed among the various organs of
government, it should not be at the expense of harmony and governance.

In the American case of YOUNGSTOWN SHEET & TUBE CO. VRS. SAWYER
(STEEL SEIZURE CASE) 343 U.S. 579, Justice Jackson said of the doctrine of the
separation of powers:

"While the Constitution diffuses power the better to secure liberty, it also
contemplates that practice will integrate the dispersed powers into a workable
government. It enjoins upon its branches separateness but interdependence,
autonomy but reciprocity".

Our Constitution, unlike the American Constitution, is expressed to 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".
Despite this provision there is inherent or internal evidence in our Constitution
that the policy which informs or should inform an Act, and the desirability of
enacting such a law are matters for the Executive and Legislature to decide.
But the interpretation of the law, its enforcement and matters relating to the
validity of the law enacted by Parliament fall within the adjudicatory functions
of the Courts. So that when we decide the validity of an Act of Parliament, we
are not descending to the well of Parliament and thereby interfering with its
work. We are empowered by the Constitution to so declare if Parliament
transgresses the Constitutional limitation placed on its legislative powers.
Therefore, the issue whether an Act or any of its provisions are constitutionally
valid or not, is not a question of a political nature and this Court cannot refrain
from deciding same. Because in doing so the Court is not encroaching any
particular function or privilege of Parliament. This distinction is important and
must be maintained. The principle of non-justiciable political question did not
evolve in American jurisprudence due to the fact that the Courts were not
endowed with the power of judicial review in the Constitution. Although it was
the case of MARBURY VRS. MADISON 1 Cranch 137 which formally broke the
ground for judicial review in America, earlier jurists have anticipated and read
into the Constitution such a power. For example, Hamilton in his THE
FEDERALIST No. 78 (Modern Library ED. 1937) at page 506 wrote:

"The interpretation of the laws is the proper and peculiar province of the
Courts. A Constitution, is, in fact, and must be regarded by the Judges, as a
fundamental law. It therefore belongs to them to ascertain its meaning, as well
as the meaning of any particular act proceeding from the legislative body. If
there should happen to be an irreconcilable variance between two, that which
has the superior obligation and validity ought, of course, to be preferred; or, in
other words, the Constitution ought to be preferred to the Statute, the
intention of the people to the intention of their agents".

Some are of the view therefore that Chief Justice Marshall only gave
philosophical justification to the concept of judicial review in the MADISON
case. It is not primarily because of the absence of the power of judicial review
in the American Courts that the principle of non-justiciable political question
was evolved. It is a necessary derivative from the doctrine of separation of
powers. Justice Brennan in BAKER VRS. CARR 369 U.S. 186 (1962) at page 682
said:
"The non-justiciability of a political question is primarily a function of the
separation of powers".

I think it is this basic distinction which Archer, C.J. in the case of NPP VRS.
ATTORNEY-GENERAL (31ST DECEMBER CASE) (supra), where the issue was
raised, recognised or acknowledged and meant when he cautioned, thus:

"The Constitution gives the Judiciary power to interpret and enforce the
Constitution and I do not think this independence enables the Supreme Court
to do what it likes by undertaking incursions into territory reserved for
Parliament and the Executive. This Court should not behave like an octopus
stretching its eight tentacles here and there to grab jurisdiction not
constitutionally meant for it”.

The above dictum by Archer, C.J. was given some approval, in another
direction, in the J. H. MENSAH CASE (supra). One may be tempted to ask what
philosophical considerations might have informed this dictum of Archer, C.J.
He was considering the applicability of the political doctrine to our
circumstance, which the majority rejected in that case (i.e. 31st December
Case) (supra) as inapplicable in our Constitutional adjudications. And Sowah,
J.S.C. (as he then was) in the case of TUFFOUR VRS. ATTORNEY-GENERAL
(1980) GLR 637 after examining the question of how far the courts can
question what, under our Constitution, had been done in, and by Parliament,
said at page 651 thus:

"These Courts cannot therefore enquire into the legality or illegality of what
happened in Parliament. In so far as Parliament has acted by virtue of the
powers conferred upon it by the provisions of clause (1) of Article 91, its
actions within Parliament are a closed book."

The Court then proceeded to discharge the Speaker as the 1st Defendant
because he ought not to have been joined as a party. The rationale for the
Court's decision that proceedings in Parliament are a closed book and cannot
be subjected to judicial review is the concept of separation of powers and its
necessary implication of non-justiciability of proceedings of Parliament.

And in the ABBAN case I cautioned against the relentless use of our power of
judicial review as follows:

"I do not think the framers of our Constitution intend to anoint and enthrone
the Judiciary. The political question is one basic virtue to emanate from the
concept of separation of powers. This Court must apply it in an endeavour to
find its proper place within the Constitutional structure".

THE BRITISH CONCEPT AND RECENT DEVELOPMENTS

In British Constitutional law, the "traditional view" is that Parliament is

Supreme. Some of its proponents had been Dicey and Blackstone Coke. The
concept of supremacy implied that Parliament could enact laws on any topic
affecting any persons, and there are no laws which Parliament is impotent to
repeal or amend. In this context Parliament means "the crown in Parliament" -
that is, the combined effect of the Queen, House of Lords and the House of
Commons. Under the British domestic law, the efficacy of the laws passed by
Parliament may be challenged, but the power to make such a law has never
been challenged. But some of the assumptions which flow from the theory of
supremacy of Parliament in British Constitutional Law, are slowly coming under
stress by certain realities of the modern state and relations between other
states. Although the British Constitution is not written, the non-justiciability of
certain types of actions, perhaps on grounds previously unknown or
unacceptable, has started to creep in. In the recent case of BLACKBURN VRS.
ATTORNEY-GENERAL (1971) 1 WLR. 1037, the Plaintiff brought two actions
against the Attorney-General seeking a declaration that the effect of signing
the Treaty of Rome (which would permit Britain to join E.E.C. and some of its
organs) would be irreversibly to surrender in part the Sovereignty of the Crown
in Parliament and that, accordingly, Her Majesty's government will be acting in
breach of the law. The Court of Appeal held that the Courts could not impugn
the treaty-making powers of the Crown. Lord Denning, M.R said:
"The treaty-making powers of this country rests not in the Courts, but in the
Crown; that is Her Majesty acting upon the advice of her Ministers. When her
Ministers negotiate and sign a treaty, even a treaty of such paramount
importance as this proposed one, they act on behalf of the country as a whole.
They exercise the prerogative of the Crown. Their action in so doing cannot be
challenged or questioned in these Courts".

Lord Salmon in his opinion on the issue of jurisdiction said:

"Whilst I recognise the undoubted sincerity of Mr. Blackburn's views, I

deprecate litigation the purpose of which is to influence political decisions.
Such decisions have nothing to do with these Courts. Nor have the Courts any
power to interfere with the treaty-making power of the sovereign..."

Lord Justice Stamp was more forthright in his opinion. This is what he said:

"I agree that the appeal should be dismissed; but I would express no view
whatever upon the legal implications of this country becoming a party to the
Treaty of Rome. In the way Mr. Blackburn put it I think he confused the division
of powers of the Crown, Parliament and the Courts. The Crown enters into
treaties; Parliament enacts laws; and it is the duty of this Court in proper cases
to interpret those laws when made; but it is no part of this Court's function or
duty to make declarations in general terms regarding the power of
Parliament ... Nor ought this Court at the suit of one of Her Majesty's subjects
to make declarations regarding the undoubted prerogative powers of the
Crown to enter into treaties".

The second point taken by the Plaintiff in the BLACKBURN CASE is that if
Parliament should implement the Treaty of Rome by enacting an Act of
Parliament for the purpose, it would try to do the impossible; in that it will be
trying to bind its successors since it is a term of the Treaty that once it is
signed, then Britain would be committed irrevocably. For this view point, the
Plaintiff relied on the principle that no Parliament can bind its successor, and
that no Act of Parliament is irreversible. In support of this argument the
Plaintiff relied on the comment of Professor Maitland on the Act of Union
between England and Scotland. At page 332 of his "Constitutional History of
England" he said:

“We have no irrepealable laws; all laws may be repealed by the ordinary
legislature, even the conditions under which the English and Scottish
Parliaments agreed to merge themselves in the Parliament of Great Britain".

Responding to this argument Lord Denning said:

"We have all been brought up to believe that, in legal theory, one Parliament
cannot bind another and that no Act is irreversible. But legal theory does not
always march alongside political reality. Take the Statute of Westminster 1931,
which takes away the power of Parliament to legislate for the Dominions. Can
anyone imagine that Parliament could or would reverse that statute? Take the
Acts which have granted independence to the Dominions and territories
overseas. Can anyone imagine that Parliament could or would reverse those
laws and take their independence? Most clearly not. Freedom once given
cannot be taken away. Legal theory must give way to practical politics. It is well
to remember the remark of Viscount Sankey, L.C. in BRITISH COAL CORP. VRS.
THE KINGS (1935) A.C. 500 at 520:

‘…. The Imperial Parliament could, as a matter of abstract law, repeal or

disregard section 4 of the Statute of Westminster. But that is theory and has
no relation to realities.

It seems to me that some of the traditional concepts underlying the British

Constitution are being imperceptibly pecked at by the realities of modern
political considerations. Otherwise, the suit of Blackburn could have been
dismissed on traditional ground that the "Queen can do no wrong" and the
"Queen cannot be sued in her own Court”. Instead the law Lords have started
deprecating litigation which are intended to influence political decisions which
have nothing to do with the Courts; that legal theory does not always march
alongside political reality, or that theory has no relation to realities. More
importantly, the British courts, which operate an unwritten Constitution, have
started talking about a Plaintiff being confused about the division of powers
between the Crown, Parliament and the Courts.

To me, it is significant that the British Court of Appeal declined jurisdiction and
dismissed the suit on the ground that the issue for determination was a
“political decision” and that “such decisions have nothing to do with these
Courts”. Even if it is argued that our Constitution does not recognise the
doctrine of separation of powers in its absolute rigidity, the functions of the
different branches of government have been sufficiently demarcated and
consequently it can very well be said that our Constitution does not
contemplate assumption, by one arm or branch, functions of state which
essentially belong to another branch.

Any blanket rejection of the principle of non-justiciable political question will,

in my humble view, create jurisdictional problems in the future. It is not a
concept developed from any particular provision of the American Constitution,
but is a concept which is inherent in the doctrine of separation of powers,
which concept underpins our Constitution also. The fact that it was developed
and so named within American jurisprudence should not give us goose pimples
and make us averse to its application to our Constitutional adjudication. After
all, what is in a name? A rose will always smell sweet even if it is called
"ammomia".

To emphasise a point I would like to relate the Blackburn Case to our current
situation. What will be the attitude of this Court if a citizen should bring an
action seeking a declaration that the recent decision of His Excellency the
President for Ghana to join the Highly Indebted Poor Countries (HIPC) is
against both the spirit and letter of the Constitution on the ground that it is not
in the interest of Ghanaians "in whose name and for whose welfare," in the
words of Article 1(1) of the Constitution, "the powers of government are to be
exercised"; and arguing in the process that the HIPC initiative will not lead to a
realisation of the economic objectives anticipated under Article 35 of the
Constitution of Ghana.

I asked this question because under Article 75 it is the President's prerogative

to enter into treaties, agreements, or conventions subject to ratification by
Parliament through an Act of Parliament, or by a resolution supported by the
vote of more than one-half of all Members of Parliament. And the HIPC has
been adopted in the BUDGET Statement which has been approved by
Parliament. What will be the jurisprudential considerations which will influence
our determination whether we are clothe with jurisdiction to determine such
matters.

Should we decline jurisdiction what will be the philosophical or the

jurisprudential justification for such a decision? And should we decide we have
jurisdiction to entertain such an action shall we not be interfering with the
functions of both the Executive and Parliament? Or shall we not appear to be
pronouncing on matters of policy, or substituting our own notions of what is
wise and politic for that of the Executive and Parliament. I do not think the
judicial power we enjoy under the Constitution authorises the Courts to sit in
judgment on the wisdom of what Parliament and the Executive branches do.

Fortunately, the American principle of non-justiciable political question can be

invoked to assist us avoid such a temptation. The fact that it is American jurists
who have identified the concept of non-justiciable political question as
inherent in the doctrine of separation of powers and named it as such does not
make the principle a virogene to our Constitution, and for which reason, we
must avoid its application in our constitutional adjudication.

There are, however, other principles of American jurisprudence which have

been evolved as a result of specific provisions of their Constitution but are
finding acceptance in our Constitutional adjudications. It is rather some of
these principles which have found favour with us. Some of these concepts are
MOOTNESS and RIPENESS of a case.
(b) MOOTNESS

As has been pointed out earlier in this opinion, the doctrine of mootness is an
American concept derived from the "case" and “controversy" requirement of
Article III (2) of the U.S. Constitution. This article is peculiar to the United
States of America and it limits the jurisdiction of the federal Courts to "cases'
and “controversies". The essence of this doctrine is that although a case might
present all the attributes for litigation, it could at a certain point lose some of
the attributes of justiciability and become moot. This is because of the
American rule that an actual controversy must exist at all stages, both the trial
and appellate considerations, and not simply at the date of the
commencement of the action. According to this principle an action can
become moot due to a change in the law, or in the status of the parties; or it
could become moot by some actions of one of the parties to the litigation
which tends to terminate or remove the controversy.

In his book, CONSTITUTIONAL LAW (12th Ed.), Prof. Gerald Gunther of Stanford
University had this to say at page 1628"

"The mootness cases involve litigants who clearly had standing to sue at the
outset of the litigation. The problems arise from events occurring after the
lawsuit has gotten under way - changes in the facts or in the law - which
deprive the litigant the necessary stake in the outcome. The mootness doctrine
requires that 'an actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed'. The modern Court has repeatedly
insisted that the mootness doctrine is an aspect of the Article III case or
controversy requirement".

Although the mootness doctrine has a Constitutional basis, yet the U.S. Courts
now tend to relax their application of the mootness barrier to adjudication or
the assumption of jurisdiction, and have created several exceptions. The real
legal question is whether the mootness doctrine can be said to have been
anticipated under Article 2 of the Constitution by the framers to enable us
adopt this concept which is based solely on a specific constitutional
requirement of article III(2) of the American Constitution; or put in another
way, does Article 2 require that there must be a continuing breach before the
Courts can act under the said article; or this Court must, once a breach of the
Constitution is brought to its notice, even if the alleged conduct is terminated
whether before or after a writ is issued under Article 2, we still have the
bounden duty to make a declaration to that effect, if only to preserve the
sanctity of the Constitution. We cannot apply the doctrine to the instant case
unless we answer these questions. It is therefore necessary to examine the
provisions or Article 2 in some detail. Article 2 provides:

"(1) A person who alleges 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 this Constitution, may bring an action in the
Supreme Court for a declaration to that effect".

For example, is it a necessary requirement under article 2(1)(a) that there

should be a case and controversy in respect of an enactment considered to be
inconsistent with a provision of the Constitution before an action can be
brought for it to be so declared? I do not think so because an enactment which
falls into disuse can be a subject of an action under article 2(1)(a) due to its
potential to be used in the future. Even if we rejected such a writ it would be
on ground that it presented a hypothetical question. And if we look at the
provisions of article 2(1)(b) all that is required to ground an action in this Court
is an "act or omission of any person" which is inconsistent with or is in
contravention of any provision of the Constitution. The "act" or the "omission"
need not be a continuing one before an action can be brought. Indeed even a
threat to breach the Constitution is enough.
In the case of YEBOAH VRS. J. H. MENSAH (1998-99) SCGLR 492, a case in which
I dissented, I said at page 517-518 thus:

“[I]t should be possible for any person who fears a threatened breach of the
fundamental law to invoke our enforcement jurisdiction in a sort of QUIA
TIMET action to avert the intended or threatened infringement of the
Constitution. This is because our enforcement jurisdiction is premised upon the
consideration that, to quote from the Memorandum on the 1969 Constitution,
'any person who FEARS a threatened infringement or ALLEGES an infringement
of any provision of the Constitution' should be able to seek redress in this
Court ... so that if the act or conduct of any person threatens the breach of the
Constitution, it is the duty of this Court to immediately intervene ... with the
sole objective of preventing such unconstitutional conduct”.

And my brother Acquah, J.S.C. in his dissenting opinion in NPP VRS. NDC &
ORS. (already cited) said:

“In other words, the plaintiff sees from the activities of the 1st and 3rd
defendants, a threatened breach of the Constitution, and therefore comes to
Court to prevent them from breaching the law. On this, the principle is too
trite to require an authority in support that where one discovers from the acts
and omissions of others that same constitute a threat to a breach of the
Constitution and the law, that person has right of access to the Courts to
forestall the said threat. If the said acts and omissions are against a provision
of the Constitution, then, as Azu Crabbe J.A as he then was, said in Gbedemah
vrs. Awoonor-Williams (1969) 2 G & G 438 of 440, it becomes 'the inescapable
duty of the Supreme Court to suppress it by enforcing the Constitution'."

In YEBOAH VRS. MENSAH (Supra) where I had the occasion to consider

whether a period of limitation, or a plea of laches can apply when a breach of
any provision of the Constitution is alleged, I had this to say at page 524-525:
“The answer should be obvious. The Supreme Court has exclusive jurisdiction
to enforce the Constitution against any person whose act or conduct is an
infringement of any provision of the Constitution, and the fact that the
jurisdiction was not invoked for several years should make no difference to the
jurisdiction. And any limitation on a citizen's constitutional right to enforce any
provision of the Constitution cannot be permitted unless expressly stated by
the Constitution itself."

The enforcement of the fundamental law is not the same as enforcement of

personal rights or private litigation.

To read the doctrine of mootness into Article 2 of the Constitution will be a

dangerous step to take. A breach of the Constitution cannot be countenanced
under any circumstances; nor can any plea of extenuating circumstances be
allowed to prevail. A Constitution cannot be operated and defended by such
considerations, lest we put expediency above constitutionalism. The mootness
can easily expose the Constitution to frequent breaches resulting in
subsequent loss of sanctity. A Constitution must be a sacrosanct document and
must remain so in all situations or circumstances. And it cannot remain
inviolate as a sacred document if certain alleged infringements are denied
judicial attention because there are extenuating or special circumstances
justifying such a breach. There cannot be any plea of justification when a
breach of the Constitution is alleged; otherwise this Court could be accused of
casting an indulgent judicial eye on certain breaches, by certain persons, of the
fundamental law.

This is the sort of approach which, that jewel that once adorned the judicial
crown of this country, Apaloo, C.J., had in mind when in the case of KWAKYE
VRS. ATTORNEY-GENERAL (1981) GLR 994 at 958 said:

"In the exercise of the interpretative jurisdiction of this Court, it is obvious we

should go beyond statutory interpretation since we are concerned with the
most fundamental issues of our jurisdiction. We must have regard to the terms
of our particular Constitution where specific reference points are largely
unique to our national history. In this area, more than other, judicial
pronouncements in other jurisdictions on the particular facts of their
experience are not likely to be of much assistance; the range of judicial wisdom
embodied in them will, of course, influence our judicial reflections. I think
originality is required of us in the exercise of our original jurisdiction if we are
to attend to the letter and spirit of the Constitution as a basic law of our land.
That originality must, of course, be judicial and must not do damage to the
plain and obvious meaning of the words used nor is it the province of this
Court to be astute to find some reason or other for depriving the constitutional
provision of an effect clearly intended".

If this Court had, in the case of J. H. MENSAH VRS. ATTORNEY-GENERAL

(already cited), considered the language of Article 2 of the Ghana Constitution
as against that of Article III of the American Constitution it would have come to
the conclusion that the American doctrine of mootness has its origin in their
Article III and inapplicable to Article 2 of our Constitution.

I must admit that in the case of BILSON VRS. ATTORNEY-GENERAL Suit No.
12/93 (unreported) dated 12th December, 1994, I made certain statements
which could be interpreted to mean an application of the doctrine of ripeness
to that case.

This is what I said:

"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, 1992 I think it will be worthwhile 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 a jurisdiction to deal with real or substantial disputes which affect
the legal rights or obligations of parties who appear before us, and whose
interests are adverse to each other. These competing interest 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."

I have had second thought about the above dictum and I am prepared to
abandon my views. However, I must say I would have reached the same
conclusions on some other ground, that the plaintiff's case be dismissed;
possibly because it discloses no cause of action.

THE PRESIDENTIAL OFFICE ACT, 1993 (ACT 463)

AND

ARTICLE 70(1)(e) OF THE CONSTITUTION

It needs no reminder that this litigation has been sparked off by certain
appointments alleged to have been made by the President, His Excellency John
Agyekum Kufuor, to the Office of the President as established under the
Presidential Office Act, 1993 (Act 463). Those who can work in this office as
Presidential Staffers are specified in Section 3 of the said Act. And those who
so qualify under the said Section 3 are categorized into two groups; firstly,
persons appointed under the Act; and secondly, persons who are public
officers and have either been seconded or transferred to the Presidential
Office. The Act is specific that it is only one of the persons appointed under the
Act, or who belong to the first category of persons that can be appointed by
the President to head the office. For avoidance of doubt I will quote Section 3
in full. It provides:

"3(1) The Presidential Office shall be made up of—

(a) persons appointed as Presidential Staff under this Act one of whom shall be
appointed as head of the Office;

(b) such other public officers as may be seconded or transferred to the office".

From the above provision it is patently clear that only persons who belong to
the first category and are appointed under the Act that can be appointed by
the President to head the Presidential Office. Therefore, the argument hardly
need be made that those persons who belong to category two and have either
been seconded or transferred from the public service cannot be appointed to
head the Presidential Office; that is to say public office holders, seconded or
transferred to the Presidential Office. Not even a Minister of State, not having
been appointed under the Presidential Office Act, 1993 (Act 463), can be
appointed to head the office.

In respect of those who are appointed under the Presidential Office Act, one of
whom is eligible to head the said office, the procedure for such appointment is
provided for in Section 4 of the Presidential Office Act. This is what the Act says
in Section 4 (1):

"The President shall, acting in consultation with the Council of State appoint
such persons as he considers necessary to hold office as Presidential Staff in
the office".

It is therefore a requirement of the Presidential Office Act, 1993 (Act 463),

which Act certainly cannot be held to be inconsistent with any provision of the
Constitution, that any appointment under the Act should be made in
consultation with the Council of State. Article 70 of the Constitution which
regulates Presidential appointments to certain para-statal organisations
provides in clause (1)(e) as follows:

“The President shall, acting in consultation with the Council of State, appoint—
X X X X

(e) the holders of such other offices as may be considered by this Constitution
or by any other law not inconsistent with this Constitution".

Unless it is the contention of the Learned Attorney-General that the

Presidential Office Act is inconsistent with the Constitution, then the
requirement of the Act that appointments made under it must be done in
consultation with the Council of State has to be complied with in order not to
infringe Article 70 of the Constitution. That the previous Council of State
ceased to exist is clear from the provisions of Article 89(1)(5) of the
Constitution which provides that the term of office of a member is co-
terminous with that of a President.

So that if there is a general duty to consult the Council of State before an

appointment, the particular question arises whether in the circumstances
averred (the non-establishment of the Council of State), that general duty to
consult was excluded by the fact that the Presidency must be seen to be
working and not come to a standstill. I do not think so because it would
amount to putting expediency above constitutionalism. This is because just as
a Tribunal may lack jurisdiction if it fails to observe certain essential
preliminaries to the assumption of jurisdiction, so also if the exercise of an
endowed or vested authority or power is dependent on the existence of a
state of facts, or on the occurrence of an event then, its exercise, without
satisfying the conditions so specified, would be unlawful and illegal. And the
violation of such a constitutional requirement cannot be excused under any
circumstances whatsoever.

The instant case can be distinguished from that of J. H. MENSAH VRS.

ATTORNEY-GENERAL (already cited) because the latter involved only the
interpretation of certain provisions of the Constitution rather than an alleged
conduct of a person being an infringement of the Constitution. When the
positive conduct of a person, be it an act or an omission, is said, to be in breach
of the Constitution, I cannot countenance any submission which will mean
giving judicial blessing to the alleged infringement because there are good
reasons or reasonable grounds for the person's conduct. Our oath to defend
the Constitution neither permits nor gives us the discretion not to defend the
Constitution when we feel there are extenuating circumstances for the alleged
breach.

The next point I would like to deal with is whether a Minister of State, being a
public office holder, can be appointed to head the Presidential Office? I do not
think so for the person who is eligible to be appointed to head the Presidential
Office must come from among "persons appointed ... under this Act". It is from
this group of persons that "one ... shall be appointed as head of the office".
There is therefore also the issue whether the 3rd Defendant, Mr. Jake
Obetsebi-Lamptey, who has been appointed under the Constitution as Minister
of State for Presidential Affairs, can hold the position of Chief of Staff in the
Presidential Office; unless, of course, we are told that the Chief of Staff is not
the head of the office. These are some of the important issues, with profound
implications for our constitutional law, which will have to be resolved at a full
trial and should militate against the summary dismissal of this case.

NON-DISCLOSURE OF REASONABLE CAUSE OF ACTION BY PLAINTIFF'S

WRIT AND STATEMENT OF CASE

This should bring me to a discussing of what we mean and must look for in our
jurisprudence when we have an application that a writ and statement of claim
be dismissed for disclosing no reasonable cause of action. I do not intend to go
into lengthy discourse on this issue. But I must say that we cannot appreciate
the nature of such an application unless we have a clear understanding of what
a cause of action means within our jurisdiction. Simply, put, it means the entire
set or combination of facts that gives rise to an enforceable claim. SEE
SPOKESMAN (PUBLICATIONS) LTD. VRS. ATTORNEY-GENERAL (1974) 1 GLR 88
at page 91 and 92, C.A. (Full Bench).
And in the case of LETANG VRS. COOPER (1965) 1 Q.B. 232 Lord Diplock offered
a very beneficial clarification of the term "cause of action". His Lordship said at
pages 242-243 as follows. "A cause of action is simply a factual situation the
existence of which entitles one person to obtain from the Court a remedy
against another person". Under what circumstances can a pleading be struck
out for disclosing no cause of action?

In the case of GHANA MUSLIMS REPRESENTATIVE COUNCIL VRS. SALIFU (1975)

2 GLR 246, C.A. The respondent brought an application to strike out the
applicant's pleading was made under ORDER 25 R.4 of the HIGH COURT (CIVIL
PROCEDURE) RULES, 1954, (which this Court can apply by virtue of Article
129(4) of the Constitution), and under the inherent jurisdiction of the Court. It
was pointed out that the difference in practice under the rule and under the
inherent jurisdiction of the Court is well established. See the case of
LAWRENCE VRS. LORD NORREYS (1890) 15 Appeal Case 210 at p. 219, where
Lord Herschell described the practice under the inherent jurisdiction of the
Court. This practice, which is different, was explained by Danckwerts, L.J. in
WENLOK VRS. MOLONEY (1965) 2 All E.R. 871.

However, speaking about the exercise of the power under the rule, Azu
Crabbe, C.J. said in GHANA MUSLIMS REPRESENTATIVE COUNCIL VRS. SALIFU
(SUPRA) at page 261:

"It is clearly a matter in the judicial discretion of the judge, and a pleading will
only be struck out under the rule in a plain and obvious case, where it is
apparent that even if the facts are proved, the plaintiff is not entitled to the
relief he seeks".

In the same case His Lordship said at page 264:

"This Court will not permit a plaintiff to be 'driven from the judgment seat',
without considering his right to be heard, 'excepting in cases where the cause
of action is obviously and almost incontestably bad'; per Fletcher Moulton L.J.
in DYSON VRS. ATTORNEY-GENERAL (1911) I K.B. 410 at page 419, C.A. And
again, as the Lord Justice said later in the same case at page 420: 'an order of
this kind ought not to be made where there is any reasonable ground for
argument as to the maintainability of the action'."

The headnote to the DYSON case is specific about the fact that Order 25 r.4
which enables the Court or judge to strike out any pleading in the ground that
it discloses no cause of action, was never intended to apply to any pleading
which raises a question of general importance, or serious questions of law.

This was a case in which COZENS-HARDY M.R. found himself faced with a
situation where important questions of law, raised in the plaintiff's pleadings
were sought to be disposed of summarily by recourse to an application to
strike out the pleadings under Order 25. r.4. He recorded his reaction at page
414 thus:

"It might be sufficient to say that Order xxv.., r.4 ... ought not to be applied to
an action involving serious investigation of ancient law and questions of
general importance, and on this ground alone I think the plaintiff is entitled to
have the action proceed to end in the usual way.."

The question then is should an alleged infringement of the fundamental law in

circumstances indicated in this opinion be given a judicial hush through a
summary dismissal of the plaintiff's case? I do not think so unless, of course, it
is very clear that the action is not maintainable on some good legal ground, or
that it would be improper for this Court to exercise its jurisdiction in the
matter.

In the case of the 5th Defendant Lt. Gen. Joshua Hamidu, for example, a case
can be made that the writ and statement of case disclose no cause of action
against him because his appointment is to be made under the SECURITY AND
INTELLIGENCE AGENCIES ACT, 1996 (ACT 526). This Act does not require any
consultation with the Council of State. The position of the 5th Defendant can
conveniently be brought under Section 18(1) of Act 526 which requires the
advice of the National Security Council. It provides:

"There shall be appointed by the President in accordance with the advice of

the Council given in consultation with the Public Service Commission an officer
to be designated as National Security Co-Ordinator referred to in this Act as
'the Co-Ordinator'."

I take it that the presidency can only be blamed for a case of misnomer as the
5th Defendant is currently being referred to as "National Security Adviser"
instead of "National Security Co-Ordinator". I am therefore of the view that the
Defendants' application to summarily dismiss this case can only succeed in
respect of the 5th Defendant, Lt. Gen. Hamidu. Save the above I will dismiss
the application.

ADJABENG, J.S.C.

I agree with my Brothers, Ampiah and Kpegah, JJ.S.C., that the application
must be dismissed. I have had the privilege of reading the opinion of my
Brother, Kpegah, J.S.C., just read and I agree with his reasoning. I do not think
that it is fair and or advisable that this important constitutional matter should
be dismissed summarily. This is so, especially, when this application was filed
at a time when the plaintiff/respondent did not have an opportunity to react to
the applicants' statement of case in response to the one filed by the
respondent, as this application was filed by the defendants/applicants herein
the same day their statement of case was filed. And, also, both sides were yet
to file, at the time, a memorandum of agreed issued to be determined in the
plaintiffs' substantive action.

The defendants/applicants' application or motion prays for

"an order of this Court to set aside the plaintiff's writ and statement of case or
to strike out the action by the plaintiff on the grounds that:

(1) this Court lacks jurisdiction to entertain the Plaintiff's action against the
Defendants herein;

(2) that no cause of action is disclosed by Plaintiff's writ and statement of case;

(3) that the questions raised in the Plaintiff s action for determination are
moot;.."

In a rather short affidavit in support of the application, it is deposed on behalf

of the defendants/applicants as follows:

“2. I have the authority of the Attorney-General and other Defendants to

swear to this affidavit on their behalf.

3. I am informed by Counsel and verily believe the same to be true that this
Court lacks the jurisdiction to entertain the Plaintiff's action against the
Defendants on the grounds that:

(1) the Plaintiff's Writ and Statement of Case disclose no cause of action based
on Article 2(1) of the Constitution;

(2) that the questions raised in the Plaintiffs' action for determination are
moot."

The plaintiff/respondent filed an affidavit in opposition to the application.

In paragraphs 3 to 11 of the affidavit in opposition, the respondent deposed as
follows:

“3. I deny paragraph 3 of the Defendants/Applicants' affidavit in support of

their application.

4. The Plaintiff/Respondent says that the President of Ghana is amenable to

the jurisdiction of this Court in the exercise of the executive authority
conferred on him by the Constitution.

5. The Plaintiff/Respondent says further that the purported appointments of

the 3rd, 4th and 5th Defendants/Applicants as Chief of Staff, Presidential
Adviser on Public Affairs, and National Security Adviser respectively by the 1st
Defendant/Applicant without consultation with the Council of State cannot be
said to be an exercise of the executive authority conferred on him by the
Constitution.

6. The Plaintiff/Respondent says in addition that a declaration or a declaration

in the nature of quo warranto can be made by the Court against the 1st
Defendant/Applicant in this action in addition to an order of injunction, or
mandamus pursuant to Article 2 of the Constitution.

7. The Plaintiff/Respondent contends that there are triable issues between the
parties in this action.

8. The Plaintiff/Respondent contends further that the mere subsequent

approval by Parliament, and appointment of the 3rd and 4th
Defendants/Applicants as Ministers of State on 6th February, 2001 does not
render this action moot.
9. The Plaintiff/Respondent says that the 2nd Defendant/Applicant was sued
only in a nominal capacity.

10. The Plaintiff/Respondent says further that the fact that there was no
substantive person appointed as the Attorney-General at the time the writ and
statement of case were filed did not mean that no action could be commenced
against the State in the name of the Attorney General.

11. The Plaintiff/Respondent maintained that the application to set aside the
writ and statement of case has no merit whatsoever."

Even though none of the parties filed a statement of case in support of his
case, they were allowed by the Court to offer oral arguments in respect of their
respective cases.

The Honourable Attorney-General, Nana Akufo-Addo, on behalf of the

defendants/applicants moved the motion to set aside the plaintiff's writ and
statement of case. He first submitted that the Court lacked jurisdiction to
entertain the action. He argued that the 1st Defendant, as the President of
Ghana, cannot be questioned in respect of the exercise of his executive power
or authority. He is, therefore, not amenable to the Court's jurisdiction. The
Honourable Attorney-General cited in support the case of NPP vrs. The
President of Ghana, J. J. Rawlings, unreported, Suit No. 15/93, dated 3rd May,
1994. He submitted that this decision in which this Court ruled that the
President was not amenable to the Court's jurisdiction is binding on the Court.
The Honourable Attorney-General also referred to Bimpong-Buta's Law of
Interpretation in Ghana, page 345. He submitted, therefore, that the plaintiff’s
writ which brings the President into the suit as a defendant is incompetent.
The Court, therefore, has no power to entertain the action against the
President.

Secondly, it was submitted by the Honourable Attorney-General that at the

time this action was filed, there was no Attorney-General at post as he had not
then been appointed. And as such it was wrong to make the Attorney-General
the 2nd defendant in the action. He relied on J. H. Mensah vrs. Attorney-
General [1996-97] SCGLR 320.

In respect of the 3rd and 4th defendants, it was submitted by the Attorney-
General that at the time the writ was filed, these defendants had been
nominated by the President as Ministers of State, and had since been so
approved, and sworn in. Consequently, the questions raised in respect of them
had become moot.

For the above reasons, the Honourable Attorney-General prayed this Court to
dismiss the plaintiff’s action.

In reply, the plaintiff/respondent invited the Court to dismiss the application.

He argued that the case of NPP vrs. The President (J. J. Rawlings), cited by the
Honourable Attorney-General in support of his contention that the President is
not amenable to the jurisdiction of the Court, did not in fact decide that the
President cannot be sued in all cases. In his view, the President can be sued
under Article 2 of the 1992 Constitution, and also in respect of prerogative
writs. The plaintiff/respondent cited in support the case of Bilson vrs.
Apaloo[1981] GLR.

The plaintiff/respondent also submitted that the President has violated Article
70(1)(e) of the Constitution, and also Section 2, 3 and 4 of the Presidential
Office Act, 1993 (Act 463).

He submitted that the J. H. Mensah case (supra) did not decide that the office
of the Attorney-General cannot be sued when there is no substantive Attorney-
General. In his view, the Attorney-General is a nominal party in the present
action.
The plaintiff/respondent finally submitted that the action against the 3rd and
4th defendants was not moot.

He therefore, prayed that the motion to set aside the writ and statement of
case should be dismissed and the matter gone into on its merits.

Article 70(1)(e) of our Constitution provides as follows:

"70(1) The President shall, acting in consultation with the Council of State,
appoint-

(e) the holders of such offices as may be prescribed by this Constitution or by

ay other law not inconsistent with this Constitution."

And sections 2, 3 and 4 of the Presidential Office Act, 1993 (Act 463) also
provide as follows:

"2. The functions of the Office is to provide the President and the Vice-
President such services as they may require for the efficient and effective
implementation of the executive functions of the President and Vice-President
under the Constitution and any other law.

3. (1) The Presidential Office shall be made up of—

(a) persons appointed as presidential staff under this Act one of whom shall be
appointed as head of the office; and

(b) such other public officers as may be seconded or transferred to the office.
(2) Subject to section 2 members of the office shall be assigned such duties as
the President may determine.

(4) (1) The President shall, acting in consultation with the Council of State
appoint such persons as he considers necessary to hold office as presidential
staff in the office.

(2) The number of persons that may be appointed under sub-section (1) of this
section and the grade of the officers shall be determined by the President."

The complaint of the plaintiff/respondent, as disclosed in his writ, statement of

case, and in his arguments before us in this application, is simply that His
Excellency, the President, in appointing the 3rd, 4th and 5th
defendants/applicants herein violated the Constitution, particularly article
70(1)(e) thereof, and also sections 2, 3 and 4 of the Presidential Office Act,
1993, all quoted above, by not consulting the Council of State as he is required
to do by the Excellency indeed violated the Constitution as alleged. Attempting
to answer this question will be going into the merits of the matter.

The Attorney-General says that we cannot go into the matter because we have
no jurisdiction to do so. This is because according to him, His Excellency the
President cannot be sued. Secondly, that the plaintiff's action has not disclosed
any cause of action. And, thirdly, that the questions raised are moot.

In my humble opinion, the last two grounds ought to be rejected at once as

being without merit. An issue involving the violation of the Constitution
cannot, in my view, be said to be an issue disclosing no cause of action, or that
it is a question which is moot.

The argument that the President cannot be sued as he is not amenable to the
jurisdiction of this Court, however, needs scrutiny. Article 57(4) which gives to
the President immunity from liability for proceedings in any Court for the
performance of his functions, while in office, provides as follows:-

"57(4) Without prejudice to the provisions of article 2 of this Constitution, and

subject to the operation of the prerogative writs, the President shall not, while
in office, be liable to proceedings in any Court for the performance of his
functions, or for any act done or omitted to be done, or purported to be done,
or purported to have been done, or purporting to be done in the performance
of his functions, under this Constitution or any other law."(emphasis mine).

Article 2 of the Constitution also provides as follows:

"2 (1) A person who alleges 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 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 clause (1)
of this article, make such orders and give such directions as it may consider
appropriate for giving effect, or enabling effect to be given, to the declaration
so made.

(3) Any person or group of persons to whom an order or direction is addressed

under clause (2) of this Article by the Supreme Court, shall duly obey and carry
out the terms of the order or direction.
(4) Failure to obey or carry out the terms of an order of direction made or
given under clause (2) of this article constitutes a high crime under this
Constitution and shall, in the case of the President or Vice-President, constitute
a ground for removal from office under this Constitution.

(5) A person convicted of a high crime under clause (4) of this article shall—

(a) be liable to imprisonment not exceeding ten years without the option of a
fine; and

(b) not be eligible for election, or for appointment, to any public office for ten
years beginning with the date of the expiration of the term of
imprisonment."(emphasis mine).

It is very clear from the above-quoted articles of the Constitution, articles 57(4)
and 2(1-5), that the President is not immune to proceedings in Court in respect
of allegations involving the contravention or violation of the Constitution. Any
decision to the contrary must, therefore, be wrong. The Constitution indeed
crystal clear on the point.

It must be noted that our 1992 Constitution has firmly established the rule of
law in this country. The Constitution makes it clear that everybody in this
country, including His Excellency the President, is under the Constitution and
the law. This clearly is what we mean by the rule of law. It is heartening that
governance by the rule of law is one of the cornerstones of the policies of the
present Government. And I have no doubt that adherence to this policy will
indeed bring about real democracy in this country and therefore real freedom,
justice and prosperity.

In conclusion, I must say that an allegation involving the violation of our

Constitution is a very serious matter which must be dealt with on its merits.
Article 2 of the Constitution shows clearly how seriously such a matter is
viewed. It is therefore not a matter which should be summarily dismissed on a
technical ground.

It is clear from what I have said earlier in this opinion that it would be wrong to
grant the application to dismiss the plaintiff's writ at this stage. I think that the
matter should be heard on its merits. I would refuse the application of the
defendants/applicants. It is accordingly dismissed.

COUNSEL

Mr. Martin Alamisi Amidu, Plaintiff/Respondent in person.

Nana Akufo-Addo, Attorney-General, with him Mr. S. Y. Anim, Mrs. Quansah,

Mr. Kuwornu and Mrs. Owusu-Adjei for the Defendants/Applicants.