ANALYSIS OF CASES FOR CONSTITUTIOINAL LAW

Contents
RE AKOTO....................................................................................................................................................2

TUFFOUR V ATTORNEY GENERAL................................................................................................................6

BILSON V APALOO.......................................................................................................................................9

BENNEH V THE REPUBLIC AND ANOTHER..................................................................................................11

SALLAH V ATTORNEY GENERAL.................................................................................................................13

KWAKYE V ATTORNEY GENERAL................................................................................................................15

RE OKINE...................................................................................................................................................16

BOLOGUN V. EDUSEI.................................................................................................................................17

1
 RE AKOTO
RE: AKOTO AND 7 OTHERS, [1961] GLR 523-535

IN THE SUPREME COURT

Re Akoto represents biggest landmark of Rule of Law in this country. It was about scope and
extent of legislative authority. There is no constitutionalism in this case because the government
was given excess power with no limitation.
Facts
Akoto and his seven friends were arrested and detained upon the order of the then
Governor- General [now president] of Ghana, but signed in his [Governor- General] stead by the
Minister of Interior under section 2 of the Preventive Detention Act, 1958. Their arrest was due
to fact that they consistently advocated and encouraged the commission of violence as well as
associated with persons whose interests were to use violent means in capturing political power.
Their application for habeas corpus was refused but they later appealed to the Supreme Court.
Their application was supported by affidavit which disclosed the order for the detention, the
written information furnished with it in accordance with the requirements of the Act, written
representations by the detainees to the Governor-General and the reply of the Governor-General.
They contended inter alia/among other things that the PDA The PDA was enacted by parliament
[Preventive Detention Act] was inconsistent with the constitution in 1958 to serve during emergency
1960 particularly article 13, captioned ‘Declaration of Fundamental times. The PDA empowered the
executive to arrest and detain without
Principles’ [this declaration was read by the president on his
trial, people whose acts were
assumption of office]. Thus, pursuant to the inconsistency, they considered prejudicial to the state. It
believed the arrest which was made in accordance with the PDA was was alleged by the appellants that this
void. The applicants contended inter alia that Article 11 of the 1960 Act contravened Article 13 of the
1960 Constitution which stated
constitution provided a right for the citizen, protecting him from
unequivocally the rights of the citizen
arbitrary arrests1, which said right, is enforceable through the power including their right to access courts of
of judicial review in this case. law.

Issues and their holdings

Issues Holdings

The learned judge acted in excess of jurisdiction in refusing Rule 14 of Order 59 does not oblige a judge to make a formal return
the application without making an order for a formal return. in every case. He is entitled to dispose of the case on the affidavits.

1
Arbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no
likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due
process of law or order

2
By virtue of the Habeas Corpus Act of 1816, the court is
required investigate the truth of the facts contained in
"The Grounds" upon which the Governor-General
ordered for the detain and arrest of the appellants on
basis that they acted in a prejudicial manner2 to the state
The grounds upon which the appellants were detained do not
fall within the ambit of the expression "Acts prejudicial to the
security of the state".
By virtue of section 3 of the Criminal Procedure Code, Cap.
10 of the Laws of the Gold Coast (1951 Rev.) now section 1
of the Criminal Procedure Code 1960 (Act 30), the Governor-
General is precluded/exempted from exercising the powers
conferred on him under the Preventive Detention Act, to
make an order for the arrest and detention of the appellants
without trial except in accordance with the Criminal
Procedure Code.
The Preventive Detention Act, 1958, by virtue of which the
appellants were detained, is in excess of the powers conferred
on Parliament by the Constitution of the Republic of Ghana
with respect to article 13 (1) of the Constitution, or is contrary
to the solemn declaration of fundamental principles made by
the President on assumption of office.
The Preventive Detention Act not having been passed upon a
declaration of emergency is in violation of the Constitution of
the Republic of Ghana.
The Minister of Interior who signed the order for and on
behalf of the Governor General was actuated by malice.
2
If an action or situation is prejudicial to someone or something, it is harmful to them
3
Although the Habeas Corpus Act, 1816, is a statute of general
application, it does not apply to this case because the Act under
which the appellants were detained vests plenary discretion in the
Governor-General if he believes such an order is necessary. Upon
production of the order the only question which has to be considered
is its legality. If the order is lawful the detention is lawful.
The term "security of the state" is not limited to the defence of Ghana
against a foreign power, and the powers of the PDA may be invoked
where the basis of law is sought to be undermined and attempts are
being made to cause disruption in the normal functioning of
government.
The Preventive Detention Act is to be distinguished from the
Criminal Code, (Act 29), in that the code concerns itself with acts
already committed whereas the Act is aimed at preventing the future
commission of acts prejudicial to the safety of the state.
Article 13 (1) of the Constitution imposes only a moral obligation
upon the President of Ghana. Thus, the Governor-General is not
legally or politically obliged to said article.
The Preventive Detention Act, 1958, is therefore not contrary to the
Constitution and Parliament is competent to pass such an act even in
peace time.
The court can only look into allegations of malice by high officers of
the state if there is positive evidence, which is singularly absent in
this case.
Truths concerning grounds of detention could not be questioned under Article 13 of the constitution. It was held that
detention without trial was not unlawful especially under the circumstance in which the appellants found themselves. They
were engaged in acts detrimental to the security of the state as well as the general governance of the state.

Detailed Analysis
Despite the preliminary question of whether the Habeas Corpus Act, 1816,3, was a
statute of general application, it was in the opinion of the court that the question the Habeas
Corpus Act, 1816, rather raises is one of procedure. In this matter the courts are guided by the
legal principles enunciated in the decisions in Liversidge v. Anderson; R. v. Home Secretary,
ex parte Greene; R. v. Home Secretary; ex parte Budd. In these cases, the question raised was
whether it was open to any court to enquire into the reasonableness of the belief of the Secretary
of State in the matters in which regulation 18B (1) required him to have reasonable cause to
believe before a detention order could be made. Pursuant to the Preventive Detention Act the
Governor-General, if satisfied that it is necessary, may make the order for the detention of the
person or persons named. On this point, Lord Greene, M.R. in ex parte Budd, supra, said:
"It is clear that, if the courts have no power to inquire into the reasonableness of the
belief of the Secretary of State in the matters in which he is required to believe, they can have no
power to inquire into the grounds of his satisfaction in regard to matters of which he is required
to be satisfied".
Lord Wright said:
"On the view which I have formed that there is under reg. 18B no triable issue as to
reasonableness for the court, these authorities cease to be of any value. As the administrative
plenary discretion is vested in the Home Secretary, it is for him to decide whether he has
reasonable grounds, and to act accordingly. No outsider's decision is invoked nor is the issue
within the competence of any court”
Lord Romer said:
". . . . if at the trial the Home Secretary gives rebutting evidence to the effect that, in his opinion,
there were reasonable grounds for his belief, his statement, being merely a statement as to his
opinion, must necessarily be accepted unless it can be shown that he was not acting in good faith,
and the onus of showing this would lie upon the plaintiff."
Upon the production of the order the only question which has to be considered is its
legality; if the order is lawful the detention is lawful. Even if good faith is questioned, it is clear
from the decided cases, that the burden of proof is on the person who alleges it, and not on the
constituted authority, in this case the Minister of Interior, to disprove it. The courts must presume
that high officers of state have acted in good faith in the discharge of their duties. It will be

4
 wrong in principle to enquire into the bona fides 3 of Ministers of State on a mere allegation of
bad faith by a petitioner. The court can only look into allegations of bad faith if there is positive
evidence, which is singularly absent in this case. It is declared that the grounds for the detention
served on the appellants did not disclose that they were suspected of preparing to commit acts
prejudicial to the security of the state in the plain meaning of the expression "security of state".
The intention of the Preventive Detention Act was to prevent persons acting in a manner
prejudicial to the defence of this country, i.e., from foreign power. It is clear from section 2 of
the Preventive Detention Act, 1958, that power to make a detention order is not limited to the
defence of Ghana against a foreign power; on the contrary the section specifically empowers the
Governor-General to make such an order in respect of:
a) the defence of Ghana,
b) the relations of Ghana with other countries, or
c) the security of the State.
In dismissing the appeal, the Supreme Court held that the declaration by the President on the assumption of office, was
similar to the Coronation Oath of the Queen of England and that such a declaration did not constitute a bill of rights,
creating legal obligations enforceable in a court of law. In dismissing the application, the court stated that the said
provision is only morally binding on the president and as such cannot be the subject of legal enforcement. As regards
judicial review, the court noted, relying on the English case of Liversidge v Anderson that judicial review cannot be
granted in such a case considering the fact that the president is legally empowered to exercise discretion in this
matter.

3
A Latin term meaning "good faith". This refers to an individual's position under the law that is based in good faith
without notice of fraud with regards to a particular transaction or with regards to the authenticity of a particular
document.

5
TUFFOUR V ATTORNEY GENERAL
TUFFUOR V. ATTORNEY-GENERAL (1980) JELR 67038 (SC)
Tuffour v Attorney General is a major case that highlights supremacy of the constitution.
It also mentions the application political question doctrine should in Ghana. The case also
underscores the principle of separation of powers.
Facts
The plaintiff filed a writ against the Speaker of Parliament and the Attorney- General
before the Court of Appeal sitting as the Supreme Court under section 3 of the First Schedule to
the Constitution, 1979, for a declaration that on the coming into force of the Constitution, 1992,
the Hon. Mr. Justice Apaloo was deemed to have been appointed Chief Justice. He as such
became president and a member of the Supreme Court and the plaintiff believed that his
supposed vetting and rejection by Parliament were in contravention of the Constitution.
The plaintiff is seeking a declaration from this court that:
“On the coming into force of the Constitution of the Third Republic on 24 September 1979, Fred
Kwasi Apaloo was deemed to have been appointed Chief Justice of the Republic and as such
became president and member of the Supreme Court;
The purported nomination by the President of the Republic of Fred Kwasi Apaloo for approval
by Parliament of his appointment as Chief Justice of the Republic and member of the Supreme
Court and his purported vetting and rejection by Parliament as such on 16 August 1980 were
each act effected in contravention of the Constitution and laws of the Republic and were
therefore all null and void and of no effect;
Fred Kwasi Apaloo remains Chief Justice of the Republic and, thereby, president of the
Supreme Court.”
Issues
a) Whether or not the Supreme Court has the jurisdiction to deal with any cause, dispute or
matter relating to or involving article 2 of the Constitution, 1992.
Held
The supreme court cannot deal with any cause, dispute or matter relating to or involving article 2
of the constitution. The court held that it had jurisdiction to proceed with the case and that the
plaintiff needs no special interest in the case before it can sue. According to the court, the only
requirement was that the plaintiff was a Ghanaian citizen which same was proved. The court
however upheld the AG’s objection as to the capacity of the Speaker of Parliament being a party
to the suit. The court reasoned that the business of parliament cannot be questioned by the courts
and as such once parliament was done with its business, it remained a closed book. The courts
did not, and could not, inquire into how Parliament went about its business. Finally, in
construing the phrase “shall be deemed” in article 127(8), the court opted for the natural meaning
6
 of the words in the phrase and held that it meant a thing that is said to be something else with its
attendant consequences when in fact it was not. Consequently, the court held that the phrase
“shall be deemed” in Article 127(8) of the 1979 Constitution should mean that a justice of the
superior court of judicature holding office immediately before the coming into force of the
Constitution should continue in office as if he had been so appointed. It follows from this that
Justice Apaloo, being the head of the superior court of judicature before the coming into effect of
the 1979 Constitution became the CJ by virtue of article 127(8) of the 1979 Constitution and
there as no need for him to have been vetted by parliament for the purpose of approving him as
the CJ.
Detailed Analysis
The Attorney-General, as solicitor for the defendants stated, inter alia, in his statement of
defence that:
“In nominating Fred Kwasi Apaloo as Chief Justice, the President was acting in
fulfilment of the mandatory requirements of article 127 (1) of the Constitution, 1979, and in the
exercise of powers conferred on him by the same clause of the Constitution, while Parliament, in
rejecting the said nomination, was exercising powers conferred upon it by the said clause (1) of
article 127.”
At the hearing, the Attorney-General sought leave to raise preliminary objections
Preliminary Objections Assertions
As to the jurisdiction of this court On jurisdiction, the Attorney-General argued that the
Supreme Court was not properly constituted to deal with
matters of interpretation as required by Schedule 3. It was an
Appeal court sitting as a supreme court.
As to the capacity of the plaintiff On capacity, the AG argued that the plaintiff had no interest
in the case but it was Apaloo who had an interest in the case
and he was the right person to institute the action.
As to the competency of the Speaker as the first defendant The courts did not, and could not, inquire into how Parliament
went about its business. That constituted the state of affairs,
as between the legislature and the judiciary which had been
crystallized in articles, 96, 97, 98, 99, 103 and 104 of the
Constitution. Particularly Article 96 which provides that any
business in parliament cannot be questioned in a court of law.
The court can however take judicial notice of whatever
happens in parliament. The Speaker therefore ought not to be
a party in the instant proceedings and the, court would
accordingly discharge him as a party.

Ratio decidendi
1. Supremacy of the Constitution over all other laws
The very first principle that is enshrined in the Constitution is in article 1(2) which provides:

7
 This Constitution shall be the supreme law of Ghana and any other law found to be
inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be
void and of no effect.
This is the constitutional criterion by which all acts can be tested and their validity or otherwise
established.
2. The status of the Chief Justice.
The Chief Justice is sui juris [ having full legal rights or capacity]. As has already been
demonstrated the Chief Justice under our system of government is appointed as such. He could
be a member of any of the courts before such an appointment. He could be appointed straight
from the bar. His appointment would be that of the Chief Justice all the same. When so
appointed he becomes the Head of the Judiciary. In his capacity as the Chief Justice, he
automatically becomes a member of each of the courts established by the Constitution. He is not
a Chief Justice by virtue of his being a member of a particular court. He is a member of the
Supreme Court, the Court of Appeal and the High Court of Justice, because he is the Chief
Justice. This is the system as it existed immediately before the coming into force of the
Constitution, 1979. That is still the system existing today.
3. The nature of the written constitution of Ghana
A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of
a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in
a people’s search for progress. It contains within it their aspirations and their hopes for a better
and fuller life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It
is the fountain-head for the authority which each of the three arms of government possesses and
exercises. It is a source of strength. It is a source of power. The executive, the legislature and the
judiciary are created by the Constitution. Their authority is derived from the Constitution. Their
sustenance is derived from the Constitution. Its methods of alteration are specified. In our
peculiar circumstances, these methods require the involvement of the whole body politic of
Ghana.
4. Whether the High Court (Civil Procedure) Rules, 1954 (L.N.140A), was intended to
govern the construction of the Constitution
It must be borne in mind all the time that the High Court (Civil Procedure) Rules, 1954
(L.N.140A), were never intended to govern, in whatever manner, the construction of words in a
constitution such as ours.
5. Whether the Chief Justice is the president and member of all the courts by reason of a
direct or specific appointment to any of them
It is self-evident that the Chief Justice is the president and member of all those courts not by
reason of a direct or specific appointment to any of them but by virtue of his status as the Head
of the Judiciary, that one Superior Court of Judicature. At the apex of the judicial pyramid sits
the Chief Justice, as Head of the Judiciary and a member of the Superior Court of Judicature.

8
BILSON V APALOO
Bilson v Apaloo (1980) JELR 67972 (SC)
The case of Bilson v Apaloo is based on the doctrine of natural justice. Where natural
justice is meant to ensure that fair procedure has been established and followed by the decision-
making body. The doctrine is the rule against bias. There are two main components to the
doctrine of natural justice; Audi alteram partem and nemo iudex in causa sua 4. The component
of nemo iudex in causa sua is the rule against judicial bias, which is discussed in Bilson v
Apaloo. The component in the rule against judicial bias states:
Any person that makes a judicial decision must not have any personal interest in the
outcome of the decision; the person shall not have any pecuniary interest in the matter and the
person shall not have any previous knowledge of the issues or individuals concerned.
Facts
In this case, the plaintiff filed a writ against the then Chief Justice, Justice Apaloo for a
declaration to quash the judgement of the court of appeal sitting as the Supreme Court in the case
of Tuffour v Attorney General, on grounds inter alia, that the five judges who constituted the
court the case did not constitutionally qualify to preside over the said suit. The plaintiff claimed
that the Chief Justice, the defendant, who had empanelled the court acted in contravention of
articles 114(5), 121(2) and section 3(1) of the transitional provisions of the 1979 constitution and
that it was judicially improper for the five judges constituting the panel of the court to accept the
invalid nomination to preside over the case. The case rationalizes two major principles: the twin
pillars of natural justice and the rule against judicial bias [situations where the presence of
disqualifying elements under this rule will not render the adjudicator incompetent to sit and ways
in which the rule against judicial bias arises].
Ratio Decidendi
1. The twin pillars of natural justice
The rules of natural justice provide minimum standards of fair decision-making imposed by the
common law on adjudicating bodies. The two principal rules are nemo judex in causa sua
(nobody is to be a judge in his own cause) and audi alteram partem (hear the other side). The first
rule aims at fair judicial decisions by impartial and disinterested judges and adjudicators; while
4
Audi alteram partem: the rule that no man is to be condemned without a hearing.
Nemo iudex in causa sua: the rule that no man should sit as a judge in his own hearing.

9
the second rule ensures that no man is to be condemned without a fair hearing. Both rules are
necessary if the public are to have confidence in the administration of justice.
2. The rule against judicial bias

 Situations where the presence of disqualifying elements under this rule will not render the
adjudicator incompetent to sit:
It is important to note three situations where the presence of any of the said disqualifying
elements under this first rule against judicial bias does not render the adjudicator incompetent to
sit. In the first place, it is always open to parties, on their being explained of the disqualifying
elements, to relinquish their right to object to the adjudicator residing over the particular case. In
the second place, an enactment may permit an adjudicator to sit (or may save his adjudication
from invalidity). And in the third exception to the general rule, which is here relevant, an
adjudicator, who may be otherwise disqualified, is nevertheless eligible and indeed obliged to sit
if there is no other competent tribunal or if a quorum cannot be formed without him. The policy
reason underlying this third exception is necessity: in other words, the common law considers it
necessary that justice shall be served even by a “disqualified” judge than that there should be a
failure of justice or that the machinery of justice should grind to a halt in a particular case.

 Ways in which the rule against judicial bias arises:

The rule against judicial bias and arises in two ways: (a) where the adjudicator is
disqualified because he has any direct financial or proprietary interest in the subject-matter of the
suit; and (b) where there is a real likelihood that the adjudicator would have a bias in favour of
one of the parties. This likelihood of bias may spring from such causes as membership of an
organisation that is a party to the suit; or from partisanship expressed in extra-judicial
pronouncements; or from active championing of the cause of a party; or from family relationship
with a party or from other close relationship with a party, etc.
Holding
For the above reasons, it was held that the plaintiff’s counsel’s objection to the
membership of Mr. Justice Sowah and Mr. Justice Charles Crabbe of the panel hearing the suit
herein was void and disallowed. And as such, the hearing of the case was proceeded accordingly.

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BENNEH V THE REPUBLIC AND ANOTHER
Benneh V. The Republic and Another (1971) JELR 67968 (Sc)
Facts

Injunction to restrain the In pursuant of the entry of judgment, the second respondent
defendants by themselves, caused a writ to issue to attach the appellant’s properties. The
servants, or agents or otherwiseentry of judgment purported to be pursuant to the provisions
from going into execution in theof the Inv. And Forfeiture Assets (further implementation of
suit entitled. Committee’s findings No. 3 Decree, 1969 (NLCD 400).
Appellant issued writ of summons in the High Court under
the constitution 1969, Article 28, for an order of injunction to restrain the respondents from
executing. The claim is therefore covered by article 2 of the Constitution.5
Basis of Claim
The National Liberation Council Decree, NLDC 400 was
Plaintiff's claim is under article 28
of the Constitution for an order ofrepugnant to 1969 constitution, Articles 12 and 18 and
injunction to restrain defendants, therefore void by virtue of 1(2). Aboagye J. dismissed
their agents, servants and assigns claim that Supreme Court was the proper forum to pursue
from carrying out any or all of theit. Appellants appealed contending that action could be
provisions of the said N.L.C.D. brought under Article 28 and that the Supreme Court’s
400." original jurisdiction existed concurrently with the original
jurisdiction of the High Court. Appellant therefore had a
choice presenting his case either before the High Court or Supreme Court.
Detailed analysis
The sole relief claimed in the High Court is an order of injunction against the defendants
to restrain them from levying execution against the plaintiff's property. The basis of the claim is
that N.L.C.D. 400 which purports to confer a legal right on the defendants for levying the said
execution is repugnant to the Constitution and ought, therefore, to be struck down as being null
and void by virtue of article 1 (2) of the Constitution. The defendants, on the other hand,
contended that N.L.C.D. 400 is valid and not repugnant to the Constitution, and steps taken
under the said decree are, therefore, lawful. The defendants furthermore pleaded that there is no
legal basis for the plaintiff's action for an injunction against the Republic. The general rule is that
a court cannot negate itself by entertaining an action in which the relief claimed cannot be
enforced. In its recent decision entitled Levandowsky v. Attorney-General, the court invoked this
general rule and held that the trial judge rightly refused a motion for leave to levy execution
against the respondent.

5
2 (1) Any person who alleges that an enactment or anything contained in or done under the authority of that or any
other enactment is inconsistent with, or is in contravention of, any provision of this Constitution may bring an action
in the Supreme Court for a declaration to that effect.
(2) The Supreme Court shall, for the purposes of a declaration under the provisions of the preceding clause, make
such orders and give such directions as it may consider appropriate for giving effect to or enabling effect to be given
to the declaration so made.'

11
This decision in Levandowsky v. Attorney-General is binding upon the court6. Admittedly, it
was section 15 (4) of Act 51 forbidding execution against the Republic which was in fact relied
upon in the Levandowsky case. However, the ratio decidendi in that case is equally applicable to
this case; since the only relief claimed in the writ herein is an order of injunction against both the
Republic and a public servant acting in his official capacity; and since the said Act 51 prohibits
the grant of the relief of injunction in any civil proceedings against either the Republic or any
servant of the Republic acting in his official capacity.
Held
Where in an action before the High Court, any issue arises as to whether an enactment is
inconsistent with the Court, the judge may refer to Supreme Court. In the instant case, the legal
position was different in the sense that the nature of the constitutional issue for determination
related to the interpretation of a decree which was alleged to be in contravention with the
property rights conferred on the appellant under Articles 12 and 18 and as such the Supreme
Court did not have any jurisdiction in the matter. Its jurisdiction could only arise in its appellate
capacity and the question of reference therefore did not rise.
Significantly and in line with the approach to constitutional litigation, it is noticed that
the majority opinion considered the litigation as raising purely a problem of statutory
interpretation. Here, the court took its role, showed some awareness of some other competing
institutional and social interests involved and the role of other interests in constitutional
litigation. The majority opinion made it unmistakably clear that where the legislature takes steps
to establish correctness in public life, and the constitution contains provisions assigned to the
same end; the function of the judiciary will be to lend a helping hand by interpretating the
enactment to achieve this end. NLCD 400 was promulgated to implement the findings of
commissions and to provide a convenient machinery for getting in, assets and money found to be
unlawfully acquired. These assets were vested in the state before the promulgation of NLCD 400
and so didn’t assume judicial power. It [NLDC 400], was merely designed to bring in what had
already been effectively vested in the state.

6
for under article 109 (3), "the Court of Appeal shall be bound by its own previous decisions and all Courts inferior
to the Court of Appeal shall be bound to follow the decisions of the Court of Appeal on questions of law."

12
SALLAH V ATTORNEY GENERAL
Facts
On 24th February. 1966, the armed forces of Ghana staged a coup d’état and toppled the
government of President Kwame Nkrumah. Days later, the military by a proclamation suspended
the 1960 constitution, dissolved the national assembly and established the National Liberation
Council as the new sovereign authority with power to legislate by decree. In 1969, the military
rule was terminated and civilian rule was established under a new constitution, 1969. The
transitional provisions of the 1969 Constitution provided for the termination of any office
established by the NLC. The plaintiff, E.K. Sallah was appointed in October 1967 to a
managerial post at the Ghana National Trading Corporation (GNTC), a corporation established
under the Statutory Corporations Act of 1961 under E.I. 203 and when that law was repealed, it
was “continued in existence” by Legislative Instrument No. 395 which was passed under the
authority of the new Statutory Corporations Act, 1964. On 21st February 1970, the new civilian
government dismissed Sallah, under the transitional provisions of the 1969 Constitution. He
instituted this suit to challenge the validity of his dismissal.
Arguments
1. The plaintiff argued that his office was not brought into existence by the law that was
overthrown in the revolution (LI No 395), rather, it was continued in force by that law, and
therefore the NLC could not claim that they had created that office. He argued that his office was
created by E.I 203 and was only continued in force by L.I 395 and as such, the new order created
by the NLC Proclamation did not affect his office to be caught by section 9(1) transitional
provisions of the 1969 Constitution.
2. The Attorney-General’s arguments were based on Kelsen’s position that in a
revolution properly so-called, the old legal order was abolished and a new one, with its own
Gründnorm was established. Thus in 1966, the old order (the 1960 Constitution) disappeared,
and the new one was established, with its new Gründnorm, which the Attorney-General
identified as the Proclamation. He argued that “establish” must be interpreted as “deriving legal
validity from”. Simply put, the Attorney-General was using Kelsen’s theory of discontinuity, and
applied thus, it meant that the LI 395 was valid by virtue of the State Corporations Act, 1964,
which in turn was validated by article 40 of the 1960 Constitution, and since the NLC had
annulled that constitution, the old source of validity of the GNTC was gone, and the corporation
was re-born by the NLC Proclamation, and therefore the plaintiff was squarely caught by the
provisions.
Issues
1. The main issue was whether the plaintiff’s office was established by the NLC
Proclamation.

13
 Held
In a 3-2 majority decision, the court held that the plaintiff’s office had not been
established by or under the authority of the NLC Proclamation, it only “continued it in existence”
and therefore they were wrong in terminating his appointment. The court rejected Kelsen’s
theory posited by the AG as it described it as foreign theories. The court, per Archer J.A declined
to designate the coup d’état as a valid revolution but rather the beginning of one and that the
proclamation cannot be termed as the Gründnorm because it was not a constitution. The majority
thus held that Sallah’s office was established in 1961 by the E.I and not by the extra-
constitutional regime (L.I 395) which only continued it in force.
In Justice Archer’s judgment he decided that although the argument from Kelsen’s point
of view was very sound it was not enough to describe whether the plaintiff’s office fell among
the categories of offices by the proclamation. He said the theory could also not be used because
the people of Ghana had stated in their preamble that their basic norm was traced from Almighty
God from which they had their constitution and their legal order was their constitution which had
the special element of predictability of which the proclamation did not have. The NLC
proclamation did not make the theory from Kelson applicable. The majority in court decided that
the coup did not destroy the previous order which was the 1960 constitution but just changed
parts of it.

14
KWAKYE V ATTORNEY GENERAL
Facts
The plaintiff was listed in a press statement issued by the Armed Forces Revolutionary
Council (A.F.R.C.) as one of 51 persons who had been tried and sentenced in absentia 7 by the
special court established under the Armed Forces Revolutionary Council (Special Courts)
Decree, 1979 (A.F.R.C.D. 3). The plaintiff therefore issued a writ invoking the original
jurisdiction of the Supreme Court and seeking a declaration that he was never tried, convicted or
sentenced by any special court established under A.F.R.C.D. 3 and that the purported sentence of
25 years’ imprisonment imposed upon him as published in the national press was an
infringement of his fundamental human rights, inconsistent with chapter 6 of the Constitution,
1979, void and of no effect. The defendant raised a preliminary objection to strike out the
plaintiff’s claim on grounds that the plaintiff failed to give them mandatory one-month prior
notice under the State Proceedings (Amendment) Decree, 1969 (N.L.C.D. 352) before filing the
suit and that the court had no jurisdiction because of the Transitional Provisions of the 1979
Constitution.
Held
Dismissing preliminary objection-
The State Proceedings (Amendment) Decree, 1969 (N.L.C.D. 352), was ineffectual
where a person sought to invoke the original jurisdiction of the Supreme Court on a complaint
founded on article 2 (1) of the Constitution, 1979. The Decree was plainly inconsistent with that
article and was clearly voided by article 1 (2). Article (2) entitled the plaintiff to invoke the
jurisdiction of the Supreme Court as the act complained of was committed or even threatened
Section 15(2) of Transitional Provisions 1979 constitution. It was widely couched but as the
plaintiff was seeking a relief which the court was prima facie entitled to grant, the defendant who
claimed that the Supreme Court’s jurisdiction had been ousted by the provision ought to provide
a factual basis for it, facts which showed that the AFRC took or purported to have taken judicial
action against plaintiff
Whereas under N.L.C.D. 352 no action was to be brought against the Republic until one
month’s prior notice had been given to the Attorney-General. A true construction of article 2 (1)
of the Constitution, 1979, however, entitled an applicant to invoke the jurisdiction of the
Supreme Court as soon as the act complained of was committed even threatened.

7
“in absence," or more fully, in one's absence.

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RE OKINE
In Re Okine (Under the 1957 OIC)
Some members were arrested and detained under the Preventive Detention Act, 1958 on
grounds, which include their conspiring to assassinate members of the Government.
Issues
1. Bad faith on the part of the Government;
2. The identity of some of the applicants; and
3. Lack of jurisdiction, in that the grounds of detention show offences already committed,
and therefore triable under the Criminal Code
Holdings
(1) the Courts are precluded from inquiring into those matters in respect of which the Governor-
General states that he is "satisfied" for purposes of the Preventive Detention Act, 1958, or into
the grounds of satisfaction;
(2)  The Courts can inquire into such matters as—
(a)  The good faith of the Minister, where this is impugned;
(b)  The genuineness of the Detention Order itself;
(c)  The identity of the applicant with the person referred to in the Order;
(d)  The nationality of the applicant;
(e)  The overstepping of statutory limits by the Minister.
(3) That activities which sufficiently ground a Preventive Detention Order may also be offences
against the Criminal Code, does not make the Order bad.
The Preventive Detention Order sets out that the Governor-General is satisfied that it is
necessary to make the Detention Order in question. It was signed by the Minister of Defence:
there is nothing against his signing this order, either in law or in the circumstances of this case.
The question of the necessity of making the order at all is not for the Court to consider.  It
appears well established that where a statute requires only that a Minister shall be "satisfied" that
certain action is necessary, the effect is "virtually to exclude all judicial review on the ground
that Ministerial action taken under (such) authority is purely administrative"
There are also spelling variations. I have considered each of the alleged wrong descriptions, and
in my view a wrongful description is immaterial - the crux of the matter is, rather, the identity of
the persons concerned.
The Habeas Corpus was refused.

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BOLOGUN V. EDUSEI
Facts
Abdul Wahabi Balogun and three others were on 17th October, 1958 served with deportation
orders issued by the Minister of Interior (Mr. Krobo Edusei). At the time of issuing the orders,
the Minister simultaneously authorized the Acting Commissioner of Police, Mr. Madjitey, to
arrest the four without warrant and fly them to Nigeria (1958). The four men were arrested
accordingly on Saturday October 18th, 1958. Writs of habeas corpus were filed that they were
citizens and not subject to deportation. Notice of the motion was ordered to be given to
respondents and the four men were however flown later. It wasn’t until the next day notice
ordered by Court was served upon respondents. Appellants later filed notice that respondent be
committed for contempt of court.
Issues
i.) Whether the action of the Minister, the Commissioner of police and Director of Prisons, did
constitute contempt of court.
ii.) Whether notwithstanding the non-service in habeas corpus proceedings, despite the
contemnor’s knowledge of the order, he was still liable.
Held
i.) The fact that the court has made an order for service on the respondent known to them, actual
service of the order isn’t necessary.
ii.) Deportation amounted to contempt because they interfered with the litigant and put an end to
court proceedings and brought the administration of the law into disregard.

17