TUFOUR v ATTORNEY GENERAL

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: (i) on the coming into force of the Constitution, the Hon. Mr. Justice Apaloo) was
deemed to have been appointed Chief Justice and as such became president and a member of the
Supreme Court; (ii) the application of the, procedure in article 127 (1) to Justice Apaloo and his
purported vetting and rejection by Parliament were in contravention of the Constitution: (iii) Apaloo
refrained Chief Justice and thereby president of the Supreme Court. The AG argued that the process in
Article 127 was a mandatory one and Apaloo’s rejection was done in pursuant of that procedure.
Attorney General raised objections against the jurisdiction of the court as well as the capacity of the
plaintiff and the competency of the Speaker of Parliament to be sued as a defendant. On jurisdiction,
the AG 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. 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. On the merits of the case, the AG contended
that, before the Constitution, 1979, came into force, the hierarchy of courts ended at the Court of
Appeal. No justice could therefore have held the office of a Justice of the Supreme Court. Accordingly,
the Chief Justice of that hierarchy was only a Chief Justice of the Court of Appeal. The Constitution,
however, has provided a higher court, the Supreme Court, membership of which was a prerequisite for
qualification as Chief Justice. As such the then CJ was only a transitional CJ and as such, if to be
appointed as CJ of the SC, he must go through the procedure as stated in Article 127.

Held

1. The jurisdiction of the court, as constituted, sprang from the provisions of section 3 of the First
Schedule to the Constitution. But section 3 conferred jurisdiction on the court to deal with any
issue falling within the ambit of article 118, in particular, for the purposes of the case, article 118
(1) (a). As such, the court had jurisdiction to entertain the case.

2. The Constitution, by the provisions of article 1 (3) conferred on every citizen of Ghana the right
to see to it that the constitutional order was not abolished or sought to be abolished. One
method by which it could be determined whether a person was seeking to abolish the
constitutional order, was to seek an interpretation of the Constitution as to the meaning of the
effect of a particular provision or provisions. The interest of the plaintiff was a constitutional
right exercisable by all citizens of Ghana by virtue of article 1 of the Constitution. And the
plaintiff under article 1, need not have any community of interest with any person or authority.
His community of interest was with the Constitution

3. 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
 Speaker therefore ought not be a party in the instant proceedings and the, court would
accordingly discharge him as a party.

4. The courts before 24 September 1979 derived their existence and functions from the
Constitution, 1969. The Chief Justice in that constitution had a unique personality; he was both a
member and head of that one composite institution known as the Superior Court of Judicature.
It was by virtue, of his being the head that he had been the president of all component parts in
the structure. Although the constitution was abolished, the judicial structure remained intact.
The head of the judiciary was still the Chief Justice; the Court of Appeal and the High Court
constituted one Superior Court of Judicature and the omnipresence of the Chief Justice within
the mechanism was retained. The chief justice presided over all the courts within the Superior
Court of Judicature. He was 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
Superior Court of Judicature. There was no such office before 24 September 1979 known as
Chief Justice of the Court of Appeal or a transitional Chief Justice.

NOTE: According to Justice Sowah on the nature and character of a constitution,

‘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. Its language, therefore, must be considered
as if it were a living organism capable of growth and development Indeed, it is a living organism capable
of growth and development, as the body politic of Ghana itself is capable of growth and development. A
broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A
doctrinaire approach to interpretation would not do. We must take account of its principles and bring
that consideration to bear, in bringing it into conformity with the needs of the time.’

J. H. MENSAH v ATTORNEY GENERAL

The first term of office of President Rawlings came to an end on 6 January 1997. However, having been
elected for a second term he was sworn into office on 7 January 1997. It was then announced that the
President had decided to retain in office some of his previous ministers and deputy ministers of state
and since they were approved by the previous Parliament of the first term of the Fourth Republic, they
would not be presented to the new Parliament for their approval. The minority group in Parliament
opposed the decision on the ground that under the Constitution, 1992 no one could be appointed or act
as a minister or deputy minister of state during the second term of the Fourth Republic without being
vetted by the new Parliament since the tenure of the ministers ended with the dessolution of the old
parliament. One of such retained Ministers, the Finance minister (Kwame Peprah) purported to present
the new budget to parliament. The parliamentary minority leader, the plaintiff, brought an action
against the Attorney-General for a declaration that: (a) on a true and proper interpretation of articles
57(3), 58(1) and (3), 66(1) 76(1) and (2) 78(1), 79(1), 80, 81, 97(1), 100(1) and 113(1) and (3) of the
Constitution, 1992, no person could after 6 January 1997 act as a minister or deputy minister of state
without the prior approval of the Second Parliament of the Fourth Republic of his appointment and that
this prior approval include consideration and vetting of each nominee for ministerial appointment by the
Second Parliament of the Fourth Republic. The AG argued that under article 81 of the Constitution, 1992
the tenure of a minister or deputy minister did not come to an end on the dissolution of the Parliament
which gave prior approval to the appointment of that minister or deputy minister. Thus unless some of
the events specified in article 81 occurred, a minister or deputy minister· would continue to be in office.

Issues

1. Did a presidential nominee for ministerial appointment require the prior approval of Parliament
before he could act or hold himself out as a minister or deputy minister of state?

2. Does the requirement of prior parliamentary approval extend to all nominees, whether retained
or new?

3. Is “prior approval” a term of art? If so, what was its meaning?

Held

1. In articles 78(1) and 79(1) of the Constitution, 1992 it is provided that the President shall
appoint his ministers and deputy ministers with the prior approval of Parliament. Thus a
nominee for ministerial or deputy ministerial office undoubtedly requires prior parliamentary
approval.

2. Articles 78 and 79(1) of the Constitution, 1992 which provided that the President should appoint
his ministers and deputy ministers with the prior approval of Parliament did not draw a
distinction between fresh and reappointed candidates. Consequently, both a new or
reappointed candidate should obtain the prior approval of Parliament.

3. Although the expression “prior approval” was not defined in the Constitution 1992, it could not
have been the intention of the framers of the Constitution, 1992 that it should necessarily imply
consideration and vetting whenever it had been used in any provision of the Constitution
because that interpretation could not be consistently applied in all the provisions of the
Constitution where the expression “prior approval” was used. Thus the term “prior approval”
was not a term of art. But the common sense implication of the expression was to obtain a
consent of the relevant authority. Where that authority was Parliament, article 110(1) of the
Constitution empowered it by standing orders to regulate its own procedure provided they did
not infringe a provision of the Constitution. Thus the court could not under article 2 and 130(1)
 of the Constitution direct Parliament on how to conduct its proceedings when granting “prior
approval” under article 78(1) of the Constitution, 1992.

NEW PATROITIC PARTY v ATTORNEY GENERAL

On 31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was
overthrown in a coup d’état. Subsequently, the military regime which took over the reins of
government, the Provisional National Defence Council (PNDC), declared 31 December a statutory public
holiday. Accordingly, each year the anniversary of the coup was celebrated, inter alia, by personnel of
the security forces with military parades, route marches and carnivals throughout the country. These
activities were financed with public funds. On 7 January 1993 the reign of the PNDC came to an end with
the assumption of power by a civilian government which had been elected into office under the
Constitution, 1992. When on 19 December 1993 the government announced that 31 December 1993
would be a public holiday and should be celebrated and observed as such, the plaintiff, one of the
registered political parties in the country, claiming that the celebration would be unconstitutional,
brought an action under article 2(1) of the Constitution 1992 against the Attorney-General for a
declaration that the public celebration of the coup d’état of 31 December out of public funds was
inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 particularly articles
3(3)-(7), 35(1) and 41(f) and an order compelling the government to cancel the preparations for the
celebration and refrain from carrying out the celebration with public funds.

Arguments

1. The plaintiff contended that it was clear from the relevant provisions of the Constitution, 1992
that the people of Ghana had resolved never to allow the Constitution, 1992 to be overthrown
or undermined and since the intended celebration would glorify coups d’état and in the result
would undermine the people’s resolve to resist coups, it would be unconstitutional. Accordingly,
expenditure of public funds on the celebration would constitute waste and misuse of public
funds which the Constitution enjoined the people to resist.

2. The defendant contended, inter alia, that (i) the celebration of 31 December as a public holiday
could not be said to be subverting or overthrowing the Constitution in contravention of article
3(3) as to require any defensive action by anyone under article 3(4); (ii) the Directive Principles
of State Policy contained in chapter 6 of the Constitution, 1992 were not justiciable and
therefore articles 35 and 41 which were part of the principles could not ground a cause of
action; and (iii) 31 December was a statutory public holiday by virtue of the Public Holidays Law,
1989 (PNDCL 220) and moneys were lawfully appropriated under the 1993 budget estimates
approved by Parliament for its celebration in recognition of the historical values and good works
that the revolution stood for and therefore the intended expenditure was lawful.

3. The defendant also objected to the jurisdiction of the court on the argument that the action
sought to question the legality of the coup d’état of 31 December 1981 contrary to section 34(2)
 of the transitional provisions of the Constitution, 1992; and (b) the question whether 31
December should be celebrated was a political question which should be reserved to the
executive or Parliament to decide.

Issues

1. Whether the court had jurisdiction to entertain the suit?

2. Whether the Directive Principles of State Policy in the 1992 constitution were justiciable?

3. Whether the celebration of the 31st December coup was inconsistent with the constitution?

4. Whether the use of public funds to celebrate it was inconsistent with the 1992 constitution?

Held- The court held, in a 5-4 majority decision as follows:

1. The court held that it had jurisdiction over the matter because

 The essence of the plaintiff’s action was that whatever the nature of the coup d’état of 31
December 1981, legal or illegal, its anniversary after 7 January 1993, should not be
celebrated out of public funds and other resources and this does not relate to the
overthrow of the 3rd republican constitution.

 By virtue of article 3(4) of the Constitution, 1992 every citizen of Ghana had the
constitutional right to protect the constitutional order established by the Constitution so
that it was not abolished or sought to be abolished. Because the determination of the
controversy as to whether the celebration of the 31 December revolution offended the
Constitution depended on the interpretation of the Constitution, it had jurisdiction by
Article 2(2).

 The doctrine of “political question” was inapplicable in Ghana since under articles 1, 2 and
130 of the Constitution, 1992 issues of constitutional interpretation were justiciable by the
Supreme Court.

2. The Directive Principles of State Policy contained in the constitution, 1992, chapter 6 were
justiciable because

 The Constitution, 1992 as a whole was a justiciable document and accordingly, if any part
was non-justiciable, the Constitution itself had to indicate it. But no provision in the
Constitution had indicated that chapter 6 was not justiciable.

 Articles 1(2) and 2(1) of the Constitution, 1992 which rendered any law, enactment or
anything done under its authority, any act or omission of any person inconsistent with any
provision or a provision of the Constitution null and void and empowered the Supreme
Court so to declare, did not express any exception in favor of chapter 6.
 3. The celebration of 31 December as a public holiday with carnivals, route marches, etc. would
have the tendency to glorify the coup d’état of 31 December and it would not only be unfair to
those who were adversely affected by the coup but had become impotent to resort to court
action by reason of the indemnity provision of section 34(2) of the transitional provisions of the
Constitution, 1992 but would weaken the people’s resolve to enforce their right or perform their
duty under article 3(4), and would in the result undermine and subvert the Constitution, 1992.
Accordingly, even though the celebration might not be a violent means of subverting the
Constitution, 1992, it surely was an unlawful means under article 3(4) (a). Such conduct would
clearly be inconsistent with the duty to defend the Constitution and would be clearly against the
letter and spirit of the Constitution.

4. Since the celebration of 31 December would be unjustified, any expenditure of public funds in
that regard would be a misuse and waste of public 41(f) of the Constitution, 1992 which
imposed a duty on every citizen of the country to protect and preserve public property and
expose and combat misuse and waste of public hands and property. Accordingly, the plaintiff
was entitled to proceed under article 41(f) as a matter of duty to combat such misuse with a
view to protecting and preserving public property.

SALLAH v ATTORNEY GENERAL

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 LI No. 395 which was
passed under the authority of the new Statutory Corporations Act, 1964. On 21 st 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 the Kelsenian 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 abrogated 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.

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 the Kelsenite 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 his dissenting judgement however, Anin J.A adopted Kelsen’s view as contended by the AG and held
that by virtue of the coup d’état the old legal order founded on the 1960 Constitution yielded place to a
new legal order which was the proclamation. He further opined that after the coup, all offices were
deemed to be the creation of the NLC and the existed by virtue and in pursuance of the proclamation.

THE LAKANMI CASE

After the severance of ties between Nigeria and the British Colonial Government, the Constitution 1963
was promulgated. This constitution was deemed to be the supreme law of the Federation (Grundnorm).
There was a military takeover on 15 th January 1966, in which the military announced that certain
provisions of the 1963 Constitution were suspended. Also suspended were the offices of the President,
Prime Minister, and Parliament too. The Judiciary, Public Services, the Armed Forces and the Police
Service were saved. A decree, Constitution (Suspension and Modification) Decree No. 1 1966, was
passed to give effect of the above suspensions and retainments under the 1963 Constitution. Decree No.
1 further gave the military the power to make laws without any restrictions. The decree also provided
that whilst the 1963 Constitution shall have the force of law in Nigeria, it shall not prevail over a decree
passed and nothing in it shall render a decree void. On 29 th July, 1967 another coup took place, under
which Nigeria was converted from a unitary state to a federal one of twelve states. Decree No. 1
remained in force.

The Chief Justice, as chairman of the Tribunal of Inquiry issued an order freezing the assets of public
officers of the western state under an edict of the military government in accordance with section 13 (1)
of Edict No. 5 of 1967, the Investigation of Assets (Public Officers n other Persons Decree) which
prohibited the plaintiffs or their agents and other persons from disposing of any of the properties of the
plaintiffs until the Military Governor of the Western state had directed them to. The plaintiffs were not
to operate their bank accounts by means of withdrawal and the new laws said there could be no
challenge to the Chairman of Tribunal. Other laws, i.e. Decree Nos. 37, 43 and 45, were promulgated to
prohibit the judicial review of anything done under the laws.

Issues

1. Whether the events of 15th January 1966 amounted to a revolution?

2. Whether Decree 45 can validly oust the courts jurisdiction to look into the order of the Tribunal?

Held

1. The court held that the events of January 15, 1966 did not amount to a revolution but a mere
offer of invitation to the Armed Forces to form an interim Military Government, making it clear
that only certain provisions of the 1963 Constitution were to be suspended and the offer was
duly accepted by the Armed Forces. The court recognized Kelsen’s theory of revolutionary
legality as argued by the AG but it drew a distinction between that and the present case. The
court based its reasoning on the doctrine of necessity and held that necessity dictated an agreed
partial suspension of the 1963 Constitution and the formation of the interim government which
effected the transfer of power from the old to the new order.

2. The court held on this issue that the Federal Military Government assumed the continued
existence of the 1963 Constitution and in its Decree No. 1 impliedly provided for a separation of
powers between the legislatures, the executive and the judiciary as did the Republican
Constitution. Because Decree No. 45 of 1968, which sought to validate the order made by the
tribunal was a legislative act which impinged upon the sphere of the judiciary, it was an
unnecessary intrusion into the sphere of the judiciary and it is therefore void.

MADZIMBAMUTO v. LARDNER-BURKE

The British Government had granted the 1961 Constitution of Southern Rhodesia to the Colony. On 11
November 1965, Mr Smith the Prime Minister and his ministerial colleagues, issued a Unilateral
Declaration of Independence (UDI) to the effect that Southern Rhodesia was no longer a Crown colony
but was an independent sovereign State. They also promulgated a new Constitution, 1965. On the same
day, the governor issued a statement to the effect that the Prime Minister and the other persons
holding office as Ministers of the government of Southern Rhodesia or as Deputy Ministers ceased to
hold office. The Parliament of the United Kingdom also passed the Southern Rhodesia Act 1965,
declaring that Southern Rhodesia was still part of the dominions of the United Kingdom, and
Government and Parliament of United Kingdom still had responsibility and jurisdiction. Mr Smith and his
colleagues disregarded their dismissal from office, and the members of the legislature adopted the new
1965 Constitution and thereafter they and Mr Smith and his colleagues declared that the 1965
Constitution had superseded the 1961 Constitution.

Before the UDI took place however, a state of emergency had been declared by the Governor, and the
appellant’s husband had been detained by the first respondent as Minister of Justice. On the expiration
of the state of emergency in February 1966, the government continued their detention under
Regulation 47(3), which derived its authority from the 1965 Constitution. The detainees challenged the
legality of their detention and by implication, that of the UDI and the 1965 Constitution.

Held

The court held that the rebel government had not overthrown the British Colonial Government, and
therefore the 1965 Constitution was not the supreme law of the land. They held further that the rebel
government was a usurper, and not a lawful authority to make laws, and lastly, that the doctrine of
necessity could not be invoked as a means of enforcing the laws detaining the appellant’s husband. The
court applied the Kelsenite theory. The court did not declare the unilateral declaration of independence
as a revolution because the rebel government was not effective. Smith’s government was conflicting
with the colonial government, and both were making laws for the administration of the country almost
concurrently. The Kelsenian theory admits of no situation in which there are two Grundnorms, giving
validity to two different laws. Thus Kelsen’s theory prevailed, but not in favour of the rebels.

UGANDA v. COMMISSIONER OF PRISONS, EX PARTE MATOVU (1966) EA 514

After Uganda’s first post-independence elections in April 1962, two parties, the Uganda People’s
Congress led by Milton Obote and the Kabaka Yekka led by Daubi Ocheng, formed a coalition
government, but this remained unstable. On February 26, 1966, the Prime Minister, Obote, with the
support of the military assumed full powers of government, suspended the National Assembly and
abrogated the 1962 Constitution. He later convened the Assembly in April 1966, which approved a new
constitution, 1966 that provided for an executive presidency and a unitary state.

In August 1966, Matovu, a Buganda county chief was served with a detention order under provisions of
Article 31(I) of the 1966 Constitution. Matovu filed a habeas corpus application, arguing that the
detention order violated the fundamental rights provisions of the 1962 Constitution, which remained
the supreme law of Uganda.

Held- The court held, applying the Kelsenian principles that, our deliberate and considered view is that
the 1966 constitution is a legally valid constitution and the supreme law of Uganda, and that the 1962
constitution having been abolished as result of a victorious revolution in law does no longer exist nor
does it now form part of the Laws of Uganda it having been deprived of its de facto and de jure validity.
The 1966 constitution, we hold, is a new legal order and has been effective since April 1966 when it first
came into force

SHALABI V AG

The plfs were brothers working in the transport sector in Ghana. They were born in the Gold Coast to
Lebanese parents in the 1930s. They held British passports until a law on citizenship in Ghana – the
Ghana Nationality Decree (NLCD 191) – was passed in 1967. This decree established different categories
of Ghanaians. A Ghanaian by birth was defined as someone born in Ghana before 6 March 1957 and
included British subjects at the time. The Decree did not describe parentage as a criterion to citizenship.
As a result of the definition of a Ghanaian in the Decree, the brothers gave up their British passports and
got Ghanaian citizenship. 2 years later, another law, the NLCD 333, was passed to amend the NLCD 191.
This time, the Ghanaian citizenship for parents and grandparents was included in the criteria to
becoming a citizen. This would have precluded the brothers from becoming Ghanaian citizens if it had
been included in NLCD 191. NLCD 333 was backdated to take effect at the same time as NLCD 191 was
supposed to take effect. A year later, a new law, Ghanaian Business (Promotion) Act 1972 (Act 334), was
passed reserving certain sectors of the economy, including the transport sector, to Ghanaians only. In
light of this new law and NLCD 333, the brothers sought clarification as to their status as Ghanaian
citizens. Their lawyers were informed that the Government did not consider them to be Ghanaians nor
British but Lebanese. As this would cause them problems with their business in light of the Act and NLCD
333, the brothers brought an action in the court for a declaration that they were Ghanaians.

Held- The constitution placed limits on the government that it could not make retrospective laws. The
NLCD 333 purported to come into effect at the same time as the NLCD 191. It was not possible for a law
amending another law to come into effect at the same time as the law it was amending. Even if the
NCLD 191 was in effect for 1 second, it’s effect was to give the plf’s citizenship and their citizenship could
only be taken away by following the corrects process laid down by the law giving them citizenship. There
is no legislative sovereignty, only sovereignty of the people. The government does not have unrestricted
power to give and take people’s citizenship at will. The government’s decisions must make sense and
take people’s rights into consideration.

EX PARTE BANNERMAN

On 18th January the National Liberation Council under power given them by section 1 of the Commission
of Enquiry’s Act 1964(Act 250), appointed a Commission of Enquiry to inquire into the management and
other matters relating to the State Fishing Corporation. This commission was to commence work from
the 10 to 28th June 1967 but on 26 th June the chairman of the Commission of Enquiry purported to
suspend Mr. Bannerman, the Distribution Marketing Manager of the State Fishing Corporation. This
purported suspension letter came from the office of the said Commission of Enquiry and it was signed by
chairman of the commission. It was stated in the letter that the applicant was relieved of his duties and
responsibilities as Distribution Marketing Manager of the State Fishing Corporation and that he was to
hand over to his most senior subordinate and advise the Chief Accountant and the Production Manager.
Copies of the suspension letter were sent to Secretary of the National Liberation Council. The applicant
upon receiving the letter initiated instant proceedings for writs of certiorari and prohibition to quash the
decision as contained in the letter and to also prevent the chairman from suspending, dismissing,
interdicting or interfering in the performance of his duties and responsibilities as Distribution Marketing
Manager respectively. The applicant sought these on grounds that the E.I. 6/7 under which the
commission worked does not permit it to suspend, dismiss, interdict or interfere with his service
contract. The second ground was that the letter was a speaking order which the chairman did not have
the power to issue, as doing that meant he had assumed the position of the service contract between
the applicant and the corporation. He also sought for these reliefs on grounds that he was not allowed
to defend himself before the said commission hence they breach the principle of natural justice.
Whether the writs were necessary was another issue to be tackled by the court.

Held- In view of the words "if the National Liberation Council is satisfied," I am prepared to hold that
conditions which may exist to enable the Council to take over the control and management of the
corporation rest entirely within the absolute discretion of the Council and the grounds of their
satisfaction are not open to question by the courts. But before the Council will be capable of appointing,
transferring, suspending or dismissing any of the employees of the corporation there must be evidence
that the Council has, in fact, in exercising its power under Part XIV of L.I. 397, taken over the control and
management of the corporation.

This calls for examination of exhibit 2 which suspended the applicant and three other officers of the
corporation. A careful examination or scrutiny of exhibit 2 does not show that the National Liberation
Council has assumed control and management of the State Fishing Corporation or any part of its affairs
by virtue of Part XIV of L.I. 397. No document in the nature of an executive instrument has been shown
to this court indicating that such assumption of control has taken place. I have not seen one either. The
assumption of control and management of the corporation by the National Liberation Council is a
condition precedent to the exercise of any of the three powers therein stated and, in the absence of any
such evidence from exhibit 2, I hold that the purported suspension of the applicant (and for that matter
the other three officers) is ultra vires the National Liberation Council which acted in excess of its power.

EX PARTE SALIFA

Salifa, a school boy, then aged fifteen years was sent to Guinea by his father in 1965 to continue his
education. In 1967 he ran away from his guardian who was allegedly maltreating him. He went to Sierra
Leone where he asked the Ghana High Commissioner to help him to return to his parents in Ghana. On
his arrival in Accra, in June 1967, he was immediately arrested by the police and detained in Ussher Fort
Prison. On 25 June 1968, Salifa's father filed an ex parte application for an order of habeas corpus on the
ground that his son's detention was unlawful. Upon a notice of motion filed on 29 June 1968, for hearing
on 2 July 1968, the Director of Prisons made a return thereto by an affidavit annexing thereto a
Photostat copy of a document, exhibit A, purporting to be a Decree signed by the Chairman of the
National Liberation Council authorising the arrest and detention of Salifa. The document was not
numbered and neither was it published in the Gazette as required by the Proclamation establishing the
National Liberation Council. In a press release dated 24 April 1968 issued by the Ministry of Information,
it was stated therein that all persons placed in protective custody since 24 February 1966 and the 17
April 1967 abortive coup had been released.

Held-

1. Even though the date of the coming into force of a Decree could be so stated in the body of the
Decree as to make the date of publication not the date of its coming into force, nevertheless,
publication of it in the Gazette, numbering thereof in accordance with the order in which
Decrees were published, printing and publication thereof by the Government Printer, together
with its consequential purport that it was signed by the Chairman of the National Liberation
Council, could not be respectively legally dispensed with in the making and issuing of a Decree
having the force of law. Consequently since exhibit A was neither numbered nor published in
the Gazette, it could not be classified as a Decree.
2. The contention that the National Liberation Council had an unlimited power was pitched too
high - it undermined or undefined the purposes for which by the Proclamation the National
Liberation Council was established. According to the preamble to the Proclamation, it was
established in the interest of the people of Ghana, and for the provision for the proper
administration of the country and for the maintenance of law and order. In effect the
Proclamation provided for the eradication by the National Liberation Council of illimitability of
power in Ghana; for, autocracy in Ghana was given a decent burial on 24 February 1966.
3.

2ND SALIFA CASE

Salifa, who had been detained under a National Liberation Council Decree, had appeared in habeas
corpus proceedings before Anterkyi J who had ordered his release on the grounds, inter alia, that the
Decree, being unnumbered and unpublished, was invalid. Immediately after his release, Salifa was re-
arrested without warrant and detained for suspected subversion under another unnumbered and
unpublished National Liberation Council Decree. Salifa's father filed another application for a writ of
habeas corpus for the immediate release of his son on the grounds, inter alia, that the re-arrest without
warrant was unlawful and further that the subsequent unnumbered and unpublished Decree was also
invalid.

Held- The NLC has so many powers in the sense that even though it proclaimed procedural limitations in
its making of Decrees, it also gave its power to amend, repeal or make laws. Also, a decree could be in
effect even though it wasn’t known to the public because it was not published in the Gazette. In
interpreting an Act of Parliament or a Decree, the Act or Decree should be read as a whole. The
cumulative effect of paragraphs 3 (6) and (7) of the Proclamation 1966, was that a Decree could come
into force and be operated or administered even though it had not been published in the Gazette. And
the word "issue" appearing in para. 3 (1) of the Proclamation, would in the context of the present
circumstances appear to mean the operation of the Decree even though it was unpublished.
Furthermore a Decree could come into force in some other way or mode of publication or even on some
other day than by publication in the Gazette. Thus a retrospective or prospective date could be put in a
Decree and such a Decree could not be said to have been published in the Gazette on the date of its
coming into operation. In the instant case the Decree authorising the detention of the applicant was to
operate retrospectively, consequently it could not be considered to be inoperative merely because it
had not been published in the Gazette and a number assigned to it.

RE AKOTO

Akoto and his seven friends upon their arrest and detention ordered by the then Governor- General but
signed in his stead by the Minister of Interior under section 2 of the Preventive Detention Act, 1958 (No.
17 of 1958), sent applications to the High Court for writs of habeas corpus. 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 was
refused but they later appealed to the Supreme Court. Their application for the habeas corpus 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. To the Governor-General their detention was
in good faith and it was necessary for persons who act in a manner prejudicial to the state to be
detained.

Held- There is no constitutionalism in this case because the government was given excess power with no
limitation. The Court held that it was not required to inquire into the truths concerning grounds of
detention of the appellants because the order came from the Governor-General who had the supreme
decision to issue such an order if he deemed it necessary. 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.
The order was made to prevent them from continuing such activities. Power was given to the governor
general to detain anyone harmful to the security of the state according to PDA. It was held that
Parliament could also pass the Prevention Detention Act during peaceful times because it derived this
right from the constitution. Also, in matters where there was a threat to society and the general
governance of the country, there was no reason why Parliament could not enact such laws to detain the
person responsible. Article 20 also made provisions for the ‘Sovereign Parliament’ to make any laws it
deemed necessary. It was however limited when it came to the entrenched clauses.
NPP V IGP

The plaintiff, a registered political party, sought and was granted a police permit on 3 February 1993 to
hold a rally at Sekondi on 6 February 1993. The permit was, however, subsequently withdrawn by the
police. On 16 February 1993, the plaintiff in conjunction with other political parties embarked on a
peaceful demonstration in Accra to protest against the 1993 budget of the government but the
demonstration was broken up by the police and some of the demonstrators were arrested and
arraigned before the circuit court on charges of demonstrating without a permit and failing to disperse
contrary to sections 8, 12(c) and 13 of NRCD 68. On 17 February the plaintiff was granted a permit by
the police to hold a rally at Kyebi to commemorate the 28th anniversary of the death of Dr J B Danquah
but the permit was withdrawn and the rally prohibited by the police on the day of the rally. Aggrieved by
those decisions and actions of the police, the plaintiff brought an action before the Supreme Court for a
declaration that (i) sections 7, 8, 12(a) and 13 of NRCD 68 were inconsistent with and a contravention of
the Constitution, 1992, especially article 21(1)(d) thereof, and were therefore null, void and
unenforceable; and (ii) under the Constitution, 1992 no permission was required of the police or any
other authority for holding of a rally or demonstration or procession or the public celebration of any
traditional custom by any person, group or organisation.

Held- When citizens met or processed in a public place in pursuance of their constitutional rights under
article 21(1)(d) of the Constitution, 1992 to form or hold meetings and processions, they were subject
only to the provisions of the Criminal Code, 1960 (Act 29). Accordingly, if a meeting, procession or
demonstration was being held lawfully and nothing done by persons attending such meeting or forming
the procession or demonstration contravened the provisions of Act 29, such persons should not be
guilty under section 13(a) of NRCD 68. Accordingly, the provision of section 12(a) of NRCD 68 which
conferred on a police officer or an authorised public officer unfettered, absolute, administrative powers
to stop and cause to be dispersed any meetings or processions in any public place, without ascribing any
reasons for it, abridged the fundamental human rights of the citizen under article 21(1)(d) of the
Constitution, 1992 and were therefore unconstitutional. the freedom of assembly granted the citizen
under article 21(1)(d) of the Constitution, 1992 encompassed the right of the citizens to come together
to petition for redress of their grievances or take part in processions and demonstrations in support of
or in opposition to a cause, policy or event. But the consent or permit requirements under section 7 of
NRCD 68 sought to demand leave of the Minister for the Interior for the exercise of those rights, with
the necessary implication that contrary to the provision of article 21(1)(d) of the Constitution, 1992,
meetings, processions and demonstrations were prohibited by law unless sanctioned by the minister or
anyone authorised by him. That proposition clearly violated the enshrined provision of article 21(1)(d)
because by investing the minister or other authority with unfettered discretion to refuse his consent or
permit, section 7 of NRCD 68 placed the assertion by the citizen of his constitutional rights of assembly,
procession by the citizen of his constitutional rights of assembly, procession and demonstration at the
mercy of the authorities. Since, the generality of NRCD 68 was to create a prior restraint and a clog on
the rights of the citizen under article 21(1)(d) of the Constitution, 1992 and thereby denied him those
freedoms to which he was entitled, it was inconsistent with the letter and spirit of article 21(1)(d) of the
Constitution, 1992 and accordingly unconstitutional

FATTAL V MINISTER OF INTERIOR

Two plaintiffs Lebanese by birth acquired citizenship by naturalization under the Ghana national act
1971, act 371 in 1973 and 1976. In 1978, the supreme military council passed a decree SMCD 172 which
revoked their citizenship. Deportation was issued by the minister of interior. The plaintiffs brought an
action to the Supreme Court that the revoking their citizenship without a court order was ultra vires and
contrary to the 1979 constitution. Chapter 5, 9, 12 .in a majority decision, action was dismissed with the
view that in the absence of a written constitution which delimited their power, the military government
was at liberty to do whatever it liked by decree which would have the force of the law.

Held- Since 1966, military governments in Ghana had always reserved to themselves the legislative
power to either enhance or curtail the judicial power vested in the courts. In the absence of a written
constitution which delimited the powers of the various organs of state, a military government was at
liberty to do what it liked by Decree which had the force of law. In the absence of constraints,
restrictions or limitations on the legislative power, the laws enacted by the legislature should be
enforced by the courts. The National Redemption Council by its Proclamation, 1972, made the judicial
power guaranteed by the Constitution, 1969, and indeed all other existing enactments subject to
Decrees passed by the Council. The jurisdiction of the High Court under the Ghana Nationality Act, 1971
(Act 361), s. 10 was therefore subject to Decrees enacted by the Council. And that section should be
deemed to have been amended by the Ghana Nationality (Amendment) Decree, 1978 (S.M.C.D. 172), by
virtue of the fact that section 10 conflicted with the provisions of the Decree which in the clear words of
section 3 (3) of the Proclamation, 1972, must prevail over section 10 of Act 361. It was therefore not
open to any court to declare S.M.C.D. 172 ultra vires and thus null and void.

GBEDEMAH V AWOONOR WILLIAMS

STATE V. G.O.C THE GHANA ARMY, EX PARTE BRAIMAH

The respondent, a Nigerian national resident in Ghana, was arrested on 3 January 1967 by the army
authorities on suspicion of having committed the offence of stealing. The army authorities acted in
pursuance of the provisions of the Law Enforcement (Powers of the Army) Decree, 1966 (N.L.C.D. 109),
which gave to the army authorities the same powers of arrest and prosecution as are vested in the
police under the Criminal Procedure Code, 1960 (Act 30), the Police Service Act, 1965 (Act 284), and the
Public Order Act, 1961 (Act 58).On 4 January 1967, the Attorney-General gave his consent in writing for
the detention of the respondent for a period of 28 days beginning from 4 January 1967. The Attorney-
General was acting under the provisions of the Criminal Procedure Code (Amendment) Decree, 1966
(N.L.C.D. 93), which amended section 15 of the Criminal Procedure Code, 1960. The period of 28 days
expired on 1 February 1967 and on that day the Attorney-General issued another consent in writing for
the [p.195] detention of the respondent for a further period of 28 days as from 1 February 1967.On 7
February 1967, the respondent, by his nephew, Yaya Aminu Braimah, applied to the High Court, Accra,
for a writ of habeas corpus for the release of the respondent from custody on the ground that the
Attorney-General had no power to give consent, once the respondent had completed the original 28
days in custody, for the further detention of the respondent.

Held- Constitutionalism is practised here in the sense that even though his detainment of an extra 28
days was lawful, it was lawful only on the basis that there were sufficient facts to keep him detained.
The object in this case is to keep him away from public during investigations. This was because
investigations were still ongoing.

Things needed to ensure constitutionalism

1. Independent judiciary to guard the constitution. Article 125(1) RE AKOTO is evidence of what
happens when judiciary is not strong and independent

2. The political history & socialization of a people can by itself exert limits- or give little resistance- to
abuse. Eg in GH from Nkrumah down, abusive heads- Ghanaians tolerate rubbish from their leaders.
E.g. Muntaka-goes to see the father after scandal. British system, though Parliament sovereign, held
in check by the violent history that created that sovereignty. I.e. they beheaded a king when he
oppressed them, why would they tolerate oppressive Parliament.

3. The role of elections in constitutionalism. Even though it is not sufficient by itself, it gives immense
confidence in politicians and create a conscious demanding people who are themselves part of the
notion of constitutionalism.

4. Political party activity aids constitutionalism. This is because one serves as a watchdog over the
other.

TITLE: BLACKBURN v ATTORNEY GENERAL

FACTS: The British government were to enter into the treaty of Rome to join the Common Market. The
plaintiff contended that on entry into the Common Market, signature of the Treaty of Rome by Her
Majesty's government would be in breach of the law because the government would thereby be
surrendering in part the sovereignty of the Crown in Parliament for ever. Also, signature of the treaty
would be irreversible and would limit the sovereignty of the United Kingdom. The issue before the court
was whether it can prevent the Crown from entering into the Treaty.

HOLDING: The court held, per Lord Denning that in the first place, no treaty had been signed by the
Crown as it was in the negotiation stages and that the courts will take no notice of treaties until they are
embodied in laws enacted by Parliament, and then only to the extent that Parliament tells the court.
Further, Denning held that the treaty-making power of this country rests not in the courts, but in the
Crown; that is, Her Majesty acting on the advice of her Ministers and as such the courts cannot stop the
Crown from entering into the treaty. The court can only look into the validity of the treaty if it is passed
by Parliament as an Act. Stamp L.J asserted the principles of Separation of Powers by holding that, 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 powers of Parliament, more particularly where the circumstances in
which the court is asked to intervene are purely hypothetical.

CAPTAN V. AG

Omar Ibrahim Captan a Lebanese citizen residing in Accra applied for naturalization in July 1968, the
application was received by the interior minister on 23 July 1968. In September 1969, the principal
secretary to the minister received a letter from the NLC that the application had been approved. The
ministry of interior sent a letter to the plaintiff exhibit B. asking him to complete the attached forms
(oath of allegiance) and complete the payment of forty new cedis being naturalization fee. Captan was
however to produce a certificate of naturalization issued under a presidential decree from the
government of Lebanon permitting him to acquire Ghanaian citizenship. And that it was only when a
certificate of naturalization has been issued that the plaintiff can become a citizen of Ghana. The letter
was dated 1 September 1969. On the same day, the plaintiff swore an oath and was issued with a
receipt. The fee showed in the receipt was for the naturalization certificate. On the same day, the
plaintiff received a letter from the Lebanese embassy signed by the ambassador and stamped with the
seal of Lebanon. He letter indicated that the plaintiff was authorized to renounce his Lebanese passport
and acquire a Ghanaian citizenship. The principle secretary refused to issue the certificate of
naturalization which remained on the file of the plaintiff at the interior ministry on the grounds that
there was no presidential decree. On 18 September, 1969 , the plaintiff received a letter signed by the
interior minister that his permit had been withdrawn and that he should leave Ghana within 24 hours
which expired by 6 pm.

Issues

1. Whether the minister in the exercise of his discretionary power to expel an alien has to give reasons
for such expulsion

2. Whether or not article 24(1) vests in an alien the right to immunity from expulsions from Ghana

Held-

1. A minister in expelling an alien from Ghana under sections 7 and 8, of the Aliens Act 1963, (Act 160)
does not exercise such a discretionary power as falls within the purview of article 173 and he is not
obliged to assign reasons.

2. Article 24 does not vest in an alien the right of immunity from expulsion from Ghana. That right is
enjoyed by a citizen of Ghana.
MARBURY v MADISON

Marbury was nominated and appointed by John Adams to become the Justice of Peace for the District of
Columbia. After the appointment document was signed by the President, the Secretary of State,
Madison failed in his duty to deliver the letter as required by law. As such, Marbury was refused the
position of the Justice of Peace because the commissions signed by former President, John Adams were
not delivered before the expiration of John Adams time in office. Marbury brought a petition to the
Supreme Court under the Judiciary Act of 1789 for an order of mandamus to compel the Secretary of
State to deliver his commission to take up the post of justice of the peace.

Issues

1. Whether Marbury has a right to his commission?

2. If he has a right, whether that right has been violated and do the laws of the country afford him a
remedy?
3. Whether the Supreme Court has the power to issue a writ of mandamus?

Held- The court in a unanimous decision and as read by Chief Justice Marshall held and reasoned as
follows:

1. The applicant had a right to the commission as it originated from an Act passed by Congress in 1801.
Further, the court concluded that when a commission has been signed by the President, the
appointment is made, and that the commission is complete when the seal of the United States has
been affixed to it by the Secretary of State. Mr. Marbury, then, since his commission was signed by
the President and sealed by the Secretary of State, was appointed, and as the law creating the office
gave the officer a right to hold for five years independent of the Executive, the appointment was not
revocable, but vested in the officer legal rights which are protected by the laws of his country. To
withhold the commission, therefore, is an act deemed by the Court not warranted by law, but
violative of a vested legal right.
2. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a
justice of peace for the County of Washington in the District of Columbia, and that the seal of the
United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the
signature, and of the completion of the appointment, and that the appointment conferred on him a
legal right to the office for the space of five years. That, having this legal title to the office, he has a
consequent right to the commission, a refusal to deliver which is a plain violation of that right, for
which the laws of his country afford him a remedy.
3. The court held that the writ of mandamus is the right remedy to be sought by the applicant but it
would refuse it because the law relied upon by the Applicant on the issue of the writ is in
 contravention of the Constitution and as such unconstitutional. The courts can therefore not grant
the remedy.

Comments and notes on judicial review as asserted in the case

There are three ways a case can be heard in the Supreme Court: (1) filing directly in the Supreme Court;
(2) filing in a lower federal court, such as a district court, and appealing all the way up to the Supreme
Court; (3) filing in a state court, appealing all the way up through the state's highest courts, and then
appealing to the Supreme Court on an issue of federal law. The first is an exercise of the Court's original
jurisdiction; the second and third are exercises of the Supreme Court's appellate jurisdiction.

Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court
needed to be able to exercise original jurisdiction over the case in order to have the power to hear it.
Marbury's argument is that in section 13 of the Judiciary Act of 1789, Congress granted the Supreme
Court original jurisdiction over petitions for writs of mandamus. However, Article III, Section 2, Clause 2
of the US Constitution granted the Supreme Court only the right of appellate jurisdiction over
mandamus cases.

Chief Justice Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to
give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III
of the Constitution, which defines the Supreme Court's original and appellate jurisdictions. Marbury had
argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could
add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme
Court's original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act
conflict.

This conflict raised the important question of what happens when an Act of Congress conflicts with the
Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law
and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In
support of this position Marshall looked to the nature of the written Constitution—there would be no
point of having a written Constitution if the courts could just ignore it. "To what purpose are powers
limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be
passed by those intended to be restrained?" Marshall also argued that the very nature of the judicial
function requires courts to make this determination. Since it is a court's duty to decide cases, courts
have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other,
a court must decide which law applies. Finally, Marshall pointed to the judge's oath requiring them to
uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution"
before the "laws of the United States.

BROWN v BOARD OF EDUCATION

Black children were denied admission to public schools attended by white children under laws requiring
or permitting segregation according to the races. The white and black schools approached equality in
terms of buildings, curricula, qualifications, and teacher salaries. In a class action, the plaintiffs argued
that racial segregation of schools was unconstitutional as it violated the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution. The issue before the court was whether
segregation of children in public schools solely on the basis of race deprive the minority children of the
equal protection of the laws guaranteed by the 14th Amendment?

Held- The court, in a unanimous decision held that, despite the equalization of the schools by
"objective" factors, intangible issues foster and maintain inequality. Racial segregation in public
education has a detrimental effect on minority children because it is interpreted as a sign of inferiority.
The long-held doctrine that separate facilities were permissible provided they were equal was rejected.
Separate but equal is inherently unequal in the context of public education.

BILSON V APALOO

The plaintiff filed a writ against the then Chief Justice, Justice Apaloo for a declaration to quash the
judgment of the Court of Appeal sitting as the Supreme Court in the case of Tuffour v AG , on the
grounds inter alia, that the five learned judges who constituted the court did not constitutionally hold
valid nominations to sit in the said suit since the Chief Justice, the defendant, who had empanelled the
court acted in contravention of articles 114(5), 121(2) and section3(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 appeal to accept the invalid nomination to sit on the said suit. At the hearing counsel for the
plaintiff raised a preliminary objection to the composition of the Supreme Court on the grounds that two
members of the panel hearing the case should not sit as members of the Supreme Court since they had
also sat at the Court of Appeal in the Tuffour case. He further submitted that the natural justice rule
against bias would be infringed if the two judges sat as judges in their own case.

Held- In dismissing the preliminary objection, the court held that the rule of natural justice (nemo judex
in causa sua) also known as the rule against bias arose in two ways, firstly, where the adjudicator was
disqualified because he had direct financial or proprietary interest in the subject-matter of the suit: and
there was a real likelihood that the adjudicator would be biased in favour of one of the parties. The
court also held that in the instant case, natural justice had to yield to necessity since otherwise it would
be impossible to constitute a quorum of five justices of the Supreme Court of the hearing of the case
under Article 115(2) of the constitution. Further the court said that apart from considerations of
necessity, it was incontrovertible that the issues raised by the parties were predominantly issues of law,
the adjudication of which would not pose any special problems for the judges of the court performing, in
the words of their judicial oath, the functions of their office without fear or favour, affection or ill-will
and upholding the constitution and the laws of Ghana.
BUDU v CAESAR

In October 1955, the plaintiff, Nana Kofi Budu by writ of summons issued in the Native Court “B” of
Akwamu against Francis M.K. Caesar commenced proceedings claiming declaration of title to an area of
land 2 square miles in extent, damages for trespass to the said land and injunction. He was joined by
three (3) other defendants as persons likely to be affected by any decision in respect of the land claimed
by Nana Budu. This was after an arbitration held to settle the matter between the parties.

Held- that in an arbitration, both sides must be given a fair hearing in a judicial manner. The rules which
prevail at the trial of an action in court must be effected as far as practicable. Each party must state his
case fully, be available for cross examination and tender such documents. No person shall be
condemned either in respect of his person or his property without being given a fair hearing. On the
merits of the case, the court concluded that there was no hearing of both parties in the arbitration in a
judicial manner. There was no evidence adduced at the arbitration and the arbitrators did not give
judgment based on the merits of the case. As such there was a breach of natural justice.

REPUBLIC v. DISTRICT MAGISTRATE, KETA AND ANOTHER; EX PARTE HEDO

On 25 May 1970, the District Magistrate at Keta made an order that the applicant, a judgment debtor in
a previous suit, should pay the balance of the costs in the said suit to the judgment creditors within
seven days of the date of the order and in default of payment, the judgment creditors were empowered
to imprison the applicant for 90 days. The magistrate made the order without inquiring into the means
of the applicant. On 18 May 1971, the applicant was arrested and imprisoned. His counsel applied to the
High Court for an order of certiorari to quash the order made by the magistrate.

Held- where a person’s liberty is likely to be restricted or jeopardized any failure to examine whether
there was a willful refusal to pay, is clearly a breach of the rules of natural justice. In this case no
adequate opportunity of being heard as to his means was offered the applicant. This is contrary to
natural justice.

AGYEMANG v. THE REPUBLIC (NO. 2)

In an altercation between the appellant and the complainant in a house where both of them lived, the
appellant was alleged to have used force on the complainant. The appellant was tried for ordinary
assault before a district magistrate who acquitted him on the ground that the force used was justified in
order to prevent the commission of a crime in accordance with section 31 of Act 29. In the exercise of
his powers of revision of decisions of district magistrates under Act 372, the supervising High Court
judge in the area reversed, without hearing or seeing the appellant, the order of acquittal and
substituted a conviction and sentenced the appellant to twelve months’ imprisonment with hard labour.
On appeal against conviction and sentence, the main consideration of the Court of Appeal was whether
a revising judge contemplating the reversal of an acquittal and the imposition of a fresh sentence or an
increase in one already given should not hear the convicted person before so acting.

Held- the revising judge had, in reversing the decision of the trial magistrate by substituting a conviction
and imposing a sentence without hearing the appellant, performed his duty in apparent violation of an
elementary rule of natural justice. Consequently the order of the revising judge could not be allowed to
stand.

QUIST v KWANTRENG

The deceased made in his will to transfer his land to some specific parties. A misunderstanding ensued
as to who should be given the land and as such, the plaintiff brought an action in that respect. Before
the case could be heard, a High court judge, Ollennu J who knew the parties volunteered to arbitrate
over the matter and solve it amicably between them but the parties refused. The case was heard by
another judge for which judgment was for the plaintiff. On appeal to the High Court, the case came
before Ollennu J and the defendant raised an objection against Ollennu presiding over the case on
grounds that he had foreknowledge of the case.

Held- The court overruled the objection and held that by Sections 84 & 85 of the Courts Act, officers of
the court can ask parties to a case to settle it outside court and if such officer oversees such settlement,
he must recuse himself in case it comes before him in trial. In the case, because Ollennu did not sit on
that case and this is an appeal, and as such he can sit on it.

KWAMI v QUAYNOR

In 1897, the elders of Osu Alata conferred a piece of land to one William Quaynor on which he held
before his death in 1953. After his death, his sons and successors erected buildings on the land. In March
1933, the Osu Mantse conferred part of the land to the appellant through a conveyance. The appellant
sent men to the land granted him but was estopped by the respondent, Quaynor. The appellant sued in
the land court for declaration of title to the land. The action came on for hearing before Ollennu J. In
giving judgment for the respondent (Quaynor), the learned Judge examined and commented on the
decision of Jackson J. in an Acquisition Enquiry which went to appeal, and on the decision of Van Lare J.
(as he then was) in the case of Danquah v. Ofei; which also went to appeal. The learned Judge had been
Counsel in both of those cases for a party claiming title upon a grant by the Alata Quarter Stool. In an
appeal in the present case, the appellant argued that Ollennu J., before trying the case, was already
seised of the facts as to Alata Quarter Stool land, its extent and claims to further extension. This
amounted to a foreknowledge of the facts which must have influenced his judgment. The issue was
whether Ollennu J had foreknowledge in the case.
Held- before the decision of a Judge can be impugned on the ground of possibility of bias, there must be
substantial grounds in support of such possibility and not mere speculations. Although Ollennu J had
appeared as counsel in a similar case, the facts are different and this does not make him biased. The
mere knowledge or experience of a branch of law does not make you have foreknowledge.

REPUBLIC v. ASSUA AND OTHERS; EX PARTE BLEWEY

In 1963 the plaintiffs successfully instituted an action against the defendants at the Western Nzima
Traditional Council for the recovery of the Half Assini Divisional stool as the bona fide property of the
plaintiffs’ family. As a result of an appeal against the decision of the council, a committee of inquiry,
composed of a sole commissioner was appointed in 1965 under section 34 of the Chieftaincy Act, 1961
(Act 81), to hear and determine the appeal. The commissioner confirmed the findings of the council and
submitted his report to the National Liberation Council. The National Liberation Council by notice
published in the Local Government Bulletin, No. 16 of 1967 reversed the decision of both the traditional
council and the committee. The plaintiffs unsuccessfully applied to the High Court, Sekondi, for an order
of certiorari to quash the decision of the National Liberation Council. On appeal from that ruling to the
Court of Appeal, counsel for the appellants argued, inter alia, that the decision of the National Liberation
Council breached the rules of natural justice inasmuch as the parties were denied a further hearing.

Held- the National Liberation Council’s act in considering the report was part of the inquiry. It had
before it the whole of the proceedings of the sole commissioner and his report and probably the
proceedings and decision of the traditional council; presumably it was on these that the National
Liberation Council arrived at the decision to reject the findings of the commissioner. As it had not been
suggested that the National Liberation Council took extraneous matters into consideration in arriving at
its decision which was the final process in the inquiry, there was no need for a further hearing of the
parties so that there was no breach of natural justice.

REPUBLIC v. FREMPONG II & ANOTHER; EX PARTE ABABIO II

The applicant sought an order of certiorari to quash the decision of the respondents destooling him as a
sub-chief. He alleged that sometime in August 1972 he was summoned by the first respondent to
appear before the Nifa Traditional Council but he could not answer the call because of ill-health. Despite
the explanation for his non-appearance before the council, he was declared destooled on certain
allegations made against him by the first respondent. The council recorded reasons for destooling the
applicant but at the hearing of the application an attempt was made to rely on an affidavit sworn to by
the chief sword-bearer to the effect that the applicant’s non-appearance before the council was
deliberate. Counsel for the applicant argued that the whole proceedings before the council were unfair
and contrary to the rules of natural justice inasmuch as the applicant was denied the opportunity of
being heard.

Held- when a body like a traditional council was sitting to decide matters which might affect the rights
and status of one of its members or his standing in the community, such a body was under a duty to act
fairly and if there was a failure to observe the rules of natural justice, as in the instant case, the court
would intervene and quash the decision of the council.

REPUBLIC v. GHANA RAILWAY CORPORATION; EX PARTE APPIAH

The board of directors of the respondent-corporation, acting on the adverse findings made against the
applicants by a board of inquiry set up by the corporation to investigate a certain transaction relating to
the purchase of buff envelopes imposed penalties on the two applicants by reducing their ranks.
Consequently, the two applicants instituted the instant proceedings for an order of certiorari, to quash
the penalties imposed upon them on the grounds, inter alia, that by virtue of the conditions of service
for the senior staff of the corporation, the board had no authority or right to effect a reduction in their
ranks without an proper inquiry on specific charges preferred against them. In the view of the
applicants, by refusing to do any of these, the board of directors not only breached the conditions of
service for the senior staff of the corporation but also violated the elementary rules of natural justice.

Held- the core idea implicit in the natural justice principle of audi alteram partem was simply that a
party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity
to make his statement in explanation of any question and to answer any arguments put forward against
it. The principle did not require that there must be a formal trial of a specific charge akin to court
proceedings, as argued by counsel for the applicants. In commissions or boards of inquiry, the principle
of audi alteram partem would be held as having been complied with if a person suspected of any
malpractice or neglect of duty was invited to answer questions put to him by the inquirers or the
investigations. In the instant case, the allegation that the applicants were condemned unheard was
therefore unjustified as the facts clearly showed that the applicants were notified to appear before a
board of inquiry and that they knew what matter was going to be investigated. Several questions were
also put to them and they were given the opportunity to answer each of them.

REPUBLIC v CONSTITUTIONAL COMMITTEE CHAIRMAN; EX PARTE BARIMAH

A constitutional committee, chaired by the respondent, Dr Degraft Johnson was set up to look into
destoolment charges preferred against the Adansihene by two complainants. After the
recommendations of the Committee, the Adansihene brought an application for certiorari to quash
them on grounds of bias. The applicant alleged that the respondent had been intimately been involved
in the dispute relating to his destoolment charges and that he had made efforts to settle the matter and
had issued threats against the applicant’s faction to persuade them to settle. The applicant further
contended that an examination of the decisions and conduct of the respondent as chairman of the
committee showed that he was interested in the dispute and was biased against the applicant. To
support the claim on bias, the applicant alleged that the respondent’s wife was related to one of the
complainants and as such, she influenced the respondent in coming to those recommendations. Held- to
succeed in an application based on bias, there must be proof of the existence of a real likelihood of bias
or interest and that mere suspicion of bias however reasonable that might appear is not sufficient. The
test of bias is objective and it is of the view that a right minded person would take if he accepted
matters of fact put forward by the applicant and the basic rule of fair and impartial administration of
justice requires that ‘Justice should not only be don but manifestly and undoubtedly be seen to be done.
From the case, the court concluded that there was no proof of a real likelihood of bias by the
respondent nor was there evidence that his wife influenced him to come to those recommendations.

ATTORNEY GENERAL v SALLAH

Before the main trial (Sallah v AG) began, the defendant raised an objection that Apaloo and Sowah be
disqualified from sitting and taking part in the hearing of the case on the basis that they may have an
interest in the case. Against Justice Apaloo, it was contended that he was a close personal friend of the
respondent (Sallah) and that the relationship between them was so intimate that it will be difficult, if not
impossible for him to decide the case impartially. Against Justice Sowah, it was contended that he was a
brother in law of one Jonas who was affected by the construction put up by government on Section 9(1)
of the Transitional Provisions. Also, Mrs Jones sought help from Sowah to have her husband reinstated
and that Sowah had mentioned this to the sector minister.

Held- to qualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest
not of a pecuniary nature, a real likelihood of bias must be shown. On the evidence, disqualification on
bias cannot be sustained in the case because it dealt strictly with the interpretation of the 1969
Constituion and not an ordinary litigation between two private individuals in which a judge can side with
either of the parties. The court further held that there was no proof of a real likelihood of bias against
the learned justices as in Ghana, there is a chance that judges may be acquainted with people either as
friends or associates and not such close to warrant a disqualification.

REPUBLIC v. HIGH COURT, DENU, EX PARTE AGBESI AWUSU II

There was a dispute as to who was the Acting President of the Anlo Traditional council between Regeant
Togbe Sri III and Togbe Agbesi Awusu II. As a result, Togbe Sri III brought a chieftaincy suit before the
Judicial Committee for a declaration that he was the Ag head. Subsequently, Togbe Awusu convened a
meeting of the council on the very same matter. After the meeting, there was published a report on the
outcome of the meeting. Togbe Sri saw the meeting as a contempt of the Judicial Committee and
applied to the High Court, Denu for contempt against Agbesi Awusu. The court awarded the relief ought
by Sri. The applicant, Awusu brought an instant application to the SC for an order of certiorari and
prohibition against the high court on grounds of real likelihood of bias. The applicant relied on evidence
that the learned judge had attended a meeting convened by Togbe Sri on the same matter whilst the
matter was pending, thus constituting foreknowledge. Also, he had intimated to another person the
limited chances of the applicant succeeding in the case before him and as such he had already judged
the case befor its conclusion.

Held- on the evidence there was proof of a real likelihood of bias which is the test for bias. As such the
judgement should be voided.

ADZAKU v GALENKU

In an action for damages, the defendant in cross-examination, suggested to the plaintiff's witness that
he, the witness, had previously spoken to the trial magistrate about the case. This allegation was denied
by the witness. The defendant did not call any admissible evidence on the issue but applied to the trial
magistrate to stop hearing the case and refer it to another magistrate for hearing as to the truth or
otherwise of the allegation. After reviewing the evidence, the trial magistrate concluded that there was
no foundation in the allegation and therefore dismissed the application. The defendant was
subsequently found liable. On appeal, the defendant contended that the whole trial was a nullity and
unsatisfactory because on the basis of the allegation, and from the facts the trial magistrate had
exhibited violent temper in the course of the trial, and had said many unpleasant things about him and
as such, the trial magistrate was biased.

Held- to disqualify the trial magistrate and to invalidate his decision, the allegation of bias must be
supported by evidence. A mere or reasonable suspicion of bias was not enough; the law recognised not
only actual bias but that interest, other than interest of a direct pecuniary or proprietary nature, which
gave rise to a real likelihood of bias. Without more, the conduct of the trial magistrate could not support
the charge of bias and since there was no foundation in the allegation of bias, the trial magistrate was
right in dismissing the application.

AKUFFO ADDO v QUARSHIE IDUN

The defendants (Akuffo Addo, then CJ, the Judicial Secretary and the General Legal Council) issued
certain circulars to judicial officers to deny right of audience to any lawyer without a solicitor’s licence
and that they should not grant an adjournment in a case solely on the ground that the lawyer required
time to take out a solicitor’s license. The plaintiffs brought an action against the defendants for an
injunction to restrain the adherence of the circular. The plaintiffs contended that they, as lawyers are
vested with the legal right of audience in the courts, without taking a solicitor’s licence and that by the
law, to practice as an advocate, it is not necessary for a lawyer to get a licence. The injuction application
was dismissed by the trial court and the plaintiff appealed to the CA. At the CA, the plaintiff raised an
objection to the CJ empanelling the bench of the CA to hear the matter since he was a party to the suit.
They deemed this to be a breach of Natural Justice.

Held- where a statute enjoins a person to perform an act, he has to do it even if such performance
contradicts with the strict rules of Natural Justice. It is the primary duty of the CJ to invite judges to the
CA and as long as he remained in office, he must perform it. Apart from him being ill, no one is entitled
by law to perform this function.

EKU ALIAS CONDUA III v ACQUAAH

The Appellant and the Respondent were both members of the Aboadzie fishing community of the shama
state in Western Region. In 1958, a dispute arose between them as to the headship of this fishing
community and as to the right to collect tolls from the fishermen who constituted the community. The
appellant’s claim at High court was dismissed for lack of jurisdiction. The appellant then caused a writ of
summons to issue from the Shama State council against the respondent for a declaration that, he was
the headman of the community and the proper person to collect fishing tolls. The council dismissed the
appellant’s claim and found for the respondent. The appellant appealed to the Court of Appeal
Commission who dismissed the appeal. The appellant filed an application in the High Court, Sekondi, for
an order quashing the decision of the Shama State Council and the Appeal commission on grounds that
the Shama State Council had no jurisdiction because the suit was not of constitutional nature but rather
the right to collect fishing tolls.

Held- the jurisdiction of state councils was limited to determination of disputes of a constitutional
nature. Also, the state council had a traditional jurisdiction to determine a dispute relating to the
appointment or dismissal of a headman inasmuch as a headman occupied a traditional constitutional
and political office.

BOAMPONG v ABOAGYE

The defendant was the Konongohene whiles the plaintiffs were the abusuapanin, obaapanin and the
linguist. A misunderstanding arose between them and the matter was reported to the Juabenghemaa. In
the course of the delibrations, the defendant in a fit of anger pulled off his sandals. Sensing this, the
plaintiffs claimed that the defendant had abdicated his stool and consequently perfrmed such rights to
that effect. The defendant then sent a case to the Juaben Traditional Council where he was not given
judgment. On appeal to the Ashanti House of Chiefs, the judgment of the Juaben Traditional Councilwas
upheld. On further appeal to the National House of Chiefs, he was further denounced. He then brings an
appeal to the SC as the appellant. The issue was whther the defendant had validly abdicated his stool.
Held- although the defendant had voluntarily removed his sandals, it does not constitute a valid
abdication. For there to be a valid abdication, there must be five conditions present.

1. Voluntary renunciation of the stool by the occupant

2. Acceptance by the stool elders and kingmakers
3. Performance of the requisite rites and formalities
4. Publicity

Based on this, the court held that the alleged abdication of defendant was not accepted by the elders of
Konongo as their consenct and concurrence was absent. Secondly, the necessary customary rites were
not performed as the abusuapanin was incompetent to perform this. Moreso, the abdication was not
done in public as the alleged removal was done at the house of the Juabenhemaa. Public here means in
a palace or ‘dwabrem’. Further the defendant did not voluntarily renounced the stool as the removal of
the sandal was in frustration which arose as a result of a fit of anger.

ESSILFIE v ANAFO IV

In the Nsona family, there are two sections; the Moree Dominase and the Efutu section. The defendant
was the chied of Nkanfua. A complaint was lodged at the Oguaa Traditional Council for inter alia the
destoolment of the defendant by the plaintiff. Judgment was given for the defendant. An appeal to the
Central Regional House of Chiefs by the plaintiffs was allowed. The defendant, dissatisfied, appealed to
the National House of Chiefs for which he was given judgment. The present case is an appeal by the
plaintiffs of the judgment of the National House of Chiefs. The issue was whether the court can grant an
order for the destoolment of the defendant.

Held- there cannot be a declaration for the destoolment of the defendant as a chief because there
plaintiffs had not adduced enough reasons to warrant the destoolment of the defendant. Moreover,
even if there were enough evidence, the court has no power to destool a chief as this task is only
within the ambit of the kingmakers of the community or town.

IN RE WENCHI STOOL AFFAIRS: NKETIA v SRAMANGYEDUA

After the death of the Paramount chief of Wenchi, Nana Abrefa Mobore Bediatuo VII, the Wench stool
became vacant. The Kingmakers approached the queenmother of Wenchi, the Nana Sramangyedua II for
her to nominate a person to be installed as the new chief, for which she asked for time. However, the
kingmakers did not give the considerable time demanded and went ahead to the Obaapanin of the
Wenchi Stool, Obaapanin Abena Frema Atuahene, for her to act in the stead of the queenmother to
nominate someone as chief, for which Kwadwo Nyam Nketia was nominated and installed. The
queenmother, together with three chiefs, lodged a complaint with the Judicial Committee of the Brong
Ahafo Regional House Chiefs for a declaration that the purpoted nomination and installation of Kwadwo
was void on grounds that it can only be done by her, as queenmother. Their petition was dismissed and
they appealed to the NHC where they were dismissed. This is an appeal to the SC

Held- that there had been no valid nomination and therefore the installation of the chief was void. In
giving his judgment, Brobbey JSC asserted that the person who was required, under customary law, to
nominate a person as chief was the queenmother and as such the purported nomination by the
obaapanin was invalid. He stated that so far as there is a queenmother, she is the only one to make the
nomination and any other person who purport to make will be voided. Un the case, all the parties
alluded to Nana Sramengyedua as the queenmother and as such, it was her duty to nominate. On the
allegation of delay, the court held that the request of the queenmother was reasonable as she sought
for time to consider all canditates she deemed fit to the position.

REPUBLIC v ADANSI TRADITIONAL COUNCIL; EX PARTE NANA AKYIE

There was a misunderstanding as to the person to take over the vacant New Edubiase stool. The
plaintiffs sent the matter to the Adansi Traditional Council on grounds that the defendant was not a true
royal of Edubiase and cannot be the chief. The council commenced sitting on a 21 member panel with
the Adansihene as chairman. Later, the panel was reconstituted and it became seven to which the
parties agreed. After the hearing, judgment was given to the defendants. The plaintiffs, not satisfied
with the judgment sent an action in the high court for an order of certiorari to quash the proceedings of
the Council on grounds of lack of jurisdiction. The order was not granted. This is an appeal.

Held- it was incontrovertible that the proper quorum for adjudicating a cause or matter affecting
chieftaincy under the Chieftaincy Act was a membership of not less than half of the total number of
members of the traditional council present. In the instant case the full membership of the council was
21; consequently at least eleven members of the present council would constitute a competent body to
hear and determine a matter affecting chieftaincy and since the membership of the reconstituted
committee of the Adansi Traditional Council heard the appellants’ case, there was lack of jurisdiction in
the committee and the sittings, proceedings and judgment of that committee were therefore null and
void and of no effect whatsoever.

REPUBLIC v. PRESIDENT OF GBI TRADITIONAL COUNCIL; EX PARTE TOGBE KWASI BUAMI VII

The respondent is the Paramount Chief of Gbi Traditional Area and also the president of the Gbi
Traditional Council. He was required under Act 370 to swear in chiefs within the Gbi Traditional Area
into the Council. The applicants were not sworn in as prescribed by law on grounds that they were not
registered by the National House of Chiefs list. The applicants brought an action for an order of
mandamus to compel the respondent to swear them into the Council.
Held- before a chief can be sworn into a traditional council, he must be registered as a chief and such
registration gazetted. The applicants were not enrolled in the register and as such cannot be part of the
new council.

TOBAH v KWEKUMAH

There was a misunderstanding as to who to occupy the stool of the Agona division and the plaintiff
brought an action to the High Court for a declaration that the defendant cannot install any chief.
Meanwhile, the case was pending in the judicial committee of the Ahanta Traditional Council. The
plaintiffs were given judgment. The defendant appealed for which they were dismissed on grounds that
the High Court had jurisdiction to hear the case. NB: There was an issue as to whether the High Court
has original jurisdiction as Section 14 of the Courts Act clothed it with Jurisdiction in all chieftaincy
matters and Section 52 however limited the High Court’s original jurisdiction in chieftaincy matters to
only grant of prerogative writs.

Held- There was no conflict between the provisions of sections 14(1)(a) and 52 of Act 372. The trial
judge had misled himself by ignoring the first part of section 14(1)(a) which made the original
jurisdiction of the High Court "subject to the provisions of the Constitution and any other enactment."
Section 14(1)(a) qualified the original jurisdiction of the High Court "in all matters." The "all matters" in
section 14(1)(a) was subject to the provisions of the Constitution and any other enactment such as
section 52 of Act 372 and section 15 of Act 370. In other words, section 14(1)(a) provided the
foundation by the use of the words "subject to..." for the limitation placed on "all matters" and
permitted no conflict whatever. Consequently, only the judicial committee of the Ahanta Traditional
Council had the exclusive jurisdiction to deal with the matter. It was therefore wrong for the High Court
to have assumed jurisdiction to hear the matter.

ANNIN v ABABIO

The plaintiff was the past chief of Benchem but abdicated from the stool. The first defendant was sworn
in as the new Bechemhene. The plaintiff brought an action for a declaration that certain properties were
his personal properties and not stool properties. After evidence had concluded, the first defendant
moved the court that it had no jurisdiction to hear the matter because it was a chieftaincy matter.

Held- the court it had jurisdiction to hear the case and gave reason that although the case had arisen out
of the abdication of the plaintiff, there is no issue raised for the recovery or delivery of the properties in
connection with his abdication or the installation of the defendant as chief. Thus the matter at hand
does not relate strictly to a chieftaincy matter.

REPUBLIC v KOMENDA TRADITIONAL COUNCIL; EX PARTE PRAH

The respondent, Kwasi Essiah was removed from his post as the Ebusuapanin of the Nsona Stool family
of Dominase by the defendant, Nana Kwaku Prah, Dominasehene. As a result, Essiah brought an action
before the Judicial Committee of the Kemoneda Traditional Council for a declaration that his purpoted
removal as family head was null. The defendant applicant brought the instant action in the High Court
for an order of prohibition to stop the hearing before the KTC on grounds that the respondent was not a
chief and that the KTC lacked jurisdiction.

Held- from the Chieftaincy Act, the categories of chiefs are spelt out; Paramount Chiefs, Divisional
Chiefs, Sub-divisional chiefs, Adikrofo) and any other such chiefs recognized by the National House of
Chiefs LI 798 precluded family head as chiefs in light of the last category and restricted them to be only
chiefs if their positions were analogous to stool fathers obaapanin and ohemaa. Moreso, the respondent
was not recognized by the National House of Chiefs as a chief. Due to this, the KTC lacked jurisdiction as
its jurisdiction is only restricted to chiefs.

OSEI v SIRIBUOR

The appellant claimed he was part of the royal family of Juaben. As a result, he, together with some
elders, approached the respondent to be recognized as such. The respondent accepted him. However,
at a later date, the appellant realized that the respondent no longer accorded him the royal status. As a
result, he filed a case un the Ashanti Regional House of Chiefs for a declaration that he was a royal of the
Jubeng Stool. The issue was whether the Regional House of Chiefs had jurisdiction over the matter.

Held- that the House of Chiefs have jurisdiction only on matters relating to chieftaincy. The appellant
asserted that the case at hand related to chieftaincy because being a royal, one stands a chance of being
nominated as a chief. However, the court debunked this assertion ad held that the appellant had his
eyes only on being a royal and not becoming a chief and thus, ruling that it had no jurisdiction.

REPUBLIC v NATIONAL HOUSE OF CHIEFS; EX PARTE KUSI APEA

The appellant was the chief of Wenchi until he was removed in 1958 for which the respondednt was
installed as new chief. However, in 1966, the appellant was reinstated as the chief by virtue of the
Chieftaincy (Amendment) Decree, 1966 (NLCD 12), for which he ruled for seven years until the Decree
was repealed by the SMC through the Wenchi Paramount Stool Affairs Decree, 1976 (SMCD 64). The
respondent was reinstalled under SMCD 64 but the appellant alleged that NLCD 12 was repealed by an
AFRC Decree and not SMCD 64 and as such he was still the chief. He thus brought this action in the High
Court fpr a mandamus to compel the National House of Chiefs to register his name as the chief of
Wenchi.

Held- that the remedy of mandamus cannot be granted because the appellant had to institute
proceedings at the RHC to be restored and mandamus cannot lie from a court where there are other
remedies existing.
REPUBLIC v. AKIM ABUAKWA TRADITIONAL COUNCIL; EX PARTE SAKYIRAA II

The kingmakers of the Akim Abuakwa Traditional Area who had approved the nomination of Dr. Alex
Fredua Agyemang as Okyenhene, met to elect and install him as the new omanhene. On three
occasions, the applicant, the queenmother of the traditional area was sent for by the Okyeman Council
to attend the council meeting, but she refused as she did not approve of the nomination, and as a result
she was declared summarily destooled. She therefore brought the present application for an order of
certiorari to quash the decision of the Okyeman Council which resulted in her destoolment. The
respondents opposed to the application on grounds, inter alia, that since the applicant was not a chief in
accordance with Akim Abuakwa custom her destoolment could not be governed by the provisions of the
Chieftaincy Act, 197. The issue was whether a queenmother can described as a chief within the meaning
of the Chieftaincy Act.

Held- the queenmother of Akim Abuakwa was a chief within the meaning of a chief as defined by
section 48 (1) of the Chieftaincy Act, 1971 (Act 370), and that being the case, her destoolment being a
cause or matter affecting chieftaincy should have complied with the Chieftaincy (Proceedings and
Functions) (Traditional Councils) Regulations, 1972 (L.I. 798). But since there was no evidence that the
purported destoolment complied with the provisions of the regulations stated, the respondents’ order
of destoolment was made without jurisdiction.

NYAMEKYE v. TAWIAH

In an appeal to the National House of Chiefs in a chieftaincy dispute arising from the rotational right of
three houses to nominate a candidate for the stool by turn, it was submitted inter alia to the house that
whatever defects there might be in the trial tribunal’s judgment, its holding in favour of rotation must
be right and should be left undisturbed. The house rejected this submission holding that, “A plaintiff
succeeds on the strength of his own case and not on the weakness of the defendant’s case. The onus of
proof always lies on him who alleges a certain fact, and unless this proof is made, the plaintiff cannot
succeed . . .” The house therefore reversed the judgment of the Central Regional House of Chiefs, which
was the tribunal of fact. This is an appeal.

Held- the policy reason underlying the statutory conferment of both original and appellate jurisdiction in
chieftaincy disputes on traditional tribunals, was that the personnel of those courts were, by reason of
their background and training knowledgeable in indigenous law and custom to competently determine
those matters. When they sought to resolve issues which demanded the application of customary law by
resort to the subtleties of English common law their expertise was doubtful and as this case showed,
they foundered in the result. A party could prove his case by admissions from the mouth of his
opponent or his adversary’s witness and in holding otherwise the house offended both principle and
authority.
BOLOGUN V. EDUSEI

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 notwithstanding the non-service in habeas corpus proceedings, despite the Contemnor’s
knowledge of the order, he was still liable.

ii.) Whether the action of the Minister, the Commissioner of police and Director of Prisons, did
constitute contempt of court.

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 court into disregard.

TITLE: BENNEH V. THE REPUBLIC

FACTS: The defendants served the plaintiff with an entry of judgment which was alleged to have been
obtained pursuant to N.L C.D. 400. The plaintiff claimed that the decree was repugnant to articles 12 and
18 of the Constitution, 1969, and therefore void under article 1(2). The court was asked to issue an
injunction to restrain the defendants from carrying out any of the provisions of N.L.C.D. 400. With
respect to the question of jurisdiction which was raised by the court the plaintiff submitted that under
article 106 (1) of the Constitution the High Court had the power to declare the decree void since the suit
arose under articles 12 and 18 which are in turn covered by article 28 which gives the High Court
concurrent jurisdiction with the Supreme Court.

Held- article 2 of the Constitution stipulates that it is the Supreme Court that must determine whether
another enactment is inconsistent with the Constitution. The High Court did not have jurisdiction to
entertain the suit.
On 13th January 1972 another coup occurred. This established by proclamation, National Redemption
Council was announced, there was a major murmur that ethnic groups were not represented so the
Council expanded to balance ethnicity , to satisfy complaint of ethnic balance. Today we talk about
regional balance. Concern about representation was a major talking point for agitators of constitutional
reform.

NLC Proclamation also established an Executive Council made up of all members of NRC, Executive
Commissioners and Secretary of NRC.

NRC Decree 101- Abolished the Supreme Court and the Court of Appeal became the highest court in the
land. Judiciary was once again reorganized. These arrangements operated until 9 th October 1975.

On 9th October, National Redemption Council made its last decree, Decree 360. This decree reorganized
the administration. It abolished the National Redemption Council and established the National Supreme
Council. It abolished Executive Council and established National Redemption Council.

The people who claimed responsibility for the 1972 coup saw it as demotion and resigned. Some argue
that what happened in 1975 is an in-house coup d’état.

Decree 360 stated that in exercise of Executive power, will act on advice of SMC wherever practicable.
Decree setting up NRC posited that the leader is depository of power and acts on advice of SMC. He
appoints members of the SMC-the IGP etc.

REPUBLIC v. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH

The applicants, together with other persons, were charged with certain offences under the Subversion
Decree, 1972 (N.R.C D. 90), and tried before a military tribunal appointed under the said Decree. The
tribunal by their decision convicted them and then sentenced the first applicant to death which was
later commuted to life imprisonment whilst the second applicant was sentenced to life imprisonment.
The applicants, in the instant application, sought an order of certiorari to quash the proceedings and the
decision of the tribunal. In raising a preliminary objection to the jurisdiction of the court to entertain the
application, the respondent contended that the military tribunal appointed under N.R.C.D. 90 was not
an inferior court because only superior courts had power to pass death sentences and since the tribunal
also had power under section 1 of the Decree to impose a death sentence in respect of certain offences
triable by that tribunal, the said tribunal was not inferior to the High Court.

Held- that the provisions mentioned were of general application and applied to every offence created by
the enactment. Consequently, by virtue of those provisions, the prosecution could add a conspiracy
charge to any offence and jurisdiction was given to any court to try a conspiracy charge so far as the
court had jurisdiction to try the substantive offence on which the said conspiracy charge was based. The
words “notwithstanding any law to the contrary” preceding Section 1 of NRCD 90 were not intended to
exclude any particular enactment. All that these words meant was that even if the conduct, acts,
omissions listed under the said Section might not be regarded as offences under the existing law, they
should nevertheless ne regarded as offenses punishable under the Decree.
REPUBLIC V. MAIKANKAN

Ten persons were committed to the High Court for trial on charges, none of which carried the death
penalty. At the trial, counsel for the Republic applied that owing to the complicated nature of the case,
the trial judge should try the case without a jury. One of the defense counsels objected to the
application on grounds that the interpretation being placed on Article 20(2) of the 1969 Constitution
was wrong and that by virtue of Section 204 of the Criminal Procedure Code 1960 (Act 30), the trial
couldn’t be conducted without a jury.

Held- article 20 (2) (a) of the Constitution, 1969, does not provide that a trial by a judge with a jury is
compulsory for all offences other than treason, but rather makes it mandatory in trials of persons
charged with offences punishable with death or imprisonment for life, other than those persons charged
with treason, which is also punishable with death, but for which special provision is made in article 20
(2) (h) of the Constitution for trial by the "High Court duly constituted by three Justices thereof." There
was no support for the argument that offences the accused persons were charged with must be tried by
judge and jury.

KWAKYE v. ATTORNEY-GENERAL

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 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- 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). 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 or even threatened.
NPP v GBC, which addresses the place and importance of freedom of expression.

The plaintiff was a registered political party while the defendant is a statutory corporation established
by the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) with the mandate to educate, inform
and entertain the citizens of the country. On the presentation of the 1993 budget by the government,
there were severe criticisms of its provisions by several persons including the plaintiff. In response to
those criticisms the Minister of Finance appeared on radio and television for over two hours to defend
the budget proposals. The plaintiff therefore applied to the defendant to be given time on radio and
television to also express its views on the budget proposals. The defendant however refused its request.
Consequently, the plaintiff brought an action against the defendant for (a) a declaration that under
articles 55(11) and 163 of the Constitution, 1992 the defendant, a state-owned media, had a duty to
afford the plaintiff fair opportunities and facilities to present its views on the budget especially as those
views diverged from those of the government or of the National Democratic Congress, the party which
formed the government and which sponsored the appearance of the Minister of Finance; and (b) an
order directing the defendant to afford the plaintiff equal time on television to present its views on the
1993 budget.

Held- the object of Article 55(11) was the provision of fair opportunity to all political parties to present
their programmes to the public, and the means of achieving that was by ensuring that each party had
equal access to the state-owned media. “Equal access” meant the same or identical terms and
conditions for gaining entry into the state-owned media for the purpose of presenting their political,
economic and social programmes to the electorate and persuading them to vote for them at elections.
But this rights were not rights which were enjoyed by the people only when elections were to take
place. Article 163 of the Constitution, 1992 also set out the duties of the state-owned media in
promoting free expression of views by obliging the state-owned media to grant fair opportunities and
facilities for the presentation of divergent views and dissenting opinions. The word “fair” meant “free
from bias” or “equal”. Accordingly, the combined effect of articles 55(11) and 163 of the Constitution,
1992 obliged the management and editors of the state-owned media to be impartial, showing neither
affection for, nor ill-will towards, any particular group in the community, be it political, economic or
social; their facilities being national assets, should be available to all. Accordingly, since the defendant
gave the National Democratic Congress two hours to air its views on the budget, the defendant was
required by articles 55(11) and 163 of the Constitution, 1992 to grant the plaintiff equal time on radio
and television to set forth its divergent views. Further. The court held that the rights conferred by article
163 of the Constitution, 1992 on the people were subject under article 164 of the Constitution, 1992 to
laws that were reasonably required in the interest of national security, public order and public morality
and for the purpose of protecting the reputations, rights and freedoms of other persons. Since the
defendant had not relied on any such laws to justify its refusal to grant the plaintiff fair opportunities
and facilities for presenting its views on the budget, it had breached the provisions of the Constitution,
1992 by its refusal.

NMC v. AG
The National Media Commission (NMC), a constitutional body set up under article 166 of the
Constitution, 1992 to, inter alia, promote and ensure the freedom and independence of the media for
mass communication and information, observed around 1994 and thereafter that the President,
purportedly acting in consultation with certain authorities, was appointing chairmen, chief executives
and other members of the governing bodies of public corporations managing the state-owned media.
The President was alleged to be exercising such powers of appointment under article 195(1) of the
Constitution, 1992. The National Media Commission which took the position that it was the proper
authority to make such appointments in consultation with the President, submitted a memorandum to
the Attorney-General protesting at the appointments made by the President. The Attorney-General
made it clear that he did not share the views of the commission and invited the NMC to take a second
look at article 195 of the Constitution, 1992 in relation to the provisions of article 167 and 297(a).
Thereafter, the President made further appointments to the state-owned media. Whereupon the NMC
issued a writ in the Supreme Court for a declaration inter alia that: (1) on a true and proper construction
of the Constitution, 1992 and specifically of articles 168 and 195(1) thereof, the power to appoint the
chairmen and other members of the governing bodies of public corporations managing the state-owned
media including the chief executives who were members at such governing bodies, was vested
exclusively in the NMC acting in consultation with the President and not in the President, either acting
alone or in consultation with any other person or authority.

In his response to the plaintiffs case, the Attorney-General contended, inter alia, that the four subject
public corporations managing the state-owned media were public corporations established as
commercial ventures under article 190(4) of the Constitution, 1992 and were consequently outside the
purview of article 195(1) and 168 of the Constitution.

Held- on a true and proper interpretation of the provision of article 168 of the Constitution, 1992 the
authority to appoint the chairmen and other members of the governing bodies of public corporations
managing the state-owned media, including the chief executives who are members of such governing
bodies, was exclusively the National Media Commission acting in consultation with the President. The
language of article 168 was so plain and unambiguous that it meant nothing more than what it said.
Further, the provision accorded with the overall objective of securing the independence and freedom of
those public corporations from governmental control, and to interpret it otherwise would not only be
doing violence to the language of the article but also subverting the intentions of the framers of the
Constitution, 1992.

Article 56 provides that Parliament shall have no power to enact a law to establish or authorize the
establishment of a body or movement with the right or power to impose on the people of Ghana a
common program or a set of objectives of a religious or political.

NEW PATRIOTIC PARTY v THE ELECTORAL COMMISSION

Before the Constitution, 1992 came into effect there were in existence district assemblies which had
been established under the provisions of the Local Government Law, 1988 (PNDCL 207). That Law had
subsequently been amended by the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272)
which extended the term of the assemblies from three to four years. A later Law, the Local (Government
(Amendment) Law, 1993 (PNDCL 306) had empowered the district assemblies to continue in existence
until such time as new assembly members were elected. However, article 242 of the Constitution, 1992
provided for the creation of district assemblies under the Constitution and article 243 empowered those
district assemblies to elect district chief executives for the district assemblies. At a time when the district
assemblies had not been elected under article 242 of the Constitution, 1992 the Electoral Commission
directed the existing district assemblies to hold elections in order to elect district chief executives for
each district assembly in accordance with article 243 of the Constitution, 1992.

The plaintiff, a registered political party, then brought an action against the Electoral Commission and
the Attorney-General for a declaration that the proposed election of district chief executives was illegal
and a contravention of the Constitution, 1992 and sought an injunction to restrain the conduct of the
election. In support of its action the plaintiff contended that since the assemblies provided for by article
242 of the Constitution, 1992 were different entities in their character, composition and terms from
those established under PNDCL 207, the intended election was a violation of the letter and spirit of the
Constitution, 1992 and therefore unconstitutional, illegal and unenforceable.

However, in their defence and in support of the proposed election the defendants contended that (a)
the combined effect of PNDCL 306, article 11(4) and section 31(2) of the transitional provisions of the
Constitution, 1992 was to make the assemblies in existence before the coming into force of the
Constitution, 1992 continue in existence with the powers and functions envisaged under the
Constitution, 1992 until elections were held under article 242, and (b) since the plaintiff had not made
any effort to prevent the district assemblies from electing their representatives to the Council of State
under article 89(2)(c) of the Constitution, 1992 it was estopped by inaction and acquiescence from
challenging the competence of the existing district assemblies to elect district chief executives under
article 243 of the Constitution, 1992.

Held-

1. By virtue of the provisions of article 11(4) of the Constitution, 1992 the Local Government Law,
1988 (PNDCL 207), the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272) and the
Local Government (Amendment) Law, 1993 (PNDCL 306) all formed part of the existing law.
Thus as provided by PNDCL 306, until new assemblymen were elected under article 242 of the
Constitution, 1992, the members of the district assemblies at the time the Constitution came
into operation continued as assemblymen to perform the functions which had been clearly spelt
out in section 6 of PNDCL 207. However, under PNDCL 207, the district assemblies were not
empowered to approve candidates for appointment district chief executives to be appointed
under the Constitution, 1992. Furthermore, the district assemblies established under PNDCL 207
were completely different bodies and entities from the district assemblies to be established in
the future under article 242 of the Constitution, 1992. Accordingly, the district assemblies as
presently constituted could not take a decision on a matter specially reserved for the differently
constituted district assemblies envisaged under article 242 of the Constitution, 1992. In the
 circumstances the district assemblies established under PNDCL 207 were not competent to hold
elections for the purpose of approving candidates for appointment to the office of district chief
executives. Accordingly, the conduct of the Electoral Commission in attempting to hold elections
in the district assemblies as presently constituted for the purpose of approving candidates for
appointment as district chief executives was contrary to the letter and spirit of the Constitution,
1992 and was unlawful and unconstitutional.

2. Article 2(1) of the Constitution, 1992 empowered every citizen to bring an action to enforce any
infringement of any provision of the Constitution, 1992. Accordingly, if the failure of a citizen to
bring an action in the Supreme Court when a particular provision of the Constitution was
violated could constitute an estoppel against that citizen and every other citizen in bringing an
action in respect of any subsequent violation of that provision or another related provision of
the Constitution, estoppel would have been allowed to operate as a shield to prevent citizens
from ventilating and enforcing their constitutional rights under article 2(1) of the Constitution,
1992. The equitable defences of acquiescence, inaction or conduct therefore had no place when
it came to the interpretation and enforcement of the Constitution, 1992. Accordingly, the failure
of the plaintiff to question the propriety of the action of the district assemblies established
under PNDCL 207 in electing representatives to the Council of State under article 89(2)(c) of the
Constitution, 1992 could not prevent the plaintiff from seeking in the court the correct
interpretation and enforcement of the provisions of the Constitution, 1992 which related to the
district assemblies. The unlawful conduct of the Electoral Commission could therefore not be
validated by the equitable doctrine of estoppel.

BILSON v. ATTORNEY-GENERAL

The plaintiff brought an action against the Attorney-General for, inter alia, a declaration that section 34
of the transitional provisions of the Constitution, 1992 which had granted indemnity from liability and
prosecution for all the legislative, executive and judicial acts and omissions done by and under the
authority of the military regimes which overthrew the elected governments of the First, Second and
Third Republics of Ghana and suspended and/or abrogated the Constitutions of 1960, 1969 and 1979
was unconstitutional and unlawful because it infringed the fundamental rights of all persons in Ghana to
seek redress before the courts for their grievances.

The AG argued that the plaintiff does not have a cause of action as none of his rights have been
infringed.

Held- the Supreme Court had jurisdiction to interpret the provisions of the Constitution, 1992 in the
context of disputes. It had no jurisdiction to tender advice to prospective litigants. Accordingly, the
plaintiff could only seek an interpretation of section 34 of the transitional provisions of the Constitution,
1992 if his action was against a particular person in respect of an act or omission of that person, and
that person had for his defence sought shelter under section 34. It was only under those circumstances
that it would be profitable for the court to determine whether the defendant or his act or omission was
covered by section 34 of the transitional provisions of the Constitution, 1992. Since on the pleadings, the
plaintiff was seeking a declaration in a vacuum, his writ had not disclosed any cause of action.
Accordingly, it would be dismissed.

ROSEMARY EKWAM V. KWAME PIANIM

The defendant, a founding member of NPP had been slated to contest the party’s impending election.
The plaintiff, an NPP member, contended that the defendant had been convicted by a public tribunal of
the offence of preparing to overthrow the PNDC Government in 1982 contrary to Public Tribunal Law,
1982 (PNDCL 24). She brought an action in the Supreme Court for a declaration that the defendant’s
action constituted an offence intending to disrupt the peace and security of the State.

Held- the defendant was disqualified from standing for the election for the office of the President under
Article 94(2)c(i) of the 1992 Constitution for the reasons that acts aimed at overthrowing the
government of a state were necessarily aimed at endangering the security of that state. Consequently,
the defendant’s conviction by the Public Tribunal constituted an offence involving the security of the
state under Article 94(2)c(i) of the 1992 Constitution