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AMIDU V. KUFUOR AND OTHERS

(2001) JELR 68094 (SC)

Supreme Court  •  25 Apr 2001  •  Ghana

Coram
EDWARD WIREDU AG CJ, BAMFORD-ADDO JSC, AMPIAH JSC, KPEGAH JSC, ADJABENG JSC, ACQUAH JSC, ATUGUBA JSC, AKUFFO JSC, LAMPTEY JSC

Judgement

JUDGEMENT

EDWARD WIREDU Ag CJ.

This ruling is the outcome of a preliminary objection raised on behalf of the defendants by the Attorney-General on the following grounds:

“(1) this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein;
(2) that no cause of action is disclosed by the plaintiff’s writ and the statement of case; and
(3) that the questions raised in the plaintiff’s action for determination are moot; and for such further or other orders as to this honourable court may seem it.”

Article 11 of the Constitution, 1992 provides as follows:

“11. (1) The laws of Ghana shall comprise—
(a) this Constitution;
(b) enactments made by or under the authority of the Parliament established by this Constitution;
(c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution;
(d) the existing law; and
(e) the common law.”

From the above it will be observed that there are five different kinds of laws which are recognised and enforceable in the courts of Ghana. Each court in Ghana has its own jurisdiction prescribed for it under the laws of Ghana. Some of these laws are not enforceable directly by invoking the original jurisdiction of the Supreme Court. Save those specifically provided for under article 130(1) and (2) of the Constitution, 1992 which reads as follows:

“130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in—
(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.
(2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”

That there are different kinds of laws in Ghana in addition to the provisions of the Constitution, 1992 itself is also buttressed by article 1(2) of the Constitution, 1992 which states in effect that any law which is inconsistent with any provision of the Constitution is to the extent of such inconsistency void. See also article 2(1)(a) of the Constitution, 1992. The events which have provoked this case are provided by the plaintiff in his statement of claim, paragraphs (2)–(7) with particular reference to paragraphs (5) and (6). The said paragraphs read as follows:

“(2) The first defendant is the President of the Republic of Ghana and is being sued as a person whose conduct is violating the Constitution, 1992 of Ghana.
(3) The second defendant is the Attorney-General and the principal legal adviser to the government who is being sued as the person against whom all civil proceedings affecting the State shall be instituted.
(4) The third, fourth and fifth defendants are private citizens of Ghana and members of the New Patriotic Party (a political party and a corporate body registered under the laws of Ghana) who are holding themselves out as officers or staff in the Office of the President of Ghana.
(5) After the first defendant assumed office as the President of Ghana, he purported to appoint the third, fourth and fifth defendants as chief of staff, presidential adviser for public affairs and national security adviser, respectively.
(6) The purported appointment by the first defendant of the third, fourth and fifth defendants as staff in the Office of the President were done without consultation with the Council of State as required by the Constitution and the laws of Ghana.
(7) The third, fourth and fifth defendants have since their illegal and unconstitutional appointments by the first defendant intentionally and deliberately held themselves out and acted as officers or staff in the Office of the President.”

(The emphasis is mine.)

It is clear from the above that the first defendant as the President of the Republic of Ghana is alleged to have violated the provisions of the law governing the appointment of some members of staff of his office. The question then is, what kind of law is the plaintiff complaining about, ie the alleged or the purported appointments? The answer to the above question posed, is in my judgment the Presidential Office Act, 1993 (Act 463). This Act is the creator of the various positions and other office holders of the President’s Office. Such staffers are not the creatures of the Constitution, 1992. Nowhere in the Constitution, 1992 is mention made of the positions allegedly held by the third, fourth and fifth defendants as stated in paragraphs (5) and (6) of the plaintiff’s statement of claim. The positions as mentioned in paragraphs (5) and (6) (supra) cannot be the subject matter of adjudication by invoking the original jurisdiction under article 2(1)(b) of the Constitution, 1992 on which the plaintiff is basing his claim.

I am of the respectful view, therefore, that the alleged violation of the provision of a statute such as Act 463 falls outside a provision of the Constitution, 1992. For an action to lie in this court under article 2(1)(b) of the Constitution, 1992 a specific provision of the Constitution, 1992 itself must be the subject for consideration. The enforcement and interpretation of Act 463 in this regard lies elsewhere and not in this court. Act 463 is not an extension of any provision of the Constitution, 1992 but a statute which deals with the Office of the President. Its provisions are not to be elevated to the status of a provision of the Constitution. In my judgment, therefore, this court lacks jurisdiction to entertain the plaintiff’s action.

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

With regard to the second defendant, the Attorney-General, I unfortunately have to part company with her. I am of the respectful view that at the time of filing his writ the plaintiff knew well that there was no Attorney-General at post. I am of the view that if there was, the plaintiff would have been content with suing the second defendant alone as the defendant instead of going against the first defendant also who was performing his executive functions. On the arguments put forward by my sister Akuffo JSC as to joinder of parties, the rules of court presume that the person sought to be joined must be known to exist as rightly argued by her. In the instant case, however, the post of the Attorney-General was vacant and no one had been put in place at the time the said writ was filed. He could not therefore be joined as a party. I think in this regard the haste with which the plaintiff issued out his writ ought not be disregarded. The writ ought to be struck out as having been prematurely issued. I hold in my judgment that the Attorney-General, who under the Constitution, 1992 is answerable in court for the executive acts of the first defendant, who had not been put in place at the time the plaintiff issued his writ is entitled to move for the writ to be set aside. In my view, it is impossible to join a non-existing personality.

With regard to the rest of the defendants, I associate myself with her views and ask myself, following the case of Ghana Bar Association v. Attorney-General [1995-96] 1 GLR 598, SC, what have the third, fourth and fifth defendants done or omitted to do to make them answerable in court under article 2(1)(b) of the Constitution, 1992? Article 2(1)(b) of the Constitution, 1992 reads:

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

The above quoted article presupposes that the person sued must have done or omitted to do something in contravention of a provision of the Constitution, 1992 which can provoke an action under 2(1)(b) of the Constitution, 1992. The obvious answer to the above question is that they have done nothing on the facts of this case. Admitting even that the facts allegedly made by the plaintiff are true, they did not appoint themselves as to make them answerable for the act of whoever appointed them. As pointed out in the able opinion of my sister Akuffo JSC they are the objects of the first defendant’s action.

Finally, the present undisputed position of the third defendant at the date when the submissions were made in this case was that he had already been sworn in as a Minister of State for Presidential Affairs, the fourth defendant as a minister of state responsible for media relations and the fifth defendant as security adviser. The above appointments are now matters of public notoriety and it also shows that none of these defendants, ie the third, fourth and fifth defendants holds any office under Act 463 as claimed by the plaintiff as specified in his statement of case.

In Barake v. Barake [1993-94] 1 GLR 635 at 664. Brobbey J (as he then was) had this to say:

“If we should provide any meaningful service to the people of this society wherein our courts operate, it is imperative that we in the courts muster sufficient courage to take cognisance of the happenings in our society and ensure that our judgments duly reflect facts of common notoriety. Facts so notorious that everyone in our society can be deemed to be aware of, can be said to be matters in respect of which judicial notice can be taken.”

On this score, I accept the argument that the case is now moot and no useful purpose will be served by going into the merits. On the present facts, the plaintiff has not been able to prove that the alleged appointments complained about have been made.

BAMFORD-ADDO JSC.

I agree.

ACQUAH JSC.

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

Following the victory of the New Patriotic Party (NPP) in the December 2000 Parliamentary and Presidential Elections, Mr JA Kufuor was sworn in as the President of the Republic on 7 January 2001. Not long thereafter, a number of persons were announced as assisting the President in the performance of his official duties. Three of such persons are Mr Jake Obetsebi-Lamptey, Miss Elizabeth Ohene and Mr Joshua Hamidu. Taking the view that the appointments of these persons were improper, Mr Martin Amidu filed the instant action at the Supreme Court, against Mr J A Kufuor as the first defendant, the Attorney-General as the second defendant, and Jake Obetsebi-Lamptey, Elizabeth Ohene and Joshua Hamidu as the third, fourth and fifth defendants, respectively, claiming:

“(1) A declaration that:
(i) On a true and proper interpretation of the Constitution, 1992 particularly articles 58(1) and (2), 91(1) and (2), 190 and 295 thereof, and sections 2, 3, 4 of the Presidential Office Act, 1993 (Act 463) the third, fourth and fifth defendants cannot be appointed by the President as staff of the presidential office without consultation with the Council of State.
(ii) The conduct of the first defendant President John Agyekum Kufuor, in appointing the third, fourth and fifth defendants as staff of the presidential office without consultation with the Council of State is inconsistent with and in contravention of the letter and spirit of the Constitution, 1992.
(iii) The conduct of the third, fourth and fifth defendants in holding themselves out and acting as officers or staff in the Office of the President is inconsistent with and in contravention of the Constitution, 1992.
(iv) Accordingly, all acts undertaken by the third, fourth and fifth defendants as officers or staff in the Office of the President are inconsistent with and in contravention of the Constitution, 1992 null, void and without effect whatsoever.
(2) Perpetual injunction restraining the first defendant President from appointing the third, fourth and fifth defendants as staff to the presidential office without consulting the Council of State.
(3) Perpetual injunction restraining the third, fourth and fifth defendants from continuing to hold themselves out and acting as officers or staff in the Office of the President.
(4) Such other orders or directives as the court may seem fit to give effect to the above declaration.”

At the time this writ was filed, Parliament had not yet approved the nomination of any person to the office of Attorney-General.

On 9 February 2001 after the Honourable Nana Akufo-Addo had been sworn into the office as the Attorney-General, he filed this motion seeking an order to set aside the writ and statement of case on grounds that:

(i) this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein;
(ii) that no cause of action is disclosed by the plaintiff’s writ and the statement of case; and
(iii) that the questions raised in the plaintiff’s action for determination are moot.

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

“(4) The plaintiff-respondent says that the President of Ghana is amenable to the jurisdiction of this court in the exercise of the executive authority conferred on him by the Constitution, 1992.
(5) The plaintiff-respondent says further that the purported appointment of the third, fourth and fifth defendants-applicants as Chief of Staff, Presidential Adviser on Public Affairs, and National Security Adviser, respectively by the first defendant-applicant without consultation with the Council of State cannot be said to be an exercise of the executive authority conferred on him by the Constitution, 1992.
(6) The plaintiff-respondent says in addition that a declaration or a declaration in the nature of quo warranto can be made by the court against the first defendant-applicant in this action in addition to an order of injunction, or mandamus pursuant to article 2 of the Constitution, 1992.
(7) The plaintiff-respondent contends that there are triable issues between the parties in this action.
(8) The plaintiff-respondent contends further that the mere subsequent approval by Parliament and appointment of the third and fourth defendants/applicants as Ministers of State on 6 February 2001 does not render this action moot.
(9) The plaintiff-respondent says that the second defendant-applicant was used only in a nominal capacity.
(10) The plaintiff-respondent says further that the fact that there was no substantive person appointed as the Attorney-General at the time the writ and statement of case were filed did not mean that no action could be commenced against the State in the name of the Attorney- General.
(11) The plaintiff-respondent maintains that the application to set aside the writ and statement of case has no merit whatsoever.”

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

He further contended that since the institution of this action, the third and fourth defendants have been nominated for ministerial positions, and that Parliament had approved the said nominations. Consequently, the plaintiff’s action is now moot and no more live for adjudication. He pointed out that at the time the writ was issued no one had been appointed to the office of the Attorney-General, and that since the personality of the office is important, the action cannot be entertained. He cited in support of his arguments cases like New Patriotic Party v. Rawlings [1993-94] 2 GLR 193, SC and J H Mensah v. Attorney-General [1996-97] SCGLR 320.

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

There is no doubt that the Constitution, 1992 prescribes a government consisting of three branches: the legislature, executive and the judiciary. Each playing a distinct role. Apart from these three branches of government, the Constitution, 1992 also establishes a number of offices, bodies and institutions. Now each of these branches of government, offices, bodies and institutions is, of course, subject to the Constitution, 1992 and is therefore required to operate within the powers and limits conferred on it by the Constitution. And in order to maintain the supremacy of the Constitution and to ensure that every individual organ of State, body or institution operates within the provisions of the Constitution, 1992 authority is given in article 2 thereof to any person who alleges that the conduct or omission of anybody or institution is in violation of a provision of the Constitution to seek a declaration to that effect in the Supreme Court.

Thus, so long as an individual, body, institution or organ of the government performs its functions in accordance with the relevant constitutional provisions and the law, the Supreme Court has no business or jurisdiction to interfere in the performance of its functions. But where it is alleged before the Supreme Court that any organ of government or an institution is acting in violation of a provision of the Constitution, 1992 the Supreme Court is duty bound by articles 2(1) and 130(1) of the Constitution, 1992 to exercise jurisdiction, unless the Constitution, 1992 has provided a specific remedy, like those of articles 33 and 99 of the Constitution, 1992 for dealing with that particular violation.

It follows therefore that no individual nor creature of the Constitution, 1992 is exempted from the enforcement provision of article 2 thereof. No one is above the law. And no action of any individual or institution under the Constitution, 1992 is immune from judicial scrutiny if the constitutionality of such an action is challenged. Thus the doctrine of the political question found mainly in the Unite States constitutional jurisprudence by which the courts refuse to assume jurisdiction in certain disputes because the subject matter of those disputes are alleged to be “textually committed” to that institution, is inapplicable in our constitutional law because of the power granted to any person in article 2 of our Constitution, 1992 to challenge the constitutionality of any action or omission of an individual or institution. For under the Constitution, 1992 even if the body in question is independent from any other authority, the courts can still assume jurisdiction in disputes alleging that that institution is acting in violation of the Constitution, 1992 because article 295(8) provides:

“(8) No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.”

(The emphasis is mine.)

Thus in J H Mensah v. Attorney-General (supra) at 368, (supra) it was explained:

“... if by the political question doctrine, it is meant that where the Constitution allocates power or function to an authority, and that authority exercises that power or function within the parameters of that provision and the Constitution as a whole, a court has no jurisdiction to interfere with the exercise of that function, then I entirely agree that the doctrine applies in our Constitutional jurisprudence. For this is what is implied in the concept of the separation of powers. But if by the doctrine, it is meant that even where the authority exercises that power in violation of that constitutional provision, a court has no jurisdiction to interfere because it is the Constitution which allocated that power to that authority, then I emphatically disagree.
For two reasons: First, articles 2(1) and 130(1) of the Constitution, 1992 empower this Supreme Court to declare null and void not only any enactment but also any act of omission of any person which is inconsistent or in contravention of the Constitution, Secondly, if even the power or function is entrusted exclusively to an authority ... and in the exercise of that function the authority is subject to no direction or control of anybody, article 295(8) of the 1992 Constitution still empowers the Ghanaian courts to enquire into whether that authority is exercising that function in accordance with the Constitution.”

(The emphasis is mine.)

Consequently, I hold that this court has jurisdiction under articles 2(1) and 130(1) of the Constitution, 1992 in respect of suits challenging the constitutionality of an executive action of the President. As to whether the President should personally be made a defendant to such an action is another matter depending on the scope of the immunity from legal action granted to the President while in office.

Generally speaking, the head of state, in most jurisdictions, is granted absolute immunity from legal proceedings in any civil or criminal actions while in office. But the head of state’s immunity from legal proceedings in respect of actions arising from the performance of his official duties while in office, raises an interesting problem.

A head of state, is certainly the first citizen of every state, and as Justice William Douglas said said in Youngstown Street and Tube Co v. Sawyer, 343 US 579 at 633 (1952).

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

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

In the United States, the Supreme Court’s first significant venture into the area of executive immunity came in the aftermath of the civil war. In Mississippi v. Johnson, 4 Wall 475 (1867) the court was asked to enjoin the President from executing laws passed by Congress on the grounds that the laws were unconstitutional. The court unanimously held that the President was immune from such suits.

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

“(2) No civil proceedings in which relief is claimed in respect of anything done or omitted to be done shall be instituted or continued against the President while he hold office or against any person while he is exercising the functions of the office of President.”

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

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

(The emphasis is mine.)

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

“43. Any person holding the office of the President may not be used in any civil proceedings or charged for a crime, save where such proceedings concern an act done in his official capacity as President ...”

(The emphasis is mine.)

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

“(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done in the performance of his functions, under this Constitution or any other law.
(5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.”

These two provisions are not new in our constitutional jurisprudence. The Constitution, 1979 reproduced them in article 44(9) and (10) thereof while the Constitution, 1969 reproduced them with some modifications in its article 36(6) and (7).

Now article 57(5) of the Constitution, 1992 bars the institution of civil and criminal actions against the President while in office. Such actions may be instituted within three years of the President leaving office: see article 57(6) of the Constitution, 1992. Article 57(4) of the Constitution, 1992 deals with legal actions against the President in the performance of his duties while in office. The clause deals with three matters: first, the provisions of article 2 of the Constitution, 1992; secondly, the operations of the prerogative writs; and finally, immunity from legal proceedings subject to actions falling under article 2 of the Constitution, 1992 and those of the prerogative writs.

As earlier explained, article 2 of the Constitution, 1992 empowers any person who believes that a provision of the Constitution, 1992 is being or has been breached to seek the relevant declaration from the Supreme Court. Article 2(3) of the Constitution, 1992 directs any individual or institution in respect of whom the Supreme Court gives a direction, to obey and carry out the terms of the order or direction. And if the order or direction is to the President or Vice-President, then article 2(4) of the Constitution, 1992 provides that failure on his part to comply with such an order constitutes a high crime under the Constitution, 1992 and a ground for his removal from office. It stands to reason therefore that for any such order or directive to be meaningful and satisfy the requirements of the audi alteram partem principle, the President or Vice President must have an opportunity in the said suit to be heard.

The President’s immunity is also subject to the operation of the prerogative writs. These are actions for habeas corpus and orders of mandamus, certiorari, prohibitions and so on, directed against the President in the performance of his official functions. Apart from actions under article 2 of the Constitution, 1992 and those seeking prerogative orders the President has immunity from legal proceedings in the performance of his functions under the Constitution, 1992.

But it is important to emphasise that the grant of such immunity to the President does not mean that legal proceedings cannot be instituted for relief arising from any damage, harm or otherwise caused to an individual in the exercise of the executive authority of the President. In the event of such situations, actions may be instituted against the Attorney-General, who as provided in article 88(5) of the Constitution, 1992:

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

What the immunity in article 57(4) of the Constitution, 1992 does is to prevent the institution of such actions against the President personally. Article 57(4) of the Constitution, 1992 does not and cannot, under a regime of the rule of law, forbid legal actions challenging any conduct or omission of the executive arm of the State.

Now, the scope of article 57(4) of the Constitution, 1992 fell for determination in New Patriotic Party v. Rawlings (supra) wherein the President was personally sued on his nominations for district chief executives of the district assemblies. On the issue whether under article 57(4) of the Constitution, 1992 the President could personally be made a defendant, Amua-Sekyi and Aikin JJSC held that article 57(4) of the Constitution, 1992 granted the President qualified immunity and that he can be sued personally in respect of actions under article 2 of the Constitution, 1992 and those seeking prerogative orders. Abban JSC (as he then was) and Bamford-Addo JSC were positive that the President could not be personally sued and that in all such actions, the Attorney-General should be the proper defendant. Ampiah JSC on the other hand expressed his view thus at 219:

“Article 57(4) of the Constitution, 1992 which exempts the President from being brought before the court personally for acts done in the exercise of his functions under the Constitution, 1992 excludes actions brought under article 2 of the Constitution, 1992 and also proceedings involving the prerogative writs. Any person who alleges that there has been executive, legislative or judicial act which is inconsistent with or in contravention of the provisions of the Constitution may bring an action against any person (including the President) who is alleged to have done the act or authorised the doing of that act. That action could be against that person alone or jointly with the Attorney-General.”

(The emphasis is mine.)

As said earlier on, article 57(4) of the Constitution, 1992 is a reproduction, word by word, of article 44(9) of the Constitution, 1979 of Ghana. Now the rationale for granting to the President, qualified and not absolute immunity from proceedings arising in connection with the performance of his official duties, was clearly and unambiguously articulated at paragraph 122 of the 1978 Memorandum to the 1979 Constitution in the following words:

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

(The emphasis is mine.)

Hence the subjection of the President’s immunity to the enforcement actions in article 2 of the Constitution, 1992. The language of article 57(4) of the Constitution, 1992 is so clear that I cannot bring myself to agree with my brethren who hold that the President cannot be sued personally in actions under article 2 of the Constitution, 1992 and those of the prerogative writs.

But what is meant or implied by “suing the President personally?” Certainly not by using the personal name of the President, as is done in this case, but by naming the presidency as the defendant. Like, “His Excellency, The President of the Republic of Ghana (Mr JA Kufuor).” For so long as he is in office, he is entitled to be addressed properly anywhere he is or mentioned.

The next objection of the learned Attorney-General is that the plaintiff’s action is moot with the approval by Parliament of the third and fourth defendants as ministers. As defined in Black’s Law Dictionary, 6th ed, an action is generally considered moot when it no longer presents a justiceable controversy because issues involved have become academic or dead. This may happen when the matter in dispute has either been resolved already and hence no need for judicial intervention or events happening thereafter have rendered the issue no longer live. In either situation, unless the issue is a recurring one and likely to be raised again between the parties, the courts would not entertain such a dead issue. Let me illustrate ,with two American cases. First, the case of De Funis v. Odegaard, 416 US 312 (1974). Rejected for admission to the University of Washington Law School, Marco De Funis brought a personal suit against the school, alleging that it had engaged in reverse discrimination, that it had denied him a place, but accepted statistically less qualified minority students. In 1971 a trial court found merit in his claim and ordered that the university admit him.

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

“Because (De Funis) will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. III of the Constitution, consider the substantive constitutional issues tendered by the parties.”

In Roe v. Wade, 410 US 113 (1973) on the other hand, the court legalised abortions performed during the first two trimesters of pregnancy. Norma McCorvey, also known as Roe, was pregnant when she filed a class action challenging the constitutionality of the Texas criminal abortion law in 1970.

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

In Ghana, this court in J H Mensah v. Attorney-General (supra), relying on United States v. Concentrated Phosphate Exp Assn, 393 US 199 (1968), and United States v. W T Grant and Co, 345 US 629 (1953) held that if the question though moot, was certainly not likely to recur, the courts would not waste their time to determine dead questions and issues. And that for the court to decline deciding a moot question it must be established that subsequent events had made it absolutely clear that the alleged wrong behaviour could not reasonably be expected to occur. I still hold that this holding represents the correct statement of the law.

In the instant case, does the approval of Parliament, render the plaintiff’s action moot or pointless for adjudication? From his reliefs and statement of case the gravamen of the plaintiff’s case is that the alleged appointment of the third, fourth and fifth defendants to the offices of Chief of Staff, Presidential Adviser for Public Affairs and National Security Adviser, respectively, without consulting the Council of State was contrary to the Constitution, 1992, and the Presidential Office Act, 1993 (Act 463). Thus in paragraphs (5) and (6) of his statement of case the plaintiff pleaded:

“(5) After the first defendant assumed office as the President of Ghana he purported to appoint the third, fourth and fifth defendants as Chief of Staff, Presidential Adviser for Public Affairs, and National Security Adviser respectively.
(6) The purported appointment by the first defendant of the third, fourth and fifth defendants as staff in the Office of the President were done without consultation with the Council of State as required by the Constitution and laws of Ghana.”

Now neither does Act 463 nor the Constitution, 1992 create any any office called Chief of Staff, Presidential Adviser for Public Affairs, and National Security Adviser, to require the Council of State’s consultation in the appointment of persons to them. Sections 3 and 4 of Act 463 provide:

“3. (1) The Presidential Office shall be made up of—
(a) persons appointed as presidential staff under this Act one of whom shall be appointed as head of the Office; and
(b) such other public officers as may be seconded or transferred to the office.
(2) Subject to section 2 members of the Office shall be assigned such duties as the President may determine.
4. (1) The President shall, acting in consultation with the Council of State appoint such persons as he considers necessary to hold office as presidential staff in the Office.
(2) The number of persons that may be appointed under subsection (1) of this section and the grade of the officers shall be determined by the President.”

It is clear from the above provisions that it is the President’s prerogative to determine the number and designation of persons he desires to appoint as his staffers, and that those appointed under section 4(1) of Act 463 are required to be so appointed in consultation with the Council of State. Thus the alleged offices of the third, fourth and fifth defendants must be shown to be offices coming under section 4(1) of Act 463 to support any allegation that such appointments require the Council of State’s consultation.

But with the parliamentary approval of the offices of the third and fourth defendants, is the Council of State’s consultation still needed to perfect these appointments? If the answer to the question is in the negative, as it certainly is, what then is left in the plaintiff’s action worthy of adjudication? Which provision in the Constitution, 1992 and Act 463 requires the President to consult the Council of State in nominating people for ministerial positions? Indeed, if the plaintiff had not hurriedly rushed to issue this writ, he would have realised that the offices he was complaining of were not contemplated by the President to be offices under Act 463, and consequently did not require consultation with the Council of State. The plaintiff thought the offices were those under section 4(1) of Act 463, but events thereafter have shown that they are not. In respect of the fifth defendant there is similarly nothing to show that it is an office under Act 463.

I think it is important to appreciate that it is not every appointment by the President that requires the consent of the Council of State, or Parliament. For example, appointments under section 7 of Act 463 do not need the consent nor consultation of any body. Whoever therefore alleges that a particular presidential appointment requires the consent of another body must dearly demonstrate the relevant law and regulation showing that that particular appointment indeed requires that approval.

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

ATUGUBA JSC.

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

As to the first contention that “this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein”, the same is partially well founded. The first defendant is the President of Ghana and it was the contention of the Honourable Attorney-General, Nana Akufo-Addo that he enjoys immunity from suit or court proceedings generally under article 57(4) of the Constitution, 1992 which provides:

“(4) Without prejudice to the provisions of article 2 of the Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or I omitted to be done, or purported to be done, of purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.”

(The emphasis is mine).

The proper construction of this provision is quite a vexed question. I must confess that if it were open to me so to hold, I would have eagerly held that the President could be sued in the performance or purported performance of his functions under the Constitution, 1992 since that would advance constitutionalism, the rule of law and the negation of the bemoaned days of Re Akoto [1961] GLR (PtII) 523, SC. But as was aptly put by Smith J in Balogun v. Edusei (1958) 3 WALR 547 at 553:

“The Courts of Justice exist to fulfil, not to destroy the law ...”

It does not appear that there is any real controversy over the fact that article 57(4) of the Constitution, 1992 does confer some immunity from court process on the President, but it is the extent of it, that is said to fall short of actions under article 2 of the Constitution, 1992 and the prerogative writs. Thus in Bilson v. Apaloo [1981] GLR 24 at 54, SC Anin JSC delivering the judgment of himself and that of Sowah and Charles Crabbe JJSC said:

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

(The emphasis is mine.)

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

This contention has the support of the well-settled principle of construction as stated by James LJ in Ex parte Campbell; Re Cathcart (1870) LR 5 Ch App 703 at 706 that:

“Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them.”

(The emphasis is mine.)

See also Attorney-General of New Zealand v. Ortiz [1983] 2 All ER 93, HL.

It is trite law, as laid down in Tuffuor v. Attorney-General [1980] GLR 637 CA; Sam v. Attorney-General (No 2) [2000] SCGLR 305 and others that a written national Constitution ought not to be construed according to the ordinary rules of construction of statutes. But that does not mean that they can be excluded altogether from the construction of such a Constitution. Sowah JSC (as he then was), the chief protagonist of this principle in the Tuffuor case (supra), later stated in Republic v. High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511, SC that whether these ordinary rules of construction do or do not apply to the construction of the Constitution depends on the particular circumstances of each case. After all these rules of construction are part of the common law which is part of the existing law under article 11(5) of the Constitution, 1992 and are therein allowed to operate unless they are inconsistent with the Constitution, 1992. Accordingly, they have been applied, sometimes extensively in constitutional cases: see Kuenyehia v. Archer [1993-94] 2 GLR 525, SC and New Patrotic Party v. Attorney-General [1993-94] 2 GLR 35, SC.

However, the principle about the prior construction of similar statutory words supra, is a rebuttable presumption. In Director of Public Prosecutions v. Luft [1976] 3 WLR 32 at 41, HL the House of Lords held that a long standing wrong construction of the words of a statute in pari materia is no bar to its correction.

If the President can be sued in respect of the performance of his functions, actual or purported, under the Constitution, 1992 such action can be brought under articles 2 and 130 of the Constitution, 1992. But if that is so then it would mean that the immunity from suit granted to the President under article 57(4) of the Constitution, 1992 in respect of the performance of his functions, actual or purported, has been negated completely. That would mean that those provisions purporting to confer the said immunity on him have been rendered meaningless or useless. It is however a settled rule of construction that all statutory provisions ought, if possible, to be given effect, whether those provisions are in the same statute or in different statutes, which conflict, and may therefore imply a repeal of the earlier one by the later statute. I reiterated this principle in National Media Commission v. Attorney-General [1999-2000] 2 GLR 581, SC. In Pattinson v. Finningley Internal Drainage Board [1970] 2 WLR 622 at 624 Bean J, quoted the following passage from Maxwell on the Interpretation of Statutes, (12th ed, 1969) with approval:

“A later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favoured by the courts. ‘Forasmuch,’ said Coke, ‘as Acts of Parliament are established with such gravity, wisdom and universal consent of the whole realm for the advancement of the commonwealth, they ought not by any constrained construction out of’ the general and ambiguous words ... to be abrogated.’”

(The emphasis is mine.)

This is particularly true of a written national Constitution. As my learned and respected brother Acquah JSC aptly put it in National Media Commission v. Attorney-General (supra) at 590:

“But to begin with, it is important to remind ourselves that we are dealing with our national Constitution, 1992 not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers in them. It gives certain rights to persons as well as bodies of persons, and imposes obligations as much as it confers privileges and powers. All these duties, obligations, powers, privileges and rights must be exercised and enforced not only in accordance with the letter, but also with the spirit of the Constitution, 1992. Accordingly, in interpreting the Constitution, 1992 care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards accomplishing the intended goal. Each provision must therefore be capable of operating without coming into conflict with any other.”

(The emphasis is mine.)

Applying this salutary principle, I would hold that the way to avoid a conflict between the provisions conferring immunity from suit on the President and article 2 of the Constitution, 1992 is to hold that the President’s immunity shields him from suit in respect of the performance of his functions, actual or purported under the Constitution, 1992 but his acts in those respects can still be challenged by suing the Attorney-General under article 88, particularly under clause (5) thereof, which provides:

“(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

This is because the acts of the President in the discharge of his constitutional functions are acts of the government or the State. This, mutatis mutundis, is substantially what this court decided in Republic v. High Court, Accra, Ex parte Attorney-General (Delta Food case) [1998-99] SCGLR 583. After all, such an action would still be governed by article 2 of the Constitution, 1992. This is further buttressed by the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana. At page 3 the committee stated in paragraph 3 thereof as follows:

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

(The emphasis is mine.)

Then at page 22, para 34, the committee clearly and unambiguously stated as follows:

“34. The Presidential immunity from legal proceedings provided in Article 44 clauses 9-11 of the 1979 Constitution of Ghana is meant to preserve the dignity of the office of the President, but should not preclude proceedings against the state in appropriate case. The proper procedure in such cases is to institute proceedings against the Attorney-General, as the official representative of the Republic.”

It is quite clear therefore that the committee, though sub silentio, endorsed the construction of the President’s immunity from suit as expounded by Archer, Sowah and Apaloo JJA (as they then were) in Sallah v. Attorney-General (1970) 2 G and G 493 at 493, 502 and 507, respectively. They had to construe articles 36(7) and (8) and 47 of the Constitution, 1969 the provisions of which save as the substitution of article 2 for article 47, are substantially the same as those under the Constitutions, 1979 and 1992. In my view, the substitution of article 2 for article 47 was to make it clear that where actions cannot lie against the President, they may lie against the State under that article. Indeed, since the same acts of the President can be challenged under article 2 of the Constitution, 1992 against the State rather than against the President, it is difficult to think that article 2 suffers any real prejudice by reason of the presidential immunity from suit.

This court has often upheld the clear intention of the framers of the Constitution, 1992 wherever revealed by the committee of experts’ report on the matter. Indeed, resorting to the appropriate passages of the said report, this court departed from the requirement of locus standi for Ghanaian citizens for the purposes of constitutional actions under article 2 of the Constitution, 1992 even though previous decisions, inclusive of this court’s own decisions and some earlier dicta, required the contrary: see Bilson v. Attorney-General [1993-94] 1 GLR 104, SC. However, compare New Patriotic Party v. Attorney-General (Ciba Case) [1996-97] SCGLR 796 and Sam v. Attorney-General (supra). Indeed, it is refreshing to note that Bilson v. Apaloo (supra) relied on by the plaintiff, was before that, one of those decisions which required locus standi generally for actions under the Constitution, 1992.

It is true that in Letang v. Cooper [1964] 3 WLR 573 at 578, CA Lord Denning MR cautioned against too much adherence to committees’ memoranda because the legislature might as well use language that departs from their recommendations; but as shown supra, the committee of experts’ recommendations on the presidential immunities, referred to the ipsissima verba, provisions of the Constitution, 1979.

I would therefore hold that the plaintiff’s action against the President in this case flies in the face of his constitutional immunity from suit and cannot be entertained. I, however, refrain from saying that in other proceedings against the State, an order cannot be made against the President. After all the Constitution, 1992 omnia potest. It is for these reasons that I support the majority decision of this court in New Patriotic Party v. Rawlings [1993-94] 2 GLR 193, SC despite the views of Adade JSC and others in New Patriotic v. Attorney-General (supra) which tend to support the view that the President can be sued under article 2 of the Constitution, 1992.

As to whether the action properly lies against third and fourth defendants, I doubt whether the decision in Ghana Bar Association v. Attorney-General [1995-96] 1 GLR 598, SC is not open to divergent views. A person wrongly appointed to an office and acting in it can be sued: see Ghann v. Tamakloe (1957) 2 WALR 353, Adegbenro v. Akintola [1963] 3 WLR 63, PC and Ningkan v. Government of Malaysia [1970] AC 379, PC. I would therefore not say that they have been wrongly sued.

As to whether the action is now moot because the appointments impugned have, as at now been regularly made, it was held by this court in J H Mensah v. Attorney-General [1996-97] SCGLR 320 that if the matter could still arise in future then the action is not moot. Similarly in Merricks v. Nott-Bower [1964] 2 WLR 702 at 707, CA Denning MR said:

“If a real question is involved, which is not merely theoretical, and on which the court’s decision gives practical guidance, then the court in its discretion can grant a declaration.”

(The emphasis is mine.)

In Eastham v. New Castle United Football Club [1963] 3 WLR 574 even though the transfers of the policemen who were the plaintiffs had long taken place and would not be reversed, it was held that the action would still serve a useful purpose to the various police authorities as to the scope of their powers. Similarly there is no indication that the President has exhaustively made all his necessary appointments. In fact some are still going on. A declaration on the issue could still be useful to the President and other relevant officials, like the Council of State. In Tuffuor v. Attorney-General (supra) it was held that since a citizen has the duty to defend the Constitution, he can bring an action, if there is a controversy), for an interpretation simpliciter, even though no further relief be sought by him. Indeed, since, as was held in the said Tuffuor case (supra) a Constitution is a living organic document which mirrors the experiences of its people in the past and their aspirations for the future, then interest in a constitutional matter would be a recurrent affair and therefore not moot; especially as similar appointments would fall to be made virtually every four years. It has also been said in Okorie alias Ozuzu v. The Republic [1974] 2 GLR 272, CA that the question whether a breach of the Constitution causes some injury such as miscarriage of justice is irrelevant since the mere breach of the Constitution carries with it the stigma of illegality, impropriety, etc. It seems to me therefore that the upholding of the supremacy of the Constitution is itself of great constitutional utility. This action is therefore not moot. The declaratory jurisdiction of this court is not discretionary or the same as a declaratory action at common law as Bilson v. Apaloo (supra) would seem to conceive it to be.

However, the ground on which I concur in upholding the preliminary objection, generally, is that the plaintiff’s action arises under certain clauses of the Constitution, 1992 as well as under ordinary legislation, namely the Presidential Office Act, 1993 (Act 463) Section 4(1) thereof provides:

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

(The emphasis is mine.)

On the other hand article 70(1) of the Constitution, 1992 provides:

“70. (1) The President shall, acting in consultation with the Council of State, appoint—
(e) the holders of such other offices as may be prescribed by this Constitution or by any other law not inconsistent with this Constitution.”

Article 91 of the Constitution, 1992 similarly provides:

“91. (1) The Council of State shall consider and advise the President or any other authority in respect of any appointment which is required by this Constitution or any other law to be made in accordance with the advice of, or in consultation with, the Council of State.”

(The emphasis is mine.)

By virtue of these provisions, I think that a default in an appointment under section 4(1) of Act 463 can be challenged, as here, under these provisions in this court. In New Patriotic Party v. National Democratic Congress [2000] SCGLR 461. I concurred in dismissing the plaintiffs action in that case because it was one that could be instituted either under article 94(3)(b) of the Constitution, 1992 or under section 9 of the Representation of the People Law, 1992 (PNDCL 284). In such a situation since the action could have been instituted in the High Court which, apart from the fundamental human rights, can enforce ordinary legislation or the common law, the plaintiff’s action, straightaway in this court, without first resorting to the High Court violated paragraph (6) of the Practice Direction of the Supreme Court [1981] GLR 1. The plaintiff’s action in this case suffers, in consimili casu with the New Patriotic Party v. National Democratic Congress case (supra) the defect of violating the said Practice Direction.

No compelling reasons, or at all, have been given for this violation. Consequently, I have no grounds for waiving non-compliance with the said Practice Direction under rule 79 of the Supreme Court Rules, 1996 (CI 16).

I do not consider it necessary to deal with the other submissions. I would therefore also strike out the plaintiff’s action for want of jurisdiction.

AKUFFO JSC.

By a writ issued by the plaintiff-respondent (herein after referred to as the plaintiff) against the defendants-applicants (hereinafter referred to as the defendants) the plaintiff, pursuant to the powers of this court under article 2 of the Constitution, 1992 seeks the following declarations:

“(1) That on a true and proper interpretation of articles 58(1) and (2), 190 and 295 of the Constitution, 1992 and sections 2, 3 and 4 of the Presidential Office Act, 1993 (Act 463) the third, fourth and fifth defendants cannot be appointed by the President as staff of the Office of the President without consultation with the Council of State.
(2) That the conduct of the first defendant in appointing the above-mentioned defendants as staff of the presidential office without prior consultation with the Council of State is inconsistent with and in contravention of the letter and spirit of the Constitution.
(3) That the conduct of the third, fourth and fifth defendants in holding themselves out and acting as staff of the Office of the President is inconsistent with and in contravention of the Constitution.
(4) That all acts undertaken by the said three defendants are void and of no effect.”

In this application, the Attorney-General, the second defendant in the said writ, prays this court to set aside the plaintiff’s writ or strike out the action, on the ground that this court lacks jurisdiction to entertain the plaintiff’s action, because:

(1) the writ and statement of claim disclose no cause of action based on article 2(1) of the Constitution, 1992; and

(2) the questions raised for determination by the plaintiff’s action are moot.

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

“(1) The first defendant, as the President of the Republic of Ghana is amenable to the jurisdiction of the court in the exercise of the executive authority conferred on him by the Constitution, 1992.
(2) The appointment of the three officials, by the first defendant, without prior consultation with the Council of State cannot be said to be a constitutionally sanctioned exercise of executive authority.
(3) Under article 2 of the Constitution, 1992 the court has the power to entertain his action and to make declarations in the nature of quo warranto, as well as injunction or mandamus.
(4) There are triable issues raised by the plaintiff’s action and moreover, the matter had not been rendered moot merely by the subsequent appointment of the third and fourth defendants as Ministers of State.
(5) Since the second defendant was sued in a nominal capacity, the fact that as at the date of the filing of the writ there was no substantive Attorney-General does not mean that no action could be commenced against the State in the name of the Attorney-General.”

During the hearing of the application, the Attorney-General, relying on the authority of New Patriotic Party v. Rawlings [1993-94] 2 GLR 193, SC and J H Mensah v. Attorney-General [1996-97] SCGLR 320 submitted that:

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

(2) By virtue of article 57(4) of the Constitution, 1992, executive actions by the President cannot be questioned in this manner.

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

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

The plaintiff, on the other hand, contended that the precedents cited by the Attorney-General rather supported his case since article 57(4) of the Constitution, 1992 is subjected to article 2 of the Constitution, 1992 and the prerogative writs. Furthermore, according to the plaintiff, under article 2 of the Constitution, 1992 this court has the power to make whatever orders it sees fit, therefore, in matters of this nature, the proper approach must be to take each writ on a case-by-case basis. He further contended that the decision in J H Mensah v. Attorney-General (supra) did not operate to suspend the operation of the Constitution, 1992 nor did it oust the possibility of making the Attorney-General a nominal defendant pursuant to article 88(5) of the Constitution, 1992. On the issue of mootness, the plaintiff argued that the cause of his action is still alive and must be determined. He, therefore, submitted that the writ was properly issued against the defendants and that it does disclose triable issues. Before tackling the issues that properly arise from this application, I wish to touch upon the submission that, since the writ predates the appointment of a substantive Attorney-General, it is defective. In J H Mensah v. Attorney-General (supra) the question arose as to whether or not an action may be instituted against the Attorney-General when Parliament has not previously given its approval to any person to act or hold himself out as such. This court held that, because it is stipulated under article 88(1) of the Constitution, 1992 that the Attorney-General shall be a Minister of State and the principal legal adviser to the government, the individual personality of the office holder is paramount. I see no reason to depart from this conclusion.

Does it then follow that, for this reason alone, the writ herein is so incurably bad that it must be struck out? I do not think so. Part IV of the Supreme Court Rules, 1996 (CI 16) spells out the procedure applicable to actions brought under article 2 of the Constitution, 1992 to invoke the original jurisdiction of the Supreme Court. In rule 45(3) and (4) of CI 16, it is provided as follows:

“(3) A copy of the writ shall be served on each of the parties mentioned in the writ as directly affected who shall be considered as the defendants and on the Attorney-General if not named specifically as a defendant.
(4) The Court may, at any time on its own motion or on the application of a party, order that any other person shall be made a party to the action in addition to or in substitution for any other party.”

In my opinion, the clear intent of these rules of procedure is to assure that, in all actions to invoke the original jurisdiction of the court, effect is duly given to article 88(5) of the Constitution, 1992 first, by requiring the service of a copy of the writ on the Attorney- General, and secondly, by empowering the court to order the addition or substitution of any other person, which “any other person” presumably includes the Attorney-General. The rationale for these rules is quite obvious; actions to invoke the original jurisdiction of this court are presumed to be of crucial importance to the enforcement of the supreme law of the land, the Constitution, 1992 and it is, therefore, in the interest of the public that such actions not be defeated merely by the non-joinder or misjoinder of any party, including the Attorney-General. Indeed, even in ordinary civil actions before the High Court, rule 6 of the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129) affords litigants and interested persons a similar safeguard and empowers the High Court, either on its own motion, or on application, to order the striking out of a party or the joinder of another person in the suit, so as to ensure that the matters in issue are thoroughly determined and finally disposed of.

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

(a) whether or not the writ discloses any cause of action properly arising under article 2(1) of the Constitution, 1992. And if so; and

(b) whether or not the plaintiff’s action is in any case moot?

In dealing with issue (a), I will first consider the question of whether the first, third, fourth and fifth defendants have been properly brought before this court. I will then consider whether, in the circumstances of this case, it was proper for the plaintiff to have brought his action under article 2(1) of the Constitution, 1992.

It is presumed that every word contained in the Constitution, 1992 was placed therein after the utmost deliberation. Consequently, in the construction and enforcement of the Constitution, 1992, it is necessary to read and apply each provision in such a manner as would not do injury to any provision merely for the sake of upholding another provision therein. Therefore, within the context of this matter, we need to consider the cumulative effect of articles 2(1), 57(1) and (4) and 88 of the Constitution, 1992. Article 57(1) and (4) of the Constitution, 1992 states that:

“57. (1) There shall be a President of the Republic of Ghana who shall be the Head of State and Head of Government and Commander-in-Chief of the Armed Forces of Ghana ...”
(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.”

(The emphasis is mine.)

And article 88(5) of the Constitution, 1992 stipulates that:

“(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

(The emphasis is mine.)

Under article 2(1)(b) of the Constitution, 1992 a person who alleges that any act or omission of any person is inconsistent with or in contravention of a provision of the Constitution, 1992 may bring an action in this court for a declaration to that effect. Therefore, since the plaintiff issued his writ pursuant to article 2 of the Constitution, 1992, does that mean that it was proper for him to have made the President a defendant therein? The answer is “no.” In the case of New Patriotic Party v. Rawlings (supra), it was held by a majority of this court, that, although the President has procedural immunity from civil proceedings, his official actions may be challenged through prerogative writs or actions brought pursuant to article 2 of the Constitution, 1992.

However, the Attorney-General would be the only proper defendant in any such challenge. That was a case wherein the New Patriotic Party sued the then President of Ghana, together with the Attorney-General, for a declaration that the appointment of district secretaries by the said President was inconsistent with and in contravention of the Constitution, 1992. The then Attorney-General raised the issue of whether or not, under the Constitution, 1992 the President is personally amenable to suit and, whereas Amua-Sekyi and Aikins JJSC were of the opinion that he is, Abban JSC (as he then was), Bamford-Addo and Ampiah JJSC were of the contrary view. His Lordship Abban JSC (as he then was) expressed himself thus at 207-208:

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

(The emphasis is partly mine) And at 210 his Lordship continued as follows:

“There is therefore no doubt that the official acts of the President can be questioned in the Supreme Court under article 2 of the Constitution, 1992 and also through the use of the prerogative writs. But as I have already stated, in such cases, as in the present one, only the Attorney-General should appear in the suit as the defendant for and on behalf of the government or the state for that matter ...”

In the writ issued by the plaintiff herein, the conduct at the root of the complaint is the action of the President in making staff appointments to the Office of the President. If this is not an act done or purported to be done by the President officially and in his capacity as President, then I cannot imagine what else could be. Therefore, to borrow the words of my learned sister Bamford-Addo JSC, in the above-mentioned New Patriotic Party case (supra), if the President, according to article 57, is the head of state and has acted in his official capacity in appointing or purporting to appoint the third, fourth and fifth defendants, which action is alleged to be unconstitutional, then, it is not the head of state himself who should be sued, but the Attorney-General, as dictated by article 88(5) of the Constitution, 1992. That this was the intent of the framers of the Constitution, 1992 is evidenced by paragraph 34 of the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana, wherein it is explained that:

“34. The Presidential immunity from legal proceedings provided in Article 44 clauses 9-11 of the 1979 Constitution of Ghana is meant to preserve the dignity of the office of the President, but should not preclude proceedings against the state in appropriate cases. The proper procedure in such cases is to institute proceedings against the Attorney-General, as the official representative of the Republic.”

Consequently, I have no hesitation in concluding that the President is not a proper party to the plaintiff’s suit and he must be struck out as a defendant. In arriving at this conclusion, I am not unmindful of the concern expressed by Amua-Sekyi JSC in the aforementioned New Patriotic Party case (supra), to the effect that since under article 2(4) of the Constitution, 1992 failure by the President to obey or carry out the terms of an order or direction addressed to him by the Supreme Court, in the exercise of its powers under article 2(2) of the Constitution, 1992 to issue consequential orders or directions, would constitute a ground for removal from office, to hold that the President cannot be made a party to an action under article 2 of the Constitution, 1992 would offend against the audi alteram partem rule. However, it is my view that the regime created by article 2 of the Constitution, 1992 constitutes an exception to this rule, since the mere existence of such a ground for removal would not automatically remove the President, for the Constitution, 1992 provides specific procedures for the removal of a President.

What about the propriety of the inclusion of the third, fourth and fifth defendants as parties to the suit? The plaintiff issued his writ because he claims that the appointment of the third, fourth and fifth defendants as staff in the Office of the President is unlawful and unconstitutional. Clearly, therefore, they have been included in the suit only because of their alleged appointments and not because of any unconstitutional acts they, themselves, may have committed. They did not appoint themselves and, as such therefore, what provision of the Constitution, 1992 has any of them contravened and what acts on their parts might we legitimately declare unconstitutional pursuant to article 2 of the Constitution, 1992 As was stated by Charles Hayfron-Benjamin JSC in the case of Ghana Bar Association v. Attorney-General [1995-96] 1 GLR 598 at 622, SC wherein the Ghana Bar Association, in a suit against the Attorney-General challenging the constitutionality of the appointment of Justice I K Abban to the office of Chief Justice, joined Justice Abban as the second defendant:

“At a glance, it is obvious that the second defendant—the object of the power conferred on the President—cannot be involved in this case. He has not committed any infraction with respect to the Constitution, 1992 and no action can be brought against him which can be founded on article 2 of the Constitution, 1992.”

The same may be said of the third, fourth and fifth defendants in the plaintiff’s suit; they are merely the objects of the President’s action. Therefore, their names must be struck out as defendants to the plaintiff’s writ. In view of the foregoing, assuming there is a proper cause of action raised by the plaintiff’s writ, the only proper defendant would be the Attorney-General.

However, there remains the question of whether or not the executive action complained of by the plaintiff may be subjected to judicial scrutiny by way of a writ under article 2 of the Constitution, 1992. There is no doubt that as already discussed above, executive action is subject to judicial scrutiny, provided the writ is one properly issued pursuant to article 2 of the Constitution, 1992 or is a prerogative writ. In Ghana, the Constitution, 1992 is the supreme law and every act performed by the President in the exercise of his executive authority, must be referable to the word or spirit of the Constitution, 1992 or a law properly existing under the Constitution, 1992. However, a writ, such as the plaintiff’s, issued under article 2(1)(b) of the Constitution, 1992 must necessarily show that the act complained of is in contravention of a provision of the Constitution, 1992.

Although there are several provisions in the Constitution, 1992 governing appointments into certain positions by the President, these do not include of staff appointments to the Office of the President. Rather, the latter appointments are governed by the Presidential Office Act, 1993 (Act 463). If it is alleged that any appointments are in breach of this legislation, there are other legal processes by which such appointments may be challenged and the proper course of action for the plaintiff is to pursue such processes, not to seek to enforce such legislation by way of a writ under article 2 of the Constitution, 1992.

Consequently, it is my view that, indeed, the plaintiff’s writ does not disclose a proper cause of action under article 2 of the Constitution, 1992 and must, therefore, be struck out. Hence I do not see the need to advert my mind to the issue of mootness.

LAMPTEY JSC.

I agree that the plaintiff’s writ and statement of case be struck out and the action be dismissed against all the five defendants. I wish however to express my opinion on some of the issues raised.

I must preface my opinion with the unambiguous statement that this court has no jurisdiction to hear and determine the plaint before it. I agree with and adopt the opinions expressed so clearly and succinctly by the majority of this court on the issue of jurisdiction. The action of the plaintiff cited Mr John Agyekum Kufuor as the first defendant. The address for service was stated as “Office of the President, State House Accra.” The plaintiff in providing the address of the first defendant referred and described the first defendant as “President of Ghana.” Since the plaintiff commenced the action relying on the power and right guaranteed to him, among others, on article 2(1)(a) and (b) of the Constitution, 1992, I reproduce in particular article 2(1)(b) as follows:

“2. (1) A person who alleges that—
(b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration ...”

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

“2. The first defendant is the President of Ghana and is being sued as person whose conduct is violating the Constitution of Ghana.”

Further and better particulars of the conduct of the first defendant were stated at paragraphs (5), (6) and (8). These are:

“(5) After the first defendant assumed office as the President of Ghana he purported to appoint the third, fourth and fifth defendants as Chief of Staff, Presidential Adviser for Public Affairs and National Security Adviser respectively.
(6) The purported appointment by the first defendant of the third, fourth and fifth defendants as staff in the Office of the President were done without consultation with the Council of State as required by the Constitution and laws of Ghana ...
(8) By virtue of the conduct of the defendants, state resources are being misappropriated and misapplied by the defendants without any constitutional authority whatsoever.”

In my view, the statement of case shows and establishes that the conduct complained of was the conduct of the President of Ghana. The action must not be mounted against Mr John Agyekum Kufuor. In my understanding of the Constitution, 1992 and the facts stated by the plaintiff, the proper and lawful party to sue is the President of Ghana and not John Agyekum Kufuor.

In further support and explanation of my view, I cite article 60(9) and (12) of the Constitution, 1992 as follows:

“(9) The Vice-President shall, before commencing to perform the functions of the President under clause (6) of this article, take and subscribe the oath set out in the Second Schedule to this Constitution in relation to the office of President ...
(12) The Speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of President.”

I must point out and draw attention to the fact that the Constitution, 1992 enjoined the Vice-President and the Speaker each to take and subscribe the respective oaths of their offices before they each assumed that office. The Constitution, 1992, art 60(9) and (12) imposed a legal obligation on the Vice-President and the Speaker to each take and subscribe the oath of a President before they each assumed office as President. My understanding of these constitutional provisions is that the Office of President is not personal to the holder for the time being in office. In my view, the President of Ghana is the person who at any point in time has taken and subscribed the oath of President. I find further support for my view in article 58(1) of the Constitution, 1992. This provision reads as follows:

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

The Constitution, 1992 in clear and plain language spelt out the functions and duties of the Vice-President in article 60(1) and of the Speaker in article 101 of the Constitution, 1992. Thus when the Speaker, acting legally and constitutionally as President of Ghana, is alleged to have violated and breached a provision of the Constitution, 1992 a plaintiff cannot sue the Speaker by his or her true name, or sue him or her as “Speaker” or as “acting President” because it would be wrong in law to sue in the name of the person for the time being occupying the high office of President. I agree with and accept the opinion that in cases of this nature, that is when the exercise of the executive authority and power is alleged to be unconstitutional, the proper and lawful party to sue is the Attorney-General. On this issue article 88(5) of the Constitution provides:

“(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

This provision clearly makes the Attorney-General the party to sue in civil proceedings against the President when he has exercised executive power of state.

The provision of article 57(5) of the Constitution, 1992 is in language following:

“(5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.”

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

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

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

“(7) In answer to paragraph (5) of the plaintiff’s statement of case, the third, fourth and fifth defendants aver that the first defendant exercising his executive authority called in aid the expertise of the third fourth and fifth defendants to assist him in the performance of his functions as advisers and spokesperson to the first defendant.
(9) In further answer to paragraph (6) of the plaintiff’s statement of case, the defendants aver that the plaintiff has not shown any evidence to indicate that the first defendant has appointed the third, fourth and fifth defendants as staff in the Office of the President.”

(The emphasis is mine.)

There can be no doubt that paragraph (9) of the defendants’ statement of case raised a serious issue, namely that the case put forward by the plaintiff was not supported or verified by further and better particulars or both. The defendants specifically disputed and denied the substance of the plaintiff’s case at paragraphs (6), (7) and (9) as follows:

“(6) The third, fourth and fifth defendants admit that they are citizens of Ghana and members of the New Patriotic Party but deny they are holding themselves out as staff in the Office of the President.
(7) In answer to paragraph (5) of the plaintiff’s statement of case, the third, fourth and fifth defendants aver that the first defendant exercising his executive authority called in aid the expertise of the third, fourth and fifth defendants to assist him in the performance of his functions as advisers and spokesperson to the first defendant.
(9) In further answer to paragraph (6) of the plaintiff’s statement of case the defendants over that the plaintiff has not shown any evidence to indicate that the first defendant has appointed the third, fourth and fifth defendants as staff in the Office of the President.”

(The emphasis is mine.)

The substance of the defendants’ case, as I understand it, is a complete and total denial of the plaintiff’s case. They have denied and challenged their appointments as staff in the Office of the President. In my view, there must be evidence from the plaintiff to establish and support his case. I do not find such material before the court.

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

The case of the plaintiff simply put is that the appointments were made and announced without the prior consultation with the Council of State. The conduct of the defendants breached and violated the Constitution, 1992. I note that the plaintiff did not cite article 70(1)(e) of the Constitution, 1992 to support his case. I find it relevant and helpful. Article 70(1)(e) of the Constitution, 1992 provides:

“70. (1) The President shall, acting in consultation with the Council of State, appoint—
...
(e) the holders of such other offices as may be prescribed by this Constitution or by any other law not inconsistent with this Constitution.”

(The emphasis is mine.)

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

I must now turn to Act 463 which provided the plaintiff the reason and genesis of his case. Section 4(1) of Act 463 provides as follows:

“4. (1) The President shall, acting in consultation with the Council of State appoint such persons as he considers necessary to hold office as presidential staff in the Office.” It is accepted by all the parties that as at the date of the writ and statement of case of the plaintiff a Council of State was not in being and existence. It therefore cannot be controverted that any purported appointments made pursuant to section 4(1) of Act 463 would be unlawful, that is the appointment(s) is or are in flagrant breach of Act 463. The case of the defendants, simply expressed, is that the appointments were in the capacities of “advisers and spokesperson”, respectively to the first defendant. They stated further that they were chosen for their “expertise.” Finally, they challenged the plaintiff to produce evidence of their appointments as “Chief of Staff”, “Presidential Adviser for Public Affairs” and “National Security Adviser.”

In view of the issue raised by the parties, I must examine Act 463 to ascertain what positions or offices have been created by it. Section 4(1) of Act 463 provided for the appointment of presidential staff. The appointment as presidential staff must be in writing. The plaintiff failed or omitted or both to establish and prove his case by supplying copies of the warrants or letters of appointment in respect of the third, fourth and fifth defendants. He failed and omitted to explain his default in this matter. In my view, the omission and failure to provide the court with the supportive documents was fatal to his case. In the light of section 7 of Act 463. This section provides as follows:

“7. The President may appoint for specified periods such consultants or experts as he may require for any specific assignment.”

In the instant case, the defendants claimed that they were appointed because of their “expertise.” I must point out that the President in exercising the power and right to appoint under section 7 of Act 463 does not need to consult with the Council of State. It would be seen that the appointments complained of may lawfully be made pursuant to section 7 of Act 463, bearing in mind the uncontroverted defence put forward in the statement of case.

I find further that the plaintiff did not in his statement of case indicate that the post of “Chief of Staff”, “Presidential Adviser for Public Affairs” and “National Security Adviser” are all offices created under section 3(1)(a) of Act 463. In my opinion, since the defendants disputed and denied the averments contained in the statement of case, in the absence of material supportive of his case, the plaintiff’s writ and statement of case did not disclose a cause of action.

Another serious issue raised for determination by the plaintiff would be found in paragraph (8) of his statement of case. It reads:

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

There can be no doubt in anyone’s mind that the above averment needs to be proved and supported by material in the statement of case. The defendants denied paragraph (8) of the statement of case in paragraph (11) even of their statement of case as follows:

“11. The defendants categorically deny paragraph (8) of the statement of case of plaintiff and aver that it is without foundation.”

(The emphasis is mine.)

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

AMPIAH JSC. 

This is an application by the defendants to have set aside the writ filed against them by the plaintiff.

In his writ, filed on 29 January 2001 to invoke the original jurisdiction of this court, the plaintiff claims against the defendants:

“(1) A declaration that:
(i) On a true and proper interpretation of the Constitution, 1992 particularly articles 58(1) and (1), 91(1) and (2), 190 and 295 thereof, and sections 2, 3 and 4 of the Presidential Office Act, 1993 (Act 463) the third, fourth and fifth defendants cannot be appointed by the President as staff of the presidential office without consultation with the Council of State.
(ii) The conduct of the first defendant, President John Agyekum Kufuor, in appointing the third, fourth and fifth defendants as staff of the presidential office without consultation with the Council of State is inconsistent with and in contravention of the letter and spirit of the Constitution, 1992.
(iii) The conduct of the third, fourth and fifth defendants in holding themselves out and acting as officers or staff in the Office of the President is inconsistent with and in contravention of the Constitution, 1992.
(iv) Accordingly, all acts undertaken by the third, fourth and fifth defendants as officers or staff in the Office of the President are inconsistent with and in contravention of the Constitution, 1992 null, void and without effect whatsoever.
(2) Perpetual injunction restraining the first defendant President from appointing the third, fourth and fifth defendants as staff to the presidential office without consulting the Council of State.
(3) Perpetual injunction, restraining the third, fourth and fifth defendants from continuing to hold themselves out and acting as officers or staff in the Office of the President.
(4) Such other orders or directives as to the court may seem fit to give effect to the above declaration.”

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

“(1) this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein;
(2) no cause of action is disclosed by the plaintiff’s writ and the statement of case; and
(3) the questions raised in the plaintiff’s action for determination are moot; and for such further or other orders to this Honourable court may seem fit.”

An application for interim injunction to restrain the defendants from exercising the functions of whatever office they were holding seemed to have outlived its purpose, by the available evidence on record, as at 6 February 2001, Parliament had approved the nominations of the third and fourth defendants as substantive ministers of state.

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

The plaintiff in this action seeks a declaration as to the true and proper interpretation of the Constitution, 1992 in particular, articles 58(1) and (2), 91(1) and (2), 190 and 295, and also sections 2, 3 and 4 of the Presidential Office Act, 1993 (Act 463). He contends that in a true and proper interpretation the appointment of the third, fourth and fifth defendants as staff of the presidential office, without consulting the Council of State was inconsistent with and in contravention of the letter and spirit of the Constitution, 1992. To my mind, the claim calls for the interpretation of provisions of the Constitution, 1992.

The applicants contend that the writ discloses no cause of action and that the court lacks jurisdiction to entertain the action. Article 2(1)(b) of the Constitution, 1992 provides:

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

(The emphasis is mine.)

Also, article 130(1) of the Constitution, 1992 gives exclusive jurisdiction to the Supreme Court in “all matters relating to the enforcement or interpretation of the Constitution.” It is therefore only the Supreme Court which can interpret a provision of the Constitution, 1992 when that question arises. And when that issue becomes contentious in any other court, article 130(2) of the Constitution, 1992 provides that that court

“... shall stay the proceedings and refer that question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”

Thus, where in this action the plaintiff seeks a declaration on the interpretation of a provision of the Constitution, 1992 and alleges that someone’s conduct is inconsistent with, or in contravention of a constitutional provision, it cannot be said either that there is no cause of action or that the court lacks jurisdiction to entertain the action. The allegation may not be true, but it remains an issue to be determined one way or another. And, the interpretation must be done as requested. The Supreme Court is the only court to do that.

It is a cardinal principle of law that when an issue of jurisdiction is raised, it is not proper for the court to decide on the merits of the case; this may prejudice a subsequent hearing of the case. It must be noted that all the issues raised in this application have been set down for determination in the memorandum of issues filed on behalf of the defendants. I will therefore as much as possible refrain from going into the merits of the issues raised in this writ.

Can the President be sued personally? Article 57(4) and (5) of the Constitution, 1992 provides:

“(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.
(5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.”

Article 88(5) of the Constitution, 1992 also provides:

“(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”

It follows therefore that save for matters or acts done within article 2 of the Constitution, 1992 or matters or acts for which a prerogative writ could be issued, all other actions against the President, while in office, shall be brought against the Attorney-General on behalf of the State as the principal legal adviser to the government. I had an occasion to give an opinion on this issue in New Patriotic Party v. Rawlings [1993-94] 2 GLR 193, SC In that case, I stated, inter alia, that no action could be brought against the President in his personal capacity. That was a case under article 2 of the Constitution, 1992. I have since reconsidered my opinion. I am in agreement with my learned brother Amua- Sekyi JSC (now retired), in that case, that if the action fell within article 2 of the Constitution, 1992 or prerogative proceedings were brought against the President, the President could be sued in his personal capacity.

In this action, the Attorney-General has been sued under article 88(5) of the Constitution, 1992 as “...  the person against whom all civil proceedings affecting the State shall be instituted.” It is being contended that since there is no substantive holder of that office, there could not be a defendant in the action. I do not think that it is necessary to have a substantive holder of that office before that office is made a defendant. If that were so, it would mean that since all actions against the State should be brought in the name of the Attorney-General, no action could be brought against the State until such time that a holder of that office is appointed. Where an action is brought against the Attorney-General or the Attorney-General sues and the incumbent dies or vacates his office, there is no application for substitution because that office as long as it exists could be represented in the action and whoever takes over that position subsequently, continues with the action. The Attorney-General need not prosecute or defend the action personally. It is different where the Attorney-General is sued or brings an action in his personal capacity. In which case if he vacates his office or dies, there should be a substitution, if the case persists. I do not think the joinder of the Attorney- General in these proceedings would in any way invalidate the proceedings as the court would have to determine the issues or questions in dispute so far as they affect the rights and interests of all persons who are parties to the proceedings.

With regard to the other defendants, ie the third, fourth and fifth defendants it cannot be said that they are not interested in the issues to be determined, if there is a cause of action. They are alleged to be beneficiaries of the acts of the first defendant. It would be against the rules of natural justice if they were not heard before they were condemned or commended. The court would have to determine the issues as they affect them. I think they are necessary parties to the action.

What is the cause of action? All citizens of Ghana have the Constitutional right and duty at all times to defend the Constitution: see article 3(4) of the Constitution, 1992. Article 2 of the Constitution, 1992 empowers any person to bring an action in the Supreme Court for a declaration as to whether any person has acted or omitted to act consistently with, or in contravention of a provision of the Constitution, 1992. And, the Supreme Court shall for that purpose, make such orders and give such directions as it may consider appropriate for giving effect or enabling effect to be given to the declaration. No one can deny any person his right to seek such a declaration.

The plaintiff in the instant case alleges that the first defendant as President has appointed the third, fourth and fifth defendants to positions, namely chief of staff, presidential adviser for public affairs and national security adviser, respectively in the Office of the President without consultation with the Council of State, an act, which violates the Constitution, 1992. He wants a declaration to that effect. The applicants contend in paragraph (7) of the statement of case for the defendants that:

“(7) ... The first defendant in exercising his executive authority called in aid the expertise of the third, fourth and fifth defendants to assist him in the performance of his functions as adviser and spokesperson to the first defendant.”

And in paragraph (17) that:

“The first defendant had raised the status of the third and fourth defendants by nominating them as ministers designate.”

Thus, an issue has been joined as to whether or not there have been such appointments. The applicants contend that there has been no statutory publication of such appointments and that no evidence has been led to establish that. Newspaper publications cannot, they submit, be used to establish that fact.

That no Council of State has yet been put in place is not denied. It is a notorious fact that such appointments have not been made; this was published in the local newspapers. Of course, since processes for the commencement of hearing of the action had not been concluded, it is difficult to determine what evidence would be given to establish these appointments, save from the publications in the newspapers. As to whether these alleged appointments qualify as “presidential staff” as defined under section 16 of the Presidential Office Act, 1993 (Act 463), is also an issue to be determined. Until then, however, section 156 of the Evidence Decree, 1975 (NRCD 323) provides that: “Printed materials purporting to be newspapers or periodicals are presumed to be authentic.”

Section 4(1) and (2) of Act 463 provides:

“4. (1) The President shall, acting in consultation with the Council of State appoint such persons as he considers necessary to hold office as presidential staff in the office.
(2) The number of persons that may be appointed under subsection (1) of this section and the grade of the officers shall be determined by the President.”

(The emphasis is mine.)

And section 3(1) of Act 463 provides that:

“3. (1) The Presidential Office shall be made up of—
(a) persons appointed as presidential staff under this Act one of whom shall be appointed head of the Office; and
(b) such other public officers as may be seconded or transferred to the Office.”

Thus in so far as the appointment of the presidential staff is concerned, section 4(1) of Act 463 must be complied with.

Article 70(1) of the Constitution, 1992 provides:

“70. (1) The President shall, acting in consultation with the Council of State, appoint—
...
(e) the holders of such other offices as may be prescribed by this Constitution or by any other law not inconsistent with this Constitution.”

(The emphasis is mine.)

In fact it is in the letter and spirit of the Constitution, 1992 that Act 463 was enacted. Section 2 of Act 463 provides:

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

And, article 91(1) of the Constitution, 1992 states:

“91. (1) The Council of State shall consider and advise the President or any other authority in respect of any appointment which is required by this Constitution or any other law to be made in accordance with the advice of, or in consultation with the Council of State.”

It cannot be said that Act 463 is inconsistent with the Constitution, 1992. The “such other officers” include the presidential staff as prescribed by Act 463 and, “such other officers” must be appointed in consultation with the Council of State. An appointment without such consultation is inconsistent with and in contravention of not only Act 463 but also article 70(1) of the Constitution, 1992, by which authority the appointments are to be made. The presidential staff are there to assist the President in the effective and efficient performance of his functions. Naturally the President would need some expert advisers. It cannot be said that the three defendants are the only advisers he has, but the fact remains that the three defendants are the only persons he has so far named and appointed as his expert advisers to assist him in the performance of his functions in his office as President. The question is, who are these officers who have been so appointed? The plaintiff claims that they are members of the presidential staff. The defendants say that they are only advisers. An issue is therefore joined for the determination of the court.

The applicants say that the issue is moot as these appointees have since been “raised” in their status and have been nominated as ministers designate. The writ for the action was filed on 29 January 2001. A motion ex parte for interim injunction to restrain further commission of the alleged violation of the Constitution, 1992 and to prevent the alleged appointees from acting was filed on 29 January 2001, the same day the writ was filed. This could not come on. However, a repeat application, this time on notice for interim injunction was filed on 2 February 2001. This also could not come on because of the instant application by the defendants to have the writ set aside. Meanwhile on 6 February 2001, the “raised” status of the third and fourth defendants was put before Parliament and approved. It is therefore not correct to say that at the time the writ was issued, the issue was moot. Be that as it may, I am of the opinion that there exist issues which are capable of determination for future conduct of the framers of the Constitution, 1992 the legislature and the executive: see United States v. Concentrated Phosphate Exp Assn, 393 US 201 and United States v. W T Grant Co, 345 US 629.

In conclusion, I am satisfied that a cause of action is established on the face of the records. Pertinent issues have been raised and the court would have to determine these issues. This court has jurisdiction to determine these issues. It would fail in its duties if it does not determine the declaration sought. I would accordingly dismiss the application and set the action down for determination on the merits.

KPEGAH JSC.

I will preface this ruling with the words of Lord Devlin in his book entitled, The Judge (Oxford University Press, 1979) at p 4 where he said:

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

These words of wisdom were quoted by Aikins, JSC in the case of J H Mensah v. Attorney-General [1996-97] SCGLR 320. Like him, I will allow myself to be guided by these words of wisdom from a man who can easily be rated as one of the best jurists of his time. Coupled with this is the traditional saying among the legal fraternity that the bench is not for timorous souls.

Every student of the constitutional law of Ghana might have felt, after reading the celebrated case of In re Akoto [1961] 2 GLR 523, SC that if the decision had gone the other way, the political and constitutional development of Ghana would have been different. “Different” in the sense that respect for individual rights and the rule of law might have been well entrenched in our land, and we who now occupy this court would have had a well-beaten path before us to tread on in the discharge of the onerous responsibilities imposed upon us by the Constitution of this country.

In this action, Mr Martin Amidu is complaining that certain appointments made or purported to have been made by the President, Mr John Agyekum Kufuor to the Office of the President contravenes or is a violation of some provisions of the Constitution, 1992 and he seeks a declaration to the effect that the appointment Mr Jake Obetsebi- Lamptey to the Office of the President as chief of staff, Miss Elizabeth Ohene as spokesperson in the Office of the President and Lt Gen (Rtd) Joshua Hamidu as national security adviser to the President without first consulting with the Council of State, is a violation of the letter and spirit of the Constitution, 1992. Mr Amidu (hereinafter referred to as the plaintiff) argues that by the said appointments President Kufuor (hereinafter referred to as the first defendant) acted in breach of sections 3 and 4 of the Presidential Office Act, 1993, (Act 463) and article 91 of the Constitution, 1992. He therefore invoked our original jurisdiction under articles 2(1)(b) and 130(1)(a) of the Constitution, 1992 and sought a declaration that:

“(i) On a true and proper interpretation of the Constitution, particularly articles 58(1) and (2), 91(1) and (2), 190 and 295 thereof; and sections 2, 3 and 4 of the Presidential Office Act, 1993 (Act 463) the third, fourth and fifth defendants cannot be appointed by the President as staff of the presidential office without consultation with the Council of State.
(ii) The conduct of the first defendant, President John Agyekum Kufuor, in appointing the third, fourth and fifth defendants as staff of the presidential office without consulting with the Council of State is inconsistent with and in contravention of the letter and spirit of the Constitution.
(iii) The conduct of the third, fourth and fifth defendants in holding themselves out and acting as officers or staff in the Office of the President is inconsistent with and in contravention of the Constitution.”

The plaintiff further asked for a declaration that all acts done or undertaken as staff in the President’s office are null and void. He also asked for the anciliary reliefs of injunction, or such orders or directions as this court may deem fit or appropriate.

In a statement of case filed on behalf of the defendants, the Solicitor-General raised a number of factual and legal issues upon which the application to set aside the plaintiff’s writ and statement of case is premised. The relevant averments in the defendants’ statement of case are:

“(3) The defendants aver that the executive authority of this nation resides in the first defendant and in the exercise of this authority this court lacks jurisdiction to entertain the plaintiff’s claim against the defendant...
(5) The second defendant admits paragraph (3) of the plaintiff’s statement of case but denies that he could be sued at the point of time that the writ and plaintiff’s statement of case were issued and filed...
(7) In answer to paragraph (5) of the plaintiff’s statement of case the third, fourth and fifth defendants aver that the first defendant exercising his executive authority called in aid the expertise of the third, fourth and fifth defendants to assist him in the performance of his function as advisers and spokesperson to the first defendant ...
(9) In further answer to ... the plaintiff’s statement of case the defendants aver that the plaintiff has not shown any evidence to indicate that the first defendant has appointed the third, fourth and fifth defendants as staff in the Office of the President ...
(17) The defendants aver that before the plaintiff filed his writ and the statement of case, the first defendant had raised the status of the third and fourth defendants by nominating them as ministers designate.
(18) The defendants say further that since the nomination of the third and fourth defendants, Parliament had as of 6 February 2001 approved the appointment of the third and fourth defendants as ministers and have been sworn in as such ministers.
(19) Regarding the position of the fifth defendant, the defendants say that his position or status is not contemplated under the Constitution, 1992 and therefore no provision of the Constitution, 1992 is violated.
(20) It is further averred by the defendants that the appointments of the third, fourth and fifth defendants by the first defendant and, which is the subject of attack by the plaintiff, is a prerogative of the first defendant and this court or any other court lacks jurisdiction to entertain any action brought against the first defendant in this regard.
(21) The defendants aver that the action brought by the plaintiff is frivolous and an abuse of this court’s process.”

On the very day that the defendants’ statement of case was filed, the Solicitor-General immediately proceeded to file a motion seeking to set aside the plaintiff’s writ and statement of case on three main grounds, namely that:

(i) this court lacks jurisdiction to entertain the plaintiff’s action against the defendants;

(ii) the plaintiff’s writ and statement of case disclose no cause of action; and

(iii) the questions raised in the plaintiff’s action for determination have become moot.

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

The plaintiff countered this argument by submitting that the fact of the said appointments are common knowledge, having been so published by both the electronic and print media to which there had not been any official denial. Fortunately, section 156 of the Evidence Decree, 1975 (NRCD 323) provides: “Printed materials purporting to be newspapers or periodicals are presumed to be authentic.” My brother Acquah JSC in the case of New Patriotic Party v. National Democratic Congress [2000] SCGLR 461 at 509 commenting on the efficacy of the said section 156 of NRCD 323 in judicial proceedings said:

“... the law recognises the existence of newspapers as sources of information, and accordingly, provides in section 156 of the Evidence Decree, 1975 (NRCD 323) that: ‘Printed material purporting to be newspapers or periodicals are presumed to be authentic.’ This does not mean that whatever is stated in a newspaper is true. What the provision does is to give recognition to the existence of a newspaper. It would certainly be outrageous, in my view, for anyone to make capital out of the fact that the source of the plaintiff’s information is a newspaper when even the courts rely on publications in newspapers for a variety of purposes including substituted services, as authentic means of giving notice to those entitled to be given such notices. It would be unfathomable for this court to refuse to assume jurisdiction on grounds, inter alia, that the plaintiff’s source is the newspaper.”

(The emphasis is mine.)

Concluding his discourse on section 156 of NRCD 323 Acquah JSC said at the same page:

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

He then cautioned that:

“No fetish should therefore be made of the fact that the plaintiff’s source of information is The Ghanaian Times.”

Section 156 of NRCD 323 entails more than merely giving recognition to a newspaper. The important words in the provision are “presumed to be authentic.” The word “authentic” is defined in the Chambers Dictionary (New ed) at p105 as “genuine; authoritative; true, entitled to acceptance, of established credibility.” Used in relation to writing, it means “trustworthy, as setting forth real facts.”

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

The plaintiff’s action was provoked by various announcements in both the electronic and print media that the first defendant had appointed the third, fourth and fifth defendants to certain staff positions in the Office of the President when the Council of State has not been constituted because in such appointments the Council of State must be consulted. In respect of the third defendant for example, it was carried in both the print and electronic media on 8 and 9 of January 2001 that he had been appointed the chief of staff in the President’s Office. This was how the Daily Graphic of 9 January 2001 presented the news of the third defendant’s appointment: “JAKE MADE CHIEF OF STAFF.” The story that followed was: “The President, Mr. John Agyekum Kufuor, has appointed Mr. Jake Obetsebi-Lamptey as Chief of Staff, Office of the President.” The same news item was carried in the Evening News of the previous day.

In respect of the fourth defendant, Miss Elizabeth Ohene, her appointment was on 4 January 2001 and carried in the Daily Graphic of 5 January 2001. The caption read: “ELIZABETH OHENE NAMED PUBLIC AFFAIRS ADVISER” with the following story:

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

This story was also carried by the other print and electronic media. It does seem, therefore, that Miss Ohene’s appointment was made by the President even before he assumed office on 7 January 2001. The first defendant, therefore, could not have been exercising his executive authority, not having been vested with such authority, to call in aid the expertise of the fourth defendant as spokesperson to assist him in the performance of his functions as pleaded in the statement of the defendants’ case. The release which announced the appointment of the fifth defendant, Lt Gen Joshua Hamidu, as the national security adviser to the President was signed by the fourth defendant in her appointed capacity. The appointment of the fifth defendant was captioned in the Daily Graphic of 12 January 2001 thus: “HAMIDU MADE NATIONAL SECURITY ADVISER.” The story under this headline was:

“The President, Mr. J.A. Kufuor, has appointed Lt. Gen. Joshua Hamidu as National Security Advisor, a press release signed by Ms. Elizabeth Ohene, Presidential Advisor of Public Affairs announced yesterday. Lt. Gen. Hamidu is a former Chief of Defence Staff.”

In moving the motion to set aside the plaintiff’s writ and statement of case, the learned Attorney-General, Nana Akufo-Addo raised a number of issues. First, that the first defendant as President of Ghana, being vested with the executive authority of the State, is not amenable to the jurisdiction of any court in the exercise of that authority. For this submission he relied on the decision of this court in the case of New Patriotic Party v. Rawlings [1993-94] 2 GLR 193, SC where by a three-to-two majority this court held that the President was not amenable to court proceedings for the performance of his official functions whilst in office. Thus, the per curiam decision placed the President, in the due exercise of his powers, whether constitutional or statutory, political or otherwise, beyond the reach of judicial proceedings. The Rawlings case (supra) will be examined in greater detail in this ruling. However, it is worth mentioning at this stage that the court failed to consider the issue whether a President can under any circumstances be compelled through the judicial process to perform a purely ministerial act under a positive law otherwise for impeachment under article 2(4) of the constitution, 1992.

The second point raised in support of the motion was that there being no substantive Attorney-General when the writ was issued, the joinder of the second defendant (the Attorney-General) as a party was improper and the writ against him was null and void. Thirdly, that by the nomination of the third and fourth defendants by the President as ministers of state and their subsequent approval by Parliament as ministers of state, the questions raised by the plaintiff’s action had become moot and this court should accordingly decline jurisdiction.

Admittedly, the function of a court of law in our jurisdictions is to determine issues of law and fact when properly raised before it in a dispute between parties. The question then is, how far does the American principle of mootness based on the “case” and “controversy” requirement of article III (2) of their Constitution and as applied in the case of Defundis v. Odegaard, 416 US 312, apply under article 2 of our Constitution, 1992 if it does at all? The assault on the competence of this court to adjudicate the plaintiff’s case is based on the above basic grounds. There are other strands to the challenge raised in argument which will be considered in the course of this opinion.

The plaintiff on the other hand urged us to reject the Attorney-General’s position because the action is brought under article 2 of the Constitution, 1992; that in such a situation the President, while in office, can be sued personally for infractions of any constitutional provision in the discharge of his executive functions. As to the second point, the absence of a substantive Attorney-General, the plaintiff argued that the Attorney-General was sued only as a nominal defendant and the fact that nobody had then been appointed to the position was not a sine qua non. And on mootness, the plaintiff argued that the principle of mootness is not contemplated in respect of actions brought under article 2 of the Constitution, 1992.

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

In this ruling, apart from answering the major questions raised, I may also consider other points indirectly raised in the course of argument: How far American principles of judicial self-restraint can be applied in our constitutional adjudications, particularly the political question doctrine and the principle of ripeness. This discussion will dove-tail into a consideration of the plea of mootness, its origin and scope, since it is raised in this case. I intend to do this because we have not been consistent in our applications of these principles. In some cases, there are dicta suggesting that American doctrines of judicial self-restraint developed as a result of the “case” and “controversy” requirement of article III (2) of the American Constitution are not applicable in our circumstances. But in other cases, some of the principles are given tacit approval or applied. These principles have been developed by American courts as a convenient way of avoiding jurisdiction in certain cases. One of these principles, the mootness doctrine, has now been pleaded in bar to our jurisdiction in this case.

I think this offers us an opportunity to confront once and for all these discretionary avoidance principles of American jurisprudence and determine how relevant they are to our circumstance instead of the selective approach we have been adopting so far; otherwise such approach will deprive our jurisdictional decisions of any principled content or basis. A review of some of the cases in which these doctrines have been applied or rejected may help illustrate our ambivalence towards these principles. For example, in the recent case of New Patriotic Party v. National Democratic Congress (supra) at 505 the following words of caution were given against these discretionary avoidance principles:

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

After this preliminary observation the caution was sounded at the same page thus:

“Now a close study of the United States constitutional juris jurisprudence vis-a-vis the language and provisions of our 1992 Constitution, clearly shows that the United States doctrine of ripeness, like most of their principles of judicial self-restraint, is inappropriate in the interpretation of our Constitution. In J H Mensah v. Attorney-General [1996-97] SCGLR 320 this court finally decided that the political question doctrine as applied in the United States was inapplicable in our jurisprudence.”

But, in J H Mensah v. Attorney-General (supra) the court, while rejecting the political question doctrine, one of the principles of judicial self-restraint, proceeded to apply the doctrine of mootness, another principle of judicial self-restraint which had been developed in the United States specifically because of the “case” and “controversy” requirement of article III(2) of their Constitution. The first holding in the J H Mensah v. Attorney-General (supra) states:

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

The court, for the above holding, relied on two United States Supreme Court decisions, namely United States v. Concentrated Phosphate Exp Assn, 393 US 201 and United States v. W T Grant and Co, 345 US 629.

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

The other so-called American doctrine often applied with some inconsistency is the political question doctrine the development of which is based on the doctrine of separation of powers which underpins the American Constitution, like ours, rather than any specific provision in the American Constitution. It was applied in the case of Tuffuor v. Attorney-General [1980] GLR 637, CA sitting as SC without the court specifically saying so but the principle was rejected in the case of New Patriotic Party v. Attorney-General [1993-94] 2 GLR 35, SC. The issue again arose in the case of Ghana Bar Association v. Attorney-General [1995-96] 1 GLR 598, SC where New Patriotic Party v. Attorney-General (supra) was criticised and the doctrine was applied. This is what Hayfron-Benjamin JSC said in his supporting opinion at 623:

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

(The emphasis is mine.)

One of the grounds on which the court declined jurisdiction in Ghana Bar Assoication v. Attorney-General (supra) therefore was the non-justiciable political question doctrine. And commenting on the case of Tufffuor v. Attorney-General (supra), Hayfron-Benjamin JSC said at 623:

“In my respectful opinion, in the case of Tuffuor v. Attorney-General [1980] GLR 637, CA sitting as SC, this court discussed in full the scope and limits of our jurisdiction with respect to dealings with other arms of government. Although in the Tuffuor case (supra) their lordships did not use the term—non-justiciable political question, I think they reached conclusions which accord with Justice Brennan’s dictum in the American case of Baker v. Carr, 369 US 186 (1962).”

This was not to be the end of the matter. In the case of J H Mensah v. Attorney-General (supra) the court rejected the avoidance principle of political question doctrine and held that the court had jurisdiction to determine political questions. It is interesting that the Ghana Bar Association case (supra) which disapproved of New Patriotic Party v. Attorney-General (supra) was not referred to but rather the latter was relied upon although it was severely criticized in the Ghana Bar Association case (supra) which, as indicated, the court never referred to in J H Mensah v. Attorney-General (supra). The argument could therefore be made that this case was decided per incuriam.

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

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

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

THE IMMUNITY OF THE PRESIDENT WHILE IN OFFICE

It is trite learning that a court can be said to lack jurisdiction either because it has no jurisdiction over the subject matter of a claim, or over any of the parties. The learned Attorney-General’s contention is that since the first defendant, His Excellency President J A Kufuor, was exercising his executive authority he is not amenable to the jurisdiction of this court or any other court while in office. He supported his argument with the decision of this court in the case of New Patriotic Party v. Rawlings (supra) where this court in a three-to-two majority decision interpreted article 57(4) of the Constitution, 1992 to mean that the President, while in office, is immune from any judicial proceedings in the performance or purported performance of his official functions. Article 57(4) of the Constitution, 1992 states:

“(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.”

That the executive authority of Ghana vests in the President of the Republic is very clear from the language used in article 58(1) of the Constitution, 1992. However, this same article doth enjoin the President that while exercising his undoubted executive authority he must do so in accordance with the provisions of the Constitution, 1992. It states:

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

(The emphasis is mine.)

So that article 58(1) of the Constitution, 1992 not only grants executive power to the President but also imposes a mandatory duty on him to do so in accordance with the provisions of the Constitution, 1992. This duty is enforceable because “any act or omission of any person” which is alleged to be inconsistent with, or to be in contravention of a provision of the Constitution, 1992 can be challenged in the Supreme Court under article 2 to which the immunity of the President is made subject. As was poignantly pointed out by Amua-Sekyi JSC in the Rawlings case (supra) at 205:

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

The submission that article 58(1) of the Constitution, 1992 while vesting the President with executive authority also, expressly, or at least by necessary implication, imposes an enforceable duty on him to observe the provisions of the Constitution, 1992 in the process, is underscored by the provisions in article 58(2) of the Constitution, 1992 which makes it clear that the President’s executive authority “shall extend to the execution and maintenance of this Constitution and all laws made under or continued in force by this Constitution.”

It does appear, therefore, that there is sufficient internal evidence in article 58 of the Constitution, 1992 not only of the vesting of the executive authority in the President, but also the imposition of a duty on him to exercise those powers in accordance with the provisions of the Constitution, 1992 and any other law made or continued under the Constitution, 1992. This duty is enforceable, and can be enforced by recourse to our enforcement jurisdiction under article 2 of the Constitution, 1992 to which the President’s immunity from judicial proceeding is made subject.

I have read the case of New Patriotic Party v. Rawlings (supra) several times and find that the views and sentiments expressed by Amua-Sekyi JSC in his minority opinion accords with those of my own. This is what he said at 205-206:

“Although the President is the first citizen, he is not above the law. The medieval fiction that the ‘king can do no wrong’, which the sophist interpreted to mean that if the action was wrong then it was not that of the king, has no place in a republican setting which prides itself on all citizens being equal under the law and therefore obliged to act in conformity with it. We recognise that an executive President being the most powerful person in the state is the one who has the greatest capacity for wrong-doing. We do not need a petition of right or a notional defendant like the Attorney-General before we can exercise our democratic right of calling an erring President to order under article 2 of the Constitution, 1992 which not only commands him to obey any order or direction this court may give, but also makes his failure to obey any order or direction a ground for his removal from office.”

What happens when the President refuses to perform a public duty imposed on him by a statute? He must, like anybody, be amenable to the prerogative writ of mandamus to compel him to discharge the duty. As was observed by Apaloo JA (as he then was) in the case of Sallah v. Attorney-General (1970) 2 G and G 493 at 508:

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

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

Such an order can only be enforced by contempt proceedings, which proceedings being quasi-criminal, are inappropriate for the citation of a “nominal contemnor” like the Attorney-General; personal demand is required before such a procedure can be invoked. And for a contempt proceeding to be successful, the party proceeded against must be proved to have been guilty of a wilful or intentional, or deliberate disobedience of the order, and if this is not fully and satisfactorily made out, the court will refuse to commit. The words “wilful”, “intentional” or “deliberate” require a particular state of mind on the part of the person alleged to be in contempt. Can this necessary state of mind be attributed to “a nominal defendant” like the Attorney-General for him to be committed? For all we know, he might have advised the President to obey the order. Also, an application for contempt can result in the contemnor being committed to prison. Will a “nominal contemnor” like the Attorney-General go to prison instead of a recalcitrant and obstinate President?

Should we decline to over-rule the Rawlings case (supra) and hold that the President is not amenable to any judicial proceedings even if, in the performance of his duties, he breaches the Constitution, 1992 we may possibly be condemning the citizens of this country to the calamity which befell the nation after the Re Akoto case (supra). And this court would have reneged on one of its functions—the maintenance of the culture of constitutionalism. In my dissenting opinion in the case of Yeboah v. J H Mensah [1998-99] SCGLR 492 at 517, I said:

“The Constitution is the supreme law of the land, and, all persons must look at it and adjust their actions or conduct accordingly. And it has to be emphasised that one of the primary functions of the Supreme Court, apart from adjudicating constitutional matters, is promoting and safeguarding constitutional values.”

(The emphasis is mine.)

I cannot conclude this aspect of my opinion without again calling in aid the words of my brother Amua-Sekyi JSC in the Rawlings case (supra) at 207:

“In the light of the foregoing, I am of the opinion that whenever it is alleged that the President has by himself or any agent acted in a manner inconsistent with or in contravention of a provision of the Constitution, 1992 an action may be brought against him under article 2 of the Constitution, 1992 for a declaration to that effect, and for consequential orders, including an injunction. President Rawlings was, therefore, properly made a defendant in this suit.”

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

ATTORNEY-GENERAL

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

APPLICATION OF AMERICAN CONCEPTS OF JUDICIAL SELF-RESTRAINT AND OTHER PRINCIPLES TO OUR CONSTITUTIONAL ADJUDICATION

(a) POLITICAL QUESTION AKIN TO AMERICAN CONSTITUTION OR INHERENT IN DOCTRINE OF SEPARATION OF POWERS

Our Constitution, 1992, like the American Constitution, is a written Constitution underpinned by the doctrine of the separation of powers. And it is important to say that being a written Constitution, it has, like the American Constitution, certain fundamental or basic attributes. The first is that the people of Ghana voluntarily, in the words of the preamble “do hereby adopt, enact and give to ourselves this Constitution.” And under the Constitution, 1992 the people of Ghana have exercised their “natural and inalienable right to establish a framework of government.” The second attribute is that the form of government envisages three important branches or arms of government—that is the executive, legislature and judiciary. The third attribute is that these various departments of government have their respective powers laid down with limits not to be infringed or transgressed by any arm of government. But these limits, expressed in a written Constitution, would be meaningless and serve no purpose if freely ignored or infringed by the organs intended to be restrained. Although power is dispersed among the various organs of government, it should not be at the expense of harmony and governance.

In the American case of Youngstown Sheet and Tube Co v. Sawyer (Steel Seizure Case), 343 US 579 at 635 Justice Jackson said of the doctrine of the separation of powers:

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

Our Constitution, 1992, unlike the American Constitution, is expressed under article 1(2) to be “the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” Despite this provision there is inherent or internal evidence in our Constitution, 1992 that the policy which informs or should inform an Act, and the desirability of enacting such a law are matters for the executive and the legislature to decide. But the interpretation of the law, its enforcement and matters relating to the validity of the law enacted by Parliament fall within the adjudicatory functions of the courts. So that when we decide the validity of an Act of Parliament, we are not descending to the well of Parliament and thereby interfering with its work. We are empowered by the Constitution, 1992 to so declare if Parliament transgresses the constitutional limitation placed on its legislative powers. Therefore, the issue whether an Act or any of its provisions are constitutionally valid or not, is not a question of a political nature and this court cannot refrain from deciding same. Because in doing so, the court is not encroaching on any particular function or privilege of Parliament. This distinction is important and must be maintained.

The principle of non-justiciable political question did not evolve in American jurisprudence due to the fact that the courts were not endowed with the power of judicial review in the Constitution. Although it was the case of Marbury v. Madison, 1 Cranch 137 which formally broke the ground for judicial review in America, earlier jurists have anticipated and read into the Constitution such a power. For example, Hamilton in his The Federalist, No 78 (Modem Library ed 1937) at p 506 wrote:

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

Some are of the view, therefore, that Chief Justice Marshall only gave philosophical justification to the concept of judicial review in the Madison case (supra). It is not primarily because of the absence of the power of judicial review in the American courts that the principle of non-justiciable political question was evolved. It is a necessary derivative from the doctrine of separation of powers. Justice Brennan in Baker v. Carr, 369 US 186 at 682 (1962) said:

“The non-justiciability of a political question is primarily a function of the separation of powers.”

I think it is this basic distinction which Archer CJ in the case of New Patriotic Party v. Attorney-General (supra), where the issue was raised, recognised or acknowledged and meant when he cautioned, thus at 586:

“The Constitution, 1992 gives the judiciary power to interpret and enforce the Constitution, 1992 and I do not think that this independence enables the Supreme Court to do what it likes by undertaking incursions into territory reserved for Parliament and the executive. This court should not behave like an octopus stretching its eight tentacles here and there to grasp jurisdiction not constitutionally meant for it.”

The above dictum by Archer CJ was given some approval, in another direction, in the J H Mensah case (supra). One may be tempted to ask what philosophical considerations might have informed this dictum of Archer CJ in New Patriotic Party v. Attorney-General (supra). He was considering the applicability of the political doctrine to our circumstance, which the majority rejected in that case as inapplicable in our constitutional adjudications. And Sowah JSC (as he then was) in the case of Tuffuor v. Attorney-General (supra) at 650-651 after examining the question of how far the courts can question what, under our Constitution, had been done in, and by Parliament, said thus:

“The courts cannot therefore inquire into the legality or illegality of what happened in Parliament. In so far as Parliament has acted by virtue of the powers conferred upon it by the provisions of article 91(1), its actions within Parliament are a closed book.”

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

And in the Ghana Bar Association v. Attorney-General case (supra), case I cautioned against the relentless use of our power of judicial review as follows:

“I do not think the framers of our Constitution, 1992 intend to anoint and enthrone the judiciary. The political question principle is one basic virtue to emanate from the concept of separation of powers. This court must apply it in an endeavour to find its proper place within the constitutional structure.”

THE BRITISH CONCEPT AND RECENT DEVELOPMENTS

In British constitutional law, the “traditional view” is that Parliament is supreme. Some of its proponents had been Dicey and Blackstone Coke. The concept of supremacy implied that Parliament could enact laws on any topic affecting any persons, and there are no laws which Parliament is impotent to repeal or amend. In this context Parliament means “the Crown in Parliament” — that is, the combined effect of the Queen, House of Lords and the House of Commons. Under the British domestic law, the efficacy of the laws passed by Parliament may be challenged, but the power to make such a law has never been challenged. But some of the assumptions which flow from the theory of supremacy of Parliament in British constitutional law, are slowly coming under stress by certain realities of the modern state and relations between other states. Although the British Constitution is not written, the non-justiciability of certain types of actions, perhaps on grounds previously unknown or unacceptable, has started to creep in. In the recent case of Blackburn v. Attorney-General [1971] 1 WLR 1037, CA the plaintiff brought two actions against the Attorney-General seeking a declaration that the effect of signing the Treaty of Rome (which would permit Britain to join the European Economic Commission and some of its organs) would be irreversibly to surrender in part the sovereignty of the Crown in Parliament and that, accordingly, Her Majesty’s government will be acting in breach of the law. The Court of Appeal held that the courts could not impugn the treaty-making powers of the Crown. Lord Denning MR said at 1040:

“The treaty-making power of this country rests not in the courts but in the Crown; that is, Her Majesty acting upon the advice of her Ministers. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts.”

Lord Salmon in his opinion on the issue of jurisdiction said at 1041:

“Whilst I recognise the undoubted sincerity of Mr. Blackburn’s views, I deprecate litigation the purpose of which is to influence political decisions. Such decisions have nothing to do with these courts. These courts are concerned only with the effect of such decisions if and when they have been implemented by legislation. Nor have the courts any power to interfere with the treaty-making power of the Sovereign.”

Lord Justice Stamp was more forthright in his opinion. This is what he said at 1041:

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

(The emphasis is mine.)

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

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

Responding to this argument Lord Denning said at 1040:

“We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster 1931, which takes away the power of Parliament to legislate for the Dominions. Can anyone imagine that Parliament could or would reverse that Statute? Take the Acts which have granted independence to the Dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics. It is as well to remember the remark of Viscount Sankey, L.C. in British Coal Corporation v. The King [1935] A.C. 500 at 520:
‘... the Imperial Parliament could, as matter of abstract law, repeal or disregard section 4 of the Statute of Westminster. But that is theory and has no relation to realities.”

(The emphasis is mine.)

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

To me, it is significant that the British Court of Appeal declined jurisdiction and dismissed the suit on the ground that the issue for determination was a “political decision” and that “such decisions have nothing to do with these courts.” Even if it is argued that our Constitution, 1992 does not recognise the doctrine of separation of powers in its absolute rigidity, the functions of the different branches of government have been sufficiently demarcated and consequently it can very well be said that our Constitution, 1992 does not contemplate assumption, by one arm or branch, of functions of state which essentially belong to another branch.

Any blanket rejection of the principle of non-justiciable political question will, in my humble view, create jurisdictional problems in the future. It is not a concept developed from any particular provision of the American Constitution, but is a concept which is inherent in the doctrine of separation of powers, which concept underpins our Constitution, 1992 also. The fact that it was developed and so named within American jurisprudence should not give us goose pimples and make us averse to its application to our constitutional adjudication. After all, what is in a name? A rose will always smell sweet even if it is called “ammomia.”

To emphasise a point I would like to relate the Blackburn case (supra) to our current situation. What will be the attitude of this court if a citizen should bring an action seeking a declaration that the recent decision of His Excellency the President for Ghana to join the highly indebted poor countries (HIPC) is against both the spirit and letter of the Constitution, 1992 on the ground that it is not in the interest of Ghanaians “in whose name and for whose welfare”, in the words of article 1(1) of the Constitution, 1992, “the powers of government are to be exercised”; and arguing in the process that the HIPC initiative will not lead to a realisation of the economic objectives anticipated under article 35 of the Constitution, 1992 of Ghana.

I asked this question because under article 75 of the Constitution, 1992 it is the President’s prerogative to enter into treaties, agreements, or conventions subject to ratification by Parliament through an Act of Parliament, or by a resolution supported by the vote of more than one-half of all members of Parliament. And the HIPC has been adopted in the Budget Statement which has been approved by Parliament. What will be the jurisprudential considerations which will influence our determination whether we are clothed with jurisdiction to determine such matters? Should we decline jurisdiction, what will be the philosophical or the jurisprudential justification for such a decision? And should we decide we have jurisdiction to entertain such an action shall we not be interfering with the functions of both the executive and Parliament? Or shall we not appear to be pronouncing on matters of policy, or substituting our own notions of what is wise and politic for that of the executive and Parliament? I do not think the judicial power we enjoy under the Constitution, 1992 authorises the courts to sit in judgment on the wisdom of what Parliament and the executive branches do.

Fortunately, the American principle of non-justiciable political question can be invoked to assist us avoid such a temptation. The fact that it is American jurists who have identified the concept of non-justiciable political question as inherent in the doctrine of separation of powers and named it as such does not make the principle a virogene to our Constitution, 1992 and for which reason, we must avoid its application in our constitutional adjudication.

There are, however, other principles of American jurisprudence which have been evolved as a result of specific provisions of their Constitution but are finding acceptance in our constitutional adjudications. It is rather some of these principles which have found favour with us. Some of these concepts are mootness and ripeness of a case.

(b) MOOTNESS

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

In his book, Constitutional Law (13th ed) at pp 43-44 Prof Gerald Gunther of Stanford University had this to say:

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

Although the mootness doctrine has a constitutional basis, yet the United States courts now tend to relax their application of the mootness barrier to adjudication or the assumption of jurisdiction, and have created several exceptions. The real legal question is whether the mootness doctrine can be said to have been anticipated under article 2 of the Constitution, 1992 by the framers to enable us adopt this concept which is based solely on a specific constitutional requirement of article III(2) of the American Constitution; or put in another way, does article 2 of the Constitution, 1992 require that there must be a continuing breach before the courts can act under the said article; or this court must, once a breach of the Constitution, 1992 is brought to its notice, even if the alleged conduct is terminated whether before or after a writ is issued under article 2 of the Constitution, 1992, we still have the bounden duty to make a declaration to that effect, if only to preserve the sanctity of the Constitution, 1992. We cannot apply the doctrine to the instant case unless we answer these questions. It is therefore necessary to examine the provisions of article 2 of the Constitution, 1992 in some detail.

Article 2 of the Constitution, 1992 provides:

“2. (1) A person who alleges that—
(a) an enactment or anything contained in or done, under the authority of that or any other enactment; or
(b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

For example, is it a necessary requirement under article 2(1)(a) of the Constitution, 1992 that there should be a case and controversy in respect of an enactment considered to be inconsistent with a provision of the Constitution, 1992 before an action can be brought for it to be so declared? I do not think so because an enactment which falls into disuse can be a subject of an action under article 2(1)(a) of the Constitution, 1992 due to its potential to be used in the future. Even if we rejected such a writ, it would be on the ground that it presented a hypothetical question. And if we look at the provisions of article 2(1)(b) of the Constitution, 1992 all that is required to ground an action in the Supreme Court is an “act or omission of any person” which is inconsistent with or is in contravention of any provision of the Constitution. The “act” or the “omission” need not be a continuing one before an action can be brought. Indeed, even a threat to breach the Constitution, 1992 is enough.

In the case of Yeboah v. J H Mensah (supra), a case in which I dissented, I said at 517-518 thus:

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

And my brother Acquah JSC in his dissenting opinion in New Patriotic Party v. National Democratic Congress (supra) said at 508:

“In other words, the plaintiff sees from the activities of the first and second defendants, a threatened breach of the Constitution, and therefore comes to court to prevent them from breaching the law. On this, the principle is too trite to require an authority in support that where one discovers from the acts and omissions of others that same constitute a threat to a breach of the Constitution and the law, that person has right of access to the courts to forestall the said threat. If the said acts and omissions are against a provision of the Constitution, then, as Azu Crabbe JA (as he then was) said in Gbedemah v. Awoonor-Williams (1969) 2 G and G 438 of 440, SC it becomes ‘the inescapable duty of the Supreme Court to suppress it by enforcing the Constitution.’”

In Yeboah v. Mensah (supra) where I had the occasion to consider whether a period of limitation, or a plea of laches can apply when a breach of any provision of the Constitution, 1992 is alleged, I had this to say at 524-525:

“The answer should be obvious. The Supreme Court has exclusive jurisdiction to enforce the Constitution against any person whose act or conduct is an infringement of any provision of the Constitution, and the fact that the jurisdiction was not invoked for several years should make no difference to the jurisdiction. And any limitation on a citizen’s constitutional right to enforce any provision of the Constitution cannot be permitted unless expressly stated by the Constitution itself.”

The enforcement of the fundamental law is not the same as the enforcement of personal rights or private litigation.

To read the doctrine of mootness into article 2 of the Constitution, 1992 will be a dangerous step to take. A breach of the Constitution, 1992 cannot be countenanced under any circumstances; nor can any plea of extenuating circumstances be allowed to prevail. A Constitution cannot be operated and defended by such considerations, lest we put expediency above constitutionalism. The mootness doctrine can easily expose the Constitution, 1992 to frequent breaches resulting in subsequent loss of sanctity. A Constitution must be a sacrosanct document and must remain so in all situations or circumstances. And it cannot remain inviolate as a sacred document if certain alleged infringements are denied judicial attention because there are extenuating or special circumstances justifying such a breach. There cannot be any plea of justification when a breach of the Constitution is alleged; otherwise this court could be accused of casting an indulgent judicial eye on certain breaches, by certain persons, of the fundamental law.

This is the sort of approach which, that jewel that once adorned the judicial crown of this country, Apaloo CJ, had in mind when in the case of Kwakye v. Attorney-General [1981] GLR 944 at 958, SC he said:

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

If this court had, in the case of J H Mensah v. Attorney-General (supra), considered the language of article 2 of the Ghana Constitution, 1992 as against that of article III of the American Constitution it would have come to the conclusion that the American doctrine of mootness has its origin in their article III and inapplicable to article 2 of our Constitution, 1992.

I must admit that in the case of Bilson v. Attorney-General [1993-94] 1 GLR 104 at 110, SC, I made certain statements which could be interpreted to mean an application of the doctrine of ripeness to that case. This is what I said:

“Although it may be right to say that there is no law which inhibits the jurisdiction of this court in matters involving the interpretation of the Constitution, 1992 I think it will be worthwhile applying the concept of judicial self-governance or self-restraint in such matters. The judicial authority of which this court is the beneficiary or endowed with is essentially a jurisdiction to deal with real or substantial disputes which affect the legal rights or obligations of parties who appear before us, and whose interests are adverse to each other. These competing interests will necessarily call for specific reliefs through conclusive and certain judicial decree or decrees. In these circumstances the matter could be said to be justiciable and not otherwise. The principle of justiciability precludes us from giving advisory opinions based on hypothetical facts which are not part of an existing controversy.”

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

THE PRESIDENTIAL OFFICE ACT, 1993 (ACT 463) AND ARTICLE 70(1)(e) OF THE CONSTITUTION, 1992

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

“3. (1) The Presidential Office shall be made up of—
(a) persons appointed as presidential staff under this Act one of whom shall be appointed as head of the Office; and
(b) such other public officers as may be seconded or transferred to the office.”

From the above provision it is patently clear that only persons who belong to the first category and are appointed under Act 463 that can be appointed by the President to head the presidential office.

Therefore, the argument hardly need be made that those persons who belong to category two and have either been seconded or transferred from the public service cannot be appointed to head the presidential office; that is to say public office holders, seconded or transferred to the presidential office. Not even a minister of state, not having been appointed under Act 463, can be appointed to head the office.

In respect of those who are appointed under Act 463, one of whom is eligible to head the said office, the procedure for such appointment is provided for in section 4 of Act 463. This is what section 4(1) of Act 463 says:

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

It is therefore a requirement of Act 463, which Act certainly cannot be held to be inconsistent with any provision of the Constitution, 1992, that any appointment under the Act should be made in consultation with the Council of State. Article 70 of the Constitution, 1992 which regulates presidential appointments to certain para-statal organisations provides in clause (1)(e) as follows:

“70. (1) The President shall, acting in consultation with the Council of State, appoint—
...
(e) the holders of such other offices as may be prescribed by this Constitution or by any other law not inconsistent with this Constitution.”

Unless it is the contention of the learned Attorney-General that Act 463 is inconsistent with the Constitution, 1992, then the requirement of the Act that appointments made under it must be done in consultation with the Council of State has to be complied with in order not to infringe article 70 of the Constitution, 1992. That the previous Council of State ceased to exist is clear from the provisions of article 89(1)(5) of the Constitution, 1992 which provides that the term of office of a member is co-terminous with that of a President.

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

The instant case can be distinguished from that of J H Mensah v. Attorney-General (supra) because the latter involved only the interpretation of certain provisions of the Constitution, 1992 rather than an alleged conduct of a person being an infringement of the Constitution, 1992. When the positive conduct of a person, be it an act or an omission, is said to be in breach of the Constitution, 1992, I cannot countenance any submission which will mean giving judicial blessing to the alleged infringement because there are good reasons or reasonable grounds for the person’s conduct. Our oath to defend the Constitution, 1992 neither permits nor gives us the discretion not to defend the Constitution, 1992 when we feel there are extenuating circumstances for the alleged breach.

The next point I would like to deal with is whether a minister of state, being a public office holder, can be appointed to head the presidential office? I do not think so for the person who is eligible to be appointed to head the presidential office must come from among “persons appointed ... under this Act.” It is from this group of persons that “one... shall be appointed as head of the office.” There is therefore also the issue whether the third defendant, Mr Jake Obetsebi-Lamptey, who has been appointed under the Constitution, 1992 as Minister of State for Presidential Affairs, can hold the position of Chief of Staff in the Presidential Office; unless, of course, we are told that the Chief of Staff is not the head of the office. These are some of the important issues, with profound implications for our constitutional law, which will have to be resolved at a full trial and should militate against the summary dismissal of this case.

NON-DISCLOSURE OF REASONABLE CAUSE OF ACTION BY THE PLANTIFF’S WRIT AND STATEMENT OF CASE

This should bring me to a discussing of what we mean and must look for in our jurisprudence when we have an application that a writ and statement of claim be dismissed for disclosing no reasonable cause of action. I do not intend to go into lengthy discourse on this issue. But I must say that we cannot appreciate the nature of such an application unless we have a clear understanding of what a cause of action means within our jurisdiction. Simply put, it means the entire set or combination of facts that gives rise to an enforceable claim: see Spokesman (Publications) Ltd v. Attorney-General [1974] 1 GLR 88 at 91 and 92, CA (full bench). And in the case of Letang v. Cooper [1965] 1 QB 232 at 242-243, HL Lord Diplock offered a very beneficial clarification of the term “cause of action.” His Lordship said:

“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person.”

Under what circumstances can a pleading be struck out for disclosing no cause of action?

In the case of Ghana Muslims Representative Council v. Salifu [1975] 2 GLR 246, CA, the respondent brought an application to strike out the applicant’s pleading under Order 25, r 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) (which this court can apply by virtue of article 129(4) of the Constitution, 1992) and under the inherent jurisdiction of the court. It was pointed out that the difference in practice under the rule and under the inherent jurisdiction of the court is well established. See the case of Lawrence v. Lord Norreys (1890) 15 App Cas 210 at 219, HL where Lord Herschell described the practice under the inherent jurisdiction of the court. This practice, which is different, was explained by Danckwerts LJ in Wenlock v. Moloney [1965] 2 All ER 871, CA. However, speaking about the exercise of the power under the rule, Azu Crabbe CJ said in Ghana Muslims Representative Council v. Salifu (supra) at 261:

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

In the same case, his lordship said at 264:

“The court will not permit a plaintiff to be ‘driven from the judgment seat,’ without considering his right to be heard, ‘excepting in cases where the cause of action is obviously and almost incontestably bad’: per Fletcher Moulton L.J. in Dyson v. Attorney-General [1911] 1 K.B. 410 at p. 419, C.A. And again, as the Lord Justice said later in the same case at p. 420 ‘an order of this kind ought not to be made where there is any reasonable ground for argument as to the maintainability of the action.’”

The headnote to the case of Dyson v. Attorney-General [1911] 1 KB 410, CA is specific about the fact that Order 25, r 4 of LN 140A which enables the court or judge to strike out any pleading on the ground that it discloses no cause of action, was never intended to apply to any pleading which raises a question of general importance, or serious questions of law. This was a case in which Cozens-Hardy MR found himself faced with a situation where important questions of law, raised in the plaintiff’s pleadings were sought to be disposed of summarily by recourse to an application to strike out the pleadings under Order 25, r 4. He recorded his reaction at 414 thus:

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

The question then is should an alleged infringement of the fundamental law in the circumstances indicated in this opinion be given a judicial hush through a summary dismissal of the plaintiff’s case? I do not think so unless, of course, it is very clear that the action is not maintainable on some good legal ground, or that it would be improper for this court to exercise its jurisdiction in the matter.

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

“18. (1) There shall be appointed by the President in accordance with the advice of the Council given in consultation with the Public Services Commission an officer to be designated as the National Security Co-ordinator referred to in this Act as ‘the Co-ordinator.’”

I take it that the presidency can only be blamed for a case of misnomer as the fifth defendant is currently being referred to as “National Security Adviser” instead of “National Security Co-Ordinator.” I am therefore of the view that the defendants’ application to summarily dismiss this case can only succeed in respect of the fifth defendant, Lt Gen Hamidu. Save the above, I will dismiss the application.

ADJABENG JSC.

I agree with my brothers, Ampiah and Kpegah JJSC, that the application must be dismissed. I have had the privilege of reading the opinion of my brother, Kpegah JSC, just read, and I agree with his reasoning. I do not think that it is fair or advisable or both that this important constitutional matter should be dismissed summarily. This is so, especially, when this application was filed at a time when the plaintiff-respondent (hereinafter referred to as the plaintiff) did not have an opportunity to react to the applicants’ statement of case in response to the one filed by the respondent, as this application was filed by the defendants-applicants (hereinafter referred to as the defendants) the same day their statement of case was filed. And, also, both sides were yet to file, at the time, a memorandum of agreed issues to be determined in the plaintiff’s substantive action.

The defendants’ application or motion prays for:

“an order of this court to set aside the plaintiff’s writ and statement of case or to strike out the action by the plaintiff on the grounds that:
(1) this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein;
(2) that no cause of action is disclosed by the plaintiff’s writ and statement of case;
(3) that the questions raised in the plaintiff’s action for determination are moot; ...”

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

“(2) I have the authority of the Attorney-General and the other defendants to swear to this affidavit on their behalf.
(3) I am informed by counsel and verily believe the same to be true that this court lacks the jurisdiction to entertain the plaintiff’s action against the defendants on the grounds that:
(1) the plaintiff’s writ and statement of case disclose no cause of action based on article 2(1) of the Constitution, 1992;
(2) that the questions raised in the plaintiff’s action for determination are moot.”

The plaintiff filed an affidavit in opposition to the application. In paragraphs (3) to (11) of the affidavit in opposition, the plaintiff deposed as follows:

“(3) I deny paragraph (3) of the defendants-applicants’ affidavit in support of their application.
(4) The plaintiff-respondent says that the President of Ghana is amenable to the jurisdiction of this court in the exercise of the executive authority conferred on him by the Constitution.
(5) The plaintiff-respondent says further that the purported appointments of the third, fourth and fifth defendants-applicants as Chief of Staff, Presidential Adviser on Public Affairs and National Security Adviser, respectively by the first defendant-applicant without consultation with the Council of State cannot be said to be an exercise of the executive authority conferred on him by the Constitution.
(6) The plaintiff-respondent says in addition that a declaration or a declaration in the nature of quo warranto can be made by the court against the first defendant-applicant in this action in addition to an order of injunction, or mandamus pursuant to article 2 of the Constitution.
(7) The plaintiff-respondent contends that there are triable issues between the parties in this action.
(8) The plaintiff-respondent contends further that the mere subsequent approval by Parliament, and appointment of the third and fourth defendants-applicants as ministers of state on 6 February 2001 does not render this action moot.
(9) The plaintiff-respondent says that the second defendant-applicant was sued only in a nominal capacity.
(10) The plaintiff-respondent says further that the fact that there was no substantive person appointed as the Attorney-General at the time the writ and statement of case were filed did not mean that no action could be commenced against the State in the name of the Attorney-General.
(11) The plaintiff-respondent maintained that the application to set aside the writ and statement of case has no merit whatsoever.”

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

The Honourable Attorney-General, Nana Akufo-Addo, on behalf of the defendants moved the motion to set aside the plaintiff’s writ and statement of case. He first submitted that the court lacked jurisdiction to entertain the action. He argued that the first defendant, as the President of Ghana, cannot be questioned in respect of the exercise of his executive power or authority. He is, therefore, not amenable to the court’s jurisdiction. The Honourable Attorney-General cited in support the case of New Patriotic Party v. Rawlings [1993-94] 2 GLR 193, SC.

He submitted that this decision in which this court ruled that the President was not amenable to the court’s jurisdiction is binding on the Court. The Honourable Attorney-General also referred to Bimpong-Buta’s Law of Interpretation in Ghana, p 345. He submitted, therefore, that the plaintiff’s writ which brings the President into the suit as a defendant is incompetent. The court, therefore, has no power to entertain the action against the President. Secondly, it was submitted by the Honourable Attorney-General that at the time this action was filed, there was no Attorney-General at post as he had not then been appointed. And as such it was wrong to make the Attorney-General the second defendant in the action. He relied on J H Mensah v. Attorney-General [1996-97] SCGLR 320. In respect of the third and fourth defendants, it was submitted by the Attorney-General that at the time the writ was filed, these defendants had been nominated by the President as ministers of state, and had since been so approved, and sworn in. Consequently, the questions raised in respect of them had become moot. For the above reasons, the Honourable Attorney-General prayed this court to dismiss the plaintiff’s action.

In reply, the plaintiff invited the court to dismiss the application. He argued that the case of New Patriotic Party v. Rawlings (supra) cited by the Honourable Attorney-General in support of his contention that the President is not amenable to the jurisdiction of the court, did not in fact decide that the President cannot be sued in all cases. In his view, the President can be sued under article 2 of the Constitution, 1992, and also in respect of the prerogative writs. The plaintiff cited in support the case of Bilson v. Apaloo [1981] GLR 24, SC.

The plaintiff also submitted that the president has violated article 70(1)(e) of the Constitution, 1992, and also sections 2, 3 and 4 of the Presidential Office Act, 1993 (Act 463). He submitted that the J H Mensah case (supra) did not decide that the Office of the Attorney-General cannot be sued when there is no substantive Attorney-General In his view, the Attorney-General is a nominal party in the present action. The plaintiff finally submitted that the action against the third and fourth defendants was not moot. He therefore, prayed that the motion to set aside the writ and statement of case should be dismissed and the matter gone into on its merits.

Article 70(1)(e) of our Constitution, 1992 provides as follows:

“70. (1) The President shall, acting in consultation with the Council of State, appoint—
...
(e) the holders of such other offices as may be prescribed by this Constitution or by any other law not inconsistent with this Constitution.”

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

“2. The function of the Office is to provide the President and the Vice-President such services as they may require for the efficient and effective implementation of the executive functions of the President and Vice-President under the Constitution and any other law.
3. (1) The Presidential Office shall be made up of—
(a) persons appointed as presidential staff under this Act one of whom shall be appointed as head of the office; and
(b) such other public officers as may be seconded or transferred to the Office.
(2) Subject to section 2 members of the Office shall be assigned such duties as the President may determine.
(4). (1) The President shall, acting in consultation with the Council of State appoint such persons as he considers necessary to hold office as presidential staff in the Office.
(2) The number of persons that may be appointed under sub-section (1) of this section and the grade of the officers shall be determined by the President.”

The complaint of the plaintiff as disclosed in his writ, statement of case and in his arguments before us in this application, is simply that His Excellency, the President, in appointing the third, fourth and fifth defendants herein violated the Constitution, 1992, particularly article 70(1)(e) thereof, and also sections 2, 3 and 4 of Act 463, all quoted above, by not consulting the Council of State as he is required to do by the constitutional and statutory provisions quoted. The issue, to me, is whether His Excellency indeed violated the Constitution, 1992 as alleged. Attempting to answer this question will be going into the merits of the matter.

The Attorney-General says that we cannot go into the matter because we have no jurisdiction to do so. This is because according to him, His Excellency the President cannot be sued. Secondly, that the plaintiff’s action has not disclosed any cause of action. And, thirdly, that the questions raised are moot. In my humble opinion, the last two grounds ought to be rejected at once as being without merit. An issue involving the violation of the Constitution, 1992 cannot, in my view, be said to be an issue disclosing no cause of action, or that it is a question which is moot.

The argument that the President cannot be sued as he is not amenable to the jurisdiction of this court, however, needs scrutiny. Article 57(4) of the Constitution, 1992 which gives to the President immunity from liability for proceedings in any court for the performance of his functions, while in office, provides as follows:

“(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, he liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.”

(The emphasis is mine.)

Article 2 of the Constitution, 1992 also provides as follows:

“2. (1) A person who alleges that—
(a) an enactment or anything contained in or done, under the authority of that or any other enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.
(2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made.
(3) Any person or group of persons to whom an order or direction is addressed under clause (2) of this article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.
(4) Failure to obey or carry out the terms of an order or direction made or given under clause (2) of this article constitutes a high crime under this Constitution and shall, in the case of the President or Vice-President, constitute a ground for removal from office under this Constitution.
(5) A person convicted of a high crime under clause (4) of this article shall—
(a) be liable to imprisonment not exceeding ten years without the option of a fine; and
(b) not be eligible for election, or for appointment, to any public office for ten years beginning with the date of the expiration of the term of imprisonment.”

(The emphasis is mine.)

It is very clear from the above-quoted articles of the Constitution, 1992, ie articles 57(4) and 2(1)–(5), that the President is not immune to proceedings in court in respect of allegations involving the contravention or violation of the Constitution, 1992. Any decision to the contrary must, therefore, be wrong. The Constitution, 1992 is indeed crystal clear on the point.

It must be noted that our Constitution, 1992 has firmly established the rule of law in this country. The Constitution, 1992 makes it clear that everybody in this country, including His Excellency the President, is under the Constitution, 1992 and the law. This clearly is what we mean by the rule of law. It is heartening that governance by the rule of law is one of the cornerstones of the policies of the present government. And I have no doubt that adherence to this policy will indeed bring about real democracy in this county and therefore real freedom, justice and prosperity. In conclusion, I must say that an allegation involving the violation of our Constitution, 1992 is a very serious matter which must be dealt with on its merits. Article 2 of the Constitution, 1992 shows clearly how seriously such a matter is viewed. It is therefore not a matter which should be summarily dismissed on a technical ground.

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

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