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Constitutional Law Notes
Constitutional law (111)
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- CONSTITUTIONAL LAW: VOLUME
Article Article 1 Power exercised, to be on behalf on people
Article 2 (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 the 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.
57, 58, 295 It makes it clear that the president is the government.
Article 12 .) Tells us that the human rights have not been granted by anybody. It talks about rights and freedoms enshrined. Not claiming to be the reason why we have these rights. –Article 12 tells us that rights guaranteed by constitution. They are not granted by government, by Republic of Ghana. 2.) Article 12 tells us that the rights and fluid and dynamic and not static or absolute. If you look at Clause 2, says we have all rights contained but subject to rights and freedoms of others etc.
Article 35 (6B)
Achieve reasonable regional and gender balance in recruitment and appointment to public offices.
Transitional Provisions 34, 35, 37
Indemnity Clauses
Article 56 What Parliament cannot do Article 57 President is president who is head of state, head of government, and commander-in-chief of armed forces of Ghana
Article 57(2) President shall take precedence over all the people/persons in Ghana.
than 140 elected members
Article 94 Qualification of Members of Parliament
Article 95 Speaker is not a member of Parliament.
Article 97 Circumstances in which MP shall vacate his seat.
Article 99 Election disputes of parliament go to High Court (Wolensi Case)
Article 106 Deals with lawmaking process, procedure
Article 112 and 113
It is on terms of Parliament. It is 4 years from time from which MP’s take this oath.
Article 111 Ministers, President, Vice have right to participate, except power to vote.
Article 115- 121
Privileges of MP’s. Court orders cannot be served on MP’s, Speaker, clerk while on way to Parliament, or coming from Parliament.
Article 122- 123
Contempt of Parliament
Chapter 11 (Judiciary)
Article 125 Justice emanates from the people and shall be administered in the name of the Republic by the judiciary which shall be independent and subject only to this constitution.
Article 127 Judicial independence
Article 159 Is the chief justice independent when he acts as an administrator, or is he responsible to the president of the republic? The situation is complicated by Article 159. It says that acting with advice of Judicial Council and upon approval of the president.
Article 146 Removal process of Justice of Superior Court or Chairman of Regional Tribunal
Article 146 (3) If the president receives a petition for the removal of a Justice of the Superior Court other than the Chief Justice or for the removal of the Chairman of the Regional Tribunal, he shall render the petition to the Chief Justice, who shall
determine whether there is a prima facie case.
Article 146(4) Where the Chief Justice determines there is a prima facie case, he shall set up a committee consisting of three justices of the Superior Courts or Chairmen of Regional Tribunals or both, appointed by the Judicial Council and two other persons who are not MP’s nor lawyers. For Chief Justice, you need 2 Supreme Court justices and 3 lay persons.
Article 126(3) All proceedings of every court shall be held in public subject to interest of public morality, public safety, or public order.
Article 153 and 154 Judicial Council – to assist Chief Justice in the administration of the judiciary
Implication of Article 161
Supreme Court judge is not a judicial officer.
Article 157(3) No person sitting in a Superior Court for the determination of any cause or matter shall, having heard the arguments of the parties of that cause or matter and before judgment is delivered, withdraw as a member of the Court or Tribunal, or as a member of panel determining the matter (Aimed at preventing situation in AG v. Sallah)
Article 135(1) Supreme Court shall have exclusive jurisdiction to determine whether an official document shall not be produced in court because its production or the disclosure of its content will be prejudicial to the security of the state or will be injurious to the public interest.
Article 2 and 130 Core of power of Supreme Court found there but the ‘spirit’ that Justice Sowah talks about is scattered all over the document.
Article 21, especially Clause 1 and (Chapter 12 of Constitution) – Freedom and independence of the media
NPP v. GBC
Articles 35-39 Duties of the state Articles 41 Duties of the individual Article 47 Formula for determining relative sizes of constituencies.
Article 280(3)
The president shall, subject to Clause (4) of this Article cause to be published the report of a commission of inquiry together with the White Paper on it within six months after the date of the submission of the report by the commission.
Article 280(4)
Where the report of a commission of inquiry is not to be published, the President shall issue a statement to that effect giving reasons why the report is not to be published.
Procedural Limitations Wari v. Ofori-Atta
Human Rights – Which Court has Jurisdiction 1.) Benneh case 2.) Maikankan 3.) Edusei v. AG
Citizenship 1.) Shalabi v. AG 2.) Captan v. AG 3.) Bologun v. Edusei 4.) Lardan v. AG (Substantive Limitations) 5.) Olympio
Commission/Committes of Enquiry Cases 1.) Awoonor Williams v. Gbedemah 2.) Akainyah v. Republic 3.) Republic v. Asafu-Adjaye
4.) Republic v. Otu & Kwapong 5.) Quayson v. AG 6.) Darkwah v. Republic 7.) Osman v. Awuku Darko
Who Has Capacity to Raise These Constitutional Issues? NPP v. AG (C.I.B. case) –Article 2(1)
State Proceedings Sallah v. AG Tuffuor v. AG NPP v. Rawlings Konadu v. AG
In all these cases above, Attorney General objected to action brought against him and Supreme Court said since no-one sided fight in our legal system and must always be two-sided, must be brought against the Attorney General, and he is the nominal defendant of the state.
-Constitution also brings ours in line with Nixon v. Sirica Conway v. Rimmer NPP v. Rawlings and Another (Rule that you cannot drag President and Vice to court have been applied in this case.)
Ohene v Principal Secretary, Ministry of Finance Buobuh v. Ministry of Interior Kwakye v. Attorney General PPP v. AG Akuffo Addo v. Quashie Idan Levandowsky and Another v. AG Ex parte Abban Mould v de Vine Kwah v. AG Quainoo v. AG
Declaration Shalabi v. AG Captan v. AG NPP v. GBC PPP v. IGP NPP v. Rawlings and Electoral Commissioner Sallah v. AG Tuffuor v. AG J. Mensah v. AG Liversidge v. Anderson
Injunction NPP v. GBC PPP v. IGP NPP v. Rawlings and Electoral Commissioner 31 st December case Balogun v. Edusei Lardan v. AG Ekwam v. Pianim
Injunction Against Republic PPP v. AG Akuffo Addo v. Quashie Idan
-Article 11: Says that the existing law may be construed or modified etc. to bring into conformity with legislation. Ex parte Ofosu Amaah
Chieftaincy Conduah v. Republic
Case Issue/Holding Ware v. Ofori Atta Procedural Limitations
Issue: Whether an Act passed in contravention of a procedural requirement specified by the constitution should be declared null and void and unconstitutional by a Court of Law.
Plaintiff was chief and customary custodian of Ejisu Stool and Act directly affected traditional functions of the chief and Act was invalid since procedure wasn’t followed.
Human Rights – Which Court has Jurisdiction
Benneh case -The entry of judgment purported to be pursuant to the provisions of the Inv. And Forfeiture Assets (NLCD 400). -Basis of Claim: NLCD 400 was repugnant to 1969 constitution, Articles 12 and 18 and therefore void by virtue of 1(2). -Aboagye J. dismissed claim that Supreme Court was the proper forum to pursue it. Appellants appealed contending that action could be brought under Article 28 and that the Supreme Court’s original jurisdiction existed concurrently with the original jurisdiction of the High Court. Appellant therefore had a choice presenting his case either before the High Court or Supreme Court. Held: Where in an action before the High Court, any issue arises as to whether an enactment is inconsistent with the Court, the judge may refer to Supreme Court. In the instant case, the legal position was different in the sense that the nature of the constitutional issue for determination related to the interpretation of a decree which was alleged to be in contravention with the property rights conferred on the appellant under Articles 12 and 18 and as such the Supreme Court did not have any jurisdiction in the matter. Its jurisdiction could only arise in its appellate capacity and the question of reference therefore did not rise.
Maikankan v. Republic
-Counsel for the Republic applied that owing to complications, case should be tried without jury under Articles 20(2) and 112(2) of the 1969 constitution. Held: Trial by jury is compulsory for all offense other than treason is not provided in Article 20(2).
the plaintiff’s right of immunity.
Held: The issuing of a certificate is a very necessary prerequisite to naturalization and once this had not been issued, it lies at the discretion of the Executive to decide whether they would issue it or not. Plaintiff is thus not a Ghanaian citizen and must deport forthwith.
Bologun v. Edusei Deportation amounted to contempt because they interfered with the litigant and put an end to court proceedings and brought the administration of the law into disregard.
Lardan v. AG It was clear that primary purpose was that of impugning order under Deportation Act. Proceedings were thus caught by Deportation Act 57.
Olympio Ratio Decidendi: By Section 4(1) of the 1957 Act, the plaintiff’s father was a British protected person. Thus under Paragraph 1(a) of NLCD 191, plaintiff’s father was a citizen of Ghana (born in Kpando). That the plaintiff’s mother was born at Keta whose mother was also from Keta, for all purposes under the British Nationality Act 1949, the Ghana Nationality Act 1957 and NLCD 191 Paragraph 1(a). She was a Ghanaian by birth.
Commission/Committee of Enquiry Cases
Awoonor Williams v. Gbedemah
The Supreme Court in a majority decision held that the defendant was caught squarely by the provision, noting that the findings of a Commission of Enquiry were not subject to a review by the superior courts of judicature under the constitution. Accordingly, the plaintiff succeeded in his action.
The Court argued that the interpretation put on the words “adjudged or otherwise declared,” for if the constitution had contemplated a formal judgment or declaration by a court, it would not have provided that the disqualification shall be operative from the date of the publication of the report.
Akainyah v. Republic
Corrupt Practices (Prevention) Act, 1964 (Act 230), Akainyah was prosecuted on various counts of offering bribes to influence a public officer, accepting bribes to influence a public officer, and conspiracy with a public officer to commit extortion and corruption.
Commission had no power to pronounce guilt or acquittal. All that it did was to investigate allegations of corruption and it was purely fact finding function even though the Act provided that findings against person was prima facie evidence of guilt. Although it may make adverse findings against any person, not only is that finding not binding on that person but the Commission is without power to enforce its decisions. No liability whatsoever attaches to any person against whom the Commission makes adverse findings until the Attorney General in exercise of the power conferred on him by Section 4 of the Courts Act invokes the judicial power and procures a conviction. If the Commission were a Court, it would be an odd court since after having adjudged guilt it would be entirely powerless to impose punishment of any sort.
Republic v. Asafu Adjaye
Charges were preferred against the accused as a result of adverse findings made against them by the Ollenu Commission.
The Court held that the jurisdiction of a judge before whom a person is brought under Act 230 to show cause why he shouldn’t be sentenced is analogous to that of an appellate tribunal called upon in an appeal against conviction to review the facts upon which the conviction is based.
Akuffo-Addo J. Section 5(2), An adverse finding constitutes a prima facie case against the person concerned and the finding assumes that character only when the Attorney General in his discretion decides to prefer a charge against a person about whom an adverse finding has been made. Without any such charge being preferred by the Attorney General, the finding remains a bare finding of fact.
Republic v. Otu Section 7 of the Commission of Enquiry Act, 1965 (Act 250) had been read to them. It read, “It shall be an offence punishable if a person summoned under this Section before a Commission refuses to attend, refuses to take an oath, refuses to produce any document, or refuses to answer any question or does anything which would if the commission had been sitting as a court, have been contempt of the court.”
Held: The unwillingness/refusal of the respondent to take the oath to give evidence can’t amount to contempt in the special circumstances of this case.
Sallah v. AG Tuffuor v. AG NPP v. Rawlings Konadu v. AG
In all these cases, Attorney General objected to action brought against him and Supreme Court said since no-one sided fight in our legal system and must always be two-sided, must be brought against the Attorney General, and he is the nominal defendant of the state.
NPP v. Rawlings and Another NPP v. Rawlings and Another
(Rule that you cannot drag President and Vice to court have been applied in this case.)
Ohene v Principal Secretary, Ministry of Finance (Lotteries and Betting Act)
Held: Since the defendant hadn’t been authorized by the Attorney General or specified under any law to have an action brought against him according to Section 10(2) of Act 51, then he wasn’t a proper party to a suit brought against the Republic. ii.) Under Order 16 and 11, the Attorney General could be substituted by the court as defendant. The name of the principal secretary, mainly Minister of Finance should therefore be struck out. -Section 10(2) of the State Proceedings Act, 1961 (Act 51) provides that civil proceedings against the Republic may be instituted against the Republic or may be instituted against the Attorney General or any officer authorized in that behalf by him, or any officer specified in that behalf under any law for the time being in force. Section 12 further provides, -Under 16 and 11 of the Supreme (High) Court (Civil Procedure) Rules, 1954 (L 140 A), the Court had power either upon or without the application of either party to substitute a party as plaintiff or defendant on such terms as may seem just. Court therefore ordered that the Attorney general be substituted as the defendant in the matter and that the name of the Minister of Finance be struck out and case to take its normal course.
Kwakye v. AG A trial or purported trial of the plaintiff and thus giving effect to the ouster clause in Section 15(2) of the Transitional Provisions of the 1979 constitution.
The Supreme Court by a five-two majority decision held that (on the basis of the evidence placed before it), the phrase “judicial action taken or purported to have been taken” appearing in Section 15(2) of the Transitional Provisions to the 1979 constitution, must bear its ordinary, literal, dictionary meaning, that is, as an action which was not a judicial action properly so called but which looked like, was
intended to be, or which had the outward appearance of a judicial action.
PPP v. AG Although Section 13 of Act 51 prohibits the issue of an injunction against the police, it does authorize the court to make a declaration of the rights of the applicant.
Akuffo Addo v. Quashie Idan
Issues: i.) Whether the first and second defendants (Chief Justice, General Secretary) are “servants of the Republic” as intended by Act 51. ii.) Whether an injunction against the first and second defendants would operate as an injunction against the Republic itself.
Two defendants are servants of the Republic and injunction of the first and second defendants acts as an injunction against the Republic.
Levandowsky v. AG Order sought could not be enforced even if the court granted it since Section 15(4) of State Proceedings Act 51 would prevent the applicant from competently levying execution against the respondent. Act 51 Section 15(4): .. aforementioned, no execution/attachment or process in the nature thereof shall be issued out of any act for enforcing payment by the Republic of any such money as aforesaid and no person shall be individually liable under any order for the payment by the Republic or any department/servant of the Republic of any such money or costs.
Ex parte Abban -The Medical and Dental Board has a function of to register medical practitioners who satisfy the condition as to qualification. This is clearly a public duty entrusted to the Board by enactment and mandamus will lie to enforce statutory rights or to require public officials to carry out their duties. There’s thus no discretion here and the case falls within the class of cases where officials having a public duty to perform and having refused to perform it, mandamus will lie on the application of a person interested to compel them to do so.
Mould v. de Vine Mandamus lies to compel a public body to perform a public duty which it has failed to discharge.
Kwah v. AG Counsel for plaintiff however argued that by Article 211 of
rights. Where personal service is not possible because the defendant is abroad, service is allowed to be effected on the agent of the defendant who is within the jurisdiction and who is in regular communication with the defendant and has also been managing the particular matter involved in the suit. Such an agent becomes the alter ego of the principal and service of process upon him becomes an effective service upon the principal creating the agency. Personal service is not required in those circumstances except when a person is to be made criminally responsible. Since Larnyo was the alter ego of Mallam Sallow and had defended the suit at the Asantehene’s divisional court B1, he must be deemed to have admitted service of the writ of summons. Service ofprocess has therefore been affected in accordance with rules. v.) An applicant for an order of certiorari must be either a person aggrieved or a person who has a real or a substantial interest in the proceedings before the Asantehene’s Divisional Court B1. He did not claim to have either a vested or reversionary interest in the property in question. He did not disclose the capacity in which he brought the application, neither had he shown any peculiar grievance of his own beyond some inconvenience suffered in common by the general public. He had therefore failed to bring himself within either category. He must therefore be deemed for all practical purposes to be a stranger to the proceedings.
Ahenkorah (Certiorari)
The appellant made a successful application to the Supreme Court for an order of certiorari to quash the proceedings of the committee and the Governor-General's confirmation thereof, on the ground that the terms of reference of the committee gave no authority to investigate and make a finding on the re-enstoolment of the destooled chief. The Court of Appeal reversing the Supreme Court, held, inter alia, that the finding of the committee was one which it was competent to make. On further appeal to the Privy Council,
Held: the reference was in terms sufficient to entitle the committee to report as it had done. The committee had under the ordinance, a freedom to operate within the limits of the jurisdiction conferred on it, just as a State Council had in a similar dispute. The propriety or otherwise of the destoolment of Nana Ntiamoah Kofi III was one of several matters referred to the committee for investigation and the committee acted within its jurisdiction when it found that the destoolment was unlawful. Judgment of the Court of Appeal
Affirmed.
C.I Case The Court of Appeal correctly stated that certiorari always would lie against a person who had to act judicially but not against purely administrative acts. When the commissioner made the provisional assessment he was only acting in an administrative capacity, and his role would only have been transformed into that of an adjudicator, required to act judicially, if the respondents had raised an objection.
Eku alias Condua This is an appeal against a decision refusing an application for an order of certiorari to remove into the High Court for the purpose of quashing the proceedings and judgment of the Shama State Council in a dispute between the parties as to the headship of a fishing community and as to the right to collect tolls from the fishermen in the community. Held: It’s beyond the possibility of any argument that the State Council was vested by the Native Administration Ordinance with jurisdiction to interfere in matters relating to the headship of a village community. Jurisdiction to adjudicate in disputes concerning a headman was reserved either for the Divisional Chief Tribunal or Paramount Chief’s Tribunal, so also jurisdiction in ordinary civil and criminal matters was reserved for the Paramount Chief’s (Divisional Chief’s Tribunal and this matter was within the exclusive jurisdiction of the Paramount Chief’s Tribunal who had a discretion to confirm/approve the appointment of a headman or to dismiss him). Appeal allowed, and decision of Council, a nullity.
Mandamus
Mould v. de Vine Mandamus lies to compel a public body to perform a public duty which it has failed to discharge.
Ex parte Dizengoff Whether the Controller and Accountant-General could be compelled by mandamus to authorise payment, and if he could, whether in the particular circumstances mandamus was the appropriate remedy.
Held: Mandamus should not issue because:
(a) N.L.C. 165 did not create any legal duty between the parties and the applicant had failed to prove the existence of any statutory or common law duty which had been imposed
Constitutional Law Notes
Course: Constitutional law (111)
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