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Kuenyehia AND Others v Archer AND Others
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KUENYEHIA AND OTHERS v ARCHER AND OTHERS
[1993-94] 2 GLR 525
Division: SUPREME COURT, ACCRA Date: 25 MAY 1993 Before: ADADE, FRANCOIS, AMUA-SEKYI, AIKINS, EDWARD WIREDU, BAMFORD-ADDO AND HAYFRON-BENJAMIN JJSC Courts — Supreme Court — Composition — Empanelling of court — Power of Chief Justice — Minimum number of justices to sit on any case in Supreme Court fixed at five except for exercise of review jurisdiction — Oath of allegiance and judicial oath administered to continuing justices of the Supreme Court and Court of Appeal by Chief Justice on coming into force for Constitution, 1992 — Action by plaintiffs for; inter alia, declaration that swearing of oaths to justices by Chief Justice unconstitutional — Court of seven empanelled by Chief Justice to sit on matter — Request by plaintiffs that all justices of Supreme Court excluding Chief Justice be empanelled to hear matter on account of its constitutional importance — Empanelling of Supreme Court sole prerogative of Chief Justice — Whether plaintiffs request sustainable — Constitutional 1992, arts 128(2) and 133. Constitutional law — Justices of superior courts — Oaths of office — Persons empowered to administer oath of allegiance and judicial oath to continuing superior court justices on coming into force of Constitution, 1992 — Article 156 providing for administration by President of oaths to newly appointed justices of superior courts before they assume office under Constitution — Section 4 of Schedule 1 providing that continuing justices of superior courts take and subscribe oaths set out in Schedule II — Section 4 however silent as to proper person to administer oaths — Oaths administered to continuing superior court justices by Chief Justice — Action by plaintiffs for inter alia, declaration that swearing of oaths to continuing superior court justices by Chief Justice unconstitutional because President is one empowered to do so — Indicators under oaths set out in Sched II listing both President and Chief Justice as persons entitled to administer oaths — Whether swearing of oaths to continuing superior court justices by Chief Justice unconstitutional — Constitution, 1992, art 156(1) and (3); Sched 1, ss 4 and 25; and Sched II — [p] of [1993-94] 2 GLR 525 Oaths Decree, 1972 (NRCD 6), s 9 and Sched II, col 3. Statutes—Construction—Schedule—Status of—Significance of schedule to statute—Article 156 of Constitution, 1992 providing for administration by President of oath of allegiance and judicial oath to newly appointed justices of superior courts before they assume office under Constitution—Section 4 of Sched 1 also providing that continuing justices of superior courts take and subscribe oath of allegiance and judicial oath set out in Schedule II—Section 4 however silent as to proper person to administer oaths—Oaths administered to continuing superior court justices by Chief Justice on coming into force of
Constitution, 1992—Action by plaintiffs for inter alia declaration that swearing of oaths to continuing superior court justices by Chief Justice unconstitutional because under article 156(1) and (3) and section 4 of Schedule I the President is the proper person to do so—Indicators under oath of allegiance and judicial oath set out in Constitution, 1992, Sched II listing both President and Chief Justice as persons entitled to administer oaths—Section 25 of Constitution, 1992 Sched I continuing in force provisions of NRCD 6 subject to provisions of Constitution—Whether provisions of Schedule II of Constitution to be taken into account in determining proper persons to swear oaths to continuing justices of superior courts—Constitution, 1992, art 156, Sched I, ss 4(2) and 25 and Sched II—Oaths Decree, 1972 (NRCD 6), s 9 and Sched II, col 3. Statutes—Constitution—Footnotes—Status of—Article 156 of Constitution, 1992 providing for administration by President of oath of allegiance and judicial oath to newly appointed justices of superior courts before they assume office under Constitution—Section 4 of Sched I providing that continuing justices of superior courts take and subscribe oaths set out in Schedule II—Section 4 however silent as to proper person to administer oaths—Oaths administered to continuing superior court justices by Chief—Justice Action by plaintiffs for, inter alia, declaration that swearing of oaths by Chief Justice to continuing superior court justices unconstitutional because the President is the proper person to do so—Plaintiffs contending that indicators at tail end of oaths set out in Schedule II mere footnotes and not to be taken into account in determination of issue—Validity of claim—Section 4 of CA 4 not providing for use of footnotes or indicators as aid to construction—Whether footnotes or indicators under oaths set out in Schedule II to be taken into account in determining proper person to swear continuing superior court justices into office—Constitution, 1992, art 156(1) and (2), Sched I, s 4 and Sched II—Interpretation Act, 1960 (CA 4), s 4.
HEADNOTES
It is provided by the Constitution, 1992, arts 156(1) and (3); 299 and Sched I, ss 4 and 25 that: 156. (1) A Justice of a Superior Court, the Chairman of a Regional Tribunal, and also a person presiding over a lower court or tribunal, and any other judicial officer or person whose functions involve the exercise by him of judicial power shall, before assuming the exercise of the duties of his office, take and subscribe the oath of allegiance and the Judicial Oath set out in the Second Schedule to this Constitution. (3) The oath of allegiance and the judicial oath required by this article shall be taken and subscribed— (a) in the case of Chief Justice or other Justice or other Justice of a Superior Court, and a Chairman of a Regional Tribunal, before the President; and [p] of [1993-94] 2 GLR 525 (b) in the case of any other person, before the Chief Justice or before any other Justice of a Superior Court or Chairman of a Regional Tribunal as the Chief Justice may direct. 299. The transitional provisions specified in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this Constitution. 4. (1) A Justice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution, shall continue to hold office as if appointed to that office under this Constitution. (2) Any person to whom this section applies shall, on the coming into force of this Constitution,
(1) the minimum number of justices of the Supreme Court to sit at any time was, under article 128(2) of the Constitution, 1992, fixed at five except as otherwise provided in article 133 relating to the courts review jurisdiction; and the Constitution did not lay down any rule that all justices of the Supreme Court should be empanelled to adjudicate on any particular issue. Hence, while it might be desirable that each justice should have the opportunity to state an opinion on the specific articles and sections of the Constitution, it was neither mandatory nor necessary that that was done. Furthermore, the power or the right to empannel the Supreme Court was, under the law and the practice of the court, the prerogative of the Chief Justice with the consequence that unless there was very good reason for seeking a change on grounds such as legal bias, the court would be loathe to interfere with the Chief Justice’s exercise of his prerogative. In the instant case no such ground was advanced. Consequently, to grant the preliminary request would be to set an unhealthy precedent whereby the court would be ceding to litigants the right to dictate the strength of the panel of the court at any time. Dicta of Amisah JA in Akufo-Addo v Quarshie-Idun [1969] GLR 667 at 673-674, CA; of Francois JSC in [p] of [1993-94] 2 GLR 525 Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598 at 601 , SC and of Hayfron-Benjamin JSC in Afranie II v Quarcoo [1992] 2 GLR 561 at 622 applied. Per Francois JSC. In my respectful view the submission made on behalf of the plaintiffs did not persuade me as legally commendable. The power or the right to empanel judges to sit on cases have by convention, use and practice become the exclusive preserve of the Chief Justice. He has constitutional responsibility for the smooth administration and supervision of he judiciary. He is the constitutional head of the judiciary. The right to empanel justices by the Chief Justice are in accordance with precedents and authority. He has no power to delegate or waive that responsibility or that duty in favour of any other person whilst in office and is able to act... (2) (Per Francois, Aikins, Edward Wiredu, Bamford-Addo and Hayfron-Benjamin JJSC). Section 4 of Schedule I of the Constitution, 1992 should be construed in its own right as applicable only to justice who held office immediately before the coming into force of the Constitution, 1992 and who continued in office thereafter; but not construed together with article 156 of the Constitution so as to extend the provisions of article 156 to continuing justices who held office by virtue of section 4 because: (a) On a true and proper construction, the provisions of article 156 contained limitations which made the article applicable only to justices fo the superior courts appointed after the coming into force of the Constitution, 1992. First, the phrase “before assuming the exercise of the duties of his office in its plain meaning signified that the oath-taking and its subscription was to be done before the justices exercised judicial power for the first time; and secondly, the prescribed oaths related only to conditions stipulated by “this article”, namely article 156. Hence, any attempt to extend the scope of article 156 to continuing justices would be clearly subversive of the mandatory directions restricting its ambit. Dicta of Tindall CJ in sussex Peerage Case (1844) 11 CI & Finn 85 at 143, HL; of Cockburn CJ in R v Bishop of Oxford (1879) 4 QBD 245 at 261; of Lord Davey in Canada Sugar Refining Co v R (1898) AC 735 at 741; of Lord Summer in Inland Revenue Commissioner v Brooks (1915) AC 478 at 493, HL; of Denning LJ in Seaford Court Estates Ltd v Asher [1949] 2 KB 481 at 498-499; of Viscount Radcliffe in Adegbenro v Akintola [1963] 3 WLR 63 at 73, PC; of Lord
Wilberforce in Minister of Home Affairs v Fisher [1979] 3 All ER 21 at 26 and of Sowah JSC (as he then was) in Tuffuor v Attorney-General [1980] GLR 637 at 647 - 648 , CA sitting as SC applied. [p] of [1993-94] 2 GLR 525 Per Bamford-Addo JSC. To ascertain the ordinary meaning of article 156(3) (a) it is necessary to fine out the ordinary meaning of the word “before.” “Before” is defined in the Oxford Advanced Learners Dictionary as “earlier in time.. .ahead of”. If this is the meaning to be given to the word “before” in article 156, then the ordinary meaning of clause (3)(a) is that the Chief Justice, or other justices of the superior court and chairmen of Regional Tribunals are required to take and subscribe the judicial oath and the oath of allegiance before they can assume their functions as judges. Quite clearly the taking of the oaths is a condition precedent to the assumption of duties as indicated by the word “before.” Further it seems to me that the clear intention is that article 156 should apply to the class of judges mentioned in article 156 ... There is a difference between the word “before assuming the exercise of the duties of his office” contained in article 156(1) of the Constitution, and the words “shall continue to hold office” in section 4(1) of the First Schedule (transitional provisions. Whereas the former phrase implies the time when the oaths are to be taken, as well as the requirement of satisfaction of a precondition by use of the word “before”, the latter implies that the precondition has already been complied with and the office holder is permitted to “continue” to hold office. These two provisions are referable to two different classes of judges, namely future superior court judges to be appointed under article 144 of the Constitution, and those who have already been appointed and exercising judicial functions before the coming into force of the Constitution, 1992. The former class of judges are required under article 156(3)(a) to take and subscribe their oaths before the President, and the latter class in accordance with the provisions of section 4 and 25 of the transitional provisions and NRCD 6. Per Hayfron-Benjamin JSC. I think that this rendering of article 156(1) is simple enough for the common man to understand. The clause is specific. It is only those judges who will be assuming office under this Constitution who will be required as a condition precedent to their assumption of office to subscribe to the two oaths before the persons specified in clause (3) of that article. Further, in plain English, when a person is in office and goes away on vacation and returns he does not “assume” his duties, he “resumes” his duties. Certainly there must be a distinction between those who are already in office and those newly entering office. That to me is the true intendment of Article 156(1). Contra per Adade JSC. It has been argued that article 156(1) applies only to new judges, and has no application to sitting justices. The ground adduced in support of this contention is the phrase: “... before assuming the exercise of the duties of [their] office...” appearing in article 156(1)of the Constitution, 1992. I am not attracted by the arguments advanced that article 156(1) [p] of [1993-94] 2 GLR 525
provisions), not under any other law. To my mind the phrase “before assuming the exercise of the duties of their office” appearing in article 156(1) cannot be limited to post-constitution appointees only: it applies to sitting judges too. Therefore article 156 applies to both categories of judges. They are both required to take the same oaths as appear in Schedule 2, and the administering officer is as mentioned in article 156(3) ie the President. (b) The language of section 4 of Schedule 1 of the Constitution, 1992 was very plain and would consequently be construed in its ordinary or natural sense, unless such a construction led to some ambiguity or absurdity. Thus construed, it was evident from section 4(1), which clearly referred to justices of the Supreme Court and Court of Appeal “holding office immediately before the coming into force of this Constitution”, that the section was intended to cover continuing judges only. Furthermore, since section 4 did not in any way refer to article 156 of the Constitution, nor did article 156 refer to section 4, it was legally unacceptable in the face of the clear and unambiguous language of section 4 of Schedule 1 to read its provisions with that of article 156 which by itself language was itself clearly applicable only to justices appointed under the Constitution, 1992. Moreover, given the historical antecedents of the law on oath-taking and subscription, particularly under the Constitutions, 1969 and 1979, in which continuing justices had always been dealt with differently from newly appointed justices and in which the Chief Justice had always had a role to play, there was no doubt that if a change was contemplated in the Constitution, 1992 linking justices already in office with newly appointed justices or abrogating the role of the Chief Justice, an express of unambiguous statement to that effect would have been made. dicta of Tindal CJ in Sussex Peerage Case (1844) II CI & Fin 85 at 143, HL; of Cockburn CJ in R v Bishop of Oxford (1879) 4 QBD 245 at 261; of Bowen LJ in Curtis v Stovin (1889) 22 QBD 513 at 517; of Esher MR and Lindley LJ in The Duke of Bucclench (1888-90) 13-15 PD 86 at 90 and 96 respectively; of Lord Davey in Canada Sugar Refining Co v R (1898) AC 735 at 741; of Lord Summer in Inland Revenue Commissioners v Brooks (1915) AC 478 at 493, [p] of [1993-94] 2 GLR 525 HL; of Lord Dunedin in Whitney v Inland Revenue Commissioners (1926) AC 37 at 52; of Denning LJ in Seaford Court Estates Ltd v Asher [1949] 2 KB 481 at 496; of Devlin J in National Assistance Board v Wilkinson [1952] 2 All ER 255 at 260; of Viscount Radcliffe in Adegbenro v Akintola [1963] 3 WLR 63 at 73; of Lord Simon in Black-Clawson International Ltd v Papierwerke Waldof-Aschaffenburg AG [1975] 1 All ER 810 at 847; of Lord Wilberforce in Minister of Home Affairs v Fisher [1979] 3 All ER 21 at 26 and of Sowah JSC (as he then was) in Tuffuor v Attorney-General [1980] GLR 637 at 647 - 648 , CA sitting as, SC applied. Per Francois JSC. In the particular circumstances of this case, it cannot be said with any degree of realism that the draftman could not in article 156(1) have added “while continuing in office” to add or link the second surely have omitted the limitation in article 156(3) “the judicial oath required by this article,” to include both categories if he were so minded, and not exclude it as he positively did. Thirdly he would have removed the specific directions on oath-taking appearing in section 4 of the transitional provisions, if that was his intention. In this way he could easily have
contained in the same pen judges already in office and these to be yoked in the future. This shows the utter futility in reading into section 4 of the transitional provisions something more than is actually stated. These extensive references to constitutional guidelines have become necessary since an essential plank of the plaintiffs’ case is an implict linkage between article 156 and section 4 of the transitional provisions and the issue simply has been whether this linkage is permissible, helpful, or destructive of the legislative intent of the fundamental provisions of our Constitution. The answer is obvious. Per Edward Wiredu JSC. The makers of the Constitution cannot be said to have been unaware of this provision and the procedure therein spelt out under article 156. In fact they are presumed to be aware of it. If they had intended or contemplated that the procedure prescribed under article 156 to govern the requirement envisaged under section 4(2), supra they would have specifically stated so and in no uncertain terms by adding immediatley after the phrase “Second Schedule to the Constitution“, the words “as provided under Article 156(3) of this Constitution.” (The emphasis is mine.) The absence of such clear words to that effect leaves room for any other permissible procedure to be resorted to. In the absence of such clear words, one would be committing fatal violence and would be doing unpardonable injustice to the language and spirit of section 4(2), supra by restricting its legitimate parameters of operation. Moreover, the language of article 156 emphasises the words or the phrase “before assuming the exercise of his duty of office.” [p] of [1993-94] 2 GLR 525 Justice within the contemplation of section 4(2), supra have already assumed the duties of their office and are continuing within the language and spirit of the constitutional provisions under 4(1). If such justices were within the contemplation of article 156 as is being urged on behalf of the plaintiffs, a language similar to the following would also have been specifically used: “A Justice of a Superior Court... shall before assuming the exercise of the duties of his office under this Constitution, make and subscribe.. .in 156(1). (The emphasis is mine.) (c) By its language and true effect, article 299 of the Constitution, 1992 gave the provisions of Schedule I (transitional provisions) of the Constitution supremacy in order of precedence over the provisions in the main body of the Constitution with the consequence that in the event of conflict between a provision of Schedule I and one in the main body, that in Schedule 1 prevailed. Hence, it would be clearly subversive of the spirit and effect of article 299 to read the provisions of section 4 of Schedule I together with that of article 156 so as to make the provisions of article 156 prevail over section 4(2) of Schedule I. Per Edward Wiredu JSC. The argument submitted on behalf of the plaintiffs, though ingeniously, brilliantly and confidently argued, their legal force pale into insignificance when one looks at the mighty force of the language of article 299 which has placed the First Schedule (transitional provisions) in their own world by clothing them with supremacy over the other provisions in the main body of the Constitution, 1992. In other words, where an act can be legitimately done within the framework of the First Schedule of the transitional provision, no consideration should be given to any other article in the body of the Constitution which runs contrary to the act lawfully done under the schedule. Sections 4 and 25 of the transitional provision which in my respectful view are relevant in determining the matter in controversy between the parties take the swearing-in of continuing justices of the
linkage theory alluded to above, which attempts [p] of [1993-94] 2 GLR 525 to extend the ambit of article 156 to the transitional provisions is subversive of the Constitution which demands that directions to be complied with in the Second Schedule created under the First Schedule, must be given their unalloyed force. (4) (Per Aikins and Hayfron-Benjamin JJSC). Although footnotes were on account of section 4 of the Interpretation Act, 1960 (CA 4) as amended, not part of an enactment in Ghana, they could still serve as useful guides to the interpretation of enactments, particularly in cases of enactments in which such footnotes were mentions as the already existing and established and might consequently well form part of the enactment; or where, as in the instant case, the footnotes were made part of the enactment by competent and responsible persons and could therefore not be ignored in their interpretation. Dicta of Collins MR in Bushell v Hammond [1904] 2 KB 563 at 567 and in smith v Portsmouth Justice [1906] 2 KB 229 at 235, CA; and of Phillimore LJ in Re Working Urban Council (Basing Stoke Canal) Act, 1911 [1914] 1 Ch 300 at 322 applied. (5) The proper person or authority to administer the oath of allegiance and/or the judicial oath to continuing judges of the Supreme Court and Court of Appeal in the instant case could only be determined by the cumulative effect of sections 4 and 25 of Schedule 1 of the Constitution, 1992 and the provisions of the Oaths Decree, 1972 (NRCD 6) as amended. Since section 4 of Schedule 1, which induced Schedule II in the instant case, was silent as to the proper person or authority to administer the two oaths to continuing justices of the superior courts, the proper person or authority had to be determined in terms of NRCD 6 as continued in force by section 25 of Schedule I, the true effect of which was to incorporate the provisions of Schedule II of the Constitution into the provisions of NRCD 6 and thereby making the provisions of NRCD 6 as amended applicable to the swearing of continuing justices. Specifically then, section 25 of Schedule I of the Constitution, 1992 had the effect of making the indicators under the forms of oath in Schedule II creatures of NRCD 6. Furthermore, by virtue of section 9 of NRCD 6 as amended, the Chief Justice was empowered generally to administer any lawful oath or take any lawful affirmation which may be required to be taken or made for the purpose of complying with any law for the time being in force in Ghana or elsewhere, except where such excluded such a procedure; and by the combined effect of the directions in Schedule II of NRCD 6, which remarkably stated the law in the same terms as Schedule II of the Constitution, 1992, the Chief Justice was given concurrent authority in his own right to administer the oath of allegiance and the judicial oath to justices of the superior courts. In the circumstances, and in the absence of any express prohibitory language to the contrary in section 4 of Schedule I of the Constitution, 1979, the administration of the oath of allegiance and judicial to continuing justice of the Supreme Court and Court of Appeal aforesaid was legitimate [p] of [1993-94] 2 GLR 525 and not unconstitutional. And since both the President and Chief Justice had concurrent jurisdiction to administer the two oaths, the question of whether or not the President had properly delegated or designated the Chief Justice to swear the oaths to the continuing justices of the Supreme Court and Court of Appeal was otiose. Dictum of Cockburn LJ in R v Bishop of Oxford (1879) 4 QBD 245 at 261; of James LJ in Re Barker (1881) 17 ChD 241 at 243 and of Sowah JSC (as he then was) in Tuffuor v Attorney-General [1980] GLR 637 at 661 , CA sitting as SC applied.
Per Edwaard Wiredu JSC (i) The indicators spelt out under the Second Schedule to the form of Oaths derive their authority from section 25 of the transitional provision. They are not reflections or extensions of the procedure prescribed under article 156. They are part of the general legal forms of oaths under the Second Schedule to the Constitution. They are creatures of NRCD 6 and are recognised by section 25 of the transitional provisions. By the Second Schedule (section 2) of NRCD 6, the indicators (with particular reference to the oath of allegiance and the judicial oath) specify the persons authorised to tender or administer them. It will be seen clearly there that the power of the Chief Justice to tender or administer such oath is second to the President in order of preference. The authority of the Chief Justice as shown in the indicators is concurrent and in fact is co-ordinate with that of the President. He has this power in his own right and that power emanates from the Oaths Decree itself. Within the particular context of this instant case, it was Oaths Decree itself. Within the particular context of this instant case, it was exercised outside the provisions of article 156. (ii) An attempt was made to find out why there should be two different modes of administering the oath of allegiance and the judicial oath for continuing justices and those to be appointed under article 144 of the Constitution. My short answer is that in my respectful view, that is the clear and unambiguous language of section 4 of the First Schedule (transitional provision) and article 156 of the Constitution, respectively. The language of two admit of no other interpretation. The two provisions make it clear that the Constitution recognises and envisages two kinds kinds of Justices of the superior courts ie those holding office on the coming into force of the Constitution, 1992 who are to continue under section 4 and those to be appointed under article 154 who are to take and subscribe to the oaths before assuming the exercise of their duties of office, as required by article 156. Any attempt to find an answer to that question would be speculative and will throw us into the realm of conjecture. It is pertinent to note that article 145(1) provides different retiring ages for both Supreme Court and the Appeal Court Judges on the one hand and those of the High Court and the chairmen of the Regional Tribunal on the other, although these are all superior court judges. Why the difference? One should not speculate the answer. Per Bamford-Addo JSC. (i) Section 4 of the transitional provisions, [p] of [1993-94] 2 GLR 525 unlike article 156, provided no specific point in time for taking oaths; no mention was made of the President as the only person entitled to administer the said oaths and the list of judges did not include chairman of Regional Tribunals which is new post created under Constitution. So then one would ask, before whom are the “sitting” Judges to take their oaths? It is my view that the key to this question can be found in the provisions and the Second Schedule of the Constitution , 1992. According to section 4(2), the oath of allegiance and judicial oath specified in Second Schedule are those to be sworn by the “sitting” judges listed in section 4. But section 25 provides also that: “The Oaths Decree, 1972 (NRCD 6) as amended shall have effect subject to the provisions of this Constitution.” Since section 25 and every word in that section must be given effect, section 25 must necessarily mean that NRCD 6 as amended should be read together with section 4(2). The amendment to NRCD 6 as I see it can be found in section 4(2) which specifies that the oaths to e sworn are in the mode and form set out in the Second Schedule of the Constitution, in other words, not those set out in the First Schedule to NRCD 6. The Oaths in Second Schedule of the Constitution are longer and more detailed than those in the First Schedule of NRCD 6 and to that extent NRCD 6 has been amended. In my opinion this is the proper meaning of section 25.
(13) Seaford Court Estates v Asher [1949] 2 KB 481; [1949] 2 All ER 155; 93 SJ 424, CA; affirmed sub nom Asher v Seaford Court Estates [1950] AC 508; [1950] 1 All ER 1018, HL. (14) Sussex Peerage Case (1844) 11 C1 & Finn 85; 6 State Tr (NS) 79; 3 LT (OS) 277; 8 Jur 793; 8 ER 1034. (15) R v Bishop of Oxford (1879) 4 QBD 245; 40 LT 152; 43 JP 237. (16) Canada Sugar Refining Co v R [1898] AC 735; 67 LJPC 126; 79 LT 146; 14 TLR 545, PC. (17) Re Barker (1881) 17 ChD 241; 50 LJCh 334; 44 LT 33; 29 WR 873, CA. (18) Attorney-General v Lamplough (1878) 3 Ex D 214; 47 LJQB 555; 38 LT 87; 42 JP 356; 26 WR 323, CA. (19) Inland Revenue Commissioners v Gittus [1920] 1 KB 563; 89 LJKB 313; 122 LT 444; 36 TLR 151; 64 Sol Jo 208, CA. (20) Panogotis v Owners of S S Pontiac [1912] 1 KN 74. (21) Pretty v Solly (1859) 26 Beav 606; 33 LTOS 72; 53 ER 1032. [p] of [1993-94] 2 GLR 525 (22) Ebbs v Boulnois (1875) 10 Ch 479; 44 LJCh 691; 33 LT 342; 23 WR 820. (23) Churchill v Crease (1828) 5 Bing 117; 2 Moo & P 415; 7 LJOS CP 63. (24) Afranie II v Quarcoo [1992] 2 GLR 561 at 621 , SC. (25) Bilson v Apaloo [1981] GLR 15, SC. (26) Judges v Attorney-General for Saskatchewan (1935) 35 TLR 464; 81 Sol J, PC. (27) Akufo-Addo v Quarshie-Idun [1968] GLR 667, CA. (28) Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598, SC. (29) Smith v Portsmouth Justice [1906] 2 KB 229; 75 LJKB 851; 95 LT 5; 70 JP 497; 54 WR 598; 22 TLR 650 Sol Jo 575, CA. (30) Re Working Urban Council (Basing Stoke Canal) Act, 1911 [1914] 1 Ch 300; 83 LJCh 201; 110 LT 49; 78 JP 81; 30 TLR 135; 12 LGR 214, CA. (31) Whitney v Inland Revenue Commissioners [1926] AC 37; 10 TC 88; 95 LJKB 165; 134 LT 98; 42 TLR 58, HL. (32) Curtis v Stovin (1889) 22 QBD 513; 58 LJQB 174; 60 LT 772l 37 WR 315; 5 TLR 248, CA. (33) The Duke of Buccleuch (1889) 15 PD 86; 62 LT 94; 6 Asp MLC 471, CA; on appeal sub nom Eastern S S Co Ltd v Smith, The Duke of Buccleuch [1891] AC 310; 65 LT 422; 7 Asp MLC 68, HL. NATURE OF PROCEEDINGS ACTION by the plaintiffs for, inter alia, a declaration that the administration of the oath of allegiance and the judicial oath to continuing justices of the Supreme Court and the Court of Appeal by the Chief Justice
after the coming into force of the Constitution, 1992 was in violation of the Constitution. COUNSEL P A Adjetey (with him Nelson-Cofie, Dr Seth Twum, Frank Sawyer and W Addo) for the plaintiffs. Dr Obed Asamoah, Attorney-General (with him Mrs Orleans, Chief State Attorney, and Mrs Adusa-Amankwa, Chief State Attorney) for the defendants. JUDGMENT OF ADADE JSC On 23 February 1993 the Chief Justice, the first defendant to this action, armed with a letter from the President’s office dated 22 [p] of [1993-94] 2 GLR 525 February 1993, administered the oath of allegiance and the judicial oath to justices of the Supreme Court. Three days later, on 26 February 1993, justices of the Court of Appeal were likewise sworn. The Ghana Bar Association complains that the said swearing-in are not in conformity with the Constitution, 1992 and are null and void. The association’s first step was to write to the Chief Justice (exhibit SC 2), dated 4 March 1993, explaining in some detail their position. Not receiving any satisfactory response, and apparently teased by the report of a press conference given by the Judicial Secretary, the second defendant (exhibit SC 4), the association, it seems, mandated three of its principal officers to institute the present action. In their statement of case as in the writ of summons, filed on 18 March 993, the three officers described themselves respectively as “the national president, the national vice-president and national secretary of the Ghana Bar Association.” As was pointed out by the defendants in their statement of case, the plaintiffs do not need to sue in a representative capacity, since by article 2(1) of the Constitution, 1992 any “.. .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.” Nothing, however, turns on the capacity in which the plaintiffs have sued, and the question needs not be addressed further. The first and second defendants, although not described by office in the title of the action, were sued in their official capacities as the Chief Justice and Judicial Secretary respectively, of the Judicial Service: see paragraphs (4) and (5) of the statement of case. The third defendant is the Attorney-General of the Republic of Ghana, and was sued as such. By their writ of summons the plaintiffs seek two reliefs, viz: “(1) A declaration that by the combined effect of article 156 (1), (2) and (3), and section 4 of the transitional provisions, the First and Second Schedules of the constitution, 1992 of the Republic of Ghana, all Justice of the Supreme Court, the Court of Appeal and the High Court in Ghana holding office immediately before the coming into force of the said Constitution are obliged to take and subscribe the oath of allegiance and the judicial oath set out in the Second Schedule to the said Constitution before the President of the Republic of Ghana only and not before any other person. [p] of [1993-94] 2 GLR 525
President’s), agent. In all the paragraphs of the statement of defence referred to, the defendants emphasised that the Chief Justice acted “in his capacity as the Chief Justice.” The new paragraph (9) introduced another capacity, viz as a person authorised by the President to introduced another capacity, viz as a person authorised by the President to act; in other words, as the agent of the President. This is sought to be established by the letter of 22 February 1993. This letter, it is to be observed, merely conveys the information that the President has done something. The defendants say he designated the Chief Justice to do an act, and that that was not a delegation of authority. The plaintiff, on the other hand, say that what the President did was a delegation of authority, and that it was in breach of the Constitution, 1992. When a person a delegated to do an act, he is being entrusted with a function to discharge. Designating a person to do something is equally to ask him to do that thing: it is to entrust him with a function to perform. To me the two terms mean the same thing, and may be used interchangeabl y. I see no point in quibbling over them, especially in a document such as a Constitution. In this case the letter says the President has designated the Chief Justice to swear in judges. The designation (or delegation) might have been by a power of attorney, or by a deed under the Presidential seal, or may be, by word of mouth. The letter is not any of these: it is not the document by which the designation or delegation was done. If delegation vel nom, and the manner in which it was done, had been an issue requiring proof in this case, it might not have been easy to accept this letter as providing that proof. Notice that paragraph (9) is pleaded as “further or in the alternative”, [p] of [1993-94] 2 GLR 525 implying that it is “additional to” or “alternative to” paragraph (8). In a case such as this, I wonder whether a plea in this form is open to the defendants. If the act complained of were to be performed, in the future, I can very well understand a defendant, in effect, saying: “I have a range of options to choose from. I can do it on my own authority; alternatively I can do it on the authority of Mr X, as his attorney or agent.” But where the act has already taken place, a defendant must know by what authority he acted: his own or another person’s. The two defence pleaded are mutually exclusive, the one excludes the other. For if the first defendant used is own authority, conferred, as pleaded in paragraph (8), by certain laws, then he did not rely on presidential authority. If, on the other hand, he performed the act in reliance on authority. If, on the other hand, he performed the act in reliance on authority delegated to him by the President, then he is impliedly admitting that he had no authority in himself to do it; or if he had, he did not use it on that particular occasion. He depended on some authority external to himself. I think the defendants ought to have elected. Pleading the two defences together, even in the alternative, creates the unfortunate impression that the defendants are no sure of the source of their authority, or that they have no credible defence and are groping for one, which does not send the right signals. At a stage in the proceedings, I hinted that the defendants had abandoned one of the defences. Mr Adjetey, counsel for the plaintiffs, was quick to remind me that they had not. Somehow, the hint was not taken up, with the result that arguments concluded without the defendants strictly putting up any defence at all. Rather, they adumbrated a number of alternative defences or options which could have been open to them, leaving it to the court to choose one defence on their behalf. I do not find this satisfactory, fo at the end of the day the defendants are yet to answer positively and definitely the question: “By what authority did the first defendant do this act—his own or the President’s?”
It is, however, to the credit of the learned Attorney-General that shortly after he had been published as taking office, the letter from the President’s office dated 22 February 1993 was pleaded and, what is more, exhibited, and brought into the public domain, thus making all the facts available to the court, and to all the parties concerned. When arguments began on 20 April 1993, Mr Adjetey, counsel for the plaintiffs, made two requests. The fist is that given the nature and significance of the action, he considers that it will be in interest of all, if all the justices of the Supreme Court (with the exception of the Chief Justice who is a party to the action) were given the opportunity to express their views on the matters in controversy: they should be empanelled to sit. [p] of [1993-94] 2 GLR 525 The second is that as the Attorney-General is a party to the action (as the third defendant), it is not proper that he should argue the case as counsel for all the three defendants. This latter point was not pressed, and to all intents and purposes, must be taken to have been abandoned. The first request was refused. The minimum number of justice to sit at any one time is constitutionally fixed at five: see (article 128(2) of the Constitution, 1992), “except as otherwise provided in article 133”, relating to the exercise of the review jurisdiction of the court. Whilst I agree that each judge should have the opportunity to let the world know how he interprets the articles and sections of the Constitution, 1992 in issue, it is not mandatory, nor necessary, that this be done. Seven is large enough a number to deal with the matter. Further, granting the request will be setting an unhealthy precedent: the court will be ceding to litigants the right to dictate the strength of the panel at any one time. Next time, I can see a party complaining that a panel of nine sitting on his case is too unwieldy, and may delay his case, and should be reduced to the constitutional minimum of five. Empanelling a court is the prerogative of the Chief Justice, and unless there is very good reason for seeking a change, eg on grounds of legal bias, I will be loathe to interfere seeking a change, eg on grounds of legal bias, I will be loath to interfere with the Chief Justice’s exercise of his prerogative. No such reason was advanced on this occasion. From the nature of the pleadings and the arguments in court, the relevant pieces of legislation which call for interpretation are article 156 of the Constitution, 1992, sections 4 and s 25 of the transitional provisions (First Schedule, and the oath of allegiance and the judicial oath contained in the Second Schedule to the Constitution, 1992 Let me observe at this point, by way of putting myself on caution, that the Second Schedule to the Constitution, 1992 is not part of the transitional provisions as certain statements could seem to imply (see eg paragraphs (7) and (8) of the statement of defence); the said schedule does not enjoy the precedence accorded to the transitional provisions by article 299 of the Constitution, 1992 Article 156 of the Constitution, 1992 reads as follow: “156. (1) A Justice of a Superior Court, the Chairman of a Regional Tribunal, and also a person presiding over a lower court or tribunal, and any other judicial officer or person whose functions involve the exercise by him of judicial power shall, before assuming the exercise of the duties of his office, take and subscribe the oath of allegiance and the Judicial Oath set out in the Second Schedule to this Constitution. (2) The President may, on the advice of the Chief Justice, [p] of [1993-94] 2 GLR 525 direct that any other person connected with the exercise of judicial power, shall take and
that the President should have no such power. A delegation to the Chief Justice under article 156 of the Constitution, 1992 is therefore out of the question. In the same way it strikers me that notwithstanding his exalted position, the President cannot assume functions under article 156(3)(b) of the Constitution, 1992 and proceed to swear in persons within group two, eg circuit judges, magistrates etc, nor can the Chief Justice delegate his functions under the said article 156(3)(b) of the Constitution 1992 to the President. Any such delegation will not be in accordance with the Constitution, 1992. Article 60(1) of the Constitution, 1992, however, permits President to delegate or assign any of his functions, those under article 156(3)(a) include, to the Vice-President. Attention may here be drawn to article 60(8) of the Constitution, 1992 under which the Vice-President, as Vice-President performs the duties of the President. But he does this, not as a result of any delegation of authority from the President, but because the Constitution, 1992 asks him to take on those duties, as a matter of necessity, for the reason that the President is “absent from Ghana or is for any other reason unable to perform the functions of his office.” No question of delegation or designation is involved here. Again under article 60(6) of the Constitution, 1992, the Vice-President takes over the duties of the President. But here he assumes offices as President: he does not perform as Vice-President, and therefore an issue [p] of [1993-94] 2 GLR 525 of delegation does not arise either. If both the President and the Vice-President should be unavailable, the Speaker of Parliament assumes the functions of the President under article 60(11). The Constitution, 1992 has made more than adequate provision for the discharge of the functions of the office of the President. I am convinced that under article 156(3)(a) of the Constitution, 1992 the President cannot delegate his functions to the Chief Justice; similarly the Chief Justice cannot delegate his to the President under article 156(3)(b) of the Constitution, 1992. It even appears to me that arrangements under article 156 of the Constitution, 1992 are closely linked to those under article 144 of the Constitution, 1992 which deals with the appointment of judges. It will be seen that judges in group one (article 156) are, under article 144, appointed by the President. Those in group two are, under article 148 (judicial officers) appointed by the Chief Justice. May it be that the constitution makers, in structuring article 156 of the Constitution, 1992, worked with the idea that he who appoints, inducts his appointees into office by swearing them. It has been argued that article 156(1) of the Constitution, 1992 applies only to new judges, and has no application to sitting justices. The ground adduced in support of this contention is the phrase: “... before assuming the exercise of the duties of [their] office.. .” appearing in article 156(1) of the Constitution, 1992. Mr Adjetey, for the plaintiffs, conceded this point. In matters of fact a court is generally bound by admissions, concessions, accords etc by or between parties or their counsel or both. In matters of law, a court is not so bound. I am not attracted by the arguments advanced that article 156(1) of the Constitution, 1992 applies only to new judges, just because of the use of the phrase “... before assuming the exercise of the duties of [their] office... “ Section 4 of the transitional provisions of the Constitution, 1992 stipulates that superior court judges in office on the eve of 7 January 1993 (referred to in this opinion as sitting judges or justices) “shall continue to hold office as if appointed... under [the] Constitution,” (The emphasis is mine.) In other words, although these judges were in fact not appointed under the Constitution, 1992, it must be taken or assumed that they were so
appointed. Appointments of superior court justices under the Constitution, 1992 are governed by article 144. The relevant portions of which read: “144. (1) The Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of [p] of [1993-94] 2 GLR 525 Parliament. (2) The other Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial Council, in consultation with the Council of State and with the approval of Parliament. (3) Justices of the Court of Appeal and of the High Court and Chairman of Regional Tribunals shall be appointed by the President acting on the advice of the Judicial Council.” It is obvious that the Council of State, constituted by article 89 of the Constitution, 1992, was not operative on 7 January 1993; the members had not been appointed. We may take judicial notice of the fact that the members were appointed. We may take judicial notice of the fact that the members were appointed in April this year, and sworn into office on or about 27 April 1993. Similary the Judicial Council of the Constitution, 1992 had not been established, and even if it were granted that the one existing prior to 7 January could carry on under section 8(1) of the transitional provisions of the Constitution, 1992, ie existing offices, nobody can claim that it has had anything to do with the tenure of office of sitting justices since 7 January 1993; nor has Parliament either. In short, sitting justices have not gone through the procedure for appointment laid down under the Constitution, 1992. This notwithstanding, section 4 of the transitional provisions of the Constitution, 1992 says that it must be assumed that they have, and that they have been appointed under the Constitution, ie under article 144. The phrase “as if appointed... under the Constitution“ clearly conveys a legal fiction. What it says is not true in fact, but we are asked to assume it to true, for convenience and in order to attain certain desirable objectives: in this case, for the purposes of a smooth transition. There was some argument as to whether “as if” in section 4 of the transitional provisions of the Constitution, 1992 has the same force and effect as “deem” used in certain enactments and in some places of the Constitution. To me this is a mere splitting of hairs over practically nothing. The phrases “as if”, “shall be deemed”, “shall be taken as” etc have the same or similar import: they all introduce messages which are clearly legal fictions: see eg section 1(1), 2(1) of the transitional provisions of the Constitution, 1992 both of which use the phrase “shall be taken to have been duly elected.” By these sections, both the President and Parliament, although elected long before the Constitution, 1992 came into force on 7 January 1993, are “taken to have been duly elected for the purpose of the Constitution.” In both sections the phrase “shall be deemed to have been duly elected”, or “as if duly elected under the Constitution“ would equally have been appropriate. Thus while sections [p] of [1993-94] 2 GLR 525 3(1), 8(1) and 31(2) of the transitional provisions of the Constitution, 1992 use “shall be deemed”, sections, 11, 22(1) and 31(1) of the Constitution, 1992 prefer the phrase “as if”. All of them have the same significance. Thus sitting judges, under section 4 of the transitional provisions of the Constitution, 1992, are deemed to
Kuenyehia AND Others v Archer AND Others
Course: Constitutional law (111)
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