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Tuffuor v. Attorney- General [1980] GLR 637—667 copy
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TUFFUOR v. ATTORNEY-GENERAL [1980] GLR 637—
COURT OF APPEAL, SITTING AS THE SUPREME COURT; ACCRA
23 SEPTEMBER 1980
SOWAH AND CHARLES CRABBE JJ.S., LASSEY AND FRANCOIS
JJ. AND AGYEPONG J.
Courts—Court of Appeal—Jurisdiction—Constitutional issue—Court of Appeal sitting as Supreme Court under Constitution, 1979, Sched. I, s. 3 —Section 3 permitting court to exercise functions as contained in articles 51, 117 and 118 only—Action for declaration that A deemed Chief Justice and president of Supreme Court—Right for declaration only mentioned in article 2—Article 2 not mentioned in section 3 of Schedule I—Court precluded by express omission dealing with article 2—Whether court vested with jurisdiction to declaration under article 118—Constitution, 1979, arts. 2, 51, 117 and 118 and Sched. I, s. 3. 23 September 1980
Constitutional law—Constitution—Enforcement—Right of all citizens to resist persons seeking abolition of constitutional order—Method of determining whether a person seeking to abolish constitutional order is to seek interpretation and enforcement of particular constitutional provision —A party seeking interpretation neither plaintiff nor defendant— Unnecessary to prove personal interest in matter on which interpretation and enforcement being sought—Claim on status of Chief Justice a constitutional right exercisable by all citizens under article I— Unnecessary to prove community of interest with any person or authority —Constitution, 1979, art. 1 (3).
Constitutional law—Parliament—Privileges and immunities—Proceedings against Speaker—Courts without jurisdiction to inquire into legality of acts of Parliament—Whether Speaker therefore immune from proceedings in court—Constitution, 1979, arts. 91 (1), 96, 97, 98, 99, 103 and 104.
Constitutional law—Constitution—Estoppel—Effect—Action for interpretation of status of holder of office of Chief Justice on coming into force of Constitution—Submission by office-holder to procedure specified in article 127 (1)—Office-holder aware of different legal interpretations as to whether necessary to submit to procedure—Whether office-holder, privies and those claiming in same interest estopped from challenging validity of procedure being applied to office-holder—Constitution, 1979,
art. 1 (2).
Constitutional law—Constitutional issue—Chief Justice—Status and procedure for appointment—Determination before and after coining into force of Constitution, 1979—Office of Chief Justice of Court of Appeal and transitional Chief Justice—Whether office in existence before coining into force of Constitution, 1979—Proper construction of article 127 (8) and (9) —Meaning of "Shall be deemed" in article 127 (8)—Constitution, 1969— National Redemption Council (Establishment) Proclamation, 1972— Courts (Amendment) Decree, 1972 (N.R.C. 101)-Constitution, 1979, art. 127 (8) and (9) and Sched. I, ss. 1 (1) and 2 (1).
Constitutional law—Constitutional issue Chief Justice—Removal—Proper mode—Application of provisions of article 128 and not recourse to article 127 (1)—Constitution, 1979, arts. 127 (1) and 128.
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HEADNOTES
It is provided by article 127 (1), (8) and (9) of the Constitution, 1979, that:
"127. (1) The Chief Justice and the other Justices of the Supreme Court shall be appointed by the President by warrant under his hand and the Presidential seal,
(a) in the case of the Chief Justice, acting in consultation with the Judicial Council;
(b) in the case of the other Justices of the Supreme Court, acting on the advice of the Judicial Council, and with the approval of Parliament.
(8) Subject to the provisions of clause (9) of this article, a Justice of the Superior Court of Judicature holding office as such immediately before the coming into force of this Constitution shall be deemed to have been appointed as from the coming into force of this Constitution to hold office as such under this Constitution.
(9) A Justice to whom the provisions of clause (8) of this article apply shall, on the coming into force of this Constitution, take and sub- scribe the oath of allegiance and the judicial oath set out in the Second Schedule to this Constitution."
The plaintiff filed a writ against the Speaker of Parliament and the Attorney- General before the Court of Appeal sitting as the Supreme
Supreme Court was appointed. Immediately seven justices were appointed, the Supreme Court would be “established” and A would cease to be the "transitional" Chief Justice. Unless he was re-appointed Chief Justice he could not continue to hold that office. Article 127 (8), under which justices of the Superior Court of Judicature holding office as such immediately before the coming into force of the Constitution were to be "deemed" to have been appointed under Constitution, did not apply to the Chief Justice. It applied to other holders of offices in the hierarchy with the Court of Appeal at its apex. The Attorney-General further contended that if the court were to find that A remained Chief Justice on the coming into force of the Constitution, then by his conduct in accepting the nomination and appearing before Parliament, he should be deemed to have waived any immunity provided by the Constitution and should accept the consequences of his own conduct. Since the court had, on the preliminary objections, ruled that the plaintiff could maintain the action, it meant that he had a community of interest with A. Every defence available against A was similarly available against him. A with full knowledge of the different interpretations of article 127 (1) had submitted to its procedure. A, his privies and those claiming in the same interest were estopped from challenging the consequences of that conduct. The court having found that the issues raised by the parties called for, inter alia, the interpretation of article 127(8) and (9) of the Constitution,
Held, upholding the plaintiff's claim:
(1) the court had jurisdiction to, entertain the plaintiff's writ because:
(a) the jurisdiction of the court, as constituted, sprang from the provisions of section 3 of the First Schedule to the Constitution. Nothing was said in that provision about article 2. No mention was made, oven indirectly, of article 2 as such. The Attorney-General was therefore right in contending that the court was precluded, by express omission from dealing with article 2, whatever coherence or symmetry that might have with the Constitution as a whole. But section 3 conferred jurisdiction on the court to deal with any issue falling within the ambit of article 118, in particular, for the purposes of the case, article 118 (1) (a);
(b) The Constitution, by the provisions of article 1 (3) conferred on every citizen of Ghana the right to see to it that the constitutional order was not abolished or sought to be abolished. One method by which it could be determined whether a person was seeking to abolish the constitutional order, was to sock an interpretation of the Constitution as to the meaning of the effect of a particular provision or provisions. In such a chose, in essence, there would neither be a defendant nor a plaintiff—properly so called, and as the terms were commonly employed in ordinary
proceedings in the courts. In the instant case, there was a controversy regarding the status of the incumbent Chief Justice, the determination of which would depend upon an interpretation of the Constitution;
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(c) whether or not A was the Chief Justice was not a private right. The interest of the plaintiff was a constitutional right exercisable by all citizens of Ghana by virtue of article 1 of the Constitution. And the plaintiff under article 1, need not have any community of interest with any person or authority. His community of interest was with the Constitution.
(2) The courts did not, and could not, inquire into how Parliament went about its business. That constituted the state of affairs, as between the legislature and the judiciary which had been crystallized in articles, 96, 97, 98, 99, 103 and 104 of the Constitution. Of particular importance were, the provisions of article 96 which has stated categorically that the freedom of speech, debate and proceedings of Parliament should not be questioned in any court or place out of Parliament. In so far as Parliament had acted by virtue of the powers conferred upon it by the provisions of article 91 (1), its actions within Parliament were a closed book. The Speaker therefore ought not be a party in the instant proceedings and the, court would accordingly discharge him as a party.
(3) The argument founded on estoppel by election would be dismissed because the Constitution, 1979, art. 1 (2) has provided that the "Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void and of no effect." That was the constitutional criterion by which all acts could be tested and their validity or otherwise established. Neither the Chief Justice nor any other person in authority could clothe himself with conduct which the Constitution had not mandated. The decision of the Chief Justice to appear before Parliament could not make any difference to the interpretation of the relevant article under consideration unless that decision were in accordance with the postulates of the Constitution. It was the propriety of the decision which was under challenge. The court did not think that any act or conduct which was contrary to the express or implied provisions of the Constitution could be validated by equitable doctrines of estoppel.
(4) The courts before 24 September 1979 derived their existence and functions from the Constitution, 1969. The Chief Justice in that constitution had a unique personality; he was both a member and head of that one composite institution known as the Superior Court of Judicature. It was by virtue, of his being the head that he had been the president of
employed and used in several parts of the Constitution and thus an aid towards ascertaining its true meaning. Dicta of Lord Radcliffe in St. Aubyn v. Attorney- General [1952] A. 15 at p. 53, H. and of Viscount Simon L. in Barnard v. Gorman [1941] A. 378 at p. 384, H. applied.
(6) Applying the meaning of the word "deemed" to section 1 (1) of the transitional provisions to the Constitution, it meant that though the First President was not appointed under the Constitution, he should for all purposes exercise all the functions of the President as if he had been so appointed under the Constitution. But for that provision he would have had to stand for fresh elections. It was the same meaning attachable to the provision in section 2 (1) of the transitional provisions relating to a member of Parliament elected before the coming into force of the Constitution. It was by virtue of that provision that a member of Parliament was considered as having been elected under the Constitution when, in fact, he had not been so elected.
(7) Similarly, applying the definition of "deemed" to article 127 (8), a justice of the Superior Court of Judicature (that one composite institution) holding office as such immediately before the coming into force of the Constitution should continue to hold the office as if he had been appointed by its processess. The Chief Justice was a member and Head of the Superior Court of Judicature. He was a member of the class of persons or justices referred to in article 127 (8). Accordingly the court would hold that upon the coming into force of the Constitution, the incumbent Chief Justice, by virtue of article 127 (8) and (9) became the Chief Justice, and under article [p] 114 (1), the Head of the Judiciary —he became the Chief Justice by the due process of law holding the identical or equivalent office as he hold before the Constitution came into force,. That interpretation was in harmony with the user of the phrase "shall be deemed" in other provisions of the Constitution and was in conformity with the rationale behind article 127 (8) and (9) as declared by paragraph 204 of the, Proposals of the Constitutional Commission.
(8) Once the Chief Justice was constitutionally in office, his removal, whatever arguments were raised, could only be constitutionally effected by invoking the relevant provisions of article 128 and not by recourse to article 127 (1). Any other manner, any other method, would clearly be inconsistent with the provisions of the Constitution.
CASES REFERRED TO
(1) Vanderpuije v. Akwei [1971] 1 G.L. 242.
(2) Appiah v. Attorney-General, Court of Appeal, Accra, 25 September
1970, unreported; digested in (1970) C. 107.
(3) Guaranty Trust Company of New York v. Hannay & Co. [1915] 2 K. 536; 84 L.J.K. 1465; 113 L. 98; 21 Com. 67, C.
(4) Clark v. Epsom Rural District Council [1929] 1 Ch. 287; 98 L.J. 88; 140 L. 246; 93 J. 67; 45 T.L. 106; 27 L.G. 328.
(5) Akyem Abuakwa Stool v. Adansi Stool (1957) 3 W.A.L. 171; sub nom. Nana Ofori Atta v. Nana Adu Bonsra II [1958] A. 95; [1957] 3 W.L. 830; [1957] 3 All E. 559; 101 S. 882, P. affirming sub nom. Nana Ofori Atta II v. Nana Bonsra Agyei (1952) 14 W.A.C. 149.
(6) Dyson v. Attorney-General [1911] 1 K. 410; 80 L.J.K. 531; 103 L. 707; 27 T.L. 143; 55 S. 168, C.
(7) Powell et al v. McCormack, Speaker of the House of Representatives 395 U. 486, 23 L. 2d. 491, 89 S. 1944.
(8) Ahenkora v. Ofe (1957) 3 W.A.L. 145, C.
(9) Lart, In re; Wilkinson v. Blades [1896] 2 Ch. 788; 65 L.J. 846; 75 L. 175; 45 W. 27; 40 S. 653.
(10) United Australia, Ltd. v. Barclays Bank, Ltd. [1941] A. 1; [1940] 4 All E. 20; 109 L.J.K. 919; 164 L. 139; 57 T.L. 13; 46 Com. 1, H.
(11) Barnard v. Gorman [1941] A. 378; [1941] 3 All E. 45; 110 L.J.K. 557; 165 L. 308; 105 J. 379; 57 T.L. 681; 39 L.G. 273, H.
(12) St. Aubyn v. Attorney-General [19521 A. 15; [1951] 2 All E. 473, H.
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NATURE OF PROCEEDINGS
ACTION before the Court of Appeal, sitting as the Supreme Court under section 3 of the First Schedule of the Constitution, 1979, for an interpretation of the status of the holder of the office of Chief Justice on the coming into force of the Constitution, 1979. The facts are fully stated in the judgment delivered on 23 October 1980 wherein the court gave its
Attorney-General, submitted that this court as presently constituted was the Court of Appeal exercising, by virtue of the provisions of section 3 of Part III of the First Schedule to the Constitution, the powers conferred upon the Supreme Court under articles 51, 117, and 118. This meant that the powers of the present court were limited to those articles and it had no jurisdiction to deal with any issue falling under, or referable to, article 2. As such if there was any portion of the plaintiff's claim which was referable to article 2 that portion was bad in law. The only court that could make a declaration under article 2 of the Constitution was the Supreme Court properly so called and properly so constituted.
He went further to say that if the claim was examined in detail, it would appear that the plaintiff was only asking for interpretation. This could be seen from paragraph 2 of the statement of the plaintiff's case and paragraph 2 of the writ stating the nature of one of the reliefs sought. What were there referred to were acts by certain persons other than Parliament. In his view, before this court could exercise its jurisdiction under paragraph (a) of clause (1) of article 118, consideration should be given to the use of the word "matter" in that paragraph. Referring to the High Court (Civil Procedure) Rules, 1954 (L. 140A), Order 1, r. 1 he contended that "matter" included every proceedings in court not in a cause. This was emphasized in the case of Vanderpuije v. Akwei [1971] 1 G.L. 242 at p. 245. He relied also on the use of that word in Chapter 12 of the Constitution-relating to the judiciary—and stated on that issue, that if one reviewed the use of the word "matter" in the Constitution, one would find that it was synonymous with the word "cause." He cited in support, Burrows, Words and phrases Judicially Defined (1st ed.), Vol. 3 at p. 339. In fine, therefore, there must be a controversy between two persons in order to invoke the provisions of paragraph (a) clause (1) of article 118, in order to enable this court to grant a relief to the person who brought the matter before the court. That person must have a cause of action for which a relief could be granted.
But here, what was the relief that was claimed by the plaintiff for himself? None. None whatsoever. When one was invoking article 118, one must allege a personal matter which was not common to the rest of the public. If no such allegation appeared in the writ or the pleadings then that person had no cause of action. The person who had exclusive interest was the incumbent Chief Justice. That argument was supported by reference to Appiah v. Attorney-General, Court of Appeal, Accra, 25 September 1970, unreported; digested in [p] (1970) C. 107. It was proved that the plaintiff in that case had an interest. But the plaintiff in this case had no interest whatsoever.
At common law, there was no inherent right for a person to ask for a
declaration. His writ, must show some form of relief-citing Order 25, r. 5 of the High Court (Civil Procedure) Rules, 1954 (L. 140A). He submitted that it was only by that rule that the High Court had power conferred by statute. Under the authority of Guaranty Trust Company of New York v. Hannay & Co. [1915] 2 K. 536 at p. 537, C. until a statute had conferred power on a court to make a declaration a court could not grant one. The court's power at common law to grant a declaration arose from its power to grant a relief. A declaration could not stand by itself: Clark v. Epsom Rural District Council [1929] 1 Ch. 287.
On the issue of the competency of the Speaker as the first defendant, the Attorney-General argued that the only averments against the Speaker were contained in paragraphs (6), (7) and (8) of the plaintiff's statement of claim. The acts complained of were part of the proceedings in Parliament. He contended, therefore, that neither this court nor any other court had power to call in question any proceedings of Parliament. Even if the facts alleged were established they would have had no relevance to this action by virtue of the provisions of article 96 of the Constitution. The effect of that article was that the proceedings in Parliament could not be questioned. Since the allegation was that certain members of Parliament did certain acts, whether Parliament did those acts or not this court could not question what Parliament had done. He would therefore apply that paragraphs (6), (7), (8) and (9) of the statement of claim be struck out as disclosing no cause of action. He would also ask that the Speaker be discharged from the present proceedings.
Finally, the Attorney-General, relying again on Guaranty Trust Company of New York v. Hannay & Co. (supra) stated that whatever definition of jurisdiction is accepted there must be a matter before the court and a matter could not exist without a controversy. He also cited Akyem Abuakwa Stool v. Adansi Stool (1957) 3 W.A.L. 171, P. as authority for the proposition that a declaration made in this court would be of no binding effect whatsoever as there was no community of interest between the plaintiff and the incumbent Chief Justice.
Leading counsel for the plaintiff argued that none of the objections raised by the Attorney-General had any merit whatsoever. To him the nature of the plaintiff's writ was an action seeking an interpretation, an enforcement of certain provisions of the Constitution. The issue was whether the Chief Justice was a "transitional" [p] holder of the office or the substantive holder. The tenure of his office and the terms of that tenure were of interest to every Ghanaian.
By article 114 of the Constitution, the Chief Justice is the Head of the Judiciary. The effect of clauses (3) and (5) of that article was that the
a person should have an interest. There must be a distinction between the case of Appiah v. Attorney-General (supra) and the present case. The end result was that, all Ghanaians were interested in the tenure of office of the Chief Justice.
As regards the position of the Speaker, as the first defendant, counsel argued that the Speaker was part of Parliament and not a member of Parliament, relying on articles 83 and 97 and also Powell v. McCormack 395 US 486. To say that the Speaker could not be brought to court was to say that the actions of Parliament could not be challenged. The present case was not a mere civil or criminal matter citing Ahenkora v. Ofe (1957) 3 W.A.L. 145, C.
In reply, the Attorney-General submitted that if one could not sue a member of Parliament, could the Speaker of Parliament be sued? He emphasized that the Speaker was not a competent party. For on a true interpretation, the Speaker was immune from the writ of these courts, relying also on Powell v. McCormack (supra) at p. 503. In his view Dyson v. Attorney-General (supra) showed that declaratory judgments could be given. But it supports his argument that there must be an interest, the learned Attorney-General concluded.
A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life.
The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as if it were a living organism capable of growth and development Indeed, it is a living organism capable of growth and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach [p] to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.
And so we must take cognisance of the age-old fundamental principle of constitutional construction which gives effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given effect. Perhaps it would not be out of place to remember the injunction of St. Paul contained in his First Epistle to the Corinthians, Chapter 12, verses 14-20 (King James Version):
"For the body is not one member, but many. If the foot shall say, Because I am not the hand, I am not of the body; is it therefore not of the body? And if the ear shall say, Because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body were an eye, where were the hearing? If the whole were hearing, where were the smelling...?
But now are they many members, yet but one body."
(The emphasis is ours.)
And so a construction should be avoided which leads to absurdity. And when a particular interpretation leads to two, shall we say "inconsistent" results, the spirit of the Constitution would demand that the more reasonable of the two should be adhered to. We must have recourse to the Constitution as a whole.
The jurisdiction of this court, as presently constituted, springs from the provisions of section 3 of Part III of the First Schedule to the Constitution. That section charges this court to, "perform the functions of the Supreme Court contained in articles 51, 117 and 118 only.. ." Nothing is said in this provision about article 2. No mention is made, even indirectly, of article 2 as such. This court cannot thus deal with any cause, dispute or matter relating to or involving article 2 of the Constitution. In this respect we agree with the sub- missions of the learned Attorney-General on this issue. We are precluded, by express omission, from dealing with article 2, whatever coherence or symmetry that may have with the Constitution as a whole. The words of section 3 admit of no ambiguity. Yet is it not idle to argue that the operation of article 2 should abide the appointment of the full complement of justices of the Supreme Court?
It is, however, further argued that in so far as the claim of the plaintiff or any portion of it is referable to article 2 that portion is bad in law. As has already been demonstrated section 3 of the First Schedule to the transitional provisions of the Constitution, confers, for our present purposes, jurisdiction on this court to deal with any issue falling within the ambit of article 118 of the Constitution. In particular, for the purposes of this case, paragraph (a) of clause [p] (1) of that article. For this purpose, the learned Attorney-General is of the view that for the operation
established by the Constitution is not abolished or sought to be abolished. One method by which it could be determined whether a person is seeking to abolish the constitutional order, is to seek for an interpretation of the Constitution as to the meaning or the effect of a particular provision or provisions of the Constitution. In such a case, in essence, there would neither be a defendant nor a plaintiff—properly so called, as the terms are commonly employed in ordinary proceedings in these courts.
Is there then a controversy? Is there then a duty, a right, a liability that can be established by this court? The answer is yes! There is a right, a duty cast upon every citizen of Ghana to go to the Supreme Court for determination whether a person or persons is, or are, seeking to abolish the constitutional order established by the Constitution. There is a controversy regarding the status of the incumbent Chief Justice, the determination of which depends upon an interpretation of the Constitution. Once there is a controversy, a justiciable issue, we believe that under the wing of interpretation as contained in paragraph (a) of clause (1) of article 1 1 8, the court has jurisdiction to entertain the issue raised by the plaintiff's writ. And the plaintiff is thus properly before this court.
This then brings us to the question of how far the courts can question what, under our Constitution, has been done in, and by, Parliament? There is a long line of authorities which establishes two important principles governing the relationship that subsists or should exist between Parliament and the courts:
(a) that the courts can call in question a decision of Parliament; but that the courts cannot seek to extend their writs into what happens in Parliament; and
(b) that the law and custom of Parliament is a distinct body of law and, as constitutional expert!, do put it, "unknown to the courts."
And therefore the courts take judicial notice of what has happened in Parliament. The courts do not, and cannot, inquire into how Parliament went about its business. These constitute the state of affairs, as between the legislature and the judiciary which have been crystallized in articles 96, 97, 98, 99, 103 and 104 of the Constitution. Of particular importance to us are the provisions of article 96 of the Constitution. They confer on Parliament freedom of speech, of debate and of proceedings in Parliament. The article also states categorically: "that freedom shall not be impeached or questioned in any Court or place out of Parliament." The courts cannot therefore inquire into the legality or illegality of what
happened in Parliament.
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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 above were the considerations that led to our conclusions on 19 September 1980 and we ruled:
(a) that this court has jurisdiction under article 118 (1) (a) of the Constitution to entertain the present writ;
(b) that every citizen of Ghana has a constitutional right to seek for an interpretation or enforcement of the Constitution;
(c) that the Speaker ought not be a party to the present proceedings and we accordingly discharge him as the first defendant; and
(d) that certain paragraphs, that is to say, paragraphs (6) and (7) of the statement of claim should be struck out and are accordingly struck out.
Having given the reasons for its ruling on its assumption of jurisdiction this court now turns its attention to the merits of the action and to the reasons for the declaratory judgment it pronounced on 23 September in the year of our Lord One Thousand Nine Hundred and Eighty.
The plaintiff, Dr. Kwame Amoako Tuffuor, a lecturer at the University of Science and Technology, Kumasi, by his writ complains that on 16 July 1980, the President of the Republic in consultation with the Judicial Council purported to nominate Mr. Justice Fred Kwasi Apaloo to the office of Chief Justice and for approval by Parliament. That on 16 August 1980 Parliament purported to "vet" the said Mr. Justice Fred Kwasi Apaloo in Parliament and subsequently rejected his nomination.
The plaintiff claims that upon a true and proper construction of the Constitution each of the various acts of the President, the Judicial Council and Parliament was unlawful and violated the Constitution and is void. Thus at one fell swoop, he attacks the Executive, the Judicial Council and Parliament and invokes to his aid the original jurisdiction of the Supreme Court in article 118 (1) (a) which provides:
"118. (1) The Supreme Court shall, except as otherwise provided in article 35 of this Constitution, have original jurisdiction, to the exclusion of all
oath of allegiance and the judicial oath set out in the Second Schedule to this Constitution."
These two latter clauses are the subject-matter of long disputations between Nana Akufo-Addo and the learned Attorney-General.
Nana Akufo-Addo contends that upon the true and proper construction of that article those justices of the Superior Court of Judicature who held offices on 23 September 1979 retained their offices upon their taking the oaths referred to in the Second Schedule. Mr. Justice Apaloo was one such justice and held the office of Chief Justice of the Republic; accordingly, by virtue of these provisions he became the Chief Justice. Having thus been pronounced Chief [p] Justice by the Constitution, itself, it was incompetent for the persons and the authorities described in the writ respectively to nominate him, endorse the nomination, and to subject him to parliamentary approval. Nana Akufo-Addo invites the court to examine other provisions of the Constitution where the legislative device of deeming to be what is not has been deployed with the same intention and effect as that which is in clause (8) of article 127. That in a nutshell is the submission of Nana Akufo-Addo. The court shall discuss his other submissions as it proceeds to enunciate the other principles which culminated in the pronouncement of judgment.
The Attorney-General controverts these arguments. He concedes, however, that Mr. Justice Apaloo was the Chief Justice before the coming into force of the Constitution but submits that the courts over which he presided were in a material sense different from those which the new Constitution has created, in that a new court has been superimposed on to the hierarchy of courts and it is the Supreme Court. He maintains that before the coming into force of the Constitution there was no Supreme Court; no justice could therefore be holding the office of a justice of the Supreme Court. To qualify for membership of the Supreme Court every appointee must go through the processes laid down in article 127 (1). The thrust of his argument is then that before the coming into force of the Constitution, the Court of Appeal was the highest court of the land, therefore the Chief Justice under that hierarchy was only a Chief Justice of the Court of Appeal. To qualify him to be Chief Justice now, he must be a member of the Supreme Court; accordingly, he ought to submit himself to the procedures of appointment mandated under article 127 (1).
The Attorney-General continues that upon promulgation of the Constitution, Mr. Justice Apaloo, the Chief Justice of the old order, became the most senior justice of the Court of Appeal and by reason thereof, became a "transitional" Chief Justice and remained in that status until the required number of justices was duly appointed; immediately
there were appointed seven justices, the Supreme Court became "established"; Mr. Justice Apaloo ceased to be "transitional" Chief Justice unless he was appointed the new Chief Justice. He maintains that the intention of the framers of the Constitution was to subject all prospective justices of the Supreme Court to the scrutiny of Parliament and that object would be defeated if the head of the judiciary be not subject to screening in like manner as his colleagues.
The Attorney-General's interpretation of clause (8) of article 127 is that since there has not been a specific mention of the office of Chief Justice the clause is inapplicable to that office; it applies to [p] the other holders of offices in the hierarchy with the Court of Appeal as its highest tier. He asks himself the rhetorical question; "What was the office he was holding before 24 September 1979"? And answers thus: "He was holding the office of a Chief Justice which ended with the Court of Appeal." For part of this submission the Attorney-General draws inspiration from section 3 (1) of the transitional provisions of the Constitution, which provides:
"3. (1) The required number of Justices, for a duly constituted Supreme Court as established under clause (5) of article 114 of this Constitution shall be appointed within twelve months after the coming into force of this Constitution, and until the appointments are made, the Court of Appeal as established under that clause shall perform the functions of the Supreme Court contained in articles 51, 117 and 118 only of this Constitution."
Turning to the next leg of his submission, the Attorney-General contends that whether or not Mr. Justice, Apaloo is Chief Justice is a private right; the plaintiff is therefore incompetent to maintain this action. This court has, in its ruling on jurisdiction, rejected this line of argument and has explicitly pronounced upon the interest of the plaintiff which in our view is a: constitutional right exercisable by all citizens of Ghana by virtue of article 1 of the Constitution.
The Attorney-General then propounds this thesis that if this court should find that Fred Kwasi Apaloo remains Chief Justice of Ghana then he by his conduct in accepting the nomination and appearing before Parliament must be deemed to have waived any immunity the Constitution provided and must accept the consequences of his own conduct.
The plaintiff, says the Attorney-General, has a community of interest with Mr. Justice Apaloo, thus every defence available to him against the "transitional Chief Justice" is in law maintainable against the plaintiff; and the defence is mounted upon the equitable principle of estoppel by election. The conduct relied upon, was that the Chief Justice had in
Tuffuor v. Attorney- General [1980] GLR 637—667 copy
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