1998
SUPREME COURT
GHANA
CORAM
AI Generated Summary
A Ghanaian citizen challenged provisions of the Passports and Travel Certificate Decree, 1967 (NLCD 155) and sought the return of his old passport and recognition of his constitutional right to travel under Article 21(1)(g). The Attorney-General conceded his citizenship and that a passport is inherent in freedom of movement, but argued the suit was an enforcement action, not a constitutional interpretation. The Supreme Court had previously dismissed the original case on 13 February 1996 for lack of original jurisdiction over enforcement of fundamental rights, and the applicant sought review under Article 133 and Rule 54 claiming exceptional circumstances. Writing first, Bamford-Addo JSC concluded Article 21(1)(g) was clear, the reliefs were enforcement in substance, and the proper forum was the High Court under Article 33. Concurring opinions by Kpegah, Acquah, Atuguba (concurring in result), and brief agreements by Ampiah and Adjabeng supported dismissal; Hayfron-Benjamin JSC dissented, arguing for concurrent jurisdiction. The Court dismissed the review application.
JOYCE BAMFORD-ADDO, J.S.C.:
This is an application the Applicant asking for a review of the decision of this Court dated 13th February 1996 which held that the court has no jurisdiction to hear the case brought before it in the above mentioned case. Since jurisdiction is a fundamental issue, the absence of which would render any decision of a Court null and void, it is of utmost importance for a Court to ensure that in any case brought before it, it has the requisite jurisdiction to hear and determine that case. Where there is lack of jurisdiction a Court ought to decline jurisdiction. In the same manner where a court has jurisdiction in any case is should accept jurisdiction and adjudicate on it. It would be wrong in a such case to decline jurisdiction, as this would result in injustice to an applicant and would constitute exceptional circumstance for which a review would be granted under Article 133 of the 1992 Constitution.
The Plaintiff/Applicant by a writ and accompanying statement of case invoked the original jurisdiction of this Court for the following reliefs, namely:
A declaration that:
"1(i) Section 5(1) and 12(3) of the Passport and Travel Certificate Decree 1967 NLCD 155 which seek to give the Minister of Foreign Affairs ("Member Responsible") wide discretionary powers in the grant, refusal, revocation, cancellation or impounding of passports and travel certificates, Section 5(2)a, (b)(ii)(iii) which provides the Minister of Foreign Affairs ("Member Responsible") shall not issue a passport to specified categories of persons, and section 17(e) which seeks to give the Minister of Foreign Affairs absolute discretion in refusing to grant travel certificates are inconsistent with, and a contravention of the letter and spirit of the Constitution and especially Article 11 (1), (2) and (3) and 21(1)(g). Accordingly the said Sections of NLCD 155 are null and void and unenforceable.
(ii) As a citizen of Ghana by birth, the Plaintiff has a constitutional right to enter and leave Ghana and a fortiori to a passport to enable him exercise and enjoy that right.
(2) An order directing the Minister of Foreign Affairs and Director of BNI to return to the Plaintiff his old passport to enable the Plaintiff to apply for a new Passport."
The Defendant admit that the Plaintiff is a citizen of Ghana and conceded that the right to a Passport was inherent in the freedom of movement guranteed under Article 21(1)(g) of the Constitution. Before the hearing at the Su