BILSON v. APALOO

JUDGMENT OF ANIN J.S.C

Anin J.S.C. delivered the judgment of himself and that of Sowah and Charles Crabbe JJ.S.C. The case of Tuffuor v. Attorney-General [p.33] [1980] G.L.R. 637, C.A. sitting as S.C., is unique as being the only one heard by the Court of Appeal under section 3 (1) of the First Schedule to the Constitution, 1979, before that section became spent with the appointment of the required number of justices for a duly constituted Supreme Court. The judgment and the reasons thereof, were given on 23 September and 23 October 1980 respectively. The court, composed of Sowah J.S.C. (presiding), Charles Crabbe J.S.C., Lassey and Francois JJ.A and Agyepong J., resolved important issues concerning the office of the Chief Justice in general and the position of the incumbent Chief Justice (The Hon. Mr. Justice Fred Kwasi Apaloo) in particular as at the commencement of the new Constitution on 24 September 1979, and made the following declarations in its judgment:

"(a) that on the coming into force of the Constitution, 1979, the person who was the Chief Justice immediately before such commencement (i.e. Mr. Justice Fred Kwasi Apaloo) became the Chief Justice of Ghana;

(b) that the Chief Justice, under our system, is sui juris and he is appointed as such;

(c) that consequently his nomination for consideration, and that consideration by the Judicial Council, as well as the submission by the incumbent Chief Justice of himself for approval by Parliament, were each unlawful under the Constitution;

(d) that the provisions of article 96 of the Constitution confer a positive protection and a definite defence on Parliament such as the protection afforded a Justice of the Supreme Court of Judicature by the provisions of article 114 (9) of the Constitution, and therefore the writs of our courts cannot, and do not extend into Parliament;

(e) that the submission of the incumbent Chief Justice of Ghana of himself for approval did not, as would have been the case of a non-constitutional right, deprive him of the rights of office conferred on the holder of the office of Chief Justice by the provisions of article 127 (8) and (9) of the Constitution and the protection thereby afforded to him by the provisions of article 128 of the Constitution relating to removal from office."

There the matter rested until the present suit —No. 13 of 1981—filed on 27 February 1981 was instituted to challenge the decision in the Tuffuor v. Attorney-General, not only on the ground of