February 4, 2009
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In this original constitutional matter, Customs, Excise and Preventive Service (CEPS) sought declarations that the Labour Act, 2003 (Act 651) should not apply to CEPS and that a 1987 collective bargaining certificate be void, arguing CEPS is a security body excluded under section 1 of Act 651 and Article 24(4). After recounting CEPS’s statutory powers, the National Labour Commission’s prior jurisdictional ruling, and the Attorney-General’s advice against unionization, the Supreme Court, per Atuguba JSC with a separate concurring opinion by Adinyira JSC, held that Act 651 applies to CEPS because the Security and Intelligence Agencies Act, 1996 (Act 526) specifies only the Bureau of National Investigation and Research Department as intelligence agencies, and CEPS is not named. Applying Article 24(3)-(4), the Court affirmed CEPS workers’ right to unionize subject to reasonable, lawful restrictions (e.g., criminal and public order laws), and dismissed CEPS’s action for total exclusion. Justice Dotse dissented; Justices Ansah and Anin Yeboah noted agreement with his view.
ATUGUBA, J.S.C:
The facts of this case have been related by my brother Dotse, J.S.C. and I would not repeat them except where necessary.
The plaintiff claims before us per its writ of summons as follows:
“1. A declaration that on a true and proper interpretation of the Labour Act 2003 (Act 651), particularly s.1, the application or the purported application of the said Act to cover the Customs, Excise and Preventive Service (CEPS) as established by law is inconsistent with, or in contravention of Article 24 (4) of the Constitution and to that extent the court ought to declare that restrictions prescribed by law and reasonably necessary in the interest of national security or public order require that Customs, Excise & Preventive Service be excluded from the application of the Labour Act 2003
(Act 651).
2. That by virtue of the combined effect of Article 1(2) and Article 11(6) of the Constitution the Court declares a Collective Bargaining Certificate dated 20th March 1987 issued to cover the Customs, Excise & Preventive Service void and of no effect.”
It is obvious that these claims could have been better drafted. However their substance is that
(a) insofar as the Labour Act 2003 (Act 651) applies to the workers of the Customs, Excise and Preventive Service, the same is inconsistent with or in contravention of Article 24(4) of the Constitution and to that extent is null and void.
(b) The continued operation of a Collective Bargaining Certificate dated the 20th day of March 1987 in respect of the Customs Excise and Preventive Service is for the same reason also null and void.
Preliminary Points
The defendant objects that the plaintiff failed to appeal against the Ruling of the National Labour Commission dated the 7th day of June 2006 that it has jurisdiction over it and therefore is out of time in this court. But the plaintiff’s case is not an appeal but an original action in this court. As this court is the only competent court to entertain and if appropriate, to grant the reliefs claimed by the plaintiff in this action, it is difficult to fathom how there could be an objection to the initiation of the same. See Mensima v. Attorney-General (1996-97) SC GLR 676. New Patriotic Party v Attorney-General (Ciba Case) (19996-97) SC GLR 729, Sam (No. 2) v Attorney-General (2000) SC GLR 305, Adofo v. Attorney-General & Cocobod (2005 – 2006) SC GLR 42.
Some other preliminary objections could, but were not raised as to the legal capacity of the plaintiff t