April 20, 2005
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In a unanimous Supreme Court judgment authored by Dr. S. K. Date-Bah JSC, former Ghana Cocoa Board employees Ernest Adofo, Paul K. Sekley, and Samuel Ntiful sought constitutional enforcement against provisions of PNDC Law 125 after their 1994 retrenchment and the alleged withholding of terminal benefits. Following amendment of their writ and narrowing of claims, the parties agreed that the sole issue was the constitutionality of sections 5 and 6, which purported to bar actions and abate pending suits arising from the Board’s reorganisation and terminations. Emphasizing constitutional supremacy and unimpeded access to courts as a core constitutional value, and relying on binding precedent including Sam (No. 2) v Attorney-General, the Court held section 5 unconstitutional and void under Article 140(1) and the broader “spirit” of the Constitution. The Court declined to decide section 6, viewing that determination as unnecessary and entangled with transitional provisions.
J U D G M E N T
DR. DATE-BAH, J.S.C: This is the unanimous judgment of the Court. The Plaintiffs issued a Writ on 2nd March 2004 seeking an enforcement of the Constitution by:
1. “A declaration that by the proper interpretation of the Article 36(1) and (2) of the 1992 constitution PNDC law 125 ceased to exist or to have any effect upon the coming into effect of the 1992 constitution of the Republic of Ghana.
2. A declaration that said PNDC law 125 is inconsistent with the provision of the discriminate (sic) 1992 constitution in so far as it tends to decrements (sic) against certain categories of workers in Ghana and within the CocoBod.
3. A declaration that the said P.N.D.C. law 125 is unconscionable and must be removed from the statute books of Ghana.”
The Writ was expressed to be issued by three Plaintiffs, namely, Ernest Adofo, Paul K Sekley and Samuel Ntiful “for themselves and on behalf of 70 other workers of the Cocobod retrenched in September 1994”. In the accompanying Statement of Case, verified by an affidavit deposed to by the first Plaintiff, the Plaintiffs stated that they were citizens of Ghana and former employees of the Ghana Cocoa Board. They further stated that in or about 1994 the Plaintiffs, numbering about 70, were declared redundant and their employment terminated. Their terminal benefits were not paid them, they claimed. When they made inquiries regarding these benefits, they alleged that they were informed of PNDC Law 125, which was said to empower the Ghana Cocoa Board to terminate their employment and to indemnify the Board from any liability for the payment of retirement benefits in accordance with the collective agreement of these employess. The Plaintiffs contended that PNDCL 125 was unconstitutional, as it offended against the express stipulation in Article 36 of the 1992 Constitution. This reference in the Plaintiff’s Statement of Case was in fact wrong and should have read section 36 of the Transitional Provisions (First Schedule to the Constitution).
On 25th November 2004, the Plaintiffs filed a motion on notice for an amendment of their Writ in order to cure an irregularity which had been identified by the Defendants. The Plaintiffs’ Writ had failed to provide the addresses of the first three Plaintiffs nor the names or addresses of the 70 other workers of Cocobod that the first three Plaintiffs purported to represent. The amendment was granted on 18th January 2005. By the amended Writ, the three Plaintiffs no long