FRANK BO AMISSAH v. THE ATTORNEY GENERAL

RULING

BROBBEY J.S.C.:

Describing his capacity as a citizen of Ghana simpliciter and a person with the duty to defend the Constitution, the plaintiff issued a writ invoking the original jurisdiction of this court. He cited as the defendant the Attorney General in his capacity as the principal legal officer of the Government and the person who conducts criminal prosecutions or on whose behalf criminal prosecutions are conducted. In his writ, the plaintiff claimed the following reliefs;

“i) A declaration that section 179A(3) of the Criminal Code, 1960 (Act 29) as amended by Act 458 is inconsistent with and in contravention of Article 19(11) of the Constitution of Ghana, 1992.

ii) A declaration that any criminal prosecution, trial and or conviction held or done under or on the authority of the said section 179 A (3) of Act 29 is in contravention of the Constitution and void and of no effect.

iii) A declaration that the prosecution or trial of some former public officers of Ghana under the said section 179 A (3) of Act 29 in suit FT/MISC/2/2001 otherwise known as the Quality Grain Case is being done in contravention of the Constitution"

Statements of the plaintiff's case were filed, followed by affidavit verifying the facts and particulars in the terms of the rules. For his part, the defendant filed statements of his case and memorandum of issues were also filed. Monday, March 4th, 2003 was fixed for the hearing of the writ. As late as half past ten in the morning of that Monday, the plaintiff filed supplementary statement of his case. At half past two on the same day of 3rd March, the plaintiff filed a notice in these terms:

PLEASE TAKE NOTICE that the plaintiff wholly discontinues/withdraws this action"

When the case was called on that day, counsel for the plaintiff formally applied on behalf of the plaintiff in open court to withdraw or discontinue the action. According to counsel, the plaintiff applied to withdraw or discontinue the case for "personal reasons.”

At that juncture, the defendant opposed the application to withdraw or discontinue. In sum, the submissions made to oppose the application were as follows;

1. Counsel for the plaintiff did not state the rule under which he applied to withdraw the case. There were no express rules on similar withdrawals in the Supreme Court Rules, C.I. 16, and therefore he invited the court to apply rule 5 of the said Rules and treat the application as an application to for leave to withdraw or discontinue