1998
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, composed of Justices Joyce Bamford-Addo, C. Hayfron-Benjamin, Adjabeng, Atuguba, and Ms. Akuffo, dismissed an original-jurisdiction suit brought by attorneys for the Ellis and Wood families to invalidate the Hemang Lands (Acquisition and Compensation) Law, 1992 (PNDCL 294). The families argued PNDCL 294 contravened Articles 20 and 107 by effecting compulsory acquisition without demonstrable public purpose, setting derisory compensation, ousting court jurisdiction, altering prior judgments, and operating retrospectively. The Attorney-General raised preliminary objections, contending the 1992 Constitution acts prospectively and that the Transitional Provisions’ section 34(3) ousts judicial review of PNDC acts. In separate concurring opinions, the Court held PNDCL 294 took effect before 7 January 1993, fully vesting the lands and fixing compensation, making post-constitutional invalidation improper; section 34(3), reinforced by Article 299, further barred the court from questioning the PNDC’s legislative act. Relying on precedents including Fattal, Kwakye, Awoonor-Williams, and Benneh, the Court upheld the preliminary objections and dismissed the action.
MRS. JOYCE BAMFORD-ADDO, J.S.C.:
I have been privileged to read in advance the ruling of my Brother Adjabeng, J.S.C. and I agree with him. In this case the Plaintiffs invoked the Original Jurisdiction of this court under Article 2 of the 1992 Constitution, for a declaration:
1. That the Hemang Lands (Acquisition and Compensation) Law 1992 (PNDCL 294) is inconsistent with and in contravention of the Constitution of the Republic of Ghana 1992 especially, Articles 20 and 170 thereof and is consequently null and void.
2. An order setting aside or striking down as null and void the said PNDCL 294.
The Defendant raised certain preliminary objections to the claim of the Plaintiffs on a number of grounds important amongst them are the following:
a) That the PNDCL 294 is not inconsistent with Articles 20 and 107 of the Constitution because the Constitution acts prospectively and not retrospectively to affect the acquisition which had taken place months before the coming into force of the Constitution.
b) That PNDCL 294 being a legislative act of the PNDCL done before the coming into force of the Constitution for the purpose of vesting the Hemang Land in the Republic, the Courts cannot by virtue of S.34 of the Transitional Provisions of the Constitution go behind the law and question its rationale or wisdom as the jurisdiction of the Court is ousted in respect of the said legislative Act of the PNDC.
The PNDCL 294 came into force on the 20th November 1992 before the coming into force of the Constitution on the 7th January 1993, so that the Hemang lands was vested in the Republic, see S.1 of PNDCL 294, a few weeks before the effective date of the Constitution. By virtue of Article 11(2) of the Constitution PNDCL 294 formed part of the existing laws of Ghana. That Article says:
"Article 11 (2) The existing law shall except as otherwise provided in clause (1) of this Article, comprises the written and unwritten laws of Ghana as they existed immediately before the coming into force of this Constitution and any Act, Decree, Law or statutory instrument issued or made before that date which is to come into force on or after that date"
However, Section 36(2) of the Transitional Provisions of the Constitution provides that
Notwithstanding the abrogation of the Proclamation referred to in subsection (1) of this section any enactment or rule of law in force immediately before the coming into force of this constitution shall in so far as it is not inconsistent with