HIS LORDSHIP JUSTICE PAUL UUTER DERY v. TIGER EYE P. I. & ANOR

JUDGMENT

BENIN, JSC:-

My Lords, in this case we would have to answer a very important question listed as relief (4) on the writ and also set down by the Plaintiff herein as issue (4) in the memorandum of issues. The question is this: if Article 146(8) of the Constitution is violated in terms of public disclosure of the contents of a petition, does it render the original process, being a petition to the President, null, void and of no effect? This question has been posed because in the case of Ghana Bar Association v. Attorney-General and Another (1995-96) 1GLR 598, hereafter called the GBA case, as well as in the case of Agyei-Twum v. Attorney-General and Akwetey (2005-2006) SCGLR 732, hereafter called the Agyei-Twum case, this question was not addressed and answered even though this constitutional provision featured in both cases. In the Agyei-Twum case the court concluded that since the petition was published to persons other than the President, it was done in violation of Article 146(8) of the Constitution and consequently the publication was declared an unconstitutional act. The court did not, however, proceed to say the petition was as a result rendered void. It might be because the plaintiff in that case did not seek any such relief. On the other hand, as suggested by Counsel for the Plaintiff herein at paragraph 8.9 of the statement of case, no consequential order was made under Article 2(2) of the Constitution, 1992 because “there was no conclusive evidence on record that the 2nd Defendant was responsible for the publication in the media of his Petition”, quoting from the decision.

Both the GBA and Agyei-Twum cases asserted the fact that Article 146(8) should be complied with, in proceedings leading to the removal from office of a superior court Judge in the sense that it should be conducted in private. We would thus not belabour that point. And as we shall show, the resolution of this case will come down to the answer that will be given to the question we have posed above.

Nonetheless, we would address the issue whether we should depart from the decision in the Agyei-Twum case referred to above as has been strenuously urged upon us by Counsel for the 2nd and 3rd Defendants.

This matter has been brought by the Plaintiff herein relying on Article 146(8) of the 1992 Constitution. The entire Article 146 of which clause (8) forms a part deals with the removal from office of persons in the category of superior court judges, including the Chief Just