JOSEPH SAM v. THE ATTORNEY-GENERAL
2000
SUPREME COURT
GHANA
CORAM
- Mrs. Bamford-Addo, J.S.C. (Presiding)
- Ampiah, J.S.C.
- Acquah, J.S.C.
- Atuguba, J.S.C.
- Ms. Akuffo, J.S.C
Areas of Law
- Constitutional Law
- Civil Procedure
- Tort Law
2000
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In this Ghana Supreme Court case, a Ghanaian citizen and legal practitioner challenged Section 15 of the Divestiture of State Interests (Implementation) Law, 1993 (PNDCL 326), which grants blanket indemnity to the State, the Divestiture Implementation Committee (DIC), and its officers, and purports to oust court jurisdiction over divestiture-related acts. The Solicitor-General argued that Article 2(1) requires a pre-existing dispute and personal interest, and that the Transitional Provisions (Section 34) immunize the PNDC’s acts. Writing the lead opinion, Mrs. J. Bamford-Addo, J.S.C., held that Article 2(1) affords any citizen standing without personal interest, that the Constitution must be read according to its own text and spirit, and that subordinate legislation cannot curtail the High Court’s jurisdiction or exempt government from tort liability under Article 293. Concurring opinions by Ampiah, Acquah, Atuguba, and Sophia Akuffo emphasized open standing, constitutional supremacy, and the limited scope of Transitional Provisions. The Court unanimously declared Section 15 inconsistent with Articles 140(1) and 293 and void to the extent of inconsistency, while recognizing that Transitional Provisions insulate PNDC-era acts.
MRS. J. BAMFORD-ADDO, J.S.C.:
The plaintiff issued a Writ to invoke the Original Jurisdiction of this court seeking the interpretation of the Constitution and a declaration
"that Section 15 of the Divestiture of State Interests (implementation) Law 1992 PNDCL 326 is inconsistent with or in contravention of the Provisions of Articles 140(1) and 293(2)(3) of the 1992 Constitution and to that extent it is null and void."
The Defendant raised a preliminary objection to this action on the ground that Plaintiff has no standing to bring the suit since he has no personal interest in the outcome of the case. He asked that Plaintiff's writ be struck out and dismissed for lack of standing.
The Defendants' grounds for the preliminary objection were that
a) a controversy or dispute concerning the interpretation of an enactment must have arisen before the said declaration can be sought.
b) that according to Article 2(1) of the Constitution the meaning of "person" contained therein is referable to an aggrieved person or a person whose interest has been adversely affected by the construction of an enactment or anything contained in the enactment; for the reason that the Supreme Court does not "tender advice" to prospective litigants but interpretes the constitution in the context of disputes:"
The Solicitor General for Defendant submitted that even though the "dispute and controversy" requirement was not expressly stated in Article 2(1) of the Constitution 1992,
"it is clear that all over the realms of the civilised world, courts exist to settle disputes and that it is only those whose interests have been adversely affected any way or the other by the construction of a said enactment or a provision of that enactment who are entitled to a declaration. The 1992 Constitution therefore assumed this as given and did not elaborate this expressly in the constitution."
I find this submission to be wrong and untenable having regard to the provisions of our peculiar constitution. The case of Bilson vs. Attorney General SC (unreported) dated 12th December 1994 was heavily relied on to support the stance of the Solicitor General and he asked this court to apply the decision in that case and thereby to dismiss this present case in limine. The plaintiff invoked the original jurisdiction of the Supreme Court under Article 2(1) of the Constitution 1992 which Article says:
"Article 2(1) A person who alleges that—
a) an enactment or anything contained in or done under the author