KWAKYE v. ATTORNEY-GENERAL
March 22, 1981
SUPREME COURT
GHANA
CORAM
- APALOO C.J.
- SOWAH
- ARCHER
- ANIN
- CHARLES CRABBE
- ADADE
- TAYLOR JJ.S.C
Areas of Law
- Constitutional Law
- Civil Procedure
- Human rights Law
March 22, 1981
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court, per Apaloo C.J. delivering the ruling of the court, addressed an original constitutional claim filed on 5 December 1979 by a plaintiff who sought a declaration that he had never been tried or sentenced by any AFRC special court and that a purported 25-year sentence reported in the national press violated Chapter 6 fundamental rights. The Attorney-General, served on 10 December 1979, filed no statement of case within the Rule 48 timeline, but moved to strike out the action as premature under N.L.C.D. 352’s one-month notice requirement and later invoked transitional provisions (sections 15 and 16) to argue an ouster of jurisdiction over AFRC acts. Construing article 2(1)(b), the Court held that constitutional actions may be brought "at any time" and that the statutory notice requirement is inconsistent and void under article 1(2), overruling the preliminary objection. On the ouster clause, the Court found no factual foundation due to the Attorney-General’s failure to plead and ordered him to file a statement of case within seven days so that the matter could be properly determined.
JUDGMENT OF APALOO C.J.
He delivered the ruling of the court. On 5 December 1979, the plaintiff issued out of this court, a writ in which he seeks to invoke this court's original jurisdiction. The relief indorsed in the writ was:
[p.11]
"A declaration that the plaintiff was never tried, convicted or sentenced by any special court established under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (A.F.R.C.D. 3), and the purported sentence of 25 years' imprisonment imposed upon the plaintiff as published in the national press on 13 October 1979, is an infringement of the plaintiff's fundamental human rights inconsistent with chapter 6 of the Constitution of the Republic of Ghana, 1979, void and of no effect."
In accordance with rule 46 of the Supreme Court Rules, 1970 (C.I. 13), he filed a statement of his case. It is not necessary in this ruling to reproduce that statement in full. But the paragraph that appears material and on which a great deal of the argument addressed to us turned, is paragraph (3). It is in the following words:
"On 21 September 1979 the A.F.R.C. announced on the radio (and the announcement was published in the national press on 22 September 1979) that 68 persons had been tried in absentia and sentenced by the special court established under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (A.F.R.C.D. 3), and that details of the trials would be published later. The plaintiff was listed as one of the persons so tried and sentenced in absentia."
Paragraphs (4)-(6) contained averments that the details of the. trials were never published but that on 13 October 1979, the national newspapers carried what was described as a press release purporting to have been issued by the Armed Forces Revolutionary Council. In that release, 51 persons including the plaintiff were said to have been sentenced to prison for a term of 25 years each. The plaintiff argued that having ceased to exist on 24 September 1979, the said Armed Forces Revolutionary Council could not have issued that release.
On 10 December 1979, the writ and the statement of the plaintiff's case were served on the Attorney-General. Rule 48 of the Supreme Court Rules, 1970, obliged a defendant who wishes to contest the plaintiff's case to file a statement of his own case within fourteen days of the service on him of the plaintiff's case. On the facts, such statement should have been filed on or before 24 December 1979. The defendant did not