2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court of Ghana ruling resolves a preliminary objection to jurisdiction in a constitutional enforcement suit arising from the National Media Commissions appointment of a Director-General for the Ghana Broadcasting Corporation. The plaintiff sought declarations grounded in articles 168, 23 and 296, arguing the Commission could not appoint one of its own members without offering an opportunity to other qualified Ghanaians and that the appointment breached constitutional standards of fairness and administrative justice. The defendants contended the case was a human rights enforcement under article 23 for the High Court, that article 168 was clear and raised no interpretative issue, and that article 296 concerned only quasi-judicial discretion. Delivering the principal analysis, Date-Bah JSC distinguished public-interest enforcement under article 2(1) from personal-rights claims under article 33(1), found rival meanings regarding article 296 that infected article 168, and held pre-1993 precedents are persuasive, not binding. The Court unanimously overruled the preliminary objection, with Atuguba Ag. CJ concurring in the result while stressing that enforcement does not depend on interpretative ambiguity.
R U L I N G
ATUGUBA, J.S.C:
I have had the advantage of reading the characteristic masterly opinion of my brother Dr. Date-Bah J.S.C. I agree with much of it and its conclusion.
However, I perpetually disagree, with global respect to him, in so far as he holds that this court’s enforcement jurisdiction does not arise unless an issue of interpretation arises. The original jurisdiction of this court stems from articles 2 and 130 of the Constitution. One of its most essential components is the enforcement of the Constitution as an item of jurisdiction in its own right and though it may arise jointly with an issue of interpretation its existence and invocation cannot be inextricably linked to the incidence of an interpretative issue, as a sine qua non prerequisite.
It is common knowledge that the original jurisdiction of this court has been conferred in almost identical language in the 1969 and 1979 past Constitutions of Ghana and has been consistently interpreted in the same manner by the Supreme Court.
Thus in Edusei v. Attorney-General [1996-97] SCGLR 1 at 51 Kpegah JSC recalled the earliest authoritative construction of the original jurisdiction of this court thus:
“ In the case of Gbedemah v. Awoonor-Williams (1970) 2 G&G 438 at 439 the Court of Appeal, sitting as the Supreme Court, stated the parameters within which the original and exclusive jurisdiction can be invoked thus:
“It seems to us that for a plaintiff to be able to invoke the original and exclusive jurisdiction of the Supreme Court his writ of summons or statement of claim or both must prima facie raise an issue relating to:
the enforcement of a provision of the Constitution; or
the interpretation of a provision of the Constitution; or
a question whether an enactment was made ultra vires Parliament, or any other authority or person by law or under the Constitution.” (e.s)
The above dictum was approved and applied in Tait v. Ghana Airways Corporation (1970) 2 G&G 527 where the plaintiff’s case was held to be essentially one of wrongful dismissal and rejected the contention of counsel for the plaintiff that the court was being called upon to interpret and enforce articles 138(b) and 140(2) of the 1969 Constitution.”
So entrenched is this construction that in Edusei v. Attorney-General (1997-98) 2 GLR 1 at 43 Acquah JSC (as he then was) robustly said:
“The word “exclusive” was not used in article 130(1) of the Constitution, 1992 without significance. And an interpretation which fai