July 7, 2010
SUPREME COURT
CORAM
AI Generated Summary
On a constitutional reference initiated by His Worship Ali Baba Abature of the District Court, Community Centre, Accra, the Supreme Court, per Dr. S.K. Date-Bah JSC, delivered a unanimous ruling interpreting Article 17’s equality clause in relation to section 30(1) of the Legal Profession Act, 1960 (Act 32). The case arose after a lawyer-plaintiff secured damages for a client in the Krobo Odumase Circuit Court and sued to recover a 15% fee without first serving a bill and waiting one month, as section 30 requires. The defendant sought to set aside a default judgment, arguing the suit was a nullity under section 30; the lawyer claimed section 30 violated Article 17(1). The Court held that Article 17 does not impose rigid identical rights; reasonable legislative classifications are permissible. Drawing on Indian jurisprudence and Ghanaian precedent (Ayarna), the Court concluded section 30 is a legitimate, regulatory measure protecting clients, consistent with Article 17 and Article 109(1). Justice Dotse issued a concurring opinion emphasizing the same conclusions and directing the Magistrate to apply Act 32.
DR. DATE-BAH, JSC:-
This is the unanimous ruling of the Court on this reference.
Introduction
His Worship Ali Baba Abature, the Magistrate who has in this case made a reference to this Court, has exhibited commendable legal awareness. This is the first reference that we are aware of that has come from a Magistrate’s Court. He is, of course, well within his rights, under article 130(2) of the 1992 Constitution, to refer to this court:
“(a) all matters relating to the enforcement or interpretation of this Constitution; and
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any authority or person by law or under this Constitution.”
The context within which this Court will exercise its original jurisdiction, whether by way of a reference or otherwise, was set out lucidly by Anin JA in the locus classicus in Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592 at p. 604 as follows (in relation to the 1979 Constitution):
“From the foregoing dicta, we would conclude that an issue of enforcement or interpretation of a provision of the Constitution under article 118(1)(a) arises in any of the following eventualities:
(a) where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;
(b) where the rival meanings have been placed by the litigants on the words of any provision of the Constitution;
(c) where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail;
(d) where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.
On the other hand, there is no case of “enforcement or interpretation” where the language of the article of the Constitution is clear, precise and unambiguous. In such an eventuality, the aggrieved party may appeal in the usual way to a higher court against what he may consider to be an erroneous construction of those words; and he should certainly not invoke the Supreme Court’s original jurisdiction under article 118. Again, where the submission made relates to no more that a proper application of the provisions of t