TUFFUOR v. ATTORNEY-GENERAL

JUDGMENT OF SOWAH J.S.C.

Sowah J.S.C. delivered the judgment of the court. The plaintiff is seeking a declaration from this court that:

"(a) on the coming into force of the Constitution of the Third Republic on 24 September 1979, Fred Kwasi Apaloo was deemed to have been appointed Chief Justice of the Republic and as such became president and member of the Supreme Court;

(b) the purported nomination by the President of the Republic of Fred Kwasi Apaloo for approval by Parliament of his appointment as Chief Justice of the Republic and member of the Supreme Court and his purported vetting and rejection by Parliament as such on 16 August 1980 were each acts effected in contravention of the Constitution and laws of the Republic and were therefore all null and void and of no effect;

(c) Fred Kwasi Apaloo remains Chief Justice of the Republic and, thereby, president of the Supreme Court."

The Attorney-General, as solicitor for the defendants stated, inter alia, in his statement of defence that:

"in nominating Fred Kwasi Apaloo as Chief Justice, the President was acting in fulfilment of the mandatory requirements of article 127 (1) of the Constitution, 1979, and in the exercise of powers conferred on him by the same clause of the Constitution, while Parliament, in rejecting the said nomination, was exercising powers conferred upon it by the said clause (1) of article 127."

At the hearing, the Attorney-General sought leave to raise preliminary objections: firstly as to the jurisdiction of this court; secondly, as to the capacity of the plaintiff and thirdly as to the competency [p.644] of the Speaker as the first defendant. Arguing on the issue of jurisdiction the Attorney-General, submitted that this court as presently constituted was the Court of Appeal exercising, by virtue of the provisions of section 3 of Part III of the First Schedule to the Constitution, the powers conferred upon the Supreme Court under articles 51, 117, and 118. This meant that the powers of the present court were limited to those articles and it had no jurisdiction to deal with any issue falling under, or referable to, article 2. As such if there was any portion of the plaintiff's claim which was referable to article 2 that portion was bad in law. The only court that could make a declaration under article 2 of the Constitution was the Supreme Court properly so called and properly so constituted.

He went further to say that if the claim was examined in detail, it would appear tha