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NEW PATRIOTIC PARTY v ATTORNEY-GENERAL [1993-94] 2 GLR 35—192
SUPREME COURT, ACCRA
8 March 1994

ARCHER CJ, ADADE FRANCOIS, ABBAN, AMUA-SEKYI, AIKINS, BAMFORD-ADDO, HAYFRON-
BENJAMIN AND AMPIAH JJSC
Constitution Law — Constitutional issue — Jurisdiction of Supreme Court — Action against declaration of
31 December as statutory public holiday — Contention by plaintiff that celebration not be financed with
public finds and resources — Action not questioning overthrow of government of Third Republic in coup
d'etat of 31 December 1981— Whether Supreme Court competent to hear action — Constitution, 1992,
Sched 1.s 34(1) and (2).
Constitutional law — Constitutional issue — Jurisdiction of Supreme Court — Interpretation of Constitution

— Ghanaians granted right to defend constitutional order — Right exercised by seeking interpretation of
Constitution — Action by plaintiff for declaration that celebration of 31 December as public holiday with
public funds breach of constitution — Whether Supreme Court vested with jurisdiction to adjudicate matter
— Constitution, 1992, arts 2 and 3(4).
Constitutional law — Constitutional issue — Jurisdiction of Supreme Court — Political question — All issues
of constitutional interpretation justiciable by Supreme Court — High Court and chieftaincy tribunals
respectively granted, jurisdiction under Constitution over matters with high political content — Constitution
essentially political document — Whether Supreme Court to decline jurisdiction on ground case political
one.
Constitutional law — Constitution, 1992 — Directive Principles of State Policy — Justifiability — No

indication within Constitution that principles non-justiciable — Principles not exempted from effect of articles
1(2) and 2(1) which render any law, act or omission inconsistent with any provision of Constitution null and
void — Judiciary obliged article 34(1) to be guided by principles when applying or interpreting Constitution
— Whether principles justiciable — Constitution, 1992, arts 1(2), 2(1), 34(1) and Chp 6.
[p.36]
Constitutional law — Constitution, 1992 — Defence of — Celebration of 31 December as statutory public

holiday — Article 3(4) vesting Ghanaians with right to defend Constitution — Scope of right — Effect of
celebration on people adversely affected by coup d'etat and on resolve of people to resist coups —
Whether celebration subverting Constitution — Whether celebration against letter and spirit of Constitution
— Claim that celebration for good works, and values, of coup d'etat — Whether constitutional justification
for expenditure national resources on it — Whether plaintiff entitled to resist expenditure — Constitution,
1992, arts 3(3), (4)(a) and (b), 41(f) and Sched 1, s 34(2).
Constitutional law — Executive and legislative power — Limitation on — Injunction remedy — Supremacy
of Constitution — Any law or act inconsistent with any provision of Constitution void — Whether injunction
available to restrain President from enforcing or obeying void law — PNDCL 220 declaring 31 December as
statutory public holiday and imposing penalties for breach of provision — Action by plaintiff to have
declaration by executive of 31 December as statutory public holiday declared unconstitutional — No
reference by plaintiff to PNDCL 220 — Provision recognising 31 December as statutory public holiday
file:///Users/joeanka/Downloads/NEW_PATRIOTIC_PARTY_v_ATTORNEY_GENERAL_1993_94_2_GLR_35—192 (1).htm 1/215

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inconsistent with letter and spirit of Constitution — Whether provision null and void — Constitution, 1992,
arts 1(2), 3, 35(1) and 41(f) — Public Holidays Law, 1989 (PNDCL 220), ss 1(1), 5 and Sched.
Constitutional law — Executive and legislative power — Limitation on — Government expenditure —

Financial estimates in operation before Constitution came into force with any constitutional provision —
Financial provision approved by Parliament for celebration of 31 December as statutory public holiday —
Celebration unconstitutional — Whether utilisation of public funds for purpose lawful — Constitution, 1992,
Sched 1, ss 18, 19 and 36.
HEADNOTES
On 31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was
overthrown in a coup d'etat. Subsequently, the military regime which took over the reins of government, the
Provisional National Defence Council, declared 31 December a statutory public holiday. Accordingly, each
year the anniversary of the coup was celebrated, inter alia, by personnel of the security forces with military
parades, route marches and carnivals throughout the country. These activities were financed with public
funds. On 7 January 1993 the reign of the PNDC came to an end with the assumption of power by a civilian
government which had been elected into office under the Constitution, 1992. When on 19 December 1993
the government announced that 31 December 1993 would be a public holiday and should be celebrated
and observed as such, the plaintiff, one of the registered political parties in the country, claiming that the
celebration would be unconstitutional, brought an action under article 2(1) of the Constitution 1992 against
the Attorney-General for a declaration that the public celebration of the coup d'etat of 31 December out of
public funds was inconsistent with or in contravention of the letter and spirit of the Constitution, 1992
particularly articles 3(3)-(7), 35(1) and 41(f) and an order compelling the government to cancel the
preparations for the celebration and refrain from carrying out the [p.37] celebration with public funds. In
support of the plaintiff's case, it was contended, inter alia, that it was clear from the relevant provisions of
the Constitution, 1992 that the people of Ghana had resolved never to allow the Constitution, 1992 to be
overthrown or undermined and since the intended celebration would glorify coups d'etat and in the result
would undermine the people's resolve to resist coups, it would be unconstitutional. Accordingly, expenditure
of public funds on the celebration would constitute waste and misuse of public funds which the Constitution
enjoined the people to resist. In his defence on the other hand, the defendant objected to the jurisdiction of
the Supreme Court to entertain the action on the ground that (a) the action sought to question the legality of
the coup d'etat of 31 December 1981 contrary to section 34(2) of the transitional provisions of the
Constitution, 1992; and (b) the question whether 31 December should be celebrated was a political
question which should be reserved to the executive or Parliament to decide. And on the merits, the
defendant contended, inter alia, that (i) the celebration of 31 December as a public holiday could not be
said to be subverting or overthrowing the Constitution in contravention of article 3(3) as to require any
defensive action by anyone under article 3(4); (ii) the Directive Principles of State Policy contained in
chapter 6 of the Constitution, 1992 were not justiciable and therefore articles 35 and 41 which were part of
the principles could not ground a cause of action; and (iii) 31 December was a statutory public holiday by
virtue of the Public Holidays Law, 1989 (PNDCL 220) and moneys were lawfully appropriated under the
1993 budget estimates approved by Parliament for its celebration in recognition of the historical values and
good works that the revolution stood for and therefore the intended expenditure was lawful.
Held, (Archer CJ, Abban, Bamford-Addo and Ampiah JJSC dissenting):
(1) the Supreme Court had jurisdiction to entertain the plaintiff's action because
(a) The essence of the plaintiff's action was that whatever the nature of the coup d'etat of 31 December
1981, legal or illegal, its anniversary after 7 January 1993, should not be celebrated out of public funds and
other resources. Since the action did not relate to the overthrow of the government of the Third Republic or
the abrogation of the Constitution, 1979, section 34(2) of the transitional provisions of the Constitution, 1992
which conferred immunity on and freed the persons covered by it from punishment or from paying
compensation to anyone did not apply to the case.
(b) By virtue of article 3(4) of the Constitution, 1992 every citizen of Ghana had the constitutional right to
protect the constitutional order established by the Constitution so that it was not abolished or sought to be
abolished. The citizen had to exercise that right by seeking an interpretation as to the meaning and effect of
a particular provision or provisions of the Constitution. Since in the [p.38] instant case, the determination of
the controversy as to whether the celebration of the 31 December revolution offended the Constitution
depended on the interpretation of the Constitution, it raised a justiciable issue which the Supreme Court had
jurisdiction under article 2 of the Constitution, 1992 to adjudicate upon and make such orders and give such
directions as it might consider appropriate. Tuffuor v Attorney [1980] GLR 637, CA sitting as SC cited.

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(c) The doctrine of "political question" was inapplicable in Ghana since under articles 1, 2 and 130 of the
Constitution, 1992 issues of constitutional interpretation were justiciable by the Supreme Court. Besides,
even though questions of human rights invariably had large components of political issues, yet under article
33 of the Constitution, 1992 those questions were reserved in the first instance to the High Court. Similarly
even though chieftaincy disputes almost always involved local and often national politics, they were as
provided by chapter 22 of the Constitution, 1992 cognisable only by the chieftaincy tribunals in the first
instance. In both cases the Supreme Court came in only as a court of last resort. Accordingly, under the
Constitution, 1992 even courts and tribunals much lower in the hierarchy of courts than the Supreme Court
might lawfully decide cases which might involve "political questions." And in any case, the Constitution,
1992 itself was essentially a political document because every matter of interpretation or enforcement which
might arise from it was bound to have a political dimension. Accordingly, it would be an abdication of the
Supreme Court's responsibilities under the Constitution, 1992 and a breach in particular of articles 2 and 3
thereof if the court were to refuse jurisdiction in a constitutional case on the ground that it was a political
case. Baker v Carr, 369 US 186 (1962) not followed.
(2) The Directive Principles of State Policy contained in the constitution, 1992, chp 6 were justiciable
because:
(a) the Constitution, 1992 as a whole was a justiciable document and accordingly, if any part was non-
justiciable, the Constitution itself had to indicate it. But no provision in the Constitution had indicated that
chapter 6 was not justiciable. Yet, the evidence to establish the non-justiciability of the principles had to be
internal to the Constitution otherwise it would be in conflict with it and thus be void and inadmissible. Dicta
of Lord Halsbury LC in Hilder v Dexter [1902] AC 474 at 477, HL and of Lord Wright in Assam Railways and
Trading Co Ltd v Commissioners of Inland Revenue [1935] AC 445 at 458, HL approved;
(b) articles 1(2) and 2(1) of the Constitution, 1992 which rendered [p.39] any law, enactment or anything
done under its authority, any act or omission of any person inconsistent with any provision or a provision of
the Constitution null and void and empowered the Supreme Court so to declare, did not express any
exception in favour of chapter 6; and
(c) the provision in article 34(1) of the Constitution that the directive principles should guide the judiciary "in
applying or interpreting" the Constitution obliged the Supreme Court to apply the directive principles to
assist or facilitate the performance of a citizen's duty or the enforcement of his rights under the Constitution.
(3) Article 3(4) of the Constitution, 1992 conferred two separate and distinct rights on Ghanaians: first, the
general right and duty under article 3(4)(a) to defend the Constitution; and secondly, the particular right and
duty under article 34(b) to resist anyone committing or attempting to commit or aiding and abetting anyone
to commit any violent overthrow of the government or the Constitution as prohibited by article 3(3). But the
defence of the Constitution did not necessarily need to be a defensive action against persons coming within
article 3(3). Indeed, the Constitution might be defended against the government. In the instant case, since
the celebration of 31 December as a public holiday with carnivals, route marches, etc would have the
tendency to glorify the coup d'etat of 31 December it would not only be unfair to those who were adversely
affected by the coup but had become impotent to resort to court action by reason of the indemnity provision
of section 34(2) of the transitional provisions of the Constitution, 1992 but would weaken the people's
resolve to enforce their right or perform their duty under article 3(4), and would in the result undermine and
subvert the Constitution, 1992. Accordingly, even though the celebration might not be a violent means of
subverting the Constitution, 1992, it surely was an unlawful means under article 3(4)(a). Such conduct
would clearly be inconsistent with the duty to defend the Constitution and would be clearly against the letter
and spirit of the Constitution. In any case, on the evidence, with the exception of 4 June, for obvious
reasons, in no case was the celebration of the anniversary of a coup carried into the next succeeding
regime, civilian or military, unless it be by default. Furthermore, the defendant's claim that the celebration
would be for the good works and values brought about by the coup could not be a constitutional justification
for elevating an event of non-national interest into a national one on which to expend national resources.
Accordingly, there was no logical reason in the insistence that 31 December be celebrated as a national
holiday and financed out of public resources. Since the celebration of 31 December would be unjustified,
any expenditure of public funds in that regard would be a misuse and waste of public 41(f) of the
Constitution, 1992 which [p.40] imposed a duty on every citizen of the country to protect and preserve
public property and expose and combat misuse and waste of public hands and property. Accordingly, the
plaintiff was entitled to proceed under article 41(f) as a matter of duty to combat such misuse with a view to
protecting and preserving public property.
Per Adade JSC. Section 34 of the transitional provision of the Constitution, 1992 on indemnity...
presupposes that the event which took place on 31 December 1981 was not a lawful one, and that this fact

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is conceded by the PNDC, among others. The section does not legalise the coup of 31 December 1981 nor
any of the coups mentioned there. It only grants the coup-makers an indemnity, in the nature of public
pardon, to free certain persons from liability and punishment for, in the instant case, the event of 31
December and its sequel, which acts have been carefully spelt out under, particularly, article 34(2) of the
Constitution, 1992. It seems to me incongruous that after this pardon of a conduct considered improper and
unlawful (for there would be no need for a pardon if the conduct were lawful and proper), the public will
seek to romanticise the same event with carnivals and route marches. An exhibition of a more inconsistent
behaviour than this in a people, including members of the government, cannot be imagined, justifying the
plaintiff's action under article 2(1)(b) of the Constitution, 1992.
Besides, those few persons pardoned, few, that is considering the total population of Ghana, cannot, should
they happen to control the levers of power within the State, cock a snook at the public and the Constitution,
1992 which have given them this pardon, by a public commemoration of the very acts for which they have
been pardoned, using public money and resources in the process! Such conduct must certainly offend if not
the letter, at least the spirit or (as the Committee of Statutory Experts put it) "the conscience" of the
Constitution.
(4) Although Parliament had the right to legislate, every such legislation had to be within the parameters of
the powers conferred on the legislature by the Constitution, 1992 because under article 1(2) of the
Constitution, any law found to be inconsistent with any provision of the Constitution should, to the extent of
the inconsistency, be void. And once an Act was null and void, the President or the executive could be
restrained by injunction from enforcing or obeying it. In the instant case, it was immaterial that the plaintiff
did not specifically plead the unconstitutionality of the Public Holidays Law, 1989 (PNDCL 220). The claim
was referable to section 1(1) and the Schedule to PNDCL 220 which declared 31 December a public
holiday and section 5 which imposed penalties, including fines and imprisonment on those who act in
breach of the Law. Since those provisions were inconsistent with the letter and spirit of articles 3, 35(1) and
41(b) of the Constitution, they would by virtue of article 1(2) of the Constitution, 1992 be declared null and
void. Mississippi [p.41] v Johnson, 71 US 475 (1867) and Scranton's Trustee Pearse [1922] 2 Ch 87, CA
not followed.
(5) Even though sections 18 and 19 of the transitional provisions of the Constitution, 1992 continued in
force the Consolidated Fund, the Contingency Fund and the financial estimates in operation before the
coming into force of the Constitution, section 36 of the transitional provisions of the Constitution, 1992
emphasised that the application or enforcement of such expenditure should not be inconsistent with any
provision of the Constitution, 1992. In the circumstances of the instant case, therefore, the application of
public funds so provided intended to be utilised for the celebration of the 31 December revolution would be
unconstitutional.
CASES REFERRED TO
(1) Kwakye v Attorney-General [1981] GLR 9, SC.
(2) Atto-Mensah v The Republic [1967] GLR 562.
(3) Mississippi v Johnson, 71 US 475 (1867).
(4) Baker v Carr, 369 US 186 (1962).
(5) Coleman v Miller 307 US 433.
(6) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.
(7) R v Hertford College (1878) 3 QBD 693; 47 LJQB 649; 39 LT 18, CA.
(8) Hilder v Dexter [1902] AC 474; 71 LJCh 781; 87 LT 311, HL.
(9) Assam Railways and Trading Co Ltd v Inland Revenue Commissioners [1935] AC 445; 18 TC 509; 103
LJKB 583, HL.
(10) Farley v Bonham (1861) 30 LJCh 239.
(11) Marbury v Madison, 5 US (1 Cranch) 137; 2 L E 60 (1803).
(12) Kach Faction v Knesset Speaker, Jerusalem Post LR 35 (1993).
(13) Minister of Home Affairs v Fisher [1980] AC 319; [1979] 2 WLR 889; [1979] 3 All ER 21, PC.

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(14) Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; [1956] 2 WLR 81; [1955] 3 All ER 864,
HL.
(15) CFAO v Archibold [1964] GLR 718, SC.
(16) Malm v Lutterodt [1963] 1 GLR 1, SC.
(17) Mosi v Bagyina [1963] 1 GLR 337, SC.
(18) MacFoy v United Africa Co Ltd [1962] AC 152; [1961] 3 WLR 1405; [1961] 3 All ER 1169, PC.
(19) Sallah v Attorney-General, Supreme Court, 20 April 1970, unreported; digested in (1970) CC 22; G&G
(Vol 11, Pt 2) 493, SC.
(20) Sussex Peerage Case (1844) 11 CI & Fin 85; 8 Jur 793; 8 ER 1034. HL.
[p.42]
(21) Becke v Smith (1836) 2 M & W 191.
(22) Capper v Baldwin [1965] 2 QB 53; [1965] 2 WLR 610; [1965] 1 All ER 787, DC.
(23) R v Loxdale (1758) 1 Burr 445.
(24) Smith v Brown (1871) LR 6 QB 729; 40 LJQB 214; 24 LT 808.
(25) Goldsmiths' Co v Wyatt [1907] 1 KB 95; 76 LJKB 166; 95 LT 855, CA.
(26) Manuel v Attorney-General [1983] 1 Ch 77; [1982] 3 WLR 821; [1982] 3 All ER 786, CA.
(27) McCawley v R [1920] AC 691, PC.
(28) Lardan v Attorney-General (1957) 3 W ALR 114.
(29) Republic v Special Tribunal; Ex parte Forson [1980] GLR 529.
(30) Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554.
(31) Republic v Director-General of Prison, Ex parte Nti [1980] GLR 527, CA.
(32) Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, CA.
(33) Republic v Maikankan [1971] 2 GLR 473, SC.
(36) Scranton's Trustee v Pearse [1922] 2 Ch 87; 91 LJCh 579; 127 LT 698; [1922] All ER Rep 764, CA.
(37) Richardson v Mellish (1824) 2 Bing 229; 9 Moore CP 435; 130 ER 294.
(38) Egerton v Brownlow (Earl) (1853) 4 HL Cas 1; 23 LJCh 348; 10 ER 359.
(39) Mirams, Re [1891] 1 QB 594; 60 LJQB 397; 64 LT 117.
(40) Janson v Driefontein Consolidated Mines Ltd [1902] AC 484; 71 LJKB 857; 87 LT 372, HL.
(41) Ewart v Ewart [1958] 3 WLR 687; [1958] 3 All ER 561.
(42) Besant v Wood (1879) 12 ChD 605; 40 LT 445.
(43) Donkor v The Republic; Donkor v The Republic (Consolidated) [1971] 1 GLR 30, SC.
(44) Gibbons v Ogden, 22 US (9 Wheat) 1; 6 LEd 23 (1824).
(45) Kuenyehia v Archer [1993-94] 2 GLR 525, SC.
(46) Powell v McCornach, 395 US 486 (1969).
[p.43]
(47) Salomon and Co Ltd v Salomon [1897] AC 22; 66 LJCh 35; 75 LT 426, HL.
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(48) Leader v Duffey (1888) 13 App Cas 294; 58 LJPC 13; 59 LT 9, HL.
(49) Lumsden v Inland Revenue Commissioners [1914] AC 877; 84 LJKB 45; 111 LT 993, HL.
(50) Inland Revenue Commissioners v Dowdall, O'Mahoney & Co Ltd [1952] AC 401; [1952] 1 All ER 531;
[1952] 1 TLR 560, HL.
(51) Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308: [1941] 2 All ER 93; 110
LJPC 17; 57 TLR 419. PC.
NATURE OF PROCEEDINGS
ACTION by the plaintiff, a registered political party, before the Supreme Court under article 2(1) of the
Constitution, 1992 for a declaration that the public celebration of 31 December as a statutory public holiday
which had been announced by the government was inconsistent with and in contravention of specified
provisions of the Constitution; an order to compel the government to cancel the preparations for the
celebration of that day as a public holiday; and to refrain from using public funds to finance the celebration.
The facts are fully stated in the judgments of the panel.
COUNSEL
Peter Ala Adjetey (with him Sam Okudzeto, Kojo Afram Asiedu and William Addo) for the plaintiff.
Martin A. Amidu, Deputy Attorney-General (with him Mrs Adusa Amankwah, Chief State Attorney) for the
defendant.
JUDGMENT OF ARCHER CJ.
On 24 February 1966 this country witnessed the first coup d'etat in her political history. The government of
the First Republic was overthrown by the Ghana Armed Forces in collaboration with the Ghana Police
Force. A Proclamation was issued conferring both the legislative and executive powers of the State on a
National Liberation Council. The judiciary remained unscathed after the Proclamation which suspended the
Constitution, 1960 of the First. Republic which came into force on 1 July 1960.
On 22 August 1969 the Second Republican Constitution came into force and the Constitution, 1960 was
abrogated. Part IV of the transitional provisions in the Constitution, 1969 granted indemnity to those who
staged the Coup on 24 February 1966. Chapter 9 of the [p.44] Constitution, 1969 vested the judicial power
of Ghana in the judiciary. Article 102(3) of the Constitution, 1969 guaranteed the independence the
judiciary. For the first time in the legal history of this country, the American concept of the doctrine of
separation of powers could be discerned throughout that document, namely the powers of the legislature,
the executive and the judiciary.
On 13 January 1972 there was yet another coup d'etat and the Constitution, 1969 was suspended by a
Proclamation which establish a National Redemption Council (NRC) to be succeeded for a brief period by a
Supreme Military Council (SMC) until 4 June 1979 when the Armed Forces Revolutionary Council. (AFRC)
took over from Supreme Military Council.
On 24 September 1979 the Third Republican Constitution, 1979 came into force. At this stage, it must be
pointed out that the doctrine of separation of powers still pervaded the Second and Third Republican
Constitutions and in substance there was not much difference in the substance and wording of the two
Constitutions except that in the Second Republican Constitution there was a provision for a ceremonial
President and a Prime Minister whereas the Third Republican Constitution reintroduced the presidential
system of government.
On 31 December 1981 there was another coup d'etat and by a Proclamation, the Provisional National
Defence Council (PNDC) was established and it governed this country until 7 January 1993 when Fourth
Republican Constitution, 1992 came into force and the present government known as the National
Democratic Congress with two other parties, the National Convention Party and the Egle Party, formed
alliance and assumed the reins of government. Under an existing law, namely the Public Holidays Law,
1989 (PNDCL 220), the present government notified the public of its programme to celebrate anniversary of
the 31 December 1981 revolution which has been specified in the Schedule to PNDCL 220. The intended
celebration the of 31 December 1981 revolution invoked the wrath and indignation of interested sections of
the public who were vehemently opposed to coups.
On 21 December 1993 the plaintiff, a registered political party, issue a writ invoking the original jurisdiction
of the Supreme Court under articles 2(1)(b) and 130(1) of the Constitution, 1992 under rule 45 of Supreme

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Court Rules, 1970 (Cl 13) claiming the following reliefs:
"(1) A declaration that the public celebration of the overthrow of the legally constituted Government of
Ghana on 21 December 1981, and the financing of such celebration from [p.45] public funds is inconsistent
with, or in contravention of the letter and spirit of the Constitution, 1992 and more particularly articles 3(3),
(4), (5), (6) and (7) and 35(1) and 41(b) thereof.
(2) An order directing the Government of Ghana to cancel all preparations for the celebration of the
overthrow of the legally constituted Government of Ghana on 31 December 1981 aforesaid and to refrain
from carrying out any such celebration financed from public funds."
The writ was issued against the Attorney-General as the defendant who admitted almost all the averments
in the statement of the plaintiff's case but contended, inter alia, that 31 December like all public holidays in
Ghana is a holiday by virtue of the provisions of section 1 of PNDCL 220.
The defendant further contended that moneys were legally appropriated under the 1993 budget for the
celebration of the historical values that the 31 December revolution stood for and that the Constitution, 1992
established a nexus between the 31 December revolution and the Fourth Republican Constitution, 1992
itself. Also, the President of the Republic who was also a Ghanaian and leader of the 31 December
revolution and the members of Parliament of the National Democratic Congress Party to which the
President belongs were elected on the party's manifesto whose underpinning was continuity of the good
works and values of the 31 December revolution. Lastly, the defendant maintained that what the plaintiff
was seeking to do was to question the constitutionality and legality of the 31 December revolution, and the
events which gave rise to that revolution on 31 December 1981 which should not be entertained by the
court by virtue of section 34, particularly section 34(2) of the transitional provisions of the Constitution,
1992.
Having considered the statement filed by both parties and their oral submissions during the hearing, I wish
to say that I can discern sensitivities and susceptibilities grouped on one hand, pitched against political
statements interspersed with self-adulation and partisan platitudes on the other. The invitation to this court
is to descend into this arena and decide whose contention is constitutionally tenable. On my part, I refuse to
accept the invitation. Rather, I shall attempt to answer three questions. First, which organ of state has
power to pass laws to regulate public holidays? Secondly, can this court interfere with that legislation?
Thirdly, call this court prevent the actual celebration with or without public funds?
[p.46]
Before the British colonial administration came to these shores to govern, we had holidays in various parts
of the country among ethnic groups for the celebration of festivals restricted to various localities. Up to this
day, farmers in different parts of the country do not farm on a particular day of the week. In the south, we all
know that fishermen do not go fishing on the seas on Tuesdays. These days of rest are consistent with the
biblical text in Genesis chap 2, v 2: "And on the seventh day God finished his work which he had made, and
he rested on the seventh day from all his works which he had made." How did public holidays affecting the
whole nation come into existence in Ghana?
On 20 May 1899 the Public Holidays Ordinance, 1899 (Cap 208) was enacted and the following days were
declared public holidays: 1 January, Good Friday, Easter Monday, Whit Monday, His Majesty's birthday, the
first Monday in the month of August, Christmas Day, 26 December and all days which the Governor may, by
proclamation, declare to be days of thanksgiving or to be public holidays. Later, the Saturday next following
Good Friday and 24 May (Empire Day) were added as public holidays. It is clear that from the origins of
public holidays, only the legislature and the executive have had exclusive power to declare holidays.
The British colonial government introduced public holidays here because observance of public holidays in
England was governed by an Act of Parliament. To be precise, in 1551 during the reign of Edward VI,
Parliament had enacted a law, ie the Holy Days and Fasting Days Act, 1551 (5 & 6 Edw 6, c3) for the
keeping of holy days and fasting days. The latter part of the preamble reads:
"Neither is it to be thought that there is any certain time or definite number of days prescribed in holy
Scripture, but that the appointment both of the time, and also of the number of the days, is left by the
authority of God's word to the liberty of Christ's Church, to be determined and assigned orderly in every
Country by the discretion of the rulers and ministers thereof, as they shall judge most expedient, to the true
setting forth of God's glory and the edification of their People."
"Rulers and ministers" are mentioned. Judges and courts are not mentioned. What started purely as
religious holidays has been expanded to include holidays not necessarily connected with any religious
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observance.
After our independence, the Public and Bank Holidays Act, 1958 (No 1 of 1958) was enacted on 22 March
1958 to consolidate and amend [p.47] the law relating to the observance of public holidays and bank
holidays and for other purposes relating thereto. The holidays in the Schedule were limited to Ghana
Independence Day, 6 March; Good Friday, Saturday next following Good Friday; Easter Monday; National
Founder's Day, 21 September; Christmas Day; and Boxing Day.
After the 1966 coup, Liberation Day, 24 February was included in the Schedule by the Public Holidays
Instrument, 1966 (LI 509) as a public holiday. The Public Holidays Decree, 1972 (NRCD 8) omitted
Liberation Day and substituted therefor, National Redemption Day (13 January). However, Liberation Day
was reinstated by the Public Holidays (Amendment) Decree, 1973 (NRCD 154) on 12 February 1973, and
again removed from the Schedule on 20 February 1974 by the Public Holidays (Amendment) Decree, 1974
(NRCD 244). It should be observed that up to 21 June 1974, business and trade were carried on on public
holidays without any restriction. By the stroke of the pen the Public Holidays Decree, 1974 (NRCD 262) was
passed to prohibit business and trade on National Redemption Day, Independence Day or Republic Day,
except the sale of food and grocery shops, drug and pharmacy shops, restaurants and hotels, markets for
sale of foodstuffs, sale of spirits, wine and beer and running of essential public services. Penalties were
introduced for contraventions. In effect, motor mechanics, electricians, plumbers, hair-dressers and a host
of other commercial or industrial activities were subjected to restrictions and penalties.
These prohibitions were retained by the PNDC when it passed the Public Holidays Law, 1989 (PNDCL 220)
and omitted National Redemption Day from the Schedule but added 1 May (Workers Day), 4 June and 31
December and subsequently Farmers Day, the first Friday in December.
It is clear from the narrative I have given that declaration of public holidays has always been within the
exclusive domain of either the legislature or the executive. The courts have never interfered with the
exercise of these powers. The present suit is unprecedented. There are no previous decisions to go by as
guide-lines and I think this court should consider this suit with retrospection, introspection and
circumspection.
The gist of the plaintiff's case is that the celebration of 31 December as a public holiday, is inconsistent with
or in contravention of the letter and spirit of the Constitution, 1992. The plaintiff relied on article 3(3), (4), (5),
(6) and (7) and also article 3(2) which reads: "(2) Any activity of a person or group of persons which
suppresses or seeks to suppress the [p.48] lawful political activity of any other person or any class of
persons, or persons generally is unlawful."
I must confess that I find it extremely difficult to agree that the mere declaration and celebration of a public
holiday will suppress or seek to suppress the lawful political activity of any other persons or class of
persons or persons generally. There is nothing in PNDCL 220 which prohibits the holding of political rallies
or meetings on public holidays including 31 December. Article 3(3) of the Constitution, 1992 also provides:
"(3) Any person who —
(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or
abrogates this Constitution or any part of it, or attempts to do any such act; or
(b) aids and abets in any manner any person referred to in paragraph (a) of this clause;
commits the offence of high treason and shall, upon conviction, be sentenced to suffer death."
When this article 3(3) of the Constitution, 1992 is applied to the averments in the plaintiff's statement of his
case, it is impossible to conclude that the celebration of the public holiday will amount to suspension,
overthrow or abrogation of the Constitution, 1992. The "letter of the Constitution" relied on by the plaintiff
does not fit the averments, and the averments are not caught by the letter. With this conclusion, I do not
think it is necessary to refer to or deal with article 3(4), (5), (6) and (7) of the Constitution, 1992.
The plaintiff also has relied on the spirit of the Constitution, 1992. I understand this reliance to be simply this
—the Constitution, 1992 has said good-bye to all coups d'etat and has introduced a constitutional
democracy. Therefore, nothing should be done to remind Ghanaians of the past by paying premium to the
events that occurred on 31 December 1981.
Wherein lies the spirit of a Constitution? Is it embedded in the whole document? Or in parts of the
document? When we interpret statutes, we do not rely on the spirit of the Act. This maxim of interpretation
applies also to a Constitution. When the words are clear and unambiguous, we do not go further to imagine

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or speculate on what the words mean. What I know is that at times, it becomes necessary to find out the
intention of the legislature. This is what is meant by "the intendment of the [p.49] legislature." When one
applies, "the intendment of the Consultative Assembly it is clear that the Constitution makers did not intend
that the averment in the plaintiff's statement of clam against the defendant could amount to a violation of or
inconsistency with the Constitution, 1992. Mere remembrance of an event in the political history of this
country cannot amount to subversion of the Constitution, 1992. Human memory at times can be more
accurate than the mechanism of a tape recorder which can also be faulty at times. When one records
something on a tape, the recording can be erased and the tape can be reused. The human memory is
eternal and everlasting. One cannot obliterate historical events from the minds of men who witnessed the
event. Can we prevent Ghanaians from reminiscing on the events of 31 December 1981 if they choose to?
Certainly not.
I have found it unnecessary to dive and delve further into what is meant by the spirit of the Constitution
because I am convinced that it is a cliche used in certain foreign countries when interpreting their own
constitutions which were drafted to suit their own circumstances and political thought. Whether the word
"spirit" is a metaphysical or transcendental concept, I wish to refrain from relying on it as it may lead me to
Kantian obfuscation. I would rather rely on the letter and intendment of the Constitution, 1992.
Should the declaration sought be granted? I have already referred to the doctrine of separation of powers
which pervaded the Constitutions, 1969 and 1979 which now permeates the Constitution, 1992. The
present Constitution, 1992 guarantees the independence of the judiciary which is subject only to the
Constitution and this is reinforced by article 125(3) of the Constitution, 1992 which provides:
"(3) The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor
Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial
power."
The Constitution, 1992 gives the judiciary power to interpret and enforce the Constitution, 1992 and I do not
think that this independence enables the Supreme Court to do what it likes by undertaking incursions into
territory reserved for Parliament and the executive. This court should not behave like an octopus stretching
its eight tentacles here and there to grasp jurisdiction not constitutionally meant for it. I hold that this court
has no constitutional power to prevent the executive from proclaiming 31 December as a public holiday
because the executive then would be [p.50] applying an existing law in PNDCL 220 which can only be
amended by Parliament.
Under section 30 of the transitional provisions of the Constitution, 1992 the First President under the
Constitution, 1992, by constitutional instrument, may at any time within twelve months after assuming office
as President, make such provision as may appear necessary for repealing, modifying, adding to or adapting
any law for bringing it into accord with the provisions of the Constitution, 1992 or otherwise for giving effect
to the Constitution, 1992. At the time the writ was filed, the President had not repealed or modified the First
Schedule to PNDCL 220 which was existing and therefore the executive could rely on it. Parliament which
has the power to enact laws has not also bothered to modify the First Schedule to PNDCL 220. If
Ghanaians, including the plaintiff, feel very strongly about 31 December as a public holiday, the door is not
closed to them. They should urge their representatives in Parliament to amend the Schedule by deleting
any public holidays that are obnoxious and undesirable. It is not the function of this court to effect such
amendments or repeals. It would amount to a naked usurpation of the constitutional powers of Parliament.
Now what about the other relief sought?
"An order directing the Government of Ghana to cancel all preparations for the celebration of the overthrow
of the legally constituted Government of Ghana on 31 December 1981 aforesaid and to refrain from
carrying out such celebration financed from public funds."
I have always held the view that this court like equity must not act in vain. In other words, it should not
make orders that could be lawfully and legitimately circumvented so as to make the court a laughing stock.
Under the Constitution, 1992 the President is the commander-in-chief of the Ghana Armed Forces.
Suppose he accepts the declaration sought and confers with his commanders and service chiefs not to hold
any route marches on 31 December 1993, yet the non-commissioned officers who were instrumental in
staging the 31 December 1981 coup d'etat choose to parade through the streets of Accra, who can stop
them? Is this court going to send judges, magistrates, registrars, court bailiffs and ushers to erect
barricades in the paths of the marchers? Again suppose notwithstanding the orders of this court, the
members of the governing party, and their allies choose to celebrate 31 December with picnics, processions
and dances, who can stop them? I must confess that the [p.51] more I ponder over the reliefs sought, the

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more I become convinced of the futility of the orders being sought. I think this is a case which requires
realism, pragmatism and foresight on the part of this court.
The other ambit of the relief sought is for an order directed to the government to refrain from carrying out
any such celebration financed from public finds. The defendant admitted:
"that money was legally appropriated under the 1993 budget which were lawfully being used for the
celebration of both the historical values that the 31 December revolution stood for and the first anniversary
of the Fourth Republic which was born out of the values of the 31 December revolution."
I shall ignore this innocuous political rhetoric in this admission and attempt to answer the question whether
the judiciary in this country has ever had the opportunity and power to prevent Parliament from
appropriating money for use by the executive. Article 108 of the Constitution, 1992 provides:
"108. Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of, the
President—
(a) proceed upon a bill including an amendment to a bill, that, in the opinion of the person presiding, makes
provision for any of the following —
(i) the imposition of taxation or the alteration of taxation otherwise than by reduction; or
(ii) the imposition of a charge on the Consolidated Fund or other public funds of Ghana or the alteration of
any such charge otherwise than by reduction, or
(iii) the payment, issue or withdrawal from the Consolidated Fund or other public funds of Ghana of any
moneys not charged on the Consolidated Fund or any increase in the amount of that payment, issue or
withdrawal;
(iv) the composition or remission of any debt due to the Government of Ghana, or
(b) proceed upon a motion, including an amendment to a motion, the effect of which, in the opinion of the
person presiding, would be to make provision for any of the [p.52] purposes specified in paragraph (a) of
this article."
I have quoted this article in extenso to demonstrate the procedure the Constitution, 1992 has laid down for
the provision of moneys for the government to administer the country. It is only the President, who is the
head of the executive, who can go to Parliament to seek financial provision charged upon the Consolidated
Fund. Nowhere in this article is the role of the judiciary mentioned. Yet, this court is being invited to prevent
the government from spending moneys which Parliament has constitutionally provided for government use.
I think if the order is granted, it would amount to judicial officiousness—poking our noses into the affairs of
Parliament and intermeddling with the prerogative of the executive by directing the government not to
spend moneys approved by Parliament. Such a move clearly amounts to a violation of the doctrine of
separation of powers which is the core of our Constitution, 1992.
If this court interferes, then what is the necessity for the office of the Auditor-General under article 187 of
chapter 13 of the Constitution, 1992? It is being maintained that the moneys voted for the celebration of the
31 December holiday amount to misapplication of public funds. It is not the duty of this court to don the
mantle and cloak of the Auditor-General, whose duty under article 187(2) of the Constitution, 1992 is to
audit all public accounts of Ghana and within six months after the end of the immediately preceding
financial year, to submit his report to Parliament drawing attention to irregularities in the accounts audited
and to any other matter which in his opinion ought to be brought to the notice of Parliament.
My opinion is based purely on the doctrine of separation of powers as regards Parliament, the executive
and the judiciary which augurs well for this country. The defendant has averred that the plaintiff's case is an
attempt to challenge the validity of the transitional provisions of the Constitution, 1992. For my part, I do not
want to carry coal to Newcastle because my views on the transitional provisions can be found in Kwakye v
Attorney-General [1981] GLR 9, SC. I stand by every word I said in my judgment in that case. If one spirit
of the Constitution, 1992 is to bid farewell to all coups, there is yet another spirit of the Constitution, 1992
through the transitional provisions which in effect exhorts and admonishes all of us to forgive all those who
staged previous coups. However, it does not say we should forget. That will be impossible. I hope I will not
be mistakenly referred to as a supporter of coups. In this [p.53] regard, I wish to refer to my judgment in
Atto-Mensah v The Republic [1967] GLR 562 at 586 where I cited the famous Spanish-American
philosopher—George Santayana as quoted in Durant, Outlines of Philosophy (1962 ed) at p 431:

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"Revolutions are ambiguous things. Their success is generally proportionate to their power of adaptation
and to the reabsorption within them of what they rebelled against. A thousand reforms have left the world
as corrupt as ever, for each successful reform has founded a new institution, and this institution has bred its
new and congenial abuses."
This is what I said on 2 October 1967, when the then National Liberation Council had consolidated its
power and had reached the apogee of its revolution. It was the first coup in this country and my words were
to alert the council to the wise words of George Santayana.
Before I end, I wish to refer to a submission made by learned counsel for the plaintiff. He mentioned the
penalties in the public holidays law. These penalties were introduced for the first time in this country by the
then National Redemption Council headed by Mr Acheampong. I say "Mr" because, as we all know, he was
deprived of his military rank of "General" by the their Supreme Military Council under military law, which I
must respect. As far as I know, no prosecutions have take place and I hope there will not be any. In a
country where we have no old-age pensions schemes, no unemployed benefits and no family benefits, I do
not see why a person should not be permitted to work on public Holidays to earn his living. It is monstrous
to deprive him of the opportunity of earning some income to feed himself only because a law has ordained
that he must observe a particular public holiday and he must rest whether he needs the rest or not. At this
stage, I shall refrain from expressing any views as to whether, or not these restrictions and penalties
constitute violations of fundamental human rights. But is it morally right and just that a self-employed person
should be prevented from working on a public holiday to earn his living? I leave this question to Parliament
and the executive for the answer.
Finally, I wish to make an observation. Before this action was instituted, Ghana had ten public holidays
throughout the year and second only to Northern Ireland, throughout the whole world, which has eleven
public holidays. One of them is 12 July in commemoration of the Battle of the Boyne in 1690 when the
forces of Roman Catholic King James II were defeated by the protestant forces of King William III—Prince
of [p.54] Orange. Up to this day, the protestants in Ulstar celebrate this public holiday, with marches through
the streets of Belfast without any obstruction or protestation from the Catholic minority—what an admirable
tolerance! Ghana has more holidays than England and Wales and Scotland, each with nine holidays. Can a
developing country like Ghana afford a string of holidays which at times can be boring? I leave the answer
to Parliament and the executive. The British colonial administration introduced six public holidays in this
country in 1899. We have ten and I wonder what would be the number by the year 2000.
In conclusion, I am of the opinion that this court, in view of the doctrine or concept of separation of powers
embedded in our past and present Constitutions, is not competent to grant the reliefs sought by the plaintiff.
I have demonstrated that this court would be guilty of three inexcusable and unconstitutional trespasses,
first, a trespass into the domain of Parliament; secondly, a trespass into the territory of the executive; and
thirdly, a trespass into the terrain of the Auditor-General. These trespasses should be avoided by not
granting the declaration and the orders sought.
JUDGMENT OF ADADE JSC.
On 31 December 1981 the Government of Ghana, established under the Constitution, 1979 was removed
from power in a military coup d'etat. The coup-makers then set up their own government provisionally, until
such time that another constitutional government could come into being. The government was christened
"the Provisional National Defence Council (PNDC)." That provisional government ruled the country for
eleven years—31 December 1981 to 7 January 1993. During those eleven years, every 31 December was
declared a public holiday and celebrated as such, in commemoration of the military coup of 31 December
1981, an event, no doubt, of great historical significance.
On 7 January 1993 Ghana's new Constitution, 1992 came into force, and with it, a new constitutional order.
The PNDC was abolished and it ceased to exist with effect from that date by virtue of section 36(1) of the
transitional provisions of the Constitution, 1992 which provides that:
"36. (1) Upon the coming into force of this Constitution, the Provisional National Defence Council
(Establishment) Proclamation 1981 and the Provisional National Defence Council (Establishment)
Proclamation Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42) shall cease to have
effect."
[p.55]
With these words, the PNDC became defunct. New institutions were established for the governance of the
realm—principally an Executive President, a Parliament (all elected on the basis of a multi political system)
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and an independent judiciary.
On 14 December 1993 the Ghanaian Times, a state-owned daily newspaper, published a release from the
Information Services Department of the Ministry of Information detailing a programme of activities intended
for the celebration of the twelfth anniversary of the 31 December 1981 coup, and the first anniversary of the
Fourth Republic. The publication read:
"A release issued by the Information Services Department in Accra said the highlight of activities marking
the December 31 anniversary in Accra would be a route march to be followed by a wreath-laying ceremony
at the Revolution Square.
Taking part in the route march will be the security services and various voluntary organizations.
There will be a musical carnival at the Trade Fair Centre in the afternoon.
The release said on January 7, the first anniversary of the inauguration of the Fourth Republic, there would
be a ceremonial parade of the security services and voluntary organizations at the Independence Square to
be followed in the afternoon by a cultural display.
The celebrations would be rounded off with non-denominational thanksgiving services on January 9 in all
parts of the country—GNA."
On or about 19 December 1993, the government, acting by the Minister of Interior, announced to the nation
that 31 December 1993, among others, would be a public holiday and celebrated and observed as such.
The announcement was carried by the People's Daily Graphic, also a state-owned daily newspaper, on 20
December 1993, as follows:
"Holidays—The Ministry of the Interior has announced that Saturday December 25, Christmas day, Sunday
December 26, Boxing day and Friday December 31 Revolution day are statutory holidays.
A statement issued in Accra said Saturday January 1 is New Year's day and that Friday January 7, will be
observed as the Fourth Republic Day.
[p.56]
It said in accordance with section two of the Public Holidays Law, since Christmas, Boxing and New Year
Holidays fall on non working days, Monday December 27, Tuesday December, 28 and Monday January 3
have been declared public holidays instead—GNA."
Clips of the publications referred to above were annexed to the defendant's statement of case as annexures
A (Ghanaian Times) and B (People, Daily Graphic).
On 21 December 1993, the plaintiff, one of several registered political parties in the country, instituted the
present action against the Government of Ghana per the Attorney-General, for the reliefs thus indorsed on
their writ:
Ghana on 31 December 1981, and the financing of such celebration from public funds is contrary to the
letter and spirit of the Constitution, 1992 and more particularly to articles 3(3), (4), (5), (6) and (7), and 35(1)
and 41 (b) thereof.
Relief (1) was later amended, without objection from the defendant, to read:
"A declaration that the public celebration of the overthrow of the legally constituted Government of Ghana
on 31 December 1981, and the financing of such celebration from public funds is inconsistent with or in
contravention of the letter and spirit of the Constitution, 1992 and more particularly articles 3(3), (4), (5), (6)
and (7), and 35(1) and 41(b) thereof."
The amendment does not strike me as effecting any substantial change in the original claim, except,
perhaps, that it enabled the plaintiff to sail as closely as possible to the letter of article 2(1) of the
Constitution, 1992.

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On the same day that the plaintiff filed its writ of summons, ie 21 December 1993, it also filed an application
for an interim injunction to [p.57] restrain the Government of Ghana from: "all activities and preparations
made or being made towards the celebration of the overthrow of the Government of the democratically
elected Government of Ghana on 31 December 1981 as announced . . ."
The application was put before a five-member panel of this court on Thursday, 23 December 1993. It
became obvious to the panel that a ruling on the motion either way was bound to undermine the fate of the
substantive suit. Besides, granting or refusing the application to await the hearing of the main case after 31
December 1993, sometime in the new year, would be tantamount to shutting the stable door after the horse
had fled. The court decided therefore that in the circumstances, the justice of the case required that the
substantive suit be heard as a matter of urgency prior to 31 December 1993. The application for injunction
was adjourned to be taken together with the substantive suit. The action was eventually heard on 29
December 1993, and a decision pronounced in favour of the plaintiff. But we reserved our reasons.
The plaintiff invokes the original jurisdiction of the court under article 2(1) of the Constitution, 1992 that
provides:
"2.(1) A person who alleges that—
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the
Supreme Court for a declaration to that effect."
(The emphasis is mine.)
To succeed, the plaintiff must be able to bring itself squarely within article 2 of the Constitution, 1992. It has
been said that familiarity breeds contempt. Article 2 of the Constitution, 1992 has, since its enactment, been
repeated so often, both in the courts and elsewhere, that we run the risk of glossing over, or completely
ignoring or missing its true import. It must be emphasised that under the article, the conduct complained of
need not contravene anything in the Constitution, 1992; it is enough if that conduct is inconsistent with any
provision of the Constitution, 1992. An act contravenes an enactment if it breaches that enactment; if it is
contrary to that enactment. But an act need not be contrary to an enactment, to be inconsistent with it. In
other words, the act may be inconsistent with the enactment, even though it does not necessarily breach it.
May be the dividing line is thin; but there surely [p.58] is a dividing line.
The plaintiff contends that the public celebration of the anniversary of the coup of 31 December 1981 out of
public funds is "inconsistent with, or is in contravention of the letter and spirit of the Constitution, 1992 . . ."
As to the letter of the Constitution, 1992 the plaintiff refers "more particularly to articles 3(3), (4), (5), (6), (7),
35(1) and 41(b) thereof." In argument before this court, the plaintiff added article 41(f) of the Constitution,
1992.
It is necessary therefore to look at these articles with a view to ascertaining whether in letter they have been
contravened. For this purpose, I reproduce these articles in full. Article 3 of the Constitution, 1992 is sub-
titled "Defence of the Constitution." Clauses (3)-(7) thereof read:
"(3) Any person who—
commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.
(4) All citizens of Ghana shall have the right and duty at all times—
(a) to defend this Constitution, and in particular, to resist, any person or group of persons seeking to
commit any of the acts referred to in clause (3) of this article; and
(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated
as referred to in clause (3) of this article.
(5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of
this Constitution as referred to in clause (3) of this article, commits no offence.

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(6) Where a person referred to in clause (5) of this article is punished for any act done under that clause,
the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was
imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the
punishment.
(7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment
or loss to which [p.59] clause (6) of this article relates, award him adequate compensation, which shall be
charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the
punishment."
Looking at the relevant clauses of article 3 of the Constitution, 1992, I can readily see that, in their letter the
only provisions relevant to this case are article 3(3) and (4) of the Constitution, 1992.
The remaining clauses of article 3 of the Constitution, 1992 deal with actual acts of, or attempts at,
suspending, overthrowing, or abrogating the Constitution, 1992; the duty to resist such acts or attempts,
and compensation, to be paid out of public funds, to persons who may suffer damage in the process of
resisting such acts or attempts.
The plaintiff also refers to articles 35(1) and 41(b) and (f) of the Constitution, 1992. These say:
"35. (1) Ghana shall be a democratic state dedicated to the realization of freedom and justice; and
accordingly, sovereignty resides in the people of Ghana from whom Government derives all its powers and
authority through this Constitution ...
41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and
obligations, and accordingly, it shall be the duty of every citizen —
(b) to uphold and defend this Constitution and the law; ...
(f) to protect and preserve public property and expose and combat misuse and waste of public funds and
property."
Before embarking on the merits of the case, let me comment on the challenge to the jurisdiction of this
court, raised by the defendant. The defendant says that this court has no jurisdiction to entertain the action.
The reasons he offers for this contention are: First, that the action seeks to question the legality or
otherwise of the coup of 31 December 1981, and that by section 34 of the transitional provisions of the
Constitution, 1992:
"2. It is not lawful for any court ... to entertain any action ... against the Government of Ghana or any
person ... in respect of any act ... relating to ...
(a) the overthrow of the government in power before the ... Provisional National defence Council; or
[p.60]
(b) the suspension or abrogation of the Constitutions of ... 1979".
From this the defendant argues that the court cannot inquire into the legality or constitutionality of the event
of 31 December. Secondly, that the orders sought by the plaintiff, especially in its claim (2), are in the
nature of an injunction against the President or the State, and that this court has no jurisdiction to issue
such an injunction. Thirdly, that the question whether 31 December should be celebrated or not is a political
question, which this court is not entitled to decide: "it should be left to coordinate arms of government to
deal with", it was said.
From the reasons given, I am satisfied that the objection to the court's jurisdiction is, with respect,
misconceived. First, the action here does not seek to question the legality of the 31 December coup.
Indeed, it is unnecessary for anyone to mount an action for that purpose. A coup d'etat is, by definition, an
illegal act; it is treason. It is therefore needless, and a waste of everybody's time, for anyone to ask a court
to declare that an act admitted to be a coup d'etat, is illegal. Section 34 of the transitional provisions of the
Constitution, 1992 relied on for the argument, takes the fact of the coup and its illegality as data. It is on the
basis of this data that the immunity is conferred by that section. The section does not seek to stop anyone
from questioning its legality. No Illegality is presumed. What the section does is to free the persons covered
by it from punishment or from paying compensation to anyone. Even so, in a disputed case, it is for the
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court to determine whether the defendant is covered by the section or whether the relief sought should or
should not be granted, having regard to the tenor of section 34 of the transitional provisions of the
Constitution, 1992. It is a misconception to allege that the suit here seeks to question legality or otherwise.
The action is not harking back to 31 December 1981, and asking the court to declare the coup illegal. It is
looking forward from 7 January 1993, and saying that whatever the nature of the event, legal or illegal, its
anniversary after 7 January 1993 should not be celebrated out of public funds and other resources. In
particular, the action here does not relate to the overthrow of the Government of the Third Republic, nor to
the abrogation of the Constitution, 1979. Accordingly, section 34(2) of the transitional provisions of the
Constitution, 1992 is of no assistance to the defendant.
Secondly, the defendant contends that ordering that 31 December be not observed as a public holiday, and
celebrated out of public funds, is [p.61] tantamount to issuing all injunction against the President or the
State, and that this court cannot, and should not, issue such an injunction. He cites in support of this
contention the American case of State of Mississippi v Johnson, 71 US 475 (1867). The two holdings in the
Johnson case (supra), as stated in the headnote, read:
"1. The President of the United States cannot be restrained by injunction from carrying into effect an act of
Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed.
2. It makes no difference whether such incumbent of the Presidential office be described in the bill as
President or simply as a citizen of a State."
In that case, the State of Mississippi had filed a motion for leave to apply for a perpetual injunction against
the President of the US from carrying out certain duties under the Reconstruction Acts (two of them) which
the President had previously vetoed as unconstitutional, but which Congress had nevertheless passed into
law on 2 and 23 March 1867. It is unnecessary to discuss this case in detail. It is enough to say that in the
course of its opinion, the court at 498 distinguished between a ministerial duty (where, it was said, the
officer exercises no discretion in the matter), and executive functions (where the officer has a lot of
discretion to play with). At 499 the court observed:
"In each of these cases [ie Marbury v Madison and Kendall v Stockton see p.498/9 where the Court issued
mandamus against ministerial officers to compel them to do certain acts] nothing was left to discretion.
There was no room for the exercise of discretion ...
Very different is the duty of the President in the exercise of the power to see that the laws are faithfully
executed, and among these laws [are] the acts named in the bill...
An attempt on the part of the judicial department of the government to enforce the performance of such
duties by the President might be justly characterised, in the language of Chief Justice Marshall, as an
absurd and excessive extravagance."'
(The emphasis is mine.) The court proceeded:
"It is true that in the instance before us the interposition of the court is not sought to enforce action by the
executive under constitutional [p.62] legislation, but to restrain such an action under legislation alleged to be
unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general
principles which forbid judicial interference with the exercise of executive discretion."
The main reason the court gave for not interfering in "the exercise of executive discretion" is thus found at
500-501 of the report:
"Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience it is needless
to observe that the Court is without power, to enforce its process. If on the other hand the President
complies with the order of the court and refuses to execute the acts of congress, is it not clear that a
collision may occur between the executive and legislative departments of government? May not the House
of Representative impeach the President for such refusal? And in that case, could this Court interfere, on
behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction, the
Senate of the U.S. from sitting as a Court of impeachment? Would the strange spectacle be offered to the
public world of an attempt by this Court to arrest proceedings in that Court [i.e. the Senate]?"
(The emphasis is mine.) The Court then concluded:
". . . we are fully satisfied that this Court has no jurisdiction of a bill to enjoin the President in the
performance of his official duties; and that no such bill ought to be received by us."
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If I seem to have quoted these passages too extensively, it is because without such detail we may be
unable to readily see the dangers inherent in uncritically receiving and applying foreign decisions. Assisted
by this detail, it becomes only too apparent that, given our Constitution, 1992, and in particular articles 1
and 2 thereof, this court can issue injunctions against the President, and even against Parliament. The
fears expressed by the United States court will appear to be groundless in our situation. Once an Act
offends the Constitution, 1992, it is null and void—as provided by article 1. And once it is null and void, the
President or the executive can be restrained from enforcing or obeying it. Besides, by our Constitution,
1992, the executive can be restrained by injunction from doing any act which is not in conformity with the
Constitution, 1992. [p.63] Therefore the United States decision in Mississippi (supra) has no relevance
whatever in the case before us. It is only to be hoped that passages from it may not be taken out of
context, and flung at unsuspecting persons, making it appear that in issuing injunctions or making other
orders against the President, this court is exceeding the limits of its jurisdiction: it is not. The Constitution,
1992 allows it.
In this connection, I agree with Mr Adjetey that the President's immunities under the Constitution, 1992 are
of a limited and qualified nature, and that cases coming under article 2 of the Constitution, 1992 are, by
necessary, implication, excepted and not covered by any immunities.
Thirdly, the argument that the case is a political one, and ought not to be entertained by this court is also
buttressed on another American case, Baker v Carr, 369 US 186 (1962). In that case, the plaintiffs, by a
group action, had asked the District Court for, the Middle District of Tennessee to declare that the
Tennessee Apportionment Act, 1901 was unconstitutional, and to issue an injunction restraining the
defendants from conducting any elections under the Act. Constituencies were supposed to be demarcated
on the basis of population densities. The plaintiffs' contention was that the defendants did not follow this
criterion or any criterion at all in demarcating the constituencies, thus placing the plaintiffs "in a position of
constitutionally unjustifiable inequality." The district court threw out the case on the ground, inter alia, that it
was a political question, and that the district court lacked jurisdiction. On appeal, the Supreme Court
reversed the district court, and remitted the matter to it to be heard, on the ground that the writ raised a
justiciable issue.
This conclusion would seem to be against the defendant, and contrary to the defendant's position in this
case. But that, to me, is not the important point. The case further illustrates the difficulties in applying
foreign decisions, especially where passages are lifted out of context. Reading the report in the Baker case
(supra), it is abundantly clear that the United States has developed a special doctrine of "political question",
based on the federal nature of their Constitution and their system of separation of powers. It is this special
circumstance which is at the bottom of the notion that political questions are not justiciable by the district
courts. A few passages from the report may be of some assistance. The United States Supreme Court
giving the source of the doctrine of "political question", states at 210 :
" . . . it is the relationship between the judiciary and the coordinate [p.64] branches of the Federal
Government, and not the federal judiciary's relationship to the States, which gives rise to the 'political
question' [doctrine]."
And on the criteria for determining a "political question, the court at the same page adopted its observation
in Coleman v Miller 307 US 433 at 454-455; where it had stated:
"In determining whether a question falls within the category of 'political questions', the appropriateness
under [the American] system of government of attributing finality to the action of the political departments
also and the lack of satisfactory criteria for a judicial determination, are dominant considerations."
The court then concluded at 210-211:
"The non justiciability of a political question is primarily a function of the separation of powers . . . Deciding
whether a matter has in any measure been committed by the [Federal] Constitution to another branch of
government, or whether the action of that branch exceeds whatever its authority, has been committed by
the Constitution to another branch of government, or whether the action of that branch exceeds whatever
authority has been committed itself a delicate exercise in constitutional interpretation, and is a responsibility
of [the U.S. Supreme] Court as ultimate interpreter of the Constitution."
Thus it would seem that even in the United States the doctrine of "political question" does not apply to the
United States Supreme Court, the "ultimate interpreter of the Constitution", as our Supreme Court too is the
"ultimate interpreter" of our Constitution, 1992. In any case, by articles 1 and 2 of the Constitution, 1992,

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that doctrine cannot have any application to us here in Ghana. With us, issues of constitutional
interpretation are justiciable only by the Supreme Court, and not by any other court: see particularly, article
130 of the Constitution, 1992.
Than also it must be remembered that questions of human rights tend to have large components of political
issues. Yet in our Constitution, 1992 these questions are reserved for or to the High Court in the first
instance "without prejudice to any other action that [may be] lawfully available", to a litigant: see article 33 of
the Constitution, 1992.
Similarly, chieftaincy disputes almost always involve local, and often [p.65] national, politics. But these
disputes are cognisable only by "chieftaincy tribunals" in the first instance; the Supreme Court coming in
only as a court of last resort: see chapter 22 of the Constitution, 1992.
The conclusion is inescapable, that in this country we have no doctrine of "political question" such as exists
in the United States. What we have is a written Constitution, 1992 to be interpreted and enforced, with the
result that in Ghana, courts and tribunals much lower in the hierarchy, than the Supreme Court may lawfully
decide cases which may involve "political questions."
In further reaction to the defendant's argument that the issue is a political one, it must be understood that
the Constitution, 1992 itself is essentially a political document. Almost every matter of interpretation or
enforcement which may arise from it is bound to be political, or at least, to have a political dimension.
In its Report on a Proposed Constitution for Ghana, the Akufo-Addo Commission observed:
"90. The dominant cry in all the evidence both oral and by memoranda which we received is that never
again should there be tyranny in Ghana ...
94. We appreciate that there is much politics involved in our proposals relating to the defence of democracy.
Our recent experience, however, makes it imperative that there should be specific constitutional provisions
to safeguard democracy..."
(The emphasis is mine.) I must say that in spite of these carefully woven constitutional provisions and
safeguards, democracy could not be protected, as we all witnessed on 13 January 1972. The point,
however, remains that provisions relating to the protection of the Constitution, 1992 and the defence of
democracy are by nature political. And these provisions this court is by the Constitution, 1992 required to
interpret and enforce. Therefore to refuse to do a constitutional case on the ground that it is political is to
abdicate our responsibilities under the Constitution, 1992 and to breach, in particular, articles 2 and 3
thereof. Thus the invitation to decline jurisdiction on that account is an invitation to this court to act
unconstitutionally, which invitation must itself be unconstitutional, as it cannot but be subversive of the
Constitution, 1992. I must reject that invitation.
There is another matter which must be disposed of along the way. As stated earlier, the plaintiff relies, inter
alia, on articles 35 and 41 of the Constitution, 1992. Both these articles come under chapter 6 of the [p.66]
Constitution, 1992 titled: "The Directive Principles of State Policy." It has been maintained in certain
quarters that these directive principles are not justiciable, and therefore cannot avail the plaintiff.
I am aware that this idea of the alleged non-justiciability of the directive principles is peddled very widely,
but I have not found it convincingly substantiated anywhere. I have the uncomfortable feeling that this may
be one of those cases where a falsehood, given sufficient currency, manages to pass for the truth.
I do not subscribe to the view that chapter 6 of the Constitution, 1992 is not justiciable: it is. First, the
Constitution, 1992 as a whole is a justiciable document. If any part is to be non-justiciable, the Constitution,
1992 itself must say so. I have not seen anything in chapter 6 or in the Constitution, 1992 generally, which
tells me that chapter 6 is not justiciable. The evidence to establish the non-justiciability must be internal to
the Constitution, 1992, not otherwise, for the simple reason that if the proffered proof is external to the
Constitution, 1992, it must of necessity conflict with it, and be void and inadmissible: we cannot add words
to the Constitution, 1992 in order to change its meaning.
Secondly, notice that article 1(2) of the Constitution, 1992 speaks of inconsistency with "any provision of
this Constitution, 1992"; and article 2(1) of the Constitution, 1992 makes reference to inconsistency with or
contravention of "a provision of this Constitution." None of these articles expresses an exception in favour of
chapter 6. Does it not follow that chapter 6 too, along with the rest of the Constitution, 1992, is in the
contemplation of articles 1 and 2 of the Constitution, 1992?

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Thirdly, the very tenor of chapter 6 of the Constitution, 1992 supports the view that the chapter is justiciable.
The opening article, ie 34 of the chapter reads:
"34.(1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament,
the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons
in applying or interpreting this Constitution or any other law and in taking and implementing any policy
decisions, for the establishment of a just and free society."
This is a compendious provision, grouping together a whole host of state institutions and other bodies,
discharging different functions. The language employed therefore has been such as caters for these
different functions. As far as the judiciary is concerned, I ask myself the question: [p.67] How do the
principles guide the judiciary "in applying or interpreting the Constitution" if not in the process of enforcing
them?
The position becomes even clearer if related to the duties created by article 41 of the Constitution, 1992.
How is the judiciary to assist or facilitate the performance of a citizen's duty to, eg combat misuse of public
funds" as required by article 41(f) of the Constitution, 1992, if this is not in the course of enforcing another
citizen's duty not to misuse public funds? Put illustratively, citizen A, in discharge of his duty under article
41(f) of the Constitution, 1992 tries to stop citizen B from misusing public funds. Can citizen A turn to the
judiciary for help? If no, why not, given the wording of article 34(1) of the Constitution, 1992? If yes, what
role will the judiciary be playing, short of enforcing article 41(f) of the Constitution, 1992?
As was observed in Tuffuor v Attorney-General [1980] GLR 637 at 649-650, CA sitting as SC in relation to
the Constitution, 1979:
"The Constitution confers on every citizen of Ghana by article 1(3): 'the right to resist any person or persons
seeking to abolish the constitutional order as established by this Constitution should no other remedy be
possible.' This means that every citizen of Ghana has the right, constitutional or otherwise, to see to it that
the constitutional order as established by the Constitution is not abolished or sought to be abolished. One
method by which it could be determined whether a person is seeking to abolish the constitutional order, is to
seek for an interpretation of the Constitution as to the meaning or the effect of a particular provision or
provisions of the Constitution."
Substitute article 41 of the Constitution, 1979 for article 1(3) of the Constitution, 1992, and duty for right in
the above passage, and you have, in my view, the correct interpretation of the said article 41, or by
extension, of any of the provisions of chapter 6 of the Constitution, 1992.
I cannot see that the Constitution, 1992 will impose a duty by article 41 and then turn round to thwart its
performance. Such a bizarre intention must be shown by express words or an implication that is imperative.
It has been said that the use of the phrase "shall guide" in article 34(1) of the Constitution, 1992 implies that
the directive principles are not meant to be justiciable. This argument is obviously weak and unimpressive.
After all, all laws are for our guidance, but they are not on that account, non-justiciable. If the Consultative
Assembly in 1992 had intended to make the principles non-justiciable, they could [p.68] have said so: they
did not. Apart from article 12(1) of the Constitution, 1992 which expressly states that chapter 5 (the
fundamental human rights and freedoms) "shall be enforceable by the courts . . ." no other chapter is
expressed so to be. Yet, no one has argued that those other chapters of the Constitution, 1992 are for that
reason unenforceable. Chapter 5 of the Constitution, 1992 would be enforceable even without that
direction. The appearance of that phrase in article 12(1) of the Constitution, 1992 and its absence from
chapter 6 of the Constitution, 1992 therefore cannot be used as a justification or ground for interpreting
chapter 6 of the Constitution, 1992 as unenforceable.
I concede that in its report, the Committee of Statutory Experts appointed in 1991 by the PNDC to make
proposals for a draft Constitution did say at p 49, para 95 that: "By tradition Directive Principles are not
justiciable." (The emphasis is mine.) The committee did not say what that tradition was or is. That
statement could, unintentionally, be misleading.
In the Consultative Assembly, it was recognised that the Constitution, 1979 was the first of our several
Constitutions in Ghana (1957; 1960 (amended in 1964); 1969) to introduce the idea of directive principles.
Both the Committee of Statutory Experts and the Consultative Assembly relied almost entirely on chapter 4
of the Constitution, 1979 for the debates on, and form of, the directive principles contained in chapter 6 of
the Constitution, 1992. The Committee of Experts acknowledged this much at p 49, para 94 of their report:
"The Committee used Chapter 4 of the 1979 Constitution as a basis for its deliberations." From which

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acknowledgement, it would appear that the tradition the committee had in mind was that commenced by or
traceable to the Constitution, 1979.
If the committee contemplated any other tradition, it did not indicate it. In any case, as at the time the
committee was appointed in 1991, Ghana had, in this respect, a tradition, in the Constitution, 1979, it is
legitimate to conclude, in the absence of contrary evidence, that the committee meant the Ghana tradition.
By that tradition, viz in the Constitution, 1979, the directive principles were justiciable, which clearly
contradicts the committee's statement. There was nothing in the Constitution, 1979 which said they were
not. For purposes of confirming this interpretation, reference may be made to the parliamentary history of
the chapter, which is a permissible practice.
The question of the justiciability of the chapter on the Directive Principles of State Policy was debated at
length in the 1979 Constituent Assembly. At its twentieth sitting on Friday, 2 February 1979 the [p.69]
assembly expressly resolved to make the chapter justiciable:
"MR. CHAIRMAN [Justice VCRAC Crabbe]: Now I am going to put the question. And the question is the
amendment as proposed by Mr. Zwennes that we should make chapter four non-justiciable be accepted by
the house."
The question was then put. The result of the exercise was: "Question put and negatived." herefore the
house rejected the idea that the directive principles should be non-justiciable. In other words, that they
should be justiciable. Given the importance of the subject to the assembly a member after the voice vote,
asked for a head-count, and then a recording of names. In both, the justiciable group defeated the non-
justiciable group: see sheets 64-67 of the manuscripts of the Official Report of the Constituent Assembly
Debates of 2 February 1979, from the Archives of Parliament. A member then tried to get the whole
chapter removed from the Constitution, 1979. That attempt was also defeated.
The debates confirm the interpretation that in the absence of anything in the Constitution to the contrary,
chapter 4 (The Directive Principles of State Policy) of the Constitution, 1979 was justiciable. By the same
yardstick chapter 6 of the Constitution, 1992 is also justiciable.
The 1992 Consultative Assembly, obviously misled by the Committee of Statutory, Experts, assumed
wrongly that the "Directive Principles of State Policy are traditionally non-justiciable." (Observe the similarity
in language). Apparently not satisfied with the perceived character of the directive principles, the assembly
endeavoured to upgrade them to what they termed "a higher moral level" to make them "imperative", which
everybody is "required mandatorily to observe." This was on a motion to change "are for the guidance of" in
the original draft of article 34(1) to "shall guide" as we now have it: see the Consultative Assembly Debates,
22 January 1992, col 1593. It seems clear that but for the statement of the Committee of Statutory Expects,
different considerations might have prevailed in the Consultative Assembly.
In any case, even if the debates in the Consultative Assembly may charitably be interpreted as exhibiting
some intention to make the directive principles non-justiciable, that intention was not carried into the
Constitution, 1992. The debates themselves are inadmissible to contradict the language of the Constitution.
That is not permissible. As was stated by Coleridge CJ in R v Hertford College (1878) 3 QBD 693 at 707,
CA:
[p.70]
"We are not, however, concerned with what parliament intended, but simply with what it has said in the
statute. The statute is clear, and the parliamentary history of a statute is wisely inadmissible to explain it, if it
is not [clear]."
The maxim is parliamentum voluisse quod dicit lex (what the law says is the wish of Parliament, ie the
language of the statute expresses the intentions of Parliament). We may also turn with profit to Lord
Halsbury LC in Hilder v Dexter [1902] AC 474 at 477, HL:
". . . in construing a statute ... the worst person to construct it is the person who is responsible for its
drafting. He is very much disposed to confuse what he intended to do with the effect of the language which
in fact has been employed. At the time he drafted the statute, at all events, he may have been under the
impression that he had given full effect to what was intended, but he may be mistaken in construing it
afterwards just because what was in his mind was what was intended, though, perhaps, it was not done."
Similar sentiments were expressed by Lord Wright in Assam Railway and Trading Co Ltd v Commissioners
of Inland Revenue [1935] AC 445 at 458, HL:

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"But on principle no such evidence [ie recommendations from a report of a Royal Commission] for the
purpose of showing the intention, that is the purpose or object, of an Act is admissible; the intention of the
Legislature must be ascertained from the words of the statute with such extraneous assistance as is
legitimate ... It is clear that the language of a Minister of the Crown in proposing in Parliament a measure
which eventually becomes law is inadmissible [as evidence of the intention of Parliament]."
We are advised in Maxwell on Interpretation of Statutes (10th ed) at pp 27-28 that:
"... the inferences to be drawn from comparing the language of the Act with the declared intention of its
framers would be that the difference between the two was not accidental but intentional."
The learned author gives the example of the Dower Act, 1833 (3& 4 Will 4, c 105) which he says:
"was construed to apply to gavelkind lands, although this was [p.71] avowedly contrary to the intention of
the real property commissioners who prepared the Act; for they stated in their report that it was their
intention that it should not extend to lands of that tenure."
The case cited for this is Farley v Bonham (1861) 30 LJCh 239.
Thus what the debates in the Consultative Assembly said cannot be admitted to contradict what chapter 6
of the Constitution, 1992 itself say or does not say. In my view, therefore, chapter 6 of the Constitution,
1992 is justiciable, in the same manner as all the other chapters of the Constitution, 1992 are justiciable.
The plaintiff is perfectly in order in seeking to rely on any of the provisions of the said chapter 6 of the
Constitution, 1992, as it had indeed done.
Reading the relevant provisions of the Constitution, 1992 as a whole, the impression is unmistakable that
the idea is, inter alia, to ensure that never again shall a Constitution be suffered to be overthrown or
undermining by any means, and that the people of Ghana must resolve never to entertain any such
overthrow or undermining. Of course, this does not mean that adventurers may not try. But the
Constitution, 1992 imposes a duty on all to see to it that whoever ventures does not succeed: see
especially article 3(4), (5), (6) and (7) of the Constitution, 1992.
The defendant says, however, that celebrating 31 December cannot be said to be suspending or
overthrowing the Constitution, 1992 as prohibited by article 3(3) of the Constitution, 1992 so as to require
any defensive action by anyone under article 3(4) of the Constitution, 1992. In other words, the act of
celebrating 31 December does not offend anything in the Constitution, 1992 and that that act cannot be
pushed under article 2 of the Constitution, 1992.
The plaintiff, on the other hand, contends in line with article 2 of the Constitution, 1992, that the date 31
December is contained in an enactment, PNDCL 220; that the celebration is an act to be done under the
authority of that enactment, and that the act of celebrating is inconsistent with [some provisions] of the
Constitution, 1992.
Article 3(4)(a) of the Constitution, 1992 has two separate and distinct parts. There is, first, the general right
and duty to defend the Constitution. Then there is, secondly, the particular right and duty to resist anyone
committing, or attempting to commit, or aiding and abetting anyone to commit, any of the offences
mentioned in clause 3 of article 3(3) of the Constitution, 1992. Defending the Constitution, 1992 under
article 3(4)(a) therefore need not be a defensive action against [p.72] persons coming within article 3(3) of
the Constitution, 1992, ie persons engaged in a violent overthrow of the government or of the Constitution,
1992. Indeed, the Constitution, 1992 may be defended against the government itself.
Article 3(4)(a) of the Constitution, 1992 confers a right, and both articles 3(4)(a) and 41(b) of the
Constitution, 1992 impose a duty, on all Ghanaians to defend the Constitution, 1992. The celebration of 31
December with carnivals, route marches, etc having a tendency to glorify the coup d'etat of 31 December,
will weaken the people's resolve to enforce this right, or perform this duty, ie their resolve to frown upon,
and/or reject coups, a result which will have the effect of undermining and subverting the Constitution, 1992.
It is an insidious and surreptitious way, of undermining the Constitution, 1992. The celebration may not be a
violent means of subverting the Constitution, 1992; but surely it is an unlawful means under article 3(3)(a) of
the Constitution, 1992, if only because its result is a subversion of the Constitution, 1992. It is what an
honourable member of the Consultative Assembly, Hon Pius A Austin is credited as having described as a
subversion "not by violence, but by the very Government that is in existence, by the deeds and misdeeds of
the Government": see Consultative Assembly Debates, 15 January 1992, col 1432). And if I may quote
another honourable member, Hon Mohammed Mumuni, for the sake of completeness:

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"I believe that we are dealing with a principle, and when we are dealing with a principle you either wholly
keep it or wholly reject it. You cannot compromise over a principle. We are saying that at this stage of our
political development, we must come out positively and assuredly against any form of political adventurism."
(The emphasis is mine.) See the Consultative Assembly Debates, 15 January 1992, col 1417). Any form of
political adventurism indeed, whether by violent means or by other unlawful means: see article 3(3)(a) of
If the people have a constitutional duty to protect and defend the Constitution, 1992, then the same people
cannot by themselves, or by anyone in their name, lay out moneys and resources to play up the idea of
coups, well knowing that this is bound to undermine the Constitution, 1992. Celebrating the occasion with
carnivals, festivities and riotous merry-making is telling ourselves that the event was a happy one; it was a
good one. Such conduct will clearly be inconsistent with the duty to defend the Constitution, 1992.
[p.73]
Certain days have, from long before the days of independence and after, stood the test as national public
holidays, and have always been celebrated as such without question. These include 1 January (New Year's
Day), 6 March (Independence Day), the Easter holidays (ie Good Friday, Holy Saturday and Easter
Monday), 1 July (Republic Day), 25 December (X'mas Day) and 26 December (Boxing Day). These days
one will find in every enactment relating to public holidays for the periods to which the enactments apply),
from the Public Holidays Ordinance, Cap 170 of 1899, through the Public and Bank Holidays Act, 1958 (No
1 of 1958), the Public Holidays Act, 1960 (Act 23) and others, right through all the military regimes (NLC,
NRC, SMC, PNDC) as well as the few Republics which have punctuated these military regimes. There are
other days which appear at one time or other, which are decreed as national public holidays, only to vanish
later, never to surface again.
It has been the convention that "coup days" have, by the fiat of the coup-makers when they are in power,
always been celebrated as public holidays, ie as special occasions and/or as days of thanksgiving.
Significantly enough, these coup holidays do not survive the relative "coup regimes", an indication of their
inherent weakness as national days. Thus 24 February, celebrated during the NLC regime, ceased during
the Second Republic and after. So also did 13 January cease in the Third Republic and after.
Squadron Leader (Rtd) C M K Sowu, speaking on what he termed "the mechanics of overthrowing a
constitutional rule by force of arms" observed: "It is true also that many people are not aware that since
1957, in this country we have either overthrown the Constitution, the administration, every three years, until
31st December, 1981. He than proceeds to supply further and better particulars:
"The first overthrow of the Constitution was in 1960. The second overthrow of that Constitution of 1960 was
in 1963. It is true that at that stage certain people attempted to resist it within the House and they suffered
for it. Then the 1966 coup—we had the first military coup—and I think 1969, 1972, 1975, 1978 and 1981."
See the Consultative Assembly Debates, 15 January 1992, col 1429.
The honourable chronicler does not give us the precise dates of these coups, but surely he must have done
his homework very well before giving the information to the august body. From the narrative, we learn that
from 1966 to date there have been no less than six military coups, [p.74] including 1981. During the ten to
eleven years rule of the PNDC, none of those other five coup dates was ever celebrated as a public holiday
and observed as such, except of course that of 1979 (June 4), for obvious reasons. It may be true to say
that in none of these cases was the celebration of its anniversary carried into the next succeeding regime,
civilian or military, unless it be by default, which would appear to indicate that, there is no logic in insisting
that 31 December must continue to be celebrated as a national holiday and be financed out of public
resources, even after the coup regime to which it relates has ceased to exist, unless the defendant is
claiming that the present regime which came into being on and after 7 January 1993 is the same as the
immediately preceding one of the PNDC (which he had not expressly done to my knowledge).
But the defendant seeks to justify the expenditure of public funds on the grounds that the celebration is not
meant to commemorate the coup event itself, but the values which that event brought about. These values
counsel enumerated as, inter alia, workers' participation in government; rights of spouses, later to be
codified as the Intestate Succession Law, 1985 (PNDCL 111); popular participation in decision-in-making,
etc. This submission is obviously an elaboration of paragraph (14) of the defendant's statement of case,
which pleads also "the party [NDC] manifesto whose underpinning was continuity of the good works and
values of the 31 December Revolution." (The emphasis is mine.)

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To contend that the celebration is not intended for the day 31 December itself is to concede that 31
December as an event ought not to be celebrated, which is precisely what the plaintiff is asking this court to
declare. And as to celebrating "the good works and value," said to have been brought about by that event,
I can find no better comment than the words of the Hon Squadron Leader (Rtd) C M K Sowu, whom I have
already quoted:
"Each time a Government is toppled here, the first accusing words we use is [sic] that that Government has
mismanaged the economy of the country, the second accusing words that follow are that they have misused
power; the third accusing words are that they had been corrupt and the fourth accusing words are that we
as a people have been apathetic."
See the Consultative Assembly Debates, Wed, 22 January 1992, col 1609.
The world owes it to Shakespeare that: "The evil that men do lives [p.75] after-them; the good is oft interred
with their bones." It would seem that this observation may be true of men only, not of governments; and that
with governments the reverse is nearer the truth, namely that: "The good that governments do lives after
them; the evil is oft interred with their bones." And I may, add: "So let governments take heed." A statement
such as "we are celebrating values and good works" can be self-serving, and may ignore the truth in the
age-old adage that the length of the frog may be known only after its death. It also shows that we may not
have learnt our lessons of history as well as the houourable squadron leader. Such an assertion cannot be
a constitutional justification for elevating an event of non-national interest into a national one, on which to
expend national resources.
Section 34 of the transitional provisions of the Constitution, 1992 on indemnity is too well known to require
reproduction. The said section as already stated presupposes that the event which took place on 31
December 1981 was a not lawful one, and that this fact is conceded by the PNDC, among others. The
section does not legalise the coup of 31 December 1981 nor any of the coups mentioned there. It only
grants the coup-makers an indemnity, in the nature of public pardon, to free certain persons from liability
and punishment for, in the instant case, the event of 31 December and its sequel, which acts have been
carefully spelt out under, particularly, article 34(2) of the Constitution, 1992. It seems to me incongruous that
after this pardon of a conduct considered improper and unlawful (for there would be no need for a pardon if
the conduct were lawful and proper), the public will seek to romanticise the same event with carnivals and
route marches. An exhibition of a more inconsistent behaviour than this in a people, including members of
the government, cannot be imagined, justifying the plaintiff's action under article 2(1)(b) of the Constitution,
1992.
Besides, those few persons pardoned, few, that is considering the total population of Ghana, cannot, should
they happen to control the levers of power within the State, cock a snook at the public and the Constitution,
1992 which have given them this pardon, by a public commemoration of the very acts for which they have
been pardoned, using public money and resources in the process! Such conduct must certainly offend if not
the letter, at least the spirit or (as the Committee of Statutory Experts put it) "the conscience" of, the
Constitution: see also Tuffuor v Attorney-General (supra) at 647.
Article 41(f) of the Constitution, 1992 enjoins every citizen: "(f) to protect and preserve public property and
expose and combat misuse and [p.76] waste of public funds and property." If, as I conceive it to be, the
celebration of 31 December in the circumstances in which it is sought to be celebrated is unjustified, then
any expenditure of public funds in that regard will be a misuse and waste of public funds. The plaintiff is
entitled to proceed under the said article as a matter of duty to combat such misuse, with a view to
protecting and preserving public property.
The question may be asked: What would have become of 31 December had the elections of November
1992 gone differently? The defendant's answer to this question is in paragraph (13) of his defence, viz: "13.
. . . that the Constitution, 1992 establishes a nexus between the 31 December revolution and the
Constitution itself." No argument was addressed to us on this "nexus", and I ams not sure I understand
paragraph (13) of the defence. If the paragraph is intended for the several references to the PNDC and the
coup of 31 December 1981 in the transitional provisions of the Constitution, 1992, especially section 34, it
must be clear to all that the said section 34 of the transitional provisions of the Constitution, 1992 does no
more than offer an indemnity, a pardon, to all coup-makers, dead or alive, who overthrow governments on
24 February 1966, 13 January 1972, 4 June 1979, as well as 31 December 1981. This pardon has nothing
to do with whether 31 December should continue to be observed as a public holiday or not. Otherwise all
the other "coup dates" mentioned in section 34 of the, transitional provisions of the Constitution, 1992
should also be observed as public holidays and celebrated as such. A discrimination against them will
appear unconstitutional as not being in conformity with section 34 of the transitional provisions of the

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Constitution, 1992. I have reason to believe that no one subscribes to the view that the dates in section 34
of the transitional provisions of the Constitution, 1992 are intended as public holidays.
The defendant raises yet another defence, in paragraph (14) of his defence, viz:
"(14) . . . that the President of the Republic who was also the chairman and leader of the 31 December
revolution and the members of Parliament of the NDC party to which the President belongs, were elected
on the party manifesto whose underpinning was continuity of the good works and values of the 31
December revolutions."
As to this "manifesto and continuity" theory, it may be enough to say that the courts are sworn "at all times
to uphold, preserve, protect and [p.77] defend the Constitution and laws of the Republic of Ghana": see the
judicial oath. They are not sworn to uphold and defend the manifesto, and theories of government, however
lofty, of any political party or parties. Party manifestoes do not fall within the definition of "the Constitution
and laws of the Republic of Ghana." Significantly enough, the President too, who may be leader of his
party, as well as his ministers, and all the NDC members of Parliament referred to in the said paragraph
(14), swore to "uphold, preserve, protect and defend the [same] Constitution," not the party manifesto (with
its underpinning of continuity), on the basis of which they fought the elections and gained access to
Parliament, or to their several positions and offices.
Interestingly, in the case of the President, he swore additionally:
" . . . that should I at any time break this oath of office, I shall submit myself to the laws of the Republic of
Ghana and suffer the penalty for it. So help me God."
It has been said that this additional undertaking, constitutes a voluntary a waiver of whatever immunities are
conferred on the President by the Constitution, 1992. The matter does not directly arise in these
proceedings, and I express no opinion on it.
On the whole, I take the view that the plaintiff has made out a case against the observance of the
anniversary of 31 December 1981 as a public holiday, to be celebrated as such and financed out of public
funds. It is for the reasons stated above that I decided the case in favour of the plaintiff, and granted the
declarations sought.
JUDGMENT OF FRANCOIS JSC.
By its writ, the plaintiff, the New Patriotic Party, sought two declarations from this court. The first, a
declaration that the public celebration of 31 December and the financing of such a celebration from public
funds is contrary to the letter and spirit of the Constitution, 1992. The second, a consequential order
prohibiting the financing of such a celebration from public funds. The plaintiff relied on articles 3(3), (4), (5),
(6) and (7), 35(1) and 41(b) of the Constitution, 1992.
It has not been difficult to come to the conclusion that the public commemoration of an event that signified
the violent overthrow of constitutionally, elected government, against the letter and spirit of the Constitution,
1992. I now proceed to state my reasons.
[p.78]
The Decision
As a necessary preamble, it is worth repeating that this court did not prohibit or debar anybody so minded,
from celebrating the 31 December event, provided the celebration was not financed from public funds and
no one was coerced into recognising the day as a public holiday. It is common knowledge that the non-
observance of a public holiday attracts sanctions in this part of the world: see the Public Holidays Law, 1985
(PNDCL 220), s 5. The removal of this liability, by erasing the public character and the public financing of
any celebrations of that day, was the kernel of our decision of 29 December 1993. Our Constitution, 1992
permits freedom of association. Implicit in this, is the unrestrained liberty to promote and enjoy popular
social forums and gatherings, provided such group activities did not violate any laws. So 31 December
could be celebrated within the limits we placed on it. In short, we only circumscribed the options for its
celebration by detaching any national or public character from it, and prohibited any public expenditure on
its account.
The Constitution, 1992
We need constantly to remind ourselves that the Constitution, 1992 was born of a consensus, which was
formally approved in a national referendum. The Constitution, 1992 consequently embodies and represents

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the people's will. A sovereign people, accordingly, has ordained that the Supreme Court should be the
appropriate arbiter in determining, among other things, all issues that border on a negation of
constitutionalism. It has charged it with the duty of nullifying any act inconsistent with or in contravention of
the provisions of the Constitution, 1992.
The power to strike down constitutional anachronisms or aberrations, is not unusual in many democratic
regimes. Thus, Chief Justice Marshall of the United States Supreme Court observed in Marbury v Madison,
5 US (1 Cranch) 137 (1803) regarding the separation of powers: "It is emphatically the province and duty of
the judicial department to say what the law is." And Justice Barak of the Israeli Supreme Court, also said in
Kach Faction v Knesset Speaker, Jerusalem Post LR 35 (1993), "any other conclusion would be contrary to
the basic concept of separation of powers and the checks and balances that flow from the scheme of a
tripartite government."
The Letter and Spirit of the Constitution
A constitutional document must be interpreted sui generis, to allow the written word and the spirit that
animates it, to exist in perfect [p.79] harmony. It is interpreted according to principles suitable to its
particular character and not necessarily according to the ordinary rules and presumptions of statutory
interpretation: see Minister of Home Affairs v Fisher [1979] 3 All ER 21, PC. This allows for a broad and
liberal interpretation to achieve enlightened objectives while it rejects hide-bound restrictions that stifle and
subvert its true vision. In the celebrated case of Tuffuor v Attornery-General [1980] GLR 637 at 647, CA
sitting as SC the court said:
"A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It
also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for
progress. It contains within it their aspirations and their hopes for a better and fuller life.
The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-hcad for the
authority which each of the three arms of government possesses and exercises."
My own contribution to the evaluation of a Constitution is that, a Constitution is the out-pouring of the soul of
the nation and its precious life-blood is its spirit. Accordingly, in interpreting the Constitution, we fail in our
duty if we ignore its spirit. Both the letter and the spirit of the Constitution are essential fulcra which provide
the leverage in the task of interpretation. In support of this, we may profitably turn to the Constitution, 1992
itself which directs that we accord due recognition to the spirit that pervades its provisions.
In article 17(4)(d) of the Constitution, 1992, Parliament is enjoined not to enact laws "inconsistent with the
spirit of this Constitution." Pausing for a moment, it stands to reason that if Parliament ignores this caveat,
the Supreme Court has power to strike that legislation down: see articles 1(2) and 2 of the Constitution,
1992. Again, in article 21(4) of the Constitution, 1992 where restrictions are imposed in the interest of
defence, public safety or public order by court process, the Constitution. 1992 nevertheless requires that
what is "done under the authority of that law" does not offend "the spirit of this Constitution." Another
example of the all-pervasive and embracing spirit to which there is a mandatory call to obeisance, is article
33(5) of the Constitution, 1992. All are enjoined to go beyond the written provisions enshrining human
rights, and to extend the concept to areas not specifically or directly mentioned but which are "inherent in a
democracy and intended to secure the [p.80] freedom and dignity of man." This is a poignant injunction to
examine deeply any written provision so that its interpretation extends in depth to embrace its underlying
spirit and Philosophy.
Constitutions differ. Some spell out in detail specific provisions to meet envisaged circumstances. Some are
frugal with the written word allowing for innovation. But in every case, a true cognition of the Constitution
can only proceed from the breadth of understanding of its spirit. Sometimes the draftman's felicity of
language is seriously in question. But that notwithstanding, and despite the fact that the tailoring may betray
a clumsy or unskilled hand, if the spirit is breathed into the written word, the objectives of the fundamental
law can be achieved. The necessary conclusion is that the written word and its underlying spirit are
inseparable bedfellows in the true interpretation of a Constitution.
If more persuasion were necessary, one would note what an American jurist, Justice Jackson, once said
about the unwritten word in a Constitution. He said:
"perhaps even more than by interpretation of its written word, this Court has advanced the solidarity and
prosperity of this nation by the meaning it has given to these great silences of the Constitution."
Indeed, it is the proper ascertainment of these silences that provide the measure of understanding of the
basic constitutional concepts of the fundamental law.
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Finally, on this aspect of the spirit of the Constitution one cannot omit reference to the wisdom of
Ecclesiastes, chap 8, v 8: "There is no man that hath power over the spirit to imprison the spirit."
The People's Choice
By its sovereign will, the people of this country have chosen a multi-party system of government to regulate
their affairs. The fact that they chose a new direction and a new system of governance, is the clearest
pointer to change. In charting a different course, the democratic path, the people of this country took a
solemn step away from what was, immediately prevailing. Viewed in this light, it is idle and illogical to hold
that the old order has yielded place to nothing new. Especially when the new order is diametrically opposed
to the old which it supplanted. Looking then at the letter and spirit of the Constitution, 1992, we can hardly
fail to conclude that the sum total of its provision demonstrate unequivocally an estrangement from the old
order, and [p.81] betrays a consanguinity rather with past constitutional regimes than with what it
immediately displaced.
This retracing of steps to the accustomed and familiar path, with a willingness and a determination to make
a success of democracy this time round, is being severely tested in this matter. The will of the people, in the
present context, if understood properly, is a solemn and incontrovertible declaration that however
benevolent the resultant effect of the assault on constitutionalism, 31 December 1981 may be it could not
earn the distinction of constitutional propriety.
The Constitution, 1992 is a severance from the immediate past which it attempts to bury by prohibiting the
exhumation of any aspect of it that could recall bitter memories, resentment or revenge. The Constitution,
1992 with a charity of language that defies any attempt to obscure its purpose, condemns unreservedly any
attempt to overthrow a duly constituted government by unlawful means: see article 3 of the Constitution,
1992. Any such attempt would bear not only the stain and reproach of unconstitutionalism but would
purchase for its perpetrators the severest sanctions.
Counsel for the State argues in paragraph (10) of the defence that the Constitution, 1992 did not intend to
look at unconstitutional acts with retrospective eyes. Regrettably, that argument misreads the Constitution,
1992 and misses completely the force of its spirit. For if the Constitution, 1992 frowns on violent overthrows
of duly constituted governments, and rejects acts that put a premium on unconstitutionalism to the extent of
even proscribing the promotion of a one party state, it is naivety of the highest order, to expect that very
Constitution, and in the same breath, to sing Hallelujah's in a paean of praise to unconstitutional deviations,
past or present. If the past is being duly buried, the spirit of the Constitution, 1992 would frown on the
resurrection of any of its limbs. That is the whole point of the cloak of indemnity conferred in section 34 of
the transitional provisions of the Constitution, 1992 which will be addressed later. The quid pro quo, is an
expected reformation that would not flaunt the past upon a forgiving people and subject them to a lifetime of
trauma. In short, it is conceded that the Constitution, 1992 does not retroactively punish the actors in a coup
d'etat, but at the same time it places an embargo on future coups and on a parity of reasoning, frowns on
any reminders of it, especially its celebration.
The Celebration
By definition, a celebration is a public observance which honours an [p.82] event. It is accompanied by

festivities and a general atmosphcre of exhilaration. It extols and praises the event it commeorates. If it is a
public celebration, then obviously the entire public, except those in perpetual disgruntlement with life itself,
would participate in the jolly making. Example, Independence Day. But where with the advent of 31
December 1981, a sizeable section of the people recite a litany of ills and perpetually relive them, it cannot,
with the best will in the world, be classified as an ideal scenario for a public celebration, nor can its baleful
antecedents escape judicial notice. Logic and prudence would dictate the prohibition of such a public to-do
that would only promote division and fly, in the teeth of the constitutional injunction to let bygones be
bygones.
It is insensitiveness of a very high order which this court can countenance only with discomfort. Indeed, how
can the objectives stated in article 35(4) and (5) of the Constitution, 1992 be achieved in the heightened
atmosphere of distrust and division. Article 35(4) and (5) states:
"(4) The State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and
the dignity of the human person.
(5) The State shall actively promote the integration of the peoples of Ghana and prohibit discrimination and
prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender, or religion, creed
or other beliefs."

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Put bluntly, there will always be a substantial section of the people of this country and not a petulant few,
who will never see joy in a 31 December celebration. It is for such as these, that the State is to take
appropriate measures to achieve the happy result of fostering a spirit of loyalty to Ghana that overrides
every other loyalty and promote among the people of Ghana the culture of political tolerance: see article 35
(6)(a) and (9) of the Constitution, 1992.
It was most unfortunate, that counsel should consider it proper to test a political gambit by inviting us to
saunter along an avenue which our jurisdiction does not permit us to; I refer to the argument that urges us
to consider the historical merits of the 31 December insurrection. To argue, as counsel did, that 31
December is of historic importance because it ushered in a millennium of peace and stability, attracting in its
train an economic renaissance unparalleled in the history of this country (if I correctly capture his drift), is
completely to misapprehend the limits of our judicial function; which I repeat, is simply to juxtapose the 31
[p.83] December event with the new order, on the constitutional divide, to pronounce it wanting or not
wanting in the quality of its relationship with constitutionalism.
Equally irrelevant, for the same reasons, were the references made in this court to other revolutions
elsewhere which attained a permanent status by being officially celebrated, and the attempt to persuade its
to confer the same distinction on 31 December. It must be repeated, that the changed democratic direction
of pluralism that the Constitution, 1992 ordains and the very limits which the Constitution, 1992 places on
our judicial role, put effective fetters on our embarking on a discussion of the merits of 31 December.
But one may comment that such arguments place a premium on coups d'etat. They seek an indorsement of
revolutionary acts that topple governments before their time, and demand a blessing to recipes and
prescriptions for the violent overthrow of constitutional regimes.
Article 3(3) of the Constitution, 1992 prescribes that:
commits the offence of high treason and shall, upon conviction, be sentenced to suffer death."
The Deputy Attorney-General urged two other, matters that must be squarely answered. But first, it must be
pointed out that any attempt to align this court's exercise of its interpretative jurisdiction to foraging in
politics, is as mischievous as it is unfortunate.
In existence in our statute books is a law, PNDCL 220, designating 31 December as a public holiday. The
Deputy Attorney-General, as an officer of the court, has affirmed that money was voted by Parliament to
celebrate the 31 December event. The simple issue that arises, as I have been at pains to point out, is
whether in view of the new path the people of this country have chosen to tread and which is at odds with
violent revolutionary changes of governments such a public celebration is not a violation of the Constitution
and consequently self-condemnatory. The admission that a violent overthrow of government occurred on 31
December, forecloses any sanctioning of its public celebration in a [p.84] constitutional era.
Equally outside our purview was the argument that the 31 December revolution flowed into the Constitution,
1992 with "its good works and values." Counsel's language ipsissima verba. Here again, the dimensions of
our duty of interpretation were missed. For whether the event was an auspicious ray of sunshine, or
alternatively a dark cloud on the historical landscape, is clearly outside our bounds. To link our duty with a
subversive quest to undermine section 34(2) of the transitional provisions of the Constitution, 1992, as was
stated in paragraph (15) of the defence, is also unfortunate and mischievous. Perhaps we may again look
with profit at Tuffuor v Attorney-General (supra) at 655-656 where the court said:
"... [no] person in authority can clothe himself with conduct which the Constitution has not mandated ... The
question whether an act is repugnant to the Constitution can only be determined by the Supreme Court."
(The emphasis is mine)
Before the insurrection of 31 December 1981, the people of this country, in the exercise of their inalienable
rights, as enshrined in their Constitution, 1979, voted into office a government of their choice. It was the
expression of their sovereign will. The insurrection of 31 December however overthrew this legally
constituted government. It was not by due process as provided in the Constitution, 1979 for the termination
of a government, but by violent, unlawful means. It is now being advocated that the celebration of this
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illegality is still permissible or should be, in a constitutional era, and that this court should confer its
constitutional blessing on the event.
I see a patent incongruity, a contradiction in terms in this competition for respectability and legitimacy,
between the usurpers of power and the victuals of a successful putsch. Constitutional evolution and illegal
revolution are poles apart and like east is to west, "never the twain shall meet." They certainly cannot jostle
with each other in jocund camaraderie.
The issue must not be blurred into a moral, in contra-distinction to a legal one. While this court cannot
compromise its judgment by accepting arguments that emanate from the forum of conscience, beholden as
we are only to the supremacy of the law; at the same time, we should decline to dismiss out of hand, issues
of mixed law and conscience, merely, because they are interwoven. It must be truly recognised that there
are [p.85] many grey areas, where constitutional imperatives cannot be divorced from the dictates of good
conscience. This is not a mere intellectual engagement or as academicians will put it, a dialectical
disputation. Some illustrations are called for. If the argument on the supremacy of the 31 December event
is sound, it is curious there is no support for it in the Constitution, 1992 itself where we rather see,
transparently beyond peradventure, an attempt to distance constitutionalism from overthrows of duly
constituted governments.
Again, if the achievement of 31 December should maintain a pride place in the social fabric as urged, it is
strange that, that event was not excepted from the general antipathy expressed in the constitution, 1992
towards the heresy of revolutions, with the accompanying penalty of the forfeitment of life itself.
The other window offers a corresponding view. Ancient mythology and Christian theology both recognise a
Deus ex machina; that dreadful engine of vengeance that comes as a thunderbolt to impose draconian
solutions on mortal mistakes. In the Christian world it is a chastening or corrective machinery to enforce the
renunciation of evil ways, to obtain salvation. But no one in his proper senses, would place such an event
on a pedestal for worship and veneration.
That would accord ill with the Lord's own sense of justice. For it is not a day marked with rejoicing and
festivities; rather it conjures the scenario of sackcloth and ashes. So 31 December receives the rebuff of
conscience in its efforts at acclamation. The legal determination achieves the same results. For the shroud
of indemnity in section 34 of the transitional provisions of the Constitution, 1992 completely mummifies the
31 December event and reduces it to an impotent, unmentionable event at law. It must remain so in its
sarcophagus.
That said, it is not our province to indulge in a debate on extrinsic merits. For we do not espouse a cause
or denounce one. The historic perspective allowed us, is only to place 31 December on the calendar as a
happening. We accordingly leave it to history and posterity, as better judges, to pronounce on the quality of
that event, and give it its rightful place. For it is history that accords its epic moments the distinction of an
indestructible accolade.
One can hardly resist here a pertinent aside. The proper evaluation of any historical event, requires a
measured period of time for analysis, untrammelled by emotive or other considerations. Those breathing
the current air are enveloped in its environment and are disabled by their proximity to the event in time and
place, from making sound, objective [p.86] and valued judgments. Fortunately and I repeat, it is not the
province of this court to embark on an evaluative excursus. Ours is to relate that day, 31 December, with all
its trappings, to the new political order ushered in by the Constitution, 1992 and to declare whether the two
could comfortably co-exist. And, if not, whether reminders of that event in public celebrations and at public
expense could be permitted in our changed democratic circumstances.
A democratic commitment demands an unremitting effort at ascertaining the underlying spirit of the
Constitution, 1992 and obeying it. Thus may we turn with profit to article 56 of the Constitution, 1992. This
article embodies the spirit which compels the rejection of the servitude which arbitrariness imposes and
which a slave mentality willynilly accepts. Article 56 of the Constitution, 1992 states:
"56. Parliament shall have no power to enact a law to establish or authorise the establishment of a body or
movement with the right or power to impose on the people of Ghana a common programme or a set of
objectives of a religious or political nature."
Enshrining the 31 December event as a public holiday, breaches article 56 of the Constitution, 1992.
Parliament cannot authorise expenditure from state coffers for the commemorative celebration of all illegal
event which many citizens may not approve. Inherent in article 56 of the Constitution, 1992 is the
impropriety to impose and ram down people's throats unpopular programmes with set political objectives.

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Implicit also in this article, is the invitation to all constitutionally minded citizens of Ghana to fight the
imposition or infliction of private programmes on the public and to resist their coercive enforcement through
the machinery of the law.
The Indemnity
An indemnity suggests exemption from penalties. It is the closing of a chapter. The commencement of a
fresh start with the opening of a new page. Recriminations, enmity and rancour which may be carried over
from the past, are proscribed. In constitutional terms and with the relevance of our own circumstances, an
indemnity connotes a perception of a bright future with all past errors consigned to the archives of history.
There is a tacit implication that it may not augur well for the country, if it were to be perpetually embroiled
with the rights and wrongs of the past and the vengeful pursuit of the pound of flesh. With that setting, it is
clearly unjust to exacerbate old wounds by permitting echoes ot the past [p.87] to reverberate and shatter
the tranquility the Constitution, 1992 sought to promote with its reconciliatory arrangements.
An event that has earned its architects an Indemnity under section 34 of the transitional provisions of the
Constitution, 1992, must, as observed before, be consigned to the grave with the solemn quietus intoned by
the said section. The Constitution, 1992 reminds us that three such events in the past are to be buried with
the indemnity of a pardon. Their ghosts should not linger around like phantom wraiths dispensing mischief
with reckless abandon. A crude analogy, is tying up the hands of a boxer to allow an adversary to pummel
him into submission, pronounce his defeat, and still allow the slaughter to continue.
Conclusion
I permit myself the indulgence to make some observations in conclusion. Even as it is axiomatic that one
cannot boast of being a true Christian if one is not acquainted with the Good Book, so does ignorance of
the Constitution, 1992 project an unwillingness and an inability to defend it. How can the duty which every
citizen is required to discharge in defending the Constitution, 1992 under articles 3(4) and 41(b) be
accomplished if its provisions are unknown, and citizens remain ignoramuses of the fundamental law. The
narrow division this case has caused, is the clearest manifestation of judicial independence; that quality of
freedom the Constitution, 1992 itself seeks to promote. This freedom is a necessary adjunct to the
successful defence of the new social order and sustains the springboard for progress in our human
development.
The opposing views we express are not caustic reflections on contrary views. They are honest individual
perceptions of controversial matters. As W O Douglas puts it in his article "The Dissent: A Safeguard of
Democracy" (1948) 32 J Am Ind Soc'y at pp 104-107:
Disagreement among judges is as true to the character of democracy as freedom of speech itself ... The
truth is that the law is the highest form of compromise between competing interests; ... it is the product of
attempted reconciliation between the many diverse groups in a society ... When judges do not agree, it is a
sign that they are dealing with problems on which society itself is divided. It is the democratic way to
express dissident views. Judges are to be honoured rather than criticised for following that tradition, for
proclaiming their articles of faith so that all may read."
[p.88]
If our Constitution, 1992 is to play an effective part in forging a virile democracy, it would be unacceptable to
dilute its force with the demolition of the structure of checks and balances that sustains it or negate its
provisions on the altar of peace and stability. The court's independence and integrity are themselves
powerful instruments for peace and tranquility. It was the late Chief Justice Snoira of the Israeli Supreme
Court, who said that in any competing tryst "between truth and stability, truth must prevail."
I conclude with two quotations which sum up this whole exercise of interpretation. The first is from Tuffuor v
Attorney-General (supra) at 664:
"The ideals which the framers of the Constitution were at pains by the letter and spirit of this Constitution to
establish ought to be respected and adhered to. They are justice and fairplay; abhorrence of arbitrariness
and discrimination; victimisation and vindictiveness; the protection of the individual and his fundamental
human right[s], within the walls of the Constitution. We believe it was in pursuance of these ideals that the
framers of the Constitution, formulated their proposals. . ."
To Lord Tennyson is reserved the last word. His counsel in one of his peoms is to ". . . take occasion by the
hand and make the bounds of freedom wider yet. Broad based upon her people's will."

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JUDGMENT OF ABBAN JSC.
On 21 December 1993 the original jurisdiction of this court was invoked by the plaintiff by a writ in which the
plaintiff sought two reliefs. In the first relief, the plaintiff prayed that the public celebration which was
scheduled to take place on 31 December 1993, and the financing of the activities involved in that
celebration from public funds should be declared unconstitutional; and the defendant should be ordered to
refrain from carrying out the said celebration on 31 December 1993. It would be better to set out the full text
of the reliefs, as amended. They read:
Ghana on 31 December 1981, and the financing of such celebration from public funds is inconsistent with
or in contravention of the letter and spirit of the Constitution, 1992 and more particularly articles 3(3),(4), (5),
(6) and (7), 35(1) and 41(b). thereof.
[p.89]
The success of the second relief depended on the success of the first relief. The plaintiff also set out in its
"statement of case" the basis for seeking the above declarations. The pleadings filed by both parties are
very important and they ought to be set out where necessary, in extenso.
In paragraphs (3), (4), (5), (6) and (7) of the plaintiff's statement case, the plaintiff clearly gave the summary
of the provisions of articles 3(3), (4), (5). (6), (7), 35(1) and 41(b) of the Constitution, 1992 which were
referred to in the first relief. In due course, the exact wording these articles would be quoted and critically
examined to find out whether any of those provision expressly or by implication banned or prohibited the
intended celebration.
However, paragraphs (8), (9), (10) and (11) of the statement of case alleged and I quote:
"(8) In a publication in the print and other media in Ghana on or about 14 December it was reported that the
Government of Ghana had decided to organise celebrations to mark the overthrow of the constitutionally
and legitimately elected Government of the Third Republic of Ghana by violent or other unlawful means on
31 December 1981, by a route march involving the security services and voluntary organisations, and a
wreath laying ceremony at the Revolution Square and a musical carnival at Trade Fair Centre which is
situate at La in Accra.
(9) On or about Friday 17 December 1993 it was further announced in the media in Ghana that 31
December 1993 would be observed as a holiday in celebration of the violent and unlawful overthrow of the
legally constituted Government of Ghana on 31 December 1981 aforesaid.
(10) The plaintiff will contend that such celebrations, route marches and musical carnivals cannot be held
without financing and that such financing would necessarily have to come from public funds.
(11) The plaintiff will contend that the financing of such celebrations from public funds offends against the
very [p.90] existence of the Constitution, 1992 that it is an affront to democracy and democratic
constitutional rule and is subversive of the whole of the Constitution, 1992 and further that the financing of
such celebrations from public funds is totally unconstitutional."
The defendant denied paragraphs (8) and (9) of the plaintiffs statement of case and averred that:
"the print and other media on or about 14 December 1993 reported a press release from the Information
Services Department stating that 'A number of activities have been planned throughout the country to mark
the twelfth anniversary of the 31 December Revolution and the first anniversary of the Fourth Republic."'
The defendant, in his paragraph (5) of the defence, also denied the plaintiff's paragraph (9) in the following
terms:
"(5) The defendant denies paragraph (9) of the statement of plaintiff's case and would say that the Minister
of Interior issued a statement on 17 December 1993, which was announced by the media saying, inter alia,
that 'The Minister of Interior has announced that Saturday, 25 December, Christmas Day; Sunday, 26
December, Boxing Day; and Friday, 31 December, Revolution Day are statutory holidays."'

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Photocopies of the two press releases in question and referred to in the defence were annexed to the
defence as annexure A and read:
"Ghanaian Times: Tuesday 14 December 1993 No. 11,349—Anniversary Programmes. A number of

activities have been planned to be held throughout the country to mark the 12th anniversary of the
December 31 Revolution and the first anniversary of the Fourth Republic.
A release issued by the Information Services Department in Accra said the highlight of activities marking
the December 31 anniversary in Accra would be a route march to be followed by a wreath-laying ceremony
at the Revolution Square.
Taking part in the route march will be the security services and various voluntary organisations.
There will be a musical carnival at the Trade Fair Centre in the afternoon.
[p.91]
The release said on January 7, the first anniversary of the inauguration of the Fourth Republic, there would
be a ceremonial parade of the security services and voluntary organizations at the Independence Square to
be followed in the afternoon by a cultural display.
The celebrations would be rounded off with non-denominational thanksgiving services on January 9 in all
parts of the country—GNA."
The defendant's annexure B was a release, this time from the Ministry of Interior published in the People's
Daily Graphic on Monday, 20 December 1993, No 13393 and reads:
"HOLIDAYS: The Ministry of the Interior has announced that Saturday December 25 Christmas day, Sunday
December 26, Boxing day and Friday, December 31 Revolution day are statutory holidays.
A statement issued in Accra said Saturday January 1 is New Year's day and that Friday January 7, will be
observed as the Fourth Republic Day.
It said in accordance with section two of the Public Holidays Law, since Christmas, Boxing and New Year
Holidays fall on non working days, Monday December 27, Tuesday December 28 and Monday January 3
have been declared public holidays instead—GNA."
As I said earlier on, the pleadings filed by the parties in this suit to me are very pertinent, because they
offered great assistance, and they lucidly put forward the contentions of the parties, quite apart from the oral
arguments which were presented to the court. I would therefore quote also the defendant's paragraphs (6),
(7), (8), (9), (10), (12), (15) and (16):
"(6) The defendant admits paragraph (10) of the statement to the plaintiff's case, and says that money was
legally appropriated under the 1993 budget which are lawfully being used for the celebration of both the
historical values that the 31 December revolution stood for and the first anniversary of the Fourth Republic
which was born out of the values of the 31 December revolution.
(7) The defendant denies paragraph (11) of the statement of the plaintiff's case and says that section 19 of
the transitional provisions of the Constitution, 1992 validates the 1993 [p.92] budget.
(8) The defendant will contend that 31 December like all public holidays in Ghana is a public holiday by
virtue of the provisions of section 1 of the Public Holidays Law, 1989 (PNDCL 220).
(9) The defendant will contend further that articles 3, 35(1) and 41 (b) of the Constitution, 1992 do not
support the contention that the celebration of 31 December as public holiday is unconstitutional.
(10) The defendant will further say that the 31 December Revolution of 1981 and the regime it gave birth to
are events which the Constitution, 1992 does not intend retrospectively to declare unconstitutional ...
(12) The defendant says that whether or not public funds should be appropriated for the celebration of the
31 December revolution is political question which is best left to the, electorate which votes a government
into power and a Parliament which can by law decide what the public holidays of Ghana shall be ...
(15) The defendant maintains that what the plaintiff is seeking to do is to question the constitutionality and
legality of the 31 December Revolution, and events which gave rise to that revolution on 31 December 1981
which should not be entertained by the court by virtue of section 34, particularly subsection 2, of the
transitional provisions scheduled to the Constitution, 1992.

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(16) The defendant says in the premises that the plaintiff is not entitled to the reliefs sought or at all."
(The emphasis is mine.) That was the state of pleadings and upon those pleadings oral arguments were
addressed to the court.
What Were the Triable Issues
From the pleadings the triable issues in this case were first, whether the public celebration due to take
place on 31 December 1993 in commemoration of the revolution of 31 December 1981 was
unconstitutional. Secondly, whether public funds being expended in preparation for that celebration were
also unconstitutional. Thirdly, if, the intended celebration on 31 December 1993 and the expenditure of
public funds in respect of the said celebration were found to be [p.93] unconstitutional, whether this court
should make an order stopping the defendant from carrying out the celebration on 31 December 1993 and
from making the said preparatory expenses from public funds.
It was on the consideration of the pleadings filed in the case and also on the oral arguments presented in
support of the pleadings that this court on 29 December 1993, by a majority of 5-4, gave. judgment in
favour of the plaintiff and reserved its reasons.
The split decision was short and proceeded as following:
"By a majority of five to four (Archer CJ, Abban, Bamford-Addo and Ampiah JJSC dissenting the
declarations sought by the plaintiff, as amended, are hereby granted. It is hereby ordered that 31
December, shall no longer be declared and observed as Public holiday and celebrated as such out of public
funds. The defendant is hereby ordered to obey and carry out this order. Reasons for this decision will be
given on a date to be notified."
(The emphasis is mine.) I had to keep my distance from this kind of judgment and to dissent from it on what,
in my view, were very serious legal grounds.
Before I deal with the merits of the case, I will like to make two very important observations, bearing in mind
that the present case will definitely not be the last case in which an interpretation of a provision of the
Constitution, 1992 would be sought. The likelihood of more of such cases coming before this court cannot
be ruled out. Hence, I feel duty bound to make the following observations.
It seemed to me that too much emotions and sentiments were generated in this matter during the hearing.
These unfortunately could easily have had undue and profound impact on the court. Continuing national
respect for the court's authority depends, in a large measure, upon the courts wise exercise of self-restraint
in constitutional adjudication. Truly judges are human and so the possibility of a judge having his own
private or personal views on the subject matter before the court, like the present one, cannot be
overemphasised. But it is very important that all parties concerned should do everything possible to assist
the judges so that they do not allow sentiments and their personal views to influence or to cloud their vision
of objectivity when engaged in construing the provisions of the Constitution, 1992.
This court, in exercising the powers conferred upon it by the Constitution, 1992, should be impervious to
extraneous influences and should be able to bring to bear on the problem before it, a professional [p.94]
objectivity which transcends personal predilections. Thus, involved in a case, like the present one, have a
duty to assist the court in achieving that objective.
The second very important observation is about the case itself. It is significant to note that the plaintiff did
not seek a declaration that 31 December, which had been made a public holiday in the Schedule to the
Public Holidays Law, 1989 (PNDCL 220), was unconstitutional and that this court should also declare that
31 December should "no longer be a public holiday" on the ground that it was inconsistent with the spirt and
the letter of the Constitution, 1992.
To put it in another way, the plaintiff did not give any intimation either by its writ or by its statement of case
or by any means to the court or to the defendant that in addition to the amended two reliefs specifically
stated in the writ, the plaintiff would also ask the court to declare that henceforth 31 December "should no
longer be a public holiday" because it was inconsistent with the Constitution, 1992, and must therefore be
deleted from the list of public holidays which had been spelt out in the Schedule to PNDCL 220.
Thus, the constitutionality of any section of PNDCL 220 was never a triable issue in the case. In other
words, the plaintiff never sought in its reliefs a declaration that PNDCL 220, which is still on the statute
books as provided by article 11(4) of the Constitution, 1992, is inconsistent with the provisions of the
Constitution, 1992. Neither did the plaintiff in its pleadings call upon this court, by virtue of article II (6) of the

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Constitution, 1992 to construct PNDCL 220 "with modifications adaptations, qualifications and exceptions
necessary to bring" PNDCL 220 "into conformity with the provisions of the Constitution." Again there was no
request in the reliefs that this court should also declare any section of the Appropriation Law, 1993 (PNDCL
314) unconstitutional.
It would be recalled that it was the defendant who, in his statement case, alluded to PNDCL 220 and
contended that 31 December had been made a public holiday under that Law; and that the intended
celebration due to take place on 31 December 1993 was in accordance with a statute.
In the course of replying to the oral submissions of learned counsel for the defendant, learned counsel for
the plaintiff conceded that PNDCL 220 specified 31 December as one of the public holidays. But learned
counsel for the plaintiff submitted that the continued operation of PNDCL 220 was inconsistent with the
spirit of the Constitution, 1992 inasmuch as 31 December continued to be observed as a public holiday.
One would have thought that at that stage, the plaintiff would have [p.95] put in a reply or would have, at
least, sought leave from the court, even orally, to amend its writ under rule 49 of the Supreme Court Rules,
1970 (Cl 13) by adding other relief, namely that a section of PNDCL 220 and PNDCL 314, both of which are
part of the existing law of Ghana, are inconsistent with the spirit of the Constitution, 1992 and are therefore
unconstitutional. But no amendment was sought or made either, to the writ or to the statement of the
plaintiff's case.
So the case proceeded on those two reliefs in the plaintiff's writ and was fought on the issues which I set
out earlier on in this judgment. Yet the majority, decision unhesitatingly declared that PNDCL 220 so far as
31 December was concerned was unconstitutional and that henceforth 31 December "should no longer be
observed as a public Holiday", when that relief had not been asked for by the plaintiff in its writ or in its
pleadings and when that had been a triable issue in the case. In other words, the majority decision gave the
plaintiff a declaration which the plaintiff itself did not ask for and which, as I have already stated, had never
been a triable issue in the matter.
It is trite learning that the object of pleadings is to compel the parties to define the issues upon which the
case is to be contested, and to prevent one party taking the other by surprise. The question whether a court
could legitimately decide on a question not specifically raised by the pleadings merely because there had
been evidence of it before the court was discussed at great length by the English House of Lords in the
case of Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, HL. At 238-239 of the report Lord
Normand had this to say:
"There was no notice in the pleadings of any other cause of action, such as that the appellants negligently
sent the vessel to sea in an unseaworthy condition.
The function of pleadings is to give fair notice of the case which has to be met so that the opposing party
may direct his evidence to the issue disclosed by them ... I wish to associate myself with the observations of
my noble and learned friend, Lord Radcliffe, on the value of the pleadings. To condemn a party on a ground
of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground
on which his evidence has been improperly excluded."
Lord Morton at 239-240 in agreeing with Lord Normand said:
"This submission leads me at once to a consideration of the [p.96] pleadings, in order to see exactly what
were the issues raised thereby ... My Lords, I have set out the pleadings in detail in order to show that no
complaint was made of any act or default on the part of the appellants, either in the original statement of
claim or at the time when the respondents had the opportunity of amending it with full knowledge of the
facts already mentioned ... Counsel for the respondents then sought to make a case of which no hint
appeared in the pleadings."
Similar views were expressed at 241-244 by Lord Radcliffe where he said:
"My Lords, I think that this case ought to be decided in accordance with the pleadings. If it is, I am of
opinion . . . that the respondents failed to establish any claim to relief that was valid in law ... In my view,
where the question is, as here, as to sufficiency of evidence, the state of the pleadings is of more
importance than the way in which the case is shaped in argument. It is clear that no application was made
to the trial judge to amend the pleadings."
(The emphasis is mine.) In CFAO v Archibold [1964] GLR 718, SC, Esso's case (supra) was referred to
with approval by the Supreme Court. Adumua-Bossman JSC read the unanimous judgment of the court in
which it was held, as stated in the headnote, inter alia, that:

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"When a reply is not filed to an averment in the statement of defence, the trial court is not entitled to
consider a matter raised in the final address for the first time. The respondent's submission in his final
address that the action was not statute-barred should have been presented in the form of a reply to the
statement of defence and it was not competent for the trial court to have considered the matter at all."
The matter was also discussed in Malm v Lutterodt [1963] 1 GLR 1, SC Azu Crabbe JSC (as he then was)
reading the unanimous decision of the court said at 12: "The only problem that arises therefore in this
appeal is whether there is evidence to support this finding of the learned trial judge that the plot was
abandoned." Then at 14-15, the learned judge continued:
"To my mind to raise an issue of abandonment is to allege estoppel by conduct which was not pleaded by
the plaintiff and in support of [p.97] which he led no evidence whatsoever: see Young v. Star Omnibus Co.,
Ltd., per Farwell, J. [(1902) 86 LT 41 at 43.]
In my view therefore, the learned trial judge erred in basing his judgment on a point which was not a triable
issue on the pleadings see Oloto v.Williams [(1944) 10 WACA 23]. I venture to say, with all respect, that the
pronouncements, on abandonment is of no effect because the court went beyond the rights which were
really in issue between the parties. In Robinson v. Duleep Singh [(1879) 11 ChD 798 at 813] James L.J.
said: '. . . if the court had gone beyond the rights which were properly in issue between the parties the
decree of the court would be absolutely null and void."'
In the present case, as I have already stated somewhere in this judgment, the constitutionality of PNDCL
220 or any section of that Law, or any of the public holidays as listed in its schedule, was never in issue in
this action. Thus in the light of the authorities and having regard to the reliefs in the writ and the statement
of the plaintiff's case, that portion of the judgment of my five brethren which went to the extent of
pronouncing on PNDCL 220 by declaring that "31 December should no longer be a public holiday", with the
greatest respect, was irregular. That portion of the judgment went "beyond the rights which were properly in
issue between the parties."
I have to make it clear that it was an irregularity which came about as a result of the court doing something
for which it had no warrant in law or in the rules of procedure to do. Consequently, that portion of the
judgement just referred to is null and void and has no legal validity whatsoever.
In the classic case of Mosi v Bagyina [1963] 1 GLR 337 at 346, SC, Akufo-Addo JSC (as he then was), in
the course of reading the unanimous judgment of the Supreme Court, said that this kind of irregularity, as in
the present case,
"renders void any order or judgment emanating therefrom, and setting aside such an order or judgment
being ex debito justitiae a court or a judge has no discretion in the matter but is under a legal obligation to
set it aside."
In the case of MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, PC, and which was also
approved in the Mosi case (supra) Lord Denning said:
[p.98]
This is the same as saying that it was void and not merely voidable, . . If an act is avoid, then it is in law a
nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is
automatically null and void without more ado. . ."
I will now deal with the case on its merits. Learned counsel for the plaintiff, Mr Adjetey, first contended that
the coup of 24 February 1966 which violently overthrew the Constitution, 1960 and toppled the Nkrumah
regime was illegal. So was the coup of 13 January 1972 which overthrew the Constitution, 1969 and ousted
the Busia regime from office. and the revolution of 31 December 1981 that overthrew the Constitution, 1979
and toppled the Limann regime was also illegal. Learned counsel intimated that he was not very much
concerned with the palace coup of 5 July 1978 and the uprising of 4 June 1979, for those coups were
directed against military regimes which had illegally enstalled themselves in power. But learned counsel for
the plaintiff contended that the indemnity, as provided in the transitional provisions of the Constitution, 1992,
should not prevent this court from holding that all those three coups were illegal and therefore
unconstitutional.

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Learned counsel for the defendant, the Deputy Attorney-General, Mr Amidu, on the other hand, submitted
that the various coups mentioned in the submissions of learned counsel for the plaintiff had been prohibited
by the provisions of the indemnity section, ie section 34(1) and (2) of the transitional provisions of the
Constitution, 1992 from being made the subject of any law suit; and so the court, by the said section, was
not entitled to make any pronouncement on those coups.
I thought that was an indirect invitation to this court by counsel for the plaintiff to pronounce on the illegality
of those coups and also on the illegitimacy of section 34 of the transitional provisions of the Constitution,
1992.
Incidentally, indemnity clauses are not peculiar to the Constitution, 1992. They are found in all the
Constitutions promulgated since 1969. They were first introduced in the Constitution, 1969 by section 12(3)
of its transitional provisions. In the Constitution, 1969 the indemnity clauses, apart from indemnifying the
coup leaders and members of the National Liberation Council, went further in its section 14(3) of the
transitional provisions to give mandate to the civilian government, the Busia Government, that "on or soon
after the coming into force" of the Constitution, 1969, the leaders of the 1966 coup should be paid gratuity
"as a token of the Nation's gratitude" or appreciation for overthrowing [p.99] the Nkrumah government by
force of arms.
In addition to this, section 14(4) of the transitional provisions of the Constitution, 1969 provided that they
should be paid retiring benefits or awards which Parliament had no power, according to section 14(5), to
alter or interfere with "until the death of all members of the National Liberation Council."
It can therefore be seen that the Constitution, 1969 did not only exonerate the coup leaders from blame in
staging the coup, but they were also rewarded handsomely for violently overthrowing the Nkrumah regime.
Thus, as already stated, the provisions as found in section 34 of the transitional provisions of the
Constitution, 1992 are not new phenomena.
In any case, in view of the injunction placed on the court by the provision of Section 34(2) of the transitional
provisions of the Constitution 1992, I did not think this court was entitled to consider the legality or illegality
of those various coups mentioned by learned counsel for the plaintiff, apart from stating simply that those
coups overthrew governments which were then in power. I rather prefer to adopt the attitude of Archer JA
(as he then was) in the case of Sallah v Attorney-General G&G (Vol 11, Pt 2) 493, SC. In the course of his
judgment in that case the learned judge had this to say at 496:
"Although this transitional provision in effect clearly forbids the generation of future controversy by legal
proceedings or judicial pronouncement, over the constitutionality or unconstitutionality, legality or illegality of
the Proclamation and the events, that ensued, yet the defendant, who is the learned Attorney-General, has
generated arguments pregnant with questions which no doubt would drive us into considering the legal
validity of the Proclamation itself. The learned Attorney-General has put temptations in the path of the court
and I think these temptations should be ruthlessly and mercilessly resisted. For my part, I would say that
section 13(3) of the Transitional Provisions has clapped the hand of reticence over my lips and I refuse to
open my lips on the legal validity of the Proclamation itself."
Learned counsel for the plaintiff next contended that the intended celebration of the 31 December revolution
on 31 December 1993 was contrary to the provisions of articles 3(3), (4), (5), (6) and (7), 35(1) and (2) and
41(b) of the Constitution, 1992. He argued that to celebrate a day [p.100] on which a lawfully constituted
government was illegally ousted from power would send wrong signals to the security services, to the
Armed Forces and even to school children and to Ghanaians as a whole, that the highest achievement
anybody could attain was to overthrow an established government by violence.
It was further submitted by learned counsel for the plaintiff that the celebration of the 31 December
revolution on 31 December 1993 would remind Ghanaians of atrocities, maiming, humiliating and other
dehumanising acts suffered by or meted out to many Ghanaians on 31 December 1981; and to that end,
the celebration was inconsistent with the spirit and the letter of the Constitution, 1992.
Learned counsel for the defendant, on the contrary, argued that the celebration was constitutional and that
all the articles referred to by counsel for the plaintiff did not proscribe the celebration which was to take
place on 31 December 1993. Learned counsel for the defendant contended that it was a celebration of a
historical event which took place in this country. Learned counsel argued that one could compare it with the
French Revolution of 14 July 1789, and that the French people do not consider the celebration of 14 July
unconstitutional. The object of celebrating the 31 December revolution, contended learned counsel for the

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defendant, was not to abrogate or overthrow the Constitution, 1992 as envisaged under article 3(3), (4), (5),
(6), and (7) of the Constitution, 1992.
It was also submitted by learned counsel for the defendant that the mere fact that the celebration or an act
could remind people of what happened on a coup day could not make the celebration or that act
unconstitutional. Learned counsel for the defendant further submitted that observing 31 December was to
celebrate, not the actions of that day, but the historical values which the Constitution, 1992 had inherited.
Learned counsel contended that the people of Ghana elected Parliament and have an executive and these
had not the mandate from the people to take a decision as to which days in the year are to be public
holidays and to celebrate them as such.
Learned counsel for the defendant therefore submitted that the decision to celebrate 31 December in the
manner as advertised in the local papers was a political decision and the court had not been empowered by
the Constitution, 1992 to interfere with purely political decisions taken by the defendant.
For the importance of this case, I will quote the articles of the Constitution, 1992 relied upon by learned
counsel for the plaintiff [p.101] verbatim. They are as follows:
(4) All citizens of Ghana shall have the right and duty at all times —
(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to
commit any of the acts referred to in clause (3) of this article, and
(b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or
abrogated as referred to in clause (3) of this article.
punishment.
or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged
on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment."
"35.(1) Ghana shall be a democratic state dedicated to the realization of freedom and justice, and
authority through this Constitution."
"41. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and
obligations, and accordingly, it shall be the duty of every citizen —
(b) to uphold and defend this Constitution and the law . . ."
[p.102]
Articles 35(1) and 41(b) of the Constitution, 1992 which form part of the Directive Principles of State Policy,
have nothing to do with celebrations. In this action, no one disputed that Ghana is "dedicated to the
realisation of freedom and justice", and that the "sovereignty resides in the people." Neither did any one
dispute the right of every citizen to defend the Constitution, 1992 and the law. Thus, the provisions of
articles 35(1) and 41(b) of the Constitution, 1992 had no relevance, whatsoever, to the subject matter
before the court. Reference to those articles, with due respect, was totally misconceived.
The words of article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 do not pose any problem. They are
clear and straightforward. Thus, the proper course to follow in the interpretation of these clauses is to take

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the words themselves and arrive at their meaning. In other words, the language of the clauses of article 3
of the Constitution, 1992 is clear and unequivocal, and must therefore be given the literal meaning, and to
do so would not, in my view, lead to any manifest ambiguity.
If the provisions of the clauses of the articles of a Constitution are clearly, expressed, as in this case, and
there is nothing to enable the court to put, upon them, a construction different from that which the words
import, then the words must prevail. In the Sussex Peerage, Case, (1844) 11 Cl &, Fin 85 at 143, Tindal CJ
observed:
". . . the only rule for the construction of Acts of Parliament is, that they should be construed according to
the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to expound those words in their natural and ordinary
sense. The words themselves alone do, in such case, best declare the intention of the law giver."
(The emphasis is mine.) See also the dictum of Park B in Becke v Smith (1836) 2 M &W 191 at 195 and
Capper v Baldwin [1965] 2 QB 53 at 61 per Lord Parker CJ.
The words of article 3 of the Constitution, 1992 refer to acts which are geared towards unlawful and violent
overthrow of the Constitution, 1992. All those clauses of article 3 have one common theme. That theme is
like a thread which runs through all of them; namely any person or persons either by themselves, or in
conspiracy with others, who engage in any activities, overtly or covertly, with the object of overthrowing the
Constitution, 1992 unlawfully or violently, commit high treason, which is a very serious criminal offence.
Such persons, and [p.103] whoever aids and abets them, would be liable to criminal prosecution and upon
conviction would suffer the death penalty.
Article 3(4)-(7) of the Constitution, 1992 place an obligation on every citizen of this country, to take any
appropriate step to prevent any person or persons from using any unlawful or violent means to overthrow,
repeal, cancel or suspend the Constitution, 1992. That persons who prevent or offer opposition to or
suppress such conduct would be exonerated from any offence. That in case these good citizens failed in
their attempt to resist such conduct and they suffered any punishment thereby, that punishment would be
considered null and void, and of no legal consequences, from the date such punishment was imposed, if
eventually the Constitution, 1992 was restored.
In addition, such good citizens would be entitled to be awarded adequate compensation for any punishment
or loss they might have suffered. The assessment of the quantum of the said compensation would be made
by this court on an application made to it by the persons concerned, or on their behalf. That any such
award made by this court should be paid out of the Consolidated Fund.
It could therefore be seen that the sole intention of the framers of the Constitution, 1992, as portrayed in the
said article 3, is to dish out the death penalty for those who indulge in subversive activities which have the
only object of overthrowing or suspending or abrogating the Constitution, 1992 or any part thereof,
unlawfully or with violence; and to reward those who might suffer in the course of opposing such violent
overthrow.
Such clarity of intention must militate, uncompromising, against any suggestion that the celebration of the
kind as was contemplated by the defendant on 31 December 1993, would infringe any of the clauses of
article 3 of the Constitution, 1992. The intention of those who framed the Constitution, 1992 must not be
collected from a vacuum, or from any notions which may be entertained by this court as to what is just and
expedient. The intention must be collected from the provisions of the articles relied upon; and once the
intention is ascertained, it is the duty of this court to give effect to that intention.
The intention of those clauses of article 3 of the Constitution, 1992 is not to prohibit the celebration of 31
December as a public holiday, and as a day for merry-making. The activities involved in the celebration
which was to take place on 31 December 1993, must guide this court to find out whether the said
celebration had the potential of overthrowing the Constitution, 1992 unlawfully, or to bring down the
government of [p.104] the day unlawfully or by violence as envisaged by those clauses of article the
Constitution, 1992 relied upon by the plaintiff.
The celebration involved going on a route march which was a kind of procession which is guaranteed by
article 21(1)(d) of the Constitution, 1992. It also had the object of remembering the dead, of merry-making
generally, dancing and enjoyment of musical shows; and it was to be rounded off with a non-denominational
church service. These activities could not, by any stretch of imagination, amount to "violent" and "unlawful
means" intended to "overthrow" or "abrogate" or "suspend" the Constitution, 1992 or "any part of it."

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It was to be a peaceful celebration. It was not aimed at using it to attack violently government institutions, or
to cause riots and disorder so that law and order would break down in the process; and make it impossible
for the elected government under the Constitution, 1992 to govern; and thereby oust it from office by
"unlawful means" instead of through the ballot-box.
Quite apart from the articles relied upon by the plaintiff, I carefully and critically examined the provisions of
the Constitution, 1992 from article 1 to article 299, and from section 1 to section 37 of the transitional
provisions; and I could not find even a single provision which expressly or by necessary implication
proscribed the celebration which was to take place on 31 December 1993.
It is interesting to observe that the provisions which have been made in article 3 of the Constitution, 1992
were similar to provisions also made in article 3 of the Constitution, 1969, although not as elaborate as in
article 3 of the Constitution, 1992. Indeed, article 3 of the Constitution, 1979 also made almost identical
provisions as were made in article 3 of the Constitution, 1969.
So the provisions, which have been made in article 3 of the Constitution, 1992, are not new or peculiar to
the Constitution, 1992 alone. These provisions existed in substance in both the Constitutions, 1969 and
1979. That is, they existed during the Busia regime and also during the Limann regime. Yet those civilian
governments observed coup days as public holidays and expanded public funds to celebrate the
anniversary of those coup days. For example, the Busia Government celebrated 24 February 1970 as a
public holiday dubbed "Revolution Day" to commemorate the violent overthrow of the Nkrumah regime. But
to me, those celebrations were not in contravention of article 3 of the Constitution, 1969. Neither did the
celebration contravene any other articles of the Constitution, 1969.
[p.105]
The Busia Government had an Attorney-General who would have advised that government against the
celebration of the anniversary of the coup of 24 February 1966 as a public holiday and as a Revolution Day,
if that celebration contravened article 3 of the Constitution, 1969. As a matter of fact, the Busia Government
would never have indulged in any celebration which was inconsistent with the spirit and the letter of the
Constitution, 1969. I will deal with this aspect of the matter in detail, at a later stage.
However, I considered the criticisms levelled against the celebration of the 31 December revolution (and the
same criticisms could be levelled against the celebration of 24 February as a "Revolution Day" by the
civilian government of Busia) as part of a healthy intellectual exercise of democratic rights, and must
therefore be encouraged by all lovers of democracy. But that apart, they did not in any way affect the
constitutionality of those celebrations.
I now come to the argument of learned counsel for the plaintiff that the celebration was inconsistent with the
spirit and the letter of the Constitution, 1992 since it would send wrong signals and would remind
Ghanaians of the atrocities, maiming, humiliating and other dehumanising acts suffered by Ghanaians on
31 December 1981.
A Constitution is a living piece of legislation and its provisions are vital living principles; and the spirit of
every Constitution must be collected from the Constitution itself. So is it the spirit of the Constitution, 1992
that any celebration and, for that matter, anything which reminds or has the tendency to remind Ghanaians
of a coup d'etat, or of violent overthrow of a lawfully constituted government is unconstitutional? The answer
to me is "no."
The Constitution, 1992 itself has made Decrees passed by the National Liberation Council, National
Redemption Council, Supreme Military Council I, Supreme Military Council II, Armed Forces Revolutionary
Council and Laws made by the Provisional National Defence Council part of the existing law of Ghana. No
law or legislation is passed without referring to the source which is the foundation upon which it bases or
derives its authority to make that law; and it is that source which gives validity to that law. It is for this
reason that NLC Decrees, NRC Decrees, Decrees of SMC 1, SMC 11 and AFRC and PNDC Laws all
contained Proclamations which revealed the sources of authority of those Decrees and Laws.
Thus the Proclamations of 24 February 1966, 13 January 1972 and 31 December 1981 revealed that on
those days the governments in authority [p.106] were ousted from power. For example, the Proclamation of
1981 clearly brings out this fact. It reads:
"Provisional National Defence Council (Establishment) Proclamation 1981 . . .
AND WHEREAS on Thursday, the 31st day of December, 1981, it thus became necessary for the
Provisional National Defence Council to assume the reins of Government of the Republic of Ghana in the

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interest of the sovereign people of Ghana . . .
Now, THEREFORE by virtue of the said assumption of the Government of Ghana this Proclamation is made
with effect from the 31st day of December, 1981. . ."
These Decrees and Laws are referred to day in and day out in our courts and at any time such Decrees and
Laws (each of which refers to a Proclamation and the date of the coup d'etat) are cited, they always remind
us of those violent deposition of those governments.
If therefore it was the intention of the framers of the Constitution, 1992 that celebrations and things which
remind the people of Ghana of coups should be regarded as being inconsistent with the spirit and the letter
of the Constitution, 1992, these Decrees and Laws would have been excluded entirely from the
Constitution, 1992 and they would not have been made part of the existing law of Ghana by article 11(4) of
If all these Decrees and Laws which are in permanent form and are therefore constantly reminding us of
coups and their consequences have been given a place of pride in the Constitution, 1992 by its framers,
because they did not consider them as being against the spirit and the letter of the Constitution, 1992, how
come that a day's celebration and a public holiday which also remind Ghanaians of a coup (in the same
way as the Decrees and Laws do) should be regarded as being against the spirit and the letter of the
Constitution, 1992 and therefore unconstitutional?
This is tantamount to overstretching the doctrine of the spirit of the Constitution to unreasonable limit and
absurdity. For if this contention that celebrations or acts and conduct which remind Ghanaians of
humiliations and atrocities meted out to them during coups are all inconsistent with the spirit and the letter
of the Constitution, 1992 is accepted as correct, then it is likely to create ripples which may in the long run
generate unforeseen confusion.
If that kind of construction is correct then, for example, the act of [p.107] naming the nation's airport after
one of the architects of the coup of 24 February 1966 which toppled the Nkrumah regime, and the act of
raising a monument with public funds to the memory of that coup leader, edifices which are conspicuously
and constantly reminding Ghanaians of the violent overthrow of the Nkrumah regime, could also be
regarded as inconsistent with the spirit and the letter of the Constitution, 1992. For these things could "send
wrong signals", if I may again borrow the expression of learned counsel for the plaintiff.
It was also argued that the French Revolution should not be compared to what took place in Ghana on 31
December 1981; and the yardstick of that revolution should not be used to measure the happenings in
Ghana. I found it rather difficult to accept that argument. For example, precedents of courts of other
countries are cited before our courts to show how a similar situation which had occurred in another country
was dealt with. Even though they are only persuasive, they are cited as a guide when dealing with similar
cases. Thus the courts in Ghana do not refuse to look at decisions being handed down by courts of repute
in other parts of the world. It is in this vein that it would not be wise for a country, like Ghana, not to take
account of what took place in other countries; for we cannot escape from the repercussions of such events.
For any country, temporary isolation from a series of large international events is possible. But isolation
from their consequences is not possible.
The French Revolution could not therefore be dismissed as irrelevant and as not being worthy of
comparison with the revolution of 31 December 1981. The underlying principle involved in the French
Revolution of 14 July 1789 and that of the uprising of 31 December 1981 is the the same. For all of them
involved the overthrow of governments in power by force of arms; and those who took part in them felt that
those governments had betrayed the confidence which the people had reposed in them.
The French Revolution started with the destruction of the Bastille by an armed mob of Parisians on 14 July
1789. The Bastille had come to be used as a state prison for holding persons who were believed to be
dangerous to the State, even though they had not been convicted of any crime. So as was stated "the
gloomy old fortress had become a symbol of tyranny of the French Kings" and its fall was thought of as a
great victory for liberty. So it was an uprising of the common men against a tyrannical monarchy; and the
king, the queen and hundreds of nobles and many innocent people were "guillotined" and the people rallied
around the motto "Liberty, Equality, Fraternity": see Britanica Junior [p.108] Encyclopaedia, Vol 3, pp 101-
102 and Britanica Junior Encyclopaedia, Vol 6, pp 213-214.
Despite the slaughter of the king, the queen and many innocent people, the French people do not consider
the celebration of 14 July as unconstitutional. The French Government spends public funds to celebrate this

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historic event even though the celebration reminds them of the atrocities, the killings and murder of some
innocent people during the revolution which started on 14 July 1789.
It must he pointed out that learned counsel for the defendant referred to the French Revolution, as I
understand him, in order to bring home the point that 14 July is celebrated by the French people, people
from a western country that is committed to democracy and also have a written Constitution. They celebrate
the day as their national day and as a public holiday with pomp and pride; and they do not consider the
celebration of 14 July as unconstitutional even though that day, as I have stated, reminds them of the
atrocities that took place on 14 July 1789.
The mere fact that a celebration reminds people of a violent overthrow of a government and its aftermath,
does not in itself make that celebration unconstitutional. The celebration of the 31 December revolution was
intended to mark a historic event which occurred in Ghana on 31 December 1981. The celebration was
lawful. A lawful act or conduct does not become unlawful or unconstitutional simply because it is not liked
or fancied by the plaintiff.
It is possible to interpret the majority judgment to mean that the celebration of the 31 December revolution,
which was to take place on 31 December 1993, was unconstitutional because it was being organised as a
public affair with public funds and the day was to be made a public holiday. But it would not have been
unconstitutional if it was to be celebrated as a private affair financed from private resources and the day had
also not been declared a public holiday.
May I therefore ask, does it mean then, that a celebration which is unconstitutional, because it reminds
people of certain atrocities, would cease to be unconstitutional once the celebration is organised as a
private affair and the day of the celebration is not made a public holiday? Would such a celebration
organised as a private affair still not have reminded the people of the happenings of the coup day, and of
the dehumanising of people all the same?
I should also remark that some of the matters raised by the plaintiff in its statement of case and were denied
by the defendant in his statement of case, and indeed, matters raised in the oral arguments of learned
[p.109] counsel for the plaintiff required proof. A litigant who asserts that a conduct is unconstitutional,
generally has the onus of showing that it is. In this particular case, where the contentions had been that the
people of this country did not want 31 December to be made a public holiday, because the day reminded
them of atrocities that took place on 31 December 1981, it was incumbent on the plaintiff to have produced
evidence which could have formed the foundation of those contentions. This is especially so, where there is
not a single provision in the Constitution, 1992 which states that 31 December should not be celebrated in
the way as it was advertised.
The court was not even furnished with evidence as to opinion polls, scientifically conducted, as is done in
other countries, to show the percentage of those who liked and those who did not like the celebration. The
views of the plaintiff about the celebration could not, with due respect, represent the views of the whole
adult population of this country. Obtaining views from a negligible number of elite and few people around
the cities and the urban areas, leaving out those in the rural areas who form the bulk of the population,
could not provide the answer. This court was therefore eloquently pressed upon to accept a situation which
called for proof but of which proof was lacking.
I will now deal with PNDCL 220. Public holidays have been the subject of diverse statutes. Indeed, many of
the words used in PNDCL 220 seemed to have been borrowed from the language of previous enactments
on the subject. I will therefore trace the ancestry of PNDCL 220 to find out exactly the attitude of previous
governments as regards holidays and how they had viewed or treated them. I do so mindful of the principle
which was laid down by Lord Mansfield in R v Loxdale (1758) 1 Burr 445, namely:
"Where there are different statutes in pari materia though made at different times, or even expired, and not
referring to each other, they shall be taken and construed together, as one system, and as explanatory of
each other."
This principle is still sound and it was applied in the case of Smith v Brown (1871) LR 6 QB 729. It was
also approved by the English Court of Appeal in Goldsmiths' Co v Wyatt [1907] 1 KB 95, CA.
Starting with the Public Holidays Act, 1960 (Act 23) which was assented to by President Nkrumah 15
December 1960, its sections 1 and 2(2) provided as follows:
[p.110]

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"1.(1).The days specified in the Schedule to this Act are hereby declared to be public holidays, and subject
to the provisions of this Act, shall in every year be kept and observed as public holidays throughout Ghana .
..
2.(2). Any person who contravenes the provisions of sub-section (1) of this section shall be guilty of an
offence and shall, on summary conviction be liable to a fine not exceeding ten pounds."
(The emphasis is mine.) After the overthrow of the Nkrumah regime by the National Liberation Council on
24 February 1966, the Schedule to Act 23 was amended by the National liberation Council by the Public
Holidays Instrument, 1966 (LI 509) which, among other things, stated that:
"1. The Schedule to the Public Holidays Act, 1960 (Act 23) is hereby amended by the substitution for all the
days specified therein of the following days—
New Year's Day (1st January)
Liberation Day (24th February)
Independence Day (6th March)
Good Friday
Holy Saturday
Easter Monday
The first Monday in August
Christmas Day (25th December)
Boxing Day (26th December)."
(The emphasis is mine)
It is remarkable to note that during the era of the National Liberation Council, the latter decided to do away
with 1 July as a public holiday, even though it was the day on which Ghana became the First Republic. The
Busia Government, by the Public Holidays Instrument, 1970 (LI 649) added 1 October as a public—holiday
to be celebrated as the Second Republic Day. The Busia Government continued to exclude 1 July—
Republic Day—from the list of public Holidays, but continued to celebrate 24 February as a public holiday
under the heading "Liberation Day." But as I stated earlier on, the Busia Government actually celebrated it
as a "Revolution Day."
The Daily Graphic of Tuesday, 24 February 1970, No 6033, carried the speech of Dr Busia on that
celebration. I will however quote a few extracts from the "Graphic View" that day:
[p.111]
"Salute to the gallant men.
Today is the fourth anniversary of the February 24, 1966 revolution. Exactly four years ago today a grateful
and surprised Ghana woke up to see the end of tyranny and injustice.
As the oppressive CPP regime was uprooted, a firm Foundation for freedom and fair-play was laid in its
place...
As Ghanaians celebrate the historic event today, there is no better monument we can erect in memory of
the fallen gallant men than to uphold, at all times the aims of the revolution.
We must also pay a tribute to the living, the gallant NLC men, who ably did the spade work for the
democratic rule we have now. . .
However we should accept the fact that freedom has its limits and that the elected government has a
national duty to check its abuses.
Indeed Ghana's record in the last four years has vindicated the revolutionary action the army and police
took...
We can only hope that Ghanaians will guard jealously the golden opportunity which now prevails and
resolve to ensure that the fifth anniversary of the coup will see us counting yet more achievements in an

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atmosphere of peace and unity."
(The emphasis is mine.) The same Daily Graphic, on Wednesday, 25 February 1970, No 6034, had the
following caption, "Ghana observes Anniversary of the Revolution"; and under it the following article
appeared:
"'IT'S a good holiday. No accidents today,' a soldier made this remark at the Military Hospital, Accra,
yesterday, when asked about reported cases of motor accidents.
The soldier's remark really reflected the general atmosphere of the celebration of the fourth anniversary of
the 24th February Revolution.
A general calm and peace pervaded the capital, except that the scorching and bright sunshine was
uncompromising. The capital was gaily decorated with flags and bunting ...
Holiday-makers as usual flocked the beaches, the resorts, and bars. The Labadi Pleasure Beach, the
popular teen-age and 'Afro' recreational spot, was right in the centre of the attractions with its '24th
February Special' featuring a variety of games, swimming, [p.112] dancing, dining and wining.
At the official level, the Presidential Commission played host to invited distinguished guests at a cocktail
party at the Castle in the evening.
Similar receptions were held in the regions by Regional Chief Executives."
(The emphasis is mine.) May I observe that all the above-mentioned newspapers, like textbooks are
available in public libraries in this country. The publications in them, like all newspapers, were made to the
whole world and this court is entitled to take judicial notice of those publications.
However, after the overthrow of the Busia regime on 13 January 1972, the new regime, the National
Redemption Council, by the Public Holidays Decree, 1972 (NRCD 18) expunged 24 February from the
Schedule of holidays and substituted 13 January to be celebrated as National Redemption Day. But on 3
April 1974, the government of the National Redemption Council by the Public Holidays (Amendment) (No 2)
Decree, 1974 (NRCD 253) restored 1 July (the First Republic Day) as a public holidays. About ten months
later in February 1973, by the Public Holidays (Amendment) Decree, 1973 (NRCD 154), the NRC
government also restored 24 February as a Liberation Day to be celebrated as a public holiday.
Then after about a year, the NRC government on 20 February 1974 by the Public Holidays (Amendment)
Decree, 1974 (NRCD 244) deleted 24 February from the public holidays. The National Redemption Council
government by NRCD 262 made further amendments by incorporating all the previous amendments it had
made since it came to power. In NRCD 262 by its section 5(1) the penalty for failing to observe a public
holiday was changed to a fine not exceeding ¢1,000 or to imprisonment for a term not exceeding six
months or both, if summarily convicted.
NRCD 262 remained in force from 1974 and throughout the period the Limann government was in power,
until it was repealed in 1989 by the present PNDCL 220. That is, about four years ago. PNDCL 220 has the
same features as all those previous legislations on public holidays. Only the schedules to the various
legislations were amended. But the penalties exacted for not observing a public holiday remained during
the regimes of Nkrumah, NLC, Busia and Limann. Only the amount of fines were amended from time to
time. It could therefore be seen that PNDCL 220 is a successor to the various legislations on public
holidays.
[p.113]
Furthermore, it cannot be overemphasised that the Liberation Day—as 24 February 1966 was called—
could be really a liberation day for some people in Ghana. But certainly not for all the people in Ghana.
Because while that day brought joy to some, it brought humiliation and sorrow to others from which some
may not have recovered up to date. Judicial notice could be taken of the notorious facts that there was
destruction of human life and property on that day, and 24 February 1966 could easily be said to be one of
the bloody coups this country has witnessed.
Men in the security services were killed. Innocent civilians while going to work at the airport in the early
hours of the morning were caught in cross-fire and killed in cold blood in front of the Flagstaff House. These
were all notorious facts; and the aftermath of that coup was that a section of the population was banned
from holding political and public office for ten years: see the Elections and Public Offices Disqualification
Decree, 1969 (NLCD 332).

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Indeed, one can recapture the day of that coup—24 February 1966—by referring to a passage in a book
entitled, The Politics of Political Detention (1971) by Kwame Kesse-Adu. It was first published in 1971. At
page 52 of that book, the author gave a vivid description of his feelings and what he found the situation to
be, following the violent overthrow of the Nkrumah regime, in the following moving words:
"In the midst of a desert of hopelessness, suddenly we found an oasis of hope. This was 24th February
1966. There was a great deal of noise, of cheering and of merry making from outside ... The message
flashed into cell No. 3—my cell. The army had seized power. General Ankrah had assumed office. Afrifa
and Kotoka were the heroes of the coup. . . So we also cheered. This was responded to from outside ...
That night there was evidence. Kofi Baako, Kwaku Boating and some Ministers came in. Kofi Baako was
sent to Dr. Danquah's cell ...
Releases started that evening . . . more and more cabinet Ministers and CPP high ranking officers were
brought in batches . . . The next day, we saw them and I went to greet my old friend Kofi Baako ... He
smiled and waived. Then I saw my cousin, Aaron Ofori Atta. I saw Krobo Edusei and most of the Ministers .
..
We left Ussher Fort by exchanging our cells with members of the CPP government ...
I did not know whether to weep or to laugh."
[p.114]
So 24 February 1966, as I said, was a day of joy for those who gained their freedom; and it was a day of
sorrow for the relatives of those who were killed in cold blood and their properties destroyed, and also for
those who were arrested that day and incarcerated in Ussher Fort and in other prisons in the country, when
they had not been tried and convicted. Even though, according to the passage quoted above, one of those
persons "simled and waived" when he entered Ussher Fort, it should be remembered that there are men
who could smile bravely before the world in the face of the deepest personal sorrow. So while others gained
their liberty, others lost it and, to use again the expression of learned counsel for the plaintiff, they were
"dehumanised and humiliated"; and some even later lost their right to take part in the politics of their country
for ten years.
All these are historical facts from which we cannot run away. As an eminent Ghanaian professor of
sociology of blessed memory once wrote:
"History is sometimes troublesome, historical facts are often embarrassing in West Africa . . . The view-
points and attitudes which people adopt towards their political, economic or social questions are influenced
by their historical experiences."
So why should Ghana forget her recent past and refuse to celebrate her historic events?
Having reviewed and considered all the past legislations on public holidays since 1960 up to date, and
having also reviewed events of the first ever coup we had in this country, it is quite plain that the
anniversaries of the coup days had always been celebrated by successive governments since 1906. In my
view, all those successive governments, both civilian and military, marked those historic occasions in the life
of this country by making those days—24 February, 13 January and 31, December public holidays as a
matter of policy. Regrettably, the majority decision could be described as "a massive repudiation of the
experience of our recent past." But no matter the attempt to bury the past, historians will unearth the past
and pull together "the pieces ... into a coherent whole."
Be that as it may, from the history of public holidays as I have tried to set out supra, it must be clear to any
unbiased mind that the choosing or the selecting of a day to be designated as a public holiday has always
been a political decision for the executive and the legislature. The Sovereignty of Ghana resides in the
people as provided in article 1(1) of the Constitution, 1992. So it is for the people of Ghana, acting through
[p.115] their elected representatives in Parliament who, in conjunction with the executive, ought to decide
which days out of the 365 days in a year should be designated public holidays and not for the judiciary to
under take that exercise.
It rests with the people of Ghana, in whom full and absolute power resides, to instruct their representatives
to have a look at the number of public holidays in the year and to make adjustment if necessary. Decisions
which are to be made, depending on political considerations and influence, should be the responsibility of
the executive and Parliament. Thus, whether a particular day in a year should be celebrated as a public
holiday by fan-fare and merry-making or not is a policy decision for the executive and the legislature to

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make. With the greatest respect, the majority decision in favour of the declarations sought in the writ was
plainly an undue and unnecessary interference in the functions of the legislature and the executive.
This court, in my view, should always maintain a fine balance between the need to protect constitutional
rights and liberties on one hand, and the danger of too great an interference in the affairs of the executive
and the legislative branches of the government on the other.
At the Third Conference of Chief Justices of Commonwealth Africa held in April 1990 in Livingstone,
Zambia (of which I happened to be a participant), the Chief Justice of Zimbabwe, the Hon Mr Justice
Dumbustshena (now retired) in the course of reading a paper on the topic—"Have the African Judiciaries
Satisfied the Expectations of their Countries"—made a very pertinent statement which I here quote
extensively:
"Most of the difficulties confronting the Judiciaries of Africa arise from failure to appreciate the relative
functions of each branch of government. If each branch of the government appreciated its functions and
those of other branches, there would be a desire to co-operate. The Executive would comply with the
orders and judgments of the courts. The Legislature would not enact laws restricting the functions of the
Judiciary. And Judges would not interfere with the legislative functions of Parliament, that is, if we do not
indulge in fanciful interpretations to words which are clear and unambiguous … The slightest hint of
interference by the Judiciary in the administrative functions of the Executive invites its wrath. Keep away
from them . . . We must always remember that good governance includes a fair justice system. If we judges
deliberately prop up, through our judgments and decisions, bad [p.115] government, it cannot be said that
our Judiciaries have satisfied the expectations of our countries . . .”
The next query raised about the intended celebration on 31 December 1993 was that it was discriminatory.
It was submitted by learned counsel for the plaintiff that the intended celebration of the 31 December
revolution on 31 December 1993 was discriminatory; for why should the defendant pick on only 31
December when there had been other military take-overs which were not being celebrated and that there
was no justification to single out 31 December; and if the 24 February 1966 coup and the 13 January 1972
coup were not worth celebrating, then the 31 December Revolution was also not worth celebrating.
I did not share that view. 31 December had been designated a public holiday by PNDCL 220 to be
observed as such throughout Ghana. PNDCL 220 did not create 31 December a public holiday in favour
only of the supporters of the 31 December coup, or in favour of a privileged few, or in favour of only a
section of the public. Thus, the fact that the plaintiff and some other persons did not take kindly to it, and did
not see the wisdom in celebrating the day as a public holiday, did not make it discriminatory and therefore
unconstitutional.
There was even no evidence whatsoever that the majority of the population also shared the same view as
the plaintiff's. As I have already pointed out elsewhere in this judgment, it is the people of Ghana, acting
through their elected representatives in Parliament, who can decide on which days shall be public holidays.
That is, the executive and the legislature as the representatives of the people have the mandate of the
people of Ghana to take that political decision.
If this argument of the plaintiff was to be carried to its logical conclusion, then the public holidays which
have been created all these years from even the colonial era up to date, to the advantage and benefit of
Christians in this country could also be declared unconstitutional. Christmas Day (25 December), Good
Friday and Easter Monday, for example, are days to mark the anniversaries of the day Christ was born, was
crucified and arose from the dead. These days have no significance to the Muslims, Jews, heathens,
unbelievers and some other religious sects in the country.
Yet all these persons are compelled to observe those days as public holidays. They do not go to work or
open their shops on those days under the pain of criminal punishment if successfully prosecuted and
[p.117] convicted. Ghana has not been declared a Christian country by any law. At least, I have not come
across any such law; and even if there was such a law, it would be unconstitutional in view of article 21 (1)
(c) of the Constitution, 1992 which provides that:
“21. All persons shall have the right to— . . .
(c) freedom to practice any religion and to manifest such practice."
The Constitution, 1992 recognises variety of religious practices. Yet, non-Christians are compelled to
observe those days as public holidays, and this could amount to giving "different treatment" to Christians,

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"attributable only or mainly to religion or creed" while subjecting non-Christians to restrictions.
Article 17(2) of the Constitution, 1992 states:
"(2) A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion,
creed or social or economic status.
Then article 17(3) of the Constitution, 1992 provides that:
"(3) For the purposes of this article, 'discriminate' means to give different treatment to different persons
attributable only or mainly to their respective descriptions by race, . . . religion or creed, whereby persons of
one description are subjected to disabilities or restrictions to which persons of another description are not
made subject or are granted privileges or advantages which are not granted to persons of another
description."
If therefore public holidays like 25 December, Good Friday and Easter Monday were not considered
discriminatory, then it sounded rather hypocritical to single out 31 December out of the Schedule and
declare it discriminatory and therefore unconstitutional.
It is really a pity, that while in the process of construing PNDCL 220 "with modifications, adaptations,
qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution",
the majority of this court could come to the conclusion that 31 December should rather be expunged from
the Schedule to PNDCL 220 as a public holiday. Thus, sacrificing 31 December for those other public
holidays just mentioned, which are obviously and manifestly discriminatory [p.118] within the meaning of the
provisions of article 17 of the Constitution, 1992.
I cannot help but quote an observation which was once made by Benjamin Nathan Cardozo, Justice of the
United States Supreme Court from 1932 to 1938. The learned judge said:
"Judges march at times to pitiless conclusion under the prod of remorseless logic which is supposed to
leave them no alternative. They deplore the sacrificial rite. They perform it nonetheless, with averted gaze,
convinced as they plunge the knife, that they obey the bidding of their office. The victim is offered up to the
gods of jurisprudence on the alter of regularity."
Non-Christians have so far not found it necessary to complain. This may be because they probably agree
with the views put forward by the Right Reverend Kwesi Dickson (now President of the Ghana Methodist
Conference) in his book entitled: The Story of the Early Church (1976, London). At page 11 of that book the
reverend stated: "In this world of a variety of religious practices, there was the tendency to believe that
despite this diversity there was an underlying unity that all religions were at the root the same." (The
emphasis is mine.)
Finally, may I remark that not every enactment passed by the legislature will be liked by each and every one
of the over 15 million people in this country. Some may hail it, others may not. Some may even be
indifferent. But that is a far-cry from saying that that piece of legislation is discriminatory.
On the spending of public funds, it was submitted by learned counsel for the plaintiff that the preparations
for the celebration by way of marching, music extravaganza and other activities would involve expenditure
from public funds. Learned counsel referred to paragraph (1) of the statement of the defendant's case and
submitted that in spite of the fact that it was covered by the Appropriation (1993 Financial Year) Law, 1993
(PNDCL 314), it was still unconstitutional and therefore null and void, so far as the funds were being
committed to a celebration which was itself unconstitutional.
Learned counsel for the defendant contended that the public funds which had been earmarked for the
celebration were authorised under PNDCL 314 which came into effect on 1 January 1993; and since
Parliament came into existence the latter, through its finance committee, had had a look at it and never
found it necessary to make any alterations. Thus, contended learned counsel, the said PNDCL 314 which
had [p.119] authorised the expenditure for the preparations for the celebration which was to take place on
31 December 1993 was consistent with the provisions of the Constitution, 1992 and that PNDCL 314 was
indeed saved by the provisions of section 18 (1) (2) of the transitional provisions of the Constitution, 1992.
Learned counsel therefore submitted that it could not be argued that the expenditure which had in fact been
authorised by law was unconstitutional.

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Having already held or come to the conclusion that the celebration did not contravene any provision of the
Constitution, 1992, neither was it inconsistent with the spirit and letter of the said Constitution, 1992, the
defendant could expend moneys towards the preparations for the said celebration out of public funds,
provided the said expenses were approved by Parliament. The plaintiff did not offer any evidence to show
that the expenditure in question had not been catered for in the budget of 1993, that is by PNDCL 314,
which came into operation on 1 January, 1993.
In other words, the contention that the use of public funds for the celebration was unconstitutional was not
based on any concrete facts. It was based on speculation. This court does not lightly declare a conduct or a
legislation unconstitutional on mere speculation. PNDCL 314 had been examined by Parliament (through its
finance committee) since Parliament came into existence; and the latter did not effect any changes to it.
PNDCL 314 therefore formed part of the existing law of Ghana as provided in article 11 (4) of the
Constitution, 1992. Again, section 19 of the transitional provisions of the Constitution, 1992 made a special
provision which put the validity of PNDCL 314 beyond doubt. It provides:
"19. Notwithstanding any law to the contrary, the financial estimates in operation for the financial year in
being at the coming into force of this Constitution shall, until provision is otherwise made by Act of
Parliament, continue and shall have full effect."
In the circumstances, I am of the view that the money being spent on the preparations for the celebration on
31 December 1993 was duly authorised by law and therefore the expenditure was constitutional.
At best, the submissions of learned counsel for the plaintiff on the expenditure of public funds in that
manner could be said to have been directed towards the morality of making those expenses rather than the
legality of the expenditure. But this court must not stretch its morality to an extent that would amount to a
reflection on the legislature and the [p.120] executive. However, the truth of the matter was that the
expenditure was sanctioned by law and which law was not inconsistent with any of the provisions of the
Constitution, 1992. This court therefore had no business to interfere in the matter.
For the above reasons, I came to the conclusion that all the grounds, upon which the declarations were
sought by the plaintiff, had no legal justification whatsoever, and were in fact baseless.
I therefore had no alternative but to dissent from the majority decision that was delivered on 29 December
1993.
JUDGMENT OF AMUA-SEKYI JSC.
In England the courts have no power to question the validity of any law passed by Parliament, their function
being only that of interpreting the law in order to ensure that the wishes of Parliament are carried out.
There, it is all too true as stated by Megarry VC in Manuel v Attorney-General [1983] 1 Ch 77 at 89, CA that
the courts "recognise Parliament as being omnipotent in all save the power to destroy its own
omnipotence." When, therefore, the courts question laws made by subordinate authorities, they do so in the
name of Parliament and on its behalf. Thus, even the power to question subordinate or subsidiary
legislation may be taken away by statute. This is in line with the concept of the supremacy of Parliament
which means that the power of Parliament to make laws is, in the terminology adopted by Lord Birkenhead
in McCawley v R [1920] AC 691 at 704, PC uncontrolled. Therefore, if Parliament were to pass a law
making the birthday of the queen's poodle a public holiday, it would rank with one giving Englishmen the
right to freedom of speech, assembly and association, and either may be repealed or amended in the same
way. There is in England no fundamental or basic law by which the validity of other laws are to be judged.
On the attainment of independence, Ghana was governed under the Ghana (Constitution) Order-in-Council,
1957, section 31(1) of which stated that "it shall be lawful for Parliament to make laws for the peace, order
and good government of Ghana." These words were interpreted in Lardan v Attorney-General (No 2) (1957)
3 WALR 114 to mean that, as in England, the Parliament of Ghana had uncontrolled power to make laws.
The Constitution, 1960 put the matter beyond argument when, after much circumlocution, it stated bluntly in
article 20 (6) that "the power of Parliament to make laws shall be under no limitation whatsoever." The result
was what the preamble to the Constitution, 1969 called "a regime of tyranny."
[p.121]
Before 1960, Parliament passed the Deportation (Othman Lardan and Amadu Baba) Act, 1957 to bring
court proceedings challenging his deportation order to an end; the Deportation (Indemnity) Act, 1958 to bar
the courts from punishing two officers of the executive for their contempt in carrying out a deportation order
at a time when there were proceedings in court challenging its validity; the Preventive Detention Act, 1958
for the arrest and detention of persons without trial; and the Kumasi Municipal Council (Validation of
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Powers) Act, 1959 to bring an action for damages for the unlawful demolition of premises to an end. After
1960, the executive, acting under powers conferred by Parliament, set aside a verdict of acquittal returned
in favour of certain persons charged with treason and put the unfortunate prisoners back on trial.
During the years 1966-69, 1972-79 and 1982-92 when the country was under extra-constitutional rule, the
power of the law-making body to make laws was uncontrolled. Draconian laws were passed for the
detention of persons without trial, for the seizure of property without compensation and to curtail access to
the courts. Examples are the Protective Custody Decree, 1966 (NLCD 2), the Preventive Custody Decree,
1972 (NRCD 2), the Preventive Custody Law, 1982 (PNDCL 4), the confiscations under the Transfer of
Shares and Other Proprietary Interests (Dakmak Group of Companies) Decree, 1979 (AFRCD 6), the
Transfer of Shares and Other Proprietary Interests (Tata Brewery Limited) Decree, 1979 (AFRCD 9), the
Forfeiture of Assets Decree, 1979 (AFRCD 10), the Transfer of Shares and Other Proprietary Interests
(Specified Companies) Decree, 1979 (AFRCD 15), the Transfer of Shares and Other Proprietary Interests
(A and B Industries and Others) Decree, 1979 (AFRCD 31), the Transfer of Shares and Other Proprietary
Interests (Babylos Co Ltd and Others) Decree, 1979 (AFRCD 38), the Transfer of Shares and Other
Proprietary Interests (Metal Construction Company Ltd and Plastic Wares Ltd) Decree, 1979 (AFRCD 39),
the Forfeiture of Assets (Noe Drevici and Others) Decree, 1979 (AFRCD 52), the Transfer of Shares and
Other Proprietary Interests (Fattal Group of Companies) Decree, 1979 (AFRCD 55), the Transfer of Shares
and Merger (Kowus Motors, Kaasbohrer Ghana Limited and Ghana Assembly Plant) Decree, 1979 (AFRC
60), the Forfeiture of Assets and Transfer of Shares and Other Proprietary Interests (Unipress Limited) Law,
1982 (PNDCL 3), the Forfeiture of Assets (Amadu Duri) Law, 1982 (PNDCL 9), the Forfeiture of Assets and
Transfer of Shares and Other Proprietary Interests (Subin Timbers Company Limited and Central Logging &
Sawmills Limited (PNDCL 31), the Forfeiture of [p.122] Shares of Menleo Enterprise Limited, etc in Bibiani
Wood Complex Limited and Merger of Bibiani Wood Complex Limited and Bibiani Metal Complex Limited
Law, 1984 (PNDCL 76), the Forfeiture of Assests (Evangeline Nana Amoako-Pomaa) Law, 1986 (PNDCL
164), the Confiscated Assets (Removal of Doubts) Law, 1993 (PNDCL 325), the Indemnity Decree, 1973
(NRCD 227), the Indemnity Decree, 1979 (AFRCD 22), the Indemnity Law, 1993 (PNDCL 313), the
Subversion (Amendment) (No 2) Decree, 1973 (NRCD 191), the Ghana Cocoa Board Re-organisation and
Indemnity Law, 1985 (PNDCL 125), the Sefwi-Wiawso Settler Farms (Abatement of Proceedings) Law,
1987 (PNDCL 173) and the Chieftaincy (Specified Areas) (Prohibition and Abatement of Chieftaincy
Proceedings) Law, 1989 (PNDCL 212) and the Chieftaincy (Specified Areas) (Prohibition and Abatement of
Chieftaincy Proceedings) (Amendment) Law, 1992 (PNDCL 293).
The only periods in our short history that we have lived under governments with controlled legislative
powers have been the years 1969-72, 1979-81 and since 1993. Articles 1(2), 3(1) and 3(2) of the
Constitutions, 1969. 1979 and 1992 respectively are in the same terms. They make the Constitution the
supreme law of the land and declare that any law found to be inconsistent with any provision of the
Constitution shall be void; they declare that Parliament shall have no power to enact a law to establish a so-
called one-party state; and they make unlawful any activity of any person or group of persons which
suppresses or seeks to suppress the lawful political activity of others. There are also in articles 43 and 89 of
the Constitution, 1979, and articles 56 and 107 of the Constitution, 1992, provisions denying to Parliament
the power to force down our throats any religious or political ideology or to alter the decision or judgment of
any court, as well as placing limits on its power to pass retroactive laws.
In the Constitution, 1992, article 58(1) which vests the executive authority in the President requires him to
exercise it in accordance with the provisions of the Constitution; article 93 (2) which vests the legislative
authority in Parliament requires that the power be exercised in accordance with the provisions of the
Constitution; and article 125 (3) which vests the judicial power in the judiciary is strengthened by clause 1
which makes the judiciary independent and subject only to the Constitution, 1992. The situation in which we
find ourselves is, therefore, entirely different from that of our predecessors when the Constitutions, 1957
and 1960 were in force, or when the country was under dictatorial regimes. Our inspiration should come
from the [p.123] decisiveness of Republic v Special Tribunal; Ex parte Forson [1980] GLR 529 and Republic
v Director of Prisons; Ex parte Shackleford [1981] GLR 554, rather than the prevarication of Republic v
Director-General of Prisons; Ex parte Nti [1980] GLR 527, CA, and Republic v. Special Tribunal; Ex parte
Akosah [1980] GLR 592, CA.
In Ex parte Nti (supra), the High Court overruled an objection to its exercise of jurisdiction and granted bail
pending the hearing of an application for an order of habeas corpus. The Court of Appeal set these
decisions aside and referred the case to the Supreme Court on the ground that the issue of jurisdiction
raised before the High Court involved the interpretation of the Constitution, 1979. In Ex parte Akosah
(supra) the Court of Appeal took the same position, set aside a judgment of the High Court and referred the
case to the Supreme Court to determine whether the High Court had jurisdiction to deal with the matter

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before it. In so doing, the Court of Appeal erred in two respects: first, by the decision of the Supreme Court
in Republic v Maikankan [1971] 2 GLR 473, SC the High Court was not bound to refer the matter to the
Supreme Court; and secondly, when they referred the issue of jurisdiction to the Supreme Court they
ceased to have power either to allow or dismiss the appeal. The law required that they await the decision of
the Supreme Court and act in accordance with it. This was the plain demand of article 118 (2) of the
Constitution, 1979, which was a reproduction of article 106 (2) of the Constitution, 1969, and is now article
130 (2) of the Constitution, 1992. Small wonder that Taylor J (as he then was) in Ex parte Forson (supra)
and Cecilia Koranteng-Addow J in Ex parte Shackleford (supra) refused to be bound. Their example should
teach us to resolve to look issues straight in the face. Any waffling on our part at this point in our history
would be inexcusable because we now have a fundamental or basic law which is superior to all other laws
and by which the validity of all other laws are to be judged. We have the duty and the right and the power to
ensure that the provisions of the Constitution, 1992 are observed.
It was the case for the defendant that we have no jurisdiction to entertain the action now before us. Counsel
relied on section 34 (3) of the transitional provisions of the Constitution, 1992 which states:
"(3) For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or
purported to have been taken by the Provisional National Defence Council . . . or a member of the
Provisional National Defence Council . . . in the name of . . . the Provisional National Defence Council . . .
shall be questioned in any proceedings whatsoever and, accordingly, it shall [p.124] not be lawful for any
court or other tribunal to make any order or grant any remedy or relief in respect of any such act."
With this is usually read article 299 of the Constitution, 1992 which provides:
"299. The transitional provisions specified in the First Schedule to this Constitution shall have effect
notwithstanding anything to the contrary in this Constitution."
Section 34 (3) of the transitional provisions of the Constitution, 1992 is a reproduction of section 15 (2) of
the transitional provisions of the Constitution, 1979, and article 299 of the Constitution, 1992 reproduces
article 217 of the Constitution, 1979.
The meaning and effect of section 15 (2) of the transitional provisions of the Constitution, 1979 were
considered by this court in Kwakye v Attorney-General [1981] GLR 9, SC when the former Inspector-
General of Police sought to set aside his alleged trial and conviction by a shadowy group known then as the
Armed Forces Revolutionary Council Special Court. When, relying on section 15 (2), the defendant raised
an objection to the exercise of jurisdiction by the court, the court said per Apaloo CJ at 14:
"This subsection is very widely couched but it seems to us that as the plaintiff sought a relief which this
court is prima facie entitled to grant, the defendant who claims that this court's jurisdiction is ousted by this
provision, must provide a factual basis for it. We think the defendant must produce facts which show that
the Armed Forces Revolutionary Council took or purported to have taken judicial action against the plaintiff."
And when, subsequently, the Attorney-General adduced evidence to show that on an unspecified date,
unnamed persons sentenced Kwakye to 25 years' imprisonment, the court, by a majority decision, held that
this was sufficient and dismissed the action for want of jurisdiction. In his judgment in Kwakye v Attorney-
General [1981] GLR 944 at 954 and 960-961, SC Apaloo CJ said:
"The Attorney-General has since filed a statement of his case and produced both oral and documentary
evidence with a view to showing that judicial action or purported judicial action within the true intendment of
section 15(2) has been taken against the plaintiff and that this court is constitutionally enjoined to decline
[p.125] jurisdiction. Accordingly, the court's task is to decide whether such a factual basis exists for the
application of section 15(2) of the transitional provisions or whether the plaintiff has made out his
entitlement to the reliefs he seeks without requiring us to do what the Constitution, 1979, forbids...
The oral and documentary evidence led by the defendant was not contradicted by any evidence produced
by the plaintiff. There is nothing intrinsically improbable about that evidence . . . In those circumstances, the
proper conclusion should be that the Armed Forces Revolutionary Council purported to take judicial action
against the plaintiff.
That being so, section 15 (2) of the transitional provisions, ousts any judicial organ from jurisdiction to
‘make any order or grant any remedy or relief in respect of any such act.' It follows that the declaration
sought by the plaintiff cannot lawfully be granted."
Sowah JSC (as he then was) said at 965-966:

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"Even though I consider the trial, conviction and sentence of the plaintiff were a nullity because the trial
itself did not match up to the criteria set by A.F.R.C.D. 3, s. 5, nonetheless, I hold the view that it was a
purported trial, a fortiori, a 'purported judicial action.'"
Archer JSC (as he then was) said at 982:
"I would therefore hold that although there is no clear and conclusive evidence of a regular judicial action
taken by the A.F.R.C., yet there is unchallenged and uncontradicted evidence of a judicial action purported
to have been taken by the A.F.R.C. against the plaintiff. Accordingly, this court is not at liberty to question
the proceedings in the special court that tried and sentenced the plaintiff in absentia. Under section 15 (2) of
the transitional provisions, it is also not lawful for this court to grant the declaration sought by the plaintiff.
The intention behind sections 15 and 16 of the transitional provisions is to make the executive, legislative
and judicial actions taken or purported to have been taken by the former A.F.R.C. judicial appeal-proof,
judicial review-proof and judicial interference-proof till eternity."
Charles Crabbe JSC said at 1032:
"The issue, then, is not whether the trial of the plaintiff had been held in accordance with the law under
which the special court [p.126] sought to exercise its jurisdiction. The issue is whether what was done looks
like, or has the outward appearance of, a judicial action or could be considered as intended to seem, or
made to appear as a judicial action . . .
I would say, then, that:
(a) the plaintiff was never tried, convicted or sentenced in accordance with the provisions of the Armed
Forces Revolutionary Council (Special Courts) Decree, 1979 (A.F.R.C.D. 3), as amended by Decree 19;
(b) the sentence of 25 years imposed upon the plaintiff is an infringement of his fundamental human rights
because he was not tried in accordance with the law.
But that, having regard to the provisions of section 15(2) and (3) of the transitional provisions to the
Constitution, 1979, I cannot make ‘any order or grant any remedy or relief’ in respect of his purported trial.”
And Adade JSC said at 1038-1039:
"True, certain legal imperatives were ignored, making the trial short of a proper legal trial, even one in
absentia ...
Be that as it may, section 15(2) seeks to protect not only perfect judicial actions, but imperfect ones also . . .
It was a purported trial; judicial action purported to have been taken by the Armed Forces Revolutionary
Council Special Court.
Accordingly, section 15(2) operates to remove the action from the jurisdiction of the court . . .
Section 15(2) of the transitional provisions covers all executive, legislative and judicial actions of the Armed
Forces Revolutionary Council . . . Once an act is admitted or presumed or proved to be that of the A.F.R.C.,
it . . . is bound to fall within this range of governmental activity and will automatically be caught by section
15(2) of the transitional provisions."
Although Anin and Taylor JJSC expressed their dissent, their only quarrel with the decision was that in their
view there had not been even the semblance of a trial. Earlier, they had agreed with the majority that all that
the Attorney-General needed to do to meet the case put up by the plaintiff was to show that there had been
a trial or purported trial. At the end of it all, this court decided that, although the alleged trial and conviction
of Kwakye was a sham and a travesty of justice, it had no [p.127] power to set the conviction aside.
If this decision was right then the present Attorney-General is on strong ground when he contends that
under the correspondingly section 34 (3) of the transitional provisions of the Constitution, 1992 we have no
power to entertain the action now before us. As there is no dispute that the Public Holidays Law, 1989
(PNDCL 220) was enacted by the erstwhile Provisional National Defence Council, the "factual basis" upon
which the submission rests has been admitted. But I hold the view that the majority were wrong and Taylor
JSC right when he protested at 1070:
"In my humble opinion, the function of the Supreme Court in interpreting the Constitution or any statutory
document, is not to construe written law merely for the sake of law; it is to construe the written law in a
manner that vindicates it as an instrument of justice. If therefore a provision in a written law can be
interpreted in one breadth to promote justice and in another to produce injustice, I think the Supreme Court

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is bound to select the interpretation that advances the course of justice unless, in fact, the law does not
need interpretation at all but rather specifically and in terms provide for injustice."
As I shall show presently, this court had power to quash or otherwise set aside the trial and conviction of
Kwakye.
The phrase "[f]or the avoidance of doubt" appearing in section 34 (3) of the transitional provisions of the
Constitution, 1992 is not a formula for sweeping away the human rights provisions of the Constitution, 1992.
It is to be found also in articles 31 (8), 32 (5), 72 (3), 82 (6), 155 (2) and 165 of the Constitution, 1992. Like
the expression, "for the purposes of", which is used in articles 10 (2), 11(3), 17 (3), 19 (21), 28(5), 36(5),
47(4) and (7), 71(3), 94(4), 127(7), 152 (2) and 181(6) of the Constitution, 1992, its object is to explain,
expand or limit the effect of an earlier provision. A fine illustration of the use of such phrases, words and
expressions will be found in article 257 (1), (2) and (3) of the Constitution, 1992 which was taken, word for
word, from article 188 (1), (2) and (3) of the Constitution, 1979. It reads:
“257. (1) All public lands in Ghana shall be vested in the President on behalf of, and in trust for, the people
of Ghana.
(2) For the purposes of this article, and subject to clause (3) of this article, 'public lands' includes any land
which, immediately before the coming into force of this Constitution, was vested in the [p.128] Government
of Ghana on behalf of, and in trust for, the people of Ghana for the public service of Ghana, and any other
land acquired in the public interest, for the purposes of the Government of Ghana before, on or after that
date.
(3) For the avoidance of doubt, it is hereby declared that all lands in the Northern, Upper East and Upper
West Regions of Ghana which immediately before the coming into force of this Constitution were vested in
the Government of Ghana are not public lands within the meaning of clauses (1) and (2) of this article.”
Clause (1) states the law in general terms; clause (2) states what, for the purposes of clause (1), the term
"public lands" includes; and, for the avoidance of doubt, clause (3) states what the term does not include.
With this as a guide, it will be seen that section 34 (3) of the transitional provisions of the Constitution, 1992
does not stand alone, but is referable to subsections (1) and (2). Section 34 (2) grants immunity from suit to
all those who took part in the overthrow of the Limann government; section 34 (1) grants immunity from suit
to members of the Provisional National Defence Council and their appointees for anything done during the
rule of the council; and, for the avoidance of doubt, section 34 (3) states that the indemnity so granted shall
include executive, legislative and judicial actions taken or purporting to have been taken by the council of
their appointees. That is all the meaning that can properly be ascribed to section 34 (1), (2) and (3) of the
transitional provisions of the Constitution, 1992. As the present action is not one for compensation or
damages, or for punishing anyone, for anything, done in the course of overthrowing the Limann
administration, or by the former regime or their appointees during their rule, we are not barred by these
provisions from entertaining this action. If our predecessors in this court had confined section 15 (2) of the
transitional provisions of the Constitution, 1979 to the indemnity granted by section 15(1), as they should,
they would have seen that they had jurisdiction to grant the relief sought by Kwakye.
In the light of the above, counsel's contention that this court has no jurisdiction to entertain the present suit
must be rejected first, because section 34(3) of the transitional provisions does not apply to the facts of this
case. Secondly, section 36(2) of the transitional provisions which does, continues in force only those
enactments which are consistent with the Constitution, 1992. Thirdly, as there is no conflict between the
said section 36(2) and any provision of the Constitution, 1992, article 299 of the Constitution, 1992 does not
apply. Finally, being part of the existing [p.129] law as defined in article 11(4) of the Constitution, 1992,
PNDCL 220 is required by clause 6 of the said article to be construed:
“. . . with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity
with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any
changes effected by this Constitution."
Put simply, this last provision means that the existing law is subject to the Constitution, 1992.
When the Nkrumah regime was overthrown in a coup d'etat on 24 February 1966, the new government
made 24 February a public holiday in place of 21 September, Nkrumah's birthday, and it was celebrated
with pomp and pageantry until democracy was restored in 1969. When the Busia Government was
overthrown in a coup d'etat on 13 January 1972, the new regime declared 13 January of each year a public
holiday. Again, that date ceased to be observed as a public holiday when democracy was restored. What

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we still have with us is 31 December which marks the day the democratically-elected government of Limann
was overthrown.
The frequency with which we overthrow Constitutions and change our laws on public holidays reminds one
of the aftermath of the murder of Julius Caesar in 44 BC when one adventurer after another succeeded in
making himself master of Rome. To perpetuate his memory, each incoming dictator would set up his statue
in public places. Unfortunately, no sooner had he crowned himself than another would-be emperor
appeared on the scene to murder or depose him. In good time, someone had the bright idea that instead of
erecting new statues to the new emperor, the head of the former ruler should be knocked off the statues
and the head of the new emperor put in their place! But for us, it is a serious question whether the law that
compels us to observe 31 December as a public holiday is consistent with the Constitution, 1992.
It was contended on behalf of the defendant that in making the announcement that 31 December 1993 was
to be observed as a public holiday, the government was only giving notice to the public of what the law
required without necessarily compelling anyone to observe it as such. This was by no means the case.
Section 5 of PNDCL 220 imposes penalties, including fines and imprisonment, on those who act in breach
of the Law. In other words, if, on a day declared to be a public holiday, a worker, whether self-employed or
not, who does not come within the exempted categories, goes to his workplace and engages in any labour
for [p.130] profit, he risks being arrested, charged with the commission of an offence and, if found guilty,
fined or imprisoned. The question, therefore, whether that part of the Law dealing with 31 December is
consistent with the Constitution, 1992 is not an academic one, but a very serious issue touching on the right
to work.
It was further contended that the action was incompetent because it asked for a declaration that the
observance of the day as a public holiday is inconsistent with the provisions of the Constitution, 1992
whereas the real complaint concerned the validity of PNDCL 220. The short answer is this. If the
observance of 31 December as a public holiday is inconsistent with the provisions of the Constitution, 1992,
so must the enactment, or, that part thereof, which makes the day a public holiday be inconsistent with the
provisions of the Constitution, 1992. In any case, since this court has power under article 130 to interpret
and enforce the Constitution, 1992, whether the issue is raised before it or before another court, and
whether it arises directly or is incidental to the determination of some other matter, this court is competent to
deal with the complaint now before it and make a pronouncement on the validity or otherwise of that part of
PNDCL 220 which makes the day a public holiday.
A comparison was sought to be made between the celebration of 31 December as a public holiday and the
celebration of 4 July in the United States, and of 14 July in Finance. No doubt the architects of the coups of
24 February and 13 January were also certain that their work would endure. I would urge those who hold
this view to show a little modesty and leave it to future generations to determine their place in history. Let
them remember that Caligula made his horse Consul of Rome, and Nero played the lyre as Rome burned:
they thought they were gods; we know they were not.
It was also said that the issue is a political one and that the plaintiff ought to have its complaint to
Parliament. Perhaps, if it had been represented in Parliament it might have sought an amendment or repeal
of the offending legislation. However, there was nothing to stop it making a legal issue of it and coming to
this court for redress. Parliament now has no uncontrolled right to pass laws on public holidays, any more
than it has to declare a “one-party state, or make a party leader President for life or crown him emperor. As
the fundamental or basic law the Constitution, 1992 controls all legislation and determines their validity. It is
for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful
bounds.
[p.131]
Article 3(3) of the Constitution, 1992 makes it the offence of high treason for any person to suspend,
overthrow or abrogate the Constitution by violent or other unlawful means, or to aid and abet any other
person in such acts. Article 3 (4) of the Constitution, 1992 places on every citizen the duty, and gives him
the right, to defend the Constitution, and to resist any person who might seek to overthrow it and, in case
the Constitution 1992 is overthrow, to do all he can to restore the Constitution. The message is clear: we
have had enough of coups d'etat; we want no more; no one should be permitted to disturb the orderly
progress of the nation by resorting to force as a means of achieving political office. There can be little doubt
that the members of the Constituent Assembly inserted these unusual provisions in the Constitution, 1992
because they were appalled by the case with which past governments have been overthrown and the
indifference shown by our people in defending their rights. For my part, I do not see how a law which

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requires all of us to celebrate with fanfare, feasting and dancing the overthrow by force of arms of a
democratically-elected government can exist side by side with these constitutional provisions.
It was for these reasons that I concurred in the orders made.
JUDGMENT OF AIKINS JSC.
On or about 14 December 1993 there was a publication in the print and other media in this country that the
government had decided to celebrate the 31 December 1981 revolution in Accra, the highlight of which was
reported to include a route march by the security services and various voluntary organisations, followed by
a wreath-laying ceremony at the Revolutionary Square. The publication added that the celebration would be
rounded off by a musical carnival at the Trade Fair Centre in the afternoon. Believing rather strongly that the
celebration was unconstitutional, the plaintiff, the New Patriotic Party, issued out a writ in this court on 21
December 1993, invoking the original jurisdiction of the court pursuant to articles 2 (1) (b) and 130 (1) of the
Constitution, 1992—
(a) to declare that the said celebration and financing of it from public funds is inconsistent with, or in
contravention of the letter and spirit of the Constitution, 1992; and
(b) an order directing the Government of Ghana to cancel all preparations hitherto made for the celebration
aforesaid and to refrain from carrying out any such celebration financed from public funds.
The burden or gravamen of the plaintiff's argument is that by the [p.132] combined effect of clauses (3), (4),
(5), (6) and (7) of article 3 and articles 35 (1) and 41 (b) of the Constitution, 1992 the public celebration of
the overthrow of the legally constituted government on 31 December 1981, and the financing of such
celebration from public funds, is inconsistent with or in contravention of the letter and spirit of the
Constitution, 1992. The plaintiff contends that such celebration, route march and musical carnival cannot be
held without financing from public funds since, for example, the security forces comprising the personnel of
the Police Service, the Prisons Service and the Armed Forces of Ghana are paid directly from the
Consolidated Fund or directly out of moneys provided by Parliament. The plaintiff further contends that the
financing of such celebration from public funds offends against the very existence of the Constitution, 1992,
that it is an affront to democracy and democratic constitutional rule, and is subversive of the Constitution,
1992.
Article 3 of the Constitution, 1992 contains provisions in defence of the Constitution, whereby all citizens of
Ghana are enjoined to defend the Constitution, 1992, resist any person or group of persons seeking to
overthrow or abrogate the Constitution, 1992 by any violent or unlawful means. Article 35 (1) of the
Constitution, 1992 declares Ghana to be a democratic state dedicated to the realisation of freedom and
justice, a State in which sovereignty resides in the people from whom the government derives its powers
and authority, and article 41 (b) imposes a duty on all citizens of this country to uphold and defend the
Constitution, 1992.
The constitutional history of this country shows that similar provisions are contained in the Constitutions,
1969 and 1979. Article 3 of the Constitution, 1979 which deals with defence of the Constitution is a
reproduction of article 3 of the Constitution, 1969. Thus, it is specifically provided that any activity of any
person or group of persons which suppresses or seeks to suppress the lawful political activity of any other
person or persons shall be an unlawful act, and the punishment attached to that offence is an injunction by
the Supreme Court against that person or group of persons from further carrying on any such activity and
be bound over to be of good behaviour for a period of five years. For a second or subsequent offence, such
person or group of persons are liable to imprisonment for a term not exceeding ten years, and in addition
such person so convicted would be ineligible for election to Parliament or for election to a local government
council, or for appointment to any public office for a period of ten years beginning from [p.133] the date of
the expiration of the term of imprisonment.
But for the indemnity provision contained in section 15(1) of the transitional provisions of the Constitution,
1979, all persons who took part or assisted in bringing about the change of government which took place on
4 June 1979 would have been liable to be prosecuted under article 3 of the Constitution, 1969 on the
coming into force of the Constitution, 1979 because effluxion of time is no bar to criminal prosecution.
Similarly, the indemnity provision contained in section 34 of the transitional provisions of the Constitution,
1992 saved all persons who took part or assisted in bringing about the change of government which took
place on 4 June 1979 and 31 December 1981 from criminal prosecution under article 3 of the Constitution,
1979 on the coming into force of the Constitution, 1992. Yet, in spite of this immunity, the defence would
want to stretch section 34 of the transitional provisions of the Constitution, 1992 to cover 4 June and 31
December by contending that section 34 makes the two processes legal and as such prevents any person

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from questioning the legality of the two processes. This submission, in my view, is preposterous and
infantile, with all due respect to the learned Deputy Attorney-General. I fail to see the force of this argument.
The two processes are definitely illegal, and I have not come across any rule or law that legalises them.
Section 34 of the transitional provisions of the Constitution, 1992 does not do so either.
Clauses (2), (3), (4) and (5) of section 34 of the transitional provisions of the Constitution, 1992 are
completely different from the letter and spirit of the body of the Constitution, 1992 itself, and are certainly
not in conformity with justice, but have been introduced into the Constitution, 1992, to quote the language of
Charles Crabbe JSC in the case of Kwakye v Attorney-General [1981] GLR 944 at 1030, SC where he
referred to section 15 of the transitional provisions of the Constitution, 1979 which have been reproduced in
identical terms in section 34 of the transitional provisions of the Constitution, 1992:
“. . .To perpetrate an illegality, if an illegality there be, under the guise of constitutionality. To perpetuate an
injustice, if an injustice there be, under the colour of the supremacy of the Constitution . . .
Nor are the actions called in question in conformity with the laws under which they were done. To use the
instrumentality of the Constitution to cloak such actions with the semblance of legality is to do violence to
decency and embarrass the Constitution—nay justice herself . . . That is the gravamen of our situation. That
is the predicament in which we find ourselves today."
[p.134]
It is equally an offence against the State, namely treason, punishable with death under section 180 of the
Criminal Code, 1960 (Act 29) as amended by section 19 of the Constitution (Consequential and Transitional
Provisions) Decree, 1969 (NLCD 406). Section 180 (2) defines treason by adopting the meaning assigned
to it in clause (16) of article 20 of the Constitution, 1969 which states as follows:
“(16) . . . treason shall consist only
(a) in levying war against Ghana or assisting any state or person or inciting or conspiring with any person to
levy war against Ghana; or
(b) in attempting by force of arms or other violent means to overthrow the organs of government established
by or under this Constitution; or
(c) in taking part or being concerned in, or inciting or conspiring with any person to make or take part or be
concerned in, any such attempt."
As at 31 December 1981 this law had not been amended or repealed, and although the Constitution, 1969
was suspended by paragraph 2 of the Armed Forces Revolutionary Council (Establishment) Proclamation,
1979, paragraph 3 (2) of the Proclamation continued in force any enactment or rule of law in force in
Ghana. Thus section 180 of Act 29 continued in force. In like manner, although section 18 (1) of the
transitional provisions of the Constitution, 1979 abrogated the Constitution, 1969 which had been
suspended, section 18 (3) states that:
“. . . notwithstanding the abrogation of the said Constitution and the repeal of the said Proclamation [ie
Armed Forces Revolutionary Council (Establishment) Proclamation] any enactment or rule of law in force
immediately before the coming into force of this Constitution shall in so far as it is not inconsistent with a
provision of this Constitution, continue in force as if enacted, issued or made under the authority of this
Constitution."
It means, therefore, that any person or group of persons who took part in the 31 December 1981 uprising
that toppled the Limann administration of the Third Republic committed the offence of treason for which
they could be prosecuted and sentenced to suffer death upon conviction.
[p.135]
Having said that, I come to article 3 of the Constitution, 1992 which contains provisions in defence of the
Constitution. Clauses (2), (3) and (4) of that article provide as follows:
"(2) Any activity of a person or group of persons which suppresses or seeks to suppress the lawful political
activity of any other person or any class of persons, or persons generally is un1awful.
(3) Any person who—

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(a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit
any of the acts referred to in clause (3) of this article; and
as referred to in clause (3) of this article."
These clauses frown on any interference with the lawful political activity of any person, or the overthrow or
abrogation of the Constitution, 1992 by violent means, and bestow upon all citizens the right to defend the
Constitution, 1992. No doubt the purpose behind the enactment of these provisions is to remind those who
took part in the 4 June and 31 December processes and those who intend to follow suit that it is a high
crime to undertake such a venture, and that they do so at their own peril.
The only exception that exonerates any person who overthrows or attempts to overthrow the organs of
government from committing an offence is an act which aims at procuring by constitutional means an
alteration of the law or of the policies of the government as contained in clause (18) of article 19(18) of the
Constitution, 1992. Does it, therefore, accord with logic, reason and constitutional norm to submit that
persons who have committed such high offence as treason should be allowed to celebrate the commission
of their crime with moneys provided from the [p.136] Consolidated Fund, and to proceed further to declare
the days set aside for such celebration public holidays? The answer is definitely "no." The declaration of
such days as public holidays and the expenditure of public funds to aid the celebration are inconsistent with
and a contravention of the letter and spirit of the Constitution, 1992. The expenditure involved is no doubt a
misuse and a waste of public funds and property contrary to article 41 (f) of the Constitution, 1992 which
imposes a duty on every citizen of this country to protect and preserve the public property and expose and
combat misuse and waste of public funds and property. The argument therefore that since the government
has already started expending money in preparation for the celebration it should be allowed to undertake
the celebration is therefore misconceived. If the expenditure so far is unconstitutional, should further
expenditure to complete the cycle be allowed? Certainly not.
I need not reiterate that the celebration itself as a public holiday is unfair to those who were adversely
affected by the uprising, and who have become impotent to resort to court action by reason of the indemnity
provision in section 34 (2) of the transitional provisions of the Constitution, 1992. I agree with the plaintiff
that it is an affront to democracy and democratic constitutional rule. The financing is totally unconstitutional
and subversive of the Constitution, 1992.
In my view, the 4 June and 31 December processes occasioned a breakdown of law and order, the
negation of the rule of law and a circumscription of the fundamental human rights and freedoms of the
individual which the Constitution seeks to protect and preserve by its preamble. The stability of the nation
was shattered and polluted. There is truth in the contention that the celebration has the propensity of
sending wrong signals to the youth of this country that the overthrow of the constitutional order by means of
a coup d'etat is glorious, and incites and excites disorder to institutional settlement, and a disrespect to
constitutional authority. It tends to elate the security services into thinking that the overthrow of a duly
constituted government enhances the prestige and status of the individual soldier partaking in such an act,
and that he stands to be wealthy and respected. It is argued that there is no provision in the Constitution,
1992 that specifically proscribes or condemns the 31 December revolution, and for that matter the
celebration is not inconsistent with the letter and spirit of the Constitution, 1992. I must say that what the
plaintiff is seeking here is a declaration which raises an issue as to the interpretation of certain provisions of
the Constitution, 1992. By virtue of article 3(4) of the [p.137] Constitution, 1992 every citizen of Ghana has
the right, constitutional or otherwise, to protect the constitutional order as established by the Constitution,
1992 so that it is not abolished or sought to be abolished. To enable this to be done the citizen has to seek
"for an interpretation of the Constitution as to the meaning or the effect of a particular provision or
provisions of the Constitution": see Tuffour v Attorney-General [1980] GLR 637 at 649—650, CA sitting as
SC.
There is a controversy before us, and that controversy is whether the celebration of the 31 December
revolution offends the Constitution, 1992 and the determination of this issue depends upon the

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interpretation of the Constitution, 1992. This raises a justiciable issue which this court has jurisdiction under
article 2 of the Constitution, 1992 to adjudicate upon, and make such orders and give such directions as it
may consider appropriate. It is therefore an abysmal misconception to argue that the said celebration
involves a political decision which is best left to the electorate and Parliament to consider, and not a
constitutional matter requiring interpretation by the Supreme Court.
In effect, it is being argued that this court ought not to enter the political thicket. This is wrong. There is no
party politics in this, and the Supreme Court is not in the least dabbling in politics. Advancing his argument
in this field, the learned Deputy Attorney-General relied on the English case of Scranton's Trustee v Pearse
[1922] 2 Ch 87, CA and the American case of Baker v Carr, 369 US 186 at 217 (1962) to support his
contention. I have read these two cases, and in my view, the Baker case (supra) is irrelevant to the issue
under consideration. Baker v Carr (supra) was an apportionment case involving a constitutional challenge
to a state's districting of its state legislature. Even in the United States the political question doctrine is said
to be in a state of confusion.
Learned counsel's reliance on the Scranton case (supra), especially on Lord Sterndale MR's opinion at 123
of the report, is to invite this court to look at the whole case, in particular PNDCL 220, see how the Law
came to be passed, and whether it formed part of the public policy of this country, and if it did then we
should say that we have no jurisdiction to go into the matter. In my view, even though Parliament has the
right to legislate, this right is not without a limit, and the right to enact a law that 4 June and 31 December
should be declared public holidays cannot be left to linger in the realm of public policy. Such legislation must
be within the parameters of the power conferred on the legislature, and under article 1(2) of the
Constitution, 1992 any law found to be inconsistent with any provision of the Constitution (the [p.138]
supreme law) shall, to the extent of such inconsistency, be void. This constitutional criterion is what is used
to test the validity or otherwise of all statutes or laws, and it is against this criterion that PNDCL 220 must be
tested.
The plaintiff need not specifically plead the unconstitutionality of PNDCL 220 before this court can consider
it. The declaration sought by the plaintiff is quite referable to section 1(1) of PNDCL 220, read in conjunction
with the Schedule thereof, which declares 4 June and 31 December public holidays, and since this is
inconsistent with the letter and spirit of articles 3, 35 (1) and 41 (b) of the Constitution, 1992, that portion of
PNDCL 220 is to the extent of the inconsistency null and void by virtue of article 1 (2) of the Constitution,
1992, and for that matter any court of competent jurisdiction or judge thereof is under a legal obligation to
set it aside either suo motu or on application by the party affected. No judicial discretion arises here. The
power of this court to set aside such provision is derived both from article 1(2) of the Constitution, 1992 and
the inherent jurisdiction of the court: see Mosi v Bagyina [1963] 1 G LR 337, SC. That portion of PNDCL
220 should therefore be set aside as null and void, and it is hereby set aside.
An attempt was made to equate the 31 December revolution, 1981 with the French Revolution, 1789, and
the defence is contending that because that revolution is celebrated as a national day, 31 December should
as well be so celebrated. This is all unfortunate comparison. Learned counsel did not particularise the
similarities. However important this appears to the defence, I think this is not very relevant to the issue
under consideration. However, since he has raised the issue, I would like to make a comment.
The grounds for staging the 4 June 1979 and the 31 December 1981 coups d'etat or revolutions for that
matter are well-known to Ghanaians—alleged corruption of high officials, cheating, greed, charges of
amassing wealth at the expense of the poor and needy, abuse of office for private profit, and dishonest
acquisition of property, etc, the authenticity of which accusations was unfortunately never tested in any
court of competent jurisdiction in this country. With respect to the 4 June 1979 coup d'etat, Sowah JSC (as
he then was) when delivering his opinion in the case of Kwakye v Attorney-General (supra) at 961-962 had
this to say:
"The successful mutineers established a government under the name of the Armed Forces Revolutionary
Council . . .
During the early period of the new regime, the degree of violence [p.139] and barbarity exhibited by it and
some members of the Armed Forces were such that persons apprehensive of danger to their lives fled the
country. Amongst those who fled were persons wanted by the council . . .
There was no provision for arraignment of accused persons before the court. A great number of persons
were apprehended in their homes and taken to court. The other mode of enforcing presence in the court
was by announcement of names of persons wanted on the radio and television requesting them to report at
Burma Camp 'with immediate effect."'

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As to the procedure adopted in prosecuting the offences, the crimes of a number of persons arrested were
not properly investigated before the accused were purportedly tried and convicted. Archer JSC (as he then
was) had occasion in the Kwakye case (supra) at 973 to comment: "I must confess that this is the first time
that I have come across a criminal conviction based on a mere perusal of the prosecution's file without
reliance on any sworn evidence." Anin JSC had this to say at 987:
"Having been sworn on the cross, Flt.-Lt. Rawlings explained that during the administration of the A.F.R.C.,
of which he was chairman, special courts were established to try certain offences under A.F.R.C.D. 3 He
continued, 'I cannot give you the specifics; but I know they were tried. The trial of the S.M.C. members
executed was incomplete."'
Anin JSC continued at 988:
"In answer to the court's question whether he could give specific details about Kwakye's case without
reference to the documents, the witness replied, 'No, I cannot.' Finally, he explained that when he stated in
his evidence-in-chief that the trial of those S.M.C. members who were executed was incomplete, he meant
that they had not completed investigations into their assets."
The French Revolution, on the other hand, emanated from different premises. It was based on liberty,
equality and fraternity. Inequalities were met everywhere and stopped all progress. The nobles and clergy
were exempt from direct taxes, whereas most taxes were paid by the third estate—a class which included
peasants, artisans, merchants and professional men. Even among these groups taxes were not equal.
There were social and economic as well as political inequalities: see [p.140] Compton’s Encyclopaedia And
Fact-Index Edit at p 441. Here in Ghana a constitutional order was already in existence before 31
December 1981.
What is rather disturbing is the heinous means adopted to effect the French change. A comparison that a
renowned Prussian author, Friedrich von Gentz, makes between the American and French Revolutions
makes very fascinating, reading, and illuminates the modus operandi of the French Revolution during the
process of take over. He says in his treatise titled, The French and American Revolutions Compared at p
63:
"The French revolution was offensive in its origin, offensive in its progress, offensive in its whole compass,
and in every single characteristic moment of its existence. As the American revolution had exhibited a
model of moderation in defence, so the French one displayed an unparalleled example of violence and
inexorable fury in attack. As the former had always kept the vigour of its defensive measures in vigorous
proportion to the exigency, so the latter, from the weakness of the resistance made against it, became more
and more violent and terrible, the more cause it had to grow wilder."
And at p 67 the author continued:
"As the American revolution was a defensive revolution, it was of course finished, at the moment, when it
had overcome the attack, by which it had been occasioned. The French revolution, true to the character of
a most violent offensive revolution, could not but proceed so long as there remained objects for it to attack,
and it retained strength for the assault.
The American revolution, at every stage of its duration, had a fixed and definite object, and moved within
definite limits and by a definite direction towards this object. The French revolution never had a definite
object; and in a thousand various directions, continually crossing each other, ran through the unbounded
space of a fantastic arbitrary will, and of a bottomless anarchy."
I am encouraged to believe that the Ghana Government is not all that enthused by a situation of this nature
as to lure it to clamour for the national celebration of its 31 December 1981 revolution. If, however, it is so
infatuated to celebrate it, this court would justifiably discountenance it as much as the Constitution, 1992
frowns on it.
I find it difficult to appreciate the niceties of the defence argument that the celebration of the 31 December
1981 revolution is to be restricted to the historical values that the revolution stood for. There is [p.141]
nothing in the publication admitted in paragraphs (2), (5) and (11) of the defendant's statement of case as
well as in section 1 (1) of PNDCL 220 that supports that contention. A historical account of the 31
December revolution cannot be complete if its aims and modus operandi are divorced from its historical
values. An account of the atrocities and brutalities that characterised the take over and the early stages of
the revolution must definitely be highlighted. The three form a composite unit, and it is this unit that
operates on the mind of the citizen. The argument, therefore, that it is only the historical values of the

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revolution that the government intends to celebrate is untenable, and in my view, it is calculated to deceive
this court. I reject it.
Further, the use of public funds to finance the celebration cannot be constitutional for the reason, as the
defence puts it, that provision for that expenditure had been made in the 1993 budget which was authorised
by the Appropriation (1993 Financial Year) Law, 1993 (PNDCL 314). Though sections 18 and 19 of the
transitional provisions to the Constitution, 1992 continued in force the Consolidated Fund the Contingency
Fund in existence before the coming into force of the Constitution, 1992, together with the financial
estimates in operation for the financial year in being at the coming into force of the Constitution, 1992,
section 36 thereof emphasises that application or enforcement of such expenditure must not be inconsistent
with any provision of the Constitution, 1992.
In my judgment, the application of funds so provided which is intended to be utilised for the celebration of
the 31 December revolution is equally unconstitutional having regard to the conclusions already reached by
me on the celebration itself.
Finally, the submission that this court has no jurisdiction to issue an injunction against the government in
constitutional cases should fail, because though article 57 (4) of the Constitution, 1992 exempts the
President, while in office, from liability to proceedings in any court for the performance of his functions under
the Constitution, 1992 or any other law, article 2 (2) of the Constitution, 1992 empowers this court for
purposes of any declaration under clause (1) of the article to make any order and give such directions as
this court may consider appropriate for giving effect to the declaration so made. And article 2(4) of the
Constitution, 1992 creates an offence of high crime under the Constitution against any person who disobeys
or fails to carry out the terms of any such order or direction given by this court. In this wise, neither the
President nor the Vice-President is exempted; failure on their [p.142] part to obey or carry out the terms of
any such order or direction constitutes a ground for removal from office under the Constitution, 1992. The
Constitution, 1992 therefore requires all persons including the President to obey and carry out such orders
and directions made by this court under article 2 of the Constitution, 1992 or suffer the sanctions so
imposed.
It is for the above reasons that I agreed to grant the declaration sought by the plaintiff, and indorsed the
decision that 31 December shall no longer be declared and observed as a public holiday, and celebrated as
such out of public funds.
JUDGMENT OF MRS JOYCE BAMFORD-ADDO JSC.
The plaintiff invoked the original jurisdiction of the Supreme Court under articles 2 (1) and 130 (1) of the
Constitution, 1992 for a declaration:
"(1) That the public celebration of the overthrow of the legally constituted Government of Ghana on 31
December 1981, and the financing of such celebration from public funds is inconsistent with or in
contravention of the letter and spirit of the Constitution, 1992 and more particularly articles 3 (3), (4), (5), (6)
and (7) and 35 (1) and 41(b) thereof.
I shall set out in extenso the relevant provisions on which the plaintiff 's claim is based for ease of
reference, Articles 3 (3), 51 (1) and 41 (b) of the Constitution, 1992 provide:
(b) aids and abets in any manner any person referred to in paragraph (a) of this clause:
commits an offence of high treason and shall, upon conviction, be sentenced to suffer death.
(4) All citizens of Ghana shall have the right and duty at all [p.143] times—

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punishment.
Article 35 (1) of the Constitution, 1992 provides:
Article 41 (b) of the Constitution, 1992 states:
obligations, and accordingly, it shall be the duty of every citizen—
(b) to uphold and defend this Constitution and the law."
Articles 3(3), (4), (5), (6) and (7) as well as 35(1) and 41(b) of the Constitution, 1992 quoted above, are the
specific provisions of the Constitution, 1992 on which the plaintiff based this claim for the reliefs sought,
namely: "that the public celebration of the overthrow of the legally constituted Government of Ghana on 31
December 1981 is inconsistent or in contravention of the letter and spirit of the Constitution, 1992.”
[p.144]
The plaintiff’s grounds in support of the claim are contained in the statement of case filed as well as on viva
voce arguments of counsel, Mr. Peter. Ala Adjetey in court. These submissions are briefly that since the
Constitutions 1960, 1969 and 1979 were not changed in accordance with the provisions for change spelt
out in those Constitutions, those changes were unconstitutional. Counsel referred to section 34 (2) of the
transitional provisions of the Constitution, 1992 and stated that it is true that by virtue of that section it is not
lawful for any court or tribunal to entertain any action or take any decision or make any order or grant any
remedy or relief in any proceedings instituted against the Government of Ghana in respect of any act or
omission relating to or consequent upon the coup of 1981, but this action has not been instituted in respect
of section 34 (2) of the transitional provisions of the Constitution, 992 and therefore the court can say that
the change in government in 1981 was unconstitutional.
I think it would be convenient to pause here to answer this submission straightaway. This submission has
two parts to it; the first part is that since the Constitutions, 1960, 1969 and 1979 were not changed in
accordance with the constitutional provisions spelt out in those Constitutions, the changes were
unconstitutional. This is a correct statement of fact. The second submission, however, is not legally correct
because for section 34 (2) of the transitional provisions of the Constitution, 1992 to have effect, it is not
necessary that the plaintiff’s action should have been instituted under the said section. In whatever garb a
clams is clothed, if it can be said to fall within the provision of section 34 (2) of the transitional provisions of
the Constitution, 1992, that section would have automatic operation and the court would be effectively
precluded from taking any decisions concerning matters specified therein or granting any remedy or reliefs.
This means that even if coups are unconstitutional this court cannot pronounce on such unconstitutionality
for the purpose of granting any reliefs.
According to Mr Adjetey, the grant of immunity to coup makers means they are wrongdoers and therefore
reliefs could have been sought against the Government of Ghana, that is why the immunity was provided.
This deduction cannot be challenged. He then referred to article 3 (3) (a) and (b) of the Constitution, 1992
which says that coups are illegal and said that this is what took place on 31 December 1981 which
abrogated the Constitution, 1979. He submitted:
(1) That there had been some coups before 31 December and if those dates are not celebrated as public
holidays it would be [p.145] discriminatory to celebrate only 31 December which is not even worth
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celebrating.
(2) That celebrating that day as a holiday would send wrong signals to citizens of Ghana that the overthrow
of a constitutional government is the highest achievement that any one can attain.
(3) That the celebration would remind Ghanaians of the atrocities committed by soldiers as a result of the
31 December coup and for these reasons the celebration is inconsistent with the provisions of articles 3 (3),
(4), (5), (6) and (7) and also 35 (1) and 41 (b) of the Constitution, 1992 therefore it should be declared null
and void. He said further that the celebration of 31 December from public funds is also inconsistent with
Constitution, 1992 and totally unconstitutional.
Whether the financing of the celebration from public funds is also unconstitutional, I believe, would depend
on the finding whether the declaration that 31 December be observed as a public holiday is
unconstitutional. If it is not unconstitutional then there would be no need to consider this issue.
The Deputy Attorney-General, Mr Amidu, for the defendant denies that the celebration of 31 December
mandated as a public holiday under the Public Holidays Law, 1989 (PNDCL 220) is unconstitutional or null
and void. Paragraphs (15) and (16) of the defendant’s statement of case states:
“(15) The defendant maintains that what the plaintiff is seeking to do is question the constitutionality and
legality of 31 December Revolution, and the events which gave rise to that revolution on 31 December 1981
which should not be entertained by the court by virtue of section 34 particularly subsection (2) of the
transitional provisions scheduled to the Constitution, 1992.
(16) The defendant says in the premise that the plaintiff is not entitled to the reliefs sought or at all."
It seems to me that there are three important issues calling for a decision in this case. They are:
(1) Whether PNDCL 220, regarding the part declaring 31 December as a public holiday, is inconsistent with
or in contravention of the letter and spirit of the Constitution, 1992, particularly article 3 (3), (4), (5), (6) and
(7) and also articles 35 (1) and 41 (b) of the Constitution, 1992.
[p.146]
(2) Whether the plaintiff's case is substantially based on the overthrow of the Constitution, 1979 or the 31
December 1981 coup—by the PNDCL.
(3) Whether even if the 31 December coup was unconstitutional, this court has the jurisdiction to grant the
reliefs sought by plaintiff.
The answers to these questions, would, I believe, resolve this case. Article 2 of the Constitution, 1992
provides that:
“2. (1) A person who alleges that—
(a) An enactment or anything contained in or done under the authority of that or any other enactment; or
Supreme Court for declaration to that effect."
(The emphasis is mine.) Even though the plaintiff in its claim, did not rely directly on PNDCL 220 which
enacted that 31 December, was to be a public holiday, in actual fact, this is the enactment or the authority
under which the government acted to declare the said date as a public holiday, and should be the
enactment to which the plaintiff's complaint refers. Now the question is, is PNDCL 220 inconsistent with
article 3 (3), (4), (5), (6) and (7) of the Constitution, 1992 having regard to articles 35 (1) and 41 (b) thereof?
I shall proceed to interpret the Constitution, 1992 as I see it, in accordance with the rules of constitutional
construction or interpretation. It is a fact that the 31 December coup, was the overthrow of a constitutional
government under the Constitution, 1979. It is also true that the change of government was not effected in
accordance with chapter 25 thereof, so therefore for purposes of argument only, it can be said that the
change in 1981 was unconstitutional. But even if the 31 December 1981 action was unconstitutional, which
as I have said above, this court has no jurisdiction to decide upon, it does not follow automatically, that
PNDCL 220 declaring 31 December as a public holiday should also be unconstitutional and null and void,
the unconstitutionality of that Law must be satisfactorily proved.

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In 1989 when PNDCL 220 was passed by the ruling PNDC Government, that government was the de facto
and de jure Government of Ghana. The Provisional National Defence Council (Establishment)
Proclamation, 1981 established the PNDC which was mandated to [p.147] exercise all powers of
government and was given power to make laws to regulate the affairs of the Republic of Ghana. For this
reason, PNDCL 220 was a Law properly enacted by the PNDC in 1989 when the Constitution, 1979 had
been abrogated. Later, the Constitution, 1992 came into force on 7 January 1993, and from that date the
prospective constitutional provisions became operative but not with retrospective effect whether in whole or
in part. This point must not be lost sight of.
The Constitution, 1992 also saved all existing laws in operation on 7 January 1993: see article 11 (1) (d)
and (5) which provides:
11. (1) The laws of Ghana shall comprise—
(d) the existing law . . .
(5) subject to the provisions of this Constitution, the existing law shall not be affected by the coming into
force of this Constitution."
Therefore PNDCL 220 will continue to be part of the laws of this country until in accordance with article 2 of
the Constitution, 1992 the Supreme Court declares it or part of it, inconsistent with the Constitution, 1992
and therefore null, and void. This is what the plaintiff is seeking to do. To succeed, the plaintiff must
satisfactorily prove its case otherwise it would not be entitled to the reliefs sought in its writ. The provision of
article 2 (1) of the Constitution, 1992 affects all existing laws of this country including those passed by the
PNDC government as well as those passed or to be passed by the present government or by any future
governments.
This has to be so, because the Constitution, 1992 is the basic and supreme law which embodies the will of
the people of this country, and it must rightly be the criteria by which the legality or constitutionality of all
laws of this country should be tested. Thus article 1 (2) of the Constitution, 1992 states that:
"(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with
any provision of this Constitution shall, to the extent of the inconsistency, be void."
The plaintiff has by its writ challenged the part of PNDCL 220 which declares 31 December a public holiday,
and is relying on article 2(1)(a) of the Constitution, 1992 to get a declaration to the effect that, that portion of
PNDCL 220 is inconsistent with article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 and therefore null
and void. It is important that a thorough comparison be made between article 3(3), (4), (5), (6) [p.148] and
(7) of the Constitution, 1992 and PNDCL 220 to see whether there is an inconsistency between the two
enactments. I have taken pains to scrutinise the two and I cannot by any stretch of the words in article 3(3),
etc of the Constitution, 1992 say that the two are inconsistent. A correct literal interpretation of the wording
of article 3(3) of the Constitution, 1992 is that any person or persons who unlawfully overthrows the
government or, "suspends or overthrows or abrogates this Constitution, [1992] or any part of it" or any
person who aids or abets in any manner such an enterprise commits the offence of high treason punishable
on conviction by death. This article refers specifically to this Constitution, 1992 (not any past Constitution)
and makes the operation of the Constitution, 1992 prospective not retrospective. It is concerned with future
coups not past coups and seeks to ensure that no government in this country after 7 January 1993 is
unlawfully removed or the Constitution, 1992 abrogated. I am unable to find words in article 3(3) of the
Constitution, 1992 which outlaws the public celebration of any past coups, eg the 31 December coup for
which reason the celebration of same can be said to be either in contravention of or inconsistent with the
provision of article 3(3), etc of the Constitution, 1992. Indeed, if as I said before, by virtue of section 34 (2)
of the transitional provisions of the Constitution, 1992 we are not permitted to hold an inquiry into matters
pertaining to the 31 December coup of 1981, or to borrow the words of Archer JSC (as he then was) in the
case of Kwakye v Attorney-General [1981] GLR 944 at 981, SC if we are "prevented from conducting any
transillumination" into PNDC coup affairs, then we cannot make any decisions as to the unconstitutionality
of the 1981 coup upon which we can rely to judge the unconstitutionality or otherwise of PNDCL 220. We
must look only within the four walls of the Constitution, 1992 to make such a judgment, having regard to the
letter, ie words and the spirit of the Constitution, 1992 as contained in chapter 6 thereof. Or in this case, as
can be deduced from articles 35(1) and 41 (b) of the Constitution, 1992. I might however be tempted to hold
such a view if the celebration of 31 December as a public holiday can be said to be subversive of the
Constitution 1992, in that it is an intended attempt to overthrow the NDC Government or induce others to do
so. But then can this be the intention of the government, to commit political suicide? I think not. It seems to
me rather that it should be the ardent or passionate desire of this government to prevent coups through
upholding the provision of article 3(3) of the Constitution, 1992 as it is in duty bound to do under article 3(4),
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which duty has particular reference only to article 3(3) of the [p.149] Constitution, 1992. I am convinced that
by the letter of article 3(3) of the Constitution, 1992 the provisions of PNDCL 220 as regards the celebration
of 31 December as a public holiday, cannot be said to be inconsistent with or in contravention of the letter of
article 3(3), etc of the Constitution, 1992 and I so hold.
Now I come to the spirit of the Constitution, 1992. The plaintiff, apart from article 3, relied also on articles
35(1) and 34(b) of the Constitution, 1992, provisions under the "Directive Principles of State Policy" to
ground its claim. But the said principles are not justiciable and the plaintiff has no cause of action based on
these articles. Those principles were included in the Constitution, 1992 for the guidance of all citizens,
Parliament, the President, judiciary, the Council of State, the cabinet, political parties or other bodies and
persons in applying or interpreting the Constitution, 1992 or any other law and in taking and implementing
any policy decisions, for the establishment of a just and free society. The judiciary is to be guided, while
interpreting the Constitution, 1992 by only the specific provisions under chapter 6.
The reasons for these principles which the Consultative Assembly relied on in formulating chapter 6 of the
Constitution, 1992, are stated at paragraphs 94—97 of the Report of the Committee of Experts on
Proposals for a Draft Constitution Ghana as follows:
"94. The NCD report speaks of the need to include in the new Constitution 'core principles around which
national political, social and economic life will revolve.' This is precisely what the Directive Principles of
State Policy seeks to do. Against the background of the achievements and failings of our post-
independence experience, and our aspirations for the future as a people, the principles attempt to set the
stage for the enunciation of political, civil, economic and social rights of our people. They may thus be
regarded as spelling out in broad strokes the spirit or conscience of the constitution. The Committee used
Chapter Four of the 1970 Constitution as a basis for its deliberations on this subject.
95. By tradition Directive Principles are not justiciable; even so, there are at least two good reasons for
including them in a constitution. First, Directive Principles enumerate a set of fundamental objectives which
a people expect all bodies and persons that make or execute public policy to strive to achieve. In the
present proposals, one novelty is the explicit inclusion of political parties among the bodies expected to
observe the principles. The reason for this is that political parties significantly influence government [p.150]
policy. A second justification for including Directive Principles in a constitution is that, taken together, they
constitute, in the long run, a sort of barometer by which the people could measure the performance of their
government. In effect they provide goals for legislative programmes and a guide for judicial interpretation.
96. On the basis of the foregoing considerations, the Committee proposes as follows: The Directive
Principles of State Policy are for the guidance of Parliament, the President, the Council of Minister, Political
Parties and other bodies and persons in making and applying public policy for the establishment of a just
and free society. The Principles should not of and by themselves be legally enforceable by any Court. The
Court should, however, have regard to the said Principles in interpreting any laws based on them.
97. In view of the fact that the Principles are not justiciable, it becomes necessary to provide a standing
reminder to an incumbent Government that it is expected to take necessary measures to achieve them.
For this purpose, the Committee considered it adequate to adopt the provision in the 1979 Constitution
stipulating that, at least once a year, the Government should report to Parliament all the steps it has taken
towards achieving the policy objectives; particularly, towards the realization of a healthy economy, the right
to work, the right to good health care and the right to education."
(The emphasis is mine.) It is under chapter 6 that we find the spirit or conscience of the Constitution, 1992
and it seems to me that the plaintiff's argument and reasons for suing are based mainly, according to it, on
the spirit of articles 35(1) and 41(b). For emphasis and ease of reference, I quote again the provision of
article 35(1) of the Constitution, 1992 which comes under political objectives and states:
Article 41 (b) of the Constitution, 1992 comes under duties of a citizen and it states:
obligations, and [p.151] accordingly, it shall be the duty of every citizen— . . .
(b) to uphold and defend this Constitution and the law."

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Articles 35(1) and 41(b) of the Constitution, 1992 quoted above, merely provide that it is the duty of all
citizens of this democratic State to uphold this Constitution in any way, including by virtue of article 3(4)
resisting future coups and obeying the precepts of the Constitution, 1992. It is my duty to give faithful
interpretation to the words having regard to the spirit of the Constitution, 1992 as I see them, my political or
moral views or that of any other person however right notwithstanding. As I said above, I am unable to find
direct or indirect words in article 3(3) or any other provision of the Constitution, 1992 to the effect that the
celebration of 31 December as a public holiday should be unconstitutional. This also applies to the words of
articles 35(1) and 41 (b) of the Constitution, 1992 and for this reason, I cannot interpret those constitutional
provisions as we are being urged to do. The Constitution, 1992 must be interpreted according to both the
letter and spirit together.
In Sallah v Attorney-General G & G (Vol 11, Pt 2) 493, SC Sowah JA (as he them was) said at 506:
"I consider that the best guide to interpretation is the letter and spirit of the Constitution if the intention of the
Assembly (which drafted the Constitution) can be collected from the words used and if that intention, when
so collected, is in consonance with the spirit of the Constitution, then there is no need for further aids."
See also holding (5) of the headnote of the case of Tuffuor v Attorney-General [1980] GLR 637, CA sitting
as SC where it was held:
"(5) The duty of the court in interpreting the provisions of article 127(8) and (9) was to take the words as
they stood and to give them their true construction having regard to the language of the provisions of the
Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words
their appropriate construction according to the context."
Sowah JSC (as he then was) also said at 648:
"And so a construction should be avoided which leads to absurdity. And when a particular interpretation
leads to two, shall we say 'inconsistent' results, the spirit of the Constitution would demand that the more
reasonable of the two should be adhered to. [p.152] We must have recourse to the Constitution as a whole.”
The rule is that the plaintiff must state the basis of its claim specifically and prove same if it is to succeed in
its claim. I am afraid the plaintiff has not been able to do so. In view of the fact that there were no specific
words making PNDCL 220 inconsistent with article 3 (3), etc of the Constitution, 1992 it is incumbent on the
plaintiff to have called evidence in support of its case. It failed to do this and it should not have obtained
judgment in its favour in a case based only on counsel’s own notions or speculations on the possible effects
of the celebration of 31 December as a holiday.
I now move on to consider the validity of the plaintiff's counsel's arguments in support of this case. His first
submission was that since there had been coups before 31 December, if those dates are not also
celebrated now as public holidays, it would be discriminatory to celebrate only 31 December as a public
holiday. It is a fact that the dates of past coups as well as some political events have been celebrated as
public holidays by various governments since 1960 to date. Any government in the exercise of its executive
powers can in its discretion, specify any day to be celebrated as a public holiday. The Public Holidays Act,
1960 (Act 23) passed by the Nkrumah Government made National Founder's Day (21 September) as well
as other specified dates public holidays. The holidays under Act 23 were according to the Schedule as
follows:
"New, Year's Day (1st January)
Ghana Independence Day (6th March)
Good Friday
The Saturday next following Good Friday
Easter Monday
Republic Day (1st July)
National Founder's Day (21st September)
Christmas Day,
Boxing Day."
Section 1(2) and (4) of Act 23 provided that:

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“(2) In addition to the Public holidays prescribed by subsection (1) of this section, the President may by
executive instrument, declare and other day to be a public holiday and may by the same instrument limit its
observance to any area or place in Ghana . . .
(4) The President may by legislative instrument amend the [p.153] schedule to this Act"
(The emphasis is mine.) In 1972 the Public Holidays Decree, 1972 (NRCD 18) was passed by the
Acheampong Government. It repealed Act 23 and provided certain dates to be celebrated as public
holidays. That list excluded National Founder's Day, 21 September and Republic Day, 1 July, and
substituted National Redemption Day (13 January), the date of Acheampong's coup, and the First Monday
in August as public holidays. Even though 24 February, the date of the NLC coup, was not listed in the
Schedule to NRCD 18, the Government of the NRC by the Public Holidays (No 2) Order, 1973 (EI 17 of
1973) declared that day a public holiday by virtue of section 2 of NRCD 18 which gave the government
power to declare other dates as public holidays. Later, the Public Holidays Decree, 1974 (NRCD 262)
repealed NRCD 18 and provided a new list of public holidays. This Law excluded First Monday in August
and in its place substituted again Republic Day (1 July) as was earlier provided in Act 23.
NRCD 262 which contained the date of 13 January, the date of Acheampong's coup, continued to be the
law governing public holidays in this country from 1974 until it was repealed by the PNDC in 1989 by
PNDCL 220 despite the taking over of a constitutional government in 1979.
PNDCL 220 also sets out a list of public holidays as amended by the Public Holidays (Schedule
Amendment) Law, 1992 (PNDCL 274) and repealed NRCD 262. That list included, among others, new
dates, namely 31 December, 4 June and Farmers' Day (First Friday in December). It can be seen that the
fixing of a date for celebration as a public holiday is a policy decision of the government, an executive act,
and can be changed whenever that or any other government deems it expedient to do so by legislation. It
seems to me therefore that the 31 December public holiday, unless unconstitutional, which I have said it is
not, can only be deleted from the list of public holidays by any government which desires this as a policy
decision, to take necessary legislative action to delete this date from the list provided in PNDCL 220. It is
during the debate on such a matter in Parliament that arguments such as were canvassed here could
properly be made to influence Parliament to repeal any date, eg 31 December from the list specified in the
Schedule to PNDCL 220. In that forum, but not here, policy issues could rightly be canvassed and
considered.
Since the dates of all past coups have been celebrated at one time or [p.154] other depending on which
government is in power, the argument that the celebration of 31 December is discriminatory is, in my view,
not a valid point, unless of course it is counsel's case that if all the dates of past coups are celebrated as
public holidays then the celebration of 31 December would be constitutional. The flaw in this argument is
obvious, and counsel's submission on this issue is not his strongest point and does not advance his case
forward one bit, I reject it.
The second submission was that celebrating that day as a holiday would send wrong signals to citizens of
Ghana that the overthrow of the constitutional government is the highest achievement any one can attain. I
doubt the soundness of this reasoning. I have said earlier that it cannot be the intention of the government
to send those signals inviting a coup against itself nor do I think that any reasonable person in a trotro in
Ghana today would consider the celebration as sending signals to people to stage a coup, in view of the
strong stipulation in article 3(3) of the Constitution, 1992 that any future coups would be punished by death
of the coup maker. Indeed, counsel's conclusion on this issue seems to me to be too far-fetched to be
reasonable or valid.
The third submission is that the celebration would remind Ghanaians of the atrocities committed by soldiers
in executing the 31 December coup. I, speaking for myself, in all fairness to the defendant, do not think that
the government’s intention of celebrating 31 December is to remind or induce Ghanaians to relive the
horrors of the early days of the coup, especially when the injuries resulting from that coup have been
regretted by the Government of the PNDC. Indeed, counsel for the defendant said it was the gains of the 31
December revolution that was being remembered and celebrated as a historical event. To carry counsel for
the plaintiff's argument to its logical conclusion would result in an absurdity. It would mean that because the
mention of 31 December reminds some people of the horrors of the coup, anything, whether beneficial or
not done by the PNDC Government ought to be declared unconstitutional and therefore null and void. To
accept this reasoning would mean that all laws passed by the PNDC Government since 1981 (even though
article 11 of the Constitution, 1992 saves them as forming part of the laws of Ghana) because they remind
people of 31 December, should all be declared null and void as being unconstitutional. This ground
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advanced by counsel to support the plaintiff's claim is also unmeritorious. This leads me to the proper effect
of counsel's whole arguments and submissions as I see them.
It seems to me, considering the real import of the plaintiff's counsel's [p.155] arguments, that he is calling
upon us to judge this case by the application or some moral or political policy consideration, or that he is
propounding a novel policy issue for our guidance here. However right such a policy consideration may be,
this court cannot be guided by it in our interpretative duty. The only policy issues permitted to be considered
by us are those state policy considerations set out specifically in chapter 6 of the Constitution, 1992. I am
afraid if they have no application to this case, no extra constitutional ones can be considered. It is not for
the judiciary to formulate public policy issues, but for the executive or the legislature, and we cannot usurp
their function either directly or indirectly. To accept the plaintiff’s counsel's submissions so as to give
judgment for it would be to open wide the floodgates to litigants who seek to influence our decisions in this
court with their ideas or ideals of what public policy ought to be. It would be dangerous to accede to this
request as I shall explain hereunder.
Generally, in interpretation of statutes, public policy considerations cannot be used as a guide by judges or
to influence their decisions, except those apparent in an enactment under consideration, or those in, eg
contracts, which have crystallised into principles or rules of law or equity. This is because of the dangers
inherent in the use of "changing" public policy. Public policy has been said to be a "very unruly horse" in
Richardson v Mellish (1824) 2 Bing 229 at 252 where Burrough J said:
"If it be illegal, it must be illegal either on the ground that it is against public policy, or against some
particular law. I, for one, protest, as my Lord has done, against arguing too strongly upon public policy; —it
is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead
you from the sound law. It is never argued at all but when other points fail."
As stated also in Egerton v Brownlow (Earl) (1853) 4 HL Cas 1 at 123 HL where Parke B warned:
"' . . . public policy’ is a vague and unsatisfactory term, and calculated to lead to uncertainty and error, when
applied to the decision of legal rights; it is capable of being understood in different senses; it may, and does,
in its ordinary sense, mean 'political expedience,' or that which is best for the common good of the
community; and in that sense there may be every variety of opinion, according to education, habits, talents,
and dispositions of each [p.156] person, who is to decide whether an act is against public policy or not. To
allow this to be a ground of judicial decision, would lead to the greatest uncertainty and confusion. It is the
province of the statesman, and not the lawyer, to discuss, and of the legislature to determine, what is the
best for the public good, and to provide for it by proper enactments. It is the province of the judge to
expound the law only; the written from the statutes: the unwritten or common law from the decisions of our
predecessors and of our existing courts, from text - writers of acknowledged authority, and upon the
principles to be clearly deduced from them by sound reason and just inference; not to speculate upon what
is the best, in his opinion, for the advantage of the community. Some of these decisions may have no doubt
been founded upon the prevailing and just opinions of the public good; for instance, the illegality of
covenants in restraint of marriage or trade. They have become a part of the recognised law, and we are
therefore bound by them, but we are not thereby authorised to establish as law everything which we may
think for the public good, and prohibit everything which we think otherwise. The term 'public policy' may
indeed be used only in the sense of the policy of the law, and in that sense it forms a just ground of judicial
decision . . . But we are clearly of opinion that this cannot be shown here.”
In Re Mirams [1891] 1 QB 594 at 595 Cave J observed that, “. . . judges are more to be trusted as
interpreters of the law than as expounders of what is called public policy." In Janson v Driefontain
Consolidated Mines Ltd [1902] AC 484 at 500, HL Lord Davey said, "Public Policy is always an unsafe and
treacherous ground for legal decision, and in the present case it would not be easy to say on which side the
balance of convenience would incline." In Ewart v Ewart [1958] 3 WLR 680 at 687 Lord Merriman P said: ". .
. the court in face of the plain words of the statute is not concerned with questions of public policy which are
said to have prevailed before it as passed." In Besant v Wood (1879) 12 ChD 605 at 620, Jessel MR said of
public policy thus:
"This is a branch of law which depends upon what is commonly called 'public policy.' Now you cannot lay
down any definition of the term 'public policy,' or say it comprises such and such a proposition, and does not
comprise such and such another: that must be, to a great extent, a matter, of individual opinion, because
what one man, or one Judge, and perhaps I ought to say one woman also [p.157] in this case, might think
against public policy, another might think altogether excellent public policy. Consequently it is impossible to
say what the opinion of a man or a Judge might be as to what public policy is."

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The position in this country as regards statutory interpretation is no different. The Constitution, 1992
however has set out in chapter 6 the policy of the State, regarding political objectives, economic objectives,
social objectives, educational objectives, cultural objectives and also state policy in relation to international
relations and duties of a citizen which should be used as a guide by the judiciary in the interpretation of the
Constitution, 1992. Article 35(1) of the Constitution, 1992 which the plaintiff referred to deals with political
objectives. I will quote it again for emphasis. It says that:
"35.(1) Ghana shall be a democratic state dedicated to the realization of freedom and justice; and
I have considered this provision and I am unable to see how in the spirit of these words I can interpret the
letter of article 3(3), (4), (5), (6) and (7) to enable me to hold that there is an inconsistency between PNDCL
220 and article 3(3) of the Constitution, 1992. As far as I am concerned, only the presence in the
Constitution, 1992 of specific words capable of being interpreted to this effect would convince me to accept
the interpretation which I am being invited to put on articles 35(1) and 3(3), etc.
The other article which plaintiff referred us to, ie article 41 (b) says:
obligations, and accordingly, it shall be the duty of every citizen—. . .
(b) to uphold and defend this Constitution and the law.”
The meaning of this provision also, does not seem to me to accord with the interpretation which counsel is
suggesting to us. The fact that all Ghanaians have a duty to defend and uphold the Constitution, 1992 does
not by its spirit lead me to the conclusion that article 3(3), etc should be interpreted to mean that the
celebration of 31 December is unconstitutional and that day should not be celebrated ever as a public
holiday. Such an interpretation would be far-fetched and wrong. As I see it, none [p.158] of the other articles
in chapter 6 of the Constitution, 1992 can be so construed. I am not also prepared to admit any policy
issues not specifically mentioned within the four walls of the Constitution, 1992 to guide me in my
interpretative duty, which, as I said before, appears to me to be what counsel is asking us to do.
I am bound to interpret constitutional provisions applying only the directives of state policy contained in the
four walls of the Constitution, 1992 as specified in chapter 6 thereof. I think it would be wrong to allow policy
issues outside those specified in the Constitution, 1992 to influence us here, in view of the fickle nature of
public policy and the dangers inherent in doing so, as already stated above.
In my judgment, the language of article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 does not outlaw in
clear unambiguous language past coups, but only seeks to prevent future such actions, and the spirit of
articles 35(1) and 41(b) of the Constitution, 1992 cannot result in such a conclusion. I am afraid I am
precluded from interpreting article 3(3), etc of the Constitution 1992 in the manner urged upon us by
counsel for the plaintiff.
I now move to the provisions of section 34(2) of the transitional provisions of the Constitution, 1992 and its
effect and impact on this case. Section 34(2) of the transitional provisions of the Constitution, 1992 states in
clear words thus:
“(2) It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or
grant and remedy or relief in any proceedings instituted against the Government of Ghana or any person
acting under the authority of the Government of Ghana whether before or after coming into force of this
Constitution or against any person or persons acting in concert or individually to assist or bring about the
change in Government which took place on the twenty-fourth day of February 1966, on the thirteenth day of
January 1972, on the forth day of June 1979 and on the thirty-first day of December 1981 in respect of any
act or omission relating to, or consequent upon—
(a) the overthrow of the government in power before the formation of the National Liberation Council, the
National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and
she Provisional National Defence Council; or
(b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979; or
[p.159]
(c) the establishment of the National Liberation Council the National Redemption Council, the Supreme
Military Council which took office on the ninth day of October 1975, the Supreme Military Council
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established on the fifth day of July 1978, the Armed Forced Revolutionary Council, or the Provisional
National Defence Council; or
(d) the establishment of this Constitution."
(The emphasis is mine.) The emphasised portion has particular relevance to this case. It means as regards
this case that this court is precluded or its jurisdiction is ousted from making any order or granting any
remedy or relief to the plaintiff, if the basis or foundation of the case is in respect of, or "consequent upon"
the overthrow of Hilla Limann's Government on 31 December 1981 by the PNDC. I have to interpret section
34 (2)(a) of the transitional provisions of the Constitution, 1992 in the same way and manner I have done in
respect of article 3(3) of the Constitution, 1992 so as to give effect to every word in section 34(3)(a). It is
worthy of note that the same word, namely overthrow was used by the plaintiff in its writ and also by section
34(2) of the transitional provisions of the Constitution, 1992.
The plaintiff seeks in relief (1) of the writ:
Ghana on 31 December 1981, . . . is inconsistent with or in contravention of the letter and spirit of the
Constitution, 1992 more particularly articles 3(3), (4), (5), (6) and (7) and 35(1) and 41 (b) thereof."
Section 34(2)(a) of the transitional provisions of the Constitution, 1992 also says that any act in respect of
or "consequent upon" the overthrow of the government on 31 December 1981, cannot to be inquired into for
the purpose of granting any reliefs sought against the government I have to decide whether the plaintiff's
case is "consequent upon" the 31 December coup. The whole basis or foundation of the plaintiff’s case is
that the 31 December coup—or in otherwords the overthrow of the government in power on 31 December,
by the PNDC was unconstitutional, and therefore that by virtue of the letter and spirit of articles 3(3), 35(1)
and 41 (b) of the Constitution, 1992 the celebration of 31 December as a public holiday as enacted in
PNDCL 220 is also unconstitutional and is null and void. I am firmly of the view that the [p.160] plaintiff's
case is caught by the clear and unambiguous provisions of section 34(2)(a) of the transitional provisions of
the Constitution, 1992. The ordinary meaning of the words consequent upon according to the Oxford
Advanced Learner's Dictionary is following as a consequence. If the declaration of 31 December—which is
really the coup of 1981—as a public holiday, as enacted in PNDCL 220, is not consequent upon the
overthrow of the Limann Government, I do not know what it is consequent upon.
We have to ask this question for the proper answer. What was the reason for declaring 31 December a
public holiday? The answer is obvious; it is to commemorate the 31 December coup which overthrew the
Limann administration in 1981 by the PNDC. I do not think that this can seriously be challenged. The words
"consequent upon" was used in a similar provision of the Constitution, 1969. Section 13(3) of the
transitional provisions of the Constitution, 1969 like section 34(2) of the transitional provisions of the
Constitution, 1992 provided in exact words:
"(3) For the avoidance of doubts, it is hereby declared that no Court shall entertain any action or take any
decision or order or grant any remedy or relief in any proceedings instituted against the Government of
Ghana, or any person acting under the authority of the Government of Ghana whether before or after
coming into force of this Constitution or against any person or persons acting in concert or individually to
assist or bring about the change in government which took place on the twenty-fourth day of February,
1966, in respect of any act or omission retating to, or consequent upon,
(a) the overthrow of the government in power before the formation of the National Liberation Council; or
(b) the suspension of the Constitution which came into force on the first day of July, 1960, or any part
thereof, or
(c) the establishment of the National Liberation Council; or
(d) the establishment of this Constitution."
In the case of Donkor v The Republic [1971] 1 GLR 30, SC the Supreme Court, coram Apaloo, Siriboe,
Sowah, Anin and Archer JJA (as they then were) were called upon to give the interpretation of the phrase
"consequent upon." The facts as stated in the headnote are that:
"After the 1966 February coup, two cars belonging to the plaintiffs in this consolidated suit were seized on
the orders of the National [p.161] Liberation Council. In July of the same year the National Liberation
Council (Impounded Vehicles) Decree, 1966 (N.L.C.D. 61), was passed with retroactive effect to give good
title to people to whom unbounded vehicles had been sold, provided money was owed on these vehicles to

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the government or the Ghana Commercial Bank. The plaintiffs brought this action against the government in
the High Court for damages for wrongful seizure. The trial judge referred the matter to the Court of Appeal
sitting as the Supreme Court under the Transitional Provisions of the Constitution to determine whether on
the proper interpretation of section 13(3) of the Transitional Provisions of the Constitution (Sched. 1) the
court had any jurisdiction to entertain the suit. Counsel or the government argued that since the seizures
were traceable in one way or the other to the overthrow of the former government, they were the types of
acts envisaged by section 13(3). But counsel for the plaintiffs replied that the National Liberation Council
could not have contemplated the seizure of the cars to assist or bring about the events contemplated by
section 13(3).
Held: the ordinary interpretation of the phrase 'consequent upon’ in section 13(3) of the Transitional
Provisions of the Constitution suggests that the seizures followed as a result of the coup and that the
National Liberation Council must have considered the acts necessary for its own purposes. Proceedings
instituted against the government before the promulgation of the Constitution in respect of acts which were
consequent upon the overthrow of the former government are forbidden by the peremptory provisions of
section 13(3) of the Transitional Provisions of the Constitution and therefore the High Court has no
jurisdiction to entertain the suits which should be struck out."
(The emphasis is mine.) In the result, I find that the celebration of 31 December as a public holiday is
"consequent upon" the overthrow of the Government of Limann by the PNDC in 1981 and I so hold.
Consequent upon this finding, section 34(2)(a) of the transitional provisions of the Constitution 1992
automatically comes into effect.
I am of the view that even if I had found that the celebration of 31 December as a public holiday is
unconstitutional as being inconsistent with any provision of the Constitution, 1992 and therefore null and
void, [p.162] —still section 34(2)(a) of the transitional provisions of the Constitution, 1992 would operate to
oust the jurisdiction of this court from granting the relief sought by the plaintiff. Article 299 of the
Constitution, 1992 provided that: "The transitional provisions specified in the First Schedule to this
Constitution shall have effect notwithstanding anything to the contrary in this Constitution."
By the effect of article 299 of the Constitution, 1992 section 34(2)(a) of the transitional provisions of the
Constitution, 1992 clearly override the other constitutional provisions in certain circumstances as stated in
section 34(2) of the transitional provisions of the Constitution, 1992. It is not for me to pass judgment on the
merits and demerits of these provisions, my duty is to give judicial interpretation to the words as I find them.
In this exercise, I have derived much support from the case of Kwakye v Attorney-General (supra) in which
the Supreme Court considered the effect of similar provisions in the transitional provisions of the
Constitution, 1979 as regards the effects of the ouster provisions. Sections 15 and 16 thereof are equivalent
to sections 34 and 35 of the transitional provisions of the Constitution, 1992. That was a case in which the
plaintiff issued a writ in the Supreme Court for a declaration that he was never tried, convicted or sentenced
by any special court established under the Armed Forces Revolutionary Council (Special Courts) Decree,
1979 (AFRCD 3) and that the purported imprisonment of 25 years imposed on him, as published in the
national press, was an infringement of his fundamental human rights, inconsistent with chapter 6 of the
Constitution, 1979, void and of no effect.
The plaintiff also filed a statement of his case in accordance with rule 46 of the Supreme Court Rules, 1970
(CI 13). The Attorney-General, however, did not file any statement of defence as required by CI 13 but
instead moved to have the plaintiff's action struck out in limine on the ground, inter alia, that on the facts as
pleaded by the plaintiff himself, the AFRC took or at least purported to have taken a judicial action against
him, accordingly sections 15 and 16 of the transitional provisions of the Constitution, 1979, particularly
section 15(2) forbade the court from entertaining the plaintiff’s action or granting the plaintiff any remedy. In
the court's ruling: see Kwakye v Attorney-General [1981] GLR 9, SC the Supreme Court unanimously held
that the defendant who was claiming that the jurisdiction of the Supreme Court had been ousted by the
provisions of section 15(2) of the transitional provisions of the Constitution, 1979 ought to provide factual
basis for the application of those ouster, provisions, and gave the defendant all opportunity, [p.163]
notwithstanding his lateness, to relate his version of the facts by filing a statement of his case within seven
days. The defendant obliged and at the subsequent trial, led both oral and documentary evidence with a
view to showing that a judicial action or purported judicial action was taken against the plaintiff by the
special court within the meaning of section 15(2) of the transitional provisions of the Constitution, 1979. On
the evidence, the Supreme Court had to decide on the issue whether the court's jurisdiction to grant the
declaration sought by the plaintiff was ousted by the said ouster clause, ie section 15(2) and (3) of the
transitional provisions of the Constitution, 1979. The court held in Kwakye v Attorney-General (supra), as
stated in the headnote at 949 holding (2), dismissing the plaintiff's action per Apaloo CJ, Archer, JSC (as he
then was), Charles Crabbe and Adade JJSC (Anin and Taylor JJSC dissenting):
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"(2) The effect of section 15(3) of the transitional provisions was to prevent non-compliance with ‘any
procedure prescribed by any law' being used as a necessary pre-condition for the operation of the ouster
clause in section 15(2). In other words, irregularities in the mode of trial would not prevent the ouster clause
from having its intended effect."
In that case, the dissenting judges did not deny the intended effect of section 15(2) of the transitional
provisions of the Constitution, 1979. They found that since there was no "purported" action, section 15(2) of
the transitional provisions of the Constitution, 1979 did not apply to oust the jurisdiction of the court. Apaloo
CJ said at 957-958:
"On the evidence, is it reasonable to conclude that the Armed Forces Revolutionary Council took or
purported to take judicial action against the plaintiff? That immediately requires the correct interpretation of
section 15(2) of the transitional provisions which we have already quoted. That section contains what
lawyers call an ouster clause, ousting the normal jurisdiction of the courts. This particular ouster clause
does not arise from an ordinary statute but is a constitutional provision. Moreover, article 217 of the
Constitution, 1979, gives the transitional provisions effect notwithstanding anything to the contrary
contained in the Constitution.
In the exercise of the interpretative jurisdiction of this court, it is obvious that we should go beyond statutory
interpretation since [p.164] we are concerned with the most fundamental issues of our jurisdiction . . . I think
originality is required of us in the exercise of our original jurisdiction if we are to attend to the letter and spirit
of the Constitution as the basic law of our land. That originality must, of course, be judicial and must not do
damage to the plain and obvious meaning of the words used nor is it the province of this court to be astute
to find some reason or other for depriving the constitutional provision of an effect clearly intended."
Archer JSC (as he then was) also stated at 981:
"Considerations of want of jurisdiction, excess of jurisdiction, errors of law or fact on the face of the record
have been rendered totally irrelevant by sections 15(2) and (3) and 16 of the transitional provisions, The
effect of these sections can best be ascertained by taking into account the political antecedents of the
present Constitution. Our political leaders had to negotiate with those who had seized power in connection
with their handing over to a civilian government and the reinstatement of our liberties. These political facts
are so notorious trial they should not be judicially overlooked. The courts have been prevented from
conducting any transillumination into the affairs of the A.F.R.C. And I think the matter should rest there."
Charles Crabbe JSC also observed at 1031:
"A Constitution is something more than a mere Act of Parliament. All the organs of government derive their
authority and their sustenance from the Constitution. Thus a cardinal principle in the interpretation of a
Constitution is to avoid a construction which renders meaningless or inoperative any provision of the
Constitution. The same principle applies to the words of the Constitution. Every word must be construed to
make it operative and not idle or nugatory. The express intent of the framers—as disclosed by the words
used—must be respected. The purpose and intent of the framers—as disclosed by the words used—must
be given their true signification. And so, I must reiterate the clear words of article 217. It states clearly that:
'The transitional provisions specified in the First Schedule to [the] Constitution shall have effect
notwithstanding anything to the contrary contained in [the] Constitution.' Among those provisions contained
in the First Schedule which shall have effect notwithstanding anything to the contrary contained in [p.165]
the Constitution, are sections 15 and 16 of the First Schedule. There is no ambiguity about the words of
article 217 of the Constitution. Effect must be given thereto."
And Adade JSC also stated at 1038:
"Be that as it may, section 15(2) seeks to protect not only perfect judicial actions, but imperfect ones also,
such as, in my view, 'the trial' described by Squadron Leader Segbefia. It was a purported trial; a judicial
action purported to have been taken by the Armed Forces Revolutionary Council Special Court.
Accordingly, section 15(2) operates to remove the action from the jurisdiction of the court. The action cannot
be 'questioned in any proceedings whatsoever . . . and it will be unlawful to grant any remedy or relief in
respect thereof.' Indeed, having regard to the provisions of article 217 of the Constitution, 1979, it will be
unconstitutional to grant any such remedy."
I associate myself completely with the above quoted passages contained in the opinions given by my
learned and respected brothers as to the interpretation and effect of the ouster clauses in sections 15 and
16 of the transitional provisions of the Constitution, 1979. They are perfectly right. For the important and
relevant words of section 15(3) of the transitional provisions of the Constitution, 1979 I would substitute
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section 34 of the transitional provisions of the Constitution, 1992. Section 34(2)(a) of the transitional
provisions of the Constitution, 1992 needs to be referred to again for convenience and emphasis. It
provides:
"(2) It is not lawful for any court or tribunal to entertain any action or take any decision or make any order or
grant any remedy or relief in any proceedings instituted against the Government of Ghana or any person
acting under the authority of the Government of Ghana whether before or after the coming into force of this
Constitution . . . in respect of the any act or omission relating to, or consequent upon—
(a) the overthrow of the government in power before the formation of the National Liberation Council, the
National Redemption Council, the Supreme Military Council, the Armed Forces Revolutionary Council and
the Provisional National Defence Council."
(The emphasis is mine.) See also as to the effect of the transitional [p.166] provisions contained in article
176 of the Constitution, 1969 which was considered in the case of Sallah v Attorney-General (supra) per
Anin JA (as he then was). He said at 502:
“Article 176 provides that the 'transitional provisions specified in the First Schedule to this Constitution shall
have effect notwithstanding anything to the contrary contained in this Constitution.' I would have thought
that this article 176 should be held to override any inconsistent rules in the Transitional Provisions, which
deal with matters of a temporary or fleeting nature. In fact, article 177 ensures that in the next reprinting of
the Constitution within five years, the whole of the Transitional Provisions should disappear. from the printed
Constitution. The reason is clear: the Transitional Provisions would by then have become effete and a spent
force. Be that as it may, I hold that the references to the Constitution in section 9(1) are cancelled out by the
clear, unambiguous provisions of article 176. As in the case of an estoppel against estoppel the matter is
put at large; and, in my opinion, effect ought to be given to section 9(1) of the Transitional Provisions
without reference to any contrary article in the main Constitution."
He dismissed the action.
In view of my earlier finding that the plaintiff's case is consequent upon the overthrow of the Limann
Government by the PNDC in 1981, this case is automatically caught by the provisions of section 34(2)(a) of
the transitional provisions of the Constitution, 1992 and effect must be given to that section. This court is
precluded from granting the remedy sought by the plaintiff.
I repeat, my duty is to interpret the Constitution, 1992 as well as the transitional provision in the First
Schedule thereof together, and to uphold the Constitution as I find it. I can only discharge this duty by
refusing to grant the reliefs sought in the plaintiff's writ for the reasons given above, namely that I do not find
any patent or latent inconsistency between the relevant portion of PNDCL 220 and the articles specifically
mentioned in the plaintiff's writ, or any other articles in the Constitution, 1992. Even though it is my opinion
that by the correct interpretation of the Constitution, 1992, the 31 December holiday is not tainted by
unconstitutionality, this does not mean that PNDCL 220 cannot be legislatively amended to exclude that
date from the list in the Schedule to the said enactment if such a result is desired by this or any other
government. However, in this case, it would be very wrong to allow the [p.167] achievement of this result
through constitutional rather than legislative means. This is the justice of the matter and I say so without
fear or favour, affection or ill will.
It is for the above reasons that I disagreed with the majority judgment in this case.
JUDGMENT OF CHARLES HAYFRON-BENJAMIN JSC.
In the American case of Gibbons v Ogden, 22 US (9 Wheat) 1 at 221-222 (1824), Justice William Johnson
of the United States Supreme Court commenced his opinion contributed for that judgment in words of such
great felicity as represent my attitude to the hearing and determination of this constitutional matter in
particular and generally with regard to my approach to the determination of all constitutional matters; said
the learned judge:
"The judgment entered by the Court in this cause, has my entire approbation; but having adopted my
conclusions on views of the subject materially different from those of my brethren, I feel it incumbent on me
to exhibit those views. I have, also, another inducement: in questions of great importance and great
delicacy I feel my duty to the public best discharged, by an effort to maintain my opinions in my own way.

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In attempts to construe the constitution, I have never found much benefit resulting from the inquiry, whether
the whole, or any part of it, is to be construed strictly, or literally. The simple, classical, precise, yet
comprehensive language, in which it is couched, leaves, at most, but very little latitude for construction; and
when its intent and meaning is discovered, nothing remains but to execute the will of those who made it, in
the best manner to effect the purposes intended."
On 29 December 1993 I cast my vote in favour of granting the amended declarations. I did so—and I
believe my learned and respected sister and brethren did the same in their own ways—after having
seriously digested the arguments advanced by the parties. Again the novelty of the declarations sought was
enough to excite such attention as would warrant the expression of views which may be materially different
but nevertheless reaching the same conclusions. My conclusions therefore agree with the majority of my
learned and respected sister and brethren but my reasoning may be entirely different.
In the Gibbon's case (supra) the United States Supreme Court was considering the interaction between the
federal and state laws regarding [p.168] inter-state commerce. It is not necessary for my purposes here to
set out the facts. But the concurring judgment of Mr Justice Johnson to which I have referred postulated
that it was not necessary for the court (ie the US Supreme Court) to construct constitutional provisions
literally or strictly. The court's duty was simply to discover the intent and meaning and then to give effect to
the will of those who made it—that is the will of the framers of the Constitution—and so say I.
Within our municipality, the matter has been put very succinctly in the words of Sowah JSC (as he then
was) in Tuffuor v Attorney-General [1980] GLR 637 at 647—648, CA sitting as SC when speaking of the
language of the framers of the Constitution, 1979—which I say should apply with equal force to our attitude
to the present Constitution, 1992 that:
"Its language. therefore, must be considered as if it were a living organism capable of growth and
development. Indeed, it is a living organism capable of growth and development, as the body politic of
Ghana itself is capable of growth and development. A broad and liberal spirit is required for its
interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not
do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity
with the needs of the time.
And so must take cognisance of the age-old fundamental principle of constitutional construction which gives
effect to the intent of the framers of this organic law. Every word has an effect. Every part must be given
effect."
My duty therefore was to discover the "intent and meaning" of the presentations made to us in the present
case with respect to our Constitution, 1992 and apply "a broad and liberal spirit" in its interpretation. There
is no benefit in these modern times in applying a strict interpretation of modern democratic Constitutions.
So to do would mean that we forget that Constitutions are made by men for the governance of men. The
Constitution, 1992 is therefore the sum total of our hopes, disappointments, experiences, aspirations and
expectations as a nation. If we therefore forget the historical development of our Constitution, 1992 then we
fail to recognise that "it is a living organism capable of growth."
A serious examination of the pleadings in this case clearly shows that the statement of the defendant's case
virtually admitted the facts as stated [p.169] in the plaintiff’s statement of case. True, the defendant's case
contained examples of what is called in pleadings, "confession and avoidance." But it must be admitted that
a "confession and avoidance" is not a denial. However, by that technique the defendant has raised certain
matters of law which will be dealt with in this opinion. For my part, I do not consider it necessary to set out
the facts of this case. Suffice it to say that some of my learned and respected sister and brethren have done
so in their opinions.
The main issues for consideration by this court were (1) whether it was constitutionally permissible for the
31 December 1981 action to be celebrated as a public holiday, and if so (2) whether state funds should be
used in the celebration of that holiday. No difficulty arises with the second issue. For if it is constitutionally
permissible to celebrate 31 December as a public holiday then the State would be at liberty to furnish funds
for its celebration. Yet again if it was not constitutionally permissible to celebrate 31 December as a public
holiday by reason of the inconsistency of such celebration with any provision of the Constitution, 1992, then
the plaintiff was entitled to the declarations sought. I need not remind myself that 31 December 1981 was
the day on which the lawful civilian government established under the Constitution, 1979 of the Third
Republic was violently overthrown.
In argument before us the Deputy Attorney-General, Mr Martin Amidu, conceded with characteristic
frankness that "the action of 31 December 1981 was violent." It must however be said in his favour that he

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distinguished this day of violence from "the gains of the revolution" which had culminated in the framing and
promulgation of the Constitution, 1992 of the Fourth Republic.
In my respectful opinion, the Deputy Attorney-General was right in making the distinction between "the
action of 31 December 1981 " which was "violent" and the "gains of the revolution" which it must be
conceded have given us the best democratic Constitution which our country has ever had. The Deputy
Attorney-General, however, missed the point when he referred to revolutions in other parts of the world as
parallels to the 31 December revolution in this country. His references to the American and French
Revolutions not proving convincing enough, the honourable gentleman more in jest than in exasperation
referred to "Guy Fawkes Day" celebrated in the United Kingdom. Of course "Guy Fawkes Day" is not
celebrated in the United Kingdom as a holiday.
I am not minded to discuss these revolutions referred to by the Deputy Attorney-General. It will however be
enough to point out two [p.170] important distinctions between these revolutions and "the action of 31
December 1981." First, no one who rook part in those revolutions was granted an indemnity. Secondly, save
that these revolutions gave rise to the modern concepts of democracy, none of them evolved a political
philosophy as is the case here in this country. The four pillars of the 31 December revolution are firmly
rooted in our present Constitution, 1992 and are denominated: freedom, justice, probity and accountability.
The defendant contends in paragraph (14) of his statement of case that:
"The President of the Republic who is also the chairman and leader of the 31 December Revolution and the
members of Parliament of the NDC Party to which the President belongs, were elected on the party
manifesto whose underpinning was continuity of the good works and values of the 31 December
revolution."
He is correct. The averment only goes to confirm my view that the "gains of the revolution" constitute a
political philosophy which remains to be tested under a multy-party democratic Constitution. It makes no
difference that the philosophy is being spearheaded by a particular party. As was said of early Christianity
by Gamaliel, a doctor of the law in Acts 5, 38—39 “ . . . if this counsel or this work be of men, it will come to
nought but if it be of God, ye cannot overthrow it; lest happy ye be found even to fight against God." For my
part, I can conceive a clear distinction between this laudable political philosophy and the "action of 31
December 1981."
In argument before us, learned leading counsel for the plaintiff, Mr Peter Ala Adjetey, referred us to the
provisions of section 34 of transitional provisions to the Constitution, 1992 which mentions 31 December
1981. Also the statement of the case for the defence referred to the Public Holidays Law, 1989 (PNDCL
220) which mentions 31 December.
I believe I heard in conference a proposition that the plaintiff's writ had failed to pin-point specifically any
relevant provision of the Constitution, 1992 which was inconsistent with the proposed celebration to mark
the twelfth anniversary of 31 December 1981 (Revolution Day). In the proponents' view, the plaintiff having
so failed, it was out of court and the writ should be dismissed.
Of course I disagree with such a formulation. Not only is it the adoption of a strict construction of the
Constitution, 1992—which I say is contrary to modern concepts of constitutional interpretation—but it
[p.171] also wholly ignores the letter and spirit of the Constitution, 1992. If I understand the case of the
plaintiff correctly, it contends that the proposed celebration of the 31 December holiday runs counter, to the
letter and spirit of the Constitution, 1992 as illustrated by references to certain articles of the Constitution,
1992 and in particular to section 34 of the transitional provisions of the Constitution, 1992 which has
declared 31 December 1981 and other dates dies horribillis and for which certain classes of persons have
been indemnified.
The defendant sought refuge in PNDCL 220 and contended: "that 31 December like all public holidays in
Ghana is a public holiday by the provisions of section 1 . . . " There could be no quarrel with that pleading if
31 December was a day unknown to the Constitution, 1992. But, as it is, that date is mentioned in section
34 of the transitional provisions to the Constitution, 1992. It is therefore wrong for the proponents of the
strict interpretation or construction principle to say that the actions complained of do not offend against any
article of the Constitution, 1992. The transitional provisions to the Constitution, 1992 are part of the
Constitution, 1992. In fact the superior efficacy of the transitional provisions is clearly demonstrated by the
provisions of article 299 of the Constitution, 1992 which provides that: "The transitional provisions specified
in the First Schedule to this Constitution shall have effect notwithstanding anything to the contrary in this
Constitution."

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In Kuenyehia v Archer [1993-94] 2 GLR 525, SC I had occasion to consider briefly the intendments of
article 299 of the Constitution, 1992. Then I said at 000 that "there is a severe injunction placed on us by
the Constitution, 1992 as to how wide we can extend our researchers." I concluded that the true intendment
of article 299 of the Constitution, 1992 prevents the Constitution and the transitional provisions from being
read together. What I meant was that the transitional provisions have been superimposed on the
Constitution, 1992 and if there was reference in the former affecting any matter, then notwithstanding
anything to the contrary in the latter the former shall prevail. I think the plaintiff demonstrated by its
statement of case and argument advanced before us by learned counsel that it was properly before us. This
court has said times out of number that it will not allow technicalities to becloud or stultify the need to do
justice to the parties appearing before it. I think that in constitutional matters it is the clear duty of this court
to gather the issues from the four corners of the statements of the case for the parties, discover the intent
and meaning of the letter and spirit of the Constitution, 1992 or of any relevant article therefore and "to
execute the [p.172] will of those who made it, in the best manner to effect the purpose intended."
It is clear from the plaintiff's amended writ that it was invoking the provisions of article 2 of the present
Constitution, 1992. A similar provision in the Constitution, 1979 came up for consideration by the Supreme
Court on 22 March 1981 in the case of Kwakye v Attorney- General [1981] GLR 9, SC. Delivering the ruling
of the court Apaloo CJ at 13 of the report said of article 2(1)(b) of the Constitution, 1979:
"That the Constitution, 1979, clothes this court with jurisdiction to make the declaration sought by the
plaintiff in a fit case is hardly in doubt . . .
It is precisely that complaint that the plaintiff makes. If we construct article 2(1) (b) alright, he is entitled to
invoke the jurisdiction of this court as soon as the act complained of was committed or even threatened .. .
Indeed the 'unconstitutional' act may be one which demands the timeous intervention of this court."
Article 2 of the Constitution. 1992 like the same article in the Constitution, 1979 deals with two situations.
First, where any enactment is inconsistent with or is in contravention of a provision thereof, and secondly,
where any act or omission similarly is inconsistent with or in contravention of the Constitution. In my
respectful opinion, any date mentioned in section 34 of the transitional provisions to the Constitution, 1992
is to the extent of such mention inconsistent with the letter and spirit of the Constitution and void.
By paragraph (15) of the defendant's statement of case, the defendant states:
“(15) The defendant maintains that what the plaintiff is seeking to do is to question the constitutionality and
legality of the 31 December revolution and the event which gave rise to the revolution of 31 December 1981
which should not be entertained by the court by virtue of section 34, particularly subsection (2) of the
transitional provisions scheduled to the Constitution.”
I think that the subsection which the defendant wanted to refer to was subsection (3) of section 34 of the
transitional provisions of the Constitution, 1992. Certainly, I find no difficulty with the interpretation of section
34(2). The protection or indemnity granted to the classes of persons described in that subsection is limited
to persons who [p.173] individually or in concert did., "assist or bring about the change in Government" on
these specified days in respect of any act or omission relating to or consequent upon the matters stated in
the clauses on that subsection.
I would ordinarily pass over that objection as being irrelevant. But with the knowledge that what the
defendant meant was a reference to section 34(3) of the transitional provisions of the Constitution 1992, I
think it is but fair that I give him the benefit of the correction and proceed to express myself on the quality of
that averment.
Section 34(3) and (4) of the transitional provisions of the Constitution, 1992 are in similar terms as section
15 (2) and (3) of the transitional provisions of the Constitution, 1979. The latter provisions found
construction in Kwakye v Attorney-General [1980] GLR 944, SC.
In that case, Archer JSC (as he then was) said at 976:
"The true meaning of section 15(2) appears to be that whenever the court is satisfied that the A.F.R.C. took
or purported to take an executive, legislative or judicial action, then that court shall not question the validity,
the correctness, the fairness or the justice of that decision or action."
(The emphasis is mine.) Then Taylor JSC also said at 1059:
"Section 15(2) and (3) of the transitional provisions saved executive, legislative and judicial acts taken or
purported to be taken by the Armed Forces Revolutionary Council or its lawful agent from being questioned

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in court."
Yet again in the Kwakye case (supra) at 1071 Taylor JSC said:
"I must remark that section 15(3) of the transitional provisions is clearly inapplicable as it merely saved
procedural defects. Where the defects are of substantive legal requirements, they cannot be considered as
procedure prescribed by law."
The Kwakye case (supra) was a split decision—5 to 2—the majority voting in favour of dismissing the case.
But reading the opinions of their lordships, it is clear that they all appreciated that there was no carte
blanche indemnity granted as generally understood by the popular and untutored world. Speaking for
myself, I think that there is no difficulty in the interpretation of section 34 of the transitional provisions of the
Constitution, 1992. I have already delivered myself on my views on subsection 2 of that section. What
appears not to commend itself to easy [p.174] rendering is the expression "action" in section 34(3) of the
transitional provisions of the Constitution, 1992. In my respectful opinion, the expression "action" within the
intendment of that subsection means any function in the semblance of an executive, legislative or judicial
process exercised or purported to have been exercised by any of the military regimes mentioned in that
subsection. I think it is only in this sense that the majority view can claim to be correct.
The plaintiff's writ therefore cannot be caught by section 34(2) and (3) of the transitional provisions of the
Constitution, 1992. If I read that section correctly, as indeed I have already so done, the subsections are
clearly saying that all those dates mentioned therein were days when illegalities in the eyes of the
Constitution were committed against the established constitutional order, but that in the spirit of and
commitment of the Constitution, 1992 to the "unity and stability of our Nation" (see the preamble to the
Constitution) the perpetrators shall not be liable to civil action or criminal prosecution and no action or
proceedings may be instituted against the lawful government for any such defaults.
By his statement of case the defendant contended that:
" . . . whether or not public funds should be appropriated for the celebration of the 31 December revolution
is a political question which is best left to the electorate which votes a government into power and a
Parliament which can by law decide what public holidays in Ghana shall be."
In argument before us, the Deputy Attorney-General extended the ambit of the above-stated averment and
submitted that his contention of the principle of non-justiciability on the grounds of the political question
included the 31 December holiday itself. In his view, the court had no jurisdiction to embark on the inquiry
on hand as it was more competent for another arm of government to resolve. Further, that there were
overriding public policy considerations which should prevent this court from adjudicating on the matter. In
short, on the grounds of a non-justiciable political question and on the ground of public policy we should
declaim jurisdiction.
The Deputy Attorney-General referred us to a number of English and United States cases which he
submitted were in point and supportive of the stand which he had taken. I have since our judgment of 29
December 1993 had opportunity to examine almost all the cases so cited and I am confirmed in my mind
that my decision was right. The English cases dealt mainly with matters of public policy. The case which
commends [p.175] itself to my attention is Scranton’s Trustee v Pearse [1922] All ER Rep 764, CA. In this
case, the headnote reads:
"A trustee in bankruptcy sought under the provisions of the Gaming Act, 1835, to recover from a bookmaker
certain sums which the bankrupt had paid by cheque to the bookmaker in respect of betting losses.
Held:
Since the trustee was seeking to enforce a claim in respect of a debt which was a chose in action and, by
the Bankruptcy Act, 1914, s. 18, was made part of the assets of the bankrupt which vested in the trustee,
and since there was nothing in the doctrine laid down in Ex parte James (1874) 9 Ch. App. 609, which
entitled the court to say that, in such a case as this, it was dishonourable or improper or unconscionable for
the trustee, as an officer of the court, to enforce it, the trustee’s position not being the same as that of the
bankrupt if he had remained solvent and had brought the action himself, the trustee was entitled to
succeed."
I could not immediately fathom the relevance of this case to the defendant's presentation. But I find in the
dictum of Warrington LJ at 772-773 of the report perhaps something useful. Said the learned law lord:

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"All I can say is, if we are to decide cases depending on statute on any such footing as that, we are, as
judges, not administering the law but administrating that which has been vaguely referred to as the general
policy of this country. That is not what we are here for. We are here to administer the law as it stands. It is
the legislature which has to do with the policy of the country, and not the judges, who administer the law.
Therefore, in this case where, as I have said, the trustee is only exercising a right which is vested in him by
statute, a right which he is entitled to exercise, and which I think I may go further and say he is bound to
exercise, for the benefit of the creditors amongst whom the property is divisible, it would be wrong to
interfere with that right by prohibiting the trustee from bringing the action which he is entitled to bring."
By this and the other English decisions, the Deputy Attorney-General was submitting that on matters of the
administration of "the general policy of this country" judges are not fitted to pronounce thereon. In the words
of Warrington LJ “it is the legislature which has to do with the policy of the country.”
[p.176]
I think Deputy Attorney-General misunderstands the context in which the dictum was pronounced. First, the
English—or should I say the British—pride themselves on not having a written Constitution. Next,
Parliament in British is supreme. Third, the judge's duty is to apply the law. Clearly, commentary on any
aspect of public policy by a British judge is uncalled for. As Lord Sterndale MR said in the same case at 770
of the report:
"I think all this court can do is to look at the Act of Parliament and see to the best of its ability what it said,
and, having found that out, to obey it and give effect to it, and it ought not to consider whether, in the
opinion of the court, the legislation is consistent with the general trend of opinion in the country."
Not so in this country we have a written Constitution which is the supreme law of the land. All laws and acts
or omissions which are inconsistent with or in contravention of any provision of the Constitution are void
and this court is empowered by the Constitution to make declarations to that effect. In the area of public
policy, it was the Deputy Attorney-General himself who referred this court to article 35(1) of the Constitution,
1992. I think he meant to refer us to article 34(1) of the Constitution, 1992. Chapter 9 of the Constitution,
1992 of which article 34(1) forms part deals with "the Directive Principles of State Policy.”
For the sake of brevity article 34(1) of the Constitution, 1992 reads:
"'34.(1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament,
the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and persons
In my respectful opinion, nothing in the Constitution, 1992 precludes this court—or indeed any court—from
pronouncing on matters of public policy. This court is therefore, even on the grounds of public policy,
entitled to decide whether the 31 December holiday is inconsistent with the letter and spirit of the
Constitution, 1992.
The final submission of the Deputy Attorney-General emanating from the averment contained in his
statement of the defendant's case was that the plaintiff's case raised a non-justiciable political question.
Simply put, if the matter in issue could be dealt with by any other arm of government and the Constitution,
1992 said so, then the court must [p.177] decline jurisdiction. His contention was that since it was
Parliament which under the doctrine of separation of powers had the responsibility for controlling legislation
it was fully within its authority to make a law abolishing 31 December as a public holiday. He did not,
however, touch on the issue of whether if the said legislation was claimed to be inconsistent with or in
contravention of the Constitution which arm of the State under the Constitution had the authority to so
declare. He however relied principally on the United States case of Baker v Carr, 369 US 186 (1962).
In the Baker case (supra), the plaintiff, Baker, sought through the federal courts to obtain the
reapportionment of the voting districts in the State of Tennessee on the ground that since the 1901 census,
the population had grown at different rates in different voting districts. Consequently, there was unequal
representation which he considered unconstitutional. The state legislature as then composed would not
pass a constitutional amendment to rectify the situation. The plaintiff lost his case in the lower federal courts
on the grounds of non-justiciability. He appealed.
The issue before the United States Supreme Court was whether the courts possess jurisdiction over a
constitutional challenge to a legislative apportionment? The clear answer was "Yes." I cannot do better than
cite a short portion of the opinion of the court delivered by Justice Brennan which illustrates the
circumstances in which the issue of a political question may arise. At 217, he said:
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"It is apparent that several formulations which vary slightly according to the settings in which the questions
arise may describe a political question, although each has one or more elements which identify it as
essentially a function of the separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
the impossibility of a court's undertaking independent resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for unquestioning, adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on [p.178] one question.
Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for
nonjusticiability on the ground of a political question's presence."
Another United States case which amply illustrates the principle under consideration is Powell v
McCormack, 395 US 486 (1969). Mr Adam Claton Powell, Jnr, a Negro, was duly elected a representative
to the 90th Congress of the United States. However, pursuant to a resolution of the house, he was not
permitted to take his seat. He sued McCormack, the Speaker and other officials of the house claiming that
since he had met all the formal requirements under the United States Constitution for membership of the
house, and the house had specifically found that he had met those requirements, the resolution of the
house excluding him from membership was invalid. The district court dismissed the complaint "for want of
jurisdiction of the subject matter" and the Court of Appeal affirmed the decision of the district court. He
appealed to the Supreme Court.
Before the United States Supreme Court the issue was whether the federal court was prevented from
reviewing the congressional exclusion of a duly elected member by the prohibition against deciding political
questions. The court answered in the negative. The defendants had contended that there is a "textually
demonstrable constitutional commitment" to the house of its "adjudicatory power" to determine Mr Powell's
qualifications. In answer, the court said it had the duty to interpret the Constitution in order to determine the
existence and scope of such a power. In the view of the court, Mr Powell was right in his contention that the
house had no authority to exclude him or any person if he satisfied the membership requirements. It was
the duty of the Congress to determine the compliance with the qualifications set forth in the Constitution, but
the courts were not debarred from reviewing congressional judgments that extended beyond these
qualifications.
Further, the defendants submitted that they feared a potentially embarrassing confrontation between co-
ordinate branches of the federal government and contended that by that reason the case presented a
political question. But the court said that the alleged conflict which such an adjudication might cause could
not justify the court avoiding its constitutional duty of interpretation.
The whole principle of a non-justiciable political question is an American formulation. While it may be
relevant to our situation because [p.179] it is a development from a written democratic Constitution, I think
there are so few parallels between the two Constitutions on this principle that its application to our
Constitution, 1992 must necessarily be limited.
By article 2 of our Constitution, 1992 this court has the exclusive jurisdiction to determine whether any
statute, act or omission is inconsistent with or in contravention of any provision of the Constitution. Next, by
article 130 of the Constitution, 1992 this court has exclusive original jurisdiction in all matters relating to the
enforcement or interpretation of our Constitution. The original jurisdiction extends to all matters "arising as
to whether an enactment was made in excess of the powers conferred on Parliament or any other authority
or person by law or under this Constitution." Again, constitutional matters which arise in the lower courts
must as provided under article 130(2) of the Constitution, 1992 be referred to this court—the Supreme
Court—"and the court in which the question arose shall dispose of the case in accordance with the decision
of the Supreme Court." It seems to me therefore that by the nature of our Constitution the principle of a non-
justiciable political question can only arise where the Constitution, 1992 expressly commits a particular
responsibility to some arm of government. A clear example may be the power of the President to appoint
ambassadors under article 74(1) of the Constitution, 1992.
In the present case, the principal issues were (1) whether the celebration of the 31 December holiday was
inconsistent with or in contravention of a provision of the Constitution, 1992; and (2) whether public money
should be used in its celebration. No political question arose. The matter was firmly within the jurisdiction of
this court.

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Having this discovered the "intent and meaning" of the framers of the Constitution, 1992, who were largely
composed of the representatives of the revolutionary organs, I think the public interest was best served by
"executing the will of the framers of the Constitution "in the best manner to effect the purposes intended."
JUDGMENT OF AMPIAH JSC.
On 29 December 1993 this court gave judgment for the plaintiff and ordered that 31 December of each year
should not be celebrated as a public holiday. Reasons for the judgment were reserved. It was unfortunate
that I could not agree with the majority of my brothers on the judgment. In my opinion, the plaintiff's claim
should fail. I now proceed to give reasons for my dissent.
By its writ of summons as amended, the plaintiff claimed:
[p.180]
Ghana on 31 December 1981 and the financing of such celebration from public funds is inconsistent with or
in contravention of the letter and spirit of the Constitution, 1992 and more particularly articles 3(3), (4), (5),
(6) and (7) and 35(1) and 41(b) thereof.
(The emphasis is mine.) This action has been brought by the invocation of the original jurisdiction of the
Supreme Court under articles 2(1)(a) and 130(1) of the Constitution, 1992 and rule 45 of the Supreme
Court Rules, 1970 (CI 13).
The plaintiff is a political party registered under the laws of this country, and the defendant is the
representative of the Government of Ghana through whom all actions against the government are brought.
Under article 2(1) of the Constitution, 1992:
"2. (1) A person who alleges that—
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
Article 130(1)(a) gives the Supreme Court exclusive original jurisdiction in—
"(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 other authority or person by law or under this Constitution."
By its first claim the plaintiff had contended that the celebration of 31 December as a public holiday would
be "inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 and in [p.181]
particular articles 3(3), (4), (5), (6) and (7), 35(1) and 41(b) of the Constitution, 1992." (The emphasis is
mine.) I would refer to these articles seriatim for their full force and effect. These articles state:
commits offence of high treason and shall, upon conviction, be sentenced to suffer death.

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punishment.
Article 35(1) of the Constitution, 1992 states:
[p.182]
And article 41 of the Constitution, 1992 provides:
(a) to promote the prestige and good name of Ghana and respect the symbols of the nation;
(b) to uphold and defend this Constitution and the law;
(c) to foster national unity and live in harmony with others;
(d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing
acts detrimental to the welfare of other persons;
(e) to work conscientiously in his lawfully chosen occupation;
(f) to protect and preserve public property and expose and combat misuse and waste of public funds and
property;
(g) to contribute to the well-being of the community where that citizen lives;
(h) to defend Ghana and render national service when necessary;
(i) to co-operate with lawful agencies in the maintenance of law and order;
(j) to declare his income honestly to the appropriate and lawful agencies and to satisfy all tax obligations;
and
(k) to protect and safeguard the environment."
Counsel for the plaintiff took the court through the political history of this country since the attainment of her
independence. He said there had been four major overthrows of lawfully constituted governments, namely
the 24 February 1966 overthrow of the First Republican Government; the 13 January 1972 overthrow of the
government of the Second Republic; the 4 June 1979 overthrow of the National Redemption Council (NRC)
Government which had itself overthrown the government of the Second Republic; and the last but not the
least was the 31 December 1981 overthrow of the Third Republican Government. Counsel contended that
since all these overthrows were illegal, the people of Ghana should not be reminded of such events, and
jubilation by way of celebration of the dates of the overthrows, in particular 31 December, would be
inconsistent with and in contravention of the "letter and spirit" of the Constitution, 1992 and in particular the
provisions [p.183] referred to above which seek to stamp out all attempts at overthrowing legally constituted
governments. Such a celebration, he continued, would, if allowed, encourage others to try and overthrow
legitimate governments in order to make themselves heroes, if the attempt was successful; such conduct
would destabilise the country. He however submitted that nothing prevented individuals from celebrating the
day privately, provided no public funds were used for that purpose. He contended further that 31 December
as a public holiday was discriminatory and against the spirit of the Constitution, 1992.
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Counsel for the defendant in reply, submitted that whether or not a particular day should be observed as a
public holiday was a matter entirely for the government of the day. He said it was not for the court to decide
which days should be public holidays, since sovereignty resided in the people from whom the government
derived its powers. He stressed that since the Constitution, 1992 itself absolved all those who had taken
part in the unlawful overthrow of legitimate governments from their acts, it would be wrong to refer to those
illegal acts with regard to the celebration, The true spirit of the Constitution, 1992, he contended, was that
these atrocities must be taken as having been done properly without any attachment of punishment; in
other words, the activities themselves must be forgotten. Counsel said that 31 December was being
celebrated not as to what had happened on that day, but as an eventful day in the history of this country. He
cited an example of 4 July being celebrated by the French as the day of their revolution. As to the use of
public funds for the celebration, he said the Appropriation Bill was an act of Parliament which body alone
could decide which moneys should be used for what. The plaintiff, he submitted, had every opportunity to
put its case across to Parliament but it disabled itself from doing so by refusing to go to Parliament. Once
that amount had been approved by Parliament, it could be used for that purpose only. He concluded that 31
December as a public holiday had been included in the Public Holidays Law, 1989 (PNDCL 220) and was
now accepted by the Constitution, 1992 as part of the laws of this country. This court, he said, had no power
to take out specific dates from the Law unless Parliament decided to do so.
I am satisfied and I hold that the acts of 24 February 1966, 13 January 1972 and 31 December 1981 by
which the then legally constituted governments of this country were overthrown were unlawful and therefore
unconstitutional. Query, the acts of 4 June 1979? When a group of disgruntled persons overthrows a legally
constituted [p.184] government either peacefully or violently, that action is unconstitutional because it seeks
to effect a chance of government otherwise than by laid down procedure for the change of government. If,
however, the overthrow succeeds, the government arising from the overthrow, although illegal, is accorded
recognition either de facto or de jure by the people themselves or by the international community. In
pursuance of such recognition, the government so far constituted makes laws for the governance of the
people, however obnoxious or resentful these laws may seem to the people or a section of them. The
Provisional National Defence Council (PNDC) was one of such governments having taken over power to
govern by overthrowing the government of the Third Republic.
In pursuance of the Provisional National Defence Council (Establishment) Proclamation Law, 1981, PNDCL
220 was made. Included in the holidays declared under this Law was 31 December, the day on which the
legitimate Third Republican Government of Ghana was overthrown. That day has been celebrated and
continues to be celebrated as a public holiday without any valid protestation or objection from the people of
this country. It cannot however be said that the non-objection to the celebration has created an estoppel
against any person or persons as the present application has been the only opportune occasion for the
exercise of one's right under the Constitution, 1992 which came into force on 7 January 1993.
Articles 3(3), (4), (5), (6) and (7), 35(1) and 41(b) of the Constitution, 1992 can only refer to acts done after
the coming into force of the Constitution, 1992. Article 11 of the Constitution, 1992 makes existing laws part
of the laws of Ghana. And article 11(5) and (6) of the Constitution, 1992 specifically provides:
"(5) Subject to the provisions of this Constitution, the existing law shall not be affected by the coming into
force of this Constitution.
(6) The existing law shall be construed with any modifications, adaptations, qualifications and exceptions
necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or
enable effect to be given to, any changes effected by this Constitution."
PNDCL 220, as an existing Law of Ghana, is part of the laws of Ghana. There has not been any
modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the
provisions of [p.185] the Constitution, 1992. The Constitution, 1992 which provides for the inclusion of
existing laws of the country, is the supreme law of Ghana and any law found to be inconsistent with any
provision of the Constitution shall, to the extent of the inconsistency, be void—vide article 1(2) of the
Constitution, 1992.
The plaintiff has not sought the revocation of PNDCL 220. Neither was it demonstrated clearly that the
wording of the provisions of PNDCL 220 was inconsistent with any provision of the Constitution, 1992.
Counsel for the plaintiff submitted that by the "letter and spirit" of the Constitution, 1992 the celebration of
31 December was inconsistent with or in contravention of the Constitution, 1992. Counsel contended that
since the Constitution, 1992 has specifically proscribed the unlawful overthrow of governments and
prescribed punishment for those engaged in such unlawful activities and also placed a duty on all citizens of
Ghana to defend the Constitution against such overthrows—vide article 3—any act such as the celebration

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of 31 December would be inconsistent with or in contravention of the letter or spirit of the Constitution,
1992. By the wording or letter of these provisions, I do not find any inconsistency or contravention of the
Constitution, 1992. The spirit of the Constitution can only be found from the intentions of the framers of the
Constitution and to that effect, the whole of the Constitution, 1992 must be examined for such an
interpretation; this cannot be done on guesswork or mere assumptions.
As in the case of documents, the Constitution, 1992 should be construed in a manner to carry out the
intention of the legislature or the framers. The Constitution, 1992, like any statute, must be read as a whole
and the construction made of all the parts together. The meaning of the Constitution, 1992 and the
intentions of the framers can only properly be derived from a consideration of the whole of it in order to
arrive, if possible, at a consistent plan. It is wrong to start with some a priori idea of that meaning or
intention and to try by construction to work that idea into the words of the Constitution. The spirit, intention
or object of the Constitution, 1992 must first be derived from the words used in the Constitution itself. If
plain, they will indicate either directly or impliedly the intention with which the Constitution was made and
the object to be attained by it. If the words are not clear, the policy of the framers and the scope and object
of the Constitution, where these can be discovered, will show the intention which may further be brought to
light by applying the various rules and presumptions of construction. "Intention of the legislature" has been
described by a high authority as [p.186] "a common but slippery phrase": see Salomon v Salomon [1897]
AC 22 at 38, HL. As Lord Halsbury said in Leader v Duffey (1888) 13 App Cas 294 at 301, HL:
"But I agree that you must look at the whole instrument, and, inasmuch as there may be inaccuracy and
inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in
order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be
arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself,
and having made that fallacious assumption to bend the language in favour of the assumption so made."
The intention of the legislature or framers of the instrument must not be assumed or surmised. What has
been said above can properly be said of a Constitution. The danger of these rules concerning "intention",
"subject", "policy" and so on is that they may open the door to individual bias or opinion or result in guessing
at the intention: see Lumsden v Inland Revenue Commissioners [1914] AC 877 at 892, HL. See also Inland
Revenue Commissioners v Dowdall, O'Mahoney & Co Ltd [1952] AC 401 at 426, HL in which Lord Radcliffe
observed: "The beliefs or assumptions of those who frame Acts of Parliament cannot make the law."
Similarly, we may say that the beliefs and assumptions of the framers of the Constitution, 1992 cannot
make the Constitution, 1992.
The preamble to the Constitution, 1992 may be a guide to the spirit or intention of the framers. See also the
preamble to the Constitution, 1969. It may be necessary to seek assistance for the determination of the
spirit of the Constitution also from the Directive Principles of State Policy, ie of the Constitution, 1992, art
34, but the whole of the Constitution, 1992 must be considered. Though article 17 of the Constitution, 1992
frowns upon discriminatory conduct, clause (4) of the article provides:
"(4) Nothing in this article shall prevent Parliament from enacting laws that are reasonably necessary to
provide— . . .
(d) for making different provisions for different communities having regard to their special circumstances
not being provision which is inconsistent with the spirit of this Constitution."
[p.187]
PNDCL 220 makes provision for public holidays which are seemingly discriminatory, eg Good Friday, Easter
Monday and 25 December. These provisions made before the coming into force of the Constitution, 1992
may be said to be inconsistent with the Constitution, 1992 but, the Constitution, 1992 itself allows such laws
to be made. In article 17(5) of the Constitution, 1992 it is provided that: "(5) Nothing shall be taken to be
inconsistent with this article which is allowed to be done under any provision of this Chapter." The
Constitution, 1992 allows for the making of discriminatory acts provided these act, are not inconsistent with
the Constitution, and nothing can be inconsistent with the Constitution which the Constitution, 1992 itself
allows to be made. The celebration of 31 December as a public holiday cannot be said to be against the
letter and spirit of the Constitution.
The fact that the Constitution, 1992 frowns on the overthrowing of legitimate governments, cannot be the
basis for arriving, at the "spirit of the Constitution", otherwise the provision of indemnity clauses in the
transitional provisions of the Constitution, 1992 which "shall have effect notwithstanding anything to the
contrary in this Constitution" (vide article 299 of the Constitution, 1992), would be meaningless.

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The overthrow of a legitimate government or attempts to overthrow it is a criminal act which is provided for
already in our existing laws: see section 180 of the Criminal Code, 1960 (Act 29) as amended by the
Constitution (Consequential and Transitional Provisions) Decree, 1969 (NLCD 406). In fact, the
Constitution, 1969 made the attempt and overthrow of governments a treasonable offence. Article 20(16) of
that Constitution states, inter alia:
"(16) For the purposes of this article and subject to the provisions of clause (17) of this article, treason shall
consist only
(b) in attempting by force of arms or other violent means to overthrow the organs of government established
by or under this Constitution; or
(c) in taking part or being concerned in, or inciting or conspiring with any person to make or take part or be
concerned in, any such attempt."
The punishment for the offence is death. And, the Constitution, 1979 contains similar provisions under
article 26(16). It can therefore not be said that the provision against the overthrow of governments has just
been introduced under this Constitution to make it the spirit of the [p.188] Constitution, 1992.
Ironically, it is the illegitimate governments which have made more use of these provisions against the
overthrow of governments. The provision thus, is not new to our Constitution, 1992. In fact, section 34(3)
and (4) of the transitional provisions of the Constitution, 1992 specifically provides:
“(3) For the avoidance of doubt, it is declared that no executive, legislative or judicial action taken or
purported to have been taken by the Provisional National Defence Council or . . . a member of the
Provisional National Defence Council or . . . by any person appointed by the Provisional National Defence
Council or. . . in the name of either the Provisional National Defence Council . . . shall be questioned in any
proceedings whatsoever and, accordingly, it shall not be lawful for any court or other tribunal to make any
order or grant any remedy or relief in respect of any such act.
(4) The provisions of subsection (3) of this section shall have effect notwithstanding that any such action as
is referred to in that subsection was not taken in accordance with any procedure prescribed by law."
Among the statutes made by the PNDC, is PNDCL 220. This was a legislative action taken by the PNDC or
a member of it. Besides, there are numerous enactments made by not only the PNDC but also
governments which had overthrow legally constituted governments. The existence of these laws may
remind us of the unlawful acts or events of the unlawful overthrows, yet they still exist as part of the laws of
this country. Could these laws be described as inconsistent with or in contravention of the Constitution?
And, does the Constitution itself prevent persons who have taken part in the overthrow of constitutional
governments from standing for election and holding high offices in the State? If the spirit of the Constitution
were what counsel for the plaintiff would have the court believe, none of the provisions referred to above
would have been tolerated by the Constitution.
The Constitution, 1992 was accepted by the people of Ghana with full awareness of the contents of the
Constitution and without any misconception as to what the spirit of the Constitution was. Perhaps it is our
ardent wish and unfettered determination that there should not again be such overthrows of legitimate
governments but certainly that could not be the spirit of the Constitution! In any case, do we condemn all
overthrows of governments? It may depend on which side of the fence [p.189] one is. Reference was made
to the yearly celebration of the French Revolution: That commemorative day marked the overthrow of a
legitimate government albeit monarchical. That day is celebrated not to stage a revolution but to mark an
important event in the political history of the French people. As long as the people accept it, it would
continue to be celebrated. Coming back home, we may refer to the preamble of the Constitution, 1969
which tells us in no uncertain terms how the people praised the illegal overthrow of the First Republican
Government. The preamble states in no uncertain terms the condemnation of the overthrown legitimate
government. It states:
"IN THE NAME OF ALMIGHTY GOD from Whom all authority is derived and to Whom all actions both of
men and States must be referred
WE THE CHIEFS AND PEOPLE OF GHANA HAVING experienced a regime of tyranny REMEMBERING
with gratitude the heroic struggle against oppression
HAVING solemnly resolved never again to allow ourselves to be subjected to a like regime

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DETERMINED to secure for all of us a Constitution which shall establish the SOVEREIGNTY OF THE
PEOPLE and the RULE OF LAW as the foundation of our society and which shall guarantee
FREEDOM of thought, expression and religion
JUSTICE — social, economic and political
RESPECT for the dignity of the individual; and
EQUALITY of opportunity
DO HEREBY IN OUR CONSTITUENT ASSEMBLY AND IN EXERCISE OF THE POWERS CONFERRED

ON THIS CONSTITUENT ASSEMBLY BY PARAGRAPHS 1 AND 2 OF THE CONSTITUENT ASSEMBLY
(AMENDMENT) DEGREE, 1969 (N.L.C.D. 380) ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION THIS TWENTY-SECOND DAY OF AUGUST, 1969
THIS CONSTITUTION SHALL COME INTO FORCE AS THE CONSTITUTION OF GHANA ON THE
TWENTY-SECOND DAY OF AUGUST, 1969."
This was a clear show of appreciation for those who had "gallantly" overthrown a legitimate government.
Monuments were erected for some of these "gallant" soldier's to perpetuate their memory, eg "Kotoka
International Airport" and trusts were also created for some of them, eg [p.190] The General Kotoka Trust
Decree, 1969 (NLCD 339) which was amended in 1971 by The General Kotoka Trust Decree, 1969
(Amendment) Act, 1971 (Act 365) under a civilian regime. We made this illegitimate government a caretaker
government in the Constitution, 1969 and provided in section 14(3) and (4) of the transitional provisions
thereof that:
"(3) On or soon after the coming into force of this Constitution every person who served as a member of the
National Liberation Council shall be paid, as a token mark of the Nation's gratitude such gratuity by way of a
terminal award as shall be determined by the Government under this Constitution which immediately
succeeds the National Liberation Council.
(4) Any member of the National Liberation Council who retires from public service at any time before or after
the coming into force of this Constitution shall be paid a pension equivalent to the gross emolument to
which he was or is entitled at the time of such retirement and any such pension shall be in lieu of any other
pension to which any such member may otherwise be entitled on his retirement from the public service."
And, we entrenched these provisions in section 14(5) of the transitional provisions of the Constitution, 1969
to the effect that:
"(5) Notwithstanding anything in article 169 of this Constitution or in any other provision of this Constitution,
until the death of all members of the National Liberation Council, Parliament shall have no power to amend
this subsection or subsection (4) of this section."
The day on which the government of the First Republic was overthrown was celebrated not only during the
era of the military regime but also during the period of the civilian government (the Second Republic) in
1970 and 1971. Ironically, it took another illegitimate government to erase that day from our calendar of
public holidays and to substitute its own day, ie 13 January 1972 as a public holiday. Of course, when that
government was subsequently overthrown by another illegitimate government, 13 January ceased to be a
public holiday; in its place was substituted 4 June 1979, the day on which the illegitimate government of Col
Acheampong was itself overthrown. As if that was not enough, members of the legitimate First Republican
Government which had violently been overthrown as well as functionaries or party activists of the party in
power were disqualified from standing at elections for ten [p.191] years and from holding public offices, vide
the Elections and Public Officers Disqualification Decree, 1969 (NLCD 332). From our conduct can we
honestly say then that all overthrows of legitimate governments are bad, or that some are bad and some
are good or that all are bad but some are worse? People have accepted overthrows of government as
liberating them from the shackles of tyrannic regimes; as redeeming them from oppressive regimes or as
defenders of their civic rights.
To my mind whether or not the day of an overthrow of a government should be celebrated as a public
holiday is a matter for the people through their governments to decide: see article 1 (1) of the Constitution,
1992 which states:
"1.(1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the
powers of government are to be exercised in the manner and within the limits laid down in this Constitution."

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When the Constitution, 1992, speaks of We the People of Ghana it does not necessarily mean all the
people; it could only refer to the majority who have accepted the Constitution. The "We the People of
Ghana" in the preamble could only refer to the majority of the people! How could it include those who had
been disqualified from taking part in active politics? When the majority have declared their intentions, it
would be undemocratic to undermine that authority as this would amount to undermining the principle of
democracy. The people act through the government. I think it would be wrong on the part of the courts to
interfere with the exercise of that authority unless such exercise is inconsistent with or is in contravention of
the Constitution. Such an interference would be in breach of the provisions of section 34 of the transitional
provisions of the Constitution, 1992.
The celebration of 31 December as a public holiday is supported by the conduct of the people who voted
back into power the very people who had illegitimately overthrown a properly constituted government. It is a
confirmation of the trust they have in those who had violently or otherwise overthrown the legitimate
government to defend the peoples' rights. Only Parliament representing the people can validly erase the
day for the celebration of the overthrow from the laws of Ghana. Article 35(1) the Constitution, 1992
provides that:
accordingly, sovereignty [p.192] resides in the people of Ghana from whom Government derives all its
powers and authority through this Constitution"
With regard to the use of public funds the celebration, moneys for public functions of state are provided for
under an Appropriation Bill. Section 19 of the transitional provisions to the Constitution, 1992 provides:
"19. Notwithstanding any law to the contrary, the financial estimates in operation for the financial year in
being at the coming into force of this Constitution shall, until provision is otherwise made by Act of
Parliament, continue and shall have full effect."
The place to validly attack the bill is in Parliament. Provided the function is accepted as a public one by the
government or for that matter, the people and, moneys have properly been allocated for that purpose, any
outside cry against the use of that money may receive sympathetic reconsideration but would not invalidate
the allocation.
I did not find the celebration of 31 December as a public holiday inconsistent with or in contravention of the
letter or the spirit of the Constitution, 1992 or of any provisions therein. As was stated in Hoani Te Heuheu
Tukino v Aotea District Maori Land Board [1941] AC 308 in the holding at 309, PC: ". . . it is not open to the
court to go behind what has been enacted by the legislature and to inquire how an enactment has come to
be made . . ."
It was for these reasons that I dissented.
DECISION
Judgment for the plaintiff.
DRKS
NEW PATRIOTIC PARTY v. GHANA BROADCASTING CORPORATION [1993-94] 2 GLR 354—393
30 NOVEMBER 1993
ARCHER CJ, FRANCOIS, AMUA-SEKYI, AIKINS, EDWARD WIREDU, BAMFORD-ADDO AND CHARLES
HAYFRON-BENJAMIN JJSC
Constitutional law—Political parties—Access to state-owned media—Nature of right—State obliged under

article 55(11) to provide fair opportunity to political parties to present programmes to public by ensuring
equal access to state-owned media—Meaning of "equal access"—State-owned media obliged by article
163 to grant fair opportunities and facilities for presentation of divergent views and dissenting opinions—
Object of provision—Meaning of "fair"—Burden on state-owned media—Government formed by National
Democratic Party (NDC)—Controversy over 1993 budget presented by government—NDC given two hours
air-time by defendant state-owned media to defend budget—Defendant refusing request from opposition
New Patriotic Party (NPP) for equal time to criticise budget—Whether defendant obliged to grant request—
Constitution, 1992, arts 55(11) and 163.

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Constitutional law—Freedom of speech—Responsibility of state-owned media—Article 163 granting citizen
right to present divergent views and dissenting opinions on issues—State-owned media obliged to afford
fair opportunities and facilities for exercise of right—Limitations imposed on exercise of right—Controversy
between political parties over 1993 budget presented by government—Government formed by NDC Party—
NDC permitted two hours by defendant state-owned media to defend budget—Request from opposition
NPP for equal air-time to criticise budget—Refusal not based on grounds of limitation under article 164—
Whether defendant's refusal lawful—Constitution, 1992, arts 163 and 164.
Constitutional law—Constitution, 1992—Construction—Right to information—Mode of construction of

Constitution—Obligation on all organs of state to uphold fundamental human rights—Citizens granted right
to information—Defendant state-owned media established to secure information for citizens—Controversy
between political parties over 1993 budget presented by government—Defendant giving government party
two hours air-time to defend budget but refusing plaintiff opposition party request for same facility—Whether
defendant's action lawful—Constitution, 1992, arts 12(1), 17(4)(d), 21(1)(f), 33(5), 163 and 165.
Constitutional law—Constitution, 1992—Defence of—Constitution embracing framework to ensure

democracy—Constitution prohibiting creation of one-party state—Whether denial of opportunity for
expression of opposing views breach of Constitution—Controversy between political parties over 1993
budget presented by government—Defendant state-owned media permitting government party two hours
air-time to defend budget—Defendant refusing request of plaintiff opposition party for same facility—
Whether refusal lawful—Constitution, 1992, arts 3(1) and 33(5).
Constitutional law—Freedom of expression—Duty of state-owned media—Defendant [p.355] state-owned

broadcasting corporation established to educate, inform and entertain citizens on broad national basis—
Defendant insulated from governmental interference—Obligation on defendant to provide fair and equal
opportunity for expression of all shades of opinion on issues—Controversy between political parties over
1993 budget presented by government—Government party given two hours air-time by defendant to
defend budget—Refusal by defendant of same facility to plaintiff opposition party—Whether refusal lawful—
Constitution, 1992, art 35(9)—Ghana Broadcasting Corporation Decree, 1968 (NLCD 226), ss 2(1)(b), 3(5)
(c) and (11)(a) and 9(1)(c).
HEADNOTES
The plaintiff was a registered political party while the defendant is a statutory corporation established by the
Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) with the mandate to educate, inform and
entertain the citizens of the country. On the presentation of the 1993 budget by the government, there were
severe criticisms of its provisions by several persons including the plaintiff. In response to those criticisms
the Minister of Finance on 23 and 24 January 1993 appeared on radio and television for over two hours to
defend the budget proposals. The plaintiff therefore applied to the defendant to be given time on radio and
television to also express its views on the budget proposals. The defendant however refused its request.
Consequently, the plaintiff brought an action against the defendant for (a) a declaration that under articles
55(11) and 163 of the Constitution, 1992 the defendant, a state-owned media, had a duty to afford the
plaintiff fair opportunities and facilities to present its views on the budget especially as those views diverged
from those of the government or of the National Democratic Congress, the party which formed the
government and which sponsored the appearance of the Minister of Finance; and (b) an order directing the
defendant to afford the plaintiff equal time on television to present its views on the 1993 budget. In its
defence the defendant denied that the appearance of the Minister of Finance was sponsored by the NDC,
and further contended that in any case, it had a discretion in the matter and that since "equal opportunity"
could not be equated to "equal time", in its judgment it had already given the plaintiff adequate time on radio
and television by reporting a news conference on the issue by the plaintiff's presidential candidate in the
presidential elections and also a panel discussion on the issue in which a member of the plaintiff took part.
The court however found that (i) the two-hour appearance on radio and television by the Minister of Finance
was indeed sponsored by the NDC; (ii) the news conference by the presidential candidate of the plaintiff
was covered as part of a news bulletin and covered only a few minutes; and (iii) the panel discussion was
taken off the screen in the middle of the discussion.
Held:
(1) (Archer CJ, Francois and Edward Wiredu JJSC dissenting in part) article 55(11) of the Constitution,
1992 defined with regard to political parties, both the object of state policy and the means to achieve it. The
object was the provision of fair opportunity to all political parties to present their programmes to the public,
and the means of achieving that was by ensuring that each party had equal access to the state-owned
media.

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[p.356]
"Equal access" meant the same or identical terms and conditions for gaining entry into the state-owned
media for the purpose of presenting their political, economic and social programmes to the electorate and
persuading them to vote for them at elections. That meant that the same time or space had to be given to
each political party, large or small, on the same terms and the officers of the state-owned media had no
discretion in the matter. But in a democracy the right of the individual to form or join a political party and of
the parties to participate in shaping the political will of the people and to disseminate political, economic and
social ideas and programmes were not rights which were enjoyed by the people only when elections were
to take place. Article 163 of the Constitution, 1992 also set out the duties of the state-owned media in
promoting free expression of views by obliging the state-owned media to grant fair opportunities and
facilities for the presentation of divergent views and dissenting opinions. The word "fair" meant "free from
bias" or "equal". Accordingly, the combined effect of articles 55(11) and 163 of the Constitution, 1992
obliged the management and editors of the state-owned media to be impartial, showing neither affection for,
nor ill-will towards, any particular group in the community, be it political, economic or social; their facilities
being national assets, should be available to all. The state-owned media had no discretion in the matter
since that would constitute the exercise of a censorship which could block avenues of thought and foreclose
the citizens, right of choice contrary to article 162(2) of the COnstitution, 1992. Accordingly, since the
defendant gave the National Democratic Congress two hours to air its views on the budget, the defendant
was required by articles 55(11) and 163 of the Constitution, 1992 to grant the plaintiff equal time on radio
and television to set forth its divergent views.
Per Charles Hayfron-Benjamin JSC. In my respectful opinion, the constitutional right of access to the
electronic media lies with the political parties, the viewing public and listeners. Articles 55(11) and 163 of the
Constitution, 1992 are amplifications of the fundamental human right of freedom of expression. That right of
access is paramount in the order of things in our society. The defendant therefore has no right to determine
who shall use the electronic media or who shall not. There is a constitutional duty imposed upon the
defendant, which is a state monopoly, to so order and arrange its programme time as to ensure compliance
with its letter and spirit. There must be equality of access and equal time for the articulation of divergent or
dissenting viewpoints.
Per Archer CJ (dissenting in part). The plaintiff's real constitutional trump card is article 163 of the
Constitution, 1992. This article serves the interests of all manner of persons, namely individuals, group or
body of persons incorporated and unincorporated. It applies also to political parties. In contrast, article
55(11) and (12) of the Constitution, 1992 is [p.357] restricted to political parties with special requirements for
general and presidential elections. Words like "equal access" and "same amount of time and space" are
used whereas article 163 of the Constitution, 1992 has no such words. The plaintiff can only succeed under
(2) The rights conferred by article 163 of the Constitution, 1992 on the people were subject under article
164 of the Constitution, 1992 to laws that were reasonably required in the interest of national security, public
order and public morality and for the purpose of protecting the reputations, rights and freedoms of other
persons. Since the defendant had not relied on any such laws to justify its refusal to grant the plaintiff fair
opportunities and facilities for presenting its views on the budget, it had breached the provisions of the
Constitution, 1992 by its refusal.
(3) The Constitution, 1992 itself pointed the way to its liberal interpetation by indicating the spirit that should
guide its construction. Thus in articles 165 and 33(5) of the Constitution, 1992 the courts were required not
only to have regard to the written letter but also to adopt the known criteria which attached to the
democratic process and were inherent in any democratic environment so as to ensure that the fundamental
rights guaranteed under chapter 5 of the Constitution, 1992 were not curtailed. Again Parliament was
enjoined under article 17(4)(d) of the Constitution, 1992 to ensure that the provisions of the laws it enacted
were not inconsistent with the spirit of the Constitution, 1992. Furthermore, under article 12(1) of the
Constitution, 1992 all the organs of government including the judiciary, executive and legislature were
enjoined to respect and uphold the fundamental human rights. And article 21(1)(f) of the Constitution, 1992
granted all persons the right, inter alia, to information subject only to the qualifications and laws necessary
in a democratic society. Accordingly, once the defendant, a media created as a public agency to secure for
the citizens of this country information, rather withheld it contrary to the abjuration in articles 163 and 21(1)
(f) of the Constitution, 1992 it wilfully violated the Constitution, 1992.
(4) (Archer CJ, Francois, Edward Wiredu and Bamford-Addo JJSC). The Constitution, 1992 under article
33(5) embraced a liberal framework that would include all possible shades of freedom not specifically or
expressly mentioned but which were essential cogs to enhance the driving capacity of a truly free-wheeling

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democracy. The Constitution, 1992 in article 3(1) also declared the unconstitutionality of Parliament
enacting any law to establish a one-party state. Those provisions were safeguards to preserve the integrity
of the Constitution, 1992 and sustain democracy. Consequently, any acts not in accord with those
aspirations would constitute steps in violation of the Constitution. In the result, a denial of opportunity for the
expression of opposing views would amount to moves which might culminate in the creation of a monolithic
government which [p.358] was only one step removed from a one-party state. Accordingly, any state
agency which would foster a situation that would lead to the creation of a one-party state was seriously out
of step with the spirit and constitutional realism, and it was the court's constitutional duty in upholding the
Constitution to strike down such tendencies towards a one party state or dictatorship. Since the action of
the defendant, a state-owned media smacked of bias in favour of the National Democratic Congress and
against the New Patriotic Party, it would be declared unconstitutional.
(5) The paramount objective of the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226), as spelt
out in sections 2(1)(b) and 8(1) was to educate, inform and entertain on a broad national basis. And under
section 3(5)(c) there was an attempt not only to ensure neutrality but also to insulate the corporation from
governmental control in the quality of its board members. Thus under section 3(11)(a) of NLCD 226 partisan
affiliations of the board members were forbidden. Furthermore, section 9(1)(c) of NLCD 226 provided
facilities for the dissemination of a broad spectrum of political and varied viewpoints which were a clear
desiderata. It was obvious therefore that NLCD 226 which established the defendant attempted to ensure
that fair and equal opportunity was available for the expression of all shades of opinion to enable the
citizenry of the country evaluate information on a broad kaleidoscope. Accordingly, the attempt of the
defendant to foist on the rest of the citizenry its perceptions of what was or was not politically digestible
infringed a fundamental right of the citizenry, especially since article 35(9) of the Constitution, 1992 under
the Directive Principles of State Policy mandatorily required the State to promote among the people the
culture of political tolerance. The defendant as a state agency would therefore not be allowed to subvert
that goal.
CASES REFERRED TO
(1) Red Lion Broadcasting Co v Federal Communications Commission, 395 US 367; 80 S Ct 1794 (1969).
(2) Kahane v. Broadcasting Authority, Jerusalem Post LR 49 (1993).
(3) Palko v. Connecticut, 302 US 319 (1937).
(4) New York Times Co v United States (The Pentagon Papers Case), 403 US 713; 91 S Ct 2140; 29 L Ed
2d 822 (1971).
(5) Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC.
(6) Kuenyehia v. Archer [1993-94] 2 GLR 525, SC.
(7) CBS v Democratic National Committee, 412 US 94 (1973).
ACTION by the plaintiff, a registered political party, against the [p.359] defendant, a state-owned
broadcasting corporation for a declaration that by virtue of articles 55(11) and 163 of the Constitution, 1992
the defendant was obliged to afford the plaintiff fair opportunities and facilities to present its views,
especially when they were different from those of the National Democratic Congress, the party supporting
the government and that the refusal of the defendant to grant it equal time on television to present its views
on the 1993 budget proposals of the government as it accorded the National Democratic Congress on 23
and 24 January 1993 was a violation and contravention of the Constitution, 1992; and an order directing the
defendant to afford it equal time to present its views. The facts are sufficiently stated in the judgments of
Francois, Amua-Sekyi, Aikins and Bamford-Addo JJSC.
COUNSEL
Peter Ala Adjetey (with him Sam Okudjeto, Nana Akufo-Addo, Afram Asiedu, Miss Gloria Akufo, Philip
Addison, Alex Quaynor and William Addo) for the plaintiff.
Anthony Forson, Attorney-General (with him Mrs. Adusa-Amankwah, Chief State Attorney) for the
defendant.
JUDGMENT OF ARCHER CJ

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I have had the opportunity of reading the reasons embodied in the opinion of my brother Francois JSC and I
agree with the reasons. However, by way of emphasis, I wish to add a few words.
First, I wish to stress that although the plaintiff relied on article 55 of the Constitution, 1992, I do not think
that that article has any relevance to the action. One has to read the whole of article 55 of the Constitution,
1992 to appreciate its import. That article deals with the organisation of political parties, the right to vote,
and the responsibility of the State and the state-owned media to provide opportunities to all political parties
to present their programmes.
Article 55(11) and (12) of the Constitution, 1992 reads:
"(11) The State shall provide fair opportunity to all political parties to present their programmes to the public
by ensuring equal access to the state-owned media.
(12) All presidential candidates shall be given the same amount of time and space on the state-owned
media to present their programmes to the people."
In article 55(11) of the Constitution, 1992 the operative words are "fair opportunity to present programmes
to the public" and "equal access to the state-owned media." Programmes can be presented either through
public [p.360] rallies or through the media owned by the State, ie newspapers, news agencies, radio and
television. Programmes and manifestoes are usually launched and presented during elections and
referenda.
Article 55(12) of the Constitution, 1992 clearly deals with presidential elections and the article is very
stringent. The state-owned media is to give each presidential candidate the same amount of time and
space for the presentation of each candidate's programmes. It seems to me that article 55 of the
Constitution, 1992 deals with an entirely different subject matter and has no application to the facts of the
plaintiff's case.
The plaintiff's real constitutional trump card is article 163 of the Constitution, 1992 which states that: "All
state-owned media shall afford fair opportunities and facilities for the presentation of divergent views and
dissenting opinions." This article serves the interests of all manner of persons, namely individuals, group or
body of persons incorporated, and unincorporated. It applies also to political parties. In contrast, article
55(11) and (12) of the Constitution, 1992 is restricted to political parties with special requirements for
general and presidential elections. Words like "equal access" and "same amount of time and space" are
used whereas article 163 of the Constitution, 1992 has no such words. The plaintiff can only succeed under
The other matter I wish to deal with is that between 1962 and 1966, this country was a one-party state.
When the former National Liberation Council enacted the Ghana Broadcasting Corporation Decree, 1968
(NLCD 226) the council was planning a return to civilian rule under a multi-party system and therefore
provided in paragraph 9 the following:
"9. (1) In its public service broadcasting, the Corporation is expected to provide for—
(a) Government pronouncements...;
(b) party political speeches dealing with the views and policies of the various political parties (when they
come into being);
(c) speeches expressing different points of view on matters of controversy;
(d) matters of any kind (including religious services or ceremonies) representing the main stream of
religious thought or belief in the country.
(2) In its broadcasting of the items mentioned in sub-paragraph (1) of this paragraph the Corporation shall
allocate and apportion air-time equitably between the parties, points of view and religious bodies according
to their respective claims upon the interest of [p.361] members of the public of Ghana."
The substance in section 9(2) of NLCD 226 is the allocation and apportionment of air-time equitably
between the parties. Equitably does not connote equality. It means fairness. NLCD 226 is an existing law
and there is nothing in it which appears to be inconsistent with the present Constitution, 1992. If the present
Constitution, 1992 had not been enacted, the plaintiff could have sued the defendant in the High Court for
breach of statutory duty because the corporation has as one of its "output requirements" under paragraph

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9(2) of NLCD 226 an obligation to allocate and apportion air-time equitably between the plaintiff and the
other parties. Article 163 of the Constitution, 1992 is a constitutional reinforcement of the existing statutory
responsibilities of the Ghana Broadcasting Corporation.
Finally, I wish to remark that at the time the plaintiff's writ was issued, there was not in existence a National
Media Commission. If there had been one, I would have insisted that the plaintiff's complaint before this
court should be referred to that the commission which has a constitutional function under article 167 of the
Constitution, 1992 to take all appropriate measures to investigate, mediate and settle complaints made
against or by the press or other mass- media including the state-owned media.
On 22 July 1993 this court gave its ruling, with accompanying orders in the above matter, reserving its
reasons to a later date. I now give my reasons.
In construing the provisions of the Constitution, 1992 the primary duty of the Supreme Court is to interpret
the fundamental law. There is a presumption that there are no serious disagreements on the facts requiring
straightening up or settling, before that major task is begun. The court's endeavours consequently proceed
untramelled by any considerations or distractions attendant on the accuracy of facts. The ideal was not
obtained in this case.
The few but important facts in controversy appear in two paragraphs in the plaintiff's claim. The plaintiff
urged in paragraphs (3) and (4) of its statement of case, that on 23 and 24 January, 1993, the defendant-
corporation gave media cover to a forum organised by the National Democratic Congress (NDC) "to justify
the budget of 1993 presented by Dr. Kwesi Botchwey." The plaintiff urged that the broadcast extended over
a period of an hour and featured Dr Botchwey and prominent members of the NDC. The plaintiff complained
that similar facilities were [p.362] denied the New Patriotic Party to disseminate its contrary views on the
budget, and claimed this constituted a serious violation of its constitutional rights for which it sought
redress.
The defendant-corporation denied the plaintiff's averments at first, but by an amended defence filed on 7
July 1993, it urged that adequate opportunity had been granted the plaintiff to articulate its views.
The clear disagreement of the protagonists herein on the accuracy of the facts, led the learned Attorney-
General to seek opportunity by way of adjournment to supply proof of the defendant's stand. Unfortunately
what followed was an innovative attempt to present fresh evidence which would have bogged down the
court's interpretative machinery and turned it into a fact finding and fact evaluating tribunal. The attempt
consequently failed. Nevertheless, facts of which judicial notice could be taken, disclosed that Parliament
had extended to the plaintiff a welcoming ear to ascertain its position on the budget. A scenario that was
inconceivable and irrational if the plaintiff's views had already been sufficiently aired.
A more serious fact that could not be glossed over, was the unceremonious withdrawal by the defendant of
a programme in mid-air, so to speak, in which a spokesman for the plaintiff sought to present its stand on
the budget. The act of withdrawing the programme was in itself condemnatory enough to expose the
defendant's lack of veracity and good faith and was at odds with the pleaded averments. It is obvious that
facts controverted by the defendant bore no true relationship with the events on the ground.
The facts aside, the gravamen of the defence was the challenge to the plaintiff's assertion of a constitutional
entitlement to equal opportunity or facility for the dissemination of divergent views. Additionally, it was the
defendant's understanding of its national role, that exigencies in the nature of intervening important
engagements had priority over any agreement with the plaintiff on air-time. An example was what transpired
on 9 February 1993 when the agreed time allotted to the plaintiff to broadcast its statement on the budget
was cavalierly cancelled.
Closely allied to this stance, and which was the crux of the defence, was the view that the granting of media
facilities involved the exercise of a discretion which reposed solely in the defendant-corporation. Put
differently, the corporation was claiming the exclusive right to determine what was appropriate for
broadcasting and vigorously defending that position as being outside any constitutional remit.
Consequently, the issue for debate was whether the plaintiff was entitled under the new constitutional
dispensation which the Constitution, 1992, the fundamental law, ushered, to demand that the defendant
provide [p.363] air-time for the dissemination of its views on controversial national matters similar in extent
and scope as was accorded the government spokesman in respect of the 1993 budget; and as a corollary,
for the court to declare whether a failure to grant those facilities constituted a violation of the Constitution,
1992.
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The plaintiff founded its contention under articles 163 and 55(11) of the Constitution, 1992. Article 163 of the
Constitution, 1992 states: "All state-owned media shall afford fair opportunities and facilities for the
presentation of divergent views and dissenting opinions." (The emphasis is mine.) And article 55(11) of the
Constitution, 1992 requires the state to "provide fair opportunity to all political parties to present their
programmes to the public by ensuring equal access to the state-owned media." ('The emphasis is mine.)
The plaintiff buttressed its stand with article 55(1) and (3) of the Constitution, 1992 which guaranteed the
right to form political parties which should be "free to participate in shaping the political will of the people, to
disseminate information on political ideas, social and economic programmes of a national character, etc."
While the whole of article 55 of the Constitution, 1992 deals with political parties and their programmes,
article 163 of the Constitution, 1992 ensures the fair dissemination of divergent views. It is my view that
article 55(11) of the Constitution, 1992 in the context of the current debate, lacks relevancy, being at best
only illustrative of a schematic pattern in the new constitutional order, to ensure an equitable balance on the
political campaign trail.
It seems clear, that the Constitution, 1992 spells out unambiguously a primary objective of making
information readily available to allow for valued judgments from all the citizenry. This desired result, is only
possible if there is a free ventilation of views, which the imperative "shall" in article 163 of the Constitution,
1992 places as a duty on all state media. Clearly, there is no discretion in the matter. To withhold this right,
is an interference with the freedom of the people and a violation of the Constitution, 1992.
A contrary conclusion would mean a right given to persons, bodies or institutions, to exercise a censorship
which could block avenues of thought and foreclose the citizen's right of choice. Article 162(2) of the
Constitution, 1992 forbids this. It emphatically states "….there shall be no censorship in Ghana."
Some pedagogic sophist may argue that the imposition of a duty often has a correlated concommitant,
namely a discretion in its discharge. This may be conceded to the extent that the ultimate duty remains
unchanged [p.364] and the discretion, if indeed it qualifies as one, affects only the procedure or route by
which the duty is to be accomplished. To argue that the discretion enables the corporation not to reject
attempts to make it a party to crime or an accomplice to treasonable enterprises, or a conduit pipe for the
dissemination of defamatory material, is to misapprehend entirely the constitutional injunction, for these are
not left at large for the application of any discretion.
The Constitution, 1992 in article 164 clearly spells out essential limitations for the achievement of the
democratic goal. It states that the freedoms are "subject to laws that are reasonably required in the interest
of national security, public order, public morality and for the purpose of protecting the reputations, rights and
freedoms of other persons." But to set the picture straight and, remove any ambiguity, it goes on in article
165 of the Constitution, 1992 to warn that the above exceptions should not "limit the enjoyment of any of the
fundamental human rights and freedoms guaranteed under Chapter 5 of this Constitution."
The issue really is not whether party A is allowed to score over party B, in a political broadcast; it is not a
debating exercise. The issue is whether the people of this country have been given adequate opportunity to
know and evaluate viable alternatives. The defendant, belonging to the state media, then has a positive
duty to promote the dissemination of alternative views. If it fails in this duty and proceeds further to deny the
articulation of alternative views, its transgression becomes twofold, since as a state media, and contrary to
what was expressly required of it by the Constitution, 1992 it has refused to feed the citizenry of this country
with all the facts and has mischievously denied the citizens the knowledge which was being offered on a
silver platter.
During argument, counsel were invited to reflect on the constitutional imperatives that would sustain the
citizen's choice as against those designed to grant partisan advantage. I link this with what obtains
elsewhere. It is pertinent to observe that in the comity of nations where the democratic order secures the
highest place of honour in the social fabric, the freedom of exchanging information and ideas appears to
occupy the noblest point in the social scheme and serves as an essential pivot.
Some random views expressed on this theme elsewhere, would not be out of place here. Justice White of
the US Supreme Court said in Red Lion Broadcasting Co v Federal Communications Commission, 395 US
367 at 390 (1969):
"It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount ... It is the
right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and
experiences which is crucial here."

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The US Supreme Court is also credited with the following observation by Justice Barak of the Israeli
Supreme Court in Kahane v Broadcasting Authority, Jerusalem Post LR 49: "Speech concerning public
affairs in [p.365] Authority, Jerusalem Post LR 49: "Speech concerning public affairs is more than self-
expression; it is the essence of self-government." Justice Cardozo, an eminent jurist of the US Supreme
Court stated in Palko v. Connecticut, 302 US 319 (1937): "of that freedom one may say that it is the matrix,
the indispensable condition of nearly every other form of freedom." The conclusion then is that debate
cannot be stifled in a democratic society. This does not mean that freedom of speech should be extended to
unbridled excesses. The loud licence of the market place has no acceptance here. There are constitutional
safe-guards reflected in our laws to curb libel and other violations of the law as alluded to before. These
should suffice. It is noteworthy the US Supreme Court should hold as stated by Justice Barak in Kahane v
Broadcasting Authority (supra) at 52, that:
"A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle
them and all others before hand. It is always difficult to know in advance what an individual will say and the
line between legitimate and illegitimate speech is often so finely drawn that the risks of free wheeling
censorship are formidable."
Accordingly, the US Supreme Court declared in New York Times Co v United States (The Pentagon Papers
Case), 403 US 713: "Any system of prior restraints of expression comes to this Court bearing a heavy
presumption against its constitutional validity.'' The emphasis is mine. Those words should be observed by
the state media as a constant guide, and constitute their creed and testament.
The excerpts from the decisions of the US Supreme Court are called from the Jerusalem Post Law Reports,
1993. While acknowledging my indebtedness, I would plead that the lack of adequate library facilities in this
country would be attended to immediately to save us the humiliation of borrowing elsewhere at
secondhand.
Before I turn the pages on this aspect of freedom of expression, a comment may not be out of place.
People wielding excessive power often deflect criticism of their autocratic excesses with reflections on the
impracticability of pursuing absolute freedom. They warn of anarchical results if pure, unalloyed freedom is
sought. They are the apostles of the discipline that dictates that the enjoyment of freedom is always at a
price; and only strictly regulated freedom with the surrender of a substantial portion of it, can nationally
safeguard what remains for its full and wholesome enjoyment.
Alas, how often is falsehood dressed in plausible garb. The curbs and [p.366] fetters to freedom are well
known. They have been expounded by philosophers in scholarly treatises through the ages. There is no
warrant for contracting further the frontiers of freedom so as to suffocatingly imprison our natural birthright.
The safeguarding of our national security, or of public order and public morality is restated in article 164 of
the Constitution, 1992 and referred to before. The parameters should not be expanded outside the limits of
Turning to a practical and commonsense point of view, the free exchange of views is necessary to give the
electorate an opportunity to assess the performance of the government in power as against the potential of
an opposition in the wilderness. It keeps a government on its toes and gives the neutral, apolitic citizen an
opportunity to make up his mind either to consign the disenchanted noises he hears around, to mere rabid
rantings that proceed from electoral defeat or give it the evocative distinction of demonstrating the quality
that unfortunately missed the boat through bad electoral judgment, and therefore deserving of a second
chance at the next ballot. In a truly democratic environment, this testing ground is a sine qua non to the
survival of a free, pluralist society.
The plaintiff makes an impassioned plea that in construing the provisions of the Constitution, 1992 we
should observe the spirit and philosophy that animate it. Tuffuor v. Attorney-General [1980] GLR 637, CA
sitting as SC is urged as the refreshing fount from which we should constantly and copiously drink.
In our judgment in Kuenyehia v. Archer [1993-94] 2 GLR 525, SC this court stressed the importance that the
spirit of the Constitution, 1992 shared with the actual letter of the constitutional provisions, in the
ascertainment of the legislative will and intent. If those sentiments are now belatedly' appreciated, one can
only sigh a welcome relief. It only underscores an eternal truism, that in the fullness of time, truth will
prevail.
A constitutional document must be interpreted sui generis to allow the written word and the spirit that
animates it to exist in perfect harmony. In the Kuenyehia case (supra) this aspect of constitutional
interpretation was addressed at length. I find no need to go over the beaten track which would only
overstretch this statement of reasons.

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However, reference to stated objectives in the Constitution, 1992 must be made so that the emphatic
pointers to its spirit, are not missed. I proceed therefore on this brief but necessary journey. The
Constitution, 1992 itself points the way to its liberal interpretation. It illustrates from the horse's own mouth,
the spirit that should guide its construction. Thus in articles 165 and 33(5) of the Constitution, 1992 we are
required not [p.367] only to go by the written letter, but to adopt as well, the known criteria which attach to
the democratic environment, so that the fundamental human rights guaranteed under chapter 5 of the
Constitution, 1992 are not curtailed.
Again in article 17(4)(d) of the Constitution, 1992 Parliament is enjoined when it enacts laws to take care
that the provisions of its laws are not "inconsistent with the spirit of this Constitution." Turning then to the
fifth chapter of the Constitution, 1992 which deals with the fundamental human rights and freedoms, we
note that the organs which must sustain the fresh, invigorating wind of freedom, are enjoined to respect and
uphold fundamental human rights. The executive, legislature and judiciary, among others, receive this
charge which is expressly stated in article 12(1) of the Constitution, 1992 as follows:
"12. (1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and
upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies
and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the
Courts as provided for in this Constitution."
In article 21(1)(f) of the Constitution, 1992, we note that:
"21. (1) All persons shall have the right to—....
(f) information, subject to such qualifications and laws as are necessary in a democratic society."
It would seem therefore that where a media created as a public agency, to secure for the citizens of this
country information, rather withholds it, contrary to the abjuration in articles 163 and 21(1)(f) of the
Constitution, 1992, it is willfully violating the Constitution.
The measure of reprehensibility becomes more gravely acute when such suppression betrays a partisan
motive. The Constitution, 1992 demands that a broad and liberal spirit of democratic pluralism should
prevail in this country. It in effect accepts previous failures in the constitutional experiment and consequently
attempts an all embracing liberal framework that would include all possible shades of freedom not
specifically or expressly mentioned, but which are essential cogs to enhance the driving capacity of a truly
free-wheeling democracy. The Constitution, 1992 pithily expresses this in article 33(5) as follows:
"(5) The rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms
specifically mentioned in this Chapter shall not be regarded as excluding others not [p.368] specifically
mentioned which are considered to be inherent in a democracy and intended to secure the freedom and
dignity of man."
The framers of the Constitution, 1992 in their wisdom attempted to make the resurgence of a one-party
state an impossibility. It declared the unconstitutionality of Parliament enacting any law to establish a one-
party state: see article 3(l) of the Constitution, 1992. An attempt to abrogate or suspend the Constitution in
whole or in part would be visited with the sanction of death for high treason: see article 3(3) of the
Constitution, 1992.
My reading of the spirit of the Constitution suggests these as safeguards to preserve the integrity of the
Constitution, 1992 and sustain democracy. Consequently, any acts which are not in accord with these
aspirations, would constitute steps in the violation of the Constitution, 1992. A denial of opportunity for the
expression of opposing views, inherent in a democracy, would amount to moves which may culminate in the
creation of a monolithic government which is only one step removed from a one-party government. There is
historical precedent of such a retrogressive descent. Obviously, any state agency which fosters the situation
that would lead to the creation of a one-party state, is seriously out of step with the spirit and constitutional
realism of today. It would be sailing too closely for comfort to the winds of a treasonable enterprise.
Homespun wisdom may not be out of place here. An incipient boil starts from the tiniest of pimples. The
gargantuan size of some ailments which afflict our society today, had stealthily grown from small, and
undetected beginnings. So in political life, be they revolutionary or evolutionary, except that in the former,
speed is of the essence and the latter, restraint.

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It is clear that the dictates of experience have compelled the Constitution makers to draw on the amplitude
of our past history, to lay down strictures that would arrest the slightest deviations from constitutionalism.
Manifestations that would have the potential of burgeoning into intractable evils which would ultimately
undermine the Constitution, 1992 and toll the knell of the fourth brave democratic effort, must be placed
under the judicial microscope.
It is the court's constitutional duty in upholding the fundamental law to strike down tendencies towards a
one-party state or a dictatorship, however minuscular the blot may first appear. This is in keeping with the
spirit. Consequently, any act of the state-owned media that smacks of party bias or fits the description of
unexamined adulation, would be the incipient pimple which this court must view with the gravest suspicion if
[p.369] our duty as defenders of the Constitution, 1992 is to be honourably discharged.
In conclusion, I must comment on the defendant's misappreciation of the licence which permits it to operate,
ie the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226). One notices that a paramount objective
of this legislation is to educate, inform and entertain on a broad national basis: see sections 2(1)(b) and 8(1)
of NLCD 226. There is an attempt not only to ensure neutrality but to insulate the corporation also from
governmental authority in the quality of the membership of its board: see section 3(5)(c) of NLCD 226.
Partisan affiliations of board members is forbidden: see section 3(11)(a) of NLCD 226. The Constitution,
1992 in article 167(c) projects this in allowing the National Media Commission to breathe the air of
independence into the state-owned media to ensure that they are insulated from governmental control.
Turning again to NLCD 226, facilities for the dissemination of a broad spectrum of political and varied
viewpoints are a clear desiderata, and are provided for under section 9(1)(c) of NLCD 226. And in section
9(2) of NLCD 226 speeches expressing different points of view on matters of controversy, and an equitable
distribution of airtime is prescribed.
It seems therefore, that long before the Constitution, 1992 came into existence, the authority which
established or continued the existence of the defendant-corporation, attempted to ensure that fail and equal
opportunity was available for the expression of all shades of opinion to enable the citizenry of this country to
evaluate information from a general store house of knowledge, on a broad kaleidoscope. Consequently, any
institution made up of citizens with equal rights and ostensibly shared ideals, which today arrogates to itself
superior powers outside normal legal constraints, and outside the parameters of the Constitution, 1992 to
foist on to the rest of the citizenry, their perception of what is or is not politically digestible, infringes a
fundamental rights of the citizens of this country. That act would constitute a flagrant and naked usurpation
of the citizen's rights and a patent violation of the Constitution, 1992.
If under the Directive Principles of State Policy, in article 35(9) of the Constitution, 1992, the state is
required mandatorily to promote among the people of Ghana the culture of political tolerance, what
business has a state agency to subvert this goal! It is for the above reasons that I acceded to the prayers of
the plaintiff on 22 July 1993.
Shortly before leaving office in January 1993 the government of the Provisional National Defence Council
presented a budget statement for 1993. The presentation, which was carried on radio [p.370] and
television, was made by the then Secretary for Finance, Dr. Kwesi Botchwey. On 23 and 24 January 1993
Dr Botchwey appeared again on radio and television and, for over two hours, engaged in a spirited defence
of his budget proposals which had come under severe criticism from several quarters. His appearance was
apparently sponsored by the National Democratic Congress, a political party of which he is a member. The
plaintiff, a registered political party, demanded that it too be given time on radio and television to air its
views. The defendant refused to do so. It has accordingly been brought to this court, and the reliefs sought
are:
"(1) A declaration that:
(a) by virtue of article 163 and 55(11) of the constitution, 1992 the Ghana Broadcasting Corporation, as one
of the state-owned media, has a duty to afford to the New Patriotic Party fair opportunities and facilities for
presentation of its views especially when they are divergent from those of the government or of the National
Democratic Congress, the party supporting the government;
(b) the refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on
television to present its views of the 1993 budget, as accorded the National Democratic Congress on 23
January and 24 January 1993, is a violation and contravention of the Constitution.

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(2) An order enforcing the provisions of the Constitution, by directing the Ghana Broadcasting Corporation
to afford the New Patriotic Party equal time on television to present its views of the 1993 budget, as
accorded the National Democratic Congress on 23 January 1993 and 24 January 1993."
In its statement of case, the defendant denied that Dr. Botchwey's, broadcast was sponsored by the
National Democratic Congress. When in the course of the argument before us it was confronted with a
report in the Peoples Daily Graphic of 26 January 1993 describing the occasion as such, they sought to
change their position and put in a confession and avoidance in place of the unequivocal denial they had
made earlier on. I am afraid, this reflects very badly on the character of the men we have at the helm of
affairs at the defendant's establishment. As public officers they ought to know that it is their duty to assist
the court to arrive at the truth in this matter, not to obstruct it. By appearing to take sides in what [p.371] is
essentially a dispute between two political parties, they demean their office and place the independence of
their organization in jeopardy.
The provisions of the Constitution, 1992 with which we are concerned are articles 55 and 163. Article 55 of
the Constitution, 1992 deals with political parties. It guarantees to the people of this country the right to form
political parties and, to every citizen of voting age, the right to join a political party. It would be a breach of
the Constitution, 1992 to deny to the people of this country, or to any citizen, any of these rights. The article
goes on to confer on political parties, when duly formed, the right to participate in shaping the political will of
the people, and to disseminate information on the political, economic and social programmes of the party. It
is also entitled to sponsor candidates for election to Parliament and to the office of President. To make
these rights meaningful and effective, article 55(11) and (12) provide as follows:
"(11) The State shall provide fair opportunity to all political parties to present their programmes to the public
(12) All presidential candidates shall be given the same anoint of time and space on the state-owned media
to present their programmes to the people."
Article 55(11) of the Constitution, 1992 defines, with regard to political parties, both the object of state policy
and the means to achieve it. The object is that of providing a fair opportunity to all political parties to present
their programmes to the public, and the means of achieving this is by ensuring that each part has equal
access to the state-owned media. Article 55(12) of the Constitution, 1992 is more specific and states that
each candidate for the office of President shall be given the same amount of time and space on the state-
owned media, to present his programme to the people. It is hardly necessary to draw attention to the fact
that invariably candidates for the office of President are, sponsored by political parties and funded by them,
and that the programmes they present to the people are those of their parties.
What, then, is the meaning of the words "equal access"? "Equal" means "same" or "identical"; "access"
means "entry." Therefore, "equal access" means the same or identical terms and conditions for gaining
entry into the state-owned media for the purpose of presenting their political, economic and social
programmes to the electorate, and persuading them to vote for them in both parliamentary and
parliamentary and presidential elections. This means that the same time or space must be given to each
political party, large or small, and, if fees are payable, that they should be the same for all. [p.372] The
officers of the state-owned media have no discretion in the matter. The reason is simple enough; the state-
owned media are national assets: they belong to the entire community, not to the abstraction known as the
state; nor to the government in office, or to its party. If such national assets were to become the mouthpiece
of any one or combination of the parties vying for power, democracy would be no more than a sham.
In a democracy, the right of the individual to form or join political parties, and of the parties to participate in
shaping the political will of the people and to disseminate political, economic and social ideas and
programmes are not rights which are enjoyed by the people only when elections are about to take place.
They are inalienable rights which the Constitution guarantees for all and which the courts are required to
protect. As far as our law is concerned, it is irrelevant that the party or its candidate secured only a handful
of votes or none at all at the last elections: so long as it remains a registered political party it is entitled to be
heard, and the Constitution, 1992 says that, as fat, as the state-owned media are concerned, it shall have
equal access with any other political party.
One may ask, how is the state to ensure that all political parties have equal access to the state-owned
media? I believe it can do so in two ways, one positively, and the other, negatively. Positively, by inserting in
the instruments of incorporation of the state-owned media a requirement that they grant equal access to all
political parties: negatively, by refraining from interfering in the day-to-day running of the media. Any
complaints about discrimination would then be strictly a matter for the National Media Commission set up
under article 166 of the Constitution, 1992.
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Article 163 of the Constitution, 1992 sets out the duties of the state-owned media promoting the free
expression of views. It states: "163. All state-owned media shall afford fair opportunities and facilities for the
presentation of divergent views and dissenting opinions." As with article 55(11) of the Constitution, 1992
both the policy objective and the means to achieve it have been defined. The objective is the presentation
of divergent views and dissenting opinions, and the means, the granting of fair opportunities and facilities.
The duty is placed fully and squarely on the editors and management of such media who, like those in
charge of the privately owned ones, have been given a measure of protection from control or interference
by government.
The word "fair" means "free from bias."' It is sometimes synonymous with the word "equal." What the
Constitution, 1992 requires of the editors and management of the state-owned media is that they be
impartial, showing neither affection for, nor ill-will towards, any particular group in [p.373] the community, be
it political, economic or social. Their facilities being national assets, should be available to all. In the
exercise of such discretion as they have under article 163 of the Constitution 1992, they are bound to have
regard to article 296 of the Constitution, 1992 and regulations made thereunder. Any abuse or
misapplication of the discretionary power given to them may be corrected by the National Media
Commission or the courts.
The democratic tradition that divergent views and dissenting opinions be given free expression may be
summed up in the words Tallentyre used to describe the attitude of Voltaire on the burning of Helvetius' De
l'esprit in 1759: "I disapprove of what you say, but I will defend to the death your right to say it." History
abounds with examples where those in authority were so sure they were right that they regarded dissent as
subversive. The Reformation was preceded by the burning of heretics, and followed by the persecution of
papists. The temptation to ride roughshod over the opinions of others must be resisted; for it is only by the
free flow of ideas and discussion that error is exposed, truth vindicated and liberty preserved.
Unlike the rights conferred on political parties and presidential candidates by article 55(11) and (12) of the
Constitution, 1992, which are absolute rights, the rights conferred by article 163 of the Constitution, 1992 on
the people are subject to laws that are reasonably required in the interest of national security, public order,
and public morality, and for the purposes of protecting the reputations, rights and freedoms of other
persons. The defendant has not relied on any such laws to justify its refusal to grant the plaintiff fair
opportunities and facilities for presenting its views on the budget. What it has said is that it has a discretion
in the matter and that in its judgment it has already given the plaintiff adequate time on radio and television.
It says that it reported a news conference by the party's candidate at the presidential elections, but as
everyone knows this was part of a news bulletin and lasted only a few minutes. It also says that a member
of the party took part in a panel discussion on the budget, but, again, as everyone knows, representatives
of the governing parties were on hand to defend the proposals and, in any case, the programme was taken
off the television screen in the middle of the discussion. Compared to Dr Botchwey's monologue, the
plaintiff has had hardly any time at all on radio and television to present its views.
I conceive it to be our duty to tell the defendant in plain terms that even under article 163 of the
Constitution, 1992 it is not free to choose which opinions shall be given a hearing. The law is that all shades
of opinion must be given a fair hearing. It is a misconception to see itself as all adjunct of a political party or
as agents of the government.
[p.374]
I am of the opinion that the plaintiff has made out an unimpeachable case. Having given the National
Democratic Congress two hours to air its views on the budget, the defendant is required by article 55(11) of
the Constitution, 1992 to grant the plaintiff equal time on radio and television to set forth its divergent views.
It is one of the charms of constitutional rule that every now and then a suit instituted in a court of competent
jurisdiction can threaten alleged abuse of constitutional provisions very much cherished by the people in
whose name and for whose welfare the powers of government are to be exercise in a manner conducive to
peaceful coexistence of the entire populace of the community, more especially people of a third country
having divergent political views in an unfolding political, economic and social development. So it was in
February this year when the New Patriotic Party, one of the lading political parties in this country, brought
before this court the issue as to whether the Constitution, 1992 enjoins a duty on the Ghana Broadcasting
Corporation to afford all political parties fair opportunities and facilities for presentation of their divergent and
dissenting opinions to the public by ensuring equal access to the state-owned media under its control.

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On 22 July 1993 this court unanimously granted the reliefs sought by the plaintiff, and reserved its reasons.
I now proceed to give my reasons for concurring with my brothers and sister in granting the said reliefs.
Shortly before handing over to the new regime of the Fourth Republic the government of the Provisional
National Defence Council presented to the people of this country the 1993 budget. On 23 and 24 January
1993 the defendant was alleged to have broadcast to the general public, through the medium of television,
a recording of a forum organized by the National Democratic Congress (NDC) to justify the budget. In
pursuit of its constitutional rights, the plaintiff is said to have addressed a letter to the director of television of
the defendant requesting these same media facilities to be made available to them to ventilate the party's
divergent views and comments on the 1993 budget. Subsequent to this a symposium was organized by the
plaintiff on 9 February 1993 at about 4 pm at the premises of the Young Mens' Christian Association
(YMCA), Asylum Down, Accra. It was expected that the defendant having agreed to record the symposium,
would turn up, but in the event it failed to honour the agreement. It is the case of the plaintiff that:
"the failure or refusal of the defendant to record and broadcast by [p.375] television the symposium is a
violation and contravention of the Constitution, 1992, specifically article 163 thereof, which provides that all
state-owned media should afford fair opportunities and facilities for the presentation of divergent views and
dissenting opinions on their media."
As a result the plaintiff is seeking a declaration that:
"(a) by virtue of articles 163 and 55(11) of the Constitution, 1992 the Ghana Broadcasting Corporation, as
one of the state-owned media, has a duty to afford to the New Patriotic Party fair opportunities and facilities
for presentation of its views, especially when they are divergent from those of the government or of the
National Democratic Congress, the party supporting the government;
(b) the refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party equal time on
television to present its views of the 1993 budget, as accorded the National Democratic Congress on 23
January 1993 and 24 January 1993, is a violation and contravention of the Constitution."
and an order enforcing the provisions of the Constitution, 1992 by directing the Ghana Broadcasting
Corporation to afford the New Patriotic Party equal time on television to present its views of the 1993
budget as accorded the National Democratic Congress on 23 and 24 January 1993.
Nana Akufo-Addo, one of the learned counsel appearing for the plaintiff, argued that in the context of article
55(11) of the Constitution, 1992, fairness means equality for all political parties and that this is stated in
clear, unambiguous and unequivocal terms. He submitted that the Constitution, 1992 envisaged,
democratic state in which all political parties are allowed to express their individual and divergent opinions
on any issue prevalent in the country, a situation which was not only portrayed by the framers of the
Constitution, 1992 but also indorsed by the sovereign will of the people of this country which they voted
massively for the Constitution, 1992. However, he expressed regret that the converse is what prevails in
this country whereby the views of a functionary of the ruling party is highlighted in the media while those of
the opposition are shelved into total oblivion.
Counsel further stressed that article 162(1), (2) and (4) of the Constitution, 1992 which deal with the
freedom and independence of the media must be read in the context of article 55(11) of the Constitution,
1992 with respect to fairness, and submitted that the media as the principal [p.376] agent for maintaining
the political order of this country should not be controlled by the party in power or the government,
otherwise the other political parties will gradually be phased out. In view of the foregoing, counsel
submitted, the opposition has an automatic right of reply as far as the recording of the forum organised by
the National Democratic Congress to justify the budget is concerned.
In reply to these submissions, the Attorney-General argued that by the combined effect of articles 55(11)
and 162 of the Constitution, 1992, the Ghana Broadcasting Corporation has a discretion in determining its
modus operandi, and that equal opportunity could be equated to equal time. He submitted that the suit is
frivolous and deserves to be dismissed. At this stage the Attorney-General got himself in a bad fix and
inextricably entangled by a series of questions flowing from the bench. He was unable to state precisely
what time was given to the New Patriotic Party to air its views on the budget, as against the two hours
allocated to the National Democratic Congress on the television to defend the budget. He heaved a sigh of
relief, when the president of the court came to his rescue by granting him adjournment till the following day
to put his house in order. This quickly brought the leading counsel for the plaintiff to his feet to protest that
the adjournment was strange. But he was overruled.
On the next adjourned date the Attorney-General attempted to move the court to amend the defendant's
statement of case under rule 49 of the Supreme Court Rules, 1970 (CI 13) but this did not find favour with

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the court as the proposed amendment sought to set up an entirely new case for the defendant especially at
a time when the plaintiff had closed its case without calling any witness. Leading counsel for the plaintiff had
urged that since by the proposed amendment the defendant had told a lie, it should not be allowed to enjoy
the discretion of the court in its favour.
The Constitutions of this country dating as far back as 1969 contain provisions that ensure freedom of
expression of the individual, ie "freedom to hold opinions and to receive and impart ideas and information
without interference, and freedom from interference with his correspondence." Provisions are also made to
ensure that persons responsible for any national medium, for the dissemination of any kind of information to
the public afford equal opportunities and facilities for the representation of opposing or differing views: see
article 22(1) and (2) of the Constitution, 1969; and article 28(1) and (2) of the Constitution, 1979. The same
basic framework is contained in the current Constitution, 1992. Article 162(1) and (4) of the Constitution,
1992 guarantees the freedom and independence of the media, and protects editors and publishers of
newspapers and other institutions of mass media from control or [p.377] interference by the government as
well as any harassment or punishment for their editorial opinions and views, or the content of their
publications. These are the outcome of the cogent and edifying report of the Committee of Experts that
formed the basis of the constitutional proposals of the Consultative Assembly. The committee aware of the
fact that there was a direct governmental (ministerial) interference in or control of the operations of the
press, submitted in paragraph 188 of its report: ".... the public sector media financed by public taxes must
operate in such a way that they truly reflect the diverse shades of public opinion existent in the country as a
whole." It continued:
"Editors and reporters are appointed by the Ministry of Information, and they see themselves as civil
servants and feel constrained in carrying out their professional function consistent with the highest
professional standards possible. This ministerial power of appointment and dismissal of reporters and
governmental interference in media activities have greatly contributed to the erosion of the freedom and
independence of the press and media in Ghana.''
And "to reverse this erosion, and ensure the growth and strengthening of press and media freedom and
independence in the Fourth Republic" the committee recommended an independent Press Commission to
be set up to perform the functions hitherto discharged by the Minister of Information with respect to the
public sector press. During the course of debate on this issue a number of the members of the assembly
echoed the sentiments of the committee. One or two comments from the official Report of Proceedings of
the Consultative Assembly, 26 November 1993, pp 983 and 997 will suffice:
". . . we want to give all kinds of freedom to the Press but at the same time we want them to be controlled
and also to be responsible ... So it is the courts which have the power to control the media and not the
Government or the politicians",
and
"But the state-owned media since it is publicly owned must seek to protect the interest of the generality of
the public so that all types of views or divergent views must find expression in the public media because
they are all members of the public and it is not to be exclusive propagation of the views of the Government."
Indiscriminate control of the mass media by the government of the day [p.378] may constitute a serious
obstacle to the full realisation of the objectives of the media in achieving its freedom and independence
which is effectively guaranteed by the Constitution, 1992.
The defendant did not seem to have an effective answer to the contention of the plaintiff that the Ghana
Broadcasting Corporation refused to afford the New Patriotic Party equal time on the television to present
its views of the 1993 budget as it accorded the National Democratic Congress. In fact under section 9 of the
Ghana Broadcasting Corporation Decree, 1968, (NLCD 226), which created the defendant-corporation, the
corporation is expected to allocate and apportion air-time to party political speeches dealing with the views
and policies of the various political parties, and speeches expressing different points of view on matters of
controversy, equitably between the parties according to their respective claims upon the interest of
members of the Ghanaian public. The combined effect of articles 55(11) and 163 of the Constitution, 1992
enjoins on the defendant the duty to afford to the New Patriotic Party fair opportunities and facilities for
presentation of its views, and in this respect it is my view that the defendant has no discretion to operate in
any manner it deems fit as the Attorney-General seems to urge before us. How can the populace boast of
effective political pluralism when some institutions refuse, or think they are entitled to refuse, to abide by
clear constitutional provisions and hide behind the concept of discretion in situations where it is abundantly
clear that they brave no right to exercise any discretion in the matter? I think the Attorney-General rightly
abandoned this inept theory of discretion. Selective responses to constitutional norms in violation of clear
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and literal meaning of the Constitution, 1992 to suit particular whims and caprices will definitely discredit the
noble cause of uncontaminated democratic principles and constitutional development to which we are all
committed. The courts are in duty bound to respond to any violation of the objectives of our constitutional
era, and the welfare of the Ghanaian public is the sole concern and motivation of the courts.
The responsibility of the media must be matched by comparable support by the government for the
realisation of the political, economic and social rights of the parties in opposition. The dissemination of
divergent views of all parties must be encouraged, as well as the interdependence of such views.
Article 163 of the Constitution, 1992 is clear and unambiguous in its language. It says: "163. All state-owned
media shall afford fair opportunities and, facilities for the presentation of divergent views and dissenting
opinions." The responsibility of state-owned media whereby they are obligated to afford fair opportunities
and facilities for the [p.379] presentation of divergent views and dissenting opinions must be effectively
brought into focus so that all political parties are provided fair opportunities to present their programmes to
the public by being given equal access to the state-owned media. The courts must not only condemn any
practice of discrimination, but also insist on the observation of the principle of fair opportunity and equality
of access to the media. The media is the pivot of public information, and through them the people must be
apprised of economic and social issues of the day by the political parties without any control of one party
over the other in the context of enjoying more privileges under the Constitution, 1992. A party in
government must not be held to enjoy absolutistic power over the state-owned media.
It is necessary for Ghanaians to realise that in the governance of a country there is an alternative point of
view to be canvassed. Equity requires that in all these things the opposition should be given as much
attention within the framework of the political scenario. If the people are to be given opportunity to decide on
the basis of some of the analysis contained in the Provisional National Defence Council or the National
Democratic Congress budget statement, the opposition must have equal access and equal opportunity to
put their side of the opinion across. Good budget is the life-blood of the economy of a country, and in a third
world country like ours a good budget will lead to successful investment growth that will in turn buttress its
infrastructure in good linkage between the local businessman and his foreign counterpart. A good economic
climate will encourage the business entrepreneurs both local and foreign to structure their combined skills
for the benefit of the common man at the grass root. That is the more reason why the budget must be
subject to scrutiny by both the party in power and those in opposition. If there is equal access for these
parties to the state print and electronic media the common people who hold the sovereignty of Ghana and
in whose names and for whose welfare the powers of government are to be exercised in accordance with
the Constitution, 1992 will become more informed of the divergent views of the parties on this all important
subject. This will nurse a stable democracy and an independent judiciary to protect the property and civil
rights of the people with a view to providing intelligent and competitive work-force and rehabilitation of the
essential elements and operations of this country.
It is for the foregoing reasons that I found myself in full agreement with my learned brothers and sister that
the plaintiff succeeds and that judgment should be given in its favour and the reliefs sought granted.
[p.380]
JUDGMENT OF EDWARD WIREDU JSC
I have had the advantage of reading before hand the reasons just read by my brother Francois JSC in
support of the conclusions and the orders made by this court on 22 July 1993.
I am of the considered view that the reasons as read by him, ably and comprehensively touch and answer
all matters in controversy and raised for consideration in this action between the parties that I am in entire
agreement with him.
I do not, therefore intend to add or contribute anytime to this except to concur in his reasoning which I do
accordingly.
JUDGMENT OF JOYCE BAMFORD-ADDO JSC
I agree with the reasons given by my brother Francois JSC for the following reasons: The plaintiff, a political
party, has invoked the original jurisdiction of the Supreme Court under article 2(1)(a) of the Constitution,
1992 and is asking for a declaration to the effect that:
"(a) by virtue of article 163 and 55(11) of the Constitution, 1992 the Ghana Broadcasting Corporation as one
of the state-owned media, has a duty to afford to the New Patriotic Party, fair opportunities and facilities for

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presentation of its views, especially when they are divergent from those of the government or of the
National Democratic Congress (NDC) the party supporting the government; and
(b) the refusal of the Ghana Broadcasting Corporation to afford the New Patriotic Party 'equal time' on
television to present its views on the 1993 budget as accorded the National Democratic Congress on 23
January 1993 and 24 January 1993, is a violation and contravention of the Constitution, 1992"...
The plaintiff is also asking for an order enforcing the provisions of the Constitution, 1992 by directing the
Ghana Broadcasting Corporation to afford the New Patriotic Party, "equal time" on television to present its
views on the 1993 budget as accorded the National Democratic Congress (NDC) on 23 and 24 January
1993. The defendant is a state-owned corporation established by the Ghana Broadcasting Corporation
Decree, 1968 (NLCD 226) to undertake, inter alia, sound and television broadcasts to the general public.
The facts as contained in the statement of the plaintiff's case, are briefly that on 23 and 24 January 1993
the defendant, through television, broadcasted to the general public a recording of a forum organised by a
political party, the National Democratic Congress (NDC), to justify the budget of 1993 presented by Dr
Kwesi Botchwey. On each occasion the [p.381] broadcast lasted over one hour and featured not only Dr
Kwesi Botchwey but other prominent members of the NDC. The plaintiff in pursuit of its constitutional rights
wrote to the director of television on 26 January 1993 requesting the same media facilities of the defendant
to be also made available to the New Patriotic Party in order to ventilate the party's divergent views and
comments on the said budget, as had been made available to Dr Kwesi Botchwey for the National
Democratic Congress, but the defendant having agreed to record a symposium to be organised on 9
February 1993 by the New Patriotic Party failed to do so. That up till the time of the hearing the defendant,
the Ghana Broadcasting Corporation, had failed in its constitutional duty under article 163 of the
Constitution, 1992 to afford the New Patriotic Party "fair opportunities and facilities" for the presentation of
divergent views on the 1992 budget and that this is a violation and contravention of the Constitution. 1992,
specifically article 163 thereof.
The defendant, represented by the Attorney-General denied that the, plaintiff is entitled under the
Constitution, 1992 to be accorded by the defendant the same amount of television time as was given to the
National Democratic Congress and argued that in any case the New Patriotic Party as well as various
groups and individuals had already been afforded "fair opportunities" for the presentation of divergent views
and, dissenting opinions on the 1993 budget. The defendant referred to a press conference held on 5
February 1993 by the opposition parties at which the presentation on behalf of the New Patriotic Party was
undertaken by the plaintiff's presidential candidate, Professor Adu-Boahen, and also to a TV programme
"Talking Point" carried on television on 17 January 1993 as well as to another programme on 22 January
1993 in which the Trade Union Congress criticised the 1993 budget and other programmes. According to
the defendant, the Ghana Broadcasting Corporation had exercised its discretion in accordance with the
constitutional requirements for affording "fair opportunities and facilities" to the plaintiff, and therefore the
plaintiff was not entitled to any of the reliefs sought.
The issue to be decided by this court is whether on the facts, the defendant is in breach of article 163 of the
Constitution, 1992 or not. It is therefore necessary to find the meaning of this article. In this exercise, article
163 of the Constitution, 1992 cannot be read in isolation it must be read together with articles 21 and 55(3)
and (11) of the Constitution, 1992 so as to arrive at the correct interpretation. The plaintiff's counsel, Nana
Akufo-Addo in his submissions invited us to interpret article 163 of the Constitution, 1992 in accordance not
only with the letter but also with the spirit of the Constitution and cited the case of Tuffour v. Attorney-
General [p.382] [1980] GLR 637, CA sitting as SC. In that case, Sowah JSC (as he then was) stated as to
the manner of interpreting the provisions of the Constitution, thus:
"We start by reminding ourselves of the major aids to interpretation bearing in mind the goals that the
Constitution intends to achieve. Our first duty is to take the words as they stand and to give them their true
construction having regards to the language of the provisions of the Constitution, always preferring the
natural meaning of the words involved, but nonetheless giving the words their appropriate construction
according to the context…"
This indeed is the proper way of interpreting the Constitution, 1992 which I shall adopt. It would be
convenient here to set out in full the provisions of articles 21(1)(a), 55(3) and (11) and 163 of the
Constitution, 1992 since these are the main provisions upon which the construction of article 163 of the
Constitution, 1992 depends:
"21. (1) All persons shall have the right to—
(a) freedom of speech and expression, which shall include freedom of the press and other media…

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55. (3) Subject to the provisions of this article, a political party is free to participate in shaping the political
will of the people, to disseminate information on political ideas, social and economic programmes of a
national character, and sponsor candidates for elections to any public office other than to District
Assemblies or lower local government units.
(11) The State shall provide fair opportunity to all political parties to present their programmes to the public
163. All state-owned media shall afford fair opportunities and facilities for the presentation of divergent
views and dissenting opinions."
It is important to ascertain the rationale behind the provisions of article 163 of the Constitution, 1992 as well
as the intent of the framers of the Constitution, 1992 and the mischief that was sought to be remedied.
These issues were discussed in the expert's report on the Proposals for a Draft Constitution of Ghana.
In chapter 6 dealing with the freedom and independence of the media the committee stated at pp 84-86,
paras 182, 186 and 188 as follows:
[p.383]
"182…. It is through responsible and independent media that objective information is disseminated, different
and opposed views are presented and shared, enlightened public opinion is formed and political consensus
mobilized and achieved…
186..... The public must, therefore, be guaranteed the right to know, the right of access to information, as a
basic human and constitutional right. Freedom of the press and expression also means that any citizen who
has anything to say about national affairs should have access to the public sector mass-media, limited only
by practical consideration of space and time, and by the existing laws of sedition, criminal libel and those
protecting privacy etc.
188. Given the above considerations, the public sector media financed by public taxes must operate in such
a way that they truly reflect the diverse shades of public opinion existent in the country as a whole....."
These objectives led to the experts' recommendation in Appendix F of their report at p. 256 which deals
with the freedom and independence of the media. The following suggested proposal for incorporation in the
draft Constitution for Ghana on this issue is contained in clause 6(l):
"6. (1) State-owned media for the dissemination of information to the public shall afford equal opportunities
and facilities for the presentation of opposing or differing views. Dissenting opinions may be freely
expressed in such media."
The measure of opportunity to be afforded to all political parties according to the experts is equal
opportunities and facilities in the presentation of opposing or differing views, in the state-owned media on
matters of national character. In the same vein at page 265 of the said report the Committee of Experts
proposed for incorporation in the draft Constitution the following provisions under political parties: "(13) the
State shall provide equal opportunity to all political parties to present their programmes to the public by
ensuring equal access to the state-owned media.' (The emphasis is mine.)
Here also "equal opportunity" was indicated. These recommendations undoubtedly gave rise to the
formulation of article 163 of the Constitution, 1992. Having identified the raison d'etre of article 163 of the
Constitution, 1992, I would now consider the meaning of words used therein and the intended effect of this
article, taking into c onsideration the context in which the appear.
[p.384]
Article 163 of the Constitution, 1992 contains the words "fair opportunities and facilities" instead of the
"equal opportunity" recommended by the experts in their report. But in article 55(11) of the Constitution,
1992 the words "fair opportunity" therein used as defined, namely that "fair opportunity" is achieved by
ensuring "equal access" to the state-owned media by all political parties where presenting their
programmes to the public, and this of course includes the presentation of divergent views on matters of
national character. Therefore if in article 55(11) of the Constitution, 1992 fair opportunity is achieved by
ensuring equal opportunity or access, then it follows that fair opportunities in article 163 of the Constitution,

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1992 should mean the same thing, ie equal opportunity, especially where both articles deal with similar
matters and having regard also to the context in which the words appear.
This is not only a correct mathematical equation, but it is also a presumptive canon of statutory
interpretation that generally, the same words bear the same meaning in the same statute. This presumption
is of course rebuttable when the legislature clearly intended a different meaning for the same words.
However, in this case there is no reason for holding that a different meaning was intended for the same
words used in the Constitution, 1992 and it is my opinion therefore that the word "fair" used in article 163 of
the Constitution, 1992 should be interpreted to mean "equal" as indicated in article 55(11) of the
Constitution, 1992 and I so hold.
But this is not all, I draw support for my said conclusion from the recommendations of the experts' reports
referred to above and also from article 22(2) of the Constitution, 1969 which states:
"(2) Any person responsible for any national medium for the dissemination of any kind of information to the
public shall afford equal opportunities and facilities for the representation of opposing of differing views ."
As well as article 28(2) of the Constitution, 1979 which states:
"(2) A person responsible for a state-owned medium in for the dissemination of any kind of information to
the public shall afford equal opportunities and facilities for the representation of opposing or differing views."
Both these constitutional provisions stipulated that equal opportunities and facilities should be given by the
state-owned media for the presentation of opposing and differing views. Considering the fact that the
Constitution, 1992 is based largely on the Constitution, 1979, there is no valid reason [p.385] for supposing
that the Constitution, 1992 was meant to depart from the Constitution, 1979 on this issue.
The Attorney-General, appearing for the defendant, in his submissions argued that the word "fair" in article
163 of the Constitution, 1992 should be interpreted to mean "reasonable" and that what is reasonable
depends on what the Ghana Broadcasting Corporation thinks is reasonable. This argument is not only
untenable for the reasons given above, but also for this reason, namely that since the word "shall" used in
article 163 of the Constitution, 1992 imposes a mandatory, not permissive duty on the Ghana Broadcasting
Corporation, the Ghana Broadcasting Corporation has no discretion in the performance of its constitutional
duty of mandatorily affording equal opportunities to all parties to present divergent and dissenting opinions
to the public on the state-owned news media: see section 27 of the Interpretation Act, 1960 (CA 4) where it
is stated that the word "shall" is mandatory and therefore excludes any question of discretion.
Further, to accept the Attorney-General's submission that "fair" in article 163 of the Constitution, 1992
should mean what the Ghana Broadcasting Corporation thinks is reasonable, would result in an absurdity
and create difficulties. It would mean that the Constitution, 1992 having granted the unqualified right of free
speech and equal opportunity to all political parties to present divergent views and programmes to the
public on matters of national character in the state-owned mass media, would at the same time curtail or
derogate from this right by giving the Ghana Broadcasting Corporation the power to decide how the parties
should exercise their right, even though the Constitution. 1992 requires that equal opportunity should be
given to each party. In any case, what would be the criteria to be used by the Ghana Broadcasting
Corporation in deciding what is reasonable? The Attorney-General's suggested construction of the word
"fair" in article 163 of the Constitution, 1992 would lead to rancour and confusion among the various political
parties and embroil the Ghana Broadcasting Corporation in unnecessary and acrimonious controversy
where allegations and counter allegations of favouritism and mala fides would be levelled against the
corporation from all sides. Such an unfortunate result is surely not what the framers of the Constitution,
1992 intended, having regard to its spirit.
I believe that this is possibly the reason why the framers of the Constitution, 1992 in their wisdom provided
"equal" not "reasonable" opportunities to all parties. The interpretation I have put on the word "fair" to mean
"equal" seems to me to accord with good sense as well as with the true intent and spirit of the Constitution,
1992. It is also consistent with [p.386] paragraph 9(1)(b) and (c) of the Ghana Broadcasting Corporation
Decree, 1968 (NLCD 226) which requires the Ghana Broadcasting Corporation to allocate and apportion
air-time equitably between political parties when broadcasting their speeches, or expressing different points
of view on matters of controversy. Counsel for the plaintiff has asked us to apply the maxim "equality is
equity" and to say that equitable air-time mentioned in paragraph 9(2) of NLCD 226 means equal time. I
have no reasons for disagreeing with him on this issue since there is no other indicated basis for
apportioning air-time under paragraph 9 of NLCD 226.

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Even though the functions required to be performed by the Ghana Broadcasting Corporation are
multifarious, according to NLCD 226, the Ghana Broadcasting Corporation is still under a mandatory
constitutional duty to provide "equal" opportunities and facilities to all political parties, to enable them to
present their divergent views to the public on matters of national character. As to the specifics of when and
how to afford the parties the equal opportunities and facilities, the matter is best left to the Ghana
Broadcasting Corporation to handle, having regard to practical considerations of space and time.
It is to be noted that in the plaintiff's writ the declaration sought in paragraphs (1)(b) and (2) (set out in full
earlier on in this judgment) mentioned "equal time", but "equal time" is not the same as "equal opportunity"
and the New Patriotic Party is entitled not to "equal time" as envisaged under article 55(12) of the
Constitution, 1992 which deals with presidential candidates but to "equal opportunity" under article 163 of
It is for these reasons that I also agree with my brothers that the plaintiff is entitled to the declaration sought
in the writ with the variation that the New Patriotic Party is entitled to "equal opportunity" but not "equal time"
as stated in paragraphs 1(b) and 2 of the writ.
JUDGMENT OF HAYFRON-BENJAMIN JSC.
I have had the benefit of reading beforehand the very instructive and able opinion contributed by my
learned and respected brother Francois JSC and the equally erudite contributions of my learned and
respected sister and brethren in support of the unanimous conclusions which we arrived at in this case on
22 July 1993 and I agree entirely with most of the reasons given in those opinions and the views which they
have expressed concerning the very important issues raised by the plaintiff's writ and statement of case. I
am nevertheless of the view that I ought to express myself on the principal issue involved which is in a real
sense concerned with the fundamental human freedom of expression as enshrined in article 21(1)(a) of our
[p.387] Constitution, 1992 which reads:
"21(1) All person shall have the right to—
(a) freedom of speech and expression, which shall include freedom of the press and other media.
The fact that the plaintiff has founded its plaint on the twin articles of the Constitution, 1992—that is to say
articles 163 and 55(11)—does not detract from the nature of the complaint.
The defendant does not deny that the plaintiff is a political party which according to its statement of case "is
a corporate body duly registered under the laws of the Republic of Ghana". The initial bone of contention
between the parties was, however, the denials of the central issue in the plaintiff's case that on 23 and 24
January 1993 through the medium of the television, the defendant had given the representative of its rival
political party—the National Democratic Congress—two occasions to broadcast its views on the 1993
budget lasting on each such occasion "over one hour, and featured not only Dr Kwesi Botchwey, but other
prominent members of the National Democratic Congress." The defendant stated as follows in its statement
of case:
"(2) The defendant denies paragraphs (3) and (4) of the statement of the plaintiff's case,
(3) In further answer to paragraphs (3) and (4) of the statement of the plaintiff's case, the defendant says
that on or about 23 January 1993, the Ministry of Information organised a forum for the Acting Minister for
Finance and Economic Planning to explain the 1993 budget to the public.
(4) The defendant gave coverage to the said programme on radio and television to afford opportunity for the
dissemination and education of the public on the policies and actions of the government as is required
under the defendant's establishment Decree, ie the Ghana Broadcasting Corporation Decree, 1968 (NLCD
226).
In support of his client's case Nana Akufo-Addo, counsel for the plaintiff sought to support his contention
that indeed the so-called forum was a party political broadcast on behalf of the National Democratic
Congress. Counsel referred to the editorial comment in the state-owned newspaper—The People's Daily
Graphic of 26 January 1993. The editorial comment stated unequivocally that the forum was indeed
organised in Accra "by the National Democratic Congress for the Acting [p.388] Minister of Finance and
Economic Planning." The editorial went further on to reveal that the said forum was recorded and played
back on television in which "Dr Botchwey was at his brilliant best." With this and other arguments which, as
I have said, have been ably discussed by my learned sister and brethren the plaintiff rested its case.

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The Honourable Attorney-General in reply, having referred to the Constitution, 1992 which says that "fair
opportunity" should be given to all political parties, submitted that in his view there appeared to be some
confusion between the expressions or phrases "fair opportunity" and "equal time". He further submitted that
upon a true construction of the expressions mentioned above, the defendant had a discretion in the matter
of the allocation of programme time to all political parities. Of course what these expressions mean have by
the respective opinions which have just been read, been put beyond any shadow of doubt. It will therefore
be unnecessary for me to add thereto. Suffice it to say that in the course of his submissions the Attorney-
General conceded that in the matter of complying with constitutional requirements to provide "fair
opportunities" and "equal time" the defendant had no discretion to exercise.
By way of parenthesis, I say I was interested in what transpired after these submissions. For soon
thereafter the Attorney-General requested for an adjournment to enable him to present us with some
documents or evidence. This court overruled the plaintiff's counsel's objection and acceded to the request
of the Attorney-General.
On the adjourned date the defendant rather filed an amended statement of the defendant's case. The
Attorney-General sought leave to put in the amended statement of the defendant's case. Leading counsel
for the plaintiff, Mr Peter Adjetey, opposed the application on the ground that by the proposed amendment
the defendant was setting up an entirely new case. Again certain matters were then being set up which the
plaintiff strongly denied. Learned counsel further submitted that the defendant had not treated the court with
candour. In any case, the defendant had heard all the arguments of the plaintiff and it would be most unfair
if this court—the highest court of the land—were to accede to such a course of procedure. Counsel
concluded his objections by submitting that the facts had been "within the knowledge of the defendant for
five months."
After due deliberation this is what we decided. "By court: By a unanimous decision of all seven of us, the
application for leave to amend is refused. We shall embody out full reasons in the judgement in the
substantive case."
I now proceed to consider this all important issue. I say that it is an [p.389] important issue because this
court cannot allow litigants or parties to sport with its procedure and processes. While therefore this court
will not permit technicalities to becloud the necessity to do justice to all manner of parties appearing before
it, it must be borne in mind that in the exercise of its original jurisdiction absolute compliance with its
essential rules of procedure is necessary for the court to function effectively. This court rarely receives oral
evidence. Hence, the rules require that statements of the parties cases must be verified by affidavits. Thus
rule 46(2)(a) of the Supreme Court Rules, 1970 (CI 13) states:
"(2) The statement of the plaintiff's case shall,
(a) set forth the facts and particulars, documentary or otherwise, verified by an affidavit, upon which the
plaintiff seeks to rely."
(The emphasis is mine.) And then for the defendant rule 48(2)(a) of CI 13 also states as follows:
"(2) The statement of the defendant's case shall,
(a) set forth the facts and particulars, documentary or otherwise, verified by affidavit, upon which the
defendant seeks to rely."
In the present case, one, Berifi Afari Apenteng claiming to be the "Deputy Director of TV News, Ghana
Broadcasting Corporation" in compliance with the rules of this court swore to an affidavit verifying the
defendant's statement of case and positively declaiming: "That the facts set out in paragraphs (1)-(4) of the
defendant's statement of defence are true to the best of my knowledge and belief."
In the light of the content of this affidavit, accepting the amendment would have exposed Mr Apenteng to a
charge of perjury; for far from denying paragraph (3) of the plaintiff's statement of case that the forum was
not a National Democratic Congress affair, the proposed amendment was saying, inter alia:
"(1) The defendant admits having afforded the National Democratic Congress as set out in paragraph (3)
through the auspices of the Ministry of Information, the opportunity to address the public on the budget on
23 January 1993 and 24 January 1993."
Surely all that the plaintiff was requesting was that it be given, in accordance with its rights under the
Constitution, 1992, the same [p.390] opportunity and the same time as had been offered to and accepted by
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the National Democratic Congress. It is quite clear that if we had admitted the amendment, Mr Apenteng
would have been branded a remorseless liar. Learned counsel for the plaintiff was right in his submission
that the defendant was trying to put up a new case. The interesting thing about this amendment was that it
was not even accompanied by an affidavit verifying the facts. It was clearly defective and in my view it was
properly rejected.
Next, I have taken the liberty of examining the rules of this court with a view to finding the true meaning of
rule 49 of CI 13 which deals with amendments of writ and statement of case in this court. Rule 49 of CI 13
states:
"49. A writ or statement of the plaintiff's case or of the defendant's case, as the case may be, may at any
time with the leave of the court be amended on such terms as the Court may determine."
If, as the rules require the statement of the party's case must be verified by affidavit, then it is clear that a
party cannot by way of amendment set up a new case without committing perjury.
What then is the scope of amendments in this court? First, I think it is safe to say that this court will not
permit an amendment which introduces a completely new case or defence which is diametrically opposed
to the former case or pleading. Next, in determining the scope of amendments in this court, I would like to
borrow from the wording of Order 26, Second Schedule of the Courts Ordinance, Cap 4 (1951 Rev) and say
that amendments in respect of original writs in this court may be permitted:
"I…. for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the fair
trial of the suit, and for the purpose of determining in the existing suit the real questions or question in
controversy between the parties…"
In my respectful opinion, amendments in this court are never intended to introduce a new case or put up a
contrary defence. Their true purpose is to narrow the issues the better to facilitate and expeditious and fair
trial.
As I have stated earlier in this opinion, at the base of the two articles of the Constitution, 1992 which we
have considered in this case, is the essential fundamental human freedom of expression. What impels me
to offer an opinion is the nature and property of the medium or media through which the offending material
was propagated. No one these days [p.391] quarrels over freedom of expression in the newspaper. In
colonial times, it was a weapon which our British masters and our struggling people employed with
devastating effect. The Gold Coast-now Ghana-was the cradle of political journalism in the West Coast of
Africa. Such journalistic stalwarts as Dr. J. B. Danquah, Dr. Nnamdi Azikwe, later Governor-General of
Nigeria, Wallace Johnson and Barkole Timothy, to mention only a few, were nurtured, groomed and later
blossomed in the world of the printed word as the vanguard of the independence movements all along the
West Coast of Africa. Supported by well-meaning African financiers and dedicated politicians the
newspapers established themselves in the country as the most regular vehicle for conveying political
thought and action. But then came the electronic media.
An examination of the pleadings in this case shows clearly that the real matter in controversy between the
parties is how the state electronic media can be used equally or equitably by the political parties and other
concerned and identifiable groups. The electronic media in this context are the radio and the television.
The radio has been with us in the country for nearly three score years during which period it developed from
a government monopoly into an alternative means of entertainment, education and information. In present
times, the airwaves are filled with competing radio stations and the citizen has the choice—even in his
village or hamlet—as to the station to which he will tune and listen. True, in the context of political influence
the citizen may be glued to his radio set anxious for information. By listening to the radio from those stations
the average citizen can make up his mind as to what to believe or the political thought by which he may be
influenced.
But by far the most radical of the modern means of communication is the television. In the developing world
where technology is in its infancy, the presence of moving and talking pictures on a screen on which the
very skin texture of the characters, their demeanor and surroundings are seen in natural colour certainly
makes captive audience of even the least suspecting of our citizens. The television, then, is a very powerful
instrument for the communication of ideas and the dissemination of information. The audience, literate and
illiterate, are rivetted to the sets. The pictures are real or they appear to be so and the speech is convincing
enough. Who shall control it?
The defendant says that by virtue of the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) it is in
control. The defendant cannot be right. Paragraph 9 of NLCD 226 upon which it seeks to rely speaks
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against the conduct which it has exhibited in this case.
[p.392]
NLCD 226 was passed by a military regime which went out of office over eighteen months after it had
established the corporation. Yet paragraph 9 of NLCD 226 makes a distinction between government time on
the electronic media, and party political time. For the sake of regularity paragraph 9(1)(b) and (c) of NLCD
226 reads:
"9. (1) In its public service broadcasting, the Corporation is expected to provide for—...
(b) party political speeches dealing with the views and policies of the various political parties (when they
come into being);
(c) speeches expressing different points of view on matters of controversy …
(2) In its broadcasting of the items mentioned in sub-paragraph (1) of this paragraph the Corporation shall
allocate and apportion air-time equitably between the parties, points of view and religious bodies according
to their respective claims upon the interest of members of the public of Ghana."
Every lawyer knows that "equitable" means "equal" for the legal maxim is "equality is equity."
The articles under consideration in this opinion—articles 55(11) and 163 of the Constitution, 1992—are
similar in form and content to the subsections of section 9 of NLCD 226 which I have cited above. The only
conclusion which any sensible citizen can come to is that the framers of the Constitution, 1992 were not
unaware of the provisions of section 9 of NLCD 226 but were determined to make the provisions part of the
fundamental laws of the land. It does not therefore lie in the mouths of minions of the electronic media to
say that the clear pronouncements of the Constitution, 1992 can be diluted by their claims on the exercise
of discretion in the management of air-time.
In the American case of CBS v Democratic National Committee 412 US 94 (1973), Mr Justice Brennan, in a
dissenting opinion, expressed himself on the electronic media thus:
…. "in light of the current dominance of the electronic media as the most effective means of reaching the
public, any policy that absolutely denies the citizens access to the air-waves cannot be justified."
In my respectful opinion, the constitutional right of access to the electronic media lies with the political
parties, the viewing public and the listeners. Articles 55(11) and 163 of the Constitution, 1992 are [p.393]
amplifications of the fundamental human right of freedom of expression. That right of access is paramount
in the order of things in our society. The defendant therefore has no right to determine who shall use the
electronic media or who shall not. There is a constitutional duty imposed upon the defendant, which is a
state monopoly, to so order and arrange its programme times as to ensure compliance with its letter and
spirit. There must be equality of access and equal time for the articulation of divergent or dissenting view
points.
DECISION
Declarations granted.
DRKS
NEW PATRIOTIC PARTY v INSPECTOR-GENERAL OF POLICE [1993-94] 2 GLR 459—509
30 November 1993
ARCHER CJ, FRANCOIS, AMUA-SEKYI, AIKINS, EDWARD WIREDU, BAMFORD-ADDO AND CHARLES
HAYFRON-BENJAMIN JJSC.
Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Restriction on exercise

exercise of—Restrictions in interest of "public safety" permissible under article 21(4)(c)—Prerequisites for
imposition of restriction—Police imposing restriction on freedom of assembly of plaintiff under NRCD 68 in
interest of "public order"—Whether justifiable under article 21(4)(c)—Public Order Decree, 1972 (NRCD 68)
—Constitution, 1992, art 21(4) (g) and (c).
Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Prior restraint—

Constitutionality of prior "consent" or "permit" of minister for exercise of freedoms—Scope of freedom of
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assembly under article 21(1)(d)—Section 7 of NRCD 68 requiring prior permit or consent of Minister for the
Interior or under his authority for exercise of right of assembly—Whether discretionary power of minister
clog on exercise of freedom of assembly—Whether requirement of permit of consent lawful—NRCD 68, s 7
—Constitution, 1992, art 21(1)(d).
Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Holding of meetings,

processions or celebration of customs—Exercise of freedoms made subject to prior permit of police under
section 8 of NRCD 68—Police required to consider applications fairly and impartially—Significance of police
permit—No provision on form or content nor on standard for assessing application—Decision of police final
—Whether real likelihood of misuse of discretion by police to suppress fundamental freedoms and civil
rights of citizens—Whether prior police permit requirement lawful—NRCD 68, s 8(1) and (2)—Constitution,
1992, art 21.
Constitutional law—Fundamental rights and freedoms—Freedom of assembly—Limitation on exercise of

freedom—Citizens exercising right of assembly subject only to provisions of Act 29—Citizens exercising
right of assembly subject only to provisions of Act 29—Citizens lawfully exercising right of assembly not
guilty of any offence—Section 12(a) of NRCD 68 empowering police or public officer to stop and disperse
any assembly in public place—Police not required to assign reason for action—Whether unfettered
discretion of police or public officer constitutional—Criminal Code, 1960 (Act 29)—NRCD 68, ss 12(a) and
13(a)—Constitution, 1992, art 21(1)(d).
HEADNOTES
It is provided by article 21(1)(d) and (4)(a) and (c) of the Constitution, 1992 that:
"21.(1) All persons shall have the right to—
(d) freedom of assembly including freedom to take part in processions and demonstrations...
(4) Nothing in, or done under the authority of, a law shall be held to [p.460] be inconsistent with, or in
contravention of, this article to the extent that the law in question makes provision—
(a) for the imposition of restrictions by order of a court, that are required in the interest of defence, public
safety or public order, on the movement or resident within Ghana of any person; or. . .
(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety,
public health or the running of essential services, on the movement or residence within Ghana of any
person or persons generally, or any class of persons."
Section 7 of the Public Order Decree, 1972 (NRCD 68) gave the Minister for the Interior the power to
prohibit the holding of public meetings or processions for a period in a specified area; section 8 of NRCD 68
provided that the holding of all public processions and meetings and the public celebration of any traditional
custom should be subject to the obtention of prior police permission; section 12 of NRCD 68 gave to a
superior police officer the power to stop or disperse such a procession or meeting; and section 13 of NRCD
68 made it an offence to hold such processions, meetings and public celebrations without such permission.
The plaintiff, a registered political party, sought and was granted a police permit on 3 February 1993 to hold
a rally at Sekondi on 6 February 1993. The permit was, however, subsequently withdrawn by the police. On
16 February 1993, the plaintiff in conjunction with other political parties embarked on a peaceful
demonstration in Accra to protest against the 1993 budget of the government but the demonstration was
broken up by the police and some of the demonstrators were arrested and arraigned before the circuit court
on charges of demonstrating without a permit and failing to disperse contrary to sections 8, 12(c) and 13 of
NRCD 68. On 17 February the plaintiff was granted a permit by the police to hold a rally at Kyebi to
commemorate the 28th anniversary of the death of Dr J B Danquah but the permit was withdrawn and the
rally prohibited by the police on the day of the rally. Aggrieved by those decisions and actions of the police,
the plaintiff brought an action before the Supreme Court for a declaration that (i) sections 7, 8, 12(a) and 13
of NRCD 68 were inconsistent with and a contravention of the Constitution, 1992, especially article 21(1)(d)
thereof, and were therefore null, void and unenforceable; and (ii) under the Constitution, 1992 no
permission was required of the police or any other authority for holding of a rally or demonstration or
procession or the public celebration of any traditional custom by any person, group or organisation. In
support of the claims, counsel for the plaintiff submitted that (a) sections 7 and 8 of NRCD 68 derogated
from the fundamental human rights and freedoms, especially the right derogated from the fundamental
human rights and freedoms, especially the right of citizens to freedom of assembly, including freedom to
take part in processions and demonstrations as provided under article 21(1)(d) of the Constitution, 1992;
and (b) any provision of a statute that sought to give power to a person to refuse a rally being held in

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derogation of the right of the individual granted by the [p.461] Constitution, 1992 was unconstitutional since
any restriction contained in article 21(4)(c) of the Constitution, 1992 should not be taken as giving a right to
any authority or person to refuse such a rally. In the circumstances, the police should never be given the
right to issue a permit authorising a meeting, procession or celebration. Although the defendant admitted
the facts of the plaintiff's case, it was contended in his defence that the right of freedom of assembly
contained in article 21(1)(d) of the Constitution, 1992 was not absolute but was subject to the restrictions
contained in article 21 (4) of the Constitution, 1992 and therefore since sections 7, 8 12(c) of the
Constitution, 1992, those restrictions were in conformity with the letter and spirit of the Constitution, 1992.
Held:
(1) article 21(4)(c) of the Constitution, 1992 could not be invoked in aid of a valid exercise of authority under
the Public Order Decree, 1972 (NRCD 68) because the imposition of restrictions under that provision on the
exercise of the fundamental freedoms had to be granted by a law which imposed reasonable restrictions
on the fundamental freedoms but did not deny the citizen the fundamental freedoms to which he was
entitled. Besides, the restrictions under article 21(4)(c) of the Constitution, 1992 had to be for purposes of
"public safety" and not "public order" and those expressions referred to two different situations. In any case,
whoever was to impose the restrictions under article 21(4)(c) of the Constitution, 1992 was required to
exercise his discretion only when they were reasonably required. Thus unlike the power under article 21(4)
(a) of the Constitution, 1992 which provided for the imposition of prior restraint by the court on the exercise
of the fundamental freedoms, the power under article 21(4(c) of the Constitution, 1992 was akin to the
emergency powers which, short of a presidential declaration of a state of emergency, might be exercised
under the authority of any law made to cover the situations and the persons mentioned in article 21 (4)(c) of
the Constitution, 1992. On the evidence, however, no such situation had arisen in the instant case to justify
the invocation of article 21(4)(c) of the Constitution, 1992.
(2) Sections 7, 8, 12(a) and 13(a) of the Public Order Decree, 1972 (NRCD 68) were inconsistent with
article 21 (1)(d) of the Constitution, 1992 and were therefore unconstitutional, void and unenforceable
because:
(a) the freedom of assembly granted the citizen under article 21(1)(d) of the Constitution, 1992
encompassed the right of the citizens to come together to petition for redress of their grievances or take
part in processions and demonstrations in support of or in opposition to a cause, policy or event. But the
consent or permit requirements under section 7 of NRCD 68 sought to demand leave of the Minister for the
Interior for the exercise of those rights, with the necessary implication that contrary to the provision of article
21(1)(d) of the Constitution, 1992, meetings, processions and demonstrations [p.462] were prohibited by
law unless sanctioned by the minister or anyone authorised by him. That proposition clearly violated the
enshrined provision of article 21(1)(d) because by investing the minister or other authority with unfettered
discretion to refuse his consent or permit, section 7 of NRCD 68 placed the assertion by the citizen of his
constitutional rights of assembly, procession by the citizen of his constitutional rights of assembly,
procession and demonstration at the mercy of the authorities. Since, the generality of NRCD 68 was to
create a prior restraint and a clog on the rights of the citizen under article 21(1)(d) of the Constitution, 1992
and thereby denied him those freedoms to which he was entitled, it was inconsistent with the letter and
spirit of article 21(1)(d) of the Constitution, 1992 and accordingly unconstitutional. Kunz v New York, 340 US
290 (1951) and Carroll v President and Commissioners of Princess Ann, 393 US 175 (1968) cited. Dicta of
Lord Atkin in Berton v Alliance Economic Investment Co [1922] 1 KB 742 and of Justice Douglas in
Adderley v Florida, 385 US 39 (1966) approved.
(b) although section 8(2) of NRCD 68 required the superior police officer to consider an application for
permit under section 8(1) of NRCD 68 fairly and impartially, that duty presupposed a choice between the
citizen's right of assembly, procession and demonstration against the choice of the senior police officer to
determine whether to refuse the permit on the ground that there was the likelihood of a breach of the peace
or that the meeting or procession would be prejudicial to national security. However, section 8(2) of NRCD
68 did not provide for the form and content of an application for a permit not the yardstick or the standard
which the officer should apply in determining whether or not he should grant the permit. And although the
police officer had to inform the applicant of the reasons for his refusal to grant the permit, such refusal could
not be challenged in any court whether it was out of prejudice, bias or even political preference or any
flippant and untenable ground. It is clear then that the danger that the awesome power contained in section
8 of NRCD 68 could be used to suppress the fundamental freedoms and civil rights of the citizens was real.
Accordingly, even though under the Constitution, 1992 either the courts or a relevant law might in
appropriate cases impose a restriction on any of the freedoms contained in article 21 of the Constitution,
1992 the requirement that a permit be obtained before the exercise thereof was unconstitutional and
therefore void. Dicta of Justice Roberts in Hague v CIO, 307 US 496 at 515-516 [p.463] (1939); of Justice
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Douglas in Saia v New York, 334 US 558 at 560-561 (1948) and of the board in Francis v Chief of Police
[1973] 2 All ER 251 at 255, PC approved.
(c) when citizens met or processed in a public place in pursuance of their constitutional rights under article
21(1)(d) of the Constitution, 1992 to form or hold meetings and processions, they were subject only to hold
meetings and processions, they were subject only to the provisions of the Criminal Code, 1960 (Act 29).
Accordingly, if a meeting, procession or demonstration was being held lawfully and nothing done by persons
attending such meeting or forming the procession or demonstration contravened the provisions of Act 29,
such persons should not be guilty under section 13(a) of NRCD 68. Accordingly, the provision of section
12(a) of NRCD 68 which conferred on a police officer or an authorised public officer unfettered, absolute,
administrative powers to stop and cause to be dispersed any meetings or processions in any public place,
without ascribing any reasons for it, abridged the fundamental human rights of the citizen under article 21(1)
(d) of the Constitution, 1992 and were therefore unconstitutional. Beatty v Gillbanks (1882) 9 QBD 308, DC
and Republic v Kambey [1991]1 GLR 235, SC cited.
Per Amua-Sekyi JSC. I would have thought that it was self-evident that the continued enjoyment by any
community of fundamental human rights was incompatible with any requirement that a permit or licence has
power to refuse it. No one would regard a law which required that workers should seek the prior permission
of their employers before organising themselves in trade unions as a reasonable restriction on their right to
freedom of association. Any such restriction on the right to freedom of assembly would make it meaningless
and a sham. Based as they are on a requirement that permission be sought of the executive or one of its
agencies before the right to freedom of assembly is exercised, sections 7, 8, 12(a) and 13 of NRCD 68 are
clearly inconsistent with article 21(1)(d) of the Constitution, 1992.
Per Charles Hayfron-Benjamin JSC. In construing article 21(1)(d) and (4) of the Constitution, 1992,
therefore, it is clear that (1) the concept of consent or permit as prerequisites for the enjoyment of the
fundamental human right to assemble, process or demonstrate is outside their purview. Section 7 and 8 of
NRCD 68 are consequently patently inconsistent with the letter and spirit of the provisions of article 21(d) of
the Constitution, 1992 and are unconstitutional, void and unenforceable; (2) some restrictions as are
provided for by article 21(4) of the Constitution, 1992 may be necessary from time to time and upon proper
occasion. But the right to assemble, process or demonstrate cannot be denied. The sections of NRCD 68
which formed the basis of the plaintiff's writ were ex facie [p.464] unconstitutional, void and unenforceable.
CASES REFERRED TO
(1) Lardan v Attorney-General (1957) 3 WALR 114.
(2) Balogun v Edusei (1957) 3 WALR 547.
(3) Okine, In re [1959] GLR 1.
(4) Amponsah v Minister of Defence [1960] GLR 140, CA.
(5) Dumoga, Re [1961] GLR 44.
(6) Akoto, Re [1961] GLR (Pt 11) 523, SC.
(7) Tsiboe v Kumasi Municipal Council [1959] GLR 253.
(8) Liversidge v Anderson [1942] AC 206; [1941] 3 All ER 338; 1 10 LJKB 724, HL.
(9) State v Otchere [1963] 2 GLR 463, SC.
(10) R v Vincent (1839) 9C & P 91; 3 State Tr NS 1037.
(11) Beatty v Gillbanks (1882) 9 QBD 308; 51 LJMC 117; 47 LT 194, DC.
(12) Tuffour v Attorney-General [1980] GLR 637, CA sitting as SC.
(13) Green v Premier Glynrhonwy State Co [1928] 1 KB 561; 97 LJKB 32; 138 LT 90, CA.
(14) Republic v Kambey [1991] 1 GLR 235, SC.
(15) Kunz v New York, 340 US 290 (1951).
(16) Carroll v President and Commissioners of Princess Ann, 393 US 175 (1968).
(17) Adderley v Florida, 385 US 39 (1966).

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(18) Saia v New York, 334 US 558 (1948).
(19) Hague v Committee for Indus Organization, 307 US 496 (1939).
(20) Berton v Alliance Economic Investment Co Ltd [1922] 1 KB 742; 91 LJKB 748; 127 LT 422, DC.
(21) Francis v Chief of Police [1973] 2 All ER 251.
ACTION by the plaintiff, a registered political party, against the Inspector-General of Police for a declaration
that sections 7, 8, 12(a) and 13 of the Public Order Decree, 1972 (NRCD 68) which required, inter alia, that
a permit or the consent of the Minister for the Interior or a police officer be obtained before citizens could
embark on a public demonstration or procession or celebration of a custom were inconsistent with the letter
and spirit of article 21(1)(d) of the Constitution, 1992 which granted the citizen the freedom of assembly,
and were therefore void and unenforceable. The facts are sufficiently set out in the judgments of Aikins,
Bamford-Addo and Charles Hayfron-Benjamin JJSC.
[p.465]
Peter Ala Adjetey (with him Sam Okudzeto, Nana Akufo-Addo, Afram Asiedu and Miss Gloria Akuffo) for the
plaintiff.
Martin A B K Amidu, Deputy Attorney-General (with him Mrs Pobee-Orleans and Mrs Adusa-Amankwah,
Chief State Attorneys) for the defendant.
JUDGMENT ARCHER CJ.
I have had a preview of the reasons written by my brother Charles Hayfron-Benjamin JSC and I agree with
them but I wish to add a few words to demonstrate that police permits are colonial relics and have no place
in Ghana in the last decade of the twentieth century.
My brother has mentioned the Criminal Code, 1892 but I want to mention one particular Ordinance also
enacted in the same year. It is the Native Customs (Colony) Ordinance, Cap 197 passed on 15 July 1892.
This Ordinance restricted the celebration of native customs without the permission in writing of the district
commissioner in certain towns in the colony, namely Accra, Ada, Axim, Cape Coast, Dixcove, Elmina, Keta,
Prampram, Saltpond, Sekondi, Shama, Winneba, Anomabu, Apam, Christiansborg, Kormantin, Labadi,
Moree and Manford. Krobo customs like dipo were also prohibited. Penalties were imposed for violations of
these restrictions and prohibitions. A district commissioner was also empowered to make an order
prohibiting the holding of company meetings in a public place of ten or more members of a native company
under the direction of a supi or headman. Company flags or tribal emblems could not be exhibited without
the permission in writing of a district commissioner. The police were given powers to seize such items.
Then on 1 July 1922 when the Police Force Ordinance, Cap 37 was enacted, the police were under its
section 54 given powers to regulate traffic by stopping and diverting the course of traffic. The Governor in-
Council was also empowered to make regulations with respect to the assembling and movements of
meetings and processions in public ways and public places. It is interesting to note that section 54(3) of
Cap 37 and the Native Customs Ordinance of 1892 prevailed until they were repealed by the Public Order
Act, 1961 (Act 58) which introduced police permits for meetings and processions in public places.
It seems incongruous that legislation that was originally meant to control asafo companies, yam festivals,
fetishes a century ago, should be allowed to develop into hideous and ugly tumours on the near immaculate
face of our present Constitution, 1992. Those who introduced police permits in this country do not require
police permits in their own country to hold public meetings and processions. Whey should we [p.466]
require them?
Article 21 of our Constitution, 1992 guarantees freedom of assembly, including freedom to take part in
processions and demonstrations. This provision is in consonance with similar provisions in the United
Nations Charter on Human Rights although Ghana was not a signatory in 1948 because it was a British
colony at the time. The Organisation of African Unity has produced an African Charter on Human and
Peoples' Rights, article 71 of which reads:
"Every individual shall have the right to assembly freely with others. The exercise of this right shall be
subject only to necessary restriction provided for by law in particular those enacted in the interest of
national security, the safety, health, ethnics and rights and freedom of others."

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Ghana is a signatory to this African charter, and member states of the Organisation of African Unity and
parties to the charter are expected to recognise the rights, duties and freedoms enshrined in the charter
and to undertake to adopt legislative or other measures to give effect to the rights and duties. I do not think
that the fact that Ghana has not passed specific legislation to give effect to the charter, means the charter
cannot be relied upon. On the contrary, article 21 of our Constitution, 1992 has recognised the right of
assembly mentioned in article 71 of the African charter.
It follows that section 7 of the Public Order Decree, 1972 (NRCD 68) is not only inconsistent with article 21
(1)(d) of our Constitution, 1992 but is also in contravention of article 71 of the African Charter on Human
and Peoples' Rights adopted by the Assembly of African Heads of State and Government in June 1981 in
nairobi, Kenya.
Finally, I would urge that the whole of NRCD 68 should be reviewed and modernised in its entirety to enable
the Police Service to carry out its duties effectively without contravening any provision in our current
Constitution, 1992.
I have been privileged to read in advance the reasons given by my learned colleagues for the unanimous
decision we gave on 22 July 1993.
They are full, comprehensive, and with a main thrust that accords with my perception of the matter. I see no
reason therefore to reduplicate the efforts of my learned brethren by writing reasons of my own. I am
content to indorse the reasons given.
[p.467]
It is an axiom of British parliamentary democracy that Parliament is supreme. This means that Parliament
may pass any laws that it considers ought to be made. If it takes a mistaken view of the public interest and
passes laws that are inimical to the welfare of the community, or a section thereof, it's error must be
corrected by itself, and not by any outside body such as the courts. In this system of government, much
faith is placed in the good sense of those who, for the time being, wield power. It works best in a society
where tolerance of divergent views is regarded as necessary for the well-being of the community. But where
those who hold differing views are looked upon as subversive, it breaks down completely and becomes
tyrannical.
In the immediate post-independence period, our courts took the view that in the Ghana (Constitution)
Order-in-Council, 1957 our former rulers had left us the kind of democratic government that they knew, that
is one in which Parliament had unlimited power to make laws. On this basis, our courts upheld the validity
of the Deportation Act, 1957, under which aliens who were believed to be sympathetic to the political parties
opposed to the government were deported from the country; the Deportation (Othman Larden & Amadu
Baba) Act, 1957 which brought court proceedings challenging deportation orders to an abrupt end: see
Lardan v Attorney-General (1957) 3 WALR 114; the Deportation (Indemnity) Act, 1958 which barred the
courts from punishing the Minister of the Interior and the Acting Commissioner of Police for their contempt
in carrying out a deportation order at a time when there were proceedings in court challenging its validity:
see Balogun v Edusei (1957) 3 WALR 547; the Preventive Detention Act, 1958 under which a large number
of persons opposed to the government were arrested and placed in custody without trial: see In re Okine
[1959] GLR 1; Amponsah v Minister of Defence [1960] GLR 140, CA; In re Dumoga [1961] GLR 44; Re
Akoto [1961] GLR (Pt 11) 523, SC and the Kumasi Municipal Council (Validation of Powers) Act, 1959 by
which an action for damages for the demolition of the premises of a political opponent was again brought to
an end: see Tsiboe v Kumasi Municipal Council [1959] GLR 253.
During this period of our history, the courts said that they were prevented by British constitutional
conventions from making a stand for the observance of human rights norms. Commenting on section 31(1)
of the Order-in-Council which stated that "it shall be lawful for Parliament to make laws for the peace, order
and good government of Ghana," Smith J, an expatriate judge, said in Lardan (supra) at 122-123.
[p.468]
"It is the same position in the case of South Africa, where the Constitution provides that Parliament shall
have 'full powers to make laws for the peace, order and good government of the Union.' It has been held in
the case of Ndlwana v Hofmeyer N.O. (1937) A.D. 229:

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'Parliament's will therefore, as expressed in an Act of Parliament, cannot now in this country, as it cannot in
England, be questioned by court of law whose function it is to enforce that will, not to question it.'
In conclusion, there are two passages I will quote. One is from May's Parliamentary Practice, and the other
from Lord Wright's speech in Liversidge v. Anderson [1942] AC 206, which I think are appropriate. The
former is that:
'The Constitution has assigned no limits to the authority of Parliament over all matters and questions within
its jurisdiction. A law may be unjust and contrary to the principles of sound government. But Parliament is
not controlled in its discretion, and when it errs its errors can be corrected by itself.'
The second quotation from Liversidge v Anderson, is:
'All the courts today, and not least this House, are as jealous as they have ever been in upholding the liberty
of the subject. . . In the constitution of this country there are no guaranteed or absolute rights. The
safeguard of British liberty is in the good sense of the people and in the system of the representative and
responsible government which has been evolved.'
In England it is not open to the court to invalidate a law on the ground that it seeks to deprive a person of
his life or liberty contrary to the court's notions of justice and, so far as the Ghana (Constitution) Order in
Council, s.31(1), is concerned, that is the position in which I find myself."
Our indigenous judges agreed. When in In re Dumoga (supra) Dr Danquah, counsel for the detainees,
pointed out that Liversidge v Anderson [1942] AC 206, HL dealt with war-time regulations for the arrest and
detention of persons suspected of being sympathisers of the [p.469] enemy, Adumua-Bossman J (as he
then was) said at 55-56
"We are not at war, it is true; but a fully sovereign parliament composed of representatives of the people
duly elected by universal adult suffrage, of which learned counsel for the applicants in his political activities
was one of the staunchest sponsors, has after due deliberation decided that conditions exist as to make it
necessary for this rather drastic power to be conferred on the chief executive officer of the state to be by
him exercised in his discretion, and has accordingly made provision for it.
In these circumstances there can surely be little or no point in resorting to the court; and surely the course
open to men of realistic outlook is to adopt and pursue a policy of constant approach and appeal to
influential humanitarian parliamentarians to use their influence and good offices to procure possibly a
reduction in the period of detention in some cases, or perhaps reconsideration from time to time of the
question of the termination of the operation of the enabling Act."
And when in In re Akoto (supra) the matter finally reached the Supreme Court, Korsah CJ, writing on behalf
of himself, van Lare and Akiwumi JJSC said at 535:
"We do not accept the view that Parliament it competent to pass a Preventive Detention Act in war time only
and not in time of peace. The authority of Parliament to pass laws is derived from the same source, the
Constitution, and if by it, Parliament can pass laws to detain persons in war time there is no reason why the
same Parliament cannot exercise the same powers to enact laws to prevent any person from acting in a
manner prejudicial to the security of the State in peace time. It is not only in Ghana that Detention Acts
have been passed in peace time."
With this pronouncement, all resistance to oppression came to an end. We had rammed down our throats, a
constitutional tyranny which those who professed to believe in it called a "one-party" state. Dr Danquah was
arrested, detained and died in prison; the Minister for the Interior and the chief of police who had taken
refuge behind an Act of Indemnity to flout the authority of the courts were arrested and detained; the
Minister for Foreign Affairs and two protagonists of the new order were arrested and charged with treason.
Acquitted in proceedings intituled State v Otchere [1963] 2 GLR 463, SC the verdicts were set aside by
[p.470] executive order: see Special Criminal Division Instrument, 1963 (EI 161). Put back on trial before a
more pliant bench, the executive had the satisfaction of seeing them convicted and sentenced to death.
Mercifully, the sentences were not carried out; but a grave precedent had been set. The judges were not
spared: Korsah CJ was removed from office, and a constitutional amendment cleared the way for the
dismissal of Adumua-Bossman J (as he then was) and other judges whose loyalty to the absolutist State
was now called in question.
It was to rescue us from such an abyss of despair that on three successive occasions, in 1969, 1979 and
1992, elaborate provisions on fundamental human rights have been set out in our Constitutions and the
courts given clear and unequivocal power to enforce them. The Constitution, 1992 is now the supreme law

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of the land, and any enactment or executive order inconsistent with it is null and void. Thus, except for the
periods of dictatorship when these fundamental human rights were suspended, our courts have since 1969
had power to protect the people from the abuse of legislative and executive power. Unfortunately, we have
had too little experience of true democracy since independence. Like a bird kept in a cage for years, we
have come to think of the cage as home rather than a prison. The door has been flung wide open, yet we
huddle in a corner and refuse to leave.
In countries which practice true democracy, supporters and opponents of every conceivable cause are
given freedom to associate and express their opinions. In the end, some have succeeded and their
unpopular demands have eventually become majority wishes and have been recognised. Examples are the
anti-slavery groups in eighteenth century England and nineteenth century America, and the suffragettes of
both countries at the beginning of this century. Today, in these countries, those who favour and those who
oppose abortion may assemble and hold demonstrations and processions in support of their cause while, in
the less tolerant societies, one would be permitted and the other banned. In this country, it would be
unthinkable for any police officer to grant homosexuals a permit to hold a demonstration in support of so-
called gay rights; but, I ask, if in nineteenth century England the opponents of child labour had been
prevented from stating their case, would it's evil consequences have ever been recognised? In this day and
age, it is necessary for us to begin to see that consent, not force, is the basis of the just society, and that it
is not for the government or our neighbour to tell us what to think, or feel or do.
Most of the restrictions on our liberty which, after years of repression, [p.471] we have come to accept, are
inconsistent with democratic norms. Except in a time of war, or when a state of emergency has been
declared, it cannot be right for any agency of the executive to suppress the free expression of any opinion,
however unpopular that opinion may be. The believer in absolutism and the anarchist, those who support
and those who are opposed to abortion, those favour and those who oppose equal rights for women—yes,
lesbians and homosexuals too—are all entitled to the free expression of their views, and the right to
assemble and demonstrate in support of those views and to propagate those views. Once the State takes
for itself the power to licence associations, assemblies and processions it resorts to support of the status
quo, and the only way of changing the prevailing state of affairs is by the use of force.
The question now before us is whether section 7 of the Public Order Decree, 1972 (NRCD 68) which gives
the Minister for the Interior power to prohibit the holding of a public meeting or procession in any public
place; section 8 of NRCD 68 which requires any person who intends to hold nay such meeting or
procession to obtain a permit from the police; section 12 (a) of NRCD 68 which authorises the police to stop
and disperse any meeting or procession in a public place held in contravention of the said sections 7 and 8
of NRCD 68; and section 13 of NRCD 68 which makes it an offence to take part in a meeting or procession
held in contravention of the said sections are compatible with the enjoyment by the people of this country of
the freedom of assembly guaranteed in article 21 (1)(d) of the Constitution, 1992. The said provision reads:
"21.(1) All persons shall have the right to —
(d) freedom of assembly including freedom to take part in processions and demonstrations."
The plaintiff says that sections 7, 8, 12(a) and 13 of NRCD 68 are not so compatible and ought to be
declared void; the defendant, for his part, says that they are and that their continued validity should be
sustained.
Article 21(4) of the Constitution, 1992 on which the defendant relies reads:
"(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in
contravention of, this article to the extent that the law in question makes provision—
safety or [p.472] public order, on the movement or residence within Ghana of any person; or
(b) for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any
person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for
the purposes of ensuring that he appears before a court at a later date for trial for a criminal offence or for
proceedings relating to his extradition or lawful removal from Ghana; or
person or persons generally, or any class of persons; or

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(d) for the imposition of restrictions on the freedom of entry into Ghana, or of movement in Ghana, of a
person who is not a citizen of Ghana; or
(e) that is reasonably required for the purpose of safeguarding the people of Ghana against the teaching or
propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national
symbols and emblems, or incites hatred against other members of the community; except so far as that
provision or, as the case may be, the thing done under the authority of that law is shown not to be
reasonably justifiable in terms of the spirit of this Constitution."
(The emphasis is mine.) It is important to note that article 21(1) of the Constitution, 1992, part of which I
have already quoted, deals not only with freedom of assembly, but also with other guaranteed freedoms,
such as freedom of speech and expression in subclause (a), freedom of thought, conscience and belief in
subclause (b), freedom to practice any religion and to manifest such practice in subclause (c), freedom of
association in subclause (e), and the right to information in subclause (f). More importantly, it deals in
subclause (g) with freedom of movement, which is defined there as "the right to move freely in Ghana, the
right to leave and to enter Ghana and immunity from expulsion from Ghana."
The distinction between freedom of assembly and freedom of movement is this: the former is the right of
individuals to come together and to take part in processions and demonstration in support of, or in
opposition to, a cause, policy or event; the latter is the right of every [p.473] individual freely to enter and to
leave this country, and to reside in or carry on business or other economic or social activity in any part
thereof. Freedom of movement has nothing to do with supporting or opposing the policies of governments,
or seeking to influence their direction, which is at the heart of freedom of assembly. Article 21(4) of the
Constitution, 1992 does not sanction the placing of any curbs on freedom of assembly. Subclauses (a)—(d)
are concerned with freedom of movement, and subclause (e), with freedom of speech, thought and religion.
What may be banned under subclause (e) is the teaching and propagation of a doctrine by speech or
writing; but here again, freedom of speech, thought and religion are quite distinct from freedom of assembly.
I would have thought that it was self-evident that the continued enjoyment by any community of
fundamental human rights was incompatible with any requirement that a permit or licence be first obtained.
Whoever has power to grant a permit or licence has power to refuse it. No one would regard a law which
required that workers should seek the prior permission of their employers before organising themselves in
trade unions as a reasonable restriction on their right to freedom of association. Any such restriction on the
right to freedom of assembly would make it meaningless and a sham. Based as they are on a requirement
that permission be sought of the executive or one of its agencies before the right of freedom of assembly is
exercised, sections 7, 8, 12(a) and 13 of NRCD 68 are clearly inconsistent with article 21(1)(d) of the
Constitution, 1992.
Our own experience and that of other countries which have gone down the slippery road to dictatorship
teach us to bear in mind Lord Acton's well-known aphorism, "Power tends to corrupt, and absolute power
corrupts absolutely." The lessons of history are there for all to see: we ignore them at our peril.
It was for these reasons that I concurred in the orders declaring sections 7, 8, 12(a) and 13 of NRCD 68
void.
A unanimous judgment in this case was delivered on 22 July 1993 granting the declarations sought by the
plaintiff. We reserved our reasons. I agree with the reasons contained in the judgment of my brother
Charles Hayfron-Benjamin JSC which I have had the opportunity to read in draft. All the same I would like
to say a few words in addition. Even though under rule 53(2) of the Supreme Court Rules, 1970 (CI 13) the
parties were entitled to call witnesses to testify to the facts contained in their respective statements of case,
this court decided to take the [p.474] common legal issues involved in the case.
The reliefs sought by the plaintiff are two-fold, namely that:
"(a) Section 7 of the Public Order Decree, 1972 (NRCD 68) which gives to the Minister for the Interior the
power to prohibit the holding of public meetings or processions for a period in a specified area; section 8 of
the said Decree which provides that the holding of all public processions and meetings and the public
celebration of any traditional custom shall be subject to the obtention of prior police permission; section 12
(c) of the said Decree which gives to a superior police officer the power to stop or disperse such a
procession or meeting; and section 13 of the said Decree which makes it an offence to hold such
processions, meetings and public celebrations without such permission, are inconsistent with and a

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contravention of the Constitution, 1992 especially article 21(1)(d) thereof, and are therefore null, void and
unenforceable.
(b) Under the Constitution, 1992 no permission is required of the police or any other authority for the
holding of a rally or demonstration or procession or the public celebration of any traditional custom by any
person, group or organisation."
Arguing on behalf of the plaintiff, leading counsel, Mr Peter Adjetey, submitted that sections 7 and 8 of the
Public Order Decree, 1972 (NRCD 68) derogate from the fundamental human rights and freedoms,
especially the right of persons to freedom of assembly, including freedom to take part in processions and
demonstrations as contained in article 21(1)(d) of the Constitution, 1992. He further submitted that any
provision of a statute that seeks to give power to a person to refuse a rally being held in derogation of the
right of the individual granted by the Constitution, 1992 is unconstitutional, and any restriction contained in
article 21(4)(c) of the Constitution, 1992 should not be taken as giving a right to any authority or person to
refuse such a rally. In effect, learned counsel submitted that the police should under no circumstances be
given the right to issue a permit authorising a meeting, procession or celebration.
In reply, the learned Deputy Attorney-General, Mr Martin Amidu, urged that the right of freedom of assembly
contained in article 21 (1)(d) of the Constitution, 1992 is not absolute but is subject to restrictions [p.475]
contained in article 21(4) of the Constitution, 1992. He submitted that sections 7, 8, 12(c) and 13 of NRCD
68 are reasonable restrictions required by article 21(4)(c), of the Constitution, 1992, and that these
restrictions are in conformity with the letter and spirit of the Constitution, 1992.
Section 7(1) of NRCD 68 makes unlawful the holding of a public meeting or procession held in
contravention of an executive instrument made by the Minister for the Interior prohibiting the holding of such
meeting or procession for a specified time in a specified place or area. And section 8 of NRCD 68 makes it
imperative for any person who intends (a) to hold or form any meeting or procession, or (b) to celebrate any
traditional custom, in any public place to apply in the first instance to a superior police officer for permission
to do so. This section goes on to say that such superior police officer after considering the application shall
issue a permit authorising the meeting, procession or celebration "unless he is satisfied upon reasonable
grounds that it is likely to cause a breach of the peace or to be prejudicial to national security."
It is clear from the language of the two sections that they are inconsistent with and are in contravention of
the provisions of article 21(1)(d) of the Constitution, 1992 which unreservedly gives the individual the right
to freedom of assembly, including freedom to take part in processions and demonstrations. The only
provision of the Constitution, 1992 that inhibits this right is contained in article 21(4) of the Constitution,
1992 which allows a law that makes provision for the imposition of restrictions:
"(a) . . . by order of a court, that are required in the interest of defence, public safety or public order, on the
movement or residence within Ghana of any person; or
(b) . . . by order of a court, on the movement or residence within Ghana of any person either as a result of
his having been found guilty of a criminal offence under the laws of Ghana or for the purposes of ensuring
that he appears before a court at a later date for trial for a criminal offence or for proceedings relating to his
extradition or lawful removal from Ghana; or
(c) . . . that are reasonably required in the interest of defence, public safety, public health or the running of
essential services, on the movement or residence within Ghana of any person or persons generally, or any
class of persons [p.476] Article 21(4) of the Constitution, 1992, however, makes it clear that this provision
will not apply if the thing done under the authority of that law is not shown to be reasonably justifiable in
terms of the spirit of the Constitution, 1992. In my view, these thread subclauses, ie (a), (b) and (c) of article
21 (4) of the Constitution, 1992 are mere restrictions, and any law that extends to give authority to any
person or persons to prohibit or grant a permit to other persons to take part in processions and
demonstrations curtails the freedom of such persons and cannot be said to be justifiable in terms of spirit of
It is possible that a lawful procession or demonstration may be obstructed or defeated by counter-

demonstrations, or aggressive provocation from hangers on, and it is doubtless with this in mind that the
framers of the Constitution, 1992 allowed that a law could be made for the imposition of restrictions that are
reasonably required, for example giving directions and conditions, in the interest of defence, public safety,
public order, public health or the running of essential services. It should be noted that this provision does
not give any power to the police or anyone else to forbid the holding of any meeting, procession or
demonstration. Such a prohibition must await the event, and can only be issued if and when a reasonably
apprehension of a breach of the peace has arisen. There are, however, general statutory powers to control

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processions contained in the Criminal Code, 1960 (Act 29), for example disturbance of lawful assembly
(section 204); offensive conduct conducive to breach of peace (section 207); obsetruction of public way
section 287(c)); commission of nuisance in any public or open space (section 296(2)); obstructing public
way (section 296(16); assembling for idle, etc purpose and not dispersing when required by a constable
(section 296(21)) and acts tending to disturb the peace in a public place (section 298). Moreover any
meeting or procession which constitutes an unlawful assembly may be dispersed under section 202 of Act
29, and it may be lawful to disperse a lawful assembly where necessary to prevent a breach of the peace.
But there must be clear evidence that a breach of the peace is likely to be committed.
Admittedly, it is not easy to decide at what point action will be necessary. A policeman may be overcautious
and envisage disturbance from the attitude of the crowd following the procession or the presence of some
interrupters, but care must be taken that action is not taken to intervene by the police as a matter of
officiousness. It is very tempting [p.477] for some policemen to adopt the attitude of being too ready or
willing to give orders, or misuse their authority and be bossy and interfering, ready to show the public where
power lies. This is why it is dangerous, if not unconstitutional, for the police to be given the power under
section 12 of NRCD 68.
In some liberal countries, the courts had in the course to time been inclined to extend the offence of
unlawful assembly to gatherings for a lawful purpose if those present at the meeting, procession or
demonstration behaved in such a way as to give rational men around, reasonable ground to fear a breach
of the peace: see R v Vincent (1839) 9 C & P 91 at 109. But the law did not extend to holding such meeting
to be unlawful which in itself did not give rise to any fear but was threatened by disturbances from an
outside source like aggressive hangers on.
So in the English case of Beatty Gillbanks (1882) 9 QBD 308, DC where a court of petty sessions convicted
local Salvationists of unlawful assembly and ordered them to find sureties to keep the peace, the Divisional
Court on appeal held that since the association was for religious exercises, but the disturbance of the peace
was caused by the Skeleton Army, opponents of the Salvationists, and the Salvationists themselves had
committed no acts of violence, their assembly and procession could not in itself be unlawful, and so it was
wrong to convict them of unlawful assembly and bind them over to keep the peace. This is a case that
warned the police that they could not take the easy course of dispersing an otherwise lawful assembly for
the simple reason that they, the police, feared opposition from another body.
It is for these reasons that I agreed with my learned brothers and sister that the writ of the plaintiff should
succeed and that the plaintiff was entitled to the declarations sought therein.
JUDGMENT OF EDWARD WIREDU JSC.
I feel completely satisfied that the reasons contained in the opinion of my brother Charles Hayfron-Benjamin
JSC which is about to be read, which reasons I have been privileged to have read beforehand, which
opinion has also been concurred in by the Chief Justice and my brother Francois JSC, accord with my own
views on the issues raised in this case that I can do no better than to concur and to say simply that a police
permit has no place in the Fourth Republican Constitution, 1992.
The police permit has outlived its usefulness. Statutes requiring such permits for peaceful demonstrations,
processions and rallies are things [p.478] of the past. The police permit is the brainchild of the colonial era
and ought not to remain in our statute books.
JUDGMENT OF BAMFORD-ADDO JSC.
I agree with my able brother Charles Hayfron-Benjamin JSC for the following reasons. The plaintiff, a
political party, has invoked the original jurisdiction of this court under article 2(1)(a) and (2) of the
Constitution, 1992 and is seeking a declaration to the effect that:
(1) the provisions of sections 7, 8, 12 and 13 of the Public Order Decree, 1972 (NRCD 68) are inconsistent
with those of article 21(1)(d) of the Constitution, 1992 and are consequently null and void and
unenforceable; and
(2) that under the Constitution, 1992 no permission is required of the police or any other authority before the
person, group or organisation.
The Constitution, 1992 guarantees for all persons, certain fundamental human rights as set out in article 21
thereof. I quote here the provision most relevant to this ease for case of reference, ie article 21(1)(d) and (4)
(c) which provide as follows:

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"21.(1) All persons shall have the right to—
(d) freedom of assembly including freedom to take part in processions and demonstrations . . .
(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention
of, this article to the extent that the law in question makes provision—
person or persons generally, or any class of persons. . .;
except so far as that provision or, as the case may be, the thing done under the authority of that law is
shown not to be reasonably justifiable in terms of the spirit of this Constitution."
The issue for determination in this case is simply whether or not the provisions of sections 7, 8, 12 and 13
of the Public Order Decree, 1972 (NRCD 68) are inconsistent with article 21(1)(d) of the Constitution, 1992.
Section 8 of NRCD 68 provides that:
[p.479]
"8.(1) Any person who intends—
(a) to hold or form any meeting or procession; or
(b) to celebrate any traditional custom,
in any public place shall first apply to a superior police officer for permission to do so.
(2) The superior police officer shall consider the application fairly and impartially, and shall issue a permit
authorising the meeting, procession or celebration unless he is satisfied upon reasonable grounds that it is
likely to cause a breach of the peace or to be prejudicial to national security.
(3) The superior police officer may prescribe in the permit such conditions and restrictions as are
reasonably required—
(a) in the interests, of defence, public order, public safety, public morality, public health or the running of
essential services; or
(b) to protect the rights and freedoms of other persons.
(4) Where an officer refuses to grant a permit under this section he shall inform the applicant in writing of
the reasons for his refusal."
It is the case of the plaintiff that on 16 February 1993 it's members and members of other political parties
embarked on a peaceful demonstration in Accra to protest against the 1993 budget of the government, in
the exercise of their fundamental human right, namely freedom of assembly and freedom to demonstrate,
guaranteed to them by article 21(1)(d) of the Constitution, 1992. That while on this peaceful demonstration
it's members and the other participants were violently assaulted by the police and some of them were
arrested and charged with the offence of demonstrating without a permit contrary to sections 8, 12 and 13
of NRCD 68 which law the plaintiff claims is contrary to and inconsistent with article 21(1)(d) of the
Constitution, 1992. That under the circumstances the said sections of NRCD 68 are null and void and
unenforceable.
The defendant in his statement of defence admitted the facts of the plaintiff's case but contended that
sections 7, 8, 12 and 13 of NRCD 68 are reasonably and lawful restrictions on the freedom of assembly
granted under article 21 (1)(d) of the Constitution, 1992 and therefore those sections are not null and void.
The senior counsel for the plaintiff, Mr Peter Ala Adjetey, submitted that a permit is not required because
such a law as section 8 of NRCD 68 [p.480] stipulating that a permit must be obtained before a
demonstration is held, imposes a precondition on the exercise of the right of free assembly, which is now
inconsistent with article 21(1)(d) of the Constitution, 1992 and is consequently null and void. If Mr Adjetey is
right, then it follows that sections 12 and 13 of NRCD 68 would suffer a similar fate, and the plaintiff would
be entitled to the declarations sought in the writ.
The Constitution, 1992 guarantees to all persons the fundamental human rights and freedoms set out in
chapter 5 of the Constitution, 1992 and specifically under article 21. Article 21 of the Constitution 1992
provides that:

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"12.(1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and
upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies
and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the
Courts as provided for in this Constitution.
(2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or
gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this
Chapter but subject to respect for the rights and freedoms of others and for the public interest."
(The emphasis is mine.) Article 1(2) of the Constitution, 1992 also provides that:
"(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with
any provision of this Constitution shall, to the extent of the inconsistency, be void."
Therefore if it is found that section 8 of NRCD 68 which imposes a precondition on the exercise of the right
to the freedom of assembly is inconsistent with the absolute or unrestricted freedom of association granted
by the Constitution, 1992 in article 21(1)(d), then that inconsistent law is according to article 1(2) of the
Constitution, 1992 null and void.
What then is the ordinary meaning of the words "freedom" and "permit?" The word "freedom" according to
the Oxford Advanced Learner's Dictionary (4th ed), p 492 is defined as: "condition of being free. . . to act
speak, etc. as one pleases without interference. . . state of being unrestricted in one's actions" (The
emphasis is mine.) and the meaning of "permit" as defined at p 921 as "Give permission for, allow." [p.481]
The noun of the word "permit" is "an official document that gives [somebody] the right to do [something] . . ."
Freedom to act therefore means the absolute right to do something without preconditions and admits of no
obligation to obtain permission of anyone before acting. Freedom to act and the obligation to obtain a
permit before acting are contradictory and direct opposites and they cannot coexist. If one is not free to act
without permission, the reset is that one is not free. Therefore if article 21(1)(d) of the Constitution, 1992
gives an unqualified freedom to hold demonstration but section 8 of NRCD 68 requires one to obtain a
permit before the enjoyment of this freedom, then clearly, the latter law does conflict with the Constitution,
1992 and is inconsistent with it, and by virtue of article 1(2) of the Constitution, 1992 would be null and void.
If it were not so, the inalienable fundamental human right granted under article 21(1)(d) of the Constitution,
1992 would be interfered with and in certain cases would even be completely taken away by operation of
section 8 of the NRCD 68 contrary to the stipulation in the Constitution, 1992 that the fundamental human
rights cannot be derogated from or taken away from any person.
Under article 12(2) of the Constitution, 1992 every person in Ghana shall be entitled to enjoy his or her
fundamental human rights except that the rights of others should be respected and regard must be had for
the public interest in the enjoyment of these rights.
The importance of human rights as stated in the Committee of Experts' Report on the Proposals for a Draft
Constitution of Ghana at p 62, para 128 is as follows:
"128. The National Commission for Democracy Report leaves no doubt that Ghanaians attach great
importance to human rights. Human rights are universally regarded as inalienable and constitute the
birthright of the individual as a human being. Therefore, no person may be deprived of his or her human
rights."
At p 64, para 136 it is stated further:
"136. Despite the division of human rights into the above categories, a close inspection will reveal the
interdependence of all human rights. Thus for example, the United Nations Declaration on the Right to
Development (1986) states:
'All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent
consideration should be given to the implementation, promotion and [p.482] protection of civil, political,
economic, social and cultural rights.'
In the last resort, they are all exercisable within a societal context and impose obligations on the state and
its agencies as well as on the individual not to derogate from these rights and freedoms."
This means that fundamental human rights are inalienable and can neither be derogated from or taken
away by anyone or authority whatsoever. Indeed, as stated in article 12(1) of the Constitution, 1992 the
fundamental human rights and freedoms must be respected by the executive, legislature and judiciary and
all other organs of government and its agencies and shall be enforceable by the courts.
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This court is therefore not permitted to give an interpretation which seeks to tamper in any way with the
fundamental human rights but rather to see that they are respected and enforced. It is my view that since
section 8 of NRCD 68 conflicts with article 21(1)(d) of the Constitution, 1992 it is null and void and so are
sections 7, 12 and 13 of NRCD 68, and I so hold.
The defendants' position is that sections 7, 8 12 and 13 of NRCD 68 are reasonable and lawful restrictions
on the freedom of assembly granted under article 21(1)(d) of the Constitution, 1992; no doubt relying on the
provision of article 21 (4) (c) of the Constitution, 1992 which says that:
"(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in
contravention of, this article to the extent that the law in question makes provision—. . .
person or persons generally, or any class of persons;. . .
except so far as that provision or, as the case may be, the thing done under the authority of that law is
shown not to be reasonably justifiable in terms of the spirit of this Constitution."
But NRCD 68, ss 7, 8, 12 and 13 being null and void, cannot be said to fall within the proviso to article 21
(4) of the Constitution, 1992 and cannot even be considered as existing laws, must less laws which are
reasonably justifiable in terms of the spirit of the Constitution, 1992. [p.483] Examples of such laws as
envisaged by article 21 (4) of the Constitution, 1992 are those referred to by the experts in their report
(supra) at p 157, para 73:
"!57. The fundamental freedoms mentioned above should be exercised subject to the laws of the land, in so
far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by this
Constitution, restrictions which are necessary in a democratic society and are required in the interests of
the sovereignty and integrity of Ghana, national security, public order, decency or morality, or in relation to
contempt of Court, defamation or incitement to an offence."
These laws include the criminal laws of the land. It means that even where a person has the right to
exercise his or her fundamental human rights freely without preconditions, he or she must exercise those
rights subject to the respect for the rights and freedoms of others and in the public interest. That is why
article 41 of the Constitution, 1992 provides that:—
"41. The exercise and enjoyment of rights and freedom is inseparable from the performance of duties and
(d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts
detrimental to the welfare of other persons. .
(i) to co-operate with lawful agencies in the maintenance of law and order."
The sum total of these various provisions in the Constitution, 1992 is that human rights are inalienable
being the birthright of the individual as a human being, they cannot be derogated from nor can anyone
deprive one of his or her human rights. Therefore these rights are to be enjoyed freely without any
impediments or preconditions, but in the enjoyment of these rights, regard must be had for the rights of
others and for the public interest. The public interest demands that the police maintain law and order in
society. Therefore the police will continue to maintain law and order and to ensure that there are no
infringements of the criminal laws of the land by those exercising their rights, eg to hold public
demonstrations. The Deputy Attorney General appearing for the defendants expressed concern that a
decision in favour of the plaintiff in this case would make the work of the police more difficult. That may be
[p.484] so but this is the price we have to pay for democracy and constitutional order. The police like any
other organ of government are required to operate within the four walls of the Constitution, 1992 but with
their wide crime preventing powers, I believe they can rise up to the occasion and satisfactorily discharge
their duties within the constitutional limits despite any difficulties.
In any case, article 200 of the Constitution, 1992 seems to have envisaged and taken care of any difficulties
the police might encounter in having to work under a new constitutional order. It made provision for the
police to be equipped and maintained to perform it's traditional role of maintaining law and order. It is hoped
that this provision would be complied with by the authorities concerned, to enable our hardworking police
discharge efficiently their onerous duty of maintaining law and order in the society.

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It is for the above reasons that I also agree with my brothers before me that the plaintiff is entitled to the
declaration sought in the writ.
On 3 February 1993 the police in Sekondi in the Western Region granted the plaintiff a permit to hold a rally
on 6 February 1993 in Sekondi. However, on 5 February 1993 the police withdrew the permit and prohibited
the holding of the rally. Yet again on 16 February 1993 the plaintiff in conjunction with other political parties
embarked on a peaceful demonstration in Accra "to protest against the 1993 budget of the Government of
Ghana."
This "peacful demonstration" was, according to the plaintiff, violently broken up by the police and some of
those taking part in the demonstration were arrested and charged before the Circuit Court, Accra with
demonstrating without a permit and failing to disperse contrary to sections 8, 12(c) and 13 of the Public
Order Decree, 1972 (NRCD 68).
The plaintiff complained further that on 17 February 1993 the Kyebi Police in the Eastern Region granted
the plaintiff a permit to hold a rally at Kyebi "to commemorate the 28th anniversary of the tragic death of Dr
Joseph Boakye Danquah." On the day when the rally was to be held, the police withdrew the permit and
prohibited the holding of the rally.
The plaintiff therefore filed a writ in this court wherein it claimed:
"A declaration that—
(a) Section 7 of the Public Order Decree, 1972 (NRCD 68) which gives the Minister for the Interior the
power to prohibit the holding of public meetings or processions for a period in a specified area; section 8 of
the said Decree [p.485] which provides that the holding of all public processions and meetings and the
public celebration of any traditional custom shall be subject to the obtention of prior police permission;
section 12(c) of the said Decree which gives to a superior police officer the power to stop or disperse such a
procession or meeting; and section 13 of the said Decree which makes it an offence to hold such
procession, meetings and public celebrations without such permission, are inconsistent with and a
contravention of the Constitution, 1992 especially article 21(1)(d) thereof, and are therefore null, void and
unenforceable.
(b) Under the Constitution, 1992 no permission is required of the police or any other authority for the
person, group or organisation."
By his statement of case, the defendant while not specifically admitting the allegation that the plaintiff and
other members of some other political parties were embarked on a "peaceful demonstration through the
streets of Accra on 16 February 1993", nevertheless denied that he had violently broken up the
demonstration. In the view of the defendant, the procession was "an unlawful demonstration." The
defendant, however, admitted the other two actions alleged in the plaintiff's statement of case and claimed
that the actions complained of were lawful statement of case and claimed that the actions complained of
were lawful exercise of authority within the intendments of the Public Order Decree, 1972 (NRCD 68). The
defendants stated their case thus:
"(9) The defendant admits paragraphs (9) and (10) of the statement of the plaintiff's case.
(10) The defendant says further that the allegations contained in paragraphs (9) and (10) of the statement
of the plaintiffs case were the result of a lawful and reasonable exercise of authority vested in the police by
the Public Order Decree, 1972 (NRCD 68).
(11) The defendant also says in further answer to paragraphs (9) and (10) of the statement of the plaintiff's
case that the said paragraphs are irrelevant to the present action."
There was a clear misunderstanding of the procedural rules of this court as to the filing of the memorandum
of issues. The parties separately [p.486] filed what they termed agreed issues even though the same were
not signed by each other's counsel. However, paragraph (6) of the Plaintiffs memorandum of issues were in
identical terms with the single issue raised by the defendant in his memorandum of issues. This issue was
in my respectful opinion the kernel of the matters in controversy between the parties. It reads:
"Whether or not sections 7, 8 12(c) and 13 of the Public Order Decree, 1972 (NRCD 68) are inconsistent
with and a contravention of the Constitution, 1992, particularly article 21(1)(d) thereof and are therefore null,
void and unenforceable."
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In other words, whether (1) a ministerial, police or other permit is required for the exercise of any public
activity envisaged by sections 7 and 8 of NRCD 68; (2) the superior police officer or other authorised public
officer may stop and disperse citizens taking part in any such public activity as is envisaged by sections 7
and 8 of NRCD 68; and (3) citizens may be punished for taking part in any such public activity.
For the purpose of this case the first provisions of the Constitution, 1992 which need to be set out are article
21(1)(d) and (4)(a), (b) and (c):
"21.(1) All persons shall have the right to—. . .
(d) freedom of assembly including freedom to take part in processions and demonstrations. . .
(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention
of, this article to the extent that the law in question makes provision—
safety or public order, on the movement or residence within Ghana of any person; or
(b) for the imposition of restrictions, by order of a court, on the movement or residence within Ghana of any
person either as a result of his having been found guilty of a criminal offence under the laws of Ghana or for
the purpose of ensuring that he appears before a court at a later date for trial for a criminal offence or for
proceedings relating to his extradition or lawful removal from Ghana: or
public health or the running of essential services, on the [p.487] movement or residence within Ghana of
any person or persons generally, of any class of persons."
Before coming to NRCD 68 itself, some account should be given of the history leading up to it. This court
cannot be insensible to the fact of the colonial status from which we have evolved into a nation; nor can we
be oblivious of the fact that while in the main we have received the laws from our British colonial masters—
the common law—these laws were often qualified by Ordinances and regulations designed to remind us of
our subject status and to ensure that our colonial masters had the peace and quiet necessary to enable
them live among us and rule us.
In his learned treatise on The Constitutional Law of Great Britain and the Commonwealth (2nd ed), Hood
Phillips cites from Professor Dicey's classsic treatise on Law of the Constitution (9th ed) wherein the latter
author states the general principle of English law respecting the right of assembling and processing as
follows:
"The right of assembling is nothing more than a result of the view taken by the Courts as to individual
liberty of person and individual liberty of speech. There is no special law allowing A, B and C to meet
together either in the open air or elsewhere for a lawful purpose, but the right of A to go where he pleases
so that his talk is not libellous or seditious, the right of B to do the like, and the existence of the same rights
of C,D,E and F and so on ad infinitum lead to the consequence that A, B, C and D and a thousand or ten
thousand other persons, may (as a general rule) meet together in any place where otherwise they each
have a right to be for a lawful purpose and in a lawful manner."
Hood Phillips continues with his own observation at that:
"There is a general right to promote or take part in a public meeting on private premises, and to promote or
take part in a public procession, subject in either case to the infringement of particular legal rules."
Within our municipality—and in colonial times,—our courts have not been bound in the construction of the
Criminal Code by any judicial decision or opinion on the construction of any other statute, or of the common
laws as to the definition of any offence, or of any element of any offence. The distinction between common
law offences and statutory [p.488] offences therefore does not exist in our criminal jurisprudence.
The first Criminal Code—Ordinance No 12 of 1892—was passed on 31 October 1892 and included such
common law offences as sedition, unlawful assembly, rout and riot. By various later arrangements in the
order in which it stood in the statute book the Criminal Code became Ordinance No 50 of 1952 and was
until 1960 known as "Cap 9." On a close examination of Cap 9, it will be found that the nearest mention of a
"permit" is contained in section 142(10) where it is stated that whoever:
"(10) In any town, without a licence in writing from the Governor or a District Commissioner, beats or plays
any drum, gong, tom-tom, or other similar instrument of music between eight o'clock at night and six in the
morning"

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shall be liable to a fine of forty shillings. (The emphasis is mine.)
The concept of a permit, however, first appears in 1926 in pursuance of authority granted to the Governor
by the Police Force Ordinance, 1922 (Cap 37). By virtue of the powers granted the Governor under Cap 37
the Public Meetings and Processions Regulations, 1926 (No 10 of 1926) were made on 26 April 1926.
Section 2 of the regulations states:
"2. Any person who desires to hold or form any meeting or procession in a public way shall first apply to a
police officer not below the rank of Assistant Commissioner of Police, or, if there be no such officer, then to
the District Commissioner, for permission to do so; and , if such police officer or District Commissioner is
satisfied that the meeting or procession is not likely to cause a breach of peace, he may issue a permit
authorising the meeting or procession, and may in such permit prescribe any special conditions, limitations,
or restrictions to be observed with respect thereto."
Such was the state of the law on public meetings and processions until 1961 when the Public Order Act,
1961 (Act 58) was passed and received the presidential assent on 29 May 1961. Section 6 thereof was in
identical terms with section 2 of the regulations of 1926 set out above. There were, however, three
important differences between the two sections. The long title of Act 58 was:
"AN ACT to replace, with minor modifications, enactments relating [p.489] to the control of the procession or
carrying of arms, the holding of public meetings and processions and the imposition of curfews."
First, whereas the regulations mentioned "public way", Act 58 mentioned "public place." The interpretation
section of Act 58 did not provide any definition of a "public place." Cap 9 however refers to the definition of
"public place" and "place way" as bearing the same meaning as are contained in the Criminal Code. Under
the Code, the expression "public place" is all embracing and includes a "place way." But a "public way" is
defined as including: "any highway, market place, lorry park, square, street, bridge, or other way which is
lawfully used by the public."
Yet again, the application of the regulations was limited to the towns mentioned in the Schedule as
amended by the Public Meetings and Processions (No 2) Regulations, 1954 (LN 415) made under Cap 37.
I do not think that it was for nothing that the expression "public way" was used in the regulations. The
regulations were only applicable to the towns named in the Schedule. As I understand it, the regulations
were made to control traffic, the assembling and procession of rival parades at the same place and time
and to give the authorities advance notice to afford them proper opportunity for effective policing.
Secondly, Act 58 effectively revoked LN 415. Consequently, Act 58 applied to the whole country.
Thirdly, Act 58 came into force after the promulgation of the Constitution, 1960. The relevant provision in the
Constitution, 1960 which appeared to assure the citizen of "the right to move and assemble without
hindrance" was contained in article 13(1). If indeed there was such a "right", then section 6 of Act 58 was
clearly inconsistent with the Constitution, 1960 and was therefore null, void and unenforceable.
But in the case of Re Akoto [1961] GLR (Pt II) 523, SC the Supreme Court held otherwise. Re Akoto
(supra) is often considered as a case on the validity of the Preventive Detention Act, 1958 (No 17 of 1958).
What many fail to appreciate is that article 13(1) of the Constitution, 1960 contained many provisions which
in later Constitutions have been expended into substantive articles.
In the Re Akoto case (supra), learned counsel for the appellants submitted, inter alia at 533:
"3. That the Preventive Detention Act, 1958, which was not passed upon a declaration of emergency or as
a restriction necessary for preserving public order, morality or health, but which nevertheless placed a penal
enactment in the hands of the President [p.490] to discriminate against Ghanaians, namely to arrest and
detain any Ghanaian and to imprison him for at least five years and thus deprive him of his freedom of
speech, or of the right to move and assemble without hindrance, or of the right of access to the courts of
law, constitutes a direct violation of the Constitution of the Republic of Ghana and is wholly invalid and
void."
The clear answer given by their lordships is stated at 533-534 and it reads:
"All the grounds relied upon appear to be based upon Article 13 of the Constitution. It is contended that the
Preventive Detention Act is invalid because it is repugnant to the Constitution of the Republic of Ghana,
1960, as Article 13(1) requires the President upon assumption of office to declare his adherence to certain
fundamental principles which are:—
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'That the powers of Government spring from the will of the people and should be exercised in accordance
therewith.
That freedom and justice should be honoured and maintained.
That the union of Africa should be striven for by every lawful means and when attained, should be faithfully
preserved.
That the Independence of Ghana should not be surrendered or diminished on any grounds other than the
furtherance of African unity.
That no person should suffer discrimination on grounds of sex, race, tribe, religion or political belief.
That Chieftaincy in Ghana should be guaranteed and preserved.
That every citizen of Ghana should receive his fair share of the produce yielded by the development of the
country.
That subject to such restrictions as may be necessary for preserving public order, morality or health, no
person should be deprived of freedom of religion, of speech, of the right to move and assemble without
hindrance or of the right of access to courts of law."
This contention, however, is based on a misconception of the intent, purpose and effect of Article 13(1) the
provisions of which are, in our view, similar to the Coronation Oath taken by the Queen of England during
the Coronation Service. In the one case the President is required to make a solemn declaration, in the other
the Queen is required to take a solemn oath. Neither the oath nor the [p.491] declaration can be said to
have statutory effect of an enactment of Parliament. The suggestion that the declaration made by the
President on assumption of office constitute a 'Bill of Rights' in the sense in which the expression is
understood under the Constitution of the United States of America is therefore untenable."
I have not been able to resist setting down the whole of article 13(1) of the Constitution, 1960 as stated by
their lordships in the Akoto case (supra), the better to demonstrate the extent to which that judgment
undermined the very fabric of that Constitution and literally pushed aside certain principles and fundamental
human and civil rights which have become the bulwark of the Constitution, 1992. Act 58 thus lost none of its
operational efficacy and the consent of the minister or "permit" from the police remained a necessary
prequisite for the holding or formation of "any meeting or procession in a public place." The Public Order
(Amendment) Act, 1963 (Act 165) restated section 16 of Act 58 and extended the permit requirement to the
celebration of traditional customs and the display of asafo company flags.
NRCD 68, parts of which form the basis of the plaintiff's complaint in the present case, is in essence a
consolidation of the previous public order legislations and the public meetings and processions regulations.
Sections 7 and 8 NRCD 68 read:
"7.(1) The Commissioner may by executive instrument prohibit for a specified time (not being more than
one week) in a specified place or area the holding of a public meeting or procession and any meeting or
procession held in contravention of any such instrument shall be unlawful.
(2) It shall not be lawful to hold a public meeting or public procession within five hundred yards of—
(a) any meeting place of the National Redemption Council, the Executive Council or any Committee thereof,
(b) any official residence of a member of the National Redemption Council or the executive Council,
(c) any office or official residence of a Regional Commissioner, or
(d) any port or airport,
except with the written consent of the Commissioner or any person authorised by him.
8.(1) Any person who intends—
[p.492]
(a) to hold or form any meeting or procession; or
(b) to celebrate any traditional custom,
in any public place shall first apply to a superior police officer for permission to do so.

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(2) The superior police officer shall consider the application fairly and impartially, and shall issue a permit
authorising the meeting, procession or celebration unless he is satisfied upon reasonable grounds that it is
likely to cause a breach of the peace or to be prejudicial to national security.
(3) The superior police officer may prescribe in the permit such conditions and restrictions as are
reasonably required—
(a) in the interests of defence, public order, public safety, public morality, public health or the running of
essential services; or
(b) to protect the rights and freedoms of other persons.
(4) Where an officer refuses to grant a permit under this section he shall inform the applicant in writing of
the reasons for his refusal."
It is evident that the public order laws in one form or the other have existed during the period of all four
Republic Constitutions which we have had in this country. Yet, it seems it is only now that a challenge has
been raised as to their constitutionality. The answers are clear. As I have already stated, In re Akoto (supra)
denuded article 13(1) of the Constitution, 1960 of any constitutional force. Next, the relevant articles in the
Constitution, 1960 of any constitutional force. Next, the relevant articles in the Constitutions, 1969 and 1979
did not confer the right to process. The right of assembly and association was "for the protection of his [the
citizen's] interest." Article 23(1) of the Constitution, 1969 and article 29(1) of the Constitution, 1979 are in
exactly similar language and read:
"29.(1) No person shall be hindered in the enjoyment of his freedom of assembly and association, that is to
say, his right to assembly freely and associate with other persons and in particular to form or belong to trade
unions or other associations, national and international, for the protection of his interests."
It is clear from the above article that the Constitutions, 1969 and 1979 only granted limited freedoms.
Further, there was no constitutional right to form or hold a procession or demonstration in a public place. As
to the right to hold or form a procession, I do not think article 24(1) of the Constitution, 1969 or article 30(1)
of the Constitution, 1979 on the [p.493] freedom of movement is the same as the freedom to hold and form
processions. Indeed, I am fortified in my view by the manner in which these freedoms are treated in the
Constitution, 1992. The freedom of association as envisaged in the former Constitutions is clearly stated in
article 21(1)(e) of the Constitution, 1992 while the corresponding freedom of movement is stated in article
21(1)(g) of the Constitution, 1992. The matter in issue between the parties before us concerns article 21(1)
(d) of he Constitution, 1992 which has been set out above and whether the allegedly offending sections of
NRCD 68 are inconsistent with it and therefore null, void and unenforceable.
In argument before us the Deputy Attorney-General, Mr Martin Amidu, referred to the case of Tuffour v
Attorney-General [1980] GLR 637, CA sitting as SC and the dictum of Sowah JSC (as he then was) at 661-
662 and submitted that this court must be guided by the intentions of the framers of the Constitution, 1992. I
agree with him.
Before the framers of the Constitution, 1992 embarked upon the exercise of writing that Constitution, the
desires and views of the citizens on their constitutional expectations had been collated by the National
Commission on Democracy. The commission's report formed the basis of the recommendations of the
committee of experts. The experts adopted the Directive Principles of State Policy as first enunciated in the
Constitution, 1979. The experts acknowledged that they had used that chapter in the Constitution, 1979 "as
a basis for its deliberation on this subject."
In the Report of the Committee of Experts, p 49, para 94 it is stated:
"94. The NCD report speaks of the need to include in the new Constitution 'core principles around which
national political, social and economic life will revolve.' This is precisely what the Directive Principles of
State Policy seeks to do. Against the background of the achievements and failings of our post-
independence experience, and our aspirations for the future as a people, the Principles attempt to set the
stage for the enunciation of political, civil, economic and social rights of our people. They may thus be
regarded as spelling out in broad strokes the spirit or conscience of the Constitution."
(The emphasis is mine.) The experts recognised that the directive principle were not justiciable.
Nevertheless, they gave convincing reasons for including them in the Constitution, 1992 and concluded at p
49, para 95 that their usefulness lies in the fact that "they provide goals for legislative programmes and a
guide for judicial interpretation." For [p.494] the first time there was a recommendation for the inclusion of
political objectives in the Constitution, 1992 and at p 50, para 100 of its report, the committee of experts

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suggested that: "The State should cultivate among all Ghanaians respect for fundamental human rights and
for the dignity of the human person."
The framers of the Constitution, 1992 having adopted the directive principles stated in article 34(1) of the
Constitution, 1992 the scope for their implementation thus:
"34. (1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament,
the President, the Judiciary, the Council of State, the Cabinet, political parties and other bodies and person
The political objectives were stated in article 35 of the Constitution, 1992. In the main, article 35 of the
Constitution, 1992 sufficiently reflects the recommendations of the committee of experts. This court—and
indeed all courts—is therefore entitled to take into consideration political matters in "applying or interpreting
this Constitution." I do not, however, think it appropriate to dilate on political matters in the consideration of
this opinion. Suffice it to say that this court cannot ignore the fact that at the close of this second millennium
of the modern era the attainment and enjoyment of fundamental human rights have become prime
instruments of international relations. In rendering this opinion therefore, we must take into serious
consideration the struggles, exploits and demands of the oppressed and struggling peoples in Africa,
America and elsewhere led by such men as Nelson Mandela and Dr Martin Luther King, Jnr in their fight for
fundamental human and civil rights. Judging by the frequency with which the African National Congress and
other political parties hold rallies and demonstrations in South Africa, the police would be very hard put to it,
if they were to issue a permit for any such rally or demonstration to be held. I do not believe a permit is
required in that country to enable any person or group of persons to assemble, process or demonstrate. We
cannot wish for these others, anything more than we wish for ourselves. Indeed, the very constitutional
provisions—article 21(1)(d) of the Constitution, 1992—which has provoked this litigation, is firmly rooted in
chapter 5 of our Constitution, 1992 which deals with fundamental human rights and freedoms. Within our
municipality I do not think that I can contemplate [p.495] a better statement of our national attitude on
fundamental human rights than the editorial comment in the state-owned national weekly, The Mirror of
Saturday, 10 July 1993, parts of which read:
"The problem of human rights violations has become a disturbing source of concern to all peace-loving
people of the world.
For a long time now, governments of various countries have been accused of violating the rights of their
peoples by way of trampling upon their fundamental human rights with impunity.
What is more, these governments do not take cognisance of the fact that every human being was born into
the world to enjoy maximum freedom - freedom to associate, of movement, and indeed freedom to express
one's views freely without looking over one's shoulders to see whether there is the big stick in waiting.
Looking seriously at the human rights record of some governments, it is sad to conclude that the freedoms
of their peoples are toyed with, if that is the only means to keep them in perpetual power.
A lot has been said about the violation of human rights but mere talks on human rights violation and denial
of fundamental freedoms will be totally meaningless unless concrete measure are put in place to enforce
the laws and prevent occurrences.
The absence of civil and political rights certainly creates a sordid situation which enables authoritarian and
autocratic regimes to blossom and thus take the opposite direction as far as human rights are concerned.
It is in this regard that [THE MIRROR] wishes to urge all governments to realise that the people they govern
should be made to enjoy all the God-given freedoms they deserve.
The Constitution of the Fourth Republic provides for the strict adherence of human rights and it is
anticipated that every effort must be made to uphold the dignity of man in the interest of peace and
stability."
The "spirit or conscience" of the Constitution, 1992 as epitomised by the above cited comment must
therefore be our guide in considering this opinion.
Next, it was submitted by the Deputy Attorney-General that the Constitution, 1992 has reserved to the
sovereign authority the right to provide for order. He referred to article 21(4)(c) of the Constitution, 1992 as
being the constitutional force behind the submission. Article [p.496] 21(4)(c) of the Constitution, 1992 has
been stated supra in extenso and therefore there is no need to repeat it. The submission, however, cannot

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be right. A brief comparison between article 21(4)(a) and 21(4)(c) of the Constitution, 1992 shows that the
expression "public order" does not occur in the latter. By itself the expression "public safety" is used in
contradistinction to the expression "public order." True, in accordance with the canons of interpretation
sometimes "or" can be interpreted to mean "and." In Green v Premier Glynrhonwy state Co Ltd [1928] 1 KB
561 at 568, CA is stated per Scrutton LJ:
"You do sometimes read 'or' as 'and' in a statute . . . But you do not do it unless you are obliged, because
'or' does not generally mean 'and' and 'and' does not generally mean 'or."'
In my respectful opinion, I am not obliged to read in the context of article 21 of the Constitution, 1992 the
expression "or" in subsection (4)(a) as "and." First, in article 21 (4)(a) the imposition of the restrictions as
they apply to article 21(d) of the Constitution, 1992 is by the court, while in article 21(4)(c) whoever is
imposing the restrictions is required to exercise his discretion—that is to say, the "restrictions are
reasonably required." Secondly, article 21(4)(a) provides for the imposition of prior restraint by the court on
the exercise of the fundamental freedom while article 21(4)(c) is akin to the emergency powers which, short
of a presidential declaration of a state of emergency, may be exercised under the authority of any law made
to cover the situations and the persons mentioned in that subsection—see article 31(9) of the Constitution,
1992. Clearly, article 21(4)(c) cannot be invoked in aid of a valid exercise of authority under NRCD 68.
Again it was submitted on behalf of the defendant that sections 7, 8, 12(c) and 13 of NRCD 68 constitute
reasonable restrictions as are required by article 21 of the Constitution, 1992 and that the said sections are
in accord with the spirit of the Constitution, 1992.
It will be useful to deal first with the provisions of section 12(a) of NRCD 68 and then with the provisions of
section 13 thereof as it is clear that if the provisions of sections 7 and 8 of NRCD 68 are unconstitutional,
then no meeting or procession can be held or formed in contravention of section 12(a) of NRCD 68 which
confers on the police officer or the authorised public officer unfettered powers, and without ascribing any
reasons therefor, to "stop and cause to be dispersed any meetings or processions in any public place."
Such absolute power conferred upon a police or administrative officer or a Minister of State [p.497] to
abridge the fundamental human rights of the citizen is unconstitutional.
When citizens meet or process in a place in pursuance of their constitutional right to hold meetings and
form processions they are only subject to the criminal law which for the present is contained in our Criminal
Code, 1960 (Act 29). In Republic v Kambey [1991] 1 GLR 235, SC the accused persons were convicted of
murder and sentenced to death. They appealed against their convictions to the Court of Appeal which
allowed their appeal. The State then appealed against the judgment of the Court of Appeal to this court. In
this court, one of the issues raised at 243 was:
". . .whether by their conduct the Duusi chief and his subjects had assembled with intent to commit an
offence, and if not, whether being assembled to collect dawadawa fruits which may be taken as a common
purpose they so conducted themselves as to cause persons in the neighbourhood reasonably to fear that
the persons so assembled would commit a breach of the peace."
My learned and respected brother Aikins JSC writing for the court in considering the issue of the quality of
such an assembly referred to sections 202, 202A(1) and 201(1) of Act 29 and said at 245:
"Such an assembly to be unlawful must be for purpose forbidden by law or with intent to carry out their
common purpose in such a manner as to endanger public peace. Even if having assembled there for a
lawful purpose, and with no intention of carrying it out unlawfully, they had knowledge that their assembly
would be opposed, and had good reason to suppose that a breach of the peace would be committed by the
first prosecution witness and others who opposed it, they would not be guilty of an unlawful assembly."
Aikins JSC cited the English case of Beatty v Gillbanks (1882) 9 QBD 308, DC in support of the above
statement and for emphasis on the right of citizens to assemble in public for a lawful purpose.
This leads me to a consideration of section 13(a) of NRCD 68. Certainly if a meeting, procession or
demonstration is being held lawfully and nothing done by persons attending such a meeting or forming the
procession or demonstration contravenes the criminal law, such persons shall not be guilty under section
13(a) of NRCD 68. Beatty v Gillbanks (supra) is illustrative of the scope of the freedom articulated by article
21(d) of the Constitution, 1992. At 314 of the report of that [p.498] case, Field J rightly said:
"What has happened here is that an unlawful organization has assumed to itself the right to prevent the
appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that
a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an
unlawful act. There is no authority for such a proposition, and the question of the justices whether the facts
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stated in the case constituted the offence charged in the information must therefore be answered in the
negative."
By its writ of summons the plaintiff sought declarations concerning the constitutionality of sections 12(c) and
13 of NRCD 68. The orders which this court made on 22 July 1993, however affect only sections 12(a) and
13(a) of NRCD 68. In my respectful opinion, we could not grant a declaration in favour of the plaintiff
affecting section 12(c) of NRCD 68. It would have been irresponsible for court to order in the light of section
12(c) of NRCD 68 which deals with the powers of the police and other authorised public officers to stop and
disperse unlawful assemblies, that the police should remain helpless on-lookers in a situation in which a
"breach of the peace has taken or is taking place or is considered by the officer as likely to take place." It is,
however, obvious that the subsection which the plaintiff sought to attack was subsection 12(a) of NRCD 68
which is the corresponding power vested in the police or to the authorised public authority with respect to
breaches of sections 7 and 8 of NRCD 68. It will therefore be amended to read section 12(a) in place of
section 12(c) of NRCD 68. The relief affecting the whole of section 13 of NRCD 68 was also restricted to
section 13(a) of NRCD 68 as section 13(b) of NRCD 68 had no relevance to any activity as was envisaged
by sections 7 and 8 of NRCD 68. In any case, the plaintiff made no complaint concerning the provisions
contained in sections 10 and 11 of NRCD 68.
On little difficulty however arises. Section 8(1)(b) of NRCD 68 refers to the celebration of a "traditional
custom" while section 10(2)(a) of NRCD 68 speaks of the celebration of "any custom." It seems to me that
"traditional customs" are such notorious affairs that we can take judicial notice of them. These come under
section 8 of NRCD 68 and will thus be affected by the unconstitutionality of that section. On the other hand
such customs as may be prohibited under section 10(2)(a) of NRCD 68 are those customs which from the
intendments of that section [p.499] are anti-social, degenerative of morals or involve lewd and profane
singing and dancing in connection with fetish or other worship or activity.
Section 7 of NRCD 68 has been stated supra and need not be repeated here. The essential feature of that
section is that the commissioner (now Minister for the Interior) may by executive instrument prohibit for not
more than one week the holding of a public meeting or procession in a specified place. Indeed, in their
respective statements of case none of the parties suggested or submitted that an executive instrument had
been passed by the minister in respect of any of the incidents complained of. However, the defendant made
two averments which brought section 7 of NRCD 68 into issue. First, the defendant averred that sections 7,
8, 12(a) and 13 of NRCD 68 were "reasonable and lawful restrictions on the freedom stipulated in article
21(d) of the Constitution, 1992 by virtue of article 21(4) of the Constitution, 1992." Next, the defendant
traversed generally "every allegation of fact and law contained in the plaintiff's statement of case." The
issue joined by the parties consequently required this court to determine, inter alia, whether section 7 was
inconsistent with and a contravention of the Constitution, 1992. Since the plaintiff was seeking a declaration
to that effect against which the defendant was contesting, and there was no challenge as to whether the
plaintiff had locus standi in the matter, this court had jurisdiction to entertain that issue.
The generality of section 7 of NRCD 68 is to create a prior restraint on the freedom of the citizen to hold a
meeting or form a procession and it terms of article 21(d) of the Constitution, 1992 also to demonstrate in a
public place. A prior restraint is an injunction prohibiting the freedom of assembly, procession or
demonstration, whether such injunction or prohibition is imposed by statute or by an order of the court. It
may be said that in this case, the prohibition or injunction may not be for more than one week. But then
neither the section nor the whole of NRCD 68 assures that the prohibiting executive instrument cannot be
repeated. Consequently, when such a power is exercised by the minister it becomes a clog on the citizen's
freedom to assemble, process and demonstrate. In Kunz v New York, 340 US 290 (1951) the US Supreme
Court said:
"It is noteworthy that there is no mention in the ordinance of reasons for which such a permit application can
be refused. This interpretation allows the police commissioner, an administrative official, to exercise
discretion in denying subsequent permit applications on the basis of his interpretation, at that time, of what
[p.500] is deemed to be conduct condemned by the ordinance. We have here, then, an ordinance which
gives an administrative official discretionary power to control in advance the right of citizens to speak on
religious matters on the streets of New York. As such, the ordinance is clearly invalid as a prior restraint on
the exercise of First Amendment rights."
Section 7(1) of NRCD 68 constitutes a prior restraint on the freedom of the citizen with respect to his rights
under article 21(d) of the Constitution, 1992 and is unconstitutional and void.
However, the principle of prior restraint is not unknown to our Constitution, 1992. Article 21(4)(a) of the
Constitution, 1992 and to a certain extent and in special circumstances article 21(4)(e) of the Constitution,

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1992 clearly enunciate the principle. It will be observed that under article 21(4)(a) of the Constitution, 1992
the power to impose restrictions is vested in the courts while in article 21(4)(c) of the Constitution, 1992 the
power as required to control those situations mentioned therein must be granted by a law which imposes
reasonable restrictions on the fundamental freedoms but does not deny the citizen the fundamental
freedoms to which he is entitled. In other words, the citizen's freedoms may be restricted by law on the
grounds stated in the Constitution, 1992 but they cannot be denied. Any such denial will be unconstitutional
and void. Again with respect to restrictions imposed by a court, the audi alterem partem rule must be
adhered to. In Carroll v President & Commissioners of Princess Ann, 393 US 175 (1968) the US Supreme
Court held that an ex parte order forbidding a rally was unconstitutional where the applicants could not
demonstrate that it was impossible to notify the opposing party in order to afford it the opportunity of
contesting the application.
Section 7(2) of NRCD 68 raises an entirely different issue from section 7(1) of NRCD 68. In section 7(2) of
NRCD 68 no lawful public meeting or procession can be held in the places mentioned therein "except with
the written consent of the Commissioner or any person authorised by him." It will be noted that for the first
time in the history of our constitutional development, article 21(d) of the Constitution, 1992 provides for the
right of the citizen to demonstrate. To demonstrate means either to petition for the redress of grievances or
express support for or opposition to a cause. Once again whereas in the former Constitutions the citizen
was not to be "hindered" in the enjoyment of his fundamental freedoms, in the Constitution, 1992 there is a
"right" [p.501] conferred on the citizen in the enjoyment of his freedoms. This positive attitude towards the
enjoyment of the freedoms cannot be abridged by a law which prevents the citizen from delivering his
protest even to the seat of government. In Adderley v Florida, 385 US 39 at 54 (1966), one Adderly and
others were convicted for trespassing upon the premises of a Florida county jail. The defendants had gone
on the jail premises to protest against the arrest of their fellow students. They refused to leave on being
notified that they would be arrested for trespass. The defendants claimed that the conviction violated their
constitutional right of assembly. The US Supreme Court affirmed their convictions. I, however, incline to the
views of Mr Justice Douglas expressed in his dissent in which Chief Justice Warren and Mr Justice Brennan
concurred and I adopt them in support of my opinion in the present case. He said:
"There may be some public places which are so clearly committed to other purpose that their use for the
airing of grievances is anomalous. There may be some instances in which assemblies and petitions for
redress of grievances are not consistent with other necessary purposes of public property. A noisy meeting
may be out of keeping with the serenity of the statehouse or the quiet of the courthouse. No one, for
example, would suggest that the Senate gallery is the proper place for a vociferous protest rally. And, in
other cases, it may be necessary to adjust the right to petition for redress of grievances to the other interest
inhering in the uses to which the public property is normally put . . . But this is quite different from saying
that all public places are off limits to people with grievances . . . And it is farther yet from saying that the
'custodian' of the public property, in his discretion, can decide when public places shall be used for the
communication of ideas, especially the constitutional right to assemble and petition for redress of
grievances . . . for to place such discretion in any public official, be he the 'custodian' of the public property
or the local police commissioner . . . is to place those who assert their First Amendment rights at his mercy.
It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place
to air their claims and petition their government."
The section 72 of NRCD 68 also provides that any such meeting or procession cannot be lawfully held
"except with the consent of the [Minister] or any person authorised by him." This provision gives the minister
an unfettered right to refuse his consent. To invest the minister [p.502] with such unfettered discretion is to
place those who assert their constitutional rights of assembly, procession and demonstration at his mercy.
"It gives him the awesome power" to decide who shall be permitted to approach those places mentioned in
NRCD 68. Section 7(2) of NRCD 68 is also clearly unconstitutional.
In his statement of case, the defendant admits having withdrawn two permits and breading up a third
procession—though he did not apply any violence. In his view, his actions were "lawful and reasonable
exercise of authority vested in the police by the Public Order Decree, 1972 (NRCD 68)."
Before us the Deputy Attorney-General submitted that as long as the police were not vested with
unfettered authority, their actions could be reviewed by the courts. He could not say under what law such
actions as were complained of against the defendant could be reviewed by the courts.
Section 8 of NRCD 68 provided for the obtaining of a "permit." It was not denied by the defendants that in
all the three instances the plaintiff had applied for permits and had been so granted. What section of NRCD
68 entitled them to withdraw the permits they did not say. By section 8(4) of NRCD 68 it was only where a
police officer refuses to grant a permit under section 8 of NRCD 68 should he "inform the applicant in

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writing of the reasons for his refusal." (The emphasis is mine.) It is clear that even if the provisions of
section 8 of NRCD 68 were lawful, which they are not, once the permit was granted there was no lawful
authority for the police to withdraw it. The fact that other persons might disturb that meeting or procession
and thereby cause a breach of the peace would not be a sufficient reason or ground for withdrawing the
permit.
The complaint before us was that section 8 of NRCD 68 was inconsistent with the provisions of article 21(d)
of the Constitution, 1992 and therefore null, void and unenforceable. The single issue raised by this section
is the validity of permits as abridgments of the constitutional rights enshrined in article 21(d) of the
Constitution, 1992. The matter is not without authority. There are relevant cases decided in the United
States, Canada India, Pakistan, the West Indies and in the Privy Council in the United Kingdom. The United
States cases predominate because the issue of the validity of local and state permits for meetings,
assemblies, processoins and demonstrations of the civil rights movements and activists have been
considered in a variety of landmark judgments.
[p.503]
The history of the civil rights movement in the United States led by Martin Kuther King, Jnr and other
American southern black people and organisations in the 1950s and 1960s are too well documented to
require repetition in this opinion. It must be admitted that this movement by the southern blacks fuelled the
wrath of the southern white communities who employed two techniques against the black protesters,
namely (a) prosecutions for criminal trespass; and (b) breaches of the peace. The basis of these two
techniques were the laws relating to licensing and permits. In the Adderley case (supra) at Mr Justice
Douglas concluded his dissent thus:
"Today, a trespass law is used to penalise people for exercising a constitutional right. Tomorrow, a
disorderly conduct statute, a breach of the peace statute, a vagrancy statute will be put to the same end. It
is said that the sheriff did not make the arrests because of the view which petitioners espoused. That
excuse is usually given, as we know from the many cases involving arrests of minority groups for breaches
of the peace, unlawful assemblies, and parading without a permit."
We are here concerned with permits. Section 8(2) of NRCD 68 requires that the superior police officer shall
consider the application for a permit "fairly and impartially." The duty to act fairly and impartially
presupposes a duty to make a determination between competing interests. In the instant subsection it
involves the choice between two positions, one of which is illusory,—the citizen's rights of assembly,
procession and demonstration as against the discretion of the senior police officer in determining whether to
refuse a permit on the grounds that there is the likelihood of a breach of the peace or that the meeting or
procession will be prejudicial to national security. The subsection provides no guide as to the form and
content of an application for a permit nor the yardstick or the standard which the senior police officer shall
apply in determining whether or not he shall grant a permit. Although the senior police officer must inform
the applicant of the reasons for his refusal to grant the permit, such refusal cannot be challenged in any
court. Thus a senior police officer may out of prejudice, bias or even political preference refuse a permit on
flippant and untenable grounds. I have already referred to Mr Justice Douglas' dissenting opinion in the
Adderley case (supra) and the necessity to prevent any abridgment of the fundamental human rights of the
citizen. With our political history then as a guide, the danger that such awesome power as is contained in
section 8 of [p.504] NRCD 68 will be used to suppress the fundamental freedoms and civil rights of our
people becomes real and must be struck down as unconstitutional.
In Saia v New York, 334 US 558 at 560-561 (1948) Mr Justice Douglas delivering the majority opinion of the
US Supreme Court said:
"In Hague v C.I.O. [307 US 496 (1939)], we struck down a city ordinance which required a licence from a
local official for a public assembly on the streets or highways or in the public parks or public buildings. The
official was empowered to refuse the permit if in his opinion the refusal would prevent 'riots, disturbances or
disorderly assemblage.' We held that the ordinance was void on its face because it could be made 'the
instrument of arbitrary suppression of free expression of views on national affairs.' The present ordinance
has the same defects. The right to be heard is placed in the uncontrolled discretion of the Chief of Police.
He stands athwart the channels of communication as an obstruction which can be removed only after
criminal trial and conviction and lengthy appeal."
In Saia v New York (supra) the ordinance complained of required any one seeking to use a loudspeaker
system in a public place to obtain a permit. But absolute discretion to grant or refuse such permit was
vested in the Chief of Police. The ordinance was held to be unconstitutional. In Hague v CIO, 307 US 496 t
515-516 (1939) Mr Justice Roberts said:
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"Wherever title of streets and parks may rest, they have immemorially been held in trust for the use of the
public and, time out of mind, have been used for purpose of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and public places has, from ancient times,
been a part of the privileges, immunities, rights and liberties of citizens. The privilege . . . to use the streets
and the parks for communication of views on national questions may be regulated in the interest of all; it is
not absolute, but relative and must be exercised in subordination to the general comfort and convenience
and in consonance with peace and order; but it must not, in the guise of regulation, be abridged or denied."
Under our present Constitution, 1992 therefore, while in appropriate cases either the courts or a relevant
law may impose a restriction on any [p.505] of the freedoms contained in article 21 of the Constitution, 1992
the requirement that a permit be obtained before the exercise thereof will be unconstitutional and void.
The Deputy Attorney-General referred to the First Amendment to the United States Constitution and
submitted that that amendment was a restriction on the United States Congress to make laws abridging
certain freedoms. He may well be right. The civil rights cases however show that the major victories won in
aid of the improvement in the social and political standing of the African American have succeeded on the
combined appliation of the First and Fourteenth Amendments to that Constitution. It is said that the first ten
amendments to the United States Constitution constitute a Bill of Rights. In 1961 in the Akoto case (supra)
our Supreme Court missed the opportunity to designate article 13 of the Constitution, 1960 as a Bill of
Rights. The court said at 534 of the report:
"The suggestion that the declarations made by the President on assumption of office constitute a 'Bill of
Rights' in the sense in which the expression is understood under the Constitution of the United States of
America is therefore untenable."
I think the court proceeded on the principle of ubi jus, remedium. Since no remedy was provided for a
breach of article 13 of the Constitution, 1960 the matter was not justiciable. Of course our countrymen and
women learnt a bitter lesson from that judgment. Every Constitution since then has provided for punishment
for the infringement or breach of the Presidential Oath. In the present Constitution, 1992 the framers have
done the reverse of the United States First Amendment provisions. They have set out in clear and
unmistakable terms the fundamental human and civil rights which our people must enjoy. In chapter 5 of the
Constitution, 1992 appropriate procedures for redress and enforcement of these rights are provided for in
article 33 of the Constitution, 1992. It is interesting to note that article 33(5) of the Constitution, 1992
extends the scope of human rights enjoyment when it says that the rights mentioned in chapter 5 ". . .. shall
not be regarded as excluding others not specifically mentioned which are considered to be inherent in a
democracy and intended to secure the freedom and dignity of man." I have no doubt in my mind that the
framers of the Constitution, 1992 intended that the citizens of this country should enjoy the fullest measure
of responsible human and civil rights. Therefore any law which seeks to abridge these freedoms and rights
must be struck down as unconstitutional. The requirement of a permit or licence is one [p.506] such
abridgement of the constitutional right.
Finally, the Deputy Attorney-General submitted that this court should consider the necessity for the police to
have the power to perform their duties effectively. He cited the timely police and security forces intervention
in the recent spate of ethnic conflicts. In his view, the police could only perform their duties effectively if they
could rely on the provisions of NRCD 68. Further, that with respect to the exercise of the undoubted
constitutional rights of the citizen to meet, process and demonstrate the retention of sections 7 and 8 of
NRCD 68 with their consent and permit requirements was necessary to ensure that the police are able to
"prevent actions which are prejudicial to the rights and freedoms of others or the public peace." The
meaning of the word "permit" therefore becomes crucial in the consideration of this submission. The police
have undoubted peace-keeping powers. But can they prevent the citizen by the use of their permit from
exercising his fundamental human and civil rights? In Berton v Alliance Economic Investment Co Ltd and
civil rights? In Berton v Alliance Economic Investment Co Ltd [1922] 1 KB 742 at 759, CA Lord Atkin
defined a permit in this manner:
"To my mind the word 'permit' means one of two things, either to give leave for an act which without that
leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is
within a man's power to prevent it."
I subscribe wholly to the above dictum. The object of the consent or permit requirement within the
intendments of sections 7 and 8 of NRCD 68 is to give leave for the performance of an act which without
such consent or permit is forbidden by law. The necessary implication therefore is that under NRCD 68
meetings, processions and demonstrations are prohibited by law unless sanctioned by the police or other
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such authority. This proposition—and I cannot think of a better statement of the legal position—clearly
violates the enshrined provisions of article 21(d) of the Constitution, 1992 as it constitutes serious
abridgment of the human rights of the citizen. Where any law or action is in conflict with the letter and spirit
of the Constitution, 1992 which is the fundamental law of the land, then to the extent of such conflict or
inconsistency that law is unconstitutional, void and unforceable.
In Francis v Chief of Police [1973] 2 All ER 251, PC—a case from which I have derived much assistance in
preparing this opinion—their lordship of the board of the Privy Council, had occasion to examine the issue
of permits and their constitutionality with respect to the [p.507] Constitution of the West India state of St
Christopher, Nevis and Anguilla. The matter concerned in that case was the constitutionality of section 5(1)
of the Public Meetings and Processions Act, 1969 of that country which give unfettered discretion to "the
Chief of Police to grant or refuse permission for the use of noisy instrument at a public meeting." Mr Francis
was charged with using a noisy instrument—a loudspeaker—at a public meeting without first having
obtained a permit from the Chief of Police. The issue raised for determination by their lordships in the Privy
Council was whether section 5(1) of the Act constituted an unreasonable restriction of he freedoms
contained in section 10 of that country's Constitution?
In the Francis case (supra) at 256 the board advised that section 5(1) of the Act was not unconstitutional as
"the use of loudspeakers and other noisy instruments is an adjunct or accessory" to the holding of
meetings, processions and demonstrations. Interest in the Francis case (supra) arise because the St
Christopher Public Meetings and Processions Ordinance is in content almost similar to our NRCD 68. The
essential differences are (1) the St Christopher Ordinance deals separately with each fundamental freedom
ad provides a necessary regulation for the enjoyment of each right by the citizen; and (2) there is a right of
appeal to the Governor in the event of a refusal to grant a permit. Thus under section 3 of the St
Christopher Ordinance which requires any person wishing to hold a public meeting to inform the police, the
board said at 255 of he report:
"It should be noted that under section 3 a person who wishes to hold a public meeting, though he does
have to give notice of it, does not have to ask permission, and the holding of the meeting cannot be
prohibited or restricted except in special circumstances connected with the preservation of pubic order."
(The emphasis is mine.) On the other hand under our NRCD 68, as I have said earlier, there are no such
freedoms save those that are permitted by the police or other authority. The Francis case (supra) therefore
distinguished permits which affect the fundamental human and civil rights from those that are adjunct or
accessory to the enjoyment of those freedoms. The former are unconstitutional. In my respectful opinion, it
is not necessary for effective policing that the police or any other authority shall be invested with the power
to consent or issue permits for the enjoyment or exercise of he fundamental human and civil rights of the
citizen as enshrined in the Constitution, 1992.
[p.508]
In rendering this opinion I have considered and applied the views— both the majority and the dissenting—
contained in the judgments of the United States Supreme Court which show the principles and policy
considerations involved. In my respectful opinion, they constitute useful guides to the interpretation of our
Constitution, 1992—particularly the chapter on fundamental human and civil rights. In the Francis case
(supra) at 259 Lord Pearson writing for the board noted that:
"The American judges look for the inherent limitations which there must be in the fundamental freedoms of
the individual if the freedom of others and the interests of the community are not to be infringed."
Lord Pearson suggests two ways which will be useful in our context in construing constitutional provision
affecting fundamental human and civil rights. One way will be to read into our article 21(1)(d) of the
Constitution, 1992 "the necessary limitations as are inherent" in the fundamental freedoms of assembly
including the freedom to take part in processions and demonstrations. The other way will be to examine
article 21(1)(d) of the Constitution, 1992 to see whether "according to the literal meaning of the words there
is a prima facie hindering of or interference with the freedom of assembly, procession or demonstration"
and, if there is, to examine article 21(4) of the Constitution "to see whether such hindering or interference is
justifiable."
I fully subscribe to the two ways stated above for construing the constitutionality of article 21(d) of the
Constitution, 1992. The first way does not impose any difficulty in its construction. The necessary limitations
which are inherent in the exercise or enjoyment of any "right" of assembly, procession or demonstration are
that the citizen must observe the law—in particular that part of the Criminal Code, 1960 (Act 29) which
deals with the preservation of the public peace. The other way however presents some difficulty. The literal

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meaning of article 21(4) of the Constitution, 1992 implies that in certain circumstances there can be laws to
restrict the constitutional provisions under article 21 of the Constitution, 1992. The rider to the construction
of article 21(4) of he Constitution, 1992 is, as I have stated earlier, that the law must provide for restrictions
to be imposed by a court or spell out restrictions which must be neither inconsistent with nor in
contravention of the provisions of the Constitution, 1992. Within the intendments of article 21(4) of the
Constitution, 1992, the phrase "public order" appearing therein must be given such a wide interpretation as
will protect the constitutional rights of other citizens.
[p.509]
In construing article 21(1)(d) and (4) of the Constitution, 1992 therefore, it is clear that (1) the concept of
consent or permit as prerequisites for the enjoyment of the fundamental human right to assemble, process
or demonstrate is outside their purview. Sections 7 and 8 of NRCD 68 are consequently patently
inconsistent with the letter and spirit of the provisions of article 21(d) of the Constitution, 1992 and are
unconstitutional, void and unenforceable; and (2) some restrictions as are provided for by article 21(4) of
the Constitution, 1992 may be necessary from time to time and upon proper occasion. But the right to
assemble, process or demonstrate cannot be denied. The sections of NRCD 68 which formed the basis of
the plaintiff's writ were ex facie unconstitutional, void and unenforceable. It is for these reasons that the
plaintiff's writ succeeded, and the declarations were granted and the orders made.
DECISION
Order accordingly.
DRKS
NEW PATRIOTIC PARTY v RAWLINGS and ANOTHER [1993-94] 2 GLR 193—220
3 May 1994
ABBAN, AMUA-SEKYI, AIKINS, BAMFORD-ADDO AND AMPIAH JJSC
Constitutional law—District Assembly—Appointment of district secretaries—Existing laws regulating

operations of district assemblies continued in force by section 23(1) of transitional provisions of
Constitution, 1992 until otherwise provided by Parliament under any law—Section 23(1) not qualified in
anyway, nor made subject to any provision of Constitution, 1992—Section 23(1) of transitional provisions
inconsistent with, inter alia, provisions of article 243 of Constitution, 1992—Validity of section 23(1)—
PNDCL 207 existing law regulating operations of district assemblies—Power of appointment of district
secretaries under PNDCL 207 transferred to President by virtue of section 28(2) of transitional provisions of
Constitution, 1992—President appointing district secretaries pursuant to powers under section 21(1) of
PNDCL 207—Whether appointments lawful—Constitution, 1992, arts 1, 11(6), 243(1) and 299—
Constitution, 1992, Sched 1, ss 1, 23(1), 28(2), 31(1) and 36(2)—Local Government Law, 1988 (PNDCL
207), s 21(1).
Constitutional law—President—Proceedings against—Appointment of district secretaries by President

under section 21(1) of PNDCL 207 after coming into force of Constitution, 1992—Attorney-General
designated under article 88(5) of Constitution, 1992 as person to be sued in all civil proceedings against
State—Plaintiff filing suit in Supreme Court under article 2 of Constitution, 1992 against President and
Attorney-General for, inter alia, declaration that appointment of district secretaries by President unlawfully—
Validity and property of proceedings against President—Constitution, 1992, arts 2(1)(b), 57(1), (4) and (5),
88(1) and (5).
HEADNOTES
On 16 September 1993 the Supreme Court decided in New Patriotic Party v Electoral Commission [1993-
94] 1 GLR 124, SC that elections which were then due to be held by the Electoral Commission to approve
nominations, purported to have been made by the President to the offence of district chief executive under
article 243(1) of the Constitution, 1992 were unconstitutional for the reason that the district assemblies set
up under section 3(1) of the Local Government Law, 1988 (PNDCL 207) had no power to give such
approval. However, the next day, it was announced that the same nominees had been appointed district
secretaries under section 21(1) of PNDCL 207. The plaintiff, a political party registered as a body corporate,
filed a writ against the President and the Attorney-General for (a) a declaration that the appointments were
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inconsistent with and in contravention of articles 242, 243, 246 and 247 of the Constitution, 1992; (b) an
order setting aside the appointments; and (c) an injunction restraining the [p.194] President from making
such appointments in the future. In support of its writ the plaintiff contended that section 21 of PNDCL 207
ceased to have effect upon the coming into force of the Constitution, 1992. It further argued that article 243
of the Constitution, 1992 and section 21 of PNDCL 207 were in conflict and could not by virtue of article 1 of
the Constitution, 1992 stand together; and that since the Constitution, 1992 superseded PNDCL 207, article
243 of the Constitution, 1992 must prevail despite the provisions of the transitional provisions of the
Constitution, 1992. The defendants not only resisted the plaintiff's claim but, inter alia, also objected to the
President being joined as a defendant on the ground that by virtue of article 88(5) of the Constitution, 1992
the Attorney-General was the proper defendant to the suit.
Held, dismissing the action (Abban, Bamford-Addo and Ampiah JJSC dissenting in part):
(1) the true meaning and effect of section 21(1) of the transitional provisions of the Constitution, 1992 which
stood alone and was not made subject to any provision of the Constitution, 1992 was that until Parliament
enacted a law to regulate district assemblies in accordance with chapter twenty of the Constitution, 1992,
the Local Government Law, 1988 (PNDCL 207) which was part of the existing laws governing the
operations of district assemblies was to continue in operation regardless of whether its terms were in
conformity with the Constitution, 1992. Hence, until the new local government law was enacted on 24
December 1993, the whole of PNDCL 207, including section 23(1) thereof, continued to have full force by
virtue of section 21(1) of the transitional provisions of the Constitution, 1992 which provision was clearly a
recognition of the need for government at the local level to continue until Parliament deliberated and made
changes in the existing law. Furthermore, the power to appoint district secretaries which was under PNDCL
207 vested in the Provisional National Defence Council itself, devolved on the President by virtue of section
28(2) of the transitional provisions of the Constitution, 1992. Accordingly, the President lawfully exercised
the power to appoint district secretaries on 17 September 1993. Pretty v Solly (1859) 26 Beau 606; Wood v
Riley (1867) LR 3CP 26; R v Glamorganshire Justice (1889) 22 QBD 628; R v Bridge (1890) 24 QBD 609
and Institute of Patent Agents v Lockwood [1894] AC 347, HL applied.
Per Aikins JSC: The language of section 23(1) of the transitional provisions of the Constitution, 1992 is
clear and unambiguous... The subsection stands out without any qualification whatsoever. It is not made
subject to any provision of the Constitution, 1992 unlike article 11(6) of the Constitution, 1992 and sections
31(1) and 36(2) of the transitional provisions of the Constitution, 1992 where we find repeated use in the
sections of the expressions "with such modifications, adaptions, qualifications and exceptions as may be
necessary to bring it (ie the law) [p.195] into conformity with the Constitution and in so far as it is not
inconsistent with the Constitution." These expressions are general provisions as against the specific
provision of section 23(1) which appears to have been put in for transitional arrangements, and which, in
my view, did not cease to have effect on the coming into force of the Constitution, 1992.
The law with respect to general and particular or specific enactments is trite and is to the effect that where a
particular or specific enactment, and a general enactment appear in the same statute, and the general
enactment, taken in its most comprehensive sense, would override the specific enactment, the specific
enactment must be operative, and the general enactment must be taken to affect only the other parts of the
statute to which it may properly apply... This is an application of the maxim generalia specialibus non
derogant. This special provision stands as an exceptional proviso upon the general. It is only where it
appears from a consideration of the general enactment in the light of prevailing circumstances that
Parliament or in the case of a Constitution, its framers, intend only to establish a rule of universal
application, that the special provision must give any way thereto... But in the instant case, the situation is
different.
Per Bamford-Addo JSC: The plaintiff however argued that since the Constitution, 1992 has superseded
PNDCL 207 and the two enactments are in conflict, they cannot by virtue of article 1 of the Constitution,
1992 stand together and article 243 must prevail over section 21(1) of PNDCL 207 despite the provisions of
section 23(1) of the transitional provisions of the Constitution, 1992 and article 299 thereof. I am unable to
agree with the stand of the plaintiff. Article 299 of the Constitution, 1992 states that the provisions of the
transitional provisions shall have effect notwithstanding anything to the contrary in the Constitution, 1992,
so that even if there is a conflict between article 243(1) of the Constitution, 1992 and section 21(1) of
PNDCL 207, section 23(1) of the transitional provisions of the Constitutions, 1992 prevents PNDCL 207
being declared null and void or inconsistent with the Constitution, 1992 till Parliament makes new laws.
Further, if PNDCL 207 is not to be held inconsistent with the Constitution, 1992, particularly article 243(1),
then by virtue of the provisions of section 36(2) of the transitional provisions of the Constitution, 1992 there
is the authority for the continued operation of PNDCL 207 including section 21(1) thereof...Therefore
PNDCL 207 continues to remain the law regulating the operations of the existing district assemblies and
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section 21(1) thereof being part of PNDCL 207 can be invoked to appoint district secretaries. If it were not
so the existing district assemblies cannot function or operate, since it is the district secretaries who under
section 21(2) of PNDCL 207...are responsible for the supervision of the day-to-day functioning of these
assemblies.
The plaintiff's stand, it seems to me, cannot be right, as to interpret [p.196] section 23(1) as suggested by
counsel, would frustrate the intention gathered from that section, namely to keep the district assemblies
running until Parliament makes new laws regulating them.
(2) (Abban and Bamford-Addo JJSC dissenting.) Article 57(4) of the Constitution, 1992, which exempted
the President from being personally brought before any court for acts done or omitted to be done in the
performance or purported performance of his constitutional duties or his duties under any law, specifically
excepted actions brought under article 2 of the Constitution, 1992 and proceeding involving the prerogative
writs. The term "any person" appearing in article 2(1)(b) of the Constitution, 1992 clearly included the
President of the Republic so that where it was alleged that the President had by himself or his agent acted
in contravention of any of the provisions of the Constitution, an action could lie against him personally.
Likewise the President was by virtue of article 57(4) of the Constitution, 1992 personally subject to the
prerogative writs in respect of the performance of his public duties, so that in the appropriate case he could
be proceeded against personally by way of the prerogative writs for acts or omissions in the performance of
his public duties. Consequently, in the instances specifically excepted under article 57(4) an action could in
the appropriate case be brought against the President alone or jointly with the Attorney-General. Sallah v
Attorney-General, Court of Appeal (sitting as Supreme Court), 20 April 1970, unreported; digested in (1970)
CC 55 and Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC applied.
Per Amua-Sekyi JSC: Although the President is the first citizen, he is not above the law. The medieval
fiction that the "King can do no wrong", which the sophist interpreted to mean that if the action was wrong
then it was not of the King, has no place in a republican setting which prides itself on all citizens being equal
under the law and therefore obliged to act in conformity with it. We recognise that an executive President
being the most powerful person in the state is the one who has the greatest capacity for wrong-doing. We
do not need a petition of right or a notional defendant like the Attorney-General before we can exercise our
democratic right of calling an erring President to order under article 2 of the Constitution, 1992 which only
commands him to obey any order or direction this court may give, but also makes his failure to obey any
order or direction a ground for his removal from office.
Contra per Abban JSC: Thus, official acts of the President can be challenged either by means of
prerogative writs or by instituting action in the Supreme Court under article 2 of the Constitution, 1992.
However, I am of the view that in such cases it would not be right to make the President a defendant. By
virtue of article 57(1) of the Constitution, 1992 the President is not only the "Head of State" but also the
"Head of Government"; and article 58(1) of the Constitution, 1992 vests the [p.197] executive authority of
Ghana in the President. So whenever the President carries out executive duties vested in him by the
Constitution, 1992 or by any other law, he does so as a Government of Ghana.
In the circumstances, the President by appointing district secretaries under section 21(1) of the Local
Government Law, 1988 (PNDCL 207) was performing an executive function of the government. It was an
executive act of the Government of Ghana taken in the name of the President by virtue of article 58(4) of
the Constitution, 1992... It is therefore obvious that the Government of Ghana is personified in the
President. This does not mean that the President should be made a defendant whenever any executive act
of the government done in his name is being challenged in court proceedings. In the particular
circumstances of the president case the suit herein should be brought against the Attorney-General only as
the defendant for and on behalf of the Government of Ghana, in accordance with article 88(5) of the
Constitution, 1992. That is, the Attorney-General is the proper defendant and not the President.
CASES REFERRED TO
(1) New Patriotic Party v Electoral Commission [1993-94] 1 GLR 124, SC.
(2) Sallah v Attorney-General, Court of Appeal (sitting as Supreme Court), 20 April 1970, unreported;
digested in (1970) CC 55; (1970) 2 G & G, 493.
(3) Tuffuor v Attorney-General [1980] GLR 637; CA sitting as SC.
(4) Pretty v Solly (1859) 26 Beau 606.
(5) R v Glamorganshire Justices (1889) 22 QBD 628; 60 LT 536; 5TLR 403.

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(6) R v Bridge (1890) 24 QBD 609; 62 Lt 297.
(7) Wood v Riley (1867) LR 3 CP 26; 17 LT 216;
(8) Institute of Patent Agents v Lockwood [1894] AC 347; 71 LT 205; 10 TLR 527, HL
ACTION against the President of the Republic of Ghana personally and the Attorney-General for a
declaration that his appointment of district secretaries was unlawful; an order setting aside the
appointments; and an injunction restraining the President from making such appointments.
COUNSEL
Peter Ala Adjetey (with him Sam Okudzeto, Kwadwo Afram Asiedu, Philip Addison and William Addo) for
the plaintiff.
[p.198]
Dr Obed Asamoah, Attorney-General (with him Martin Amidu, Deputy Attorney-General and Mrs Adusa-
Amankwa, Chief State Attorney) for the defendants.
On 16 September 1993 this court unanimously decided in New Patriotic Party v Electoral Commission
[1993-94] 1 GLR 124, SC, ante, that elections which were then due to be held by the Electoral Commission
set up under article 43 of the Constitution, 1992 for the purpose of approving nominations purported to
have been made by President Rawlings, the first-named defendant, under article 243(1) to the office of
district chief executive, would violate the Constitution, 1992 as the district assemblies established under the
provisions of section 3(1) of the Local Government Law, 1988 (PNDCL 207) had no power to give such
approval. The next day, it was announced that the first-named defendant had appointed those same
persons as district secretaries under section 21(1) of PNDCL 207. The plaintiff says that this was unlawful
and it has filed this writ to challenge his right to do so. The Attorney-General is named as the second
defendant.
As formulated in its writ and statement of case, the complaint of the plaintiff is that the appointments are
inconsistent with, and a contravention of articles 242, 243, 246 and 247 of the Constitution, 1992. It asks for
a declaration to that effect, an order setting aside the appointments which were made and an injunction
restraining the first-named defendant from making other such appointments in the future. If the plaintiff is
right, then there is a hiatus in the law for whereas, by our decision, the first-named defendant could not
lawfully appoint district chief executives, he could not also appoint district secretaries.
Article 242 of the Constitution, 1992 deals with the composition of district assemblies, article 243, with the
office of district chief executive; article 246, with the term of office of members of district assemblies; and
article 247 gives Parliament power to make laws on the qualifications for membership and the procedures
of district assemblies. Article 247 does not seem to be relevant to the matter before us. As at the time the
appointments were made, indeed when the writ was filed, Parliament had not exercised the power
conferred on it, there were no laws made pursuant to the article which could have been contravened.
Articles 242, 243 and 246 of the Constitution, 1992 formed the basis of the opinions we delivered in the
earlier case and which resulted in the order of injunction restraining the Electoral Commission, I stated
(supra) at 136:
[p.199]
"The defendant-commission ought to have known that they were embarking on an illegal and
unconstitutional act. PNDCL 207 gave members of district assemblies no power to give approval to the
appointment of district secretaries, by whatever name called; the office of district chief executive was
created by the Constitution, 1992 not PNDCL 207, the composition of district assemblies under the
Constitution, 1992 is different from that under PNDCL 207; under the Constitution, 1992 the term of office of
an assembly member is limited to four years, whereas that of the assembly members elected under PNDCL
207 has already extended beyond four years."
Our decision was that the assemblies set up under PNDCL 207 could not lawfully perform the functions of
those set up under the Constitution, 1992.

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At the time we gave our decision, the assemblies were performing functions under PNDCL 207 without any
eyebrows being raised. So were the district secretaries appointed under the Law. Perhaps, if an attempt
had not first been made to appoint district chief executives—a position known only to the Constitution, 1992
—but instead, district secretaries had been appointed to fill vacant posts, the propriety of the action would
not have been questioned. We are not, however, concerned with the sequence of events. Our task is to
examine the action and see if it was lawful.
It will be recalled that although the Constitution, 1969 came into force on 22 August 1969, it was not until 9
July 1971 that the Local Administration Act, 1971 (Act 359) was passed to bring the law regulating local
government into conformity with the Constitution, 1969. In the interval, local government bodies continued
to function under the authority of the Local Government Act, 1961 (Act 54), as amended and the Local
Government (Interim Administration) Decree, 1966 (NLCD 26), as amended. In 1979 there was a three-
month interval between the coming into force of the Constitution, 1979 and the passing of the Local
Government (Amendment) Act, 1980 (Act 403). During this period the business of local government did not
come to a halt. It continued under the authority of Act 359. Although the point was never tested in court, it
was thought that in each case the new Constitution had anticipated that there would be an interval during
which the old local government structures would have to be retained and had permitted them to do so under
the general provision which made the existing law part of the laws [p.200] of Ghana.
In the Constitution, 1992 this provision will be found in article 11(4). However, in view of the marked
differences between the old and the new local government set-up, it would not be enough to refer to this
provision since the existing law is required by clause (6) of article 11 of Constitution, 1992 to be construed
with:
"(6) ...any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with
the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes
effected by this Constitution."
The same observation may be made of sections 31(2) and 36(2) of the transitional provisions of the
Constitution, 1992. Section 31(2) of the transitional provisions of the Constitution, 1992 states that:
"(2) ...where anything is required or authorised by this Constitution to be prescribed or provided for by or
under an Act of Parliament, it shall be deemed to be duly prescribed or provided for, if it has been
prescribed or provided for by or under an Act, Decree, or a law in force immediately before the coming into
Section 36(2) of the transitional provisions of the Constitution, 1992 provides that:
"(2) ...any enactment or rule of law in force immediately before the coming into force of this Constitution
shall, in so far as it is not inconsistent, with the provision of this Constitution, continue in force as if enacted,
issued, or made under the authority of this Constitution."
As with article 11, although sections 31(2) and 36(2) of the transitional provisions of the Constitution, 1992
have the effect of saving PNDCL 207 generally, they do not save those portions which are inconsistent with
the provisions of the Constitution, 1992. If one were to apply them to the office of a district secretary one
would have to regard it as having been abolished because whereas he is appointed by the executive
without any prior consultations with the people of the district, the district chief executive can take office only
if his appointment is approved by a majority of not less than two-thirds of the members of the assembly
present and voting at the meeting. Thus, even though under these provisions the entire body of Laws of the
PNDC were validated, [p.201] this was only to the extent that they were not inconsistent with the
Constitution, 1992.
Then there is section 8 of the transitional provisions of the Constitution, 1992. Subsection (1) of which
states:
8. (1) A person who immediately before the coming into force of this Constitution held or was acting in an
office in existence immediately before the coming into force of this Constitution, shall be deemed to have
been appointed as far as is consistent with the provisions of this Constitution..."
Again, this will not do, because although it permitted career and contract officers holding office in the public
services to continue to hold the equivalent office under the Constitution, 1992, political appointees like
district secretaries could not take advantage of it to remain in office. The reason is that by the terms of their
employment they were required to vacate their offices whenever the appointing authority called upon them
to do so. The office of district chief executives was not an "equivalent office" to which they could be deemed

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to have been appointed under the Constitution, 1992. All that they could hope for was to be permitted to
stay on as district secretaries until they were replaced by district chief executives.
It seems to me, however, that the present situation was anticipated as section 23(1) of the transitional
provisions of the Constitution, 1992 meets fully the objection taken by the plaintiff. It reads "23. (1) Until
Parliament otherwise provides by law, existing laws regulating the operation of District Assemblies and
other local authorities shall continue to regulate their operations." At the time the Constitution, 1992 came
into force, one of the "existing laws" governing the operations of district assemblies was PNDCL 207,
section 21(1) of which, as already stated, gave the executive power to appoint district secretaries.
The provision is not qualified in any way. It stands alone and is not made subject to the provisions of the
Constitution 1992. We do not have a repetition of the familiar phrase "in so far as is not inconsistent with the
provisions of this Constitution." Therefore, taking the provision as it stands, and giving effect to the ordinary
meaning of the words used, section 23(1) means that until Parliament enacted a law to regulate district
assemblies in accordance with chapter 20 of the Constitution, 1992, PNDCL 207 was to continue in
operation regardless of whether its terms were in conformity with the Constitution, 1992. The provision is a
recognition of the need for government business at the local level to [p.202] continue while Parliament
deliberated on the matter and made the necessary changes in the existing law. The alternative would have
been to incorporate the entire body of laws on local government in the Constitution, 1992.
It is worthy of note that some of the persons appointed to the office of district secretary were already holding
that office when the announcement was made. For these, their reappointment was, to quote from:
"...To be possessed with double pemp. To guard a title that was rich before. To gild refined gold, to paint the
lily. To throw a perform on the violet. To smooth the ice, or add another hue unto the rainbow..."
Looked at objectively, there was an urgent need to fill all vacancies in the office of district secretary on
account of the role he is called upon to play under PNDCL 207 in the local government set up. Section 3(1)
(a) of PNDCL 207 makes him a member of the district assembly; section 21(2), makes him responsible for
the day-to-day supervision of the department and organisations of the district by section 12(1), he presides
over meetings of the executive committee of the assembly, section 8(2) requires him to present a report on
the work of the executive committee to the assembly at the beginning of each session, and to submit the
recommendations of the assembly on matters of national concern to the government; section 8(1) gives him
the right to address the assembly when in session on the policies of the government; section 99 makes him
the proper officer to receive notice of an intention to sue an assembly; and, by section 112(1)(c), he is a
member of the co-ordinating council of the region in which his district is situated. In short, he is not only an
important officer of the district assembly but also a vital link between the assembly and the central
government. His office is not which can be left vacant for long.
It will be observed that under PNDCL 207, the appointing authority of district secretaries was the
Provisional National Defence Council in the exercise of the executive power it had taken for itself. By
section 28(2) of the transitional provisions of the Constitution, 1992, that power devolved on the President.
After a most careful examination on the law, I am unable to accept the contention of the plaintiff that section
21 of PNDCL 207 ceased to have effect upon the coming into force of the Constitution, 1992. On the
contrary, I am satisfied that until the Local Government Act, 1993 (Act 462) was enacted on 24 December
1993, the whole of PNDCL 207 continued to have full force and effect. It follows, [p.203] therefore, that the
power to appoint district secretaries was lawfully exercised on 17 September 1993.
Two other issues that were raised were whether the President was a proper defendant in the action and
whether this court has power to issue an injunction directed to him. Dealing with these, the learned
Attorney-General drew attention to article 88(5) of the Constitution, 1992 and submitted that he alone was
the proper defendant to the action brought by the plaintiff. The said article reads:
"(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of
the State; and all civil proceedings against the State shall be instituted against the Attorney-General as
defendant."
Arguing to the contrary, Mr Adjetey, leading counsel for the plaintiff, referred to article 57(4) of the
Constitution, 1992 and submitted that actions brought under article 2 of the Constitution, 1992 were
specifically excepted from the immunity from suit granted to the President while in office. The said article
reads:
"(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the
prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the

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performance of his functions, or for any act done or omitted to be done, or purported to be done, or
purported to have been done or purporting to be done in the performance of his functions, under this
Constitution or any other law."
(The emphasis is mine.) Article 88(5) of the Constitution, 1992 restates the law as laid in the State
Proceedings Act, 1961 (Act 51). Article 57(4) of the Constitution, 1992 is also not new: it is a reproduction,
word for word, of article 44(9) of the Constitution 1979, and substantially the same as article 36(6) of the
Constitution, 1969.
Article 36(6) of the Constitution, 1969 came up for interpretation by the Court of Appeal sitting as the
Supreme Court in Sallah v Attorney-General (1970) 2 G & G 493, CA sitting at SC 55 when the then
Attorney-General argued that the act complained of being that of the Presidential Commission, which then
exercised the executive powers of the President, the action could have been brought only against the
commission, but article 36(6) operated to give the commission complete immunity from suit. The court,
comprising Apaloo, Siriboe, Sowah, Anim and Archer JJA (as they then were) held that the immunity
[p.204] granted to the President under article 36(6) did not extend to the government on whose behalf the
act was done and that the Attorney-General had properly been made a defendant in the suit. In his opinion,
Archer JA (as he then was) noted at 493 of the judgment thus:
"Does this article mean that the acts of the President cannot be challenged in a court of law? I do not think
so. In my view, the article confers on the President nothing more than procedural immunity. The article does
not confer substantial immunity. It means that the official acts of the President can be challenged but he
cannot be made a defendant in judicial proceedings or be made personally liable for the result of the
proceedings."
He then referred to clauses (7) and (8) of article 36 of the Constitution, 1969 which correspond to clauses
(10) and (11) of article 44 of the Constitution, 1979 and clauses (5) and (6) of article 57 of the Constitution,
1992, and continued at the same page:
"The policy behind article 36(6), 36(7) and 36(8) is too obvious. Is it proper that the Head of State should be
dragged into the court-room while he holds office? The answer is defintely no. The dignity and the aura of
respectability in which the office of President is enveloped must be preserved...[The] sensible reason for not
suing the President in court is to preserve his dignity."
Sowah JA (as he then was) also said at 503 of the judgment:
"The President is the 'fount of honour' and the person occupying the seat must do so in dignity and
majesty...[The] Constitution seeks to maintain that awe, dignity and majesty which surrounds the office and
seeks to insulate it as far as possible from the humdrum of legal processes and even from the arena of
political life...
Though the Presidency cannot be inducted into the legal arena, the Government of Ghana can be and is
answerable for the lawful performance of the executive powers vested in the President."
These statements reflect the position of the President in the Constitution, 1969. He was a figure-head, more
like the Governor-General of the immediate post-independence period, who represented whoever [p.205]
happened to be King or Queen of the United Kingdom. He did not wield executive power, rather, he was
required to act in accordance with the advice of the cabinet. Under the Constitution, 1969 real power lay
with the cabinet presided over by the Prime Minister.
All this notwithstanding, Apaloo JA (as he then was) recognised that Sowah and Archer JJA (as they then
were) had stated the law much too widely even for the 'ceremonial' President of the Constitution, 1969.
After stating that the government represented by the Attorney-General had been properly sued for the act of
the Presidential Commission, he made this all-important observation at 508 of the judgment:
"It ought, however, to be borne in mind that the immunity from legal proceedings granted to the President in
the performance or purported performance of his constitution or other legal duty is not absolute. His
immunity from court proceedings does not extend to proceedings taken against him by any of the
prerogative writs. It would follow from this that if the President failed or neglected to perform a public duty
imposed on him by law, a person affected by his failure can compel him in court by the prerogative order of
mandamus."
In like manner, the immunity did not extend to proceedings for the removal from office of the President
under article 47 of the Constitution, 1969 which had also been excepted from the operation of article 36(6)
of the Constitution, 1969.

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Article 57(4) of the Constitution, 1992 which I have already quoted, makes reference to article 2, clause 1(b)
of which reads:
"2.(1) A person who alleges that—...
(b) any act or omission of any person—
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in a

(The emphasis is mine.) If words have any meaning, the term "any person" must include the president of
the Republic; and, if it does, then there is no reason why he cannot be called upon to answer for alleged
infringements of constitutional provisions. I venture to say that it would be a breach of the audi alteram
partem rule not to make him a partly to such an action.
Although the President is the first citizen, he is not above the law. The medieval fiction that the "King can do
no wrong", which the sophist [p.206] interpreted to mean that if the action was wrong then it was not that of
the king, has no place in a republican setting which prides itself on all citizens being equal under the law
and therefore obliged to act in conformity with it. We recognise that an executive President being the most
powerful person in the state is the one who has the greatest capacity for wrong-doing. We do not need a
petition of right or a notional defendant like the Attorney-General before we can exercise our democratic
right of calling an erring President to order under article 2 of the Constitution, 1992 which not only
commands him to obey any order or direction this court may give, but also makes his failure to obey any
order or direction a ground for his removal from office.
Three examples may be given. First, article 106(8), (9) and (10) of the Constitution, 1992 lay down that if
the President exercises his right to refuse to assent to a bill passed by Parliament and, having reconsidered
the bill, Parliament passes it by a resolution supported by the votes of not less than two-thirds of all
members of Parliament, the President is required to assent to it within 30 days of the passing of the
resolution. If in such a case the President refuses to assent to the bill, an action may be brought against
him as the defendant under article 2 of the Constitution, 1992 for a mandatory injunction requiring him to
perform his constitutional duty.
The second example is taken from a real-life situation which occurred in a certain South American country
whose democratic structures are as fragile as our own. There, a President who found that his wishes were
being thwarted by the elected congress, staged a coup d'etat with the aid of the military and proceeded to
rule by decree. I am satisfied that if such a situation were to arise in this country, and there was hope of
resistance, an action may be brought against the President as the defendant under article 2 of the
Constitution, 1992 for a declaration that his act is unlawful and a breach of the Constitution, as well as for
consequential orders, thus paving the way for his impeachment. It would be idle to make the Attorney-
General who, for all one knows, may have opposed the actions of the President, the defendant in such an
action.
My third example comes from our own continent. Not long ago, the military dictator of an African country
decided that he would rather be an emperor. He dressed himself up in the uniform of a footman in
Napoleon's army and crowned himself at a public ceremony! Should we in this country ever have the
misfortune of electing a megalomaniac to the office of the President, we would be well within our rights in
bringing an [p.207] action against him personally under article 2 of the Constitution, 1992 if he should
exhibit conduct likely to lead the overthrow of the Constitution.
In the light of the foregoing, I am of the opinion that whenever it is alleged that the President has by himself
or any agent acted in a manner inconsistent with or in contravention of a provision of the Constitution, 1992
an action may be brought against him under article 2 of the Constitution, 1992 for a declaration to that
effect, and for consequential orders, including an injunction. President Rawlings was, therefore, properly
made a defendant in this suit. However, on the merits the action fails, and it is hereby dismissed.
I would like to express my views about the issue as to whether or not the President is amenable to
proceedings. This issue was not at all vital or important to the decision in the case. But since it was raised
and argued I think an opinion should be expressed on it.
Article 57(5) and (6) of the Constitution, 1992 gives complete immunity in civil and criminal proceedings to
the President while in office. But it seems to me that the immunity which article 57(4) of the Constitution,

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1992 grants to the President is not absolute. That is, article 57(4) does not confer substantive immunity in
so far prerogative writs and actions brought under article 2 of the Constitution, 1992 are concerned.
Thus, official acts of the President can be challenged either by means of prerogative writs or by instituting
action in the Supreme Court under article 2 of the Constitution, 1992. However, I am of the view that in such
cases it would not be right to make the President a defendant. By virtue of article 57(1) of the Constitution,
1992 the President is not only the "Head of State" but also the "Head of Government"; and article 58(1) of
the Constitution, 1992 vests the executive authority of Ghana in the President. So whenever the President
carries out executive duties vested in him by the Constitution, 1992 or by any other law, he does so as the
Government of Ghana.
In the circumstances, the President by appointing district secretaries under section 21(1) of the Local
Government Law, 1988 (PNDCL 207) was performing an executive function of the government. It was an
executive act of the Government of Ghana taken in the name of the President by virtue of article 58(4) of
the Constitution, 1992 which provides that: "Except as otherwise provided in this Constitution or by a law
not inconsistent with this Constitution, all executive acts of [p.208] Government shall be expressed to be
taken in the name of the President."
(The emphasis is mine.) It is therefore obvious that the Government of Ghana is personified in the
President. This does not mean that the President should be a defendant whenever any executive act of the
government done in his name is being challenged in court proceedings. In the particular circumstances of
the present case, the suit herein should be brought against the Attorney-General only as the defendant for
and on behalf of the Government of Ghana, in accordance with article 88(5) of the Constitution, 1992. That
is the Attorney-General is the proper defendant and not the President.
It is not every case that the President of Ghana should be dragged to the court-room. The office of the
President deserves respect. The dignity and the aura of respectability in which the office of the President is
shrouded ought to be maintained and preserved: see Sallah v Attorney-General, (1970) 2 G & G 493, CA
sitting as SC. The very issue raised in the present suit by the Attorney-General, was also raised by the then
Attorney-General in the Sallah case (supra).
It must be observed that the provision made in article 57(4), (5) and (6) of the Constitution, 1992 are
identical to the provisions in article 36(6), (7) and (8) of the Constitution, 1969. Those provisions were put to
the test in the Sallah case (supra) and the majority (Apaloo, Sowah and Archer JJA (as the then were) held
that the President had no substantive immunity, although his official acts could be challenged in court by
prerogative writs, the Attorney-General was the proper defendant in such proceedings. In the course of his
judgment Archer JA (as he then was) said at 493-494 of the judgment:
The policy behind article 36(6), 36(7) and 36(8) is too obvious. Is it proper that the Head of State should be
dragged into the court-room while he holds office? The answer is definitely no. The dignity and the aura of
respectability in which the office of the President is enveloped must be preserved... In Ghana, the sensible
reason for not suing the President in court is to preserve his dignity...
In the present case, the plaintiff by virtue of article 106 of the Constitution had come to the Supreme Court
for the interpretation of section 9(1) of the Transitional Provisions which has been put into effect by the
Government of Ghana in such a way as to terminate his appointment. As the Attorney-General by article 68
of the Constitution, is the principal legal adviser to the government, it is proper and fitting that he should
appear in this [p.209] suit as defendant for and on behalf of the Government of Ghana."
I entirely agree with this opinion. I should observe that Sowah JA (as he then was) expressed similar
opinion in the course of his judgment when he said at p 503:
"The Attorney-General does not deny that an action is maintainable at law against the Government of
Ghana; he argues, however, that the act complained of was one executed by the President and that act
cannot be challenged in these courts no matter the nature and scope of the act. I am unable to accept this.
The short answer is that whenever the President carries out the executive duties vested in him by the
Constitution, he does so as the Government duties vested in him by the Constitution, he does so as the
Government of Ghana... The President is the fount of honour and the person occupying the seat must do so
in dignity and majesty... So it is that the Constitution seeks to maintain that awe, dignity and majesty which
surrounds the office and seeks to insulate it as far as possible from the humdrum of legal processes... In
him is personified the Government of Ghana...

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Though the Presidency cannot be inducted into the legal arena, the Government of Ghana can be
answerable for the lawful performance of the executive powers vested in the President."
I must also refer to what Apaloo JA (as he then was) stated at 508 of the judgment:
It ought, however, to be borne in mind that the immunity from legal proceedings granted to the President in
the performance or purported performance of his constitutional or other legal duty is not absolute. His
immunity from court proceedings does not extend to proceedings taken against him by any of the
prerogative writs. It would follow from this that if the President failed or neglected to perform a public duty
imposed on him by law, a person affected by his failure can compel him in court by the prerogative order of
mandamus... In holding that this action was properly brought against the government. I share the
unanimous opinion of my brothers. If that action was properly brought, it cannot be doubted that it was
properly brought against the Attorney-General on its behalf. In my opinion, the preliminary objection was an
unmeritorious one and ought to have been, as indeed it was, dismissed."
[p.210]
There is therefore no doubt that the official acts of the President can be questioned in the Supreme Court
under article 2 of the Constitution, 1992, and also through the use of the prerogative writs. But as I have
already stated, in such cases, as in the present one, only the Attorney-General should appear in the suit as
the defendant for and on behalf of the government or the state for that matter, as was done in the Sallah
case (supra) and also in Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.
In the Tuffuor case (supra), which was cited by both counsel in the course of their arguments, the plaintiff,
Tuffuor, in his second relief sought a declaration (at 643 of the report) that:
"(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 affected in
contravention of the Constitution and laws of the Republic and were therefore all null and void and of no
effect."
It would be seen that it was the acts of President Limann and Parliament which Tuffuor challenged by
invoking the original jurisdiction of the Supreme Court under article 2 of the Constitution, 1979 and which
article was identical in terms with article 2 of the Constitution, 1992. But in the Tuffuor case (supra),
President Limann was not made a party to the suit, even though it was his acts which were called in
question in that suit. It was the Attorney-General, as the principal legal adviser of the government, who was
made the defendant. That was the right procedure.
The plaintiff, in the present case, did the right thing by suing the Attorney-General. But it was improper to
join President Rawlings as a defendant. This is one of the situations where it can be said that the President
had procedural immunity.
However, I agree with my brother Amua-Sekyi JSC that the plaintiff's action must be dismissed for the
reasons which he has lucidly set out in the lead judgment.
[p.211]
I am in entire agreement with the reasoning and conclusion of the lead judgment just read by my learned
brother Amua-Sekyi JSC. I do not have much to contribute in support of the judgment.
The plaintiff is complaining that the appointments of district secretaries made by the first defendant as
President on 17 September 1993 are inconsistent with, and in contravention of the Constitution, 1992,
specifically articles 242, 243 and 247 and that these appointments should be set aside by this court.
Further, the plaintiff is asking for an order of injuction prohibiting and restraining the President from
nominating, appointing or electing district secretaries to perform the functions set out in the Constitution,
1992 to be performed by district chief executives otherwise than as laid down in the Constitution, 1992.

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The functions of the district chief executive as laid down under article 243(2) of the Constitution, 1992 are
that:
"(2) The District Chief Executive shall:—
(a) preside at meetings of the Executive Committee of the Assembly;
(b) be responsible for the day-to-day performance of the executive and administrative functions of the
District Assembly; and
(c) be the chief representative of the Central Government in the district."
He is also a member of the assembly by virtue of article 242(c) of the Constitution, 1992. All these functions
were and are performed by the district secretary under various provisions of the Local Government Law,
1988 (PNDCL 207), and he is also a member of the district assembly—see section 12(1), 21(2), 8(2)(b) and
3(1)(a) of PNDCL 207. There is therefore no need for this court to issue an order restraining the President
from asking the district secretary to perform the functions of the district chief executive since both officers
perform the same functions in the district assembly either under article 243(2) of the Constitution, 1992 or
under PNDCL 207.
The language of section 23(1) of the transitional provisions of the Constitution, 1992 is clear and
unambiguous. It says:
"23.(1) Until Parliament otherwise provides by law, existing laws regulating the operation of District
Assemblies and other local authorities shall continue to regulate their operations."
The subsection stands out without any qualification whatsoever. It is not [p.212] made subject to any
provision of the Constitution, 1992, unlike article 11(6) of the Constitution, 1992 and section 31(1) and 36(2)
of the transitional provisions of the Constitution, 1992 where we find repeated use in the sections of the
expression "with such modifications, adaptations, qualifications and exceptions as may be necessary to
bring it (ie the law) into conformity with the Constitution and "in so far as it is not inconsistent with the
Constitution." These expressions are general provisions as against the specific provision of section 23(1)
which appears to have been put in for transitional arrangements, and which, in my view, did not cease to
have effect on the coming into force of the Constitution, 1992.
The law with respect to general and particular or specific enactments is trite and is to the effect that where a
particular or specific enactment and a general enactment appear in the same statute, and the general
enactment, taken in its most comprehensive sense, would override the specific enactment, the specific
enactment must be operative and the general enactment must be taken to affect only the other parts of the
statute to which it may properly apply—see Pretty v Solly (1859) 26 Beau 606 at 610. This is an application
of the maxim generatia specialibus non derogant. This special provision stands as an exceptional proviso
upon the general. It is only where it appears from a consideration of the general enactment in the light of
prevailing circumstances that Parliament or in the case of a Constitution, its framers, intended only to
establish a rule of universal application, that the special provision must give way thereto—see R v
Glamorganshire Justices (1889) 22 QBD 628 and R v Bridge (1890) 24 QBD 609. But in the instant case,
the situation is different.
In view of my thinking above, I do not seem to agree with the learned Acting Attorney-General that section
23(1) should be read together with section 31(2) of the transitional provisions of the Constitution, 1992. The
language of section 31 is clear and unambiguous. Subsection (1) is the operative clause, and it clearly
states that the existing law shall, as from the coming into force of the Constitution, 1992 have effect with
such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into
conformity with the Constitution, 1992. Subsection (2) is put in parenthesis for the avoidance of doubt only,
and without prejudice to the general effect of subsection (1) of section 31. Subsection (1) therefore, in my
view, qualifies subsection (2).
The learned Acting Attorney-General thinks there is inconsistency [p.213] between the two subsections and
would like subsection (2) to be taken out and read together with section 23(1) of the transitional provisions
of the Constitution, 1992. True, it is sometimes said that where there is an inconsistency between two
provisions in the same statute, the latter prevails: see Wood v Riley (1867) LR 3 CP 26, but this is doubtful.
It seems the better view is that the courts must determine which is the leading provision and which is the
subordinate provision, and which must give way to the other: see Institute of Patent Agents v Lockwood
[1894] AC 347 at 360, HL. Subsection (2) of section 31 of the transitional provisions of the Constitution,
1992 must under the circumstances give way to subsection (1). I would therefore not agree that subsection
(2) should be singled out and read with section 23(1) of the transitional provisions of the Constitution, 1992.
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As to the argument that the district secretaries should have been appointed by the Provisional National
Defence Council under section 21(1) of PNDCL 207, it is clear from section 29(3) of the transitional
provisions of the Constitution, 1992 that the President has power to make the appointments as he did. The
subsection runs thus:
"(3) A reference to the Provisional National Defence Council in any enactment in existence immediately
before the coming into force of the Constitution, where the reference relates to an executive function of the
Council shall be construed as a reference to the President."
The exercise of this power to appoint is clarified by section 10(1) of the Interpretation Act, 1960 (CA 4)
which states that "Where an enactment confers a power or imposes a duty the power may be exercised and
the duty shall be performed from time to time as occasion requires." And section 12(1) of the same CA 4
emphasises that the power to appoint includes the power (a) to remove or suspends; or to reappoint or
reinstate the person involved.
The issue whether the first defendant is amenable to these proceedings under the Constitution, 1992 has
been well dealt with in the lead judgment, and I agree with my learned brother's conclusion. The provision in
article 57(4) of the Constitution, 1992 that the President is not liable to proceedings in any court for the
performance of his functions, or for any act done or omitted to be done, or purported to be done in the
performance of the functions, under the Constitution, 1992 is without prejudice to the provisions of article 2
of the Constitution, 1992 and the operation of the prerogative writs. Article 2(1)(b) of the [p.214]
Constitution, 1992 makes the President liable for any act done which is inconsistent with, or in
contravention of a provision of the Constitution.
The plaintiff brought this action under article 2 of the Constitution, 1992 and, in my view,the proper person
to be sued is the President who made the appointments complained of, and he cannot hide behind the
Attorney-General because whatever orders that are to be issued are to be directed to him. The President is
not above the Constitution—he is subject to it.
He is also subject to the prerogative writs. In other words, the orders of mandamus, certiorari and
prohibition will lie against him because he has public duties to perform, and that performance can be
compelled against him under article 57(4) of the Constitution, 1992. By article 58(1) the executive authority
of this country vests in him to be exercised in accordance with the Constitution, 1992. It is therefore in order
that he should be made a defendant in the suit as well as the Attorney-General who is, by virtue of article
88(1) of the Constitution, 1992, the principal legal adviser to the government, for and behalf of the
Government of Ghana: see Sallah v Attorney-General: (1970) 2 G & G 493, CA sitting as SC a decision of
the Court of Appeal sitting as the Supreme Court, where a similar holding was made.
Clauses (1) and (2) of article 2 of the Constitution, 1992 gives this court jurisdiction to make declarations
and orders against any person, including the first defendant as the President when any action is brought
before this court under article 2 of the Constitution, 1992. In making such orders the court has a discretion
to consider any application made by a party appearing before it. And under clauses (3) and (4) of article 2
of the Constitution, 1992 any person (including the President to whom such orders or directions are
addressed, is enjoined to obey and carry out the terms of the orders or directions under pain of being
prosecuted for high crime, and in the case of the President (or his Vice) has action constitutes a ground for
removal from office under the Constitution, 1992. The first defendant as President of the Republic of Ghana
is therefore, in my judgment, amenable to an order of injunction made under article 2 of the Constitution,
1992.
Subject to the qualification above, the plaintiff's action fails, and judgment must be given for the defendants,
and it is hereby held that the President is entitled to make the appointments he made on 17 September
1993.
[p.215]
JUDGMENT OF JOYCE BAMFORD-ADDO JSC.
I have also had the privilege of reading the judgment of my brother Amua-Sekyi and I agree with his final
conclusion that this action should be dismissed. I wish however to register my own views and reasons.
The plaintiff sued for the following reliefs:
"(1) A declaration that the appointments of district secretaries for the various districts made by President on
September 1993 are inconsistent with and a contravention of the Constitution, 1992 specifically articles
242, 243 and 247.

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(2) An order setting aside the said appointments.
(3) An order of injunction prohibiting and restraining the President from nominating, appointing or electing
district secretaries to perform the functions set out in the Constitution to be performed by district chief
executives otherwise than as laid down in the Constitution."
According to the plaintiff, the President on 17 September 1993 appointed district secretaries for various
districts under section 21 of the Local Government Law, 1988 (PNDCL 207) and that these appointments
were unconstitutional as the President had no power under the said Law to make those appointments. The
plaintiff submitted that upon the coming into force of the Constitution, 1992 on 7 January 1993, PNDCL 207
ceased to have effect and was suspended by article 243 of the Constitution, 1992 so that the appointments
made under that law were unconstitutional and null and void and of no effect. The defendants however
contended that the appointments were properly made under the authority of section 21 of PNDCL 207 as
well as section 23(1) of the transitional provisions of the Constitution, 1992. Section 21(1) of PNDCL 207
stated thus:
"21.(1) There shall be a District Secretary for each District who shall be appointed by the Council.
(2) The District Secretary shall be responsible within the framer work of national policy as determined by the
Council, for the day-to-day supervision of the departments and organizations of the District."
The Constitution, 1992 however in article 243(1) provides for a district chief executive who shall be
appointed by the President with the prior approval of not less than two-thirds majority of members of the
assembly present and voting at the meeting. As can be seen, the method [p.216] of appointing a district
secretary and a district chief executive are clearly different. When appointing a district chief executive the
method under article 243 must be applied, not that under section 21(1) of PNDCL 207. However, section
23(1) of the transitional provisions of the Constitution, 1992 provides: "23.(1) Until Parliament otherwise
provides by law, existing laws regulating the operation of District Assemblies and other local authorities
shall continue to regulate their operations." According to the defendants, this means that until Parliament
makes laws for regulating operation of district assemblies. PNDCL 207 regulating the operation of the
existing district assemblies shall continue to operate. And therefore the President can appoint district
secretaries to the existing district assemblies under section 21(1) of PNDCL 207.
The plaintiff however argued that since the Constitution, 1992 has superseded PNDCL 207 and the two
enactments are in conflict, they cannot by virtue of article 1 of the Constitution, 1992 stand together and
article 243 must prevail over section 21(1) of PNDCL 207 despite the provisions of section 23(1) of the
transitional provisions of the Constitution, 1992 and article 299 thereof. I am unable to agree with the stand
of the plaintiff. Article 299 of the Constitution, 1992 states that the provisions of the transitional provisions
shall have effect notwithstanding anything to the contrary in the Constitution, 1992 so that even if there is a
conflict between article 243(1) of the Constitution, 1992 and section 21(1) of PNDCL 207, section 23(1) of
the transitional provisions of the Constitution, 1992 prevents PNDCL 207 being declared null and void or
inconsistent with the Constitution, 1992 till Parliament makes new laws. Further, if PNDCL 207 is not to be
held inconsistent with the Constitution, 1992 particularly article 243(1), then by virtue of the provisions of
section 36(2) of the transitional provisions of the Constitution, 1992 there is the authority for the continued
operation of PNDCL 207 including section 21(1) thereof. Section 36(2) of the transitional provisions of the
Constitution, 1992 states:
"(2) Notwithstanding the abrogation of the Proclamation referred to in subsection (1) of this section, any
enactment or rule of law in force immediately before the coming into force of this Constitution shall, in so far
as it is not inconsistent with a provision of this Constitution, continue in force as if enacted, issued, or made
under the authority of this Constitution."
Therefore PNDCL 207 continues to remain the law regulating the operations of the existing district
assemblies and section 21(1) thereof [p.217] being part of PNDCL 207 can be invoked to appoint district
secretaries. If it were not so the existing district assemblies cannot function or operate, since it is the district
secretaries who under section 21(2) of PNDCL 207 quoted above, are responsible for the supervision of the
day-to-day functioning of these assemblies.
The plaintiff's stand, it seems to me, cannot be right, as to interpret section 23(1) of the transitional
provisions of the Constitution, 1992 as suggested by counsel, would frustrate the intention gathered from
that section, namely to keep the district assemblies running until Parliament makes new laws regulating
them. The appointment of district secretaries by the President was not unconstitutional or null void for the
above reasons.

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The defendant in paragraph (10) of the statement of defence stated:
(10) The defendants contend that the first defendant is not amenable to any civil or criminal proceedings
either to his person or his office in the execution of the executive authority vested in him under article 58 of
the Constitution or in the exercise of his functions as President of the Republic of Ghana."
Both the plaintiff and the defendants argued this point in court. Whereas the defendants argued that the
President is not a proper person to be sued personally but that it only the Attorney-General who can be
sued, the plaintiff contended that since article 2 of the Constitution, 1992 permits any person to bring an
action to the Supreme Court for any breach of the Constitution, 1992 the President can be sued personally
as was done in this case, because he made the appointments himself. According to article 57(4) and (5) of
the Constitution, 1992:
(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the
prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the
performance of his functions, or for any act done or omitted to be done, or purported to be done, or
purported to have been done or purporting to be done in the performance of his functions, under this
Constitution or any other law.
(5) The President shall not, while in office as President, be personally liable to any civil or criminal
proceedings in court."
This means that under article 57(4) of the Constitution, 1992 the President can be sued in respect of cases
falling under article 2 of the [p.218] Constitution, 1992 or by way of prerogative writs for acts or omissions in
respect of the performance of his functions as President. But then article 88(5) of the Constitution, 1992
imposes on the Attorney-General the duty of conducting or defending civil cases on behalf of the state and
all civil proceedings against the State shall be instituted against the Attorney-General as defendant.
It is important that articles 57 and 88 of the Constitution, 1992 should be read together. If the President
according to article 57 is the Head of State and has acted in his official capacity in appointing district
secretaries, which is alleged to be unconstitutional, it is not the Head of State himself who should be sued
but the Attorney-General as directed in article 88(5). If the President while in office cannot even be
personally liable for any civil wrongs, how can he be liable personally for acts performed by him in the
exercise of his executive functions? The reason for the immunity provided under article 57 of the
Constitution, 1992 is to preserve the dignity of the high office of the Head of State: see paragraph 34 of the
Committee of Experts' Report on Proposals for a Draft Constitution of Ghana, at page 23 which reads as
follows:
"IMMUNITIES
34. The Presidential immunity from legal proceedings provided in Article 44 clauses 9-11 of the 1979
Constitution of Ghana is meant to preserve the dignity of the office of the President, but should not preclude
proceedings against the state in appropriate cases. The proper procedure in such cases is to institute
proceedings against the Attorney-General, as the official representative of the Republic."
If the plaintiff is right in its view that it is the President himself who should be sued personally, I venture to
ask why the Attorney-General was joined as the second defendant? The State acts through officers, like the
President who is said to be the Head of State and consequently, even if official acts of the President can be
questioned when it becomes necessary to sue the State, it is the Attorney-General who is constitutionally
designated to be sued in accordance with article 57(5) of the Constitution, 1992. Consequently, it is my
view that the defendants, objection to the joining of the President J J Rawlings to this particular suit is
correct and should be upheld. In the result, the plaintiff cannot succeed in its claim and is not entitled to the
relief sought.
JUDGMENT OF AMPIAH JSC.
I have had the privilege of reading beforehand the [p.219] judgment of my brother Amua-Sekyi. I agree with
him. I however have this observation to make regarding proceedings brought against the President.
The action was brought under article 2 of the Constitution, 1992. Article 57(4) of the Constitution, 1992
which exempts the President from being brought before the court personally for acts done in the exercise of
his functions under the Constitution, 1992 excludes actions brought under article 2 of the Constitution, 1992
and also proceedings involving the prerogative writs. Any person who alleges that there has been an
executive, legislative or judicial act which is inconsistent with or in contravention of the provisions of the
Constitution may bring an action against any person (including the President) who is alleged to have done

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the act or authorised the doing of that act. That action could be against that person alone or jointly with the
Attorney-General. It would not matter at that stage whether the action is meritorious or not. Such a joinder
would not invalidate the action. The court in such proceedings determines the issues or questions in dispute
so far as they affect the rights and interests of the persons who are parties to the proceedings.
In both Sallah v Attorney-General (1970) 2 G & G 493, CA sitting as SC and Tuffuor v Attorney-General
[1980] GLR 637, CA sitting as SC referred to earlier by my senior brothers in their judgments, the problem
was about the proper persons to be sued in those cases. A majority of the judges in both cases expressed
the view that even though the President had no absolute immunity from court proceedings, in the words of
Archer JA (as he then was) in the Sallah case (supra) at 493 of the judgment.
"... the article confers on the President nothing more than procedural immunity... It means that the official
acts of the President can be challenged but he cannot be made a defendant in judicial proceedings or be
made personally liable for the results of the proceedings."
Apaloo JA (as he then was) in the same Sallah case (supra) at 508 was of the view that with regard to the
President, "His immunity from court proceedings does not extend to proceedings taken against him by any
of the prerogative writs."
Article 88(5) of the Constitution, 1992 procedurally requires that:
"(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of
the State; and [p.220] all civil proceedings against the State shall be instituted against the Attorney-General
as defendant."
The President as "the Head of State and Head of Government" is one such person envisaged under article
88(5) of the Constitution, 1992.
The action before the court is not one of the prerogative actions. The issue of suing the President
personally would have to be reconsidered depending upon the acts complained of, for example where the
President is alleged to have acted outside the Constitution or acts on a frolic of his own.
In the present action, my opinion is that the President cannot be sued in his name. The Attorney-General
who already has been made a defendant in the proceedings, in my view is the person to be sued. I hold
that the President has not been properly joined in the action. I would in the circumstances strike out his
name from the writ as a party. I also agree that the claim by the plaintiff be dismissed.
DECISION
Action dismissed.
JNNO
NEW PATRIOTIC PARTY v THE ELECTORAL COMMISSION AND ANOTHER [1993-94] 1 GLR 124—145
16 SEPTEMBER 1993
ABBAN, AMUA-SEKYI, AIKINS, EDWARD WIREDU AND AMPIAH JJSC
Constitutional law — District Assembly — Election of district chief executives — Electoral provisions —
Persons entitled to vote — Constitution, 1992 vesting power to approve candidates as district chief
executives in district assemblies established under Constitution, 1992 — PNDCL 306 empowering district
assemblies in existence before Constitution, 1992 came into force to continue in existence until election of
district assembly under Constitution, 1992 — Functions of existing district assemblies excluding power to
appoint district secretaries, predecessors of chief executives — Whether existing district assemblies
competent to hold election to approve candidates as district chief executives — Local Government Law,
1988 (PNDCL 207) — Lord Government (Amendment) Law, 1993 (PNDCL 306) — Constitution, 1992, arts
11(4), 242 and 243.
Constitution law — Constitutional issue — Enforcement of Constitution — Acquiescence and estoppel —

Constitution, 1992 empowering every citizen to bring action to enforce its provisions — Constitution, 1992
reserving power to approve appointment of district chief executives to district assemblies to be established
under the Constitution — Action by plaintiff to restrain district assemblies in existence before Constitution
came into force from exercising power to appoint district chief executives — Defence that plaintiff estopped
by failure to prevent election by existing district assemblies of representatives to Council of State under
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Constitution, 1992 — Whether defence sustainable — PNDCL 207 — Constitution, 1992, arts 2(1) and
89(2)(c).
HEADNOTES
Before the Constitution, 1992 came into effect there were in existence district assemblies which had been
established under the provisions of the Local Government Law, 1988 (PNDCL 207). That Law had
subsequently been amended by the Local Government (Amendment) (No 3) Law, 1992 (PNDCL [p.125]
272) which extended the term of the assemblies from three to four years. A later Law, the Local
(Government (Amendment) Law, 1993 (PNDCL 306) had empowered the district assemblies to continue in
existence until such time as new assembly members were elected. However, article 242 of the Constitution,
1992 provided for the creation of district assemblies under the Constitution and article 243 empowered
those district assemblies to elect district chief executives for the district assemblies. At a time when the
district assemblies had not been elected under article 242 of the Constitution, 1992 the Electoral
Commission directed the existing district assemblies to hold elections in order to elect district chief
executives for each district assembly in accordance with article 243 of the Constitution, 1992. The plaintiff, a
registered political party, then brought an action against the Electoral Commission and the Attorney-General
for a declaration that the proposed election of district chief executives was illegal and a contravention of the
Constitution, 1992 and sought an injunction to restrain the conduct of the election. In support of its action
the plaintiff contended that since the assemblies provided for by article 242 of the Constitution, 1992 were
different entities in their character, composition and terms from those established under PNDCL 207, the
intended election was a violation of the letter and spirit of the Constitution, 1992 and therefore
unconstitutional, illegal and unenforceable. However, in their defence and in support of the proposed
election the defendants contended that (a) the combined effect of PNDCL 306, article 11(4) and section
31(2) of the transitional provisions of the Constitution, 1992 was to make the assemblies in existence before
the coming into force of the Constitution, 1992 continue in existence with the powers and functions
envisaged under the Constitution, 1992 until elections were held under article 242, and (b) since the plaintiff
had not made any effort to prevent the district assemblies from electing their representatives to the Council
of State under article 89(2)(c) of the Constitution, 1992 it was estopped by inaction and acquiescence from
challenging the competence of the existing district assemblies to elect district chief executives under article
243 of the Constitution, 1992.
Held,
Upholding the plaintiff's claim:
(1) by virtue of the provisions of article 11(4) of the Constitution, 1992 the Local Government Law, 1988
(PNDCL 207), the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272) and the Local
Government (Amendment) Law, 1993 (PNDCL 306) all formed part of the existing law. Thus as provided by
PNDCL 306, until new assemblymen were elected under article 242 of the Constitution, 1992, the members
of the district assemblies at the time the Constitution came into operation continued as assemblymen to
perform the functions which had been clearly spelt out in section 6 of PNDCL 207. However, under PNDCL
207, the district assemblies were not empowered to approve candidates for appointment as district
secretaries, the predecessors in office of the district chief executives to be appointed under the Constitution,
1992. Furthermore, the district assemblies established under PNDCL 207 were completely different bodies
and entities from the [p.126] district assemblies to be established in the future under article 242 of the
Constitution, 1992. Accordingly, the district assemblies as presently constituted could not take a decision on
a matter specially reserved for the differently constituted district assemblies envisaged under article 242 of
the Constitution, 1992. In the circumstances the district assemblies established under PNDCL 207 were
not competent to hold elections for the purpose of approving candidates for appointment to the office of
district chief executives. Accordingly, the conduct of the Electoral Commission in attempting to hold
elections in the district assemblies as presently constituted for the purpose of approving candidates for
appointment as district chief executives was contrary to the letter and spirit of the Constitution, 1992 and
was unlawful and unconstitutional.
(2) Article 2(1) of the Constitution, 1992 empowered every citizen to bring an action to enforce any
infringement of any provision of the Constitution, 1992. Accordingly, if the failure of a citizen to bring an
action in the Supreme Court when a particular provision of the Constitution was violated could constitute an
estoppel against that citizen and every other citizen in bringing an action in respect of any subsequent
violation of that provision or another related provision of the Constitution, estoppel would have been allowed
to operate as a shield to prevent citizens from ventilating and enforcing their constitutional rights under
article 2(1) of the Constitution, 1992. The equitable defences of acquiescence, inaction or conduct therefore
had no place when it came to the interpretation and enforcement of the Constitution, 1992. Accordingly, the

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failure of the plaintiff to question the propriety of the action of the district assemblies established under
PNDCL 207 in electing representatives to the Council of State under article 89(2)(c) of the Constitution,
1992 could not prevent the plaintiff from seeking in the court the correct interpretation and enforcement of
the provisions of the Constitution, 1992 which related to the district assemblies. The unlawful conduct of the
Electoral Commission could therefore not be validated by the equitable doctrine of estoppel. Tuffour v
Attorney-General [1980] GLR 637, CA sitting as SC cited.
CASES REFERRED TO
(1) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.
(2) Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218, [1956] 2 WLR 81; [1955] 3 All ER 864,
HL.
(3) Allotey v Quarcoo [1981] GLR 208, CA.
(4) Nartey v Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC.
(5) Moorgate Mercantile Co Ltd v Twitchings [1975] 3 WLR 286; [1975] 3 All ER 314; 119 SJ 559, CA.
[p.127]
(6) Grundt v Great Boulder Property Gold Mines Ltd (1937) 59 CLR 641.
ACTION by the plaintiff, a registered political party, to, inter alia, restrain the Electoral Commission from
conducting elections through the district assemblies existing before the Constitution, 1992 came into force
to appoint district chief executives under article 243 of the Constitution, 1992. The facts are fully set out in
the judgments of Abban, Amua-Sekyi and Aikins JJSC.
COUNSEL
Nana Akufo-Addo (with him Philip Addison and Alex Quaynor) for the plaintiff.
A. Forson, Attorney-General (with him Mrs Adusa-Amankwah, Chief State Attorney and G K Avah, Chief
State Attorney) for the defendants.
The plaintiff is a registered political party. The first defendant, the Electoral Commission, by virtue of the
Electoral Commission Act, 1993 (Act 451), has been charged with the responsibility of conducting and
supervising all public elections and referenda in the country. The second defendant—the Attorney-General
—was sued as the legal representative of the Government of Ghana. In its statement the plaintiff pleaded,
inter alia, that the first defendant, acting through its executive secretary, on 14 August 1993 issued written
directives to all the district assemblies in the country urging them to hold elections in order to elect the
district chief executive for each district assembly in accordance with article 243 of the Constitution, 1992;
and that the elections should take place between 18 and 30 August 1993. The defendants averred in
paragraph (1) of their amended defence that the facts so far stated above were correct.
It may be recalled that the present district assemblies were established by the Local Government Law, 1988
(PNDCL 207) (as amended). Elections were held under that Law to elect assemblymen to all the district
assemblies. By section 3(3) of PNDCL 207, elections to the district assemblies were to be held every three
years. But this section was later amended by the Local Government (Amendment) (No 3) Law, 1992
(PNDCL 272) which extended the three years to four years. That is, the amendment provided that elections
to a "District Assembly shall be held once every four years."
There was a further amendment made on 4 January 1993. This was by the Local Government
(Amendment) Law, 1993 (PNDCL 306). We will here quote the full text of the amendment: "District
Assemblies in [p.128] existence on the coming into force of this Law shall continue in existence until such
time as new Assembly members are elected." In other words, those who were members of the district
assemblies at the time the Constitution, 1992 came into force on 7 January 1993 were to continue to serve
as assemblymen pending the election of new assemblymen. Thus the present assemblymen derive their
right to be members of the district assemblies from PNDCL 306.
In paragraphs (6) and (7) of the statement of the plaintiff's case, the plaintiff summed up the basis upon
which it sought the reliefs. They read:

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"(6) The plaintiff contends that the assemblies provided for by article 242 of the Constitution, 1992 are
different entities in their character, composition and term from those established pursuant to the Local
Government Law, 1988 (PNDCL 207).
(7) The plaintiff further contends that the elections of the district chief executives pursuant to article 243 of
the Constitution, 1992 shall be made only by the assemblies provided for by article 242 thereof."
The defendants, in their amended statement of defence, denied paragraphs (5), (6) and (7) of the statement
of case and averred that PNDCL 272 did not offend any statutory provisions and that:
"although the district assemblies as presently constituted were not established under the Constitution, 1992
of the Fourth Republic, yet certain provisions of the said Constitution saved the district assemblies as
presently constituted."
The pivot of the defence could be found in paragraphs (4), (5) and (6) of the amended defence which read:
"(4) In answer to the said paragraphs, the defendants contend that the combined effect of the Local
Government (Amendment) Law, 1993 (PNDCL 306), article 11(4) of the Constitution, 1992 and section
31(2) of the transitional provisions of the Constitution, 1992 is to make the assemblies in existence before
the coming into force of the Constitution of the Fourth Republic to continue in existence with the powers and
functions as envisaged under the Constitution until elections are held under article 242 of the Constitution,
1992.
(5) In further answer to the said paragraphs the defendants contend that in exercise of the functions under
the Constitution, the said district assemblies in accordance with article 89(2)(c) elected [p.129] their
representatives to the Council of State. The plaintiff during the said elections did nothing to prevent the
elections from going ahead.
(6) The defendants therefore contend that the plaintiff is estopped by inaction and acquiescence from
contending that the district assemblies as presently constituted are not properly constituted for the
discharge of the functions of the district assemblies under the Constitution, 1992.
(7) The defendants finally contend that the holding of elections conducted by the first defendant of the
district chief executives by the assemblies as presently constituted is proper and in conformity with the letter
and spirit of the Constitution, 1992."
Leading counsel for the plaintiff, Nana Akufo-Addo, submitted that the authority to give approval to the
appointment of district chief executives under article 243 of the Constitution, 1992 could only be given by
the district assemblies to be established under the Constitution, 1992 and that the present district
assemblies do not have the mandate or constitutional authority to give approval to nominations of district
chief executives.
He further contended that the statutory functions conferred on district assemblies by PNDCL 207 did not
extend to giving such approval. It was also submitted that there was a significant difference between the
composition of the district assemblies established by PNDCL 207 and the district assemblies as envisaged
under the Constitution, 1992. Thus the existing district assemblies cannot exercise the powers granted to
the district assemblies to be established under article 242 of the Constitution, 1992.
The learned Attorney-General made reference to the provisions of article 299 of the Constitution, 1992 and
submitted that on the authority of that article, the validity of the transitional provisions of the Constitution,
1992 are not in doubt and so section 23(1) of the transitional provisions of the Constitution, 1992 validly
provided for the continuation of the existing laws and regulations relating to district assemblies. In the
circumstances, the provisions, of PNDCL 207 and PNDCL 306 are operative until the establishment of new
district assemblies under article 242 of the Constitution, 1992. In that respect, contended the Attorney-
General, the district assemblies as presently constituted can exercise all the functions of the district
assemblies as envisaged under the Constitution, 1992 and that those functions include approval of
candidates for [p.130] appointment as district chief executives. He therefore submitted that what the district
assemblies had intended to do was in consonance with the existing law.
The learned Attorney-General again submitted that the plaintiff was estopped from challenging the
competence of the present district assemblies to hold the said elections since the plaintiff did nothing when
the present district assemblies elected their representatives to the Council of State under article 89(2)(c) of
the Constitution, 1992 and that this court should not follow the decision in Tuffour v Attorney-General [1980]

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GLR 637, CA sitting as SC with regard to estoppel. He urged the court to take a second look at the
decision in that case and review it having regard to the changing circumstances, and to hold that the plaintiff
is estopped by inaction and acquiescence from disputing the authority of the district assemblies to hold
elections under article 243(1) of the Constitution, 1992.
We should observe that an unfortunate impression was created during the arguments that the present
members of the district assemblies had no mandate of the people. We think that that is not correct. They did
have the peoples' mandate and they could or can validly exercise the functions spelt out for them under
section 6 of PNDCL 207 until new assemblymen are elected under article 242 of the Constitution, 1992.
However, the main issue here is whether the present district assemblies, in addition to their functions as set
out in section 6 of PNDCL 207, have also the authority to approve candidates for appointment as district
chief executives under article 243(1) of the Constitution, 1992.
It seems on this issue the contentions of leading counsel for the plaintiff are right. It is significant to note
that despite their divergent views or opinions about PNDCL 207, PNDCL 272 and PNDCL 306 as
expressed in their pleadings, all the parties accepted the validity of these Laws. At any rate, no oral
arguments were put forward by leading counsel for the plaintiff, Nana Akufo-Addo, to support the contention
in paragraph (4) of the statement that PNDCL 272 was promulgated "in contravention of an existing
statutory provision."
In any case, we hold that PNDCL 207, PNDCL 272 and PNDCL 306 all form part of the existing law by
virtue of article 11(4) of the Constitution, 1992 and that they have not been affected by the coming into force
of the Constitution, 1992. Thus, by the provisions of PNDCL 306, until new assemblymen are elected under
article 242 of the Constitution, 1992 the members of the district assemblies at the time the Constitution
came into operation were and are to continue as assemblymen and to perform the functions which have
been clearly spelt out in section 6 of PNDCL 207.
[p.131]
We share the view of leading counsel for the plaintiff that those functions did not include the holding of
elections to give approval to candidates for appointment as district chief executives. Under PNDCL 207, the
district assemblies are not empowered to approve candidates for appointment as district secretaries. Under
the Constitution, 1992 we do not have district secretaries. We have district chief executives who, although
will perform practically the same functions as those of the district secretaries appointed under section 21 of
PNDCL 207, the procedure for appointing a person to the office of district chief executive is quite different.
Article 243(1) of the Constitution, 1992 provides:
"243.(1) There shall be a District Chief Executive for every district who shall be appointed by the President
with the prior approval of not less than two-thirds majority of members of the Assembly present and voting
at the meeting."
Article 242 of the Constitution, 1992 has provided for the composition of the district assemblies. That
composition differs in substance and in form from the composition of the present district assemblies as
established under section 3(1) of PNDCL 207. For example, under article 242 of the Constitution, 1992
members of Parliament from the constituencies "that fall within the area of authority of the District
Assembly" are also made members of the district assembly.
Further those members of the district assembly to be appointed by the President under article 242(d) of the
Constitution, 1992 should not be more than "thirty per cent of all the members of the District Assembly";
while under section 3(1)(c) of PNDCL 207 the appointed members presently in each district assembly do
not exceed "one-third of the total membership of the Assembly."
Consequently, as we have already stated, the present district assemblies as established by PNDCL 207 are
completely different bodies or entities from the district assemblies to be established in future under article
242 of the Constitution, 1992. That being the case, the district assemblies, as presently constituted, cannot
take a decision on a matter which has been specially preserved for differently constituted district assemblies
as envisaged under article 242 of the Constitution, 1992. That is, the district assemblies, as presently
composed, are not competent to hold elections for the purpose of approving candidates for appointment to
the office of district chief executives. Any election intended to he held in the present district assemblies for
that purpose would be contrary to the letter and spirit of the Constitution, 1992. In short, it would be
unconstitutional.
[p.132]

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Leading counsel for the plaintiff, in the course of his argument introduced an issue which did not seem to
have arisen on the face of the pleadings and which did not also relate to matters in controversy. That is, he
contended that the President has no role in initiating the appointments of the district chief executives, and
that it is the district assemblies which must sponsor the candidates and approve of them before the
President comes in to appoint. As already observed, this never formed part of the issues and since no full
argument was addressed to the court on the matter, it would not be right to make any authoritative
pronouncement on it at this time.
The issue of estoppel by acquiescence and inaction argued by the learned Attorney-General will be dealt
with briefly. Our first reaction is that such equitable defence-acquiescence and inaction or conduct must not
be allowed to operate as a shield to prevent a citizen from ventilating and enforcing his constitutional rights.
Otherwise sooner or later the good intentions of the framers of the Constitution, as enshrined in article 2(1)
of the Constitution, 1992 will be defeated. The said article provides:
"2.(1) A person who alleges that—
(a) a enactment or anything contained in or done under the authority of that or any other enactment, or
(b) any act or commission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring all action in the
If estoppel is allowed to operate in the way as it was suggested, it will surely wittle down the efficacy of the
above provision. If a person violates a particular provision of the Constitution, 1992 and which violation
becomes well-known to the public, but no citizen brings that conduct to book by bringing "an action in the
Supreme Court for a declaration to that effect", does that mean that if on another occasion that same
person violates the same or another provision of the Constitution, any public-spirited citizen who this time
brings action in the Supreme Court in respect of the second violation will successfully be met with the
equitable defence of acquiescence and inaction, simply because he did not challenge the first violation? We
think that equitable defence should have no place when it comes to the interpretation and enforcement of
the provision of the Constitution, 1992. In the present case, the failure of the plaintiff to question the
propriety of the present district assemblies in electing representatives to the Council of State under article
89(2)(c) of the [p.133] Constitution, 1992 cannot prevent the plaintiff from seeking in this court the correct
interpretation and enforcement of the provisions of the Constitution which relate to the district assemblies.
As already demonstrated, the conduct of the Electoral Commission in attempting to hold elections in the
district assemblies, as presently constituted, for the purpose of approving candidates for appointment as
district chief executives was contrary to the provisions of the Constitution, 1992 and therefore unlawful;
such unlawful conduct cannot be validated by the "equitable doctrines of estoppel": see Tuffour v Attorney-
General (supra). In the course of its judgment in that case, the Supreme Court said per Sowah JSC (as he
then was) at 656:
"The decision of Mr. Justice Apaloo to appear before Parliament cannot make any difference to the
interpretation of the relevant article under consideration unless that decision is in accordance with the
postulates of the Constitution... This court does not think that any act or conduct which is contrary to the
express or implied provisions of the Constitution can be validated by equitable doctrines of estoppel. No
person can make lawful what the Constitution says is unlawful. No person can make unlawful what the
Constitution says is lawful. The conduct must conform to due process of law as laid down in the
fundamental law of the land or it is unlawful and invalid."
With respect to the learned Attorney-General, the decision in Tuffour's case (supra) is still good law and no
good reasons have been canvassed to persuade this court to review it. The invitation of the learned
Attorney-General is therefore declined.
It was for the above reasons that this court on 16 September 1993 entered judgment for the plaintiff and
made the declarations and orders as contained in the said judgment.
When the Provisional National Defence Council came to power, the system of local government was that
set up under the Local Government Act, 1971 (Act 359), as amended. The Local Government (Interim
Administration) Law, 1982 (PNDCL 14) replaced the various district councils with management committees
appointed by the central government. The Local Government Law, 1988 (PNDCL 207) repealed Act 359
and PNDCL 14 and set up district assemblies composed of (a) the district secretary; (b) one person from

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each electoral area within the district elected directly by the electorate; and (c) not more than one-third of
the total membership of the assembly appointed by the Provisional National Defence Council. The district
secretary was also to be appointed [p.134] by the Council.
The Constitution of Ghana, 1992 provided for district assemblies composed of (a) one person from each
electoral area within the district elected by universal adult suffrage; (b) the members of Parliament whose
constituencies fall within the area of authority of the assembly as non-voting members; (c) the district chief
executive; and (d) not more than 30 per cent of the total membership of the assembly appointed by the
President. The district chief executive is, in the words of article 243(1) of the Constitution, 1992, appointed
by the President with the prior approval of not less than two-thirds majority of members of the assembly
present and voting at the meeting. The district assemblies envisaged by the Constitution, 1992 have not yet
been established.
Sometime in August an announcement was made from the office of the President that certain persons had
been nominated by him to fill the posts of district chief executive. Following this announcement, the
defendant-commission fixed dates on which, it said, the approval of members of the assemblies established
under PNDCL 207 would be sought to the nominations made by the President. The plaintiffs then issued
this writ asking for a declaration that the proposed election of district chief executives was illegal and a
contravention of the Constitution, 1992 and seeking an injunction. The grounds of their complaint will be
found in paragraphs (6) and (7) of their statement of case where they state:
"(6) The plaintiff contends that the assemblies provided for by article 242 of the Constitution, 1992 are
different entitles in their character, composition and term from those established pursuant to the Local
Government Law, 1988 (PNDCL 207).
(7) The plaintiff further contends that the elections of district chief executives pursuant to article 243 of the
Constitution, 1992 shall be made only by the assemblies provided for by article 242 thereof. The plaintiff
therefore says that the holding of elections, conducted by the first defendant, of district chief executives by
the assemblies established under PNDCL 207 is a violation of the letter and spirit of the Constitution, and is
therefore unconstitutional, illegal and unenforceable."
In their statement of case, the defendants denied paragraphs (6) and (7) and averred as follows:
"(4) In answer to the said paragraphs, the defendants contend that the combined effect of the Local
Government (Amendment) [p.135] Law, 1993 (PNDCL 306), article 11(4) of the Constitution, 1992 and
section 31(2) of the transitional provisions of the Constitution, 1992 is to make the assemblies in existence
before the coming into force of the Constitution of the Fourth Republic to continue in existence with the
powers and functions as envisaged under the Constitution until elections are held under article 246(1) of the
Constitution, 1992."
Thus the issue for determination is whether the district assemblies set up tinder PNDCL 207 are competent
to carry out the constitutional duty of giving approval to the appointment by the President of district chief
executives.
Under section 3(3) of PNDCL 207, elections to district assemblies were required to be held every three
years. The Local Government Amendment (No 3) Law, 1992 (PNDCL 272) altered the Law by requiring that
elections be held every four years. Then came the Local Government (Amendment) Law, 1993 (PNDCL
306) which said simply: "District Assemblies in existence on the coming into force of this Law shall continue
in existence until such time as new Assembly members are elected."
Article 11(4) of the Constitution, 1992 makes PNDCL 207 and PNDCL 306 part of the laws of Ghana.
Section 31(2) of the transitional provisions of the Constitution, 1992 has the same effect and declares that:
". . . where anything is required or authorised by this Constitution to be prescribed or provided for by or
under an Act of Parliament, it shall he deemed to be duly prescribed or provided for, if it has been
prescribed or provided for by or under an Act, Decree, or a Law in force immediately before the coming into
With these must be read section 23(1) of the transitional provisions of the Constitution, 1992 which deals
specifically with district assemblies. It provides:
"23. (1) Until Parliament otherwise provides by law, existing laws regulating the operation of District
Assemblies and other local authorities shall continue to regulate their operations."

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The position, therefore, is that the present district assemblies continue to exercise the powers given them
by PNDCL 207, as amended, until such time that the district assemblies envisaged by the Constitution,
1992 have been established. This is a far cry from saying that they are entitled to exercise powers that are
to be found only in the Constitution, 1992.
[p.136]
In paragraphs (5) and (6) of their statement of case, the defendants stated:
"(5) In further answer to the said paragraphs, the defendants contend that in exercise of the functions under
the Constitution, the said district assemblies in accordance with article 89(2)(c) elected their representatives
to the Council of State. The plaintiff during the said elections did nothing to prevent the elections from going
ahead.
(6) The defendants therefore contend that the plaintiff is estopped by inaction and acquiescence from
contending that the district assemblies as presently constituted are not properly constituted for the
discharge of the functions of the district assemblies under the Constitution, 1992."
If the defendants are right, then it is not only the plaintiffs who are estopped from raising the issue of the
legality of the proposed vote by the members of the district assemblies, but each and every one of the
fifteen million people of this country! Elections to a purely advisory body like the Council of State may have
seemed so unimportant that no one cared whether the members of the electoral college were qualified to
undertake the task. The position of a district chief executive is different: he is the representative of the
central government in the district and performs executive and administrative functions. Like everyone else,
the plaintiffs are free to choose when to go to court to challenge infractions of the Constitution, 1992.
The defendant-commission ought to have known that they were embarking on all illegal and
unconstitutional act. PNDCL 207 gave members of the district assemblies no power to give approval to the
appointment of district secretaries, by whatever name called; the office of district chief executive was
created by the Constitution, 1992 not PNDCL 207; the composition of district assemblies under the
Constitution, 1992 is different from that under PNDCL 207; under the Constitution, 1992 the term of office of
an assembly member is limited to four years, whereas that of the assembly members elected under PNDCL
207 has already extended beyond four years. In sum, there is, really, no legal basis for appointing district
chief executives before the district assemblies have been established. A district chief executive must have
the confidence of the members of the assembly. If he were to be appointed before the members of the
assembly have themselves been elected into office, they will effectively have been denied the opportunity of
expressing an opinion on his suitability for the office.
[p.137]
Article 243(1) of the Constitution, 1992 leaves me in no doubt that the course taken by the defendant-
commission is illegal and unconstitutional. It is the duty of this court so to declare and restrain them from
contravening the clear provisions of the Constitution, 1992.
It was for these reasons that I concurred in the orders made.
I have had the advantage of reading in draft the judgment of my learned brother Abban JSC and have no
hesitation in stating that I agree with his conclusion that the order of injunction requested by the plaintiff
should be granted. The case is of such public importance that I feel obligated to add a few words.
Both parties agree, and there is no doubt at all about it, that the district assemblies in existence now are
different from those envisaged by article 242 of the Constitution, 1992. This article gives the composition of
a district assembly as:
"(a) one person from each local government electoral area within the district elected by universal adult
suffrage;
(b) the member or members of Parliament from the constituencies that fall within the area of authority of
the District Assembly as members without the right to vote;
(c) the District Chief Executive of the district, and
(d) other members not being more than thirty percent of all the members of the District Assembly,
appointed by the President in consultation with the traditional authorities and other interest groups in the

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district."
However, section 3(1) of the Local Government Law, 1988 (PNDCL 207) gives the composition of the
district assembly as follows:
"(a) the District Secretary;
(b) one person from each electoral area within the District who shall be elected directly by the electorate in
accordance made regulations made in that behalf by the National Commission for Democracy;
(c) such other persons ordinarily resident in the District not exceeding one-third of the total membership of
the Assembly as may be appointed by the Council acting in consultation with the traditional authorities and
organised productive economic groupings in the District."
[p.138]
It is clear from the two compositions that (i) whereas under section 3(1)(b) of PNDCL 207 a person from
each electoral area within the district was elected in accordance with regulations made by the National
Commission for Democracy, the person envisaged by article 242(a) of the Constitution, 1992 is to be
elected by universal adult suffrage; (ii) whereas under section 3(i)(c) of PNDCL 207, not more than one-
third of the total membership of the assembly being persons ordinarily resident in the district was appointed,
the percentage under Article 242(d) of the Constitution, 1992 is not more than thirty per cent, (iii) the
appointment under PNDCL 207 was made by the Council, ie the Provisional National Defence Council,
whereas those under article 242 of the Constitution, 1992 are to be appointed by the President alone; (iv)
furthermore, the appointment under PNDCL 207 apart from being made in consultation with the traditional
authorities as provided under article 242 of the Constitution, 1992, should also be made in consultation with
"organised productive economic groupings in the District", which is different from what is to be done under
article 242 of the Constitution, 1992. ie "other interest groups in the district"; and (v) whereas the duration of
the district assembly under PNDCL 207, s 3(3) is pegged at three years, though this has been extended
indefinitely by the Local Government (Amendment) Law, 1993 (PNDCL 306) "until such time as new
Assembly members are elected", article 246(1) of the Constitution, 1992 directs elections to the district
assemblies to be held every four years-this is mandatory.
In spite of the glaring differences of the two bodies outlined above, the learned Attorney-General urged that
until Parliament takes steps to get a new assembly in place the district assembly as presently constituted
has the mandate to carry out the constitutional functions for the appointment of district chief executives
under article 243(1) of the Constitution, 1992 to prevent a vacuum being created learned counsel for the
plaintiff, Nana Akufo-Addo, contends otherwise. He argues that the present district assemblies do not have
the constitutional authority to approve district chief executives under article 243(1) of the Constitution, 1992
and that whatever power they have is restricted to the performance of their administrative functions under
existing laws regulating their operations as provided under section 23(1) of the transitional provisions of the
Constitution, 1992. I think I agree with learned counsel for the plaintiff on these issues. First, the submission
that a vacuum will be created is misconceived because the local government administration is a continuing
system of government and district assemblies can continue to function under existing laws; and secondly,
the district assemblies as presently [p.139] constituted have no moral or political or constitutional mandate
to undertake the duty imposed on the district assemblies as envisaged under article 243(1) of the
Constitution, 1992, ie the approval of candidates for the post of district chief executives for appointment by
the President.
The learned Attorney-General further submitted that the combined effect of PNDCL 306, article 11(4) of the
Constitution, 1992 and section 31(2) of the transitional provisions of the Constitution, 1992, is to make the
existing assemblies continue in existence with the powers and functions as envisaged under the
Constitution, 1992 until elections are held under article 246(1) of the Constitution, 1992. PNDCL 306 which
was enacted on 4 January 1993, three days before the Fourth Republic came into existence, and gazetted
on 5 February 1993 extended the existence of the district assemblies created by PNDCL 207 until such
time as new assembly members are elected. Article 11(4) of the Constitution, 1992 refers to existing law as
comprising:
". . . the written and unwritten laws of Ghana as they existed immediately before the coming into force of the
Constitution, and any Act, Decree, Law or statutory instrument issued or made before that date, which is to
come into force on or after that date."
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Section 31 of the transitional provisions of the Constitution, 1992 deals with continuation of effect of matters
prescribed by existing law. Section 31(2) states:
"(2) For the avoidance of doubt, and without prejudice to the general effect of subsection (1) of this section,
where anything is required or authorised by this Constitution to be prescribed or provided for by or under an
Act of Parliament, it shall be deemed to be duly prescribed or provided for, if it has been prescribed or
provided for by or under an Act, Decree, or a Law in force immediately before the coming into force of this
Constitution."
And section 31(1) states:
"31.(1) Where any matter that falls to be prescribed or otherwise provided for under this Constitution by
Parliament or by any other authority or person, is prescribed or provided for by or under any existing law or
is otherwise lawfully prescribed or provided for immediately before the coming into force of this Constitution,
that prescription or provision shall, as from the coming into force of this Constitution, have effect with such
modifications, adaptations, qualifications and exceptions as may be necessary to [p.140] bring it into
conformity with this Constitution as if made under this Constitution by Parliament or, as the case may be, by
the other authority or person."
Though PNDCL 306 extends the existence of district assemblies, there is nothing in section 31 of the
transitional provisions of the Constitution, 1992 that empowers existing district assemblies to continue to
perform the functions and have the powers of district assemblies as envisaged under the Constitution,
1992. No existing law contains any provision empowering current district assemblies to approve candidates
for appointment as district chief executives. What the Constitution, 1992 requires Parliament to do is to
enact laws regulating the operation of district assemblies, but under section 23(1) of the transitional
provisions of the Constitution, 1992, until Parliament provides such laws, district assemblies are just
empowered to operate under existing laws, and, as stated above, no existing law empowers district
assemblies to approve candidates as envisaged under article 243(1) of the Constitution, 1992. In my
judgment, the proper body to undertake this assignment is the district assembly as envisaged under article
242 of the Constitution, 1992 which is yet to come into existence. I am fortified in this view by the averment
in paragraph (3) of the plaintiff's statement of case which is admitted by the defendants, i.e the first
defendant in a statement signed by its executive secretary on 14 August 1993 issued directives pursuant to
article 243 of the Constitution, 1992 to all district assemblies about the holding of elections to the office of
district chief executive for each district between 18 August and 30 August 1993.
One issue that featured rather prominently during the course of arguments before us was whether the
President has a mandate under article 243(1) of the Constitution, 1992 to initiate the appointment of district
chief executives. Learned counsel for the plaintiff submitted that under article 243(1) of the Constitution,
1992 the proper body to initiate the appointment of a district chief executive is the district assembly, and that
upon a strict interpretation of the article, the President has no authority whatsoever to initiate the
appointment of the district chief executive. His only role, according to counsel, is to appoint the district chief
executive after the assembly had given its approval of the candidate. He urged that if the President is
allowed to initiate the appointment he would be undermining the concept of non-partisanship in the local
government structure, ie the concept of insulating the local government system from party-political
involvement, because those that the President will nominate will be just members of his political party. The
learned Attorney-General [p.141] controverted this submission. He was of the view that by virtue of article
243(2)(c) of the Constitution, 1992 which stipulates that the district chief executive shall be the chief
representative of the central government in the district the President has the power to nominate a candidate
for the office, and that it will be out of place to say that the assembly should initiate the appointment.
The arguments raise a very significant constitutional issue, and one would have expected that the plaintiff
would plead the issue to give a fair notice of its case to the defendants. It will be a denial of justice for the
defendants to be taken unaware: see the case of Esso Petroleum Co Ltd v Southport Corporation [1956]
AC 218 at 238-239, HL. They must not have the misfortune of being adjudged on a new issue not
previously pleaded by the plaintiff, and must not be condemned without being afforded an opportunity to
prepare to face the issue: see also Allotey v Quarcoo [1981] GLR 208 at 213, CA. The importance of the
issue notwithstanding, I would refrain from expressing any opinion on it. It seems to me that other relevant,
crucial and vital legal issues are involved which have not been adequately ventilated, and I would not like to
hazard any opinion that may pre-empt a well reasoned judgment on the issue.
The defendants raised an issue of estoppel by conduct. They contended in paragraph (6) of their statement
of case that:

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". . . the plaintiff is estopped by inaction and acquiescence from contending that the district assemblies as
presently constituted are not properly constituted for the discharge of the functions of the district assemblies
under the Constitution, 1992."
The learned Attorney-General argued that the plaintiff stood by unconcerned when the district assemblies
elected their representatives to the Council of State in accordance with article 89(2)(c) of the Constitution,
1992, and is therefore estopped from now contending that the assemblies cannot discharge any duty under
the Constitution, 1992. In support of this contention the Attorney-General relied on the case of Nartey v
Mechanical Lloyd Assembly Plant Ltd [1987-88] 2 GLR 314, SC.
I think this line of argument, with all due respect, is as misconceived as the Nartey case (supra) is
irrelevant, and I shall proceed to show why presently. Nartey v Mechanical Lloyd Assembly Plant Ltd
(supra) was a case where lands at Frafraha attached to the La stool remained in the care and possession
of the stool's substool at Frafraha. The La stool was alleged to be the true owner of the lands, but had
intentionally for very many years led the general public by its deliberate omission or failure to [p.142] assert
its ownership, to believe that the Agbawe family of Frafraha were the owners of the lands. This court held,
as stated in the headnote, that:
". . . the stool had by its inaction permitted the general public including the appellant and even the
government to believe that it had no objection to the conveyances made by the Agbawe family. In the
circumstances the stool could not now assert any title against all innocent purchaser who had dealt with the
Agbawe family following the a stool's inaction and acquiescence. Consequently, as against the appellant,
the La stool were estopped by conduct from impugning the appellant's title which had been perfected by
registration and his possessory acts."
Now touching on the irrelevancy of the Nartey case (supra) to the present case, I would say that section 26
of the Evidence Decree, 1975 (NRCD 323) has a vivid exposure of the issue of estoppel in pais. The
section states:
"26. Except as otherwise provided by law, including a rule of equity, when a party has, by his own
statement, act or omission, intentionally and deliberately caused or permitted another person to believe a
thing to be true and to act upon such belief, the truth of that thing shall he conclusively presumed against
that party or his successors in interest in any proceedings between that party or his successors in interest
and such relying person or his successors in interest."
The learned Attorney-General is saying that the NPP stood by unconcerned when the district assemblies
elected their representatives to the Council of State in accordance with article 89(2)(c) of the Constitution,
1992, and is therefore estopped from challenging the assemblies going ahead in approving district chief
executives in accordance with article 243(1) of the Constitution, 1992.
One would ask, what part did the NPP play in letting the district assemblies elect their representatives to the
Council of State? Did that party intentionally and deliberately cause or permit the assemblies to believe in
any particular state of affairs or that what they were doing was correct before they embarked on the election
of their representatives? Or did they act on any act or omission on the part of the NPP to believe that what
they were doing was constitutional, for the correctness of that act or thing to be conclusively presumed
against the NPP or its successors in interest in any constitutional proceedings between the NPP and the
district assemblies or the government of the NDC? Does there exist any sufficient [p.143] relationship of
proximity or neighbourhood or community of interest between the NPP and the district assemblies or the
National Electoral Commission such that in the reasonable contemplation of the NPP, silence or
acquiescence on its part may be likely to induce the latter to think that the NPP approves of the action taken
by them? The answer is definitely No. Is the learned Attorney-General saying that by the NPP looking on
unconcerned when the district assemblies were acting in a manner they thought was in accordance with the
spirit and letter of the Constitution, 1992 the NPP is now estopped from challenging them on another issue
of this nature?
Estoppel in pais, referred to as estoppel by conduct, is a well-known legal concept. In the English case of
Moorgate Mercantile Co Ltd v Twitchings [1975] 3 All ER 314 at 323, CA Lord Denning MR explained the
Concept this:
"Estoppel ... is a principle of justice and of equity. It comes to this. When a man, by his words or conduct,
has led another to believe in a particular state of affair, he will not be allowed to go back on it when it would
be unjust or inequitable for him to do so"

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What assumption of fact has the NPP caused the district assemblies or the National Electoral Commission
to adopt or accept for the purpose of whatever legal relation that exists between the two parties? Did the
NPP by their conduct permit the district assemblies to elect their representatives to the Council of State, or
assured them that what the assemblies were doing was constitutionally valid for the NPP to be estopped
from challenging the steps the assemblies want to take now? In this context the Australian case of Grundt v
Great Boulder Property Gold Mines Ltd (1937) 59CLR 641 comes to mind. In the Moorgate case (supra) at
323 Lord Denning MR quoted with approval the opinion of Dixon J in the Grundt case (supra) at 674 as
indicating the equitable grounds on which estoppel by conduct is based. Dixon J had said:
"The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure
by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose
of their legal relations”
Lord Denning MR then observed at 323-324:
". . . the principle ... [a]t any rate, it applies to an assumption of [p.144] ownership or absence of ownership.
This gives rise to what may be called proprietary estoppel. There are many cases where the true owner of
goods or of land has led another to believe that he is not the owner, or, at any rate, is not claiming an
interest therein, or that there is no objection to what the other is doing. In such cases it has been held
repeatedly that the owner is not to be allowed to go back on what he has led the other to believe. So much
so that his own title to the property, be it land or goods, has been held to be limited or extinguished, and
new rights and interests have been created therein. And this operates by reason of his conduct - what he
has led the other to believe - even though he never intended it ... when a man, by his words or by his
silence, or acquiescence, leads another to believe that he is not the owner and has no interest in the goods,
whereupon the other buys them or sells them to an innocent purchaser. [I]t is held that the true owner
cannot afterwards assert that they were his. The title to the goods is transferred to the buyer. . ."
The Master of the Rolls further said at 324:
"Those cases have their parallel in equity when the owner of land, by his conduct, leads another to believe
that he is not the owner, or, at any rate, that the other can safely spend money on it. It is held that he cannot
afterwards assert his ownership so as to deprive him of the benefit of that expenditure."
I would in the context of the case before us say that these cases do not have their parallel in constitutional
cases. Estoppel deals with private rights not constitutional rights. The silence of the NPP to challenge the
district assemblies from electing representatives to the Council of State cannot make any difference to the
interpretation of article 89(2)(c) of the Constitution, 1992 unless that decision is in consonance with the
postulates of the Constitution. As was rightly pointed out by this court the case of Tuffuor v Attorney-
General [1980] 1 GLR 637 at 656, CA sitting as SC:
"This court does not think that any act or conduct which is contrary to the express or implied provisions of
the Constitution can be validated by equitable doctrines of estoppel. No person can make lawful what the
Constitution says is unlawful. No person can make unlawful what the Constitution says is lawful. The
conduct must conform to the due process of law as laid down in the fundamental [p.145] law of the land or it
is unlawful and invalid."
The learned Attorney-General has urged this court to revisit the Tuffuor case (supra) with a view to
reversing it to suit his line of thinking, but it seems to me that his argument has no justification on any
reasonable principle, and can only be described as capricious. In effect he is urging this court to use its
power under article 129(3) of the Constitution, 1992 to depart from a previous decision of this court when it
appears to it right to do so. This will involve a departure from the Tuffuor case (supra) or overruling it. I
expected that having thus urged this court to undertake such assignment, the learned Attorney-General
would advance cogent reasons and convince this court of the steps he wishes it to take, but throughout his
submissions he never suggested any reasons. Perhaps he relied on this court to make the necessary
research in his favour. I have given due consideration to the reasoning of this court in the Tuffuor case
(supra) and have reached the conclusion that the proper exercise of judicial functions required this court to
resist any departure from it in so far as it affirmed that any decision which is contrary to the express or
implied provisions of the Constitution cannot be validated by equitable doctrines of estoppel.

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Furthermore, since Nartey v Mechanical Lloyd Assembly Plant Ltd (supra) a private land case decided on
the equitable doctrine of estoppel, is based on section 26 of the Evidence Decree, 1975 (NRCD 323) and
cases like Moorgate Mercantile v Twitchings (supra) and Grundt v Great Boulder Property Gold Mines Ltd
(supra) the learned Attorney-General cannot seek refuge under that case.
It is for these reasons that I opted to go along with my learned brothers that the order of injunction
requested by the plaintiff should be granted.
DECISION
DRKS
OGBARMEY-TETTEH v OGBARMEY-TETTEH [1993-94] 1 GLR 353—416
12 JANUARY, 1993
ARCHER CJ, WUAKU, AMUA-SEKYI, AIKINS, EDWARD WIREDU, JOYCE BAMFORD-ADDO AND
CHARLES HAYFRON-BENJAMIN JJSC
Practice and procedure—Cross appeal—Time to appeal—Time limit for appeals from final decision three
months—Appellant filing appeal against final decision on last day of period—Respondent filing cross appeal
one week later—No rule under CI 13 prescribing time limit for cross appeal—Whether section 32 of NRCD
54 applicable to have cross appeal deemed filed on same date as appeal—One decision on both claim and
counterclaim—Whether Supreme Court to exercise power to make any order necessary for determining real
issue or question in controversy in case—Whether three months limitation period for appeals applicable to
cross appeals—Limitation Decree, 1972 (NRCD 54), s 32—Constitution, 1992, art 129(4)—Court of Appeal
Rules, 1962 (LI 218), r 32—Supreme Court Rules, 1970 (CI 13), r 23(3).
Statutes—Construction—Courts Act, 1971 (Act 372), s 3(2)—Section requiring leave to appeal where two
successive decisions against appellant—Definition of "decision"—Defendant partially successful in Court of
Appeal—Whether defendant requiring leave to appeal from adverse decision—Courts Act, 1971 (Act 372),
s 3(2)—Courts (Amendment) Law, 1987 (PNDCL 191), s 1.
Practice and procedure—Appeal—Findings of fact—Adopted proceedings—Basis of protection for trial

judge’s findings of primary facts—Trial judge with consent of parties adopting evidence taken before
another judge—Whether trial judge in better position than appellate court in evaluating credibility of
witnesses—Dispute between divorced spouses over ownership of property on plot A—Both parties claiming
to have purchased plot from same vendors—Evidence of surviving vendor that plot A purchased by wife-
defendant—No counter evidence discrediting that of vendor—Trial judge and Court of Appeal nonetheless
rejecting evidence of vendor—Whether Supreme Court to overrule findings and accept evidence of vendor.
Land law and conveyancing—Title to land—Proof of ownership—Failure to prove root of title fatal to cases
of plaintiff—Both plaintiff—husband and defendant-wife claiming to have purchased land in dispute from
same vendor—Document on land in name of husband—Evidence by surviving vendor that land sold to
defendant but document made in name of plaintiff on instructions of defendant—No evidence discrediting
testimony of vendor—Whether husband holding land in trust for wife.
Husband and wife—Property—Ownership—Sale by wife of her land to third party—Subsequent demand for
refund of purchase price by third party at time wife out of jurisdiction—Refund by husband of purchase price
to third party—Whether husband acquiring interest in land—Whether husband owner of land.
HEADNOTES
The parties were husband and wife who had married under the Marriage Ordinance, Cap 127 (1951 Rev) in
1951. The marriage broke down in 1974 and [p.354] the plaintiff-husband subsequently brought an action
against the defendant-wife for a declaration that he was the absolute owner of H/No A 299A/4,
Laterbiorkorshie comprising a two-storey house and a one-storey outhouse situated on two pieces of land
designated as plots A and B. The wife counterclaimed, also for a declaration that the plaintiff held the plots
and the houses on them on a resulting trust for her. Both parties claimed they had bought the land from the
same vendors and built on it; with the husband claiming he used his own resources and a loan taken from
the Ghana Commercial Bank at the time. He further claimed that, with respect to plot B, though it was
originally granted to the defendant, he later bought it from the person the defendant had sold it to when that

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person lost interest in it and wanted a refund of her money. The wife claimed that she financed the building
of the house from her trading activities and money she realised from the sale of a car she had originally
bought in the name of the husband for their joint use. The documents on the land and building were in the
name of the plaintiff but the defendant claimed that she bought and paid for plot A and it was on her
instructions that the documents were prepared by the vendors in the name of the plaintiff. At the trial, the
plaintiff called two witnesses in support of his claims whilst the defendant called six witnesses including the
surviving vendor who confirmed the claim of the defendant that she was the one who had purchased plot A,
the surveyor who prepared the document and others present at the house warming party in 1963. Evidence
in the case had been taken before two other judges when it was transferred to Lutterodt J (as she then
was). With the consent of the parties, the previous proceedings before the other judges were adopted for
the trial. The trial judge eventually gave judgment in favour of the plaintiff, declaring title in the two plots in
him on the grounds, inter alia, that (1) the evidence of the first defendant witness—the surviving vendor was
not true because she was related to the defendant; (2) the plaintiff was capable of financing the building
because he was in gainful employment at the time; and (3) even though the defendant was a successful
trader she had exaggerated the extent of her wealth. The defendant appealed from that decision and the
Court of Appeal on 18 July 1991 affirmed the trial court's decision in respect of plot A but decided that the
defendant was entitled to plot B on the ground that since the plaintiff only refunded the purchase money of
plot B, he held plot B on a resulting trust for the defendant. Since both parties were dissatisfied with that
judgment the plaintiff appealed on 17 October 1991 to the Supreme Court against the decision on plot B
and the defendant cross appealed on 24 October 1991 against the decision on plot B. The plaintiff however
objected to the defendant's cross appeal, on the grounds that (1) the defendant having lost twice, ie both in
the High Court and the Court of Appeal, could not cross appeal without the obtaining the prior leave of the
court as required by section 3(2) of the Courts (Amendment) Law, 1987 (PNDCL 191); and (2) the
defendant's cross appeal was out of time as it was filed without obtaining extension time. The plaintiff
further contended that there was no evidence to support the Court of Appeal's decision granting title to the
defendant on plot B.
[p.355]
Held, dismissing the appeal and allowing the cross appeal (Archer CJ, Wuaku and Aikins JJSC dissenting):
(1) (Wuaku JSC dissenting) although the defendant filed her cross appeal more than three months after the
Court of Appeal had delivered its judgment, she was not out of time because:
(a) the requirement by rule 8(1)(b) of the Supreme Court Rules, 1970 (CI 13) that a civil appeal against a
final decision should be lodged within three months was inapplicable to a cross appeal since although rule
9(1) of CI 13 empowered a respondent to give notice by way of a cross appeal, rule 9(2) authorised the
application of only the provisions of rule 6 of CI 13 mutatis mutandis to a cross appeal. No other rules under
CI 13 were made applicable to a cross appeal. Rule 6 of CI 13 however dealt only with the form and content
of appeals. In any case,
(b) Per Amua-Sekyi, Edward Wiredu, Joyce Bamford-Addo and Hayfron-Benjamin JJSC. There was no
substantive difference between a claim and counterclaim or set-off on one hand and an appeal and a cross
appeal on the other; just as a claim had to precede a counterclaim set-off, an appeal had to precede a cross
appeal. And since under the provisions of section 32 of the Limitation Decree, 1972 (NRCD 54) any claim
by way of set-off or counterclaim should be deemed as a separated action and to have been commenced
on the same date as the appeal irrespective of the number of days, months or even years after the filing of
the notice of appeal that it was lodged. Accordingly, since the plaintiff's appeal had been filed within time,
the defendant's cross appeal had been filed within time. Crabbe III v Quaye, Court of Appeal, 31 July 1970,
unreported applied.
(c) Per Archer CJ and Aikins JSC. When a court dismissed an action and a counterclaim founded on
separate causes of action and the respondent to an appeal from the dismissal of the counterclaim either
wished to appeal from the dismissal of the action or sought to vary the order on a point which did not
concern the appellant he had to give a separate notice of appeal. However, where the action and the
counterclaim were linked together the cross notice should be treated as if it were a distinct notice of appeal.
Since in the instant case the decision of the Court of Appeal was in fact one decision on both the action and
the counterclaim, the objection taken by the plaintiff to that decision gave the defendant equally a right to
object to the decision by the cross notice of appeal as if it were a distinct notice of appeal. Dictum of Lindley
MR in National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280,
at 287-288, CA applied.
[p.356]

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(d) Per Archer CJ and Aikins JSC. Once an appeal was lodged against the decision of the Court of Appeal
or any part of it by the plaintiff, the Supreme Court had power under either rule 23(3) of CI 13 or rule 32 of
the Court of Appeal Rules, 1962 (LI 218) by virtue of the general jurisdiction granted the Supreme Court
under article 129(4) of the Constitution, 1992 to exercise its jurisdiction or that of the Court of Appeal, or
both to make any order necessary for determining the real issue or question in controversy between the
parties.
(2) (Wuaku JSC dissenting). It was clear from the language of section 3(2) of the Courts Act, 1971 (Act 372)
as amended by section 1 of the Courts (Amendment) Law, 1987 (PNDCL 191) that it was only where a
decision as a whole of the Court of Appeal confirmed the decision of the lower court that leave of the Court
of Appeal was required before an aggrieved party could appeal against the decision of that court, and
where the Court of Appeal refused to grant leave he might repeat his application in the Supreme Court. The
section made no reference to part of a decision. Accordingly, where the Court of Appeal came to a
conclusion that a party was partially successful, it could not be said that the party had had successive
failures that should compel him to apply for leave to appeal; he could appeal as of right. Accordingly, since
the defendant was partially successful in the Court of Appeal, she could appeal to the Supreme Court as of
right. Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC cited.
(3) Since the trial High Court judge did not have the advantage of seeing and observing the witnesses in the
box she had none of the advantages of a judge sitting at first instance when she came to assess the
evidence of the plaintiff and her witnesses as well as that of the surviving vendor of the parties who had
been called by the defendant. Accordingly, she did not enjoy the privilege of the discretion which protected
a trial judge in her findings of primary facts. Indeed, she was in no better position than any of the appellate
judges in determining the credibility or otherwise of the evidence of the only surviving witness in her
account of the circumstances surrounding the execution of exhibit A on which the plaintiff relied to establish
his claim to the property on plot A. In any case, it was the law that where the evidence of a witness was
material to the determination of an issue or where such evidence was vital to settling the issue one way or
the other, the evidence of such a person should be accepted, unless it was apparent on the face of the
record that it was not true. Accordingly, since in the instant case nothing was apparent on the face of the
record to justify the rejection of the vendor's evidence, both the trial judge and the Court of Appeal would be
held to have erred in rejecting the evidence of the vendor on the spurious ground that it was not credible.
Nkansah v Adjebeng [1961] GLR 465; Nkrumah v Ataa [1972] 2 GLR 13; Nkaeguo v Kunadu [1974] 2 GLR
150; [p.357] Mansah v Asamoah [1975] 1 GLR 225, CA and Atadi v Ladzekpo [1981] GLR 218, CA cited.
(4) In an action for a declaration of title, a plaintiff who failed to establish the root of his title must fail
because such default was fatal to his case. Consequently, where rival parties claimed property as having
been granted to each by the same grantor, the evidence of the grantor in favour of one of the parties should
incline a court to believe the case of the party in whose favour the grantor gave evidence unless destroyed
by the other party. In the instant case, the defendant called the only surviving co-owner of the disputed land,
whose evidence was clear that it was the defendant who actually negotiated and paid for the land. The
evidence of that witness was crucial as to who purchased the land and therefore in the absence of any
independent counter evidence provided by the plaintiff, he held the said plot A in trust for the defendant.
Dyer v Dyer (1788) 2 Cox Eq Cas 92; Green v Carlill (1877) 4 ChD 882; Mercier v Mercier [1903] 2 Ch 98
and Harrison v Gray, Jnr [1979] GLR 330 cited.
(5) Having regard to the relationship of husband and wife between the plaintiff and the defendant, the
refund by the plaintiff of the actual purchase price paid to the defendant for plot B was made on behalf of
the defendant. Since the plaintiff did not pay any consideration, he did not acquire any interest in the land.
Accordingly, the plaintiff could not in law justify his claim to be owner of plot B.
CASES REFERRED TO
(1) National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280; 69
LJCh 457; 16 TLR 348, CA.
(2) Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; [1956] 2 WLR 81; [1955] 3 All ER 864,
HL; reversing sub nom Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182; [1954] 3 WLR
200; [1954] 2 All ER 561, CA restoring [1953] 3 WLR 773; [1952] 2 All ER 1204.
(3) Asibey III v Ayisi [1973] 1 GLR 102, CA.
(4) Nyame v Tarzan Transport [1973] 1 GLR 8, CA.

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(5) Crabbe III v Quaye; Crabbe III v Boye; Addico v Akuffo (Consolidated), Court of Appeal, 31 July 1970,
unreported.
(6) Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338, SC.
(7) Dyer v Dyer (1788) 2 Cox Eq Cas 92.
(8) Cavander’s Trusts, Re (1881) 16 ChD 270; 50 LJCh 292, CA.
(9) Duagbor v Akyea-Djamson [1984-86] 1 GLR 697, CA.
(10) Dam v Addo [1962] 2 GLR 200, SC.
(11) Smith v Baker (1873) LR 8 CP 350; 42 LJPC 155; 28 LT 637.
[p.358]
(12) Asare v Appau II [1984-86] 1 GLR 599, CA.
(13) Briscoe R T (Ghana) Ltd v Preko [1964] GLR 322, SC.
(14) Atadi v Ladzekpo [1981] GLR 218, CA.
(15) Nkaeguo v Kunadu [1974] 2 GLR 150.
(16) Harrison v Gray, Jnr [1979] GLR 330.
(17) Kodilinye v Odu (1935) 2 WACA 336.
(18) Banga v Djanie [1989-90] 1 GLR 510, CA.
(19) Nkansah v Adjebeng [1961] GLR 465.
(20) Nkrumah v Ataa [1972] 2 GLR 13.
(21) Mansah v Asamoah [1975] 1 GLR 225, CA.
(22) Green v Carlill (1877) 4 ChD 882; 46 LJCh 477.
(23) Mercier v Mercier [1903] 2 Ch 98, CA.
(24) Quartey v Armar [1971] 2 GLR 231.
(25) Ussher v Darko [1977] 1 GLR 476, CA.
(26) Majolagbe v Larbi [1959] GLR 190.
APPEAL by the plaintiff-husband against part of the judgment of the Court of Appeal granting title to
property plot B to the defendant-wife and CROSS APPEAL by the defendant-wife against the part of the
judgment of the Court of Appeal granting title to property plot A to the plaintiff-husband. The facts are
sufficiently set out in the judgments of Wuaku, Amua-Sekyi and Aikins JJSC.
COUNSEL
George Thompson for the plaintiff-appellant.
Amarkai Amarteifio for the defendant-respondent.
JUDGMENT OF ARCHER CJ.
I have had the opportunity of reading beforehand the learned judgments of my brothers Wuaku and Aikins
JJSC and I agree with them that the judgment of the trial judge in the High Court is fair and reasonable and
that it should not be disturbed.
I should therefore allow the appeal of the plaintiff and dismiss the cross appeal of the defendant.
JUDGMENT OF WUAKU JSC.
This is a cross appeal by the parties to parts of the judgment of the Court of Appeal delivered on 18 July
1991. The plaintiff-appellant (hereinafter referred to as the plaintiff) and the defendant-appellant (hereinafter
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referred to as the defendant) got married under the Marriage Ordinance, Cap 127 (1951 Rev) on 22
September 1951. The marriage seemed to have come to an end in 1970. The plaintiff claims against the
defendant two main reliefs and what I may describe as four ancillary reliefs. The first main relief the plaintiff
asked for is a [p.359] declaration that he is the absolute owner of a piece of plot of land he described as plot
A and the same relief in the second main relief which he described as plot B. On these two plots of land
were built what is described by the plaintiff as a two-storey messuage or dwelling house and an outhouse
and collectively referred to as house No A 299A/4. There is no dispute about the description of the two plots
of land and the buildings thereon.
The defendant denied the plaintiff's claim and counterclaimed as follows:
"(i) A declaration that all that property known as H/No A299A/4 Laterbiorkorshie, Accra comprising a two-
storey house, a one-storey outhouse and a caretaker's hut and the site of the whole is held by the plaintiff
upon a resulting trust for the defendant as the absolute and exclusive owner thereof.
(ii) A perpetual injunction restraining the plaintiff, his servants and agents from interfering in any way
whatsoever with the defendant's exclusive beneficial ownership and possession of the said property."
The trial was started before Okai J before whom the plaintiff closed his case. Because Okai J had left the
service, it was agreed that the hearing be continued before Lutterodt J (as she then was). Lutterodt J (as
she then was) carefully examined the evidence before Okai J and herself, and gave judgment for the
plaintiff and dismissed the defendant's counterclaim.
The defendant appealed to the Court of Appeal and the appeal was allowed in respect of the plaintiff's
second main relief which is in respect of plot B; the Court of Appeal thereby confirming the judgment of
Lutterodt J (as she then was) in respect of the plaintiff 's main claim one in respect of plot A. As said earlier,
the judgment of the Court of Appeal is dated 18 July 1991. The plaintiff on 17 October 1991 filed a notice of
appeal against the Court of Appeal's judgment in respect of plot B. The defendant too on 24 October 1991
filed a notice of cross appeal against the portion of the Court of Appeal's judgment which confirmed the
plaintiff's ownership in respect of plot A.
I have decided in my judgment to examine the appeals from two angles, first, on point of law whether the
defendant's appeal is properly before the court. When the appeal was called on 17 November 1992, I drew
the defendant's counsel's attention to the fact that the defendant's notice of cross appeal was filed out of
time. I had no response from him. I am of the view that in so far as the defendant is concerned, she has no
[p.360] appeal before us. Although I am alone in this regard, I think that I am entitled to express my opinion
on the issue. Rule 9 of the Supreme Court Rules, 1970 (CI 13) provides:
"9. (1) A respondent may give notice by way of cross appeal.
(2) The provisions of rule 6 of these Rules shall mutatis mutandis, apply to a notice of a cross appeal."
(The emphasis is mine.) Both Osborn and Earl Jowitt in Dictionary of English Law at p 541 define cross
appeals as "where both parties to a case appeal." Therefore in this appeal, it is not by virtue of the appeal
by the plaintiff that the defendant is the cross appellant, but because both parties have on the face of it
appealed and are therefore cross appellants. If the two appeals are properly before the court, it would not
matter who filed his or her appeal first.
Before I go any further, I will like to refer to the Court of Appeal Rules, 1962 (LI 218), r.16 which provides:
"16. (1) It shall not be necessary for the respondent to give notice by way of cross-appeal; but if a
respondent intends upon the hearing of the appeal to contend that the decision of the Court below should
be varied, he shall within one month after service upon him of the notice of appeal cause written notice of
such intention to be given to every party who may be affected by such contention. In such notice the
respondent shall clearly state the grounds on which he intends to rely and within the same period shall file
with the Registrar of the Court below four copies of such notice, one of which shall be included in the record
and the other three copies provided for the use of the Judges.
(2) Omission to give such notice shall not diminish any powers of the Court, but may in the discretion of the
Court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise
as may be just."
In my opinion, rule 16(2) of LI 218 is referring to notice by the respondent and not notice of cross appeal.
A careful examination of the rule shows quite clearly that rule 16 of LI 218 envisages two situations: (a)
where a would be respondent wanted to cross appeal, and (b) where he does not want to cross appeal. The
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rule states that if he does not want to appeal but wants the judgment simply to be varied, then he shall
within one month after service upon him of the notice of appeal cause written notice of such intention, etc
etc; the rule does not say that he shall within one month after service upon him of the [p.361] notice of
appeal, file notice of cross appeal or cause written notice of such intention, etc etc.
Rule 9 of CI 13 provides that the provisions of rule 6 of CI 13 shall, mutatis mutandis, apply to a notice of
cross appeal. Rule 6 of CI 13 has eight subrules. Subrules (2) and (7) have sub-subrules. Rule 6 deals with
notice of grounds of appeal. Rule 6(1) provides:
“6.(1) Any appeal to the Court in a civil cause or matter shall be brought by notice of appeal in the Form 1
set out in the First Schedule to these Rules and shall be filed with the Registrar of the Court below."
In my opinion, rule 6(1) of CI 13 means that a cross appeal is in the same category as any other appeal to
this court. And there is a time limit within which an appeal shall be filed with the registrar of the court below.
The time within which an appeal shall be filed with the registrar of the court below is provided under rule 8
of CI 13. I need not reproduce the provisions of rule 8 of CI 13, however, rule 8(3) of CI 13 provides: "A civil
appeal shall be deemed to have been lodged when the notice of appeal has been filed", and I will add
"within the time limits."
I have not got any local authority to support my point of view. However, one may have a look at the English
Annual Practice (1962), Vol 1, p 1670. What is described as the respondent's notice comes under Order 58,
r 6 which has five subrules. Rule 6(i) provides:
"A respondent who, not having appealed from the decision of the court below, desires to contend on the
appeal that the decision of that court should be varied, either in any event or in the event of the appeal
being allowed in whole or in part, shall give notice to that effect specifying the grounds of that contention
and the precise form of the order which he proposes to ask the Court of Appeal to make, or to make in that
event, as the case may be."
Again I wish to refer to the notes on subrule I quoted above. It states:
"Respondents notice—This subrule is new in so far as it requires that like the appellant's notice of appeal, a
respondent's notice of intention to ask that the decision of the Court below should be varied shall specify
the grounds of that contention and the form of the order for which he proposes to ask."
That is akin to Form 1 set out in the First Schedule to the rules in CI 13. The note continues:
[p.362]
"There are two kinds of notice that may be given by a respondent one, a substantive, cross notice of
appeal; the other, a notice under this rule, asking that the decision of the court below should be varied (sub
r 1) or that it should be affirmed on grounds other than those relied upon by that Court (sub r 2)."
The note goes on to explain where cross notice of appeal should be given and notice under the subrule that
the decision of the court be varied. The case of National Society for the Distribution of Electricity by
Secondary Generators v Gibbs [1900] 2 Ch 280, CA was referred to. That case decided that under the
Rules of the Supreme Court, 1883, Order L VIII, r 6, a cross notice is different from a cross appeal, and that
in that case the defendant's cross notice was wrong and it should have been a cross appeal. The court said
that because of the mode in which the two cases were linked and in the circumstances of the case and
because counsel in the court below had more or less acquiesced in the wrong view taken by the trial judge,
the court would treat the cross notice as a cross appeal. The court also took into consideration an
agreement entered into by the parties which formed part of the pleadings and ordered that the action and
the counterclaim be remitted for trial.
And if I may be pardoned to refer again to the notes in the Annual Practice, 1962 to Order 58, r 6 at p 1671,
it is stated:
"But the only material difference, under the present rule, between a cross notice of appeal and a
respondent's notice appears to be in the time within which they are to be served; in the former case [ie
cross notice of appeal] the time specified in r. 4(1) [which is the time for appealing] in the latter case in r.
6(4) [that is after the service of the notice of appeal on the respondent]."
The combined effect of Order 58. rr 4 and 6 of the English Rules of the Supreme Court is similar to our rules
6, 8 and 9 of CI 13. In my view, the defendant never sought leave for extension of time to appeal and since
this court never granted her leave to appeal out of time, her notice of cross appeal is void and she has no
appeal pending before us to be considered. In my view, there is a time limit whether the respondent intends
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to file notice of cross appeal or notice of contention that the judgment should be varied whether a claim or a
counterclaim is involved or not. Again this is what the Annual Practice, 1962, Vol 1, p 1670 at 1671 says:
"A cross notice of appeal should be given where there are separate and distinct causes of action (whether
both by the same party or one by claim and another by counterclaim), and one party seeks to [p.363]
contest the decision upon one cause of action and the same or another party upon another cause of action
(National Society for the Distribution of Electricity v Gibbs [1900] 2 Ch 280.)"
In my opinion, the only appeal properly before us for consideration is the appeal by the plaintiff. I think the
parties' claims and pleadings are very important for the determination of the appeal. In this wise I will first
refer to paragraphs (11), (12) and (13) of the plaintiff's statement of claim:
"(11) As plot B, as has already been said, is contiguous to the plaintiff's said plot, plot A, and as to the
knowledge of the plaintiff, the defendant was no longer interested in the said plot, she having sold and
effectively divested herself of the ownership thereof as aforesaid, the plaintiff decided to purchase plot B
and he subsequently paid the sum of £70 to the said Mrs Aryee through Mrs Rose Torto in the presence of
his sister, Miss Nancy Ogbarmey-Tetteh. A receipt for the said amount was issued in favour of the plaintiff
on the understanding that a conveyance would be executed by the said Mrs Adina Ayele Vanderpuye on
her return to Accra.
(12) The plaintiff wrote to the defendant and informed her of the said purchase and on her return to Accra
six months thereafter, she raised the subject of the purchase of the said plot in a conversation and
commended the plaintiff for his vision in deciding to purchase the said plot since it was contiguous to his
plot, plot A, and it would have been foolish on his part to have allowed somebody else to purchase it.
(13) In early 1970 the plaintiff had a plan for an outhouse drawn up, submitted it to the Accra-Tema City
Council for approval and building permit No 103 of 21 March 1970 was issued in his name. He then
proceeded to erect the said outhouse partly on plot A and partly on plot B which he had lately acquired as
aforesaid. The said building was financed partly out of the plaintiff's savings and partly with an additional
overdraft of ¢3,000 granted by the same bank on the same security."
And this is what the defendant pleaded in reply:
"(7) Paragraphs (11) and (12) of the statement of claim are denied. The refund of Mrs Vanderpuye's money
on the abortive conveyance of the smaller parcel of land was made by the defendant through Mrs Torto. No
question arose about conveying the smaller parcel to the plaintiff as alleged or at [p.364] all, and no
conveyance thereof has ever been made in favour of the plaintiff.
(8) Save for the allegation that the smaller parcel had been acquired by the plaintiff, paragraph (13) of the
statement of claim is admitted. The defendant however contends that both she and the plaintiff agreed
together as husband and wife when about to leave Ghana on a diplomatic posting abroad to develop the
smaller parcel as a residence for the defendant's old mother (since deceased in 1970). Pursuant to the said
family arrangement the plaintiff took out the building permit and mortgage loan from the bank as alleged."
In my opinion, paragraph (8) of the defence is an admission of paragraph (13) of the statement of claim that
it was the plaintiff who built the house on plot B. Exhibit W, the letter written on behalf of the defendant by
her lawyer, shows that the building was never put up towards any family arrangement or for the occupation
of the defendant's old mother. On the other hand, the last but two paragraphs of exhibit W is an admission
that it was the plaintiff who built the house on plot B. The said paragraph ended thus: Our client [meaning
the defendant] helped your client [meaning the plaintiff] to put up that building though she admits that your
client [ie the plaintiff] put more money in this building than she did." Thus the learned trial judge made the
following significant findings:
"In the face of these concessions in exhibit W how can she single handedly put up this same building? This
is another clear evidence of her inconsistency. Even so the entire truth about her, the plot was not told in
exhibit W. But we can treat that as a slight inconsistency. But we look at paragraph (8) of her statement of
defence and counterclaim and we find the facts as pleaded there are entirely different from her evidence in-
chief. In paragraph (8) she claims the two of them decided to put up the house for her mother, in her
evidence in-chief, she says she built up the house from her own resources. The authorities are clear one
cannot put a case different from what had been pleaded."
I entirely agree with those findings. This is what Lord Normand said about pleadings in Esso Petroleum Co
Ltd v Southport Corporation [1956] AC 218 at 238-239, HL:

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"The function of pleadings is to give fair notice of the case which has to be met so that the opposing party
may direct his evidence to the issue disclosed by them ... To condemn a party on a ground of [p.365] which
no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which
his evidence has been improperly excluded.”
The plaintiff's evidence was amply corroborated by his witnesses and supported by documentary evidence.
These weighed heavily against the defendant. Although the defendant alleged fraud in her statement of
defence, she never gave any particulars. Various reasons were given by the defendant to whittle down the
effect of the plaintiff’s evidence. The plaintiff, according to the defendant, tricked her in giving the
documents to him, or he forged the documents, or she conveyed the plots of the land on promise of
marriage or to have sex with her. The fourth defendant witness, Joseph L Lamptey, in his evidence in-chief,
said that a bricklayer called Ataa Aryee engaged him as one of his labourers and told him that the house
was to be built for one Quarshie, in other words not for the defendant.
It is true that the plaintiff and his witnesses gave evidence before a different judge. It is also true that the
trial judge did not also see Helena Ashia Mills, one of the defendant’s alleged vendors. In my view, the trial
judge properly evaluated the evidence of those whom she had not seen and as well as those whom she
saw and made the correct assessment. In so far as plot A is concerned she had concurrence from the
Court of Appeal.
Holding (1) in the headnote of Asibey III v Ayisi [1973] 1 GLR 102 at 104, CA states:
"(1) when a decision upon an issue depended upon the credibility of witnesses who had given evidence at
the trial and the question as to which witness was to be believed, and that question turned upon manner
and demeanour, an appellate court would not interfere with a finding on that issue by the trial judge. But if
there were circumstances existing which in the opinion of the court would go to credibility of witnesses, it
would differ from the trial judge."
See also Nyame v Tarzan Transport [1973] 1 GLR 8, CA. I do not find any circumstances existing which
would convince me to differ from the trial judge's finding.
Grounds (i) and (ii) of the plaintiff's appeal to this court are these:
"(i) that so much of their lordships' decision as adjudged that the respondent was the owner of plot B
because the appellant held it in trust for the respondent, was wrong and ought to be set aside; and
(ii) that there was no evidence to support their lordships' decision [p.366] afore mentioned."
As a matter of fact the defendant claims that all the property known as H/No A299A/4 which comprises
plots A and B were held by the plaintiff upon a resulting trust for the defendant. I need not go fully into the
evidence. The defendant has denied the plaintiff's statement of claim that plot B was a gift to the defendant
which she subsequently sold: see paragraph (5) of the defence. She in her evidence before the court,
however, admitted that plot B was a gift to her. The plaintiff said that the defendant sold the land to one Mrs
Adina Ayele Vanderpuye, and later when she decided that she would no longer buy back the land, he, the
plaintiff, in the absence of the defendant, decided to purchase the land. Therefore the sum of £70, being the
purchase price, was paid by him with the understanding that a conveyance would be executed in his favour:
see paragraph (11) of the statement of claim. It is not the defendant's case that the plaintiff paid or refunded
the £70 for and on her behalf, but said she rather refunded the £70 through one Mrs Torto. If what the
plaintiff had stated in his statement of claim is true, how then can it be said that the plaintiff held the
property on a resulting trust for the defendant?
The defendant's reply was that on the evidence, "the honourable justices of appeal were right in their view
that the plaintiff did not acquire this plot B for himself and that he held it in trust for the defendant." As a
matter of law the defendant led not one jot or tittle of acceptable evidence of any implied trust which trust
could be founded upon her unexpressed but presumed intention: see Snell’s Principles of Equity (27th ed),
chap 4, p 188.
For the several reasons given above, I would allow the plaintiff's appeal and restore the judgment of the
learned trial judge in full. I would dismiss the appeal of the defendant as not properly before the court
because I hold the view that every cross appellant must file his or her notice of cross appeal within the
statutory time limited within which a notice of appeal shall be lodged. I would award costs in favour of the
plaintiff.

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The High Court, Accra gave judgment for the plaintiff in respect of two pieces or parcels of land together
with the dwelling house thereon. On appeal, the Court of Appeal affirmed the decision with regard to what
has been described in the proceedings as plot A, but reversed the decision with regard to plot B. The court
adjudged plot B and part of the dwelling house to be the property of the defendant.
The court gave its judgment on 18 July 1991. The plaintiff bided his [p.367] time until 17 October 1991 when
he lodged an appeal against that part of the decision which had adjudged the defendant to be the owner of
plot B and the building thereon. On being served with notice of the appeal, the defendant on 24 October
1991 filed a notice of cross appeal in respect of that part of the decision which had adjudged the plaintiff to
be the owner of plot A and the building thereon. Counsel for the plaintiff now objects to the defendant being
heard on her cross appeal on two grounds: (1) the cross appeal was filed out of time; and (2) the defendant
was required to obtain leave to appeal, but failed to do so.
Although counsel for the plaintiff did not refer to any provision in the law to support his first ground of
objection, it may reasonably be supposed that he had in mind rule 8 (1) (b) of the Supreme Court Rules,
1970 (CI 13) which requires that a civil appeal against a final decision be lodged within three months. In this
case, the defendant filed her cross appeal more than three months after the Court of Appeal had delivered
its judgment. What counsel seems to forget is that there can be no cross appeal unless an appeal has been
lodged. Therefore, when the plaintiff chose to lodge his appeal almost three months to the day after the
decision of the Court of Appeal, he left the defendant with no choice but to file hers after the expiration of
the period specified in the rule.
But, is a cross appellant, really, bound by rule 8 (1) (b) of CI 13? The rule governing cross appeals is rule 9.
It reads:
(2) The provisions of rule 6 of these Rules shall, mutatis mutandis, apply to a notice of a cross appeal."
It will be observed that apart from rule 6 of CI 13 which deals with the form and content of appeals, no other
rule is referred to as applying to a cross appeal. If any other rules are to be applied there must be
compelling reasons for so doing.
There is no difference of substance between a claim and counterclaim or set-off on the one hand, and an
appeal and a cross appeal on the other. Just as a claim must precede a counterclaim or set-off, so must an
appeal precede a cross appeal. With regard to a claim, a counterclaim and a set-off, section 32 of the
Limitation Decree, 1972 (NRCD 54) provides:
"32. For the purposes of this Decree, any claim by way of set-off or counterclaim shall be deemed to be a
separate action and to have been commenced on the same date as the action in which the set-off or
counterclaim is pleaded."
A cross appeal, too, owes its existence to an appeal and is deemed to have [p.368] been filed on the same
date as the appeal. If an appeal is lodged within time, a cross appeal from the same judgment is deemed to
have been lodged within time no matter how many days, months or even years after the filing of the notice
of appeal that it was lodged. A cross appeal will be regarded as having, so to speak, been filed out of time
only if the appeal itself was filed out of time. It is this that explains why in civil appeal No 50/66 Crabbe III v
Quaye, Court of Appeal, 31 July 1970, unreported, a cross appeal filed almost five years after notice of
appeal had been lodged was permitted to be argued. I am satisfied that all that the law requires is that an
appellant should have reasonable notice of any cross appeal.
If it is said that in the Court of Appeal a cross appeal need not be filed and that the notice filed in the
Crabbe case (supra) was treated as one for a variation, my answer would be that rule 16(1) of the Court of
Appeal Rules, 1962 (LI 218) only permits a cross appellant to adopt the less expensive course of filing
notice for a variation but does not debar him from filing a cross appeal, if he so desires. In any case, the
rule requires that the notice for variation, if any, be filed within one month of service of the notice of appeal.
That, probably accounted for the deliberate decision to file a cross appeal.
The submission that the defendant required leave of the Court of Appeal or of this court before she could
cross appeal is based on counsel's view of section 3 of the Courts Act, 1971 (Act 372), as amended by
section 1 of the Courts (Amendment) Law, 1987 (PNDCL 191). Section 3(2) of the amended provision
reads:
"3.(2) Where a decision of the Court of Appeal confirms the decision appealed against from a lower court,
an appeal shall lie against such decision of the Court of Appeal which may on its own motion or on an oral

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application made by the aggrieved party decide whether or not to grant such leave, and where the Court of
Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such
leave."
It is counsel's contention that as far as plot A is concerned, the Court of Appeal affirmed the decision of the
High Court and, therefore, the defendant required leave to appeal.
This submission reminds me of the case of Nartey-Tokoli v Volta Aluminium Co Ltd [1989-90] 2 GLR 338,
SC. There, the plaintiffs had sued in the High Court for various reliefs. Some of these reliefs were granted
while others were refused. On appeal, some of the reliefs which had been refused in the High Court were
granted while others were again refused. On a further appeal to this court, counsel for the defendants
[p.369] raised the issue whether leave to appeal was required. In its ruling, this court said, per Sowah JSC
(as he then was) at 340-341:
"The argument must be faulted on the conception of strands of a decision rather than a single decision . . .
not a dissected, truncated or dismembered decision. A decision must be regarded as a whole—a complete
entity. Wharton's Law Lexicon and Earl Jowitt’s Dictionary of English Law, both describe a decision simply in
two words as 'a judgment.' A judgment declares either for a successful party or designates a losing one.
Consequently, the amended section curtailing rights of appeal, comes into play only when two successive
judgments are against an appellant . . .
Since the Court of Appeal came to the conclusion that the plaintiffs had been partially successful, the
conclusion cannot be equated with successive failures which would fetter the plaintiffs' right of appeal to the
Supreme Court.
Our decision is that the plaintiffs do not need leave to appeal and can appeal as of right."
This is precisely the situation in which the defendant before us finds herself. Having been partially
successful in the Court of Appeal she can appeal to this court as of right.
Although the plaintiff commenced his action in 1974, it was not until 1990 that a judgment was delivered in
the High Court. The reason for this inordinate delay appears to be that there were abortive proceedings
before Okai J and Lamptey J (as he then was) before the matter came to trial and was concluded before
Lutterodt J (as she then was). With the consent of the parties the evidence led at the earlier hearings were
adopted for the purposes of the trial before Lutterodt J (as she then was). The result was that Lutterodt J
(as she then was) had none of the advantages of a judge sitting at first instance when she came to assess
the evidence of the plaintiff and his witnesses, as well as that of the vendor of the parties who had been
called by the defendant. The Court of Appeal failed to notice this and accepted her findings of fact as
having been made by a judge who had seen and heard all the witnesses.
The defendant gave up schooling at an early age. She met the plaintiff when he was in secondary school.
On completing his secondary education the plaintiff taught for two years as an untrained teacher. He
entered a teacher training college for a certificate, and then, while still teaching, married the defendant in
1951. He entered the University of Ghana in the same year and graduated in 1954. The evidence of the
defendant that she supported the plaintiff financially both before and after the marriage is [p.370] entirely
credible. Such marriages of convenience are not unknown in these parts. Her evidence that when the
plaintiff was a newly-qualified graduate teacher she bought a motor-car for their common use was not
denied. When it came to acquiring land for future development, it was the defendant who approached the
vendors to agree on terms. The evidence of the plaintiff that it was he who paid the purchase price was
strenuously denied by the surviving vendor who had been called to give evidence for the defendant. This
witness stated that it was the defendant who paid but that at her request plot A was made out in the name
of the plaintiff. Lutterodt J (as she then was) rejected the evidence of this witness, whom she had not seen,
on the ground that she was related to the defendant and had given an unsatisfactory explanation of why the
defendant had asked that one of the two documents be made out in the name of the plaintiff. According to
the witness, the defendant explained that she was to be married to the plaintiff. Since the document bears
the date 1957 and the parties got married in 1951 it seemed to the judge that the evidence could not be
true.
The relationship between the witness and the defendant was admitted. She was neither the mother, sister,
nor even the aunt of the defendant. To suggest that the witness would permit the kind of distant family
relationship which existed between her and the defendant to lead her to commit perjury is to cast a serious
slur on her character. There is no evidence on record to support such a view. As she explained, she knew
the plaintiff well and was distantly related to him too. There was nothing in her evidence to suggest that she
harboured any feelings of ill-will towards him. Looked at carefully, it will be seen from the evidence of the

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witness that the negotiations for the acquisition of the plots began as far back as 1949 when, although the
plaintiff and the defendant were romantically involved, they had not yet got married. As the evidence shows,
the defendant was in later years to acquire two estate houses at Kaneshie, one in her own name and the
other in the name of the plaintiff.
With regard to plot B, Lutterodt J (as she then was) found for the plaintiff because the defendant sold it to a
lady who later rescinded the contract and claimed a refund while the defendant was out of the country. The
plaintiff refunded the purchase price on behalf of the defendant. I am in complete agreement with the Court
of Appeal that having regard to the relationship between the plaintiff and the defendant the refund by the
plaintiff could not in law make him owner of plot B.
Each of the parties called workmen to testify that they had been engaged by the party calling them to work
on the building and had been paid by him or her. The fact that the document of title of plot A and the [p.371]
building plans were in the name of the plaintiff was no reason for rejecting the evidence of the witnesses
called by the defendant; nor is the circumstance that in one case, the witness, a labourer, did not know if
any building plans were used. With the exception of the two plumbers whose evidence appear to be in
conflict with each other, it is entirely probable that the others were truthful witnesses and that they were
engaged on different stages of the project which took some five years to complete.
In the courts below, it was accepted on the authority of Dyer v Dyer (1788) 2 Cox Eq Cas 92 that if the
defendant paid for plot A, the plaintiff holds it in trust for her. Having, therefore, accepted the evidence of the
surviving vendor that the plot was paid for by the defendant, I come to the conclusion that the plaintiff holds
the said plot and the dwelling house thereon in trust for the defendant.
In the result, I would dismiss the appeal of the plaintiff and allow the cross appeal of the defendant.
In this appeal the plaintiff is the appellant against part of the judgment of the Court of Appeal in respect of
plot B, a portion of the land in dispute, and the defendant is the cross appellant of the other part of the
judgment of the Court of Appeal in respect of plot A which contains the main building contiguous to the said
plot B.
The plaintiff on or about 19 June 1974 issued out of the High Court, Accra a writ against the defendant
claiming:
“(1) a declaration that he is the absolute owner of all that piece or parcel of land (hereinafter referred to as
plot A) comprising an appropriate area of 0.315 of an acre situate at Laterbiorkorshie, Accra and comprised
in a conveyance dated 8 August 1957 registered at the Land Registry as DR No 2212/57 and made
between Emma Mills and Helena Mills of the one part and Seth Ogbarmey-Tetteh (the plaintiff herein) of the
other part together with the two-storey messuage or dwelling house erected thereon or on same part
thereof and known as house No A299A/4, Accra;
(2) a declaration that he is the absolute owner of all that piece or parcel of land (hereinafter referred to as
plot B) measuring 58 feet by 98 feet situate at Laterbiorkorshie aforesaid and adjoining plot A together with
the outhouse erected partly thereon and partly on plot A;
(3) possession of plot A and plot B together with the two-storey messuage or dwelling house and outhouse
erected thereon or [p.372] on some part thereof (hereinafter collectively referred to as H/No A 299A/4
Accra) which are in the wrongful occupation and possession of the defendant;
(4) the sum of ¢7,540 being rents collected by the defendant from the plaintiff's said premises on his
authority for the period May 1970 to August 1973 which the defendant has refused to pay to the plaintiff
despite repeated demands;
(5) mesne profits from 1 February 1974 till possession of house No A299A/4 Accra is delivered up to him;
and
(6) damages for the defendant's unlawful entry and occupation of the said premises."
The defendant denied the claim of the plaintiff, and counterclaimed for:
"(i) a declaration that all that property known as H/No A299A/4 Laterbiorkorshie, Accra comprising a two-
storey house, a one-storey outhouse and a caretaker's hut and the site of the whole is held by the plaintiff
upon a resulting trust for the defendant as the absolute and exclusive owner thereof;

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(ii) damages for fraud; and
(iii) a perpetual injunction restraining the plaintiff, his servants and agents from interfering in any way
whatsoever with the defendant's exclusive beneficial ownership and possession of the said property."
The case has had a chequered history. Trial began in the High Court, Accra presided over by Lamptey J (as
he then was) on or about 5 February 1979. After hearing the evidence of some four witnesses, including
Helena Ashia Mills and the plaintiff, Lamptey J (as he then was) proceeded on transfer and the case was
taken over by Okai J who decided to hear it afresh. Hearing began on or about 26 November 1985. After
the plaintiff had closed his case, and the defendant was to open her defence, for an unknown reason,
proceedings were interrupted again, and eventually the case was transferred for continuation before
Lutterodt J (as she then was) on 23 June 1986. Counsel for both the plaintiff and the defendant agreed to
adopt the proceedings before Okai J, and the trial judge called on the defendant to open her case. It was
not until 12 April 1990 that judgment was delivered and this went in favour of the plaintiff.
Aggrieved by and dissatisfied with this judgment, the defendant appealed to the Court of Appeal which
allowed the appeal in part with respect to plot B in favour of the defendant. The Court of Appeal's [p.373]
judgment was delivered on 18 July 1991. On 17 October 1991 the plaintiff-appellant filed his appeal to this
court against the decision of the Court of Appeal with respect to plot B, and on 24 October 1991 the
defendant-appellant filed her cross appeal against that part of the decision of the Court of Appeal in respect
of plot A.
Four grounds of appeal were filed by the plaintiff. These are:
"(i) that so much of their lordships' decision as adjudged that the respondent was the owner of plot B
because the appellant held it in trust for the respondent was wrong and ought to be set aside;
(ii) that there was no evidence to support their lordships' decision aforementioned;
(iii) that so much of their lordships' decision as adjudged that damages for trespass for ¢100,000 awarded
by the trial judge against the respondent be reduced to ¢10,000 was in the premises wrong and ought to be
set aside; and
(iv) that so much of their lordships' decision as adjudged that there would be no order as to costs was, in
the premises, wrong and ought to be set aside and costs in the Court of Appeal awarded by your lordships."
The defendant filed two grounds of appeal, namely:
"(i) the plaintiff failed to discharge the burden of proof in support of his claim; and
(ii) that their lordships erred in law and in fact by relying on the weakness of the defendant's case rather
than the strength of the plaintiff's case at arriving at their decision."
Before us the plaintiff submitted that the cross appeal should be dismissed as incompetent and not properly
before the court because first, the defendant having lost twice cannot cross appeal as of right in respect of
plot A except with leave of the Court of Appeal or the Supreme Court, and cited the Courts Amendment
Law, 1987 (PNDCL 191) to support his contention; and secondly, that the defendant's cross appeal is out of
time as it was filed without having obtained extension of time. In reply counsel for the defendant argued that
PNDCL 191 is not applicable because she did not lose twice in this case, but that the judgment of the trial
court was partially reversed by the Court of Appeal in her favour. Counsel further submitted that in any
event the Supreme Court has discretion under CI 13 to vary a decision of the Court of Appeal suo motu in
an appropriate case.
I consider the issues raised fundamental to the determination whether [p.374] Consideration should be
given to the cross appeal and for that matter I would wish to deal with them first. The Courts Act, 1971 (Act
372), s 3(2) is amended by PNDCL 191 provides:
"(2) Where a decision of the Court of Appeal confirms the decision appealed against from a lower court, an
appeal shall lie against such decision of the Court of Appeal which may on its own motion or on an oral
application made by the aggrieved party decide whether or not to grant such leave, and where the Court of
Appeal refuses to grant the leave to appeal the aggrieved party may apply to the Supreme Court for such
leave."
It would appear from the language of section 3(2) of PNDCL 191 that it is only where a decision as a whole
of the Court of Appeal confirms the decision of the lower court that leave of the Court of Appeal is required
before an aggrieved party can appeal against the decision of that court, or where the court refuses to grant

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leave to appeal he may repeat his application in the Supreme Court. Section 3(2) of PNDCL 191 does not
talk of part of a decision, but the whole decision of the court. Therefore where the Court of Appeal comes to
a conclusion that a party is partially successful this cannot be taken to mean that the party has had
successive failures that should compel him to apply for leave to appeal; he could appeal as of right. In other
words, the subsection applies only where two successive judgments go against the aggrieved party.
This court had occasion to clarify the law on this issue in the case of Nartey-Tokoli v Volta Aluminium Co Ltd
[1989-90] 2 GLR 338 as stated in the headnote at 339, SC thus:
"A decision must be regarded as a whole—a complete entity. A judgment declared either for a successful
party or designated a losing one. Consequently section 3(2) curtailing rights of appeal, would come into
play only when two successive judgments were against an appellant. The policy rationale of section 3(2)
was to curb the spate of frivolous appeals. Merit must be demonstrated, at the leave stage, before a suitor
who had failed twice, was admitted to audience for a third time. That was in consonance with the public
policy of discouraging endless and futile litigation. The converse was also true: Where a suitor had had no
successive reverses, no impediment inhibited the utilisation of his full rights of appeal. Therefore since the
Court of Appeal came to the conclusion that the plaintiffs had been partially successful, that conclusion
could not be equated with successive failures which would fetter the plaintiffs' [p.375] right of appeal to the
Supreme Court. Consequently, the plaintiffs did not need leave to appeal and could appeal as of right.”
The next point raised is that the defendant's cross appeal is out of time as it was filed without having
obtained extension of time. What happened in this case is that judgment in the Court of Appeal was
delivered on 18 July 1991 and the plaintiff filed his appeal on 17 October 1991, just within the period
prescribed for lodging an appeal as of right. Then a week later, ie 24 October 1991 the defendant filed her
notice of cross appeal.
Rule 9 of the Supreme Court Rules, 1970 (CI 13) simply talked of the right of a respondent to give notice by
way of cross appeal, and the application of the provision of rule 6 mutatis mutandis to such notice of cross
appeal, but the rules are silent regarding the practice and procedure which shall apply in this matter. Such
being the case, until the court prescribes practice and procedure as the justice of the cause or matter may
require, I think I am at liberty to seek advice from any common law Commonwealth jurisprudence.
At common law there are two kinds of notice that may be given by a respondent. The first is a substantive
cross notice of appeal, and the second is a notice asking that a decision of the court below should be
varied, or that it should be affirmed on grounds other than those relied upon by the court. Here like the
appellant's notice of appeal a respondent's intention to ask that the decision of the court below should be
varied, or affirmed on grounds other than those relied upon by the court below, must give notice to that
effect specifying the grounds of that contention and the precise form of the order which he proposes to ask
the Court of Appeal to make. The latter has been given statutory effect by the English Rules of the Supreme
Court, Order 58, r 6(1) and (2).
Our CI 13 does not contain any provisions that are similar to the English provisions, but a like provision is
contained in rule 16 of the Court of Appeal Rules, 1962 (LI 218) regulating proceedings in the Court of
Appeal. The rule states:
“16.(1) It shall not be necessary for the respondent to give notice by way of cross-appeal; but if a
respondent intends upon the hearing of the appeal to contend that the decision of the Court below should
be varied, he shall within one month after service upon him of the notice of appeal cause written notice of
such intention to be given to every party who may be affected by such contention. In such notice the
respondent shall clearly state the grounds on which he intends to rely and within the same period shall file
with the Registrar of the Court below four copies of such [p.376] notice, one of which shall be included in
the record and the other three copies provided for the use of the Judges.
(2) Omission to give such notice shall not diminish any powers of the Court, but may in the discretion of the
Court be a ground for postponement or adjournment of the appeal upon such terms as to costs or otherwise
as may be just.”
A respondent's cross notice of appeal is normally given in relation to the subject matter of the action. It
should be given where there are separate and distinct causes of action (whether by the same party, or one
by claim and another by counterclaim), and one of the parties seeks to contest the decision upon one cause
of action and the same party or another seeks to contest upon another cause of action: see the White Book,
1962, p 1670 and Halsbury’s Laws of England (3rd ed), Vol 30, para 880. When the court dismisses an
action and a counterclaim founded on separate causes of action, and the respondent to an appeal from the
dismissal of the counterclaim wishes to appeal from the dismissal of the action, he must give a separate

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notice of appeal: see National Society for the Distribution of Electricity by Secondary Generators v Gibbs
[1900] 2 Ch 280, CA. So also where the respondent seeks to vary the order on a point which does not
concern the appellant: see Re Cavander's Trusts (1881) 16 ChD 270, CA. But where, however, the action
and counterclaim are linked together, as in the instant case, the cross notice ought to be treated, and it is
hereby accordingly treated, as if it were a distinct notice of appeal.
The English case of National Society for the Distribution of Electricity by Secondary Generator v Gibbs
(supra) is almost on all fours with the instant case. In that case letters patent were granted to L and J in
1882, and by an agreement made the following year between L and J of the one part, and the plaintiff
company of the other part, the former agreed to sell, assign and transfer to the latter all the patents. On the
death of L in 1888, though the purchase money had been paid, the patents had then not been assigned,
and the company sued J and the administratrix of L claiming (1) an order on the defendants to assign the
patents; (2) damages for breach of the agreement; and (3) repayment of part of the purchase money on the
ground that some of the patents had been declared invalid. L's administratrix then counterclaimed for
payment by the company of a sum alleged to be due to her upon the agreement under a judgment
pronounced by a French court in an action brought against her in France by the company in 1889. At the
trial of the English action and counterclaim, the trial judge Cozens-Hardy J dismissed both.
[p.377]
The judgment was entered on 29 May 1899 and on 29 August 1899 the defendant, Mad Ruelle, gave the
plaintiffs notice of appeal from the judgment so far as it ordered dismissal of the counterclaim. On 24
October 1899, the respondents under the Rules of the Supreme Court, 1883, Order 58, r 6 served the
defendant with a cross notice that upon the hearing of her appeal they would move that the judgment might
be reversed so far as it ordered the dismissal of the action, and that the action might be referred back for
trial.
During the hearing of the appeal, it was argued on behalf of the defendant that with regard to the plaintiffs'
cross notice it was irregular and out of time; that the counterclaim on which the defendant appeals deals
with a totally different subject matter to that of the plaintiffs' action, which is an action for damages for
breach of an agreement, and it would be unfair to allow the plaintiffs to raise by cross notice a question
which entirely differs from that raised by the defendant's appeal. Counsel submitted further that if the
plaintiffs were dissatisfied with the judgment they should have appealed in the ordinary way; and that by
rule 15 of Order 58 the time for appealing from a final judgment is limited to three months, so that even if
this cross notice were to be treated as a definite appeal, the plaintiffs are altogether out of time.
In reply counsel for the plaintiffs argued that the decision of the learned judge was in fact one decision on
both the action and the counterclaim, and therefore, an objection taken by one party to that decision gave
the other party equally a right to object to the decision by a cross notice.
Lindley MR ruled that it was clear that the learned judge linked the action and counterclaim together, and
under the circumstances the cross notice should be treated as if it were a distinct notice of appeal. At 287-
288 Lindley MR had this to say:
"I wish to say one word upon the question of the plaintiffs' cross-notice. If the learned judge had not so
linked the action and the counter-claim together as he did, and if the counsel in the Court below had not
more or less acquiesced in that view, I should have thought—and I think my brothers agree—that the
plaintiffs would have been wrong in giving their cross-notice as distinguished from bringing a cross-appeal,
inasmuch as that cross-notice was addressed, not merely to the counter-claim to which the appeal was
confined, but to the totally different matter of their right to relief upon their action, which is a separate and
distinct matter altogether. But, having regard to the mode in which the two were linked [p.378] together, we
think that, in the circumstances of this case, the cross-notice ought to be treated, and we have accordingly
treated it, as if it were a distinct notice of appeal. The 'appeal' referred in rule 6 of Order LVIII is in this case
the appeal by the defendant on her counter-claim; and reading the rule strictly and properly, the cross-
notice could only be available in connection with the appeal from the order made on the counter-claim, and
ought not to have been extended to a totally distinct matter—that is to say, to the relief sought by the
plaintiffs on their claim. But as I have said before—and I am prepared to adhere to it—the circumstances of
this case were so special by reason of the course taken, to which I have alluded, that we think it only just to
treat the cross-notice as a cross-appeal, and we do so accordingly."
It follows from the reasoning in this case with which I agree, that in the instant case, as the decision of the
court below was in fact one decision on both the action and the counterclaim, the objection taken by the
plaintiff to that decision gave the other party equally a right to object to the decision by a cross notice as if it
were a distinct notice of appeal. In any event it seems to me that once an appeal is lodged against the
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decision or any part of it, under rule 23 (3) of CI 13 this court may in hearing the appeal, make any order
necessary for determining the real issue or question in controversy between the parties. This power of the
court is better clarified in rule 32 of LI 218 which deals with the power of the Court of Appeal to give any
judgment and make any order in an appeal before it. The rule says:
"32. The Court shall have power to give any judgment and make any order that ought to have been made,
and to make such further or other order as the case may require including any order as to costs. These
powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of
a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents
or parties, although such respondents or parties may not have appealed from or complained of the
decision."
And since by virtue of article 116 (4) of the Constitution, 1979 as reproduced in article 129 (4) of the
Constitution, 1992 this court, for purposes of hearing and determining any matter within its jurisdiction, is
empowered to exercise all powers, authority and jurisdiction vested in any court established by the
Constitution, 1992 or any other law, the powers exercised by the Court of Appeal under the above rule may
be exercised [p.379] by this court. In the result the objection raised by the plaintiff fails and is hereby
overruled.
I now turn to the appeal against that part of the Court of Appeal's decision in respect of plot B. The trial
judge had after an exhaustive consideration and a critical examination of the evidence before her, made a
finding in favour of the plaintiff in respect of this plot, but this was overturned on appeal. In its leading
judgment read by Amuah JA (Ampiah and Adjabeng JJA concurring) he said:
“I now come to the third complaint. The plaintiff said that while the defendant was away in London the
mother of Mrs Vanderpuye approached him and said that her daughter was no longer interested and that
she wanted a refund of the money she gave to the defendant. The defendant at the time was abroad and
the plaintiff said he refunded it and when the defendant came back he told her of the refund. He went on to
say that as a result he acquired the land in this way. If Mrs Vanderpuye intended to sell the land to him she
would have executed a deed in his favour but in this case she did not and from the relationship existing
between the parties the reasonable inference is that he refunded it on behalf of the defendant because she
was abroad. The plaintiff therefore held the plot B and whatever stands on it in trust for the defendant."
If the case were as simple as that there would have been no need for anyone to pick a bone with the court.
Counsel for the plaintiff argued that there was no evidence to support their lordships' decision, and that they
erred in holding that the appellant held the plot in trust for the respondent. The initial claim of the plaintiff in
respect of this plot is contained in paragraphs (7)-(13) of the statement of claim, and is as follows:
"(7) The defendant who was married to the plaintiff at the time introduced prospective purchasers of plots in
Laterbiokorshie aforesaid to the said Emma Mills and Helena Mills and in consideration of her said services,
the said Emma Mills and Helena Mills conveyed to the defendant by way of gift a rather smallish plot
measuring 58 feet by 98 feet and continuous to plot A belonging to the plaintiff and executed a conveyance
comprising the said plot of land in favour of the defendant.
(8) The defendant subsequently sold her said plot of land (hereinafter referred to as plot B) to a Mrs Adina
Ayele Vanderpuye.
[p.380]
(9) In 1962 the plaintiff, a foreign service officer, returned from Britain where he had been on attachment to
the British and Commonwealth office, leaving the defendant behind in Britain.
(10) Soon after his arrival in Accra the plaintiff got word from a Mrs Aryee, the mother of the said Adina
Ayeley Vanderpuy to the effect that her daughter who was then in London was no longer interested in plot B
as the Lands Department had refused to register the said conveyance executed by the defendant in her
daughter's favour.
(11) As plot B, as has already been said, is contiguous to the plaintiff's said plot, plot A, and to the
knowledge of the plaintiff the defendant was no longer interested in the said plot, she having sold and
effectively divested herself of the ownership thereof as aforesaid, the plaintiff decided to purchase plot B
and he subsequently paid the sum of £70 to the said Mrs Aryee through Mrs Rose Torto in the presence of
his sister, Miss Nancy Ogbarmey-Tetteh. A receipt for the said amount was issued in favour of the plaintiff
on the understanding that a conveyance would be executed by the said Mrs Adina Ayele Vanderpuye on
her return to Accra

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(12) The plaintiff wrote to the defendant and informed her of the said purchase and on her return to Accra
six months thereafter, she raised the subject of the purchase of the said plot in a conversation and
commended the plaintiff for his wisdom in deciding to purchase the said plot since it was contiguous to his
plot, plot A, and it would have been foolish on his part to have allowed somebody else to purchase it.
(13) In early 1970 the plaintiff had a plan for an outhouse drawn up, submitted it to the Accra-Tema City
Council for approval and building permit No 103 of 21 March 1970 was issued in his name. He then
proceeded to erect the said outhouse partly on plot A and partly on plot B which he had lately acquired as
aforesaid. The said building was financed partly out of the plaintiff's savings and partly with an additional
overdraft of ¢3,000 granted by the same bank on the same security."
In her statement of defence the defendant had this to say in paragraphs (5)-(8):
"(5) Save that the plaintiff and the defendant were then married and that the defendant bought a smaller
adjoining parcel of [p.381] land from the Mills sisters paragraph (7) of the statement of claim is denied.
(6) Paragraphs (8), (9) and (10) of the statement of claim are admitted..
(7) Paragraphs (11) and (12) of the statement of claim are denied. The refund of Mrs Vanderpuye’s money
on the abortive conveyance of the smaller parcel of land was made by the defendant through Mrs Torto. No
question arose about conveying the smaller parcel to the plaintiff as alleged or at all, and no conveyance
thereof has ever been made in favour of the plaintiff.
(8) Save for the allegation that the smaller parcel had been acquired by the plaintiff, paragraph (13) of the
statement of claim is admitted. The defendant however contends that both she and the plaintiff agreed
together as husband and wife when about to leave Ghana on a diplomatic posting abroad to develop the
smaller parcel as a residence for the defendant's old mother (since deceased in 1970). Pursuant to the said
family arrangement the plaintiff took out a building permit and mortgage loan from the bank as alleged."
The plaintiff's evidence in-chief before Okai J (which proceedings were adopted by the parties) with respect
to plot B on 6 February 1986 is as follows:
"There is a small adjacent plot measuring 100 ft x 88 to my plot of the main building. The vendors gave the
plot to one Mrs Adina Vanderpuye for £70. Mrs Vanderpuye left for America. She is residing in New York.
On my return from UK in early 1961 the mother of Mrs Vanderpuye came and said she wanted a refund of
the money she gave to the defendant and that her daughter was no longer interested in that plot as she is
residing abroad. At the time the defendant was abroad, I refunded the amount of £70 and when the
defendant came back from UK I told her of the refund. As a result of that I acquired the second plot from
Mrs Vanderpuye. I started to develop the small plot in early 1979."
On 27 February 1986 the plaintiff continued his evidence and said:
"I purchased the plot of the outhouse to the main building. The defendant originally had it and she sold it to
Mrs Vanderpuye. The [p.382] defendant sold it for £70. There was no document prepared by Mrs
Vanderpuye to me because she had not returned to Ghana. I paid the money to her mother. I purchased the
land for myself. I did not give the defendant an impression that I was putting up the building for her because
she has her own property."
The plaintiff was not cross-examined on this vital evidence. This is not surprising because before then on 5
February 1974 the defendant had caused her solicitor, Mr K R A Korsah, to write to the plaintiff in respect of
the plot as follows:
"While on this subject of buildings and plots, we think it is pertinent to add that your client has built on a
piece of land adjacent to the premises the subject matter herein, which piece of land was given as a gift to
our client by Madam Ashia Mills. Our client helped your client to put up that building though she admits that
your client put more money in this building than she did."
The defendant said nothing about this plot in her evidence in-chief before Lutterodt J (as she then was).
However, the following was elicited from her in cross-examination:
“Q Apart from the two plots of land covered by exhibit A, the Ablorh Mills family gave you another plot
contiguous to the land in dispute?
A Yes, this is true.

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Q Although this land was contiguous to the one in dispute a separate document was made in your name?
A Yes, it was a gift so they gave me the land in my name.
Q You sold that piece of land to one Mrs Vanderpuye?
A Yes, that was the original plan.
Q Mrs Vanderpuye later said she was not interested in the property?
A Yes.
Q At the time she said so you were not in Ghana?
A That is so. The plaintiff wrote to tell me in London.
Q When she said she was not interested the plaintiff bought the land from Mrs Vanderpuye?
A No, he did not.
Q Mrs Vanderpuye sold this land to him?
A She did not, she said she wanted her money back, it was £70. I refunded it.
[p.383]
Q When you paid back the £70 did she return the property to you?
A No she did not, she returned the deed I made to her."
Then later the following dialogue ensued:
“Q You remember consulting lawyer Roger Korsah when this problem about this house arose?
A However, it was in connection with his stating falsely that we were divorced.
Q There is a small house attached to this main one?
A Yes.
Q When was it built?
A I completed it in 1970.
Q The plaintiff built this small house out of his own resources?
A No, he had nothing. He used his name in many of my personal properties."
At this stage the letter from Roger Korsah was tendered as exhibit W and read. Then counsel asked:
"Q Exhibit W talks about the subject matter of this suit?
A I cannot remember.
Q You told Roger Korsah that the small house was built by the plaintiff?
A I never said that. I put up that house. He, never contributed towards the building."
Of the two parties whose story is to be believed? Having told Mr Roger Korsah, her solicitor, that the plaintiff
had "built on a piece of land adjacent to the premises the subject matter herein", she now emphatically
denies this, and says she put up that house, and that the plaintiff never contributed any money or thing
towards the erection of the building.
It is being argued that the plaintiff cannot be said to have legally owned or purchased the plot because he
was married to the defendant, and he refunded the money on her behalf, and that no conveyance had been
executed in his favour by Mrs Vanderpuye. But that is not the trend of the evidence. From the pleadings,

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while the plaintiff is claiming that he refunded Mrs Vanderpuye's money to her mother, Mrs Aryee through
Mrs Rose Torto in the presence of the plaintiff's sister, Miss Nancy Ogbarmey-Tetteh, the defendant claims
she refunded the money to Mrs Vanderpuye [p.384] through Mrs Torto. She never claimed she refunded the
money to the plaintiff. The plaintiff repeated this in evidence and said further that he developed the plot in
early 1970, and that no deed of conveyance had been executed because Mrs Vanderpuye had not returned
to Ghana. Since he was not cross-examined on this issue there was in fact no need for him to proceed to
call any witness, either his sister or Mrs Torto, to give evidence to buttress his position. What is more, the
defendant did not even give evidence relative to this plot B until she was cross-examined on the issue. She
admitted that when the plaintiff got to know that Mrs Vanderpuye was no longer interested in the land he
informed her in London, and she continued to say "I refunded it", but failed to indicate to whom the refund
was made.
Now considering what she averred in her statement of defence, it can safely be surmarised that she meant
she refunded the money to Mrs Vanderpuye through Mrs Torto and not to the plaintiff. If that is the case,
and I think it is, how can the Court of Appeal rightly hold that "from the relationship existing between the
parties the reasonable inference is that he refunded it on behalf of the defendant because she was abroad"
and for that matter the plaintiff "held plot B and whatever stands on it in trust for the defendant?" If the Court
of Appeal, in the exercise of its powers, feels itself obliged to reverse the findings of fact made by the trial
court, it has to show quite clearly in its decision exactly where it thinks the trial court went wrong. It means
therefore that if the Court of Appeal sets aside the findings of the trial court without good grounds, or upon
grounds which do not support such inference with the findings made by the trial court, this court will have no
other alternative than to set that decision aside.
As submitted by counsel for the plaintiff it is not the case of the defendant that the plaintiff refunded the
money on her behalf to make him a constructive or resulting trustee. Therefore if the Court of Appeal found
that the money was paid by the plaintiff and not the defendant, that should be the end of the matter, and the
court is not entitled to invoke the doctrine of resulting trust.
Reading paragraph (6) of the statement of claim and paragraph (4) of the statement of defence and the
counterclaim, it may be inferred that the defendant pleaded the doctrine of resulting trust in respect of both
plot A and plot B. But this does not absolve the defendant from leading evidence to support her claim of
resulting trust in respect of plot B. Since this was not done, it is my judgment that it was wrong for the Court
of Appeal to found its judgment on resulting trust to defeat the claim of the plaintiff. The defendant having
failed to prove that the refund by the plaintiff was [p.385] made on her behalf (she herself claims she made
the refund), the Court of Appeal should not have gone further to find an avenue for the defendant through
which she could escape in order to avoid the consequences of her inability to establish a resulting trust in
her favour. As was held in the case of Duagbor v Akyea-Djamson [1984-86] 1 GLR 697 at 698, CA:
"What the judge[s] did amounted simply to a substitution by [them] proprio motu of a case substantially
different from and inconsistent with the case put forward by the [the defendant] and the ultimate acceptance
by [them] of that substituted case which was not the [the defendant’s] case at all."
See also the dictum of Adumua-Bossman JSC in Dam v Addo [1962] 2 GLR 200 at 206, SC viz:
In both Esso petroleum Co., Ltd. v. Southport Corporation ([1953] 3 W.L.R. 773) and Oloto v. Williams
[(1944) 10 W.A.C.A. 23] above referred to, it was the case of the court accepting a case contrary to and
manifestly inconsistent with that which the plaintiff himself had set up, whereas in our instant case it is the
case of the court accepting a defence contrary to and inconsistent with that which the defendant himself
has put forward; but the principle of law involved is undoubtedly the same; and in the words of Lord
Normand, amount to condemning a party on a ground of which no fair notice has been given [and that] may
be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly
excluded."'
It is argued that the trial judge did not have the opportunity of seeing and hearing all the witnesses in this
case, and so the matter had become at large for the appellate court to confirm or reverse the decision of the
trial court and substitute its own decision. I have no serious qualms about this, but in my judgment the
findings and conclusion of the trial judge on this issue are amply supported by the evidence on record. I am
satisfied that there was enough credible evidence before the trial High Court to support the case of the
plaintiff that he owned the plot and that he put up the outhouse on it. He produced exhibits K and 1 (c), the
building plan and the permit in respect of the building (all in his name) though he was unable to produce the
receipt for the payment of the £70. Though the payment was not controverted, he gave the reason for his
inability to produce the receipt; he said it had got missing. On the contrary, the defendant was unable to
produce any documentary evidence to support her claim. She could not even produce the deed she said

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Mrs Vanderpuye [p.386] returned to her nor a receipt for the £70 she also said she paid, and gave no
reason for not producing it. That would have somehow strengthened her case. Her evidence was, as I said
earlier, completely different from what she averred in paragraph (8) of her statement of defence. The burden
was squarely on the plaintiff and he discharged it to the hilt.
For the foregoing reasons, I am of the view that the part of the judgment of the Court of Appeal in favour of
the defendant-cross appellant was wrong and accordingly this appeal should be allowed, the judgment of
the Court of Appeal with respect to plot B set aside, and in place thereof judgment entered in favour of the
plaintiff upholding his claim for plot B.
I now move on to consider the cross appeal. The defendant's attack on that part of the judgment of the
Court of Appeal in respect of plot A is based on the following:
"(a) that the judgment was given in favour of the plaintiff not on the strength of his own case, but on the
'inconsistencies' in the defendant's case;
(b) that as the plaintiff was in duty bound to establish that he bought and paid for plot A, he should have
called the vendor Helena Ashia Mills whose evidence was to the effect that she meant to benefit defendant
though the document of title was made in favour of the plaintiff, and that the plaintiff should not be allowed
to benefit from his default in calling her; and
(c) that three quarters of the summary of the trial judge was concerned with the evaluation of the
defendant's evidence, particularly that of the first defendant witness' evidence, resulting in miscarriage of
justice and misapplication of the law."
Speaking for myself, I do not see any merit in the complaint about the plaintiff's failure to call Helena Ashia
Mills. There is no doubt from the record of appeal that the defendant intended to take advantage of calling
Helena Ashia Mills as her witness for reasons best known to herself. I say this because at the early stages
of the case when the parties appeared before Lamptey J (as he then was) and the plaintiff was to open his
case, the defendant sought leave of the court to call the said Helena Ashia Mills out of turn as her first
witness for the reason that the health of the witness was failing, and even though the proceedings before
Lamptey J (as he then was) were not adopted, the defendant tendered them to enable her use her
evidence in her favour. Having taken this advantage, how can she now turn round to accuse the plaintiff for
failing to call the said witness, and [p.387] then go to the extent of saying that the plaintiff should not be
allowed to benefit from his default in calling her. The defendant wants to take advantage of both situations.
In my judgment, the defendant having called Helena Ashia Mills out of turn as a witness before the plaintiff
even opened his case; and thereby obtaining an advantage to herself, cannot afterwards allege that it was
the duty of the plaintiff to call the said witness whose evidence would have been binding on him if he had
called her, and that he should not benefit from his default in calling her. As Honyman J said in Smith v
Baker (1873) LR 8 CP 350 at 357 and approved by Esher MR in 19 QBD 350:
"A man cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid,
and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at
another time say it is void for the purpose of securing some further advantage."
Be that as it may, in her evidence in-chief, Helena Ashia Mills did not talk about the deed of conveyance she
executed in favour of the plaintiff. It was when she was cross-examined on it that she said that the
conveyance was made in his name on the instruction of the defendant though the defendant paid for the
plot. This she said was done because the defendant said he had promised to wed her. This document
(exhibit A) was executed in August 1957, and it was to prove the untruthfulness of Helena Ashia Mills that
the plaintiff subjected her to the exhaustive cross-examination which showed the inconsistencies in her
story, and which the trial judge made elaborate references to, that counsel for the defendant is complaining
about. It came to light that though the document was executed in 1957 the wedding of the two parties took
place in 1951. When witness was asked "Do you know that the plaintiff and the defendant got married in
1951 and not in 1957", her reply was "I do not know." Though she said in examination in-chief that the
building on plot A was completed in 1951, and that she was present at the formal opening of the building,
she admitted under cross-examination that in fact the building was not completed in 1951, but said there
was some sort of ceremony in the house in 1951.
The other complaint of counsel for the defendant is that "the judgment was given in favour of the plaintiff not
on the strength of his own case, but on the ‘inconsistencies' in the defendant's case." In her judgment the
trial judge adverted briefly to the burden of proof that lay on the plaintiff when she said: "The principal claim
of the plaintiff is for a declaration of title to land. The authorities clearly show that he succeeds on the

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strength [p.388] of his own case and not on the weakness in his opponent's case." She relied on the cases
of Asare v Appau II [1984-86] 1 GLR 599, CA and Duagbor v Akyea-Djamson (supra) to support her
contention. She quoted with approval the dictum of Abban JA (as he then was) in the latter case, and
continued: "It follows that the burden of proof would not shift, neither would the degree or standard lessen
simply because the defendant has also counterclaimed for title."
The question is, did the learned trial judge give judgment in favour of the plaintiff not on the strength of his
case, but on the "inconsistencies" in the defendant's case? Counsel does not pinpoint or identify the
“inconsistencies” he alleges, nor does he quote passages from the judgment of the trial judge to support his
contention, but simply leaves the matter at large, expecting this court to decide whether he is right or wrong
in his assertion. I must say that is unfortunate. This court requires some sort of assistance from counsel
under such circumstances.
However, I have read the judgment of the trial judge over and over again to see whether there is any merit
in counsel's argument, but the more I read the judgment the more I become convinced that his argument is
rather unmeritorious. I find that what the trial judge did was to evaluate the evidence of the plaintiff
(including the documentary evidence) and that of the defendant to ascertain which of the two divergent
claims was more credible. This the court did so exhaustively that if I venture to evaluate the evidence and
make my own findings and conclusion I shall be compelled to repeat almost all that the court had said. After
exhaustively evaluating the evidence the court concluded by saying: "The evidence of ownership is so
overwhelming in favour of the plaintiff, and I would not make any findings to the contrary.” There is nothing
in the judgment that showed the slightest suspicion that the trial judge deviated from the principle of law she
so ably enunciated at the beginning of her judgment.
Because of the divergent views expressed by some justices of this court I think the justice of the case
demands that I should say a word or two about the evidence in relation to plot A. At the trial court the
plaintiff said that while he was at Tamale on transfer he had information of sale of plots in Accra by Emma
Mills and Helena Mills. He therefore remitted £30 to the defendant to pay the deposit for two plots for him,
and he completed payment for the plots, amounting to £128 by the end of 1957 through one Mr Mills who
was then caretaker of the plots for the vendors. He said a deed of conveyance was executed in his name
by the vendors, and he started developing the land in early 1958. He applied for a building permit and this
was also issued in his name. He completed the building at the end of 1963 with credit facilities from Messrs
A G Leventis [p.389] and a loan of £1,500 from the Ghana Commercial Bank, together with the proceeds of
some of his personal effects he sold. He said:
"In August 1977 when I was leaving Ghana for USA, I foresaw that there would be a problem with the
payment of the loans. The fear arose from the lack of co-operation from the defendant for failing to pay
moneys into my bank account. I therefore raised money from private sources and repaid in full the
outstanding balances owing to the bank. The document on the house was released to me. I paid this money
in 1977."
With this evidence on record, the trial judge in her judgment said: "In my view the evidence led on the
purchase of the property raised a strong prima facie case that the plaintiff is the owner of the property in
question."
Having said that, she proceeded to examine the evidence of the defence whether any portion of the
evidence of the plaintiff could be misplaced. In her evidence the defendant said that she bought the land in
dispute, plot A, in 1949 from Ashia Mills, and that the deed of conveyance was executed for her in her
former married name, Mrs Ankrah, and she then had a building plan made for her by one Lamptey of the
town engineer's office. She said she used the proceeds of her car she sold for £400 together with moneys
from her own resources to put up the building on the disputed land. Under cross-examination this is what
she said:
“Q You purchased a plot near the house the subject matter of this suit?
A Yes the family dashed me this plot.
Q How many of these plots were in your name?
A I sold this plot which was dashed me to Mrs Vanderpuye. I built my house on the other two plots.
Q In whose name were these documents made?
A The documents were originally in my maiden name.

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Q Then subsequently what happened?
A He tricked me and forced me and changed the documents into his name.
Q So you made another document transferring the documents to him?
A Yes, a year later I had to go with him to one Lamptey to alter the documents into his name.
Q When was the original title deed prepared?
A I cannot remember."
[p.390]
Still under cross-examination she said she was in court when Helena gave evidence that she, the
defendant, caused the plaintiff's name to be put on the deed of conveyance because he had promised to
marry her. While confirming this allegation, she also said the plaintiff changed her name on the document to
his at the Town Planning Office with her authority, and that this was done in 1956.
As I have said earlier in this judgment, Helena Ashia Mills said in her evidence that she and her sister sold
two plots to the defendant for £128 in 1949 and that it took the defendant up to 1951 to finish paying for the
plots, and after payment she executed a conveyance in her favour. It was in cross-examination that she
said the defendant asked her to put the plaintiff's name in the deed because he had promised to marry her.
On the face of this evidence one might say it is credible, but when it is recollected that the defendant said
she completed the building, on the disputed plot of land in 1951, one has to question the veracity of the
witness' evidence. Even so, the fallacy of her evidence is more pronounced and exposed when faced with
the uncontroverted evidence that the plaintiff and the defendant wedded in 1951.
When Lamptey was called to give evidence for the defence (as the first defendant witness) he said in 1954
he prepared a building plan for two-storey building for the defendant and she started putting up her building
with the aid of the plan. Then in 1956 the defendant asked him to change the name on the plan, ie her
name, to that of the plaintiff because she was afraid that in case there happened to be a trade malpractice
the building might be sold, and the change was effected accordingly. He said that about the same time he
saw a building permit which accompanied the plan and that on that permit a change from Dinah Ogbarmey-
Tetteh to Seth Ogbarmey-Tetteh had been made on it. When under cross-examination he was shown the
plan and it was clear there was no amendment of the title, he still insisted he made the amendment, but
admitted, however, that the only amendment on the plan related to a conversion of a single to a double-
storey. He admitted further that he personally did not prepare the plan, but that he instructed a draughtsman
to do it. When exhibit P, the building permit, was shown to him he admitted that it bore the plaintiff's name,
and that it was issued in 1958 and not 1954 or 1956 as he said in examination in-chief. It is clear that this
witness cannot be a witness of truth.
This is what the trial judge said about the witness:
"It is on the strength of the answers he himself gave that I wondered [p.391] how in the circumstances the
defendant was unable to produce the old permit, her original drawings or any other documentary proof of
the facts testified to. On the contrary further answers he gave to questions put to him would support the
plaintiffs version that the plans were made in his name in his own right and the amendment made to actual
drawings but not the title: see exhibit 1. Although this witness has sworn that it was only an amendment to
title that was sought, under cross-examination he admitted he prepared exhibit 1 for the plaintiff. It does not
deal with any such amendment to title but an amendment to the actual drawing, the conversion of the single
storey to a two-storey building."
With respect to the actual construction of the building the trial judge examined the evidence of the parties
and their witnesses who testified they did work on the building. I do not think it is necessary that I do the
same here. In my view, it would be sufficient if I signalled my concurrence with the views of the trial judge
on the witnesses. She said:
"Certainly of the two parties, I have found the plaintiff more reliable than the defendant, which also means
since the land was purchased by the plaintiff who caused the drawings to be made for him in his own name
and he had resources to build, then surely the defendant [I think it was a slip, she meant the plaintiff] was
the person to have procured workmen for the project."

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For the reasons I have given, it is my judgment that the decisions of the trial judge and the Court of Appeal
in favour of the plaintiff in respect of plot A were correct, and accordingly this appeal by the defendant must
be dismissed, and is hereby dismissed.
As to damages since the defendant does not wish to press his ground dealing with damages, the decision
of the Court of Appeal on this is affirmed.
JUDGMENT OF EDWARD WIREDU JSC.
The parties to this suit are husband and wife. They had been married for a period of over 25 years and
sometime in the early 1950's, their original customary marriage was converted to one under the Marriage
Ordinance, Cap 127 (1951 Rev). The title of the case therefore should not deceive anyone into thinking that
it is a matrimonial cause. It is in fact a land case involving title to two plots of land conveniently described in
this proceedings as plots A and B. These plots have at the commencement of the action been developed
with buildings on them.
[p.392]
The plaintiff by his writ of summons issued out of the High Court, Accra on 19 June 1974 claims title to
these two plots of land along with four other reliefs against the defendant. The writ was accompanied with a
21-paragraphed statement of claim. The defendant for her part, put up an adverse claim of title to the same
property and for her part counterclaimed for title and also asked for a perpetual injunction restraining the
plaintiff from interfering with her exclusive possession and ownership of the property.
At the close of the pleadings, the following issues were settled and agreed to as issues for trial:
"(i) Whether the plot referred to in the plaintiff's statement of claim as plot A was purchased and paid for by
the plaintiff and was conveyed to him in his own right; or whether it was paid for by the defendant and is
thus held by the plaintiff, prima facie, as a trustee for the defendant.
(ii) Whether the two-storey dwelling house erected on the said plot and numbered A 299A/4,
Laterbiorkorshie, Accra was financed by the plaintiff or by the defendant.
(iii) Whether the refund of the price of the plot of land referred to as plot B in the plaintiff's statement of claim
was made by the plaintiff or the defendant to the vendor, Mrs Adina A Vanderpuye.
(iv) Whether or not the plaintiff developed the said smaller plot (plot B) for his sole benefit or in pursuance of
any 'family arrangement.'
(v) Whether or not the plaintiff is entitled to the claims indorsed on his writ herein.
(vii) Any other triable issue or issues arising out of the pleadings."
The unusual thing about the trial of this case is that three trial judges were involved in its hearing. The trial
first commenced before Lamptey J (as he then was) on 18 February 1976. He heard evidence of the first
defendant witness who on grounds of ill-health was permitted to testify before the plaintiff and his
witnesses. This witness was the only surviving co-owner of plot A. On 18 February 1976 the evidence of the
plaintiff and his first witness commenced before Lamptey J (as he then was). The record shows that the
matter came before Okai J on 26 February 1983, who took over the case and commenced hearing
evidence of the other witnesses for the plaintiff. On 19 June 1986 the case came before Lutterodt J (as she
then was). The earlier proceedings before Lamptey J [p.393] (as he then was) and Okai J were by consent
adopted for continuation of the trial. Lutterodt J (as she then was) had to continue from then on with the
case for the defence. She heard the case up to a conclusion and delivered judgment on 2 April 1990,
almost about sixteen years from the commencement of the action. The judgment was in favour of the
plaintiff for the reliefs sought on his writ. Dissatisfied with the decision, the defendant appealed to the Court
of Appeal. On 18 July 1991 the Court of Appeal delivered its judgment which affirmed the judgment of the
High Court in favour of the plaintiff in respect of title to plot A. The court however allowed the appeal by the
defendant in respect of plot B on her counterclaim. The court also awarded a reduced damages of ¢10,000
for trespass against the defendant in respect of plot A.
On 17 October 1991 the plaintiff appealed to this court against the decision of the Court of Appeal. Seven
days thereafter, ie on 24 October 1991, the defendant also filed a cross appeal against the judgment of the
Court of Appeal. Her grounds were:
"(i) The plaintiff failed to discharge the burden of proof in support of his claim.

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(ii) That their lordships erred in law and in fact by relying on the weakness of the defendant's case rather
than on the strength of the plaintiff's case at arriving at their decision."
She asked that the decision of the High Court as affirmed by the Court of Appeal that the plaintiff is the
owner of plot A be reversed and a declaration made in her favour.
Before this court, two objections were raised against the propriety of the cross appeal filed by the
defendant. The plaintiff's first complaint was that the defendant's cross appeal was out of time. On the
objections, I have had the advantage of reading beforehand the opinion of my brother Amua-Sekyi JSC and
I indorse his stand on the objections. For my part, I think the commonsense approach to the objection
amply support his disapproval of the objections. For a cross appeal to be filed, notice of an appeal filed
should be given to the party filing the cross appeal. I need no authority to be convinced of the correctness
of his reasons. Our rules of court do not support any of the objections raised and I will only add that the
plaintiff's objections raised have not been substantiated. No time limit within which to file a cross appeal is
provided for in our practice rules. The test therefore is whether the cross appeal has been filed within a
reasonable time after the notice of appeal was "served." The objection is not supported by any provision in
our rules of practice and the objections, in my view, fail for the above reasons.
[p.394]
On the merits of the case, I will first deal with plot B. I have had no hesitation in indorsing the conclusion of
the Court of Appeal in favour of the defendant. The undisputed evidence shows that the legal title to it is still
in the defendant. The evidence brought by the plaintiff to support his claim is unacceptable to prove title.
The undisputed evidence shows that the plot was bought and paid for by the defendant. She later agreed
and sold it to one Mrs Vanderpuye. The latter because of some difficulty she encountered in causing her
title to the land to be registered decided to abrogate the agreement and to ask for a refund of her money
through her mother. At that time, the defendant was in London so the obvious person Mrs Vanderpuye's
mother had to approach was the plaintiff who on his own admission agreed and refunded the purchase
money of £70 to the mother of Mrs Vanderpuye. The ordinary and obvious intention of Mrs Vanderpuye and
the surrounding circumstances show an intention on her part to restore the status quo. The plaintiff paid no
consideration for claiming to have acquired any interest in the land. He did nothing more beyond refunding
the actual purchase money. The evidence shows that he acquired no interest at all in the land. No receipt
was produced to evidence a new transaction between him and Mrs Vanderpuye. He cannot justify his claim
to plot B under any law recognised by our courts either customary or otherwise. He cannot come under the
Conveyancing Decree, 1975 (NRCD 175) which requires a deed of conveyance. He cannot come under the
customary law which requires wide publicity in the form of witnesses. He called no witness to support his
claims. He failed to make out his case and the High Court in my respective view was wrong in decreeing
title in his favour.
On plot A, by paragraph (1) of his statement of claim, the plaintiff pleaded as follows:
"In December 1955, whilst on transfer to Tamale, the plaintiff learnt through his then mother-in-law Madam
Sophia Tackie, that plots of land were being sold at Laterbiorkorshie at £64 per plot and having indicated his
intention of purchasing two of the said plots, paid an initial deposit to Emma Mills and Helena Mills through
his said mother-in-law."
In support of the above, he testified as follows:
"In early 1955 I was transferred to Tamale. I was accompanied by my wife, the defendant. In early 1956
whilst at Tamale, the defendant came down to Accra. She wrote to me from Accra. I remitted an amount of
£30 to her to secure two plots. When I came [p.395] down to Accra in late 1956, I saw the vendors. By the
end of 1957 I had paid to them through their agent, the late Mr Mills, a total sum of £128 for the two plots. I
shall tender my document later. The vendors were Emma Mills and Helena Mills of Accra. A deed was
executed and a receipt was issued. I started developing the plot early 1958."
His evidence above is in clear conflict with his pleadings. The law as I understand it is that a party is bound
by his pleadings and the acceptance in favour of a party of a case which is inconsistent with what he had
put in and by his evidence is wrong and unjustified in law: see R T Briscoe (Ghana) Ltd v Preko [1964] GLR
322, SC.
There was no amendment to the pleadings. The plaintiff could also not have justifiably been held to have
proved his case on his failure to call evidence by his grantor. This will mean that he was unable to prove the
root of his title. In an action for a declaration of title, a plaintiff who fails to establish the root of his title must
fail because such default is fatal to his case. In the instant case, the defendant called the only surviving co-

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owner of the disputed land. The evidence of this witness was crucial as to who in fact purchased the plot.
Her evidence was clear that the land was negotiated and paid for by the defendant. No independent
counter evidence was provided by the plaintiff. In effect, her evidence could not be tested with any rival
evidence than the self-serving evidence of the plaintiff himself which even as was tendered, contradicted his
own pleadings.
Lutterodt J (as she then was) who did not have the advantage of seeing and observing, this witness
rejected her evidence on the basis that the witness was a relation of the defendant and that the reason she
gave to support the claim by the defendant that she directed her to put the plaintiff's name in the deed of
conveyance could not be true. The reasons, in my respectful view, led to a faulty evaluation of the evidence.
The defendant and the plaintiff are somehow also related though distantly, so also is the relationship
between the witness and the defendant. No reason was ever suggested why she should come and tell a lie
in favour of the defendant. She had nothing to gain by telling such a lie to perjure herself. She had no
inheritable interest in the defendant's property. The learned trial judge, Lutterodt J (as she then was), in my
view, not having had the advantage of seeing and observing the witnesses in the box did not enjoy the
privilege of the discretion which protects a trial judge in her findings of primary facts. In fact, she is in no
better position than any of the appellate judges in determining the credibility or otherwise of the [p.396]
evidence of the only surviving eye-witness in her account of what in fact actually took place resulting in the
execution of exhibit A on which the plaintiff was relying.
The law on this is clear that where the evidence of a witness is material to determine an issue or where
such evidence is vital to settling the issue one way or the other, then the evidence of such a person should
or ought to be accepted unless it is apparent on the face of the record that it is not true: see Atadi v
Ladzekpo [1981] GLR 218, CA and Nkaeguo v Kunadu [1974] 2 GLR 150. Nothing appears apparent on
the face of the record to me which can justify the rejection of the vendor's evidence. The Court of Appeal
glossed over this very vital point of proof and the privilege enjoyed by trial judges with regard to issues
involving the resolution of primary findings of facts. The plaintiff failed on the facts of this case to show that
he bought and paid for plot A.
The rest of the evidence provided by the plaintiff was ineffective to advance his case to justify any judgment
in his favour. The defendant on the other hand provided evidence as to the acquisition, supported by her
vendor. She brought evidence to show how she came by the plan of the building, she brought evidence of
masons engaged on the job, electricians, plumbers etc. She brought evidence to show her involvement in a
police case in respect of a complaint pertaining to title to the land. She brought evidence to show her ability
to put up the construction of the building financially by tendering evidence of her trading activities. In fact,
she was described as a hard working woman, "a jack of all trades." She testified as to how she made
preparation for the opening of the house and laid her dead mother in state in the house. There was
evidence which was not seriously challenged, that she acquired two houses at Kaneshie through the State
Housing Corporation where she once worked. One of these two houses was taken in the name of the
plaintiff. She also bought a car in the name of the plaintiff for their joint use. The plaintiff on the other hand
by his own evidence showed that he could not have put up the building without some financial help from
elsewhere. He claimed to have obtained a loan from Ghana Commercial Bank to complete the house. The
evidence however shows that this same loan was secured with the disputed property. I am yet to be
convinced that banks take as security for granting loans, uncompleted buildings. The evidence of the
defendant cuts across this: that even at the time the loan was taken, the construction of the building had
been completed. Her side of the story in respect of this loan is more consistent with the normal practice of
banks taking completed buildings as security for loans granted. On the balance of probability, the
defendant's case is overwhelmingly more credible than the plaintiff's and [p.397] ought to have been
preferred to that of the plaintiff.
In my judgment, therefore, the plaintiff in whose name the legal title to the disputed property stands, holds
same in trust for the defendant who has established by the evidence brought by her and on her behalf that
she is the real beneficial owner of plot A and is entitled to request the plaintiff to convey legal title to her:
see the case of Harrison v Gray, Jnr [1979] GLR 330. The defendant therefore succeeds on her cross
appeal as regards title to plot A.
This is an appeal by the plaintiff-respondent (hereinafter called the plaintiff) against part of the judgment of
the Court of Appeal. The defendant-appellant (hereinafter referred to as the defendant) also filed a cross
appeal against part of the same judgment.

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The brief facts of this case are that the plaintiff met the defendant in 1946 while he was a student at Accra
Academy and she was a successful trader. In furtherance of his education, she provided financial support
for him, and after his education also assisted him in finding various jobs. In 1951 he wedded her under the
Marriage Ordinance, Cap 127 (1951 Rev) and they cohabited in Accra until their transfer to Tamale in about
1953. They returned to Accra in 1956.
According to the plaintiff while in Tamale his wife informed him about land being sold by the Mills sisters,
owners of a large tract of land in Accra. He said his wife's mother, deceased, arranged two plots for him to
buy and he paid an initial amount of £30 through her and the rest by instalments to one Mr Mills, also
deceased, till 1956 when he finished paying the total sum of £128. He did not produce any receipts from
either Mr Mills or the vendors. He said in 1957 a deed of assignment was prepared and executed by him
and the Mills sisters, Helena Ashia Mills and Emma Mills, vendors of the land. He claimed this land
(hereinafter referred to as plot A) as his property by purchase and tendered the deed, exhibit A, in support
of his claim. He called no witnesses, his mother-in-law was dead, then, and so was Mr Mills, however one
of the ladies who he claimed sold the land to him was alive, ie Helena Ashia Mills, but she was not called by
him, instead the defendant called her as the first defendant witness. I shall refer later in detail to the
evidence of this lady, the first defendant witness, which I consider important to this case.
In respect of another plot of land adjoining plot A (hereinafter referred to as plot B), the plaintiff said that
originally his wife was the owner of this land having obtained it from the Mills sisters and on which she held
the proper documents. He said that she sold plot B to one Mrs Adina [p.398] Vanderpuye for £70 but in
1961 while she was away in the UK Mrs Vanderpuye's mother approached him and told him that her
daughter wanted a refund of the £70 from the defendant since she was no longer interested in the plot.
According to the plaintiff, he "refunded" the said sum to Mrs Vanderpuye's mother and later he reported this
to the defendant who congratulated him for doing so. There is no evidence that there was any sale of plot B
to him by Mrs Vanderpuye, and even though he had no documents on this land he claims that he became
the owner of plot B when he refunded the £70 on behalf of his wife.
The plaintiff said further that he used his own money and a loan from the Ghana Commercial Bank in 1963
to put up the building on plot A. The evidence however was that in 1963 the said building had been
completed and a certificate of habitation had been issued. He also claim that he used his money and a
further loan from the Ghana Commercial Bank to put up an outhouse on plot B in 1970 and he tendered in
evidence building permits in his name in support of his case.
He called two witnesses, the first plaintiff witness who said that in 1960 he connected a pipe from the mains
to plot A and the second plaintiff witness who said he did the electrical work on plot B in 1970. This was the
case for the plaintiff, and all the evidence he produced in support of his claim of ownership to both plots and
the buildings thereon.
The defendant counterclaimed for both plots and gave evidence that she bought plot A from Helena Ashia
Mills and her deceased sister in 1949 and paid by instalments for it until she completed payment of the
purchase price, and in 1957 she requested that the documents be changed into the name of the plaintiff.
That she also got the building plans changed into his name and in 1958 she started putting up the building
on plot A even before the permit was issued. She claimed she had the means to build the house, being a
successful trader well before 1946, and that she used her savings and proceeds from a sale of a car she
bought in the name of the plaintiff in 1955. She also called witnesses who were present at the cutting of the
sod at the start of construction works.
She called six witnesses in support of her claims, including the first defendant witness, Helena Ashia Mills,
her vendor. The first defendant witness said in her evidence that she sold some land including plot A to the
defendant who paid the purchase money to her personally in instalments. That in 1957 the defendant came
to her accompanied by the plaintiff and requested her to change the documents on plot A into the name of
the plaintiff because the latter had promised to wed her and had in fact wedded her. The first defendant
witness did not specify dates of either the promise to marry or the date of the marriage, in fact she said she
[p.399] did not know these dates, she did not also say that the promise to marry was made in 1957. This is
what she said in cross-examination:
"Q When did you give the first document to the defendant?
A I made the first document in the name of the plaintiff because he came with the defendant and the
defendant said I should use the plaintiff's name in the document. This was in 1957.
Q Did you say the defendant made the final payment to you in 1951?

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A The defendant started paying for it in 1949 and completed paying in 1951.
Q Look at exhibit A. This is the document you executed in favour of the plaintiff?
A That is correct. I did it on the instruction of the defendant because the plaintiff had promised to marry and
wed the defendant.
Q By exhibit A you granted the land in dispute to the plaintiff?
A That is not correct. The defendant was present and it was because the defendant wished it done that
way because the plaintiff had promised to wed the defendant.
Q Your story is not true.
A I have told the truth. The plaintiff did wed the defendant as promised.
Q Do you know that the plaintiff and defendant got married in 1951 and not 1957?
A I do not know."
A reasonable interpretation of this evidence is that the defendant bought and paid for the plot from the first
defendant witness, the vendor as between 1945 and 1951. The defendant in 1957 requested the vendor to
prepare the document in the plaintiff's name because according to the defendant, the plaintiff at a time
earlier than 1957 promised to wed and did in fact do so. She stated positively that it was to the defendant
that she sold plot A and it was the defendant who paid the purchase price. The first defendant witness'
evidence is relevant and so important in resolving the dispute as to ownership of the plot and in my opinion
is the best available evidence.
The defendant called witnesses to prove how she built the house on plot A. These witnesses included the
one who prepared the plans in the name of the plaintiff on the instruction of the defendant, the plumber and
the electrician who worked on the building. and witnesses who attended the house warming party organised
by the defendant after the completion [p.400] of the house in 1963. She stated that she financed the
construction with her own savings and proceeds of the sale of her car purchased in the name of the plaintiff.
In her cross-examination it came out that not only had she once purchased a car in her husband's name but
she had also in 1962 purchased an estate house No 1371 in his name. These facts were not denied by the
plaintiff.
In respect of plot B the defendant stated that she acquired the plot from the Mills sisters, that she sold it to
Mrs Vanderpuye for £70 but in 1961 when she was out of Ghana, the plaintiff on her behalf refunded the
£70 to the mother of Mrs Vanderpuye, who was no longer interested in the plot. That the plot reverted to her
and denied the plaintiff's claim as to ownership.
Upon these facts the plaintiff sued for a declaration of title to plot A and plot B and the building thereon as
well as other reliefs, and the defendant counterclaimed for title to both plots. The issues to be tried on the
summons for directions were:
"(i) Whether the plot referred to in the plaintiff’s statement of claim as plot A was purchased and paid for by
the plaintiff and was conveyed to him in his own right or whether it was paid for by the defendant and is thus
held by him prima facie as a trustee for the defendant.
(ii) Whether the two-storey dwelling house erected on the said plot and numbered A 299A/4
Laterbiorkorshie, Accra was financed by the plaintiff or the defendant.
(iii) Whether the refund of the price of the plot of land referred to as plot B in the plaintiff's statement of claim
was made by the plaintiff or the defendant to the vendor Mrs Adina A Vanderpuye.
(iv) Whether or not the plaintiff developed the smaller plot (plot B) for his sole benefit or in pursuance of any
family arrangement.
(v) Whether or not the plaintiff is entitled to the claim indorsed on his writ herein.
(vi) Whether or not the defendant is entitled to the claims specified in her counterclaim herein.
(vii) Any other triable issue or issues arising out of the pleadings."
The trial of the case started before Okai J at the High Court up to the close of the plaintiff's case and then it
was transferred to Lutterodt J (as she then was). Both parties agreed that the proceedings so far, be
adopted and the hearing continued before Lutterodt J (as she then was). After [p.401] considering and
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evaluating the evidence she gave judgment for the plaintiff and declared him owner of both plots A and B
and granted other reliefs. The defendant appealed to the Court of Appeal and that court affirmed the
decision of the trial court in respect of plot A, but gave judgment for the defendant in respect of plot B,
declaring her the owner thereof. Whereupon the plaintiff appealed in respect of the decision on plot B and
the defendant also cross appealed in respect of plot A to this court.
The plaintiff's main ground of appeal is that the Court of Appeal erred in the decision in respect of plot B
when there was no evidence to support such findings. Other grounds regarding the issue of trespass were
filed but I would not deal with them as I think my conclusion on the main ground would resolve these other
matters.
The defendant also cross appealed against the decision in respect of plot A which affirmed the High Court's
decision declaring the plaintiff owner of that plot. Her grounds of appeal are:
"(i) That the plaintiff failed to discharge the burden of proof in support of his claim.
(ii) That their lordships erred in law and in fact by relying on the weakness of the defendant's case rather
than the strength of the plaintiff's case at arriving at their decision."
She sought a declaration that the decision of the trial judge as affirmed by the Court of Appeal, that the
plaintiff is the owner of plot A, be reversed for a declaration that the defendant rather is the owner.
The plaintiff in his statement of case argued two preliminary issues, namely that:
"(a) The defendant having lost twice, cannot cross appeal as of right in respect of plot A except with leave
of the Court of Appeal or the Supreme Court under PNDCL 191.
(b) The defendant's cross appeal is out of time as it was filed without having obtained extension of time,
hence the cross appeal was incompetent and not properly before this court."
The plaintiff's argument that the defendant lost twice in this case cannot be right. The defendant lost in the
High Court but her appeal was allowed in respect of plot B and consequently the plaintiff also became a
loser in the appeal albeit of part of the judgment. In these circumstances she cannot be said to have lost
twice in a row and it is my view that the Courts Amendment Law, 1987 (PNDCL 191) is not applicable to her
case.
The second objection is that the defendant's cross appeal was filed out [p.402] of time, implying that rule 8
of the Supreme Court Rules, 1970 (CI 13) specifying time limits for filing of appeals applies also to cross
appeals. This argument is without merit. Rule 9 of CI 13 states that:
A party becomes a respondent in an appeal when the appellant files his appeal and when such a party is
directly affected by the appeal. Until then he cannot be referred to as the respondent. Rule 9 of CI 13 gives
the right to the respondent to file a cross appeal if so desired and states in subrule (2) that rule 6 would then
apply to the filing of the cross appeal. Rule 8 of CI 13 which deals with time limits for filing cross appeals
was not applicable, and since no time limit was provided for filing cross appeals, it is clearly reasonable to
say that a cross appeal can be filed at any time after the filing of an appeal. The plaintiff's contention that
the defendant's cross appeal is incompetent as having been filed out of time is therefore misconceived, and
in my view, her appeal is properly before us.
I will now proceed to deal with the plaintiff’s appeal regarding plot B. It is trite law that a person who claims
land must discharge the burden of proving his title and the standard of proof is on a preponderance of
credible evidence. What then was the evidence on record establishing plaintiff's title? The plaintiff said in
refunding the amount of £70 on behalf of his absent wife, he became the owner of plot B. He had no title
deeds and was not able to establish that Mrs Vanderpuye agreed to sell and did sell plot B to him. In his
own words he merely refunded the £70 on behalf of his wife. This does not in law make him the owner of
the land by purchase. Apart from his own arid evidence, he produced a building plan in his name and said
he built an outhouse on the plot. The defendant denies the plaintiff's claim of ownership and said that after
the refund of the money the land reverted to her and the title deeds made between herself and Mrs
Vanderpuye were returned to her. The Court of Appeal found thus:
"If Mrs Vanderpuye intended to sell the land to him she would have executed a deed in his favour, but in this
case she did not, and from the relationship existing between the parties the reasonable inference is that he

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refunded it on behalf of the defendant because she was abroad. The plaintiff therefore held plot B and
whatever stands on it in trust for the defendant."
[p.403]
I entirely indorse this finding except for the last line. On the evidence, title to plot B never shifted to the
plaintiff and since the defendant at all times remained the beneficial owner of it, the plaintiff cannot be said
to have held plot B in trust for the defendant.
It was wrong for the Court of Appeal to add to their finding that the plaintiff held plot B and the building
thereon in trust for the defendant. A question of trust did not arise, the £70 was rather an advancement by
husband to wife. To the extent I have indicated, the Court of Appeal was right in the declaration that plot B
and the building thereon belonged to the defendant. The plaintiff's appeal against this finding therefore fails.
I will now consider the defendant's cross appeal regarding plot A. Her grounds are that:
"(1) The plaintiff failed to discharge the burden of proof in support of his claim.
(2) Their lordships erred in law and in fact by relying on the weakness of the defendant's case rather than
on the plaintiff's case, at arriving at their decision."
I would like to state straightaway that I am convinced that these grounds are justified having regard to the
evidence on record. It is settled law that when the burden of proof is cast upon a plaintiff he must prove his
case and win on the strength of the case presented and not on the weakness of the defendant's case, as
established by Kodilinye v Odu (1935) 2 WACA 336. In the case of Asare v Appau II [1984-86] 1 GLR 599,
CA, it was held as stated in the headnote that:
". . . the common run of land suits in the courts had, as the plaintiff, a person who claimed title to land, suing
as the defendant, a person in possession of the land. Such a defendant needed not, and usually did not,
seek any relief in the proceedings, being content with things as they were. In that event, the plaintiff must
rely on the strength of his own case, ie prove his title and not rely on the weakness of his opponent’s, ie
lack of title in the defendant, so that if the plaintiff failed to prove that he was entitled to have a declaration
made of his title to the land, the action ought to be dismissed, leaving the defendant in possession of the
land."
In another case of Duagbor v Akyea-Djamson [1984-86] 1 GLR 697 at 702, CA Abban JA (as he then was)
stated this principle quite succinctly thus:
[p.404]
"The plaintiff having sought a declaration of title to the land in dispute, could only succeed upon the strengh
of his case and not on the weakness of the co-defendant’s case. It is true that the co-defendant also
counterclaimed for a declaration of title but that is beside the point. For the co-defendant’s counterclaim
could not in any way lighten the weight of the burden on the plaintiff to establish his title to the land by
preponderance of admissible evidence. The defence having denied the plaintiff’s title and then
counterclaimed for title, a burden was placed on the plaintiff to prove his title and satisfactorily or else he
must fail: see Nkyi XI v Kumah [1959] GLR 281, CA . . .”
It was similarly held in Banga v Djanie [1989-90] 1 GLR 510, CA as stated in the headnote that:
". . . the plaintiff in a claim for declaration of title to land should win on the strength of her own case which
must not be propped up by weaknesses in the case of the defence. Since the plaintiff led no evidence of
root of title, possession and user, she could not rely on acts which at best could only constitute the
weaknesses of the defence. Kodilinye v Odu ( 1935) 2 WACA 336 applied.
Per Francois JSC. The principle [that the plaintiff should win on the strength of his case] has for several
decades been the fulcrum for determination of ownership in land matters in our courts. In recent times a
dangerous trend has been erupting of equating this burden with the normal burden in civil cases of
measuring success by a balance of probabilities. In my view the requirement of a higher burden of proof in
land matters cannot be whittled away by glosses on the principle. This quality of proof has sometimes even
been equated with proof in criminal matters, ie 'proof beyond reasonable doubt.' . . . Suffice it to emphasise
that a high measure of proof is necessary to sustain victory in a plaintiff seeking a declaration of title to land.
It seems to me that the authorities require a plaintiff to lead positive evidence to merit victory, and not
merely to rely on the shortcomings of a defendant in the discharge of this obligation . . ."

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I entirely agree with the learned judge in the above dictum. In this case the issues to be tried according to
the summons for directions are briefly, who purchased plot A and paid for it, and whether plot A was [p.405]
conveyed to the plaintiff in his own right or whether it was paid for by the defendant and is thus held by the
plaintiff as a trustee for the defendant.
The plaintiff did not call the first defendant witness yet he claimed he bought plot A from her, therefore her
evidence is relevant and important to the success of his case. The first defendant witness however denied
selling the land to the plaintiff but said she sold it to the defendant rather, and that the document on the plot
was only prepared in the name of the plaintiff on the instruction of the defendant. The first defendant
witness was cross-examined at length, no doubt in an attempt to discredit her, but in my opinion, her
evidence on this issue was not shaken.
It appears to me that her vital evidence at once destroyed the plaintiff's case. But quite surprisingly the trial
judge who did not herself see or hear the first defendant witness but relied on the record of her evidence,
discredited her as a witness of truth and disbelieved her, giving judgment for the plaintiff. If a vendor of land
to a plaintiff is not believed it is difficult to appreciate how he can be said to have proved his title. The main
reason given by the trial judge for disbelieving the first defendant witness is that since the plaintiff wedded
the defendant under the Marriage Ordinance, Cap 127 (1951 Rev) in 1951 it was "a pure invention" for the
first defendant witness to say that she was asked to prepare the document, exhibit A, in 1957 because
according to the defendant the plaintiff "promised to wed and did wed her." In 1951 the plaintiff had already
wedded the defendant, and the first defendant witness did not say that the promise to wed was made in
1957 therefore the finding of the trial judge that "the parties were wedded under the Ordinance as far back
as 1951. Therefore how could the plaintiff in the presence of the defendant have used this promise of
wedding to enable him have things his way?" was not warranted by the evidence and was an unreasonable
inference from the facts.
Normally a finding of fact by a trial court will not be disturbed on appeal except in certain circumstances. In
Nkansah v Adjebeng [1961] GLR 465 it was held as stated in the headnote:
“ . . . an appellate court is not entitled to set aside findings of fact made by a trial court unless it could show
from evidence on the record that the findings are not warranted or are not reasonable inferences from the
facts established by the evidence."
Also in Nkrumah v Ataa [1972] 2 GLR 13 it was held as stated in the headnote in holding (5), that:
"An appellate court is not entitled to reverse findings of fact [p.406] made by a trial court unless those
findings are not supported by the evidence. Similarly where the evaluation of the evidence depends upon
the credibility of witnesses, it is normally the trial court which saw and heard the witnesses which should
decide which of them to believe. It is only where it is shown that the trial court in assessing the credibility of
a witness, omitted to consider the evidence which discredits him that the appellate court will be bound to
interfere."
In this case the trial court did not see the first defendant witness and we are in the same position as that
court to consider her credibility from the evidence on record to see if the trial judge's findings were
erroneous. In any case, the main issue for determination was whether the plaintiff purchased the land or
whether it was the defendant who paid the purchase price and asked that the plaintiff's name be used in
preparing the document, exhibit A. In other words, was the plaintiff merely holding it in trust for the
defendant?
The reason why the plaintiff's name was used in the document is not a material issue for determination nor
can it be misinterpreted the way it was done by the trial judge to discredit the first defendant witness. Her
evidence clearly showed that the defendant was the beneficial owner of plot A and that the plaintiff held the
land in trust for his wife.
In the case of Mansah v Asamoah [1975] 1 GLR 225, CA it was held in holding (3) of the headnote that:
“ . . . Consequently an appellate court was not inhibited from disturbing the concurrent findings of the two
lower courts and adjudicating the issues according to the evidence. The learned High Court judge and the
district magistrate drew wrong legal inferences from facts which were either admitted or not in controversy.
The appellate court was therefore in as good a position as the trial court to evaluate the evidence and form
its own independent opinion while at the same time giving weight to the opinion of the inferior courts."
It is my view that the trial judge as well as the Court of Appeal erred in rejecting the evidence of the first
defendant witness as not credible. I find that the first defendant witness is a witness of truth. Consequently,

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it is my opinion that the plaintiff failed to establish his claim of ownership of plot A by purchase from the first
defendant witness, Helena Ashia Mills.
As to the issue of who built the house on plot A, the defendant [p.407] produced overwhelming evidence
that she financed the project and procured builders, etc to build same. The trial judge's finding:
"that it was the plaintiff who financed the building of the house because he was gainfully employed, but that
the defendant was even though she was a successful trader had exaggerated the extent of her wealth and
had failed to prove her bank balance"
is a wrong and erroneous finding in law and against the weight of the evidence on the record.
The defendant claimed she financed the project from her savings and the proceeds of the sale of her car,
whereas the plaintiff said he financed the project from his own resources and a loan from the Ghana
Commercial Bank which loan was shown to have been obtained in 1963 after the actual completion of the
house.
On the issue of who financed the building on plot A, the plaintiff failed to discharge the burden of proof in
support of his claim, instead on the preponderance of evidence it was the defendant who financed and
actually built the house. Furthermore, no burden lay on her to prove her bank balance. The plaintiff is
expected to win on the strength of his case not on the weakness of the defendant's case. On the evidence,
it is my opinion that the plaintiff held plot A in trust for the defendant.
The principle of law as stated by Eyre CB in the case of Dyer v Dyer (1788) Cox Eq Cas 292 at 93, reported
in [1775-1802] All ER Rep 205 at 206 is that:
"The clear result of all the cases, without a single exception, is that the trust of a legal estate, whether
freehold, copyhold, or leasehold, whether taken in the names of the purchasers and others jointly, or in the
name of others without that of the purchaser, whether in one name or several, and whether jointly or
successively, results to the man who advances the purchase-money."
Green v Carlill (1877) 4 ChD 882, is also authority that where a wife hands over property belonging to her to
her husband, without any intention of making a gift of it to him, he is a trustee of it for her. In Mercier v
Mercier [1903] 2 Ch 98, CA, the defendant lady in 1883 married Colonel Mercier. They kept a joint banking
account almost entirely composed of the wife's income, and both the husband and the wife drew on this
account. In 1891 they bought some land which was paid for from out of the joint account and was conveyed
to the husband. He died intestate in 1901 and his heir-at-law claimed the land. The court held (affirming the
decision of the lower court), that Mrs Mercier had not made a gift of the [p.408] purchase-money to her
husband, and that the land belonged to her. As was observed per Romer and Cozens-Hardy LJJ:
"There is no distinction in principle between the presumption of a resulting trust in favour of the wife which
arises when her income had been applied to a purchase in her husband's name and that which arises when
the payment has been made out of her capital.”
A number of local authorities have applied this principle, namely Quartey v Armar [1971] 2 GLR 231;
Ussher v Darko [1977] 1 GLR 476, CA and Harrison v Gray, Jnr [1979] GLR 330.
In my view, the findings of fact as to the ownership of plot A by the trial judge is not supported by the
evidence on record nor did the plaintiff succeed in discharging the burden of proof in support of his claim as
required by law. The Court of Appeal stated in the record of proceedings that:
“The trial judge was therefore right in declaring the plaintiff owner of plot A. Where a trial judge makes a
finding of fact supported by the evidence on record, the appellate tribunal will not disturb it unless the judge
took into consideration irrelevant matters. The said inconsistency on the part of the defendant provided
sufficient evidence of which the trial judge arrived at her conclusion
Clearly the Court of Appeal erred in affirming the decision of trial court in respect of plot A for the above
quoted reason. It was wrong for both courts to rely on the weakness of the defendant's case rather than on
the strength of the plaintiff's case to give him judgment.
For these reasons the appeal of the plaintiff in respect of plot B should be dismissed and the defendant's
appeal in respect of plot A be allowed. In the result, both plots belong to the defendant together with the
buildings thereon.

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The facts revealed in this appeal constitute an epitome of a social phenomenon which has happened in the
country for a long time. The scenario is familiar. A young man—usually a student or a small businessman—
forms a liaison with an older working woman or business woman and he is enabled by her financial support
to advance himself in life. The success of the student or young businessman reflects on the woman and
improves the social standing of both of them. Seth and Dinah Ogbarmey-Tetteh were cast in this mould. In
their case [p.409] the omens were good. On the evidence they were paternal relatives. Again, earlier in their
association, the two celebrated an Ordinance Marriage so that just before the present litigation broke out
Dinah's solicitors in reply to a letter written by Seth's solicitors about the ownership of the house in dispute
—No A299A/4, Laterbiorkorshie, Accra were able on her instructions to write concerning the marriage that
Dinah: “in an erroneous belief that marriages are made in heaven and are for eternity, without seeking legal
advice, had her plots conveyed to her husband [Seth]." This letter was written and dated 5 February 1974.
The claims to the houses in dispute were not the only surprises which befell Dinah. For in evidence before
Okai J on 6 February 1986 Seth was able to depose under oath that Dinah "came back to Ghana in
February 1974. She came to learn that the marriage had been dissolved." In her absence in London, Seth
had obtained a divorce from Dinah without Dinah's knowledge. The battle lines were drawn and Seth on 19
June 1974 commenced the present action against Dinah.
In the present opinion, Seth will be referred to as the plaintiff and Dinah as the defendant. I have had the
pleasure of reading the lead judgment and I am in full agreement with the evaluation of the evidence and
the authorities bearing on the evidence. I am also in full agreement with the conclusions in that judgment. I
however wish to express myself briefly on the points raised in the statement of case of both parties and
other matters connected therewith.
The judgment of the High Court was given in favour of the plaintiff on 12 April 1990. By that judgment, the
plaintiff was adjudged the absolute owner of two plots designated as plot A and plot B. Being aggrieved and
dissatisfied with the judgment aforesaid, the defendant appealed to the Court of Appeal. Their lordships in
an unanimous judgment gave plot A to the plaintiff and plot B to the defendant. This second judgment was
delivered on 18 July 1991. There, the matter rested and it would appear that the defendant would have
been satisfied with the judgment of their lordships in the Court of Appeal granting her the smaller plot B
together with the outhouse which on the evidence straddled both plots A and B. How the defendant was
going to assert title to the outhouse their lordships did not say. Be that as it may, on 17 October 1991—a
day before the expiration of the date within which the plaintiff could exercise his undoubted right of appeal—
by a design to upstage Shakespeare’s Shylock, the plaintiff lodged a notice of appeal to this court. In his
notice of appeal, the plaintiff sought the following reliefs:
(1) That the decision of the trial judge that the plaintiff was the owner of plot B together with the building
thereon be restored.
[p.410]
(2) That the damages for trespass in the sum of ¢100,000 awarded by the trial judge to the plaintiff be
restored.
(3) That the costs incurred by the plaintiff in the Court of Appeal be awarded by your lordships.
(4) That costs occasioned to the plaintiff in the appeal be awarded by your lordships.
Promptly and within seven days of the lodgment of the appellant's appeal—that is on 24 October 1991—the
defendant cross appealed. The defendant also sought the following reliefs:
(i) That the decision of the trial judge as affirmed by the Court of Appeal that the plaintiff is the owner of plot
A be reversed.
(ii) A declaration that the defendant is the owner of plot A.
Thus by the appeal and the cross appeal the whole litigation which began on 19 June 1974 had been
recommenced before us. Before us the plaintiff has raised two points of law against the defendant and
contends that:
“(1) The defendant having lost twice cannot cross appeal as of right in respect of plot A except with the
leave of the Court of Appeal or the Supreme Court: see PNDCL 191.
(ii) The defendant's cross appeal is out of time as it was filed without having obtained extension of time."

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Upon these two grounds of law, the plaintiff urges this court to dismiss the cross appeal "as incompetent
and not properly before the court."
With the greatest respect to counsel for the plaintiff, I am unable to accede to his prayer. The rule of this
court governing cross appeals is rule 9 of the Supreme Court Rules, 1970 (CI 13) and it states:
"(1) A respondent may give notice by way of cross appeal.
Rule 6 of CI 13 to which rule 9 of CI 13 refers deals with the form and content of a notice of appeal. The
time within which an appeal may be lodged to this court is governed by rule 8 of CI 13 which is not referred
to in rule 9 of CI 13. Rule 9 (2) of CI 13 only says that the provisions of rule 6 of CI 13 shall apply mutatis
mutandis to the notice of a cross appeal. In ordinary English, all it means is that the provisions of the rule
shall be adapted as nearly as possible to suit the purposes for which the cross appeal is lodged. Then
again rule 9 (1) of CI 13 speaks of a "respondent." By rule 70 of CI 13, a respondent is defined as: "(a) in a
Civil Appeal any party directly affected by the appeal other than the appellant."
[p.411]
In his notice of appeal, the plaintiff states quite clearly that the person directly affected by his appeal is
Dinah Ogbarmey-Tetteh—the defendant. These two points of law fail and they are dismissed as wholly
unmeritorious.
I have already expressed my concurrence with the conclusions arrived at in the lead judgment. The
plaintiff's appeal with respect to plot B must fail. In the plaintiff's own evidence in-chief, he said:
"The vendors gave the plot to the defendant. The defendant sold the plot to one Mrs Adina Vanderpuye for
£70. Mrs Vanderpuye left for America. She is residing in New York. On my return from UK in early 1961, the
mother of Mrs Vanderpuye came and said she wanted a refund of the money she gave to the defendant
and that her daughter was no longer interested in that plot as she is residing abroad. At that time, the
defendant was abroad. I refunded the amount of £70 and when the defendant came back from UK I told her
of the refund."
The plaintiff contends and would like this court to believe that when he used the expression "refund" what
he really meant was that he bought the plot. That argument to me sounds hollow. I do not think that if his
assertion were true, it would take an extra act of bravery for a husband to tell his wife that he had bought
the plot. Instead, he says he meekly told the defendant, his wife, that he had refunded the money. The plain
truth of the matter is that the mother of Mrs Vanderpuye had no instructions to sell the property. In common,
customary practice, when the purchaser does not any longer need the goods or property he returns the
goods or property to the vendor and collects his money back—a refund. This accounts for the use of the
expression "refund" by both the mother of Mrs Vanderpuye and the plaintiff. It was obvious that the idea of a
bargain and sale was not contemplated. The plaintiff’s first ground of appeal therefore fails and with it the
other grounds of appeal contained in his notice of appeal.
The matters raised in the cross appeal have been dealt with comprehensively in the lead judgment and
other opinions offered by my learned and respected sister and brothers. It has been suggested that this
court should be careful not to disturb the findings of fact made by the trial judge. The argument is based
primarily on section 12 of the Evidence Decree, 1975 (NRCD 323) which requires that proof must be by a
preponderance of probabilities. That section defines "preponderance of probabilities" as denoting "a certain
degree of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of
[p.412] a fact is more probable than its non-existence." In my view, such a test presupposes that the trier of
fact has seen and heard all the witnesses and observed their demeanour. For it must be admitted that even
though demeanour per se is an uncertain guide, its advantage arises where the scales may be evenly
balanced and it becomes necessary to tilt it in order that the ends of justice may be attained.
The situation is not so in this appeal. The learned High Court judge, the trier of fact, confessed thus: “The
judgment therefore is based on the previous proceedings in the adopted proceedings, and the evidence of
the first defendant witness contained in exhibit 1 as well as the evidence given before me." Section 12 of
NRCD 323 will not in the circumstances apply to the matters raised in the appeal and this court, and indeed
the Court of Appeal is entitled to review the evidence and come to its own conclusions as are warranted by
law.
In the statement of claim filed on 19 June 1974 the plaintiff pleaded in part as follows:

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"(3) By the first week in August 1957, the plaintiff had paid the said purchase money amounting to £128 in
full and by a conveyance dated 8 August 1957, the said piece of land situate at Laterbiokorshie aforesaid
comprising an approximate area of 0.315 of an acre and more particularly described in the said conveyance
was conveyed by the said Emma Mills to the plaintiff absolutely and forever.
(4) The plaintiff subsequently had the said conveyance stamped and registered at the Deeds Registry [as
the Lands Registry was then known] as DR No 2212/1957. The said piece of land is hereafter referred to as
plot A."
The defendant in her statement of defence filed on 18 October 1974 responded to the plaintiff's averments
in the following manner:
“(2) Save that the plaintiff paid no money whatever, paragraphs (3) and (4) of the statement of claim are
admitted. The purchase money for the land comprised in the conveyance DR 2212/1957 was paid
exclusively by the defendant from her own resources. The defendant accordingly contends that the said
conveyance is held by the plaintiff upon a resulting trust for the defendant absolutely and beneficially."
The defendant counterclaimed for plot A. At the close of pleadings, the summons for directions disclosed
that one of the issues set down for trial was:
[p.413]
“(1) Whether the plot referred to in the plaintiff's statement of claim as plot A was purchased and paid for by
the plaintiff and was conveyed to him in his own right; or whether it was paid for by the defendant and is
thus held by the plaintiff prima facie as a trustee for the defendant."
The plaintiff in his pleading claimed he bought plot A from Emma Mills. The defendant in evidence said she
bought the same property from the sisters Emma and Helena Mills. The conveyance referred to in
paragraph (4) of his statement of claim and exhibited in the proceedings shows that his vendors were
Emma and Helena Mills. Yet again the defendant in her pleading contended that even though the
conveyance were drawn in favour of the plaintiff, yet the plaintiff merely held the plot in trust for her. In the
light of these averments and the evidence on record the burden lay squarely on the plaintiff, notwithstanding
that the defendant was counterclaiming for the same land or property, to produce evidence to satisfy the
court that his assertions are probably true. Thus section 11 of NRCD 323 states as follows:
"11.(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to
introduce sufficient evidence to avoid a ruling against him on the issue . . .
(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence
so that on all the evidence a reasonable mind could conclude that the existence of the fact was more
probable than its non-existence."
In this appeal it was not enough that the plaintiff should plead the origin of his title without more if there was
evidence available which should confirm his claim.
In Majolagbe v Larbi [1959] GLR 190 at 192 Ollennu J (as he then was) stated:
“Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an
averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is
unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the
witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which
(if his averment be true) is certain to exist."
In this appeal upon the issue joined the evidence of the vendors was [p.414] crucial to the resolution of the
issue in favour of one of the parties. The plaintiff failed to call them. But the defendant called Madam
Helena Mills who ascribed the following reason why she otherwise charged the defendant for the plot:
"I should have made a gift of it to the defendant since I knew her family very well but in those days we were
engaged in litigation hence we needed money. The defendant took a period up to 1957 to pay the total of
£128."
In my respectful opinion, Madam Helena Mills was not shaken under cross-examination. Concerning the
execution of the document, exhibit A, this is what the witness had to say:
"Q When did you give the first document to the defendant?

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A I made the first document in the name of the plaintiff because he came with the defendant and the
defendant said I should use the plaintiff's name in the document. This was in or about 1957.
Q Did you say the defendant made the final payment to you in 1951?
A The defendant started paying for it in 1949 and completed paying in 1957.
Q Look at exhibit A. This is the document you executed in favour of the plaintiff?
A That is correct. I did it on the instruction of the defendant because the plaintiff had promised to marry and
wed the defendant.
Q By exhibit A you granted the land in dispute to the plaintiff?
A That is not correct. The defendant was present and it was because the defendant wished it done that way
because the plaintiff had promised to wed the defendant."
Strangely though, the plaintiff was not concerned to answer the defendant's cross appeal. The plaintiff was
more concerned with the objections in point of law in the certain belief that those points would dispose of
the cross appeal in his favour. I am of the opinion that the plaintiff erred; for this piece of evidence
completely destroyed the plaintiff's claim to plot A. Madam Helena Mills was certain that plot A was bought
and paid for between 1949 and 1951. The plaintiff agrees that plot A was acquired in those years. Madam
Mills said it was the defendant who paid for plot A by instalments and that but for her need for money for
litigation she would have given the plot to the defendant free [p.415] of charge. The plaintiff's only response
to this averment in cross-examination was that what Madam Mills was saying was not true. But the plaintiff's
version of this part of his case was not put to the witness.
I accept the version of Madam Helena Mills as to how it came about that the document, exhibit A, was
executed with the plaintiff as the grantee or assignee. The evidence is clear. Madam Helena Mills was the
undoubted owner of the land and she had sold the land between 1949 and 1951. There was no question at
that time of any document being prepared with respect to the sale of the land. The document, exhibit A,
bears the date 8 August 1957. The plaintiff and the defendant were married in 1951. Therefore the plaintiff
submits that if Madam Mills says that she executed the document in favour of him, the plaintiff, because the
defendant told her that he had promised to marry her and wed her, then Madam Mills' story cannot be
correct.
I think the plaintiff has misread the evidence. In the light of Madam Mills' own familiarity with the defendant
she could not fail to know that the defendant had contracted an Ordinance marriage with the plaintiff in
1951. It was, in my view, in 1957 that the defendant wanting to erect a structure on the land would need the
title deeds. Thus the request of the defendant to Madam Mills to use the name of the plaintiff as the
purchaser of the title was because the plaintiff "had promised to marry and wed the defendant." And then
again the plaintiff "had promised to wed the defendant." I think the grammar is very important. If indeed in
1957 the plaintiff was only about to marry and wed the defendant, it would have been foolish for Madam
Mills to use expressions which suggested that the marriage and wedding had already taken place. In my
view, it was in fulfilment of an earlier promise by the plaintiff to marry and wed the defendant that the
defendant requested Madam Mills to prepare the document in the name of the plaintiff. In those
circumstances the evidence of Madam Helena Mills, which was not in any way shaken in respect of the sale
of plot A, satisfies me that the defendant was the real owner of plot A. In my view, when rival parties claim
property as having been granted to each by the same grantor, the evidence of the grantor in favour of one
of the parties, unless destroyed by the other party, should incline a court to believe the case for the party in
whose favour the grantor gives the evidence. Clearly the evidence adduced with respect to the sale of plot
A demonstrates that the plaintiff held the said plot A in trust for the defendant.
But that does not end the matter. The plaintiff claimed that he built the house on plot A. However, the
evidence which he led does not satisfy me that in fact he did so. The evidence of his witnesses was not of a
[p.416] quality as would incline any reasonable person, or indeed a court, to the conclusion that the matters
to which they deposed were solely referable to the construction of the house. The plaintiff contended that he
raised a loan in 1963 from the Ghana Commercial Bank to put up the building on plot A. But the evidence
shows that in 1963 the building had been completed and a certificate of habitation had been issued with
respect to it. The plaintiff 's evidence was demonstrably untrue. I believe that the defendant financed the
building on plot A. In exhibit A which was the letter dated 5 February 1974, the defendant's solicitors wrote
to the plaintiff’s solicitors in the following words:
"Some time thereafter she engaged contractors to erect an edifice wherein they may enjoy in bliss their
connubium. Your client then had neither the desire nor the means to put up a building, but it is admitted that
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when the building was almost complete, inspired by the zeal and tenacity with which his wife had tackled
the project, he offered his mite, albeit not a widow's, to assist in completing the building."
In my respectful opinion, this statement from the solicitors' letter, reflected the truth about the manner in
which the building on plot A was financed and constructed.
In the result, the cross appeal succeeds. There will be judgment dismissing the plaintiff’s appeal and
allowing the defendant’s cross appeal.
DECISION
Plaintiff's appeal dismissed.
Defendant's cross appeal allowed.
JNNO
OPAREBEA v. MENSAH [1993-94] 1 GLR 61—75.
COURT OF APPEAL, ACCRA
16 December 1993
LAMPTEY, ADJABENG AND LUTTERODT JJA
Husband and wife—Divorce—Property—Settlement—Available reliefs—Wife claiming financial provision

and beneficial interest in family assets on divorce—Wife found to have beneficial interest in assets by virtue
of assistance in acquisition—Wife awarded husband's Tesano house—Nature of relief given wife—
Matrimonial Causes Act, 1971 (Act 367), s 20(1).
Husband and wife—Divorce—Property—Financial provision—Divorced wife awarded husband's Tesano

house in satisfaction of claims for financial provision and property settlement—Appeal for variation of
quantum of "financial provision" by divorced wife—Definition of "financial provision"—Wife protesting
quantum of both financial provision and property settlement given her—Death of husband during pendency
of appeal abating award of financial provision—Whether court retaining jurisdiction to determine wife's
property rights—Proportion of award constituting property settlement—Act 367, s 28(2).
Husband and wife—Divorce—Property—Settlement—Discretion of court—Deceased husband owning more

property than declared—Court unable to make new orders for financial provision on death of husband—
Husband's estate devised to others under his will—No intention on part of husband to defeat financial
provision for wife evident in will—Role of court—Wife to be given additional monetary award—Act 367, s
28(2).
HEADNOTES
The appellant-wife and the respondent-husband got married in 1958. Following a breakdown of the
marriage she instituted proceedings in the High Court for, inter alia, dissolution of their marriage, financial
provision and a declaration that she had a beneficial interest in the family assets. The trial judge found that
the appellant was not only entitled to financial provision but that she also had a beneficial interest in the
respondent's assets. Accordingly, on granting the divorce the judge ordered that the appellant be given the
respondent's Tesano house as her financial provision and her beneficial interest in the respondent's assets.
Dissatisfied with the order, the respondent appealed against that decision to the Court of Appeal. The
appellant also cross appealed seeking a variation of the order on the grounds that (a) the quantum of
financial provision was inadequate having regard to the total wealth of the respondent; and (b) the trial
judge failed to give adequate regard to her claim for beneficial interest in the family's assets based on her
contribution in kind and service. In the course of the proceedings the respondent died and his executors
withdrew the appeal lodged leaving the cross appeal to be determined. In support of her appeal, the
appellant submitted that since the judge found that her assistance to the respondent in his [p.62] business
constituted substantial contribution, she should have been given half of the estate of the respondent. In
their opposition to the cross appeal, the executors contended that the trial court rejected the appellant's
claim for a beneficial interest in the respondent's assets and only granted her the Tesano house as financial
provision and since under section 28(2) of the Matrimonial Causes Act, 1971 (Act 367) the death of a party
adversely affected by an order for financial provision abated the order, there was no basis for the
appellant's appeal. Although the Court of Appeal found that the respondent owned more property than he
had declared to the trial court, the court further found, inter alia, that the respondent's other wives, children
and family members had all assisted in the running of his business; the appellant was also in business to

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which the respondent had also made contributions; and that in any case, the respondent had made
dispositions of his estate in a will.
Held, allowing the appeal:
(1) Section 20(1) of the Matrimonial Causes Act, 1971 (Act 367) empowered a judge to make an order
either for (a) settlement of property rights arising from claims of substantial contribution either in money or
money's worth; or (2) financial provision; or for both where the spouse was not merely praying for financial
provision but was also alleging an interest in the property. Since the trial High Court quite clearly found that
the appellant had a beneficial interest in the respondent's assets, the order that the appellant be given the
respondent's Tesano house lumped together both the relief for financial provision for the appellant and her
beneficial interest in the assets of the respondent. Achiampong v Achiampong [1982-83] GLR 1017, CA
cited. Dictum of Lord Denning MR in Gissing v Gissing [1969] 1 All ER 1043 at 1046, CA applied.
(2) Although the appellant in her appeal sought a variation of the "financial provision" given her by the High
Court, the expression would not be given such a narrow and restrictive interpretation as to limit it to the
financial provision aspect of the order. An examination of the indorsement on her writ and the grounds of
appeal made it clear that her complaint was that the quantum of both the financial provision and her
beneficial interest in the family assets was grossly inadequate. In the circumstances, even if the prayer for
financial provision failed because of the death of the respondent, as provided by section 28(2) of Act 367,
the court would still have jurisdiction to determine whether the quantum for settlement rights was adequate.
Since the judge did not specify the proportion in which the Tesano house was to cater for the two reliefs, it
would be assumed that the property rights constituted half a share in the property.
(3) (Lamptey JA dissenting in part) Where a judge set out to vest property as settlement of property rights
under section 20(1) of Act 367, he was exercising a discretion and was the best judge of what was
adequate, having regard to the peculiar facts of the case before him, particularly the nature and extent of
the contribution the party had made towards the acquisition of the property. Accordingly, an appellate court
[p.63] would normally not interfere with the award. However, since on the evidence the deceased
respondent owned much more property than he declared to the trial court, the appellant deserved a little
more by way of settlement of property rights. But with the death of the respondent the court could not make
any fresh or new orders with regard to financial provision because by the provision of section 28(2) of Act
367 that order abated with the death of the respondent. And by the provision of section 27(1) of Act 367, the
court could only set aside a disposition of property of a spouse where it was clearly made with intent to
defeat the financial provision or property settlement of the other spouse. In the absence of any such
evidence, express or implied, in the will of the respondent in the instant case, the court would preserve the
dispositions under his will but will order that the appellant be paid an additional ¢8 million from the estate by
way of property rights settlement. Dictum of Amua-Sekyi JSC in Ribeiro v Ribeiro (No 2) [1989-90] 2 GLR
130, SC applied.
CASES REFERRED TO
(1) Achiampong v Achiampong [1982-83] GLR 1017, CA.
(2) Gissing v Gissing [1969] 2 Ch 85; [1969] 2 WLR 525; [1969] 1 All ER 1043, CA.
(3) Rimmer v Rimmer [1953] 1 QB 63; [1952] 2 All ER 863; 2 TLR 767, CA.
(4) Pettitt v Pettitt [1970] AC 777; [1969] 2 WLR 966; [1969] 2 All ER 385, HL.
(5) Nixon v Nixon [1969] 1 WLR 1976; [1969] 3 All 1133; 113 SJ 565, CA.
(6) Ribeiro v Ribeiro [1989-90] 2 GLR 109, SC.
(7) Wachtel v Wachtel [1973] 2 WLR 366; [1973] 1 All ER 829; 117 SJ 124, CA.
(8) Ribeiro v Ribeiro (No. 2) [1989-90] 2 GLR 130, SC.
APPEAL by the wife-appellant against the quantum of financial provision and property settlement awarded
her by the High Court, Accra. The facts are sufficiently set out in the judgment of Lutterodt JA.
COUNSEL
Dr Daniels for the appellant.

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Dr Twum for the respondent.
JUDGMENT OF LUTTERODT JA.
In 1958 the petitioner-cross appellant (hereinafter referred to as the appellant) got married to the original
respondent, one S A Mensah, now deceased, in accordance with customary law. Following a breakdown of
their marriage, she instituted proceedings in the [p.64] High Court, Accra for a number of reliefs including
the following:
"(2) That the petitioner be granted maintenance pending suit and financial provision.
(3) That it be declared that the petitioner has a beneficial interest in the family assets."
By a judgment dated 14 December 1984, the learned trial judge ordered, among other things, as follows:
"For the petitioner's matrimonial reliefs concerning financial provision and beneficial interest in the
respondent's assets, it is hereby ordered that the petitioner be given the respondent's house at Tesano
where the petitioner resides and has already staked her interests by making extensions thereto."
The respondent who was not at all happy with this order in particular caused his solicitors to appeal against
the decision. The appellant in turn has appealed and prayed for a variation of the order by "increasing the
amount of financial provision in conformity with the reliefs claimed before the High Court."
In the course of these proceedings the respondent died and his executors were, in conformity with the
rules, substituted as defendants. They however withdrew the appeal they had lodged, leaving the cross-
appeal to be determined.
We would notice that although the appellant sought for these two distinct reliefs I have already referred to,
(1) financial provision; and (2) a declaration that she has a beneficial interest in the family assets, the court
did not grant these reliefs separately. What the learned judge did was to lump the two together and declare
the Tesano house adequate for both reliefs. This the court did, after reviewing the evidence and concluding
that she is not only entitled to financial provision but she indeed has a beneficial interest in the
"respondent's assets."
It seems to me that the learned judge drew his authority from section 20(1) of the Matrimonial Causes Act,
1971 (Act 367) which reads:
"20(1) The court may order either party to the marriage to pay to the other part such sum of money or
convey to the other party such movable or immovable property as settlement of property rights or in lieu
thereof or as part of financial provision as the court thinks just and equitable."
The appellant is not challenging the validity of the order. Her main [p.65] complaint, I think, is that the
quantum is grossly inadequate. Indeed, I do think that section 20(1) of Act 367 empowers a judge to make
any of the orders specified therein where the spouse is not merely praying for financial provision but is
alleging an interest in property. In other words, section 20(1) of Act 367 provides for two basic reliefs: (1)
settlement of property rights arising from claims of substantial contribution either in money or money's
worth; and (2) financial provision. Achiampong v Achiampong [1982-83] GLR 1017, CA, see particularly the
speech of Abban JA (as he then was), supports the views I have expressed.
I have taken the trouble to examine the scope of the order made because of the respondent's counsel's
submission that the judge dismissed the motion of the petitioner seeking a declaration that she has a
beneficial interest in the family assets, and made an order in substitution thereof. Implying thereby that she
was granted only one relief—which relates to maintenance—financial relief.
True the learned judge never used the term "family assets." Lord Denning in the Court of Appeal decision of
Gissing v Gissing [1969] 1 All ER 1043 at 1046, CA explained that term thus:
"...Where a couple, by their joint efforts, get a house and furniture, intending it to be a continuing provision
for them for their joint lives, it is the prima facie inference from their conduct that the house and furniture is a
'family asset' in which each is entitled to an equal share. It matters not.... who goes out to work and who
stays at home."
But, on the other hand, he quite clearly found in favour of the petitioner that she has a beneficial interest in
the respondent's assets. In that light my view is that he granted the substance of the petitioner's claims as
the following except of his judgment would show:

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"Then follows the issue as to whether or not sufficient grounds have been established to justify the award of
financial provision in her favour or claim by her of interest in the husband's properties. The two claims are
different but I treat them under one head for the sake of convenience. The clear unequivocal answer I give
to this question is that the petitioner has established sufficient grounds to justify judgment being given to her
on the two reliefs."
It is trite learning that because the respondent did not appeal against any of these positive findings we
cannot in any way interfere with them, neither can we upset the order that part of the Tesano house is in
[p.66] settlement of her rights in the respondent's assets.
Again, before I deal with the main issue raised in this appeal, I would like to determine this other important
issued raised by the respondent's counsel. His argument ran like this: The appellant asked for a variation of
the order of financial provision. Under section 28(2) of Act 367, on the death of a party adversely affected
by an order of financial provision, the order shall abate. Consequently, with the death of the respondent
there is nothing there to be determined by this court.
In the first place, as I have already explained, the Tesano house took care of both reliefs. True the relief
indorsed in the notice of cross appeal spoke of a variation of "financial provision" but I will not give it such a
narrow or restrictive interpretation as to limit it solely to the financial provision aspect of the order. When the
indorsement is read as a whole along with the grounds of appeal, I think the complaint is that the quantum
for both reliefs was grossly inadequate and consequently what is prayed for is for the entire award to be
enhanced. The indorsement reads:".... that the said judgment should be raised by increasing the amount of
financial provision in conformity with the reliefs claimed." (The emphasis is mine.) The natural question is
what are the reliefs (note: not relief but reliefs) claimed. They are: (1) a declaration that she has a beneficial
interest in the family assets (found by the judge to be the respondent's assets); and (2) financial provision.
In these circumstance even if the prayer for an increase in the financial provision qua financial provision
fails, because of the death of the husband, this court will still have to determine whether the quantum for
settlement of property rights is nevertheless adequate. Since the judge did not specify in what proportion
the Tesano house was to cater for the two reliefs, I would assume half a share for the property rights
settlement.
I now proceed to deal with the main issued raised by this appeal. It was submitted on her behalf that
because of the role she played in the husband's business and which no doubt led the judge to conclude that
she made substantial contribution (and this finding has not been challenged), the court should have
followed the decision in cases like (1) Rimmer v Rimmer [1953] 1 QB 63, CA; (2) Pettitt v Pettitt [1969] 2
WLR 966, HL and (3) Nixon v Nixon [1969] 1 WLR 1676, CA and made her an equal partner and so given
her a half share of his assets. Secondly, it was urged that had the trial judge been made aware of the other
properties the deceased owned, he certainly would have given her something more. For these two reasons
coupled with the fact that with the exception of only one property, the evidence does show that all the
properties were acquired during their marriage, bringing their total value as stipulated by the [p.67]
executors to ¢436 million, the award is grossly inadequate. We have therefore been invited, as an appeal is
by way of rehearing, to enhancing the award and give her a half share at least in the North Ridge business.
The learned trial judge no doubt took all the circumstances of this case into consideration before concluding
that the Tesano house was adequate. I think these matters included the following:
(1) the fact that the deceased had other wives;
(2) they also contributed in no small way to his success;
(3) his nephew, a university graduate, left his employment at his request and teamed up with him to run his
business; he thus contributed to his success story;
(4) he opened with his own funds a Barclays Bank account for her;
(5) he had other successes other than the store the appellant worked in. He started business as far back as
1942, some sixteen years before he met the appellant;
(6) even during the subsistence of the marriage she benefited greatly, for example the number of unsewn
cloths she had;
(7) his several other liabilities; and

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(8) the fact that the appellant herself is in business with her daughter. They import goods from overseas for
sale in Ghana.
Her investment could, in my view, only have come from moneys obtained from the respondent. He in any
case contributed to her business. I was not minded to increase this award which the judge in his discretion
had made and which he thought adequate in all the circumstances. For, apart from the facts I have
enumerated, there is no evidence that the appellant herself invested any moneys in the North Ridge Hotel
which in any case was completed after she had left the husband and so stopped working for him. Again it is
the extent of the contribution which determines the extent of her interest in any given property. But the
evidence on the records does not show her contribution to the hotel business was half share. Others
contributed to the man's business from which he no doubt built the hotel.
I do not think the mere fact that the Tesano house was not evaluated makes the award a nullity.
Achiampong v Achiampong (Supra) did not make valuation mandatory nor a sine qua non to the exercise of
the judge's discretion.
As was pointed out by his lordship Amua-Sekyi JSC in his judgment in the Supreme Court case of Ribeiro v
Ribeiro [1989-90] 2 GLR 109 at 117, SC in applying section 20(1) of Act 367 the judge having a discretion
to exercise, it was for him to:
[p.68]
"....exercise it in the best way he could. As a judge sitting in Accra where the properties are located, he
must be deemed to be familiar with the localities of the three houses and to have a fair idea of their
suitability as a residence ... This court is not better placed than the trial court to determine what was
suitable for the wife having regard to the circumstance of her case."
True the Ribeiro case (supra) was limited only a financial provision and did not include the settlement of
property rights but I am of the view that even where a judge sets out to vest property as settlement of
property rights under section 20(1) of Act 367 he exercises a discretion and he is the best judge of what is
adequate having regard to the peculiar facts of the case before him, particularly the nature and extent of the
contribution.
However, that which has persuaded me to enhance the award is the new evidence on other properties
owned by the deceased. Before the trial court his case was that he had only the following:
(1) six houses;
(2) one plot of land at MacCarthy Hill;
(3) one plot of land as Abeka;
(4) one plot of ancestral land in his home town; and
(5) a plot of land at Nkawkaw.
Before us we have discovered he owns, to be modest, a little more than he told the court. He additionally
owned:
(1) eight undeveloped plots of land at MacCarthy Hill;
(2) magazine plot at Nkawkaw;
(3) two undeveloped plots at Haatso;
(4) undeveloped plot next to Ridge Hospital;
(5) cocoa farms at Prassolewm—five plots at Takoradi;
(6) twenty cattle; and
(7) a residential estate overseas to the value of ¢12.6 million.
I think the appellant deserves a little more by way of settlement of property rights (which as I have already
explained is included in the order of the court). With the death of the husband, as section 28(2) of Act 367
stipulates, this court cannot make any fresh or new orders with regard to financial provision. That order
made abates with the death of the other partner.

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Where a party prays in aid the provision of section 27(1) of Act 367, the court can only set aside a
disposition where clearly it was made with intent to defeat the financial provision or property settlement of
the other party. Without evidence of that intention, a court would not set aside any disposition made by one
party during the pendency of proceedings in [p.69] which the other seeks the reliefs of financial provision or
property rights. This is the undoubted conclusion of his lordship Amua-Sekyi JSC in the Ribeiro case
(supra).
In this particular case I find no evidence from the record, either express or implied which shows the
deposition under the will was made with the intent I have described. If anything at all the manner in which
the testator made sure all persons who he thinks should benefit, particularly the appellant's children, were
catered for under the said will negates any such thing.
In the circumstances, I think the better approach would be to preserve the dispositions under the said will
and order the additional payment of money to her also by way of property rights settlement. The question
which naturally arises is how much is she entitled to? In view of the reasons I have already advanced, it
cannot be a half share of the North Ridge business. It can in my view be only a portion of such of his estate
as we can elicit from the fresh evidence. I think having regard to the contribution by other persons to the
deceased's business, profits from which we can say he acquired his self-acquired properties, including this
portion of the estate, that the sum of ¢8 million is reasonable and fair.
JUDGMENT OF LAMPTEY JA.
I agree that the appeal be allowed. I wish to add a few words of my own. In the High Court, the appellant,
Mary Oparebea had sought, among others, the following reliefs:
"(1) an order dissolving her marriage with the respondent;
(2) financial provision; and
(3) a declaration that she has a beneficial interest in the family assets."
The trial judge dissolved the marriage between the parties and made the following order:
".....concerning financial provision and beneficial interest in the respondent's assets, it is hereby ordered
that the petitioner be granted the respondent's house at Tesano .... as full and final marriage settlement."
The appellant was aggrieved and dissatisfied with the order made by the trial judge and appealed to this
court on two grounds, namely:
"(1) The quantum of financial provision awarded was inadequate having regard to the total wealth of the
inadequate.
(2) The learned trial judge failed to give adequate regard to the [p.70] petitioner's claim for beneficial
interest in the family assets based on her contribution in kind and service."
Before us, learned counsel for the appellant point out pieces of evidence on record which proved that the
respondent lived with the appellant for a continuous period of 28 years. There was evidence which proved
that apart from performing her duties as a wife, the appellant actively assisted and worked for the
respondent in some of his business ventures. There was evidence to prove and show that the respondent
acquired substantial immovable and movable properties. On the evidence before him the trial judge held
that the appellant made substantial contributions towards the acquisition of the properties, movable and
immovable, and the wealth acquired by the respondent. Learned counsel therefore submitted that the
award made by the trial judge as financial provision was grossly and wholly inadequate. In reply, learned
counsel for the respondent admitted that over and above her duties as a wife, the appellant assisted and
worked for the respondent. He contended that such services as she rendered over and above those
required of a wife, were services which customary law enjoined her to offer. Such services were not
regarded and did not attract any reward or compensation at customary law. He submitted that the appellant
was not at customary law entitled to claim any interest and/or right to the properties, movable or immovable,
of the respondent founded or based on a claim that she assisted and helped in the acquisition of those
properties. Counsel for the parties referred to and relied on the English cases of Wachtel v Wachtel [1973] 2
WLR 366, CA; Pettitt v Pettitt [1969] 2 All ER 385, HL; and the local cases of Ribeiro v Ribeiro [1989-90]
GLR 109, SC and Ribeiro cases (No. 2) [1989-90] 2 GLR 130, SC.
I must observe that section 20(1) of Act 367 was examined and considered by the Supreme Court in the
Ribeiro cases (supra). In the course of his judgment Adade JSC expressed the following opinion on the
ambit and scope of section 20(1) of Act 367 thus at 135:
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"In this case we are not concerned with settling property rights where the court is called upon to determine
the share in any property, which belongs to one or the other of the parties. Where determination of such
interest is not the issue, the question of the contributions of either party, substantial or otherwise, towards
the acquisition of the property is irrelevant."
The language of Adade JSC is plain and clear. The majority of the judges concurred in the view and opinion
expressed by Adade JSC. I agree with [p.71] the opinion and interpretation placed on section 20(1) of Act
367, namely in determining whether not a spouse is entitled to claim financial provision the spouse need not
lead evidence to prove and establish that he or she made a contribution towards the acquisition of the
property. In the words of Adade JSC in considering a claim under section 20(1) of Act 367, contribution
whether substantial or otherwise, is irrelevant.
A careful reading of the judgment before us shows that the trial judge did not follow the test laid down by
the Supreme Court in the Ribeiro case (supra). The trial judge looked for evidence from the appellant
seeking to prove and establish that she made some contribution towards the acquisition of property by the
respondent to support her claim under section 20(1) of Act 367. This was what the trial judge wrote on this
issue:
".... the assistance (the appellant gave the respondent) surely yielded positive results for those businesses
... It cannot be denied, even by the respondent that the contribution helped the business to flourish."
In the candid opinion of the trial judge the appellant made a substantial contribution to the acquisition of the
properties of the respondent. On this issue the trial judge wrote:
"I hold therefore from the facts of the case that positive services or assistance by a wife to her husband's
business for a long period of 28 years amounted to substantial contribution towards these businesses."
With great respect to the trial judge he erred in law in looking for evidence of contribution to support the
appellant's claim under section 20(1) Act 367. In the Ribeiro case (supra) the Supreme Court indicated that
to ascertain and determine a claim made under section 20(1) of Act 367 a court "must examine the needs
of the party making the claim." The court in the appropriate case must make reasonable provision for their
satisfaction out of money, goods or immovable property for his or her spouse. In the instant appeal, the
Ribeiro case (supra) enjoins this court to examine the needs of the appellant and thereafter this court must
make reasonable provision for their satisfaction from the money, goods or immovable property of the
respondent. In the court below the trial judge in exercise of the power under section 20(1) of Act 367 made
the awards to which I have already made reference. In the course of their arguments and submissions on
the issue of financial provision learned counsel for the parties referred us to the English cases of Wachtel
(supra) and Pettitt [p.72] (supra). In the majority judgment of the Supreme Court the Pettitt case (supra) was
rejected as irrelevant and therefore unhelpful. With respect to learned counsel for the respondent, I agree
with the opinion that in considering a claim under section 20(1) of Act 367 the English case of Pettitt v Pettitt
(supra) is irrelevant and not helpful.
The second ground of appeal argued by learned counsel for the appellant was that the trial judge failed and
omitted to make a declaration of the share of the appellant in the "family assets." The argument put
forward was that the appellant made a substantial contribution towards the acquisition of the "family
assets." He submitted that the appellant was entitled to be awarded her fair share of the family assets. I
have elsewhere in this judgment stated the reply of learned counsel for respondent to the above
submission. No useful purpose would be served if I repeated this reply. In examining the claim to be
awarded a share of the "family assets", I have found the English case of Wachtel (supra) helpful. In that
case, Lord Denning MR explained in some detail the concept of "family assets." The master of the Rolls
defined "family assets" as follows at 372:
"The phrase 'family assets' is a convenient short way of expressing an important concept. It refers to those
things which are acquired by one or other or both of the parties, with the intention that they should be
continuing provision for them and their children during their joint lives, and used for the benefit of the family
as a whole ....
The family family assets can be divided into two parts: (i) those which are of a capital nature, such as the
matrimonial home and the furniture in it: (ii) those which are of a revenue-producing nature, such as the
earning power of husband and wife. When the marriage comes to an end, the capital assets have to be
divided; the earning power of each has to be allocated."
In the instant case, there is evidence of the immovable and movable properties of the respondent. As I have
already observed, the trial judge made a positive finding of fact that the appellant made a substantial

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contribution towards the acquisition of these properties. Learned counsel for the appellant has invited this
court basing itself on the finding of the trial judge to quantify the share of the family assets that falls to the
lot of the appellant. Has this court the power to disturb the allocation of properties made by the trial judge?
In dealing with this issue I have found the opinions expressed by Francois and Wuaku JJC in the Ribeiro
case (supra) immensely helpful and rewarding. In that case Francois JSC was [p.73] very careful to draw a
clear distinction between a claim to a share in property based on a contribution to the acquisition of that
property and a claim unsupported by any such contribution towards the acquisition of the property. The
opinion of Francois JSC was in the minority but was concurred in by Wuaku JSC. In the view of Francois
JSC when faced with a claim based on section 20(1) of Act 367 the court cannot and ought not to make any
award of immovable property if the claim is not for a beneficial interest in that property. In that case the trial
court purporting to act under section 20(1) of Act 367 awarded a house to the wife who had made no
contribution to the acquisition of houses by the husband. On this award Wuaku JSC observed at 126 that:
"The wife is not claiming any beneficial interest in the matrimonial home, but claiming properties which on
the admitted facts the husband is the sole legal owner of. Accordingly, before the Haulage House could be
conveyed to her, she must prove substantial financial contribution or title...
It would be different if the wife claims an interest in the property and was able to establish her title. Then
section 21(1) of Act 367 will come into play... This section shows clearly that the court cannot under section
20(1) order a party to convey title. To do so the party must establish title to the part or all the property . . . or
substantial contribution . . ."
It will be seen from the opinion of Wuaku JSC that where a claim is based and founded on evidence of
substantial contribution the court may proceed under section 21(1) of Act 367 and make an appropriate
award. On this same issue Francois JSC was of the opinion at 118 "that a spouse could not press with any
degree of optimism an interest In the husband's properties by virtue of mere domestic services in the
house."
This view of the law means and can only mean that where a spouse proved substantial contribution towards
the acquisition of property or family assets the spouse can lawfully press with optimism a claim to a fair and
reasonable share of the family assets or properties pursuant to section 21(1) of Act 367. In the instant
case, the trial judge made a finding of fact that the appellant made a substantial contribution towards the
acquisition of the properties of the respondent. I find that there is evidence on record to show that some of
the properties were indeed acquired pursuant to decisions jointly reached by the appellant and the
respondent. One of such properties is the house or building now used as the North Ridge Hotel. In respect
of that property the appellant testified [p.74] as follows: ... one (property) in North Ridge which the
respondent and I jointly decided and converted into a hotel with 31 rooms..." In the course of her evidence,
the appellant narrated the circumstances which led to the decision to turn the matrimonial home into a
hotel:
"We were living in North Ridge (house) which we built as our residence (matrimonial home) but later
converted to a hotel... We were in the North Ridge house in 1974 with my children and the respondent."
The evidence was not disputed nor challenged. There can be no doubt that the appellant proved that kind
of interest in the North Ridge property which Lord Denning MR categorised as "family asset."
Again there was evidence before the court that sometime in January 1976 the appellant and the respondent
jointly obtained a loan from the Ghana Commercial Bank for business purposes and jointly and severally
bound themselves by a bank guarantee to repay that loan. The loan was taken for the benefit of a company
which carried on business and commercial activity called S A Mensah & Co. Ltd. The contention of learned
counsel for the respondent that the appellant must be seen in the above circumstances as performing and
discharging the duties of an Akan wife cannot be a correct statement of Akan customary law. The business
transaction between the Ghana Commercial Bank and the parties herein is purely and simply a business
and commercial one. It has nothing to do with the relationship of husband and wife. The evidence of the
bank transaction is in my opinion a reflection of the intention of the appellant and the respondent jointly to
engage in some commercial and business ventures and activities with a view to amassing wealth and
additionally acquiring real properties over a continuous period of 28 years of marriage. Indeed, there was
evidence from the respondent that the appellant actively assisted him in his business ventures. He testified
in part as follows: "The petitioner helped in the store ... she received the moneys. She looked after my
financial interests." Again the respondent gave evidence as follows: "I opened Barclays Bank account with
my money for her in case anything happened to me."

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There was further evidence from the respondent to show that over and above the obligations and duties
imposed on spouses, he and the appellant supported each other in their respective business interests. The
respondent gave the following evidence: "when she told me that a Mr Thompson who was a choir master, at
Asamankese was owing her, I went with her to collect the debt." Other random evidence of the assistance
the respondent gave the appellant was stated by him as follows: "Q Did you discuss her [p.75] involvement
in the poultry farm with her? A Yes. She told me it was too much."
Indeed, there was evidence on record that even though the respondent and the appellant lived apart from
each other and had ceased to live as husband and wife the respondent freely, willingly and cheerfully paid
for two overseas trips the appellant made to America and Europe. In my opinion, the finding of fact by the
trial judge that the appellant made substantial contribution towards the acquisition of family assets by the
respondent was supported by the evidence on record. He therefore erred in not quantifying her fair and
reasonable share of it. This court has power to affirm the declaration and quantify the award. The power is
granted by article 137(3) of the Constitution, 1992. In the English case of Wachtel (supra) the court was
called to quantify the share of the wife in the family assets. At holding (3) at 367 of the report appears the
following:
"(3). That one third of the combined resources of the parties afforded a convenient starting point and
accordingly in the circumstances, including the fact that the wife had made a substantial contribution to the
home by her care of the family..."
I find that in all the circumstances of the instant case, including 28 years of continuous selfless and
dedicated services both in the running of the home and business ventures and commercial activities of the
respondent, the appellant is entitled twenty per cent of the family assets as disclosed by the inventory
presented for purposes of obtaining probate.
JUDGMENT OF ADJABENG JA.
I agree entirely with the judgment of my sister, Lutterodt JA, and the reasons given therefor. I agree that the
cross appeal be allowed because of two reasons. These are, first, that the trial judge had made a positive
finding of fact that the cross-appellant had contributed substantially to the respondent's assets, but this
finding was not challenged by the respondent. Even though an appeal was filed against the judgment of the
trial court, this appeal was later discontinued when the respondent died. The second reason is that after the
judgment had been delivered, some fresh evidence revealed that the respondent had had more properties
than was revealed to the court. It is most likely that if these additional properties had been revealed to the
court at the time the award was made, the award might have been more substantial.
DECISION
Cross appeal allowed.
M C N-N
OSAFO v THE REPUBLIC [1993-94] 2 GLR 402—413
COURT OF APPEAL, ACCRA
22 December 1994
ESSIEM, FORSTER AND ACQUAH JJA
Statutes—PNDCL Laws—Commencement—Laws taking effect from date of signature unless otherwise

provided in Law—PNDCL 236 made on 24 May 1990—Gazette notification of Law published on 13 July
1990—Appellant charged under PNDCL 236 for offence committed on 25 May 1990—Whether appellant
properly charged—Provisional National Defence Council (Establishment) Proclamation, 1981, s 4(5), (6)
and (7)—Narcotic Drugs (Control, Enforcement and Sanctions Law, 1990 (PNDCL 236).
Criminal law and procedure—Narcotic drug—Possession—Narcotic drug found in appellant's bedroom—

Evidentiary burden on appellant to exonerate his possession—Prosecution evidence that drug discovered
under appellant's bed—Appellant claiming drug found in bag left with him by a casual friend—Trial tribunal
accepting testimony of prosecution witnesses—Whether appellant court to interfere with finding of trial
tribunal—Inference from finding that drug discovered under appellant's bed—Gravamen of offence of
possession of drug—Whether court justified in finding appellant guilty—Evidence Decree, 1975 (NRCD
323), s 11(3)—PNDCL 236, s 2(1).

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Criminal law and procedure—Sentence—Possession of narcotic drug—Imprisonment and [p.403] fine—
Minimum sentence of ten years' imprisonment for offence—Court empowered to impose sentence of both
imprisonment and fine for offence—Appellant on conviction sentenced to twelve years' imprisonment and
fine of ¢5 million—Whether fine excessive—Fine reduced to ¢2million—PNDCL 236, ss 2(1) and 16(2).
HEADNOTES
Acting on a tip-off the police searched the house of the appellant at dawn on 25 May 1990 and found a
polythene bag containing 134 oval shaped balls in his room. The appellant disclaimed ownership of the bag
and explained that it had been left with him the previous evening, ie 24 May 1990, for safe-keeping by a
casual friend (A) who had intended to spend the night in his house but had had to leave to lodge at a hotel
when he found that the appellant's girlfriend was then visiting. When the oval balls were subsequently found
to contain 919.94 grammes of heroin and also the police failed to Locate A, the appellant was arraigned
before the National Public Tribunal on a charge of possession of narcotic drugs contrary to section 2(1) and
(2) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law , 1990 (PNDCL 236). At the trial, two of
the police officers who had conducted the search led evidence on how they discovered the bag containing
the drugs under the appellant's bed. In his defence, however, the appellant claimed that the police had
rather found the polythene bag in a blue bag which had been left with him by A and that the drugs belonged
to A. The trial tribunal rejected the appellant's evidence, held that the drugs belonged to the appellant and
that he knew their nature and quality and accordingly, sentenced him to a term of twelve years'
imprisonment with hard labour plus a fine of ¢5million or in default ten years' imprisonment with hard labour.
In his appeal against both his conviction and sentence, the appellant contended that (i) since the offence
took place on 25 May 1990 but the Gazette notification of PNDCL 236 came out on 13 July 1990, and
therefore the Law came into force that day, he had been improperly charged under that Law; and (ii) he had
no legal possession of the drugs even though they were found in his bedroom. The court found, inter alia,
that PNDCL 236 was made on 24 May 1990.
Held, dismissing the appeal:
(1) by the provision of section 4(5), (6) and (7) of the Provisional National Defence Council (Establishment)
Proclamation, 1981 unless otherwise provided in any particular Law, Laws made by the Provisional National
Defence Council took effect from the date the Law was signed and not from the date of Gazette notification.
Thus, since the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236) was made
on 24 May 1990 it came into effect on that day. And since on the evidence the appellant committed the
offence on 25 May 1990, he was properly charged under PNDCL 236.
(2) Although the appellant had no burden to prove his innocence, once he admitted that the drugs were
found in his room but proceeded to exonerate his possession, he was obliged under the provision of section
11(3) of the Evidence Decree, 1975 (NRCD 323) to lead such evidence as to cast doubt on the case of the
prosecution. In the circumstances, it was [p.404] not enough for him to allege that the drugs belonged to
someone else; he had also to establish that he did not know the nature and quality of the drugs. But the
issue as to whether the polythene bag of A was determinable on the credibility of the prosecution witnesses
vis-avis that of the appellant and since the trial tribunal which saw and heard them believed the prosecution
witnesses, the appellate court would not interfere with that finding. Since it followed from that finding that
the appellant sought to conceal the drugs, it meant that he knew the nature and quality of the drugs. In the
circumstance it was immaterial whether the drugs belonged to the appellant or to A because the gravamen
of the offence under section 2(1) of PNDCL 236 was possession not ownership of the drugs. Accordingly,
there was sufficient evidence to justify the trial tribunal's guilty verdict against the appellant. Dicta of van
Lare JSC in Abono v Sunkwa [1962] 1 GLR 154 at 156, SC and of Balgore JSC in Iriri v Erhurhoban (1991)
1 WASC 428 applied.
(3) The minimum sentence for an offence under section 2(1) of PNDCL 236 was ten years' imprisonment
with hard labour. Although section 16(2) of PNDCL 236 empowered the trial tribunal to impose both the
sentences of imprisonment and a fine on any person convicted by it; having regard, in the instant case, to
the fact that the appellant was serving twelve years' imprisonment with hard labour, the quantum of the fine
was too much. Accordingly, the appeal against the sentence of the trial tribunal would be allowed and the
court would substitute therefore a sentence of twelve years' imprisonment with hard labour and a fine of ¢2
million or in default three years' imprisonment.
CASES REFERRED TO
(1) Iriri v Erhurhoban (1991) 1 WASC 428.
(2) Benmax v Austin Motor Co Ltd [1955] AC 370; [1955] 2 WLR 418; [1955] 1 All ER 326, HL.

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(3) Abono v Sunkwa [1962] 1 GLR 154, SC.
APPEAL by the appellant against his conviction and sentence by the National Public Tribunal on a charge
of possessing narcotic drugs contrary to section 2(1) and (2) of the Narcotic Drugs (Control, Enforcement
and Sanctions) Law, 1990 (PNDCL 236). The facts are sufficiently set out in the judgment of Acquah JA.
COUNSEL
J O Amui for the appellant.
Anthony Gyambiby, Senior State Attorney, for the Republic.
JUDGMENT OF ACQUAH JA.
This is an appeal against the judgment of the National [p.405] Public Tribunal dated 3 April 1991 wherein
the appellant was convicted for possessing narcotic drugs contrary to section 2(1) and (2) of the Narcotic
Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), and sentenced to twelve years'
imprisonment with hard labour and a fine of ¢5 million or in default ten years imprisonment with hard labour.
The facts are that a team of five police and five civil defence organisation personnel acting on a tip-off
rushed to the Ginseng Restaurant and Night Club, Asylum Down at about 4.00 am. The club was closed
and so they ordered the watchman to take them to the residence of the proprietors. The watchman
therefore took them to house No 38/4, Coconut Avenue, Asylum Down. The watchman knocked at the main
gate and one Samuel Ameyaw came out. Later the appellant too emerged from his room. The team
introduced themselves to them and made known their mission. They allowed Ameyaw and the appellant to
search them. Thereafter they began their search from room to room for narcotic drugs. In Ameyaw's room
the team found $14,000 which Ameyaw claimed ownership of and produced the relevant covering
documents. In the course of searching the appellant's room, a polythene bag containing oval shaped balls
was discovered. According to the first prosecution witness, when he questioned the appellant about it he
claimed it belonged to a friend called Stephen Yaw Amoako. It was later opened in the presence of the
appellant and found to contain 134 oval shaped balls. The appellant and Ameyaw were taken to the police
station. All attempts to apprehend this Stephen Yaw Amoako proved futile. Consequently, the appellant and
Stephen Yaw Amoako were charged before the National Public Tribunal for:
"Statement of Offence:
Possession of Narcotic Drugs, contrary to section 2(1) and (2) of the Narcotic Drugs (Control, Enforcement
and Sanctions) Law, 1990 (PNDCL 236).
Particulars of Offence:
Charles Kofi Osafo, businessman of Accra and Stephen Yaw Amoako of no known address on or about 25
May 1990 in Asylum Down in Accra in the Greater Accra Region and within the jurisdiction of this tribunal
had in your possession, without lawful authority 134 oval shaped balls containing 919.94 grammes of
heroin."
At the trial the prosecution called three witnesses, two of whom—first [p.406] and second prosecution
witnesses—took part in the operation at the premises of the appellant. These two witnesses recounted how
the operation was carried out and how the drugs were discovered under the bed in the room of the
appellant. The main difference in their evidence relates to the appellant's reaction to a question about the
ownership of the polythene bag when it was discovered.
For whereas the first prosecution witness said that the appellant replied that the polythene bag belonged to
his friend, the second prosecution witness said that the appellant kept mute. The last prosecution witness,
the third prosecution witness, was the investigation officer. He testified that because the appellant alleged
that the polythene bag was in a bag brought to him on 24 May 1990 for safe-keeping by his friend, one
Stephen Yaw Amoako, who he alleged was travelling the following day to Amsterdam, police wireless
message was immediately sent throughout all entry points of this country for the arrest of anyone bearing
the said name. Consequently, someone bearing the name of Stephen Yaw Amoako was arrested at the
Aflao border, brought down to the Narcotic Unit, CID headquarters for identification. But the appellant said
he was not that friend of his. He said the appellant was also taken to his house where he pointed out a blue
bag, among a number of bags, as being the said bag of this friend Amoako. A number of items were found
in this blue bag, including an identity card bearing a picture and particulars of this alleged Stephen Yaw

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Amoako. There were also two letters requesting for visas from the American and British embassies;
clothing, and footwear.
On the identity card, Stephen Yaw Amoako was described as a native of Kumso in the Brong Ahafo Region.
He therefore went to search for such a town in that region. But he found no such town. It was rather in the
Ashanti Region that he found a town called Kumso. But from the local police and others, he was told that no
such person was known there. He said his boss also made inquiries at the British and American embassies,
and nothing came out about this friend Amoako. He was not known in any of them. He then tendered
without objection three statements made by the appellant on 26 May 1990, 2 June 1990 and 18 July 1990.
In his defence, the appellant testified that a friend of his called Stephen Yaw Amoako came to his house on
24 May 1990 at about 10.30 pm and wanted to pass the night. He Amoako told him that he was travelling
the following day to Amsterdam. Unfortunately his girlfriend was with him and so he left his bag in his care
and went to find a hotel. He, the appellant, then went to bed. At about 4.30 am on 25 May 1990 the police
and civil defence organisation personnel came to search his house. They [p.407] found a wrapped rubber
material in the bag of Stephen Yaw Amoako. He was then taken to Ginseng Night Club and subsequently to
the Police Headquarters. Later he was sent back to his house for Amoako's bag. He said this Amoako is a
casual friend whom he first met at the Makola market, and that he had never been to Amoako's home-town.
Under cross-examination, he was emphatic that the polythene bag containing the 134 oval shaped balls
was found in Amoako's bag and not under his bed. He maintained that the drugs belonged to this Amoako.
In its judgment the trial tribunal rejected the appellant's story that the drugs were found in the bag of
Amoako. It accepted the evidence of the two prosecution witnesses, the first and second prosecutions
witnesses, that the drugs were found under the bed of the appellant. It further held that the drugs were
found under the bed of the appellant. It further held that the drugs belonged to the appellant and that he
knew the nature and quality of these drugs. It further explained that the first prosecution witness' evidence
that when he inquired from the appellant about the ownership of the drugs, he said they belonged to his
friend, is not inconsistent with that of the second prosecution witness' version that the appellant was mute
when he also asked him the same question. For the two questions were not asked at the same time. It
further held that having regard to the fruitless efforts made by the police to trace the said Amoako, either
this Amoako never existed and was a figment of the appellant's own imagination or if he existed, he was an
active participant in the drug deal. The tribunal accordingly discharged and acquitted Stephen Yaw Amoako.
But found the appellant guilty of the offence and convicted him. He was sentenced to twelve years'
imprisonment with hard labour plus a fine of ¢5 million or in default ten years' imprisonment with hard
labour.
It is this judgment that the appellant invites us to quash and thereafter acquit and discharge him. Arguing on
behalf of the appellant learned counsel, Mr. J O Amui, attacked first, the law under which the appellant was
charged; then the findings on which the conviction was founded; and finally the propriety of the sentence
imposed on his client.
In respect of his first submission, Mr Amui pointed out that from the particulars of the offence as set out in
the charge sheet, the offence took place on 25 May 1990. But PNDCL 236 under which the appellant was
charged was gazetted, according to the date of the Gazette notification, on 13 July 1990. In his view,
therefore, PNDCL 236 came into force on 13 July 1990. The relevant law under which the appellant ought
therefore to have been charged is the Pharmacy and Drugs Act, 1961 (Act 64) and not PNDCL 236.
Replying on behalf of the Republic, learned counsel, Mr Gyambiby, submitted that under the Provisional
National Defence Council Government, Laws made took effect from the date they were signed and [p.408]
not the date of Gazette notification, unless a contrary intention is expressed in the particular Law.
Consequently, since PNDCL 236 was signed on 24 May 1990 and no contrary intention was expressed
therein the appellant was properly charged under PNDCL 236.
Now section 4(5), (6) and (7) of the Provisional National Defence Council (Establishment) Proclamation,
1981 reads:
"(5) The exercise of the power of the Council to make Laws may be signified under the hand of the
Chairman or such other member or members of the Council as the Council may authorise.
(6) Every Law made by the Council shall unless otherwise provided in that Law, come into force on the date
it is made.
(7) Every Law made by the Council shall as soon as practicable after it is made be published in the
Gazette."

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It is quite clear from the above provisions that the submissions of Mr Gyambiby are correct. Consequently,
we hold that unless otherwise provided in any particular Law, Laws made by the PNDC took effect from the
date the Law was signed and not from the date of Gazette notification. Thus PNDCL 236 having been made
on 24 May 1990 came into effect on that date. And once it is conceded that the offence herein was
committed on 25 May 1990, we are firmly of the view that he was properly charged under that Law.
Mr Amui's submissions against the findings of fact of the tribunal were meant at establishing that the
appellant had no legal possession of the drugs notwithstanding the fact that same were found in his room.
He argued that the appellant's version, which he consistently maintained througout the trial, was that the
drugs were found in the bag of Amoako and that the drugs belonged to Amoako. He argued that from the
identity card and other items in the bag of Amoako, the tribunal ought to have found that Amoako indeed
existed.
He further argued that the drugs were indeed found in Amoako's bag. He contended that if the tribunal had
accepted the version of the appellant he would have been acquitted. In counsel's view, the second
prosecution witness' evidence that the appellant kept mute when he asked him of the ownership of the
polythene bag, contradicted the first prosecution witness' evidence that the appellant said the drugs
belonged to a friend. He argued that they are not truthful witnesses and the tribunal ought not to have
accepted their version. In accepting their version, the tribunal was unfair and thereby caused substantial
injustice to the appellant. Replying, Mr Gyambiby argued that the tribunal took into consideration the
circumstances surrounding the search and discovery of the drugs. He said [p.409] the police had a tip-off
and their tip-off was confirmed by what they discovered. Clearly then, counsel continued, there is no need
for anyone to believe that the first and the second prosecution witnesses would concoct a story. He argued
that there was no inconsistency as alleged and that the tribunal rightly found so. Counsel further argued
that having regard to the fruitless efforts made by the police to trace the alleged Amoako, the tribunal was
right in concluding that the said Amoako was a figment of the appellant's own imagination. But even if this
Amoako existed, counsel submitted, this would not by itself have exonerated the appellant. He finally urged
us not to disturb the findings of the trial tribunal.
It is well settled that there is a presumption that the decision of a trial court on the facts is correct. And
indeed where the findings of fact are matters peculiarly within the exclusive jurisdiction of the trial court, like
findings relating to the credibility of witnesses, the Court of Appeal has no jurisdiction to interfere by
substituting its own views. As Balgore JSC lucidly explained in the Nigerian case of Iriri v Erhurhoban
(1991) WASC 428:
"The trial court hears the evidence of the parties and their witnesses. This opportunity allows the trial court
to assess the witnesses whose evidence in chief, answer to cross-examination give the court the
opportunity to assess each witness for demeanour, truthfulness, credibility and reliability. No appellate court
has this opportunity as that court sees only the written record. The appellate court can therefore not
substitute its eyes, ears and mind for that of the trial court in assessing the evidence. Therefore believing or
disbelieving a witness or a piece of evidence is in the exclusive competence of the trial court and where
such belief and disbelief is clearly supported by evidence on record, the appellate court should not interfere
in such finding."
However, where the findings do not depend upon the credibility of witnesses and the disputed issue
depends upon inference to be drawn from proved facts, an appellate court is in the same position as the
trial court to evaluate the evidence and set aside that of the trial court where the trial court made wrong
inference from the proved facts. Thus Lord Reid in Benmax v Austin Motor Co Ltd [1955] 1 All ER 326 at
329, HL said:
"But in cases where there is no question of the credibility or reliability of any witness, and in cases where
the point in dispute is the proper inference to be drawn from proved facts, an appeal court [p.410] is
generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that
task, though it ought, of course, to give weight to his opinion."
In the instant case, there is no dispute that the drugs were found in the appellant's room. Whereas the
prosecution witnesses allege that the drugs were found under the appellant's bed the latter alleges that they
were found in a bag he claims to belong to one Stephen Yaw Amoako. The tribunal after examining the
evidence on record believed the prosecution's version and held that the drugs were found under the
appellant's bed; and that whether he was in association with Mr Stephen Yaw Amoako or not, he knew the
nature and quality of the said drugs. The tribunal made these findings because in its view the appellant
failed to discharge this burden as far as his defence was concerned.

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Now although the appellant has no burden to prove his innocence, once he admits that the drugs were
found in his room, but proceeds to exonerate his possession, he has a legal obligation to lead such
evidence as to cast doubt on the case of the prosecution. For as section 11(3) of the Evidence Decree,
1975 (NRCD 323) provides:
"(3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the
converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the
evidence a reasonable mind could have a reasonable doubt as to guilt."
The appellant's version of the incident was that when his friend Amoako came down to his house about
10.30 pm on 24 May 1990, his girlfriend was asleep in his room. The appellant testified on this as follows:
"A When he [ie Amoako] arrived we chatted in the corridor so when I collected the bag after seeing him off,
I was feeling sleepy so when I entered the room I placed it just by the bed and slept.
Q Where was your girlfriend?
A She was asleep at the time."
And indeed according to the appellant when the team arrived for the search he himself was still sleeping.
He said:
"At about 4.30 am I was asleep when I heard a knock on the door in the corridor. I woke up, opened my
door and entered the corridor ...Four policemen came to my room while another four went to my [p.411]
brothers room...I opened the drawers of my dressing mirror which were searched by the officers. They also
searched my wardrobe. I brought down all my bags and they were searched. My mattress was lifted and a
search conducted under the bed."
From the appellant's own mouth, therefore, there was his girlfriend asleep in his room at the time this
Amoako came down at about 10.30 pm. He, after chatting with Amoako, came to his room with Amoako's
bag, and slept. He woke up when the police came to the house at dawn and searched him and even lifted
his mattress and searched under his bed. The question is: where was this girlfriend during the lifting of the
mattress and the search under the bed? Indeed, the first and second prosecution witnesses and the
appellant never alluded to the presence of any girl in the house during the search. Thus like the mystery
surrounding the identity of Stephen Yaw Amoako who is alleged to own the drugs, we have another mystery
surrounding the whereabouts of a girlfriend because of whom Stephen Yaw Amoako could not spend the
night with the appellant. In our view, such punctuation marks in the appellant's attempt at explaining his
possession would have the tendency of discrediting him in resolving issues based on his credibility.
Now the issue as to whether the polythene bag containing the drugs was found under the bed or in the
alleged bag of Amoako boils down to the credibility of the prosecution witnesses vis-a-vis that of the
appellant. And the trial tribunal which saw and heard them, having believed the prosecution witnesses, we,
at the appellate court are not prepared to interfere. As the Supreme Court per van Lare JSC held in Abono
v Sunkwa [1962] 1 GLR 154 at 156, SC: "It is not a function of a Court of Appeal to disturb a finding where
credibility of witnesses had been in question."
Now from the finding that the polythene bag was found under the bed, it follows that the appellant sought to
conceal the drugs because he knew how important they were. In other words, he knew the nature and
quality of the drugs. So the tribunal rightly found. It is therefore immaterial whether the drugs belonged to
the appellant or the said Amoako. The tribunal's further finding that this Amoako might not be existing,
though in our view unjustified in the face of the identity card and the other items found in the blue bag, does
not derogate from the case of the prosecution. For the gravamen of the offence is possession and not
ownership of the drugs. Section 2(1) of PNDCL 236 reads: "2.(1) Any person who, without lawful authority,
proof of which shall be on him, has in his possession or under his control any narcotic drug commits an
offence."
[p.412]
(The emphasis is mine.) It is therefore not enough to allege that the drugs belong to someone else. One
must go further and establish that he did not know the nature and quality of the drugs.
We have noted the tribunal's explanation of the difference between the evidence of the first prosecution
witness and that of the second prosecution witness on the appellant's reaction when each of them
questioned him about the ownership of the drugs, and although we agree that both the first and the second
prosecutions witnesses did not ask the question at the same time, we find it difficult to accept that in the

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presence and obviously to the hearing of both, the appellant will react differently to the same question put to
him by each of these witnesses. Be that as it may, we are of the view that this aspect of their evidence is
not enough to discredit their entire evidence, especially as the appellant admits substantial part of their
evidence.
We are consequently unable to uphold Mr Amui's submissions against the findings of the tribunal. We are
satisfied that there was evidence on record to justify the finding that the drugs were found under the bed,
and that the appellant knew the nature and quality of the said drugs.
Mr Amui's submission on the propriety of the sentence is based on his earlier argument that since the date
of the Gazette notification of PNDCL 236 is 13 July 1990, and the offence herein was committed on 25 May
1990, the appellant ought not to have been sentenced under PNDCL 236. We have demonstrated that this
argument is untenable having regard to sections 5, 6 and 7 of the Provisional National Defence Council
(Establishment) Proclamation, 1981. Mr Amui however argued further in the alternative that should we hold
that PNDCL 236 was the proper law, the fine of ¢5 million or in default ten years' imprisonment with hard
labour in addition to the twelve years' imprisonment with hard labour rendered the sentence excessive. Mr
Gyambiby conceded to this. Now the minimum sentence for an offence under section 2(1) of PNDCL 236 is
ten years' imprisonment with hard labour. And although section 16(2) of PNDCL 78 empowers the trial
tribunal to impose both the sentence of imprisonment and a fine on any person convicted by it, we are of
the opinion that the quantum of the fine was too much having regard to the fact that the appellant is also
serving twelve years' imprisonment with hard labour.
In the end, we dismiss the appeal against the conviction. We allow the appeal against the sentence, and set
same aside. In its place we substitute a sentence of twelve years' imprisonment with hard labour and a fine
of ¢2 million or in default three years' imprisonment with hard labour. [p.413]
The sentences are to run concurrently and to take effect from the date of conviction.
JUDGMENT OF ESSIEM, JA.
I agree.
JUDGMENT OF FORSTER, JA.
I also agree.
DECISION
Appeal against conviction dismissed.
Appeal against sentence allowed and fine reduced.
DRKS
PREMPEH v AGYEPONG [1993-94] 1 GLR 255—279.
26 JANUARY 1993
FRANCOIS WUAKU, AMUA-SEKYI, AIKINS AND BAMFORD-ADDO JJSC
Wills—Construction—Intention of testator—Devolution under statutory or customary law—Section 49(1) and

(2) of Act 372 empowering courts for purposes of devolution to be guided by customary or personal law
unless contrary intention shown—Deceased excluding the application of customary law to devolution of his
estate in draft will—Draft will failing to meet requirements of a will—Whether trial judge justified in accepting
failed draft will as samansiw—Whether samansiw has to be death-bed declaration to be effective—Wills
Act, 1971 (Act 360)—Courts Act, 1971 (Act 372), s 49(1) and (2).
Succession—Intestacy—Customary sucessssor—Title to property—Deceased survived by children—

Children with interest in estate under PNDCL 111—Customary successor defending house forming part of
estate against a stranger—Court declaring title in house in customary successor—Whether declaration
sustainable—Intestate Succession Law, 1985 (PNDCL 111).
Succession—Intestacy—Surviving spouse—Claim by—Provisions of PNDCL 111 applicable to surviving

spouse—Proof of marriage to deceased prerequisite for benefitting under PNDCL 111—Appellant and
deceased in concubinary relationship—Whether appellant entitled to claim as a surviving spouse—

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Evidence Decree, 1975 (NRCD 323)—PNDCL 111—Customary Marriage and Divorce Registration Law,
1985 (PNDCL 112).
HEADNOTES
The testator, a lawyer, lived with the appellant as his girlfriend in the house in dispute. After his death, the
appellant claimed the house as her personal property. The respondent, the customary successor of the
testator, therefore brought an action against her for, inter alia, a declaration that the house formed part of
the estate of the testator. Although the trial judge found that the house was the self-acquired property of the
testator, he nonetheless gave judgment for the appellant because he held that exhibit 1, a draft will which
the testator had had his clerk type for him but which he had neither signed nor had witnessed, constituted a
valid samansiw under which the property had passed to the appellant. Aggrieved by that decision, the
respondent appealed to the Court of Appeal on the grounds, inter alia, that since the deceased had in
exhibit 1 specifically expressed his intention to exclude the application of any customary rule to the
construction and/or implementation of the contents of that document, the trial judge erred in accepting it as
a valid samansiw or parole will enforceable at law. At the hearing of the appeal, the appellant, on the
ground that the deceased had referred to her as his wife in exhibit 1 brought an application to amend her
pleadings and claim as a widow under the Intestate Succession Law, [p.256] 1985 (PNDCL 111). The court
found that (i) the appellant had not been married to the deceased; and (ii) exhibit 1 did not satisfy the
requirements of samansiw under customary law. It therefore dismissed the appellant's application, allowed
the respondent's appeal and declared title to the house in dispute in the respondent: see Prempeh v
Agyepong [1989-90] 2 GLR 407, CA. On appeal by the appellant to the Supreme Court from that decision,
Held, dismissing the appeal:
(1) the cardinal principle in the construction of wills was that, they should be so construed as to give effect
to the intention of the testator, since the whole essence of a will, in any case, was the declaration of the
wishes and intention of the testator. In Ghana there were two forms of wills, one under the Wills Act, 1971
(Act 360) and the other under customary law. Since the ingredients required to establish any of those two
forms of wills were different, it was incumbent on the court to determine the intention of the testator as to
which of those two wills he contemplated to adopt. In the instant case, the initial expression of the deceased
in exhibit 1 indicated that he had intended to make a will under Act 360 and not samansiw, because he had
specifically excluded a will under customary law and in any case at the time of writing exhibit 1 the
deceased did not have any fear of imminent death. Accordingly, exhibit 1 which had failed as a will for not
fulfilling the requirements of Act 360, could not be honoured as a samansiw. Dicta of Lord Macnaghten in
Crumpe v Crumpe [1900] AC 127, HL and of Lord Thankerton in Perrin v Morgan [1943] 1 All ER 187, HL
applied.
Francois JSC dissenting in part. There has been a tendency to graft on to the samansiw the trappings of a
death-bed gift. Thus its purely nuncupative effect as an oral will has been qualified by the insistence of proof
of an imminent fear of death. I think it is an error.
(2) Since the deceased had children who might have statutory claims in his estate under the Intestate
Succession Law, 1985 (PNDCL 111), the decision of the Court of Appeal declaring title in the disputed
house in the respondent, ie the customary successor, was premature and could not be legally sustained.
That declaration would therefore be set aside.
(3) Bamford-Addo and Aikins JJSC. Under section 15 of the Customary Marriage and Divorce Registration
Law, 1985 (PNDCL 112) it was provided that PNDCL 111 should apply to any spouse registered under
PNDCL 112. Accordingly, in order for a claimant to benefit under PNDCL 111, such a claimant had to prove
the existence of a valid Ordinance or customary law marriage as a matter of law. Concubinage was
however not the same as a valid marriage. And although an inference of marriage could also be made in
certain circumstances under the Evidence Decree, 1975 (NRCD 323), in the instant case, marriage was
never an issue; neither was it pleaded nor satisfactorily proved. In the circumstances, no presumption of
marriage could be made or inferred in accordance with law. Consequently, the Court of Appeal rightly
refused the appellant's application to benefit as a surviving [p.257] spouse under the provisions of PNDCL
111. Yaotey v Quaye [1961] GLR (Pt 11) 573 and In re Blankson-Hemans (Decd); Blankson-Hemans v
Monney [1973] 1 GLR 464 cited.
CASES REFERRED TO
(1) Prempeh v Agyepong [1989-90] 2 GLR 407, CA.
(2) Brobbey v Kyere (1936) 3 WACA 106

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(3) Otoo (Decd), In re (1927) D Ct '26-'29, 84.
(4) Hausa v Hausa [1972] 2 GLR 469, CA.
(5) Armah (Decd), In re; Awotwi v Abadoo [1977] 2 GLR 375, CA (full bench)
(6) Sugden v St Leonards (Lord) (1876) 1 PD 154; 45 LJP 49, CA.
(7) Perrin v Morgan [1943] AC 399; [1943] 1 All ER 187; 112 LJCh 81. HL.
(8) Crumpe c Crumpe [1900] AC 127; 69 LJPC 7; 82 LT 130, HL.
(9) Dove v Wuta-Ofei [1966] GLR 299, SC.
(10) Akyirefie v Paramount Stool of Breman-Esiam (1951) 13 WACA 331.
(11) England v Palmer (1955) 14 WACA 659
(12) Yaotey v Quaye [1961] GLR (Pt II) 573.
(13) Sackitey's Caveat, Re [1962] 1 GLR 180.
(14) Blankson-Hemans (Decd). In re; Blankson-Hemans v Monney [1973] 1 GLR 464.
(15) Marfo v Adusei [1963] 1 GLR 225, SC.
(16) Abinabina (Stool) v Enyimadu (1953) 12 WACA 171, PC.
(17) Ampoma (Decd), In re; Oppong v Oppong [1989-90] 1 GLR 83
(18) Armah (Decd), In re; Awotwi v Abadoo [1975] 1 GLR 374, CA.
APPEAL by the appellant from the decision of the Court of Appeal in favour of the respondent wherein it
reversed the judgment of the trial court in favour of the appellant wherein it declared a draft written
document as a valid customary testamentary disposition. The facts are fully stated in the judgments of the
court.
COUNSEL
Monica Quayson (Mrs) for the appellant.
Djabanor (with him W A N Adumua-Bossman) for the respondent.
JUDGMENT OF FRANCIOS JSC.
There is only one issue of importance in this matter and that is whether the appellant is entitled to the
disputed house No 24, Block B, Asokwa, Kumasi under the beneficial dispensation of samansiw. Two other
matters have been debated but they are inconsequential and may be [p.258] dismissed briefly. First, is the
appellant's proprietary claim to the disputed house with the correlated request that the court treat the
deceased as a trustee acting in her interest whenever title was in issue. The facts belie such a claim. The
trial judge made a clear and decisive finding that the vendor-owner sold the property to the deceased who
purchased it in his own right. The judge was amply supported by the appellant's own witness, as also the
claim pressed by the deceased himself in exhibit C. The rejection of the appellant's claim in the court's
conclusion which I quote below, cannot be successfully impugned. The judge said:
"I find that from the totality of the evidence that the offer for sale of the house in dispute was made to the
late Joseph Kwasi Prempeh and that he negotiated with the First Ghana Building Society in his own right
and not as the agent of the defendant. I also find as a fact that the late Joseph Kwasi Prempeh financed the
purchase of the house from his own resources... [T]he house in dispute was the self-acquired property of
the late Joseph Kwasi Prempeh."
If the appellant was dissatisfied with this conclusion it is perplexing that she did not cross appeal: see
Prempeh v Agyepong [1989-90] 2 GLR 407, CA. Indeed, to invoke the Intestate Succession Law, 1985
(PNDCL 111) to reap a benefit derived from a deceased spouse's estate or even to claim under samansiw
is to acknowledge a lack of proprietary interest in oneself, and amounts to an acquiescence in the trial
judge's findings. As this aspect of the matter was not reagitated in a cross appeal, it must be deemed
abandoned. It cannot be resurrected now.

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The second issue, arising from the statutory effect of PNDCL 111, derives its viability from proof of a
recognised marriage. The respondent at the trial described the appellant as a mere girlfriend of the
deceased who at the time was lawfully married to one Christie. There was no cross-examination of this. The
appellant herself, in paragraph (4) of her amended statement of defence, did not put her relationship with
the deceased higher than that of "friends'', which made no attempt to answer the averment in paragraph (3)
of the statement of claim that the relationship had never "ripened into marriage either under the customary
law or under the Marriage Ordinance, Cap 127 (1951 Rev).''
When she had the opportunity to put the record straight, the appellant stated under oath that the deceased
was a family friend; she and the deceased "became friends and later lived as man and wife.'' The
expression "living as man and wife'' is as loose and inconclusive as can be imagined. It covers a multitude
of relationships and only describes an existence of cohabitation rather than connubiality. The description is
[p.259] equally apt in describing the relationship of paramours as also those bonded in holy wedlock. It is
colourless. the issue of marriage vel non was, however, never a critical one at the trial court where all at
stake was title to a disputed house. It would be wrong for the court therefore to foreclose any future
attempts at a proper definition of the appellant's marital status. That aspect of the matter must remain open
to be determined in an appropriate forum.
A claim under statute, ie PNDCL 111, cannot be summarily dismissed. It must be seriously debated. The
issue of marriage was only referred to purely to reject it as an issue of consequence in the determination of
this appeal. It follows that the attempt to halt the proceedings in this appeal, and to compel a
pronouncement on PNDCL 111 as to the rights of members of the deceased's family under that Law, at this
late stage, must fail.
It is not denied that the deceased had children who may have a statutory claim under PNDCL 111, They
cannot be prevented from urging their claims elsewhere. It follows further from this, that the judgment of the
Court of Appeal declaring title in the disputed house in the respondent has jumped the gun and cannot be
legally sustained. The existence of children of the deceased totally undermines the legal viability of such a
declaration. I would set it aside.
Finally, I turn to the only question of relevance in this appeal, namely the viability of the samansiw alleged to
have been made by the late Joseph Kwasi Prempeh. A brief survey of the facts needs to be made. The
appellant and the deceased were close friends living in the most intimate relationship. The deceased
attempted to make a will when he had premonition about his future. That will failed for not fulfilling the
requirement of the Wills Act, 1971 (Act 360) in a number of particulars. It is however being suggested by
the appellant that the intentions of the testator, as gleaned from his inchoate will dictated to his clerk, should
be honoured as a valid samansiw.
The Court of Appeal roundly rejected any attempt to rescue a failed will on the wings of a samansiw. That is
a stance I indorse. From tradition and history the two are different. An oral declaration before witnesses is
the start of samansiw. The witnesses to a samansiw must necessarily be privy to the deceased's wishes
regarding distribution of his estate to enable them attest fully to the devises in the future, whereas
witnesses to a will are completely ignorant of its contents. Accordingly, a clerk who is merely to type the
intentions of a testator cannot claim to have participated at a solemn ceremony where a testators last
wishes are publicly proclaimed. The clerk typist may not necessarily be an attesting [p.260] witness to a will.
He merely performs the duty of typist.
The older cases illuminate this distinction; and it seems in earlier times a choice had to be made;
sometimes there was no choice. Prof Allott in his Essays in African Law at p 243 states of a testator:
"If he wishes to leave his property by will, he can either make an oral declaration in front of witnesses
(samansiw) according to native customary law, or make a written will in English form."
The learned author hastened to add that it did not mean a samansiw could not be confirmed in writing. But
when this was done, it did not convert the samansiw into a will. The different concepts retained their
separate identities. Thus in Brobbey v Kyere (1936) 3 WACA 106, the confirmation of a samansiw in writing
did not empower the legatee to claim a right of inheritance under an English will.
There has been a tendency to graft on to the samansiw the trappings of a death-bed gift. Thus its purely
nuncupative effect as an oral will has been qualified by the insistence of proof of an imminent fear of death.
This operated very forcibly in the minds of the Court of Appeal bench. I think it is an error. Sarbah in his
Fanti Customary Laws (2nd ed) at p 85, grafted no such qualification on samansiw. He said:

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"It is not only on the death-bed that a man can make testamentary disposition. A person can make his
testamentary disposition while enjoying perfect health; but at the time it is made, the witnesses must be
distinctly told by him, his words are his samansiw, to take effect after his death."
I consequently do not share the conclusion of the Court of Appeal that the samansiw failed because it was
not made in contemplation of death.
Another difference which Prof Allot states in his book, restricts the power to make a samansiw to those not
married under the Marriage Ordinance, Cap 127 (1951 Rev). At p 236 of Essays in African Law, Prof Allot
gives us the benefit of his research as follows:" Apparently a party to an Ordinance marriage can only make
a will in English form, and loses his power to make an oral customary will (samansiw among the Akan)."
Prof Allot cites Otto (Decd), In re (1927) D Ct '26-'29, 84 in support. He doubts the viability of this judgment
and articulates his reservations in this passage: "But the reasons of Michelin Ag. C.J. for asserting this rule
are not made explicit; and one takes leave to doubt whether such a rule is required by the law or is
desirable on other grounds." See also p 240 of Essays in African Law, where he reaffirms the rule alongside
his quaere. Be that as it may, this rule prevailed in the colonial Gold Coast.
[p.261]
Customary law is constantly changing especially in the area of nuncupative wills. The social and economic
demands of the day have forced the pace. The ancient requirements regarding the kinship quality and
plurality of witnesses, and the giving of aseda (thanks) to seal a legacy, have all suffered change. The
courts in recent times have rejected or pruned very thinly these requirements—talking care not to throw
away the baby with the bath water, to use the celebrated expression. Thus the pristine formulations of
Sarbah, Rattray and Ollennu have had to yield to three simple rules, namely self-acquired ownership in the
testator, his sanity at the time of the declaration and attestation by credible, disinterested witnesses, two at
least in normal circumstances, but one permissible in extreme exigencies:see Hausa v Hausa [1972] 2 GLR
469, Ca and In re Armah (Decd); Awotwi v Abadoo [1977] 2 GLR 375, CA (full bench).
Tested by this current definition and the facts outlined above, I cannot see that Joseph Prempeh's abortive
will can be resurrected as a samansiw. I uphold the Court of Appeal's final conclusion rejecting a samansiw.
Save for the reservations made in this judgment, I will accordingly dismiss the appeal.
JUDGMENT OF WUAKU JSC.
In my opinion, the only issue raised in this appeal which needs serious consideration is whether exhibit 1
could be regarded as a samansiw according to law. Exhibit 1 to my mind consists of two separate
documents. In my judgment, I will refer to the two typed sheets of paper with the handwritten corrections
therein made as exhibit 1 (a) and the one sheet of handwritten paper as exhibit 1(b).
Exhibit 1(a) is the draft will of the late Joseph Prempeh which Paul Mainoo prepared sometime in June
1979 upon the instructions from the late Joseph Prempeh. Exhibit 1(b) is the result of what happened on
Sunday 15 July 1979 when the late Joseph Prempeh invited his clerk Paul Mainoo to his house. This is
what in part, Paul Mainoo, the late lawyer Joseph Prempeh's clerk said:
"As soon as I arrived, the late Joseph Prempeh told me that he nearly died the previous day so I should
help him in finishing his will. He brought out exhibit 1 which I had typed previously. He told me that he had
made some corrections and he would like to add more. He pulled out a plain sheet and pen and gave them
to me. He asked me to start writing. He dictated to me. I wrote half of the sheet. He took the pen and the
sheet from me. Thereafter he continued writing from where I reached."
[p.262]
A careful examination of exhibit 1(b) in the record of the proceedings shows that it has two different
handwritings on it: From the top, lines one to twelve ending with "William Prempeh" are different from the
lines continued with "The Piano." In my opinion, the first twelve lines must be that of the witness and the
rest that of the deceased. From the evidence, what he had described were the documents that he gave to
Mr. Justice Prempeh. Mr. Justice Prempeh gave evidence as the first defendant witness; hence the
document were tendered as exhibit 1.
Paul Mainoo continued his evidence by saying that this master on 15 July 1979 gave him a cheque to be
cashed and after making some expenses to bring back to him ¢1,000. The late Joseph Prempeh also told
him that "he would go to rest at Dr. Asafo-Adjei's Clinic." On the morning of 16 July 1979, the late Joseph
Prempeh sent for Paul Mainoo and warned him "to hurry with the typing of the will". Paul Mainoo went and
cashed the cheque and decided to go to give the ¢1,000 to the late Joseph Prempeh at Dr Asafu-Adjei's

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Hospital (clinic). On reaching the hospital, he was told by a nurse that Joseph Prempeh had died. He saw
Dr Asafo-Adjei and gave the ¢1,000 to him to keep. He also went to Mr Justice Prempeh and told him about
the death and mentioned the documents to him. According to him he handed the documents which are
described as exhibit 1 to Mr. Justice Prempeh the following day.
The trial judge has held that the second defendant witness, Paul Mainoo had impressed him as an honest
and trustworthy person and consequently a credible witness. Upon that the trial judge accepted exhibit 1 as
a samansiw relying on In re Armah (Decd); Awotwi v Abadoo [1977] 2 GLR 375, CA (full bench). What
constitutes a valid samansiw is stated therein and I need not go over that.
I consider the evidence of Paul Mainoo as very crucial in the determination of this appeal. A careful reading
of what I have described as exhibit 1(a) clearly shows that what the late Joseph Prempeh intended to do
was to make a will according to law but not a customary will or samansiw. He therefore invited Paul Mainoo
to continue or finish his will by adding what I have described as 1(b). Paul Mainoo's own evidence was that
Joseph Prempeh said he had made corrections and wanted to add more. If 1(b) had been with Joseph
Prempeh before 15 July 1979, he would not have simply said he made corrections, but that he made
corrections and added more. I think that what this court has to do is to ascertain from the expressed words
in exhibit 1 as a whole what is the true intent of Joseph Prempeh. What I have described as exhibit 1(b)
cannot be divorced from 1(a). Consequently, I also hold the view that exhibit 1 cannot qualify as samansiw.
[p.263]
Another matter which had agitated my mind is that, reading through exhibit 1, it could be seen that Joseph
Prempeh had shown a genuine desire to make a proper disposition of his self-acquired properties. Mr
Justice Prempeh said that the only dispute about exhibit 1 was that it was not signed by Joseph Prempeh.
The English case of Sugden v Lord St Leonards (1876) 1 PD 154, CA came to my mind. That was the case
where a testator made a will followed by eight codicils. The original will was lost or could not be traced after
the death of the testor. The testator in his lifetime had often disclosed the contents of the will to the Hon
Charlotte Sugden, the only unmarried daughter of the testator and who had lived with the testator for many
years prior to and up the time of his death. The testimony of the single witness was should reliable and
trustworthy and the oral evidence was admitted together with the codicils to probate. In this present case,
there was no proper will to begin with, the defendant is relying on documentary evidence which does not
meet the requirements of the law. Exhibit 1 at best was an attempt by Joseph Prempeh to make a will which
had failed. Thus he died intestate.
In conclusion, I also agree that the appeal be dismissed and also that the Court of Appeal decision (see
Prempeh v Agyepong [1989-90] 2 GLR 407, CA) declaring title in the plaintiff be varied.
I am of the opinion that the Court of Appeal showed a better appreciation of the law when they held that the
court could not ignore the expressed intention of the late Prempeh and construe what he set out to do as
the making of a customary will or samansiw: see Prempeh v Agyepong [1989-90]2 GLR 407, CA.
Before 1971 the English Wills Act, 1837 applied here as a statute of general application. A statement in a
will that it was to be construed in accordance with English law was no more than a recognition of this fact.
Now, it must be taken as an intention that its successor, the Wills Act, 1971 (Act 360) is to apply. This is
perfectly in order as the Courts Act, 1971 (Act 372), s49, r2 permits a person to decide that the devolution
of his estate shall be governed by statute rather than by customary law. When, therefore, in the document
of 1979 Prempeh declared that it was to be "interpreted in accordance with English law and any law or
custom to the contrary notwithstanding" he excluded the making of a customary will. You simply cannot
interpret a customary will in accordance with English law.
[p.264]
As I see it, the only valid criticism that can be made of judgment of the Court of Appeal is that whereas the
plaintiff asked for a declaration that the premises formed part of the intestate estate of the deceased the
court declared it to be the family property of the plaintiff. Therefore, subject to an amended order in terms of
the endorsement to the writ being made, I would dismiss the appeal. JUDGMENT OF AIKINS JSC.
The facts in this appeal have been stated by my learned sister Mrs. Bamford-Addo JSC and I do not think it
is necessary that I repeat them. Several grounds of appeal were filed by counsel for the appellant, and
these were fully argued by her in the statement of case filed on behalf of the appellant.

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One of the grounds argued by counsel is that the Court of Appeal erred in law when it held: see Prempeh v
Agyepong [1989-90] 2 GLR 407, CA that the learned trial judge had no power to save the void will against
the expressed wishes of the testator, since the late Prempeh had expressed his intention that his will shall
not be interpreted in accordance with any law or customary law but English law. Counsel argued that exhibit
1, containing the testamentary disposition of the late Prempeh's property, was a valid samansiw and ought
to have been enforced as such by the Court of Appeal, and that intention is not a requirement for
determining the validity of either statutory will or samansiw (nuncupative will).
I have read the record carefully, but I have not been able to discern from my reading that what is written in
ink on exhibit 1 was made on 15 July 1979 in the house of the late Prempeh when the second defendant
witness, Paul Mainoo, reported there at the request of the deceased. In his evidence the second defendant
witness said:
"As soon as I arrived, the late Prempeh told me that he nearly died the previous day so I should help him in
finishing his will. He brought out exhibit 1 which I had typed previously. He told me that he had made some
corrections and he would like to add some more."
At this stage it is clear that the second defendant witness was not present when the deceased made the
corrections on the draft will that the second defendant witness typed. Under normal practice such
corrections could include additions in writing. The second defendant witness then continued his evidence:
"He pulled out a plain sheet and pen and gave them to me. He asked me to start writing. He dictated to me.
I wrote half of the sheet. He took the pen and sheet from me. Thereafter he continued writing [p.265] from
where I reached."
One would expect from this sheet two completely different sets of handwriting; one by the witness and the
other by his master. A close examination of pages 3 and 4 of exhibit 1 does not reveal these two sets of
handwriting. As to the author of pages 3 and 4, the first defendant witness, the brother of the deceased,
said it was the deceased who wrote them because it was in the deceased's handwriting. This piece of
evidence was not challenged, neither was any portion of it shown to him as different from the deceased's
handwriting, nor any suggestion made to him that any portion of it was written by the clerk, the second
defendant witness. The sheet of paper containing the handwriting of the second defendant witness and that
of the deceased was never tendered in evidence. It is in respect of this sheet that one may argue that it was
written or said by the deceased in contemplation of death and in the presence of the second defendant
witness. Nobody knows the contents of this sheet.
Since the two pages of typing on exhibit 1 was made in June 1979 and there is no record was to when the
corrections and additions were made by the deceased before the exhibit was handed over to the second
defendant witness on 15 July 1979, that document cannot pass as having been made or confirmed on 15
July 1979 and can only be regarded as an incomplete testamentary deposition or statutory will of the
deceased. It cannot be regarded as the deceased's "samansiw" or a valid nuncupative will enforceable
according to customary law.
With respect to "intention", I think what the Court of Appeal was stressing in Prempeh v Agyepong (supra) is
that wills must be so construed as to give effect to the intention of the testator, and cited the English cases
of Perrin v Morgan [1943] 1 All ER 187, HL and Crump v Crumpe [1900] AC 127, HL to buttress its
contention. Lord Thankerton stated in the Perrin case (supra) at 195 the cardinal principle of construction of
wills, which is also applicable in Ghana. He said; "In England, as in Scotland, the cardinal rule of
construction of wills is that they should be so construed as to give effect to the intention of the testator...."
And Lord Macnaghten in Crumpe v Crumpe (supra) at 132-133, HL said:
"In his will a testator may explain what he is doing, or what he means to do, by any form of words he
pleases, provided he makes his meaning clear. Here, I think, the testator has made his intention clear. I find
an indication of his intention in the first place in the revocation clause, but all the other circumstances point
to the same conclusion."
[p.266]
The Court of Appeal then continues in Prempeh v Agyepong (supra) at 414:
"Counsel for the [respondent] has argued that the court should interpret exhibit 1 in accordance with law
irrespective of the intention of the testator. In other words, the court must propound the document as
samansiw if it satisfies the ingredients of the law but must not look at the intentions of the testator. This
submission is not only unfortunate but it is also bad in law. The maxim is, animus hominis est anima scripti
(intention is the soul of an instrument). In fact, the whole essence of a will is the declaration of the wishes
1/10/22, 2:38 PM pages.gif
(intentions) of the testator. One cannot pass a document as a will or samansiw if it does not contain the
intentions (wishes) of the maker."
The court then referred to section 49(1) of the Courts Act, 1971 (Act 372) which states.
"49.(1)... the Court when determining the law applicable to an issue arising out of any transaction or
situation, shall be guided by the following rules in which reference to the personal law of a person are
references to the system of customary law to which he is subject or to the common law where he is not
subject to any system of customary law..."
And rule 2 of the seven rules stated thereunder stipulates:
"Rule 2. In the absence of any intention to the contrary, the law applicable to any issue arising out of the
devolution of a person's estate shall be the personal law of that person."
(The emphasis is mine.) The Court of Appeal then concluded at 416 as follows:
"When a judge therefore finds it possible to save a void statutory will by declaring it a valid samnasiw under
customary law for the purpose of the devolution of the testator's estate, he can do so, but only if the
deceased has expressed no contrary intention to the applicability of the customary law or personal law."
I, for my part, do not see anything wrong with the law as stated by the Court of Appeal. Apart from the fact
that the whole gamut of a will is the declaration of the wishes or intention of the testator, since in Ghana
there are two types of wills, one made under the Wills Act, 1971 (Act 360) and the other under customary
law, the ingredients required to establish any of [p.267] these two forms of wills being different, it is
incumbent upon the court to determine the intention of the testator as to which of these two wills he
contemplated to adopt.
In my view, the initial expression of the deceased in exhibit 1, namely:
"I JOSEPH KWASI PREMPEH—Barrister-at-Law, Kumasi in the Ashanti Region of Ghana make this my
last will and testament of my self-acquired bona fide properties herein.
I HEREBY revoke all former wills and codicils and other testamentary dispositions in whatever form and
according to whatever custom hereinafter made by me and declare this to be interpreted in accordance with
English law, and any law or custom to the contrary notwithstanding'"
indicates that he intended to make a will under the Act 360 and not samansiw; as he had specifically
excluded a will under customary law, and at the time of writing he did not have any fear of imminent death,
otherwise he would not have put in a clause about the devolution of a house he intended building at Tarkwa
near Suame, Kumasi. The court ought to be circumspect in transforming a statutory will into a customary
will simply because the statutory will has failed.
The next issue is whether the Intestate Succession Law, 1985 (PNDCL 111) is applicable in this case.
Counsel for the appellant's argument is that even though PNDCL 111 came into force on 5 July 1985 and
the action in this case was commenced by a writ of summons filed on 4 October 1983, judgment was
delivered by the trial court on 12 November 1987, ie after the coming into force of the Law, and by virtue of
the transitional provisions of the Law, ie section 21(1), the Law is applicable in this case as the action was
pending when the Law was promulgated. Section 21(1) of PNDCL 111 stipulates:
"21.(1) Notwithstanding the provisions of section 1 of this Law or any other enactment the provisions of this
Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a Chief or
Head of Family under customary law at the commencement of this Law in respect of the administration or
distibution of the estate who died before such commencement, and for the purposes of this section the
provisions of the Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112) and the
Administration of Estates Act, 1961 (Act 63) as amended by the Administration of Estates (Amendment)
Law, 1985 (PNDCL 113) shall be deemed to be applicable to such [p.268] claim or adjudication".
Counsel's argument is based on the premise that the deceased was survived by a spouse (ie the appellant)
and children, and for that matter, in the words of counsel, "the appellant's case is clothed with the protection
of PNDCL 111 and that the respondent should not have been given the relief of recovery of possession of
the disputed house." Counsel urges that since the action in this case was brought on behalf of the estate of
the late Prempeh, statements made voluntarily by the deceased are binding on the respondent as
successor. The statements referred to are that the late Prempeh described the appellant as a wife in exhibit
1 and further introduced her to the whole world as his wife. Counsel further urges that as these statements

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were voluntarily made by the deceased they are fatal to his cause and he is bound by them, and so are his
successors and privies, and they should not be permitted to retract from them.
In my view, merely referring to a woman as his wife does not mean that the woman is properly married to
the declarant either under the Marriage Ordinance, Cap 127 (1951 Rev) or under customary law. To prove
the marriage, evidence must be led to that effect. I must say that I am not convinced by the arguments
advanced by counsel on this issue.
It should be remembered that the question whether or not the respondent was the wife of the deceased was
not made an issue at the trial. In paragraph (3) of her statement of claim the respondent as plaintiff stated
that:
"(3) At all material times, the late Joseph Kwasi Prempeh (Decd) and the defendant lived together in some
kind of loose association but their relationship, though it lasted, never at any time before the death of
Joseph Kwasi Prempeh ripened into marriage either under the customary law or under the Marriage
Ordinance."
In reply to this the appellant deposed in paragraph (4) of her statement of defence and counterclaim that:
"(4) The defendant denies the averment contained in paragraph (3) of the statement of claim but says that
the defendant and the late Joseph Kwasi Prempeh were friends and from time to times the said late Joseph
Kwasi Prempeh acted as the defendant's adviser and agent."
This assertion was repeated in paragraph (4) of her amended statement of defence filed pursuant to leave
of court granted on 18 May 1987. And in [p.269] her evidence in-chief the appellant said that the late Kwasi
Prempeh was a family friend, and that after the death of her husband in 1971 she and the deceased
became friends and later lived as man and wife. My understanding of this statement, taking into
consideration the averments in the pleadings, is that the appellant lived with the deceased as his mistress
and not a wife at law, either customary or statutory.
In my judgment, the statements of the appellant preclude her from asserting now that she was the legal wife
of the late Prempeh, and therefore fails to qualify as a wife or a spouse to let the provisions of PNDCL 111
enure to her benefit. As regards the children, since they were not joined as a party to the action they cannot
take advantage of the Law.
The next point taken by counsel for the appellant is that the Court of Appeal erred in refusing to accede to
her request to amend the statement of defence. Counsel's request for the amendment was to invite the
court to apply the provisions of PNDCL 111 to facts found by the trial judge, and to bring the pleadings,
according to counsel, "in line with the evidence already on record." The intended amendment is to enable
the respondent to claim that she was the wife of the deceased and to use whatever evidence on record to
support her contention. As stated above, there is no convincing evidence on record establishing such a
marriage and no issue had been joined on that. As at the close of the case for the defendant-appellant she
had insisted that she and the deceased were never married, but were friends and the deceased only acted
as her adviser and agent. I therefore agree with the Court of Appeal when it stated that "if the amendment is
granted, it would be necessary to adduce further evidence to establish that fact," that is to say that the
respondent and the deceased were properly married,and also that it would enable the respondent to claim
a relief quite different from what she had originally claimed. The application was therefore rightly refused by
the Court of Appeal.
Before I conclude, it seems to me that there was a submission by counsel for the appellant that the learned
trial judge was wrong in overruling the objection that the learned trial judge was wrong in overruling the
objection that the customary successor had no capacity to sue in respect of the estate, because at that time
PNDCL 111 had come into operation and the intestate was survived by a spouse and children. Counsel
argued that by merely amending the title of the suit the trial judge could not cure the defect, and that the suit
should have been dismissed for lack of capacity to sue. I do not think there is any merit in this argument.
the suit was brought on behalf of the estate of the deceased, and the appellant was claiming the property in
dispute as her own self-acquired property and not as a spouse of the deceased, and therefore even if
PNDCL 111 had been brought to his notice the learned trial judge could [p.270] not have dismissed the suit
because there was no convincing and acceptable evidence on record to support the claim of the appellant
that she was lawfully married to the deceased.
In my view, the amendment to the title of the suit made by the trial judge by deleting the words"
administratrix" and leaving the action in her capacity as "customary successor of the estate of Joseph
Kwasi Prempeh" was proper to avoid multiplicity of suits: see Dove v Wuta-Ofei [1966] GLR 299, SC;

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Akyirefie v Paramount Stool of Breman-Esiam (1951) 13 WACA 331 and England v Palmer (1955) 4 WACA
659.
In the result the appeal is dismissed. Since the suit was brought on behalf of the estate of the deceased, I
would give judgment for the respondent and declare title in the disputed house in the estate of the
deceased, and order recovery of possession accordingly. Save as aforesaid I affirm the decision of the
Court of Appeal.
The brief facts of this case are that the plaintiff filed a writ at the High Court claiming as follows:
"(a) A declaration that house No 24, Block B, Asokwa, New Amakom Extension, Kumasi forms part of the
estate of the late Joseph Kwasi Prempeh.
(b) An order of possession of the said house.
(c) Damages for trespass.
(d) Perpetual injunction restraining the defendant from interfering with the plaintiff's ownership and
possession of the said house.
(e) An order that the defendant be made to pay monthly rents of the said house from the date of death of
Joseph Kwasi Prempeh to the date of judgment at the rate of ¢100 per month."
The plaintiff sued in her capacity as the successor to the deceased Joseph Kwasi Prempeh who died in July
1979. The defendant counterclaimed for:
"(a) A declaration that the late Joseph Kwasi Prempeh held the lease in respect of the building as trustee
for the defendant.
(b) A declaration that the paper writing that was read on the 40th day of the death of the late Joseph Kwasi
Prempeh was a valid samansiw.
The trial judge held that house No 24, Block B, Asokwa, New Amakom Extension, Kumasi was the self-
acquired property of the deceased but that the paper writing of Joseph Kwasi Prempeh read on the 40th
day of his death, exhibit 1, was a valid samansiw or parole will and [p.271] enforceable at law. He dismissed
the plainitff's action and held that the defendant's counterclaim (b) was proved.
The plaintiff appealed to the Court of Appeal on the grounds that:
"(1) The judgment was against the weight of evidence.
(2) The learned trial judge erred in law by ignoring the words in exhibit 1, the alleged samansiw, by which
the late J K Prempeh expressed his intention to exclude the application of any customary law rule to the
construction and/or implementation of the contents of that exhibit.
(3) Having regard to the evidence on record the learned trial judge erred in law in holding that the paper
writing of Joseph Kwasi Prempeh (deceased) tendered in evidence as exhibit 1 by or on behalf of the
defendant was a valid samansiw or parole will and enforceable at law."
The Court of Appeal allowed the appeal in Prempeh v Agyepong [1989-90] 2 GLR 407, CA stating thus per
Ampiah JA (as he then was ) at 419:
"I give judgment for the plaintiff (the appellant) and declare title in the disputed house in her and her family
and order recovery of possession accordingly... The defendant's counterclaim is dismissed. The defendant
will be given up to one month to vacate the premises."
The defendant-respondent-appellant (hereinafter referred to as the defendant) appealed to this court and a
summary of her grounds of appeal are that:
(1) The Court of Appeal erred in holding that exhibit 1 was not a valid samansiw.
(2) That the appellate court erred in holding that the defendant was not the wife of Joseph Prempeh (Decd)
and was therefore not entitled to certain benefits under the Intestate Succession Law, 1985 (PNDCL 111).
(3) That the appellate court erred in disallowing the amendment of the defendant made in that court, since it
was only an amendment to bring the pleadings in line with the overwhelming evidence on record that she

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was a wife of the deceased and therefore that PNDCL 111 was applicable to the case.
At the hearing the defendant applied for an order to serve to serve the son and daughter of the deceased
Prempeh with notice of this case as persons [p.272] directly affected by this appeal and whose interest
would be affected by the outcome of this case under PNDCL 111. This application was made under rule
10(2) of the Supreme Court Rules, 1970 (CI 13) which gives this court the power at its discretion to order
service of notice to be served on any party. The applicant is not the guardian of the said children and their
natural mother who is alive has not shown any interest in this case even though she is herself a co-
administratrix with the plaintiff.
First of all this case commenced in 1983 before the passage of PNDCL 111 and was an action by the house
in dispute as family property. The defendant counterclaimed as owner or alternatively as a beneficiary under
samansiw. She amended her counterclaim after the passage of PNDCL 111 in 1985 but did not claim as a
spouse under the said Law. In 1990 at the court of Appeal she attempted to change the nature of this whole
case, when she alleged that she was the wife of the deceased under customary law and entitled to benefit
under PNDCL 111. The said court in Prempeh v Agyepong (supra) at 419 rejected her attempt on the
following grounds:
''No issue was joined on that fact whether or not the defendant ws ever married to the deceased. There is
thus no convincing or acceptable evidence on record to support the assertion that the defendant was
married to the late Joseph Prempeh and therefore was a 'spouse' of the deceased. If the amendment is
granted, it would be necessary to adduce further evidence to establish that fact and, more seriously, if the
amendment is granted, it would change the nature of the claim by the defendant; it would enable the
defendant claim a relief quite different from what she had originally claimed. For the above reasons, I do not
think it would be just to grant the amendment at this stage of the proceedings. I would refuse the
application.''
This refusal was made one of the grounds of appeal by the defendant in this court, and the defendant has
followed with the present application for an order to serve certain persons. I support the reasons given by
the Court of Appeal in refusing the amendment so as to apply PNDCL 111 to the case. Therefore I would
also refuse the application to serve the persons named in the said application on the ground that PNDCL
111 is not applicable to this case, and therefore that they would not be affected by the outcome of this case.
Further reasons why I think PNDCL 111 is not applicable would be discussed later in this judgment when
dealing with the relevant ground of appeal.
I would now consider two main grounds of appeal, ie ground (2) and ground (3) together. These are that the
Court of Appeal erred in [p.273] disallowing the amendment sought by the defendant in order, according to
her, to bring the pleadings in line the overwhelming evidence on record that the defendant was the wife of
the deceased and therefore entitled to certain benefits under PNDCL 111 which provides for the devolution
of the intestate's estate on a ''spouse'' of a deceased dying after 1985. Under section 4 of PNDCL 111 a
surviving spouse and children are entitled to the household chattels and a house of the deceased. Section
21 of PNDCL 111 state that:
''21. (1) Notwithstanding the provisions of section 1 of this Law or any other enactment the provisions of
this Law shall be applicable in the settlement of any claim or adjudication pending before the Court or a
Chief or Head of Family under customary law at the commencement of this Law in respect of the
administration or distribution of the estate of an intestate who died before such commencement, and for the
purpose of this section the provisions of the Customary Marriage and Divorce (Registration) Law, 1985
(PNDCL 112) and the Administration of Estates Act, 1961 (Act 63) as amended by the Administration of
Estates (Amendment) Law, 1985 (PNDCL 113) shall be deemed to be applicable to such claim or
adjudication.''
The Customary Marriage and Divorce (Registration) Law, 1985 (PNDCL 112), s 15 states that PNDCl 111
shall apply to any "spouse" of a customary law marriage registered under that Law. This in effect means
that in order for a claimant to benefit under PNDCL 111 such a claimant must prove strictly the existence of
a valid Ordinance or customary law marriage as a matter of law. The defendant did not claim as the wife of
the deceased in the statement of her counterclaim so as to benefit under PNDCL 111, nor was the claim an
administration or distribution claim. The issues for trial did not include an issue whether or not the defendant
was a wife of the deceased and even after the passage of PNDCL 111 when she amended her
counterclaim, she never claimed as a wife. In fact, in her statement of claim she alleged that the deceased
was her friend who acted as her adviser and agent from time to time, She did not lead any evidence as to
the existence of a valid customary law marriage performed before witnesses as to make her the wife
1/10/22, 2:38 PM pages.gif
envisaged under PNDCL 111. Her claim that she and the deceased were friends living together as man and
wife appears to be supported by the plaintiff who said that they "were mere friends but never legally
married." "Concubinage" is not the same as a valid marriage and a "spouse" under PNDCL 111 is one who
has [p.274] contracted a valid customary marriage. In Yaotey v Quaye [1961] GLR (Pt 11) 573 at 574 it was
held as stated in the headnote that:
"(3) the question whether the relationship between a man and a woman is one of marriage or of
concubinage is a question of law to be determined from the facts and circumstances of the relationship;
(4) the essentials of a valid customary marriage are:
(a) agreement by the parties to live together as man and wife;
(b) consent of the families of the man and woman to the marriage. Such consent may be implied from the
conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family;
(c) consummation of the marriage i.e. the parties living together openly as man and wife."
See also Re Caveat by Clara Sackitey [1962] 1 GLR 180.
In In re Blankson-Hemans (Decd); Blankson-Hemans v Monney [1973] 1 GLR 464 a certain lady, Y,

pleaded on the death of the deceased who had married the plaintiff under the Marriage Ordinance, Cap 127
(1951 Rev) in 1963 that she was customarily married to the deceased in 1961. That being also a widow,
and having a child with the deceased she was as much entitled to a grant of letters of administration as the
plaintiff. She did not give evidence at the trial but her counsel pleaded that marriage should be inferred from
all the circumstances. As stated in the headnote:
"Held: the assertion in Y.'s pleadings of a prior subsisting customary marriage between her and the
deceased was a positive assertion capable of positive proof. The submission that marriage should be
inferred was not in line with the pleadings and could not be countenanced. In any event, there was no
principle of customary law that after a man has lived in concubinage for some time with a woman, their
relationship should be deemed to have ripened into marriage. Gym v. Insaidoo, High Court, Sekondi, 10
August 1965, unreported, cited."
In this case the defendant did not plead any customary law marriage and there was no satisfactory proof of
such a marriage, therefore no presumption of marriage could be made in accordance with law. The trial
judge therefore erred when he stated that "the defendant was the widow of the deceased" or inferentially
that she was the wife of the deceased. The defendant argues that a valid marriage between the deceased
and the [p.275] defendant must be inferred from certain pieces fo evidence on the record. But in the case of
Re Blankson-Hemans (supra) at 467 Koranteng-Addow J (as he then was) stated:
"It is my considered view that when the fact of marriage is in dispute as it is in this case, it has to be proved
strictly and affirmatively like any other disputed fact. It does not have to be inferred."
Inference of marriage can be made in certain circumstances as stated in section 31 of the Evidence
Decree, 1975 (NRCD 323). In the circumstances of this case marriage was never an issue, it was neither
pleaded nor proved by witnesses to the marriage and the same cannot be inferred as we are being invited
to do. The Court of Appeal rightly refused to apply PNDCL 111, and rightly refused the defendant's
application to amend her defence.
Secondly, the defendant's earlier claim was different and inconsistent with her new claim under PNDCL 111.
In the case of Marfo v Adusei [1963] 1 GLR 225, SC it was stated int he headnote, holding (4), that:
"(4) An allegation of fact, not pleaded but admitted in evidence, which is inconsistent with, and is a
departure from the averment made by the plaintiff in his statement of claim, is not entitled to favourble
consideration."
Mills-Odoi JSC delivering the judgment asked at 231:
"Was the learned commissioner therefore justified in giving consideration in favour of the plaintiff to the
matters which were not pleaded by him and which were admitted in evidence, viz. that the first defendant
granted the plaintiff extension of time for a further period of one year? We think he was not, in view of the
fact that the evidence complained of is an allegation of fact which is inconsistent with, and a departure from
the averment made by the plaintiff in his statement of claim.

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See also the Privy Council case of Stool of Abinabina v Enyimadu (1953) 12 WACA 171, PC. In this case,
not only was there no evidence of a valid customary law marriage on record to justify the application of
PNDCL 111. But to do this would change the whole nature of the case of appeal, take the parties by suprise
and result in injustice to both the plaintiff and even to the defendant. The defendant's earlier claims
impliedly meant that the deceased had not died intestate in respect of the [p.276] house in dispute,
therefore how could PNDCL 111 be said to be applicable when that Law applied only to intestate estates?
Furthermore, for section 21 of PNDCL 111 to apply there must be pending before the High Court in 1985 an
administration or distribution case regarding the intestate estate of a deceased: see the case of Ampoma
(Decd); Oppong v Oppong [1989-90] 1 GLR 83 where it was held that unless a settlement, claim or
adjudication was pending in court before 1985 section 21 of PNDCL 111 would not be applied to such a
case. The attempt by the defendant in the circumstances of this case to apply PNDCL 111 to this matter in
1990 was rightly rejected by the Court of Appeal. I am of the view that the appeal in respect of grounds (2)
and (3) should fail.
Regarding ground (1), the defendant argued that the Court of Appeal erred in declaring that the paper
writing, exhibit 1, was not a valid samansiw. The said court held that since exhibit 1 was not a valid will
under the Wills Act, 1971 (Act 360) it cannot be held to be a samansiw because it did not satisfy the
essential requirements fo a valid samansiw as enunciated in the case of In re Armah (Decd); Awotwi v
Abadoo [1975] 1 GLR 374, CA which set out those essential requirements as follows:
"(a) the declaration should have been made in contemplation of death;
(b) there should be credible witnesses present who could testify that the dispositions were made in their
presence and to their hearing;
(c) the dispositons should concern the self-acquired properties of the deceased."
This cited case is one where an oral disposition was taken down in writing and after typing it was signed by
the declarant who was in hospital and in fear of death. The circumstances of the said case and this present
one are dissimilar in that exhibit 1, which was wrongly accepted as a samansiw by the learned trial judge,
was made in two parts on different dates. The typed written part was a draft will made by the deceased
lawyer in his office in June 1979 when he was not in contemplation of death. A witness, the second
defendant witness, give evidence of the circumstances under which it was made thus:
"In June the late boss (Prempeh) invited me to his office and told me he wanted to prepare his will and
asked me to take down some notes. He dictated to me and I took them and had them typed. After typing, I
sent the draft to him. He did not tell me anything about it again until July 1979."
[p.277]
This draft will was neither signed nor witnessed and at the beginning of it the deceased stated quite clearly
that:
"I HEREBY revoke all former will sand codicils and other testamentary disposition in whatever form and
according to whatever custom hereinafter made by me and declare this to be interpreted in accordance with
English law, and any law or custom to the contrary notwithstanding."
The intention of the deceased was clearly to make exhibit 1 his will and not a samansiw under customary
law.
The second handwritten part of exhibit 1 was made on l5 July 1979 in circumstances narrated by the
second defendant witness thus:
"The day was a Sunday. He invited me to his house. I went with my friend called Gyamfie, a tailor by
profession. As soon as I arrived, the late Joseph Prempeh told me that he nearly died the previous day so I
should help him in finishing his will. He brought out exhibit I which I had typed previously. he told me that he
had made some corrections and he would like to add some more. He pulled out a plain sheet and pen and
gave them to me. He asked me to start writing, He dictated to me. I wrote half of the sheet. He took the pen
and the sheet from me. Thereafter he continued writing from where I reached. After that he told me that he
would give me a cheque to withdraw the money Monday morning. He asked me to use part to buy
stationery and give part to a certain Alhaji and reserve ¢1,000 for him. He told me he would go to rest at Dr
Asafo-Adjei's Clinic. After giving the cheque to me he handed me exhibit 1. The following morning he called
me again to his house and warned me to hurry up with the typing of the will."

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This evidence clearly shows that the deceased wanted the second defendant witness to help him in
finishing his will and not in making a samasiw. The handwritten part was clearly meant to be a continuation
of the earlier typed part of the proposed will. The defendant has argued that the two parts of exhibit 1
should be read as one whole document, a propositon with which I am in entire agreement. Reading exhibit
1 as a whole, can it be said to constitute a valid samansiw even if it is not a valid will under Act 360? I am
clearly of the view that it cannot and the reason for this [p.278] view is that exhibit 1 does not satisfy the
essential requirements of a valid samansiw as enunciated in In re Armah (Decd): Awotwi v Anadoo (supra).
The first requirement that a declaration of the deceased must be made in contemplation of fear of death,
cannot be said to have been satisfied when exhibit 1 was made in June 1979, or even in July 1979 when
the written part was made. If it was the deceased's intention to make a samansiw, then being a lawyer, he
would have amended the first part of the will which excluded the application of customary law. Also those
parts of exhibit 1 which stated as follows:
"I intend to erect a house at Tarkwa near Suame Kumasi—if I am able to do so this house should belong to
my family...one third to Justice Prempeh and William Prempeh if they do not predecease me to be shared
between them equally and if they do not predecease me to be shared between them equally and if they do,
it should go to my sisters. The remaining one third to any subsequent children by me."
(The emphasis is mine.) amount, in my view, to future intentions and negatives a findings that the deceased
was in contemplation of death when making exhibit 1. On the contrary, a person in this frame of mind
cannot talk of others predeceasing him or an intention to build a house or to have more children in the
future. I would not therefore be persuaded by the argument that because the deceased died later, he was in
immediate fear of death or in contemplation of death either in June 1979 or 15 July 1979 when making
exhibit 1. Furthermore, to hold thus would be a complete departure from the deceased's intention to make a
will not samansiw and would indeed be contrary to the deceased's intention. I am satisfied that exhibit 1
was not made in anticipation or contemplation of death and consequently cannot he held as a valid
samansiw under customary law so as to benefit the defendant.
Even if exhibit 1 is read in two parts and a very favourable interpretation put on the second handwritten
part, namely that it was made in contemplation of death because the deceased died the next day, such a
finding would still not enure to the benefit of the defendant because she was not mentioned therein. Exhibit
1 is clearly an invalid will because it was not signed or witnessed and is also not a valid samansiw. The
Court of Appeal was therefore right when in Prempeh v Agyepong (supra) at 416, CA it criticised the
learned trial court's ruling that exhibit 1 was a samansiw in these words:
"When a judge therefore finds it possible to save a void statutory will by declaring it a valid samansiw under
customary law, for the [p.279] purpose of the devolution of the testator's estate, he can do so, but only if the
deceased has expressed no contrary intention to the applicability of the customary law or personal law.
Since the late Prempeh had expressed his intention in exhibit 1 that his will shall not be interpreted in
accordance with any customary law but English law, the learned trial judge had no power to save the void
will against the expressed wishes of the testator even if he had power to convert the void statutory will into
a samansiw. Under those circumstances the learned trial judge was under a duty to declare that the maker
had died intestate."
I agree with Courts of Appeal and it seems to me that even if the deceased had not clearly excluded the
application of the customary law to exhibit 1, a court cannot change the nature of that exhibit, ie an abortive
will, into a valid samansiw unless the essential requirements of a valid samansiw are present.
It is my considered opinion that exhibit 1 is not a valid samansiw, and therefore that the deceased died
intestate in respect of the house in dispute. The intestate estate is to be distributed by the plaintiff-
successor. The appeal on this ground also should fail.
DECISION
Appeal dismissed.
JNNO

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GHANA LAW FINDER

HOME [1993 - 94] GHANA LAW REPORT

SUPREME COURT, ACCRA

Constitutional law — Constitutional issue — Jurisdiction of Supreme Court — Interpretation of Constitution

Constitutional law — Constitution, 1992 — Directive Principles of State Policy — Justifiability — No

Constitutional law — Constitution, 1992 — Defence of — Celebration of 31 December as statutory public

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Constitutional law — Executive and legislative power — Limitation on — Government expenditure —

Held, (Archer CJ, Abban, Bamford-Addo and Ampiah JJSC dissenting):

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(1) Kwakye v Attorney-General [1981] GLR 9, SC.

(2) Atto-Mensah v The Republic [1967] GLR 562.

(3) Mississippi v Johnson, 71 US 475 (1867).

(4) Baker v Carr, 369 US 186 (1962).

(5) Coleman v Miller 307 US 433.

(6) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.

(8) Hilder v Dexter [1902] AC 474; 71 LJCh 781; 87 LT 311, HL.

(10) Farley v Bonham (1861) 30 LJCh 239.

(11) Marbury v Madison, 5 US (1 Cranch) 137; 2 L E 60 (1803).

(12) Kach Faction v Knesset Speaker, Jerusalem Post LR 35 (1993).

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(15) CFAO v Archibold [1964] GLR 718, SC.

(16) Malm v Lutterodt [1963] 1 GLR 1, SC.

(17) Mosi v Bagyina [1963] 1 GLR 337, SC.

(21) Becke v Smith (1836) 2 M & W 191.

(23) R v Loxdale (1758) 1 Burr 445.

(24) Smith v Brown (1871) LR 6 QB 729; 40 LJQB 214; 24 LT 808.

(25) Goldsmiths' Co v Wyatt [1907] 1 KB 95; 76 LJKB 166; 95 LT 855, CA.

(27) McCawley v R [1920] AC 691, PC.

(28) Lardan v Attorney-General (1957) 3 W ALR 114.

(29) Republic v Special Tribunal; Ex parte Forson [1980] GLR 529.

(30) Republic v Director of Prisons; Ex parte Shackleford [1981] GLR 554.

(33) Republic v Maikankan [1971] 2 GLR 473, SC.

(34) Kwakye v Attorney-General [1981] GLR 9, SC.

(35) Kwakye v Attorney-General [1981] GLR 9, SC.

(38) Egerton v Brownlow (Earl) (1853) 4 HL Cas 1; 23 LJCh 348; 10 ER 359.

(39) Mirams, Re [1891] 1 QB 594; 60 LJQB 397; 64 LT 117.

(41) Ewart v Ewart [1958] 3 WLR 687; [1958] 3 All ER 561.

(42) Besant v Wood (1879) 12 ChD 605; 40 LT 445.

(44) Gibbons v Ogden, 22 US (9 Wheat) 1; 6 LEd 23 (1824).

(45) Kuenyehia v Archer [1993-94] 2 GLR 525, SC.

(46) Powell v McCornach, 395 US 486 (1969).

JUDGMENT OF ARCHER CJ.

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"(3) Any person who —

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Now what about the other relief sought?

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JUDGMENT OF ADADE JSC.

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"2.(1) A person who alleges that—

(b) any act or omission of any person;

(The emphasis is mine.)

"(3) Any person who—