ERNEST ADOFO & ORS. VRS GHANA COCOA BOARD

J U D G M E N T

DR. DATE-BAH, J.S.C:      

This is the unanimous judgment of the Court. The Plaintiffs issued a Writ on 2nd March 2004 seeking an enforcement of the Constitution by:

1.  “A declaration that by the proper interpretation of the Article 36(1) and (2) of the 1992 constitution PNDC law 125 ceased to exist or to have any effect upon the coming into effect of the 1992 constitution of the Republic of Ghana.

2.  A declaration that said PNDC law 125 is inconsistent with the provision of the discriminate (sic) 1992 constitution in so far as it tends to decrements (sic) against certain categories of workers in Ghana and within the CocoBod.

3.  A declaration that the said P.N.D.C. law 125 is unconscionable and must be removed from the statute books of Ghana.”

The Writ was expressed to be issued by three Plaintiffs, namely, Ernest Adofo, Paul K Sekley and Samuel Ntiful “for themselves and on behalf of 70 other workers of the Cocobod retrenched in September 1994”. In the accompanying Statement of Case, verified by an affidavit deposed to by the first Plaintiff, the Plaintiffs stated that they were citizens of Ghana and former employees of the Ghana Cocoa Board. They further stated that in or about 1994 the Plaintiffs, numbering about 70, were declared redundant and their employment terminated. Their terminal benefits were not paid them, they claimed. When they made inquiries regarding these benefits, they alleged that they were informed of PNDC Law 125, which was said to empower the Ghana Cocoa Board to terminate their employment and to indemnify the Board from any liability for the payment of retirement benefits in accordance with the collective agreement of these employess. The Plaintiffs contended that PNDCL 125 was unconstitutional, as it offended against the express stipulation in Article 36 of the 1992 Constitution. This reference in the Plaintiff’s Statement of Case was in fact wrong and should have read section 36 of the Transitional Provisions (First Schedule to the Constitution).

On 25th November 2004, the Plaintiffs filed a motion on notice for an amendment of their Writ in order to cure an irregularity which had been identified by the Defendants. The Plaintiffs’ Writ had failed to provide the addresses of the first three Plaintiffs nor the names or addresses of the 70 other workers of Cocobod that the first three Plaintiffs purported to represent. The amendment was granted on 18th January 2005. By the amended Writ, the three Plaintiffs no longer purported to be representing others and their respective addresses were now inserted. The nature of the relief sought was now endorsed as follows:

“Enforcement of the Constitution by:

1.  A declaration that by the proper interpretation of the Article 36(1) and (2) of the Transitional Provisions of the 1992 constitution PNDC Law 125 ceased to exist or to have any effect upon the coming into effect of the 1992 constitution of the Republic of Ghana.

2.  A declaration that said PNDC Law 125 is inconsistent with the provisions of the 1992 constitution in so far as it tends to discriminate against certain categories of workers in Ghana and within the CocoBod and in so far as it seeks to oust the jurisdiction of the courts.

3.  A declaration that the said PNDC Law 125 is unconscionable.”

Learned counsel for the Attorney-General, Mrs.Kathleen Quartey Ayensu, Chief State Attorney, filed a notice of preliminary objection to the Plaintiffs’ Writ, insisting that the Writ did not raise issues predominantly within the ambit of Article 130(1) of the Constitution and that the issues raised were predominantly employment issues. At the hearing of this case, the Court decided that it would rule on this objection when giving its judgment on the Writ itself.

In the course of his argument before this Court, learned counsel for the Plaintiffs, Mr Klayson, refined his case and eventually agreed to limit the relief sought from this Court to the declaration of the unconstitutionality of sections 5 and 6 of PNDC Law 125. In other words, he orally abandoned all the other reliefs he had sought and requested the Court to strike them out. In similar vein, learned counsel for the Attorney-General stated that if all the other issues were to be remitted to the proper forum, namely the High Court, then she would concede the unconstitutionality of sections 5 and 6 of PNDC Law 125.

Both counsel therefore eventually agreed that the issue to be determined in this case should be narrowed down to the issue of the constitutionality of provisions in PNDC Law 125 which purported to block the Plaintiffs’ access to the courts. Learned counsel for the Second Defendant, Mr. Clottey-Sefa, associated himself with the position of learned counsel for the Attorney-General. This then is the issue which this Court is required to pronounce on. This agreement by all counsel in this case in effect means that the preliminary objection by learned counsel for the Attorney-General was overtaken by events. The employment issues in this case having been stripped off by the mutual consent of counsel, the basis for the preliminary objection by learned counsel for the Attorney-General falls away.

It therefore remains for us to set out the alleged offending provisions of PNDC Law 125, whose full short title is: “Ghana Cocoa Board Re-Organisation and Indemnity Law, 1985” and to determine whether they should be struck down as being unconstitutional.

“5.       No action shall be brought against the Board or any of it Divisions or Subsidiaries or any other person in respect of any obligation, liability or claim arising from the re-organisation of the Board or the termination of employment of any employee of the Board under section 1 of this Law or from any act or omission in connection with or consequent upon such re-organisation or termination.

6.        Any action pending in any Court before the commencement of this Law in respect of any obligation, liability or claim or in respect of any act or omission referred to in section 5 of this Law is hereby abated.”

The power to strike down legislation in conflict with any provision of the 1992 Constitution is one of the most important of this Court. It is a power to safeguard liberty from encroachment by the legislature, whether constituted under our current Constitution or under any earlier Constitution or constitutive document, subject to the transitional provisions of the various Constitutions we have had. It is a power accorded this Court by clear provisions in the Constitution, whose exercise is endorsed and mandated by binding precedent from this Court. That binding precedent includes Sam (No. 2) v Attorney-General [2000]SCGLR 305 and the clear provision of the Constitution is Article 1(2) of the 1992 Constitution which provides as follows:

“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.”

This Constitutional provision unequivocally and authoritatively establishes a doctrine of supremacy of the Constitution in the Ghanaian jurisdiction. This doctrine implies that the supremacy of Parliament is limited and Parliament’s enactments and those of previous legislatures are subject to the supremacy of the Constitution. This supremacy of the Constitution implies the assertion that constitutional clauses granting an effective indemnity against the provisions of the current Constitution, which exist under the terms of the transitional provisions of the 1969, 1979 and 1992 Constitutions, are also supreme. Those clauses therefore establish an effective indemnity. 

The doctrine of the supremacy of the Constitution should logically imply the power of judicial review of the constitutionality of legislation in order to enforce that supremacy. Thus, even if there had been no express power in the Constitution for this Court to strike down offending legislation, we would have been willing to imply one. Such implication is, obviously, unnecessary because of the explicit power conferred on this Court by Article 2(1) of the Constitution, which has been repeatedly described in this Court as a special jurisdiction. This special jurisdiction to strike down legislation is made an exclusive one of this Court by Article 130 of the Constitution. The net effect of Article 130(1) is that, where a Plaintiff seeks to obtain a declaration that a statute or part of a statute is void as “made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution”, the Supreme Court has exclusive original jurisdiction in the matter.

The power of judicial review of the constitutionality of legislation, which is explicitly conferred on this Court by Articles 2(1) and 130(1) of the Constitution, is one that should be vigilantly deployed by this Court in discharge of the obligation of this Court to uphold the Constitution of this land. It is a power over whose legitimacy constitutional scholars in constitutional democracies have often agonised. Because of the clarity of the provisions which vest this Court with that jurisdiction, we do not think this Court need agonise about the legitimacy of its power. The framers of the Constitution wanted this Court to exercise this jurisdiction and that is, for us, a sufficient basis for the legitimacy of the power. However, the reason why some constitutional scholars agonise over the legitimacy of the power is that judges are unelected and therefore are not electorally accountable. On the other hand, this very lack of electoral accountability is probably one of the justifications or rationales for judicial review. The Constitution expects judges to protect individuals and minorities from the power of the majority. The fundamental human rights and freedoms enshrined in Chapter 5 of the Constitution are intended to facilitate the fulfilment by judges of this expectation. The fact that judges are unelected in democracies such as ours strengthens their capacity to protect individuals and minorities because their tenure is not dependent on the short-term wishes of the majority of the electorate. Marjoritarian institutions such as Parliament and the Executive are less well-suited to the protection of the interests of individuals and minorities because of the pressure applied on them by the will of the majority which they represent.

A similar point is made by Professor Laurence Tribe in his well-regarded book American Constitutional Law, Volume One (Third Edition, Foundation Press, New York, 2000) at pp. 27-28, where he says:

“Although the non-judicial branches, too, are sworn to uphold the Constitution, the independent judiciary has a unique capacity and commitment to engage in constitutional discourse –to explain and to justify its conclusions about governmental authority in a dialogue with those who read the same Constitution even if they reach a different view. This is a commitment that only a dialogue-engaging institution, insulated from day-to-day political accountability but correspondingly burdened with oversight by professional peers and vigilant lay critics, might plausibly be expected to maintain. The price we pay for allowing judges to discharge this commitment is that, for various periods of time, an enlightened consensus and perhaps even a vigorous public debate may be blocked by blind judicial adherence to constitutional views we will later come to regret. But the price of the alternative course is that, for other periods, the enlightened informed public discourse and perhaps ultimately the consensus that judges might help to catalyze in the name of the Constitution may be blocked by more self-interested or short-sighted majorities.”

These are among the reasons that must have persuaded the framers of our Constitution to confer on this Court the power of judicial review of legislation. The conferment of a comprehensive power of judicial review on the Supreme Court dates back to the 1969 Constitution. However, even the 1960 Republican Constitution had a provision on judicial review in its Article 42(2), which gave an original jurisdiction to the Supreme Court “in all matters where a question arises whether an enactment was made in excess of the powers conferred on Parliament by or under the Constitution…” The absence, though, of any meaningful Bill of Rights and the paucity of restraint on the power of the Parliament of the First Republic meant that judicial review did not loom large in the constitutional order established under that Constitution. Indeed, the contemporary formulation of the power of judicial review in force since 1969 was undoubtedly influenced by the perceived timorousness of the Supreme Court of the First Republic in the famous case of Re Akoto [1961]GLR 523. Since then, the Supreme Courts of the Second, Third and Fourth Republics have been clear about their power to strike down legislation in conflict with the Constitution. Indeed, even in relation to the Independence Constitution of 1957, there was some scope for limited judicial review of legislation since, although it did not contain a full Bill of Rights, it did contain protection against compulsory acquisition of property without compensation in section 34 of the Constitution Order-in-Council and also against racial discrimination and interference with religious freedom in section 31. Restrictions were also placed on the power of Parliament over chieftaincy matters and over regional devolution.

Among the first cases in which the Supreme Court’s power of judicial review was sought to be invoked under the contemporary formulation was Gbedemah v Awoonor-Williams (1969) G & G 442, where, although the alleged offending statute was not struck down, Apaloo JA, as he then was, delivering the judgment of the Court, and Azu Crabbe JA, as he then was, dissenting, never doubted that the Court had the power to strike down the legislation, if need be. (This was a case of the Court of Appeal sitting as the Supreme Court under the transitional arrangements then in place.)

The power of judicial review was exercised by the Supreme Court of the Third Republic when it held, in Kwakye v Attorney-General [1981] GLR 9, that the State Proceedings (Amendment) Decree 1969 (NLCD 352) was inconsistent with article 2(1) of the 1979 Constitution, where a person sought to invoke the original jurisdiction of the Supreme Court, and was to the extent of the inconsistency void. Apaloo CJ, delivering the judgment of the Court, explained as follows (at p.13):

“We think that where a person seeks to invoke the original jurisdiction of the court on a complaint founded on article 2(1) of the Constitution, the State Proceedings (Amendment) Decree of 1969 is ineffectual. It is, in our opinion, plainly inconsistent with that article and is voided by article 1(2).”

Similarly, the current Supreme Court struck down parts of subsidiary legislation promulgated under the Liquor Licensing Act, 1970 (Act 331) as being inconsistent with the letter and spirit of the 1992 Constitution, in Mensima v Attorney-General [1996-97] SCGLR 676. See also the decision of the Court of Appeal in 1976, as the final court of appeal then, in Agyei v Apraku & Ors [1977] 1GLR 111.

The nature of the jurisdiction conferred on this Court by Article 2(1) was widely canvassed in the Sam (No.2) case (supra) where it was authoritatively settled that:

“It is clear then that the jurisdiction under article 2(1) is a special jurisdiction available to citizens of Ghana only, irrespective of personal interest.” (Per Bamford-Addo JSC at page 315 of the Report (supra)).

In that case, the Plaintiff sued for a declaration from the Supreme Court that section 15 of the Divestiture of State Interests (Implementation) Law 1993 (PNDCL 326) was inconsistent with or in contravention of the provisions of articles 140(1) and 293(2) and (3) of the 1992 Constitution and to that extent was null and void. The Supreme Court granted him the declaration sought, thus striking down as unconstitutional the offending section 15 which was in the following terms:

“No action shall be brought and no Court shall entertain any proceedings against the State, the Committee or any member or officer of the Committee in respect of any act or omission arising out of disposal of any State interest made or under consideration under this Law.”

There is thus a striking similarity between the material facts of that case and the present case in that they both deal with denial of access to the courts. We believe that the ratio decidendi of that case is binding on the Court in this case.

The unimpeded access of individuals to the courts is a fundamental prerequisite to the full enjoyment of fundamental human rights. This Court has a responsibility to preserve this access in the interest of good governance and constitutionalism. Unhampered access to the courts is an important element of the rule of law to which the 1992 Constitution is clearly committed. Protection of the rule of law is an important obligation of this Court. Accordingly, we are willing to hold that, quite apart from the legal reasoning based on Article 140(1) of the Constitution, which is outlined later in this judgment, it is incompatible with the necessary intendment of Chapter 5 of the Constitution for a statute to provide for a total ouster of the jurisdiction of the courts in relation to rights which would otherwise be justiciable. This is an interpretation of the Constitution which is intended to reflect a core value of the Constitution, namely, public accountability of the government and its agencies in the interest of democracy.

Public accountability of the Executive implies an obligation on the part of the Executive (including its agencies), where any legal person shows just cause, to explain its performance and conduct and to remedy any legal wrong that the Executive may have committed. This obligation would be eroded if the Executive were able to insulate its conduct in particular areas involving justiciable rights from the scrutiny of the courts.

A further reason for prohibiting the barring of access to the courts is that it brings into question the very function of the judiciary. Under our Constitution, the judiciary is given the role of a watchdog against abuse or excess of power by the Executive or the Legislature. This function of the judiciary as a third pillar of responsible and accountable government would be undermined by the ouster of the jurisdiction of the courts in any matters relating to justiciable rights. In short, the constitutional vision immanent in the 1992 Constitution is inconsistent with the barring of access to the courts established under the Constitution. As the Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government, endorsed by the Heads of Government Meeting in Abuja, Nigeria, in 2003, have put it (in Principle VII(c)):

“Best democratic principles require that the actions of government are open to scrutiny by the courts, to ensure that decisions taken comply with the Constitution, with relevant statutes and other law, including the law relating to the principles of natural justice.”

It should be pointed out, in this connection, that this case provides an illustration of the need to apply an interpretation of the Constitution that furthers the objective purpose of the Constitution. In the judgment of Dr. Date-Bah JSC in Professor Asare v Attorney-General (to be reported in 2003-2004 SCGLR), he explained our understanding of this approach to interpretation. This is 3what he said then (at p.  ):

“The subjective purpose of a constitution or statute is the actual intent that the authors of it, namely, the framers of the constitution or the legislature, respectively, had at the time of the making of the constitution or the statute.

The objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values etc. of the society for which he is making law. This objective purpose will thus usually be interpreted to include the realisation, through the given legal text, of the fundamental or core values of the legal system. A poignant illustration of objective purpose is to be found in the Australian case of Theophenous v Herald Weekly Time Ltd.  (1994) 182 CLR 104. 

In the context of the Ghanaian legal system, the core values from which could be distilled the objective purpose of constitutional provisions would include the provisions of Chapters 5 and 6 of the Constitution and core doctrines such as the doctrine of the separation of powers. In this connection, I would like to refer to the dictum of Sowah JSC (as he then was) in Tuffuor v Attorney-General [1980] G.L.R 637 at p. 647, which is frequently referred to and is in this case relied on by both the Plaintiff and the Defendant. He said:

“The Constitution has its letter of the law. Equally, the Constitution has its spirit….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. 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.”

The “spirit” to which Sowah JSC refers is another way of describing the unspoken core underlying values and principles of the Constitution. Justice Sowah enjoins us to have recourse to this “spirit” or underlying values in sustaining the Constitution as a living organism.

The distinction between subjective and objective purposes of a legal text can be significant. An emphasis on the objective purpose may be important in order to respond to social and other change. At the same time, authorial intent (subjective purpose) cannot be ignored. The interplay between subjective and objective purposes, therefore, has an important influence on a judge’s approach to constitutional and statutory interpretation.”

There is no doubt that any meaningful analysis of the fundamental core values of the 1992 Constitution, as distilled from, inter alia, Chapters 5, 6 and 11, would lead inexorably to the conclusion that a total ouster of the jurisdiction of the courts in relation to any justiciable rights is unconstitutional. In short, such ouster is against the spirit of the Constitution and thus unlawful. We elaborate below on the mechanics of the line of thought on which we base this view.

First, we would like to say, in relation to the provisions on the courts in our current Constitution, that a good starting point in the task of the identification of the core values relating to them would be the The Proposals of the Constitutional Commission for a Constitution for Ghana (1968) which provided the basis for the provisions on the Judiciary in the 1969 Constitution which, in substance, have been retained in subsequent constitutions.

Paragraph 502 of the Proposals (at p. 138) is in the following terms:

“502.  It is our considered view, which is happily shared by all Ghanaians, that the Law Courts of Ghana shall be the custodian and the bastion of the liberty and dignity of Ghanaians, the guardian of the Constitution, in short, the citadel of justice. The independence of Judges is an essential prerequisite to the attainment of this objective, and it can be achieved only under certain accepted conditions.”

A similar thought was articulated by President Wilson of the United States in a passage quoted from him by the U.S. Supreme Court in Evans v Gore (1920) 253 US 245 . He said (at pp. 251-252):

“Our courts are the balance wheel of our whole constitutional system, and ours is the only constitutional system so balanced and controlled. Other constitutional systems lack complete poise and certainty of operation because they lack the support and interpretation of authoritative, indisputable courts of law. It is clear beyond all need of exposition that for the definite maintenance of constitutional understandings it is indispensable, alike for the preservation of the liberty of the individual and for the preservation of the integrity of the powers of the Government, that there should be some non-political forum in which those understandings can be impartially debated and determined. That forum our courts supply. There the individual may assert his rights; there the Government must accept definition of its authority. There the individual may challenge the legality of Governmental action and have it adjudged by the test of fundamental principles, and that test the Government must abide; there the Government can check the too aggressive self assertion of the individual and establish its power upon lines which all can comprehend and heed.

The constitutional powers of the courts constitute the ultimate safeguard alike of individual privilege and of governmental prerogative. It is in this sense that our judiciary is the balance wheel of our entire system; it is meant to maintain that nice adjustment between individual rights and Governmental powers which constitutes political liberty.”

What these two quotations express is that constitutional arrangements such as those prevailing in Ghana cannot work to their purpose unless there is a court system in place to resolve matters impinging on the liberty of the individual and the powers of government. Implied in this proposition is the principle that there should be untrammelled access to the courts. It is this core value which informs the general provision in Article 125(5) of the Constitution, which proclaims that:

“The Judiciary shall have jurisdiction in all matters civil and criminal, including matters relating to this Constitution, and such other jurisdiction as Parliament may, by law, confer on it.”

Provisions derogating from this central constitutional role of the judiciary and the courts are inherently incompatible with a core value of the Constitution.  Sam (No.2)  relied principally on Article 140(1) of the Constitution to outlaw the denial of access to the courts that the facts of the case presented. We are in this judgment founding the unconstitutionality of the denial of access evident on the facts of this case on a deeper and wider footing. In our view, the denial of access, on the facts here, offends against a core value of the Constitution and is therefore in conflict with the spirit of the Constitution. We have already identified some of the specific provisions of the Constitution which conflict with any statutory endeavour to deny access to the courts. These include Chapter 5, whose fundamental freedoms would not be justiciable without access to the courts, and Articles 125(5) and 140(1) referred to above. But, it is the cumulative effect of these provisions that we wish to highlight, rather than the individual provisions.

So repugnant to the core values of the Ghanaian legal system is the barring of access to the courts that Edusei J., as he then was, declared, in the High Court, even during the rule of a military regime, in Labone Weavers Enterprises Ltd. v Bank of Ghana   [1977] 2 GLR 156 at p. 157 that:

“I am of the view that every person has an unimpeded access to the law courts of this country, and this basic and fundamental right can only be taken away by express provision of a Decree or an Act of Parliament if that Act does not run counter to any provisions of the Constitution that the country may have.”

Reflecting the core value articulated there by the learned and respected judge, we are in this case giving further protection to the core principle expressed in that case by holding that, under the current constitutional regime, even express statutory provisions cannot take away the right of access to courts. Such statutory provisions are repugnant to the spirit of the Constitution. 

The present case is one of those cases where the constitutional principle of interpretation that all the relevant provisions of the Constitution should be read as a whole and not individually needs to be invoked. As Justice White of the Supreme Court of the US said in South Dakota v North Carolina (1940) 192 US 268, at p. 465 of the Lawyer’s Edition:

“I take it to be an elementary rule of constitutional construction that no one provision of the Constitution is to be segregated from all the others and considered alone, but that all provisions bearing upon a particular subject are to be brought into view and are to be so interpreted as to effectuate the great purpose of the instrument.”

Accordingly, applying the cumulative and integrated effect of the constitutional provisions referred to above, we clear in our mind that section 5 of PNDCL 125 is unconstitutional, as being against the spirit of the 1992 Constitution.

Next, we return to the Sam (No.2) case. The Plaintiff’s argument there was rather better constructed than in the current case, where the blunderbuss approach of counsel for the Plaintiff meant that he did not really focus his argument on the issue of denial of access to the courts, until circumstances compelled him to do so during the hearing of this case on 8th March 2005. It was this lack of precision which necessitated his oral modification of his case in the face of this Court.

The better argumentation of the Plaintiff in the Sam (No. 2) case relied on Articles 140(1) and 293(2) and (3) of the 1992 Constitution in order to succeed in that case. We believe that those same provisions are relevant to the outcome of this case.

Article 140(1) is in the following terms:

“The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.”

Clauses (1) to (3) of Article 293 provide as follows:

“(1)     Where a person has a claim against the Government, that claim may be enforced as of right by proceedings taken against the Government for that purpose without the grant of a fiat or the use of the process known as petition of right.

(2)      The Government shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject –

a.  In respect of torts committed by its employees or agents;

b.  In respect of a breach of duties which a person owes to his employees or agents at common law or under any other law by reason of being their employer; and

c.  In respect of a breach of the duties at common law or under any other law attached to the ownership, occupation, possession or control of property.

(3)      No proceedings shall lie against the Government by virtue of paragraph (a) of clause (2) of this article in respect of an act or omission of an employee or agent of the Government unless the act or omission would, apart from this article, have given rise to a cause of action in tort against that employee or his estate.”

The Plaintiff’s claim in the Sam (No.2) case was that the cumulative effect of articles 140(1) and 293(1) to (3) quoted above was to render unconstitutional the indemnity granted to the State and the employees of the Divestiture Implementation Committee from court proceedings by section 15 of PNDCL 326. This was the claim which was upheld by the Supreme Court.

The main difference between the current case and the Sam (No. 2) case is that here the defendant in the substantive (employment) case is not the Government itself but a statutory corporation. There is therefore no need to resort to Article 293 in relation to that defendant. Nevertheless, to strike down the statutory impediment in PNDCL 125 to access to the High Court jurisdiction under article 140(1) set out above, it is necessary to sue the Government for the declaration sought by the Plaintiff herein.

Applying the ratio decidendi of Sam (No. 2), it may be asserted that, to the extent that section 5 of PNDCL 125 purports to oust the jurisdiction of the High Court, it is in conflict with article 140(1) and being a mere statute must fall away to the extent of its inconsistency. Any statutory provision intended to impede access to the general unlimited jurisdiction of the High Court, as set out above in Article 140(1), is equivalent to an endeavour to curtail that jurisdiction. That jurisdiction being one conferred by the Constitution itself, any statute in conflict with it is unconstitutional to the extent of such conflict. It is, accordingly, not surprising that learned counsel for the Attorney-General conceded the unconstitutionality of sections 5 and 6 of PNDCL 125. Thus, in addition to the broader ground, based on the core values of the Constitution, which has been articulated above, there is also this narrower ground derived from a precedent binding on this Court, according to which the denial of access to the courts manifest on the facts of this case is unconstitutional.

Moreover, in this particular case, PNDCL 125 being a statute enacted by an unelected regime, the issues as to the legitimacy of the exercise of judicial review (raised above) do not even arise in relation to this statute. This Court should therefore declare that section 5 of PNDCL 125 is null and void. We do not consider it necessary to come to a view on section 6 of PNDCL 125 since the Plaintiffs have not pleaded any facts indicating that any action is pending in any court in respect of any act or omission referred to in section 5 of the Law. Nevertheless, in view of the holding of this Court in the Sam (No.2) case, supra, that a dispute or controversy involving a Plaintiff personally is not a necessary precondition to the invocation of this Court’s original jurisdiction, this Court has the prima facie jurisdiction to declare section 6 of PNDCL 125 also to be null and void. However, that section does raise issues as to conduct prior to the coming into force of the Constitution on 7th January 1993 and the applicability of section 34 of the transitional provisions of the 1992 Constitution which we consider unnecessary to resolve in order to give the Plaintiffs in this case an effective remedy. We will therefore not rule on the constitutionality of section 6.

As regards the unconstitutionality of section 5, the transitional provisions of the 1992 Constitution, as explained in the Sam (No. 2) case, are not of assistance to public officials whose post January 7th 1993 conduct is in question.

Accordingly, we would grant the Plaintiffs’ amended claim for a declaration that section 5 of the Ghana Cocoa Board Re-Organisation and Indemnity Law, 1985 (PNDCL 125) is unconstitutional and void. We find it unnecessary to rule on the constitutionality of section 6 of that same Law.

SGD 

 W.A. ATUGUBA

JUSTICE OF THE SUPREME COURT

  SGD

S.A.B. AKUFFO, (MS)

JUSTICE OF THE SUPREME COURT

 SGD

 G. T. WOOD (MRS)

JUSTICE OF THE SUPREME COURT

 SGD

 DR. S. K. DATE-BAH

JUSTICE OF THE SUPREME COURT

 SGD

 R.T. ANINAKWAH

JUSTICE OF THE SUPREME COURT

COUNSEL:

Mrs. Kathleen Quartey Ayensu C.S.A. for Attorney-General.

Mr. Samuel Klayson for Plaintiff.

Mr. John D. Clottey-Sefa for 2nd Defendant.