SOLOMON FAAKYE VRS UNIVERSITY OF GHANA AND THE ATTORNEY GENERAL

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2024

CORAM: SACKEY TORKORNOO (MRS.) CJ (PRESIDING)

PWAMANG JSC

KULENDI JSC

ASIEDU JSC

GAEWU JSC

DARKO ASARE JSC

ADJEI-FRIMPONG JSC

CONSOLIDATED WRITS

NO. J1/10/2018 & J1/03/2019

24TH APRIL, 2024

SOLOMON FAAKYE ………… PLAINTIFF

VRS

1. UNIVERSITY OF GHANA ………… 1ST DEFENDANT

2. THE ATTORNEY GENERAL ………… 2 ND DEFENDANT

JUDGMENT

ADJEI-FRIMPONG JSC:

My Lords, this matter touches on the governance structure of the premier university of the country, the University of Ghana. It is the 1st Defendant in the matter. The plaintiff who initiated the action, describes himself as a citizen of Ghana and a lawyer with some experience in higher education law and policy. His plaint, put shortly, is that certain provisions of the University of Ghana Act, 2010 Act (Act 806) which establishes the 1st Defendant, as well as the entire Statutes of the University of Ghana by which the 1st Defendant is governed are inconsistent with the 1992 Constitution and hence void.

Accordingly, in two separate suits in which he joins in the Attorney General as 2nd defendant, he challenges the constitutionality of the said provisions of the Act and the entirety of the Statutes. He invokes the original jurisdiction of this Court under articles 2(1) and 130(1) of the 1992 Constitution to launch the suits.

In the first writ filed on 19th March 2018 intituled; Solomon Faakye (Plaintiff) v University of Ghana (1st Defendant) Attorney General (2nd Defendant) Suit No. J1/10 2018, which was subsequently amended pursuant to leave granted by this court on 8th November 2018, (the second amendment), he sought the following reliefs:

A. A declaration that Section 5 of the 1st Defendant’s Act (806) which designates the Chairperson of the University Council as Principal Officer and further gives her power to act in the absence of the Chancellor who is the Head of the 1st Defendant, when the Chairperson is not appointed by the University but by the President of the Republic is inconsistent with article 195(3) and article 285 of the Constitution and consequently void and of no effect.

B. A Declaration that the Statutes of the 1st Defendant being a set of rules made pursuant to Section 33 of Act 806 ought to have been laid before parliament and published in the Gazette in compliance with article 11(7) of the Constitution and having not followed that procedure, its purported entry into force under Section 55 of the Statutes of 1st Defendant is void and of no effect.

Or in the alternative to (Bi), (Bii) as follows:

 

B(ii). A Declaration that 1st Defendant having failed to comply with article 11(7) was bound to comply with article 296(c) of the Constitution in the exercise of her discretion to make Statutes and having failed to comply, 1st Defendant is in breach of the Constitution and thus the Statutes emanating from her breach is void and of no effect.

In the second writ filed on 14th November 2018 also intituled Solomon Faakye (Plaintiff) v University of Ghana (1st Defendant) Attorney General (2nd Defendant) Suit No. J1/3/2019, the plaintiff sought the following reliefs:

A.  A declaration that Sections 11(a,b,c) of the Defendant’s Act (Act 806) which make the Chancellor and the Vice Chancellor members of the University Council, is inconsistent with and in contravention of the true meaning and effect of article 70(1)(a)(iii), article 297(a) and article 58(1) of the Constitution and therefore void.

B. A declaration that Section 11(h) & (j) of Act 806 which gives powers to the University Council to appoint 4 persons to the University Council is inconsistent with and in contravention of the true meaning and effect of article 70(1)(a)(iii) of the 1992 Constitution of Ghana, and to the extent of this inconsistency is void and of no effect.

C. A declaration that section 11(e,f,k,m,&n) of Act 806, which give representation on the 1st Defendant’s Council to named groups and corporate bodies, is inconsistent with and in contravention of article 70(1) of the 1992 Constitution of Ghana and in consequence void and of no effect.

D. A declaration that Section 11(g), (i) &(l) of Act 806, which prescribe a mode of membership to the University Council, namely nomination in the case of (g) and election in the case of (i) and (l) are inconsistent with and in contravention of article 70, 297 and 58(1) of the Constitution and consequently void and of no effect.

Capacity

 

In both suits, the plaintiff discloses his capacity as a concerned citizen of Ghana in terms of articles 2 and 41(b) of the Constitution. Article 41(b), a Chapter Six provision (on the Directive Principles of State Policy) imposes a civic duty on every citizen to uphold and defend the Constitution. Then Article 2(1) of the Constitution has also provided thus:

“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 in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

In effect, the plaintiff, a citizen of the country, is in this Court in the discharge of his civic duty to uphold and defend the supreme law of the land through the declaratory reliefs he has sought in both suits. It is certainly within his right to do so. He is circumstanced as was described by Date-Bah JSC in AMIDU (NO.2) V ATTORNEY GENERAL ISOFOTON SA & FORSON (N0.1) [2013-2014]1 SCGLR 167 thus:

“The plaintiff as citizen of Ghana is entitled as of right to challenge in the Supreme Court any act or omission of any person which is inconsistent with or in contravention of a provision of the constitution even if the Attorney General is also in court against the same defendant in a civil case. This right follows from the principle established by Sam (No.2) v. Attorney General [2000] SCGLR 305… A citizen’s duty under Articles 3(4) and 41(b) to defend the constitution is of sufficient interest to invoke the Supreme Court’s special jurisdiction under Article 2(1).” See also TUFFOUR V ATTORNEY GENERAL (1980) GLR 637; NPP V ATTORNEY GENERAL (31st December case) (1993-94)2 GLR 35; AGYEI-TWUM V ATTORNEY GENERAL (2005-2006) SCGLR 732.

Jurisdiction

 

In the 2nd Defendant’s statement of case filed on 28th November 2018 in the first suit, an objection is raised against the court’s jurisdiction to entertain that suit. No such objection is however raised in the 2nd Suit. But does it matter? The court’s original jurisdiction under articles 2(1) and 130 of the Constitution being exclusive, special and peculiar, it still falls on us to determine foremost whether, the jurisdiction has properly been invoked.

It appears a settled practice in this court that whenever in an action, its exclusive original jurisdiction under articles 2(1) and 130 has been invoked, the court has always satisfied itself that it is properly seized with the matter. It is considered an unavoidable duty. It is not far from right to state that jurisdiction is always in issue in such matters. And it so whether the parties joined issue on it or not. The Courts exclusive original jurisdiction attracts pre-eminence if the issue is considered this way. We seek support in the well- articulated words of Akuffo CJ in BENJAMIN KPODO, MP, RICHARD QUASHIGAH, MP VRS ATTORNEY GENERAL, Suit No. j1/03/2018 (12th June 2019) thus:

“The original jurisdiction of this court being a special one, whenever it is invoked, it must be evident that the matter falls within the perimeters set by the Constitution and as clarified in several decisions of the Court, such as Ghana Bar Association v Attorney General [2003-2004]1 SCGLR 250, Bimpong Buta v General Legal Council [2003- 2004]2 SCGLR1200 and Abu Ramadan v Electoral Commission Writ No. J1/14/2016…This is important for ensuring that the special jurisdiction is not needlessly invoked and misused in actions that, albeit dressed in the garb of a constitutional action, might be competently determined by any other court. Consequently, is has become our practice that in all actions to invoke our original jurisdiction, whether or not a Defendant takes objection to our jurisdiction, or expressly agrees with the plaintiff that our jurisdiction is properly invoked, we take a pause to determine the question of the competence of the invocation of our jurisdiction, before proceeding with the adjudication of the matter or otherwise.”

The objection the 2nd Defendant raises as deduced from his statement of case is procedural. It is formulated this way:

“Jurisdiction. Respectfully, the plaintiff however failed to state the provision of the Constitution on the basis of which he seeks to invoke the Original jurisdiction of the Supreme Court. The only indication of the invocation of the Original jurisdiction of the Supreme Court is contained in the title of the suit which states: AMENDED WRIT TO INVOKE ORIGINAL JURISDICTION OF THE SUPREME COURT PURSUANT TO ORDER OF JOINDER ON 5TH JULY 2018.” Article 130 of the Constitution necessarily needs to be invoked for the Supreme Court to assume its Original jurisdiction and failure to invoke same is fatal.”

The case cited for this position is this court’s decision in BAKO-ALHASSAN V ATTORNEY GENERAL [2013-2014]2 SCGLR 823. [See Page 6-7 of 2nd Defendant’s Statement of Case filed on 28 -11-2018].

We will interpolate at this point to make a few observations before we address the objection. From the record, this court on 21st May 2019 ordered the parties to file legal arguments on the question of jurisdiction within two weeks of the order. The order appeared to be on the back of the objection argued by the 2nd Defendant in the statement of case. The plaintiff duly filed his arguments on 31st May 2019. There is no record of the Defendants filing their arguments in compliance with the order. The 1st Defendant on 6th June 2019 filed a process which is titled “WRITTEN ADDRESS ON WHETHER THE PLAINTIFF PROPERLY INVOKED THE JURISDICTION OF THE SUPREME COURT”. In the said address, the 1st Defendant virtually reproduces the 2nd Defendant’s argument in objection to the court’s jurisdiction. The address though filed after the court’s order of 21st May 2019, does not appear to be responding to it. This is because several other arguments are contained therein that answer to the merits of the plaintiff’s claim. The contents are more or less a statement of case in response to the plaintiff’s writ except that it contains an objection to the jurisdiction of the court in the fashion presented by the 2nd Defendant. It is clear on examining the sequence of the processes on record that the Defendants did not comply with the court’s order of 21st May 2019 to file written legal arguments on the question of jurisdiction. This attitude is considered reprehensible and must be deprecated in no uncertain terms. The orders of any court are made to be obeyed and complied with. Nothing is negotiable about this. Parties who appear in this or any other court must understand that orders such as the one of 29th May 2019 are meant to regulate and manage the judicial process. They are intended to assist parties in the presentation of their cases for the overall fair and expeditious dispensation of justice. They are not made for recreation.

Back to the objection to jurisdiction, we notice that the plaintiff’s arguments filed on 31st May 2019 sufficiently responds to the objections earlier raised in the 2nd Defendant’s statement of case of 28th November 2018 and that contained in the 1st Defendant’s “Written Address” of 6th June 2019. We therefore proceed to address the objection on that score.

The Defendants are saying that the plaintiff did not properly invoke the original jurisdiction of this court. Were they understood, their reason for saying so is that, the plaintiff did not specifically indicate on the writ that he was invoking article 130 of the Constitution. This, they deem a fatal default. According to them “Article 130 of the Constitution necessarily needs to be invoked for the Supreme Court to assume its Original jurisdiction and failure to invoke same is fatal”.

By failure to invoke, (Article 130), we understand the defendants to mean, failure to state on the writ issued that, the action is brought in terms of article 130 or words and numbers to that effect. As a matter of fact, on the plaintiff’s amended writ filed on 11th July 2018 titled AMENDED WRIT TO INVOKE THE ORIGINAL JURISDICTION OF THE SUPREME

COURT PURSUANT TO ORDER OF JOINDER ON 5TH JULY 2018 the plaintiff only indicates that:

“The Plaintiff brings this action as a concerned citizen of Ghana in terms of Article 2(1)(b) of the Constitution of the Republic of Ghana, 1992”. There is clearly no indication of article 130 in that statement or anywhere in the amended writ. This is what the Defendants are complaining about. But is there any procedural requirement to indicate article 130 in the writ? And even if there is, does failure to so state mean the jurisdiction of this court cannot be invoked?

The plaintiff argues that not only do the processes he has filed in this court sufficiently disclose a cause of action, but they also invoke the exclusive original jurisdiction of the court. He contends by way of analogy that just as a cause of action is ascertained from a writ and statement of claim as held by this court in AXES CO. LTD V KWAME POKU & 2 ORS [2012]2 SCGLR 1, a cause of action in a constitutional matter is ascertained from the writ and the statement of case. Overall, the culmination of his argument is embodied in the following submission of his:

“My Lordships, at paragraph 1.6, 1.7 and 2.1 13 of my statement of case I have specifically invoked article 130(1) and article 2 of the 1992 Constitution of Ghana. I have also in my reliefs specifically and unequivocally sought declarations that identify provisions of the 1st Defendant law and statutes which are inconsistent with the Constitution. I have gone beyond the Date-Bah JSC test [in ADOFO V ATTORNEY GENERAL & COCOBOD] to provide factual and legal basis of my claims. I have done this by showing in my statement of case how the impugned legislation in its ordinary meaning offends article 195(3), 285 and article 11(7) of the Constitution. I have in the first part of this submission and my statement of case, referred specifically to the Constitutional provisions in issue and given particulars of why and how Defendants provisions conflict and contravene same in line with the requirement laid down by Adinyira JSC in Bomfeh vrs AG (J1/14/2017) [2019] GHASC. My Lord in effect I have gone beyond the threshold of a mere allegation required under article (2) to the discharge of the semblance of an evidential burden in civil proof.”

We have thoroughly considered the entirety of the arguments the plaintiff has made on the issue. We prefer his course to the Defendants’ technical approach urged upon us. We will indulge ourselves a little digression with the following discourse.

Rules 45 and 46 of the Supreme Court Rules, 1996 (C.I 6) (as amended) which regulates the procedure for invoking the original jurisdiction of this court have the following provisions:

“45. (1) Except as otherwise provided in these Rules, an action brought to invoke the original jurisdiction of the Court shall be commenced by writ in the Form 27 set out in Part III of the Schedule to these Rules which shall be signed by the Plaintiff or his counsel.

(2)  The writ shall set out as concisely as possible the nature of the relief sought by the plaintiff and shall state—(a) the full name of the plaintiff and the capacity in which he is bringing the action;

(b)  the address of the plaintiff and of his counsel if any, which shall be the address for service;

(c)  the names and addresses of all parties who may be directly affected by the action; and

(d)  such other particulars as the Court may from time to time direct.

(3)  A copy of the writ shall be served on each of the parties mentioned in the writ as directly affected who shall be considered as the defendants and on the Attorney General if not named specifically as a defendant.

(4)  The Court may, at any time on its own motion or on the application of party, order that any other person shall be made a party in addition to or in substitution for any other party.

46. (1) The plaintiff may file a statement of his case with the writ, or shall in any case within fourteen days of the filing of the writ file the statement of his case.

(2) The statement of the plaintiff’s case shall state—(a) the facts and particulars, documentary or otherwise, verified by an affidavit, upon which the plaintiff seeks to rely;

(b)  the number of witnesses to be called, if any; and

(c)  a list of the decided cases and of the statute law on which the plaintiff intends to rely.

(3)  Where a statement of the plaintiff’s case is not filed within the fourteen days of the filing of the writ, the respondent may apply to the Court to have the action struck out.”

The Form 27 referred to in Rule 45 subrule (1) is easy to describe. It already bears the heading of the writ as:

“IN THE SUPREME COURT OF GHANA

WRIT TO INVOKE ORIGINAL JURISDICTION”

 

In addition, there are blank spaces in which to fill the particulars set out in Rule 45 subrules (2) (a) to (c).

In the first place, if one thing is clear from the above provisions, it is that nowhere is there any specific requirement to state article 130 or any other provision of the Constitution for that matter for purposes of invoking the court’s jurisdiction. Indeed, per contra, it appears the makers of the Rules themselves envisaged a situation where certain particulars may be absent from the writ. It is the reason they have provided under Rule 45 subrule (2)(d) that the Court may direct, from time to time, the indication of such other particulars as it may require. On this reckoning, the demand being made by the defendants seems to be their own creation.

Further, besides the writ, the statement of case to be filed by a plaintiff affords another opportunity to fill in any important particulars. This is in terms of Rule 46 subrule (2)(a). Thus, subject to the specific provisions of the Rules, if any information not stated in the writ was found in the statement of case,that would be sufficient.

As the plaintiff has contended, his statement of case contains all the particulars necessary for the defendants and this court to appreciate the case he intended to make including the fact that he is invoking the original jurisdiction of this court under article 130.

The BAKO-ALHASSAN case, the peg on which the defendants hanged their argument is unhelpful to their point. It was a case where the plaintiff, acting pro se invoked the original jurisdiction of this court to complain about what he thought was an unfair judicial system where there was no special procedural dispensation to parties who, as untrained lawyers, chose to prosecute their case on their own before the courts. The court had to address the issue of whether the unrepresented and non-professional lawyer litigant had any rights granted under the 1992 Constitution and the Rules of procedure of the courts to freely and without any inhibition represent themselves in the courts. It was in this context and in refusing the plaintiff’s claim as not cognizable by law that Dotse JSC delivered himself in the following passage which the Defendants rely on and quoted to us:

“Despite the fact that the plaintiff mentioned only Article 2(1)(a) and (b) of the 1992 Constitution as the provisions under which she filed her writ, she could have succeeded if she had brought herself under the provisions of Article 130(1)(a) of the 1992 Constitution. It is to be noted therefore that whilst it is Article 2(1)(a) and (b) which confers the right on citizens to bring actions to invoke the original jurisdiction of the Supreme Court, it is Article 130(1)(a) which sets out the parameters of the jurisdictional limit of the Supreme Court.”

In effect, the Court was not merely saying that the plaintiff failed to state on the writ that he was invoking the original jurisdiction of the Court and for that default its jurisdiction was not invoked. Rather, the court was addressing the failure to invoke its jurisdiction in substantive terms. The case is therefore a poor authority for the proposition the Defendants have made to us.

Thus far, we find no merit in the Defendants’ objection. We will hold that the plaintiff’s writ sufficiently invokes the original jurisdiction of this Court for the adjudication of the merits of his case. With these preliminary issues out of the way, we proceed to address the issues raised in the two suits.

Issues

My Lords, by an order of this Court dated the 27th November 2019, the two suits were consolidated. Following the order of consolidation, the two sides in accordance with Rule 50 of the rules of this Court, (The Supreme Court Rules, C.I. 16 as amended) filed a joint memorandum of issues. The issues agreed for our determination are:

1. Whether or not Section 5 of Defendant’s Act (Act 806) which includes the Chairperson of the University Council as a Principal Officer, is inconsistent with article 195(3) and article 285 of the Constitution.

2.Whether or not 1st Defendant Statutes violates article 11(7) of the 1992 Constitution.

3. Whether or not Section 11(a,b,c) of the Defendant’s Act (Act 806) which makes the Chancellor and Vice Chancellor members of the University Council, is inconsistent with and in contravention of the true meaning and effect of article 70(1)(a)(iii), article 297(a) and article 58(1) of the Constitution and therefore void.

4. Whether or not Section 11(h) & (j) of Act 806 which gives powers to the University Council to appoint 4 persons to the University Council is inconsistent with and in contravention of the true meaning and effect of article 70(1)(a)(iii) and 190(3) of the 1992 Constitution of Ghana, and to the extent of the inconsistency is void and of no effect.

5. Whether or not Section 11(e, f, k, m, & n) of Act 806, which give representation on the 1st Defendant’s Council to named groups and corporate bodies is inconsistent and in contravention of article 70(1) of the 1992 Constitution of Ghana and in consequence void and of no effect.

6. Whether or not Section 11(g), (i) & (l) of Act 806, which prescribes a mode of membership to the University Council, namely nomination in the case of (g) and election in the case of (i) and (l) are inconsistent with and in contravention of article 70, 297 and 58(1) of the Constitution and consequently void and of no effect.

Alternative Relief

1. Whether or not the non-publication of 1st Defendant’s Statutes in the Gazette violates article 296(c) of the Constitution.

We shall address the issues not in the order listed in the joint memorandum of issues. Again, we note that issues 3 to 6 turn on the President’s power of appointment under article 70. The common thread running through them is whether the channels to constitute the membership of the council under the impugned provisions are inconsistent with article 70 of the Constitution. Put differently, do those channels take away or attenuate the President’s power of appointment under article 70? Those issues can therefore be considered in composite terms. We now proceed to consider the issues.

Issue (2)- whether or not 1st Defendant Statutes violates article 11(7) of the 1992 Constitution.

Plaintiff’s argument on issue (2)

The plaintiff wants the Statutes of the 1st Defendant declared void for the reason that its enactment was not in accordance with article 11(7) of the Constitution. He begins his argument by referring to Section 33 of the Act which mandates the University Council to enact Statutes for carrying the Act into effect and in particular to Regulate such matters as appointment, conditions of service, termination of appointment and retirement benefits. The Statutes are therefore made pursuant to an Act of Parliament. According to him the Statutes and the Act are published together in a single document titled “The Laws of the University of Ghana” and this speaks to the normative character of the Statutes. He contends that the Statutes is a body of rules and regulations and therefore constitutes a statutory instrument within the meaning of Section 1 of the Interpretation Act. Its enactment therefore must be in accordance with article 11(7) of the Constitution, i.e., it must be laid before Parliament, published in the Gazette and come into force after 21 days unless annulled by Parliament by two-thirds majority votes.

The plaintiff points out that even though under Section 34 of the Statutes, The Statutes of the University is defined as administrative guidelines, this does not defeat its status as a statutory instrument and in any case, there are various provisions that in substance, show its regulatory character. Reference is made to Schedule A titled Regulations for the Single Transferrable System; Schedule F on Rules and Procedures for the Appointment and Promotion of Senior Members and Schedule G on Regulations Governing University Examination etc.

The plaintiff refers to this Court’s decision in ASARE V G.L.C. [Writ No. J1/1/2016) to the effect that the power granted to the General Legal Council was to be exercised by means of statutory instruments and not administrative fiat.

The plaintiff further refers to the case of BAFFOUR AKOTO V ATTORNEY GENERAL [2012]2 SCGLR 1295 which established the position that executive instruments were not required to be laid before parliament. He argues however that the Statutes of the 1st Defendant were not executive acts of the nature contemplated in the case because in terms of article 58 of the Constitution, it was not taken in the name of the President.

The Plaintiff also sought to distinguish the instant situation from the practice in England where the statutes of the Universities of Oxford and Cambridge are essentially executive acts and states for his position thus: “It could therefore be said that the statutes of the two oldest Universities in the common law world are substantially Executive Acts/Instruments.”

Drawing the distinction further, the Plaintiff refers to other administrative rules sometimes statutory which may not be made under the power conferred by an Act of Parliament or the Constitution and which relates to such matters as Allocation of business within the Civil Service, Administrative directions, Pronouncements of government departments and Administrative Instructions. Those may not have a force of law and not binding but are distinguishable from non-executive instruments made under a power conferred by the Constitution itself or an Act of Parliament.

The instant scenario according to the plaintiff, was also different from what was obtainable under the now repealed Companies Act (Act 179) which required the registration of the company’s regulations even before it was formed.

To end his case, the plaintiff describes the Statutes of the 1st Defendant as a legislative instrument and he does so by reference to Section 21(9) of the Interpretation Act, 2009 (Act 792). This is what he says after quoting the section:

“What we can clearly gather from this is that where the power is to make rules or and regulations as in the case of section 33 of the 1st Defendant’s Act, the correct label of the Statutory Instrument is ‘Legislative Instrument. It is not an order, instruction, and directive or made pursuant to executive authority, or in the name of the President, or authenticated by the President.”

Defendants’ response

 

Perusing the responses delivered by the defendants, we find commonality in the arguments advanced. To avoid needless repetition and check boredom, we have unpacked and repackaged them and for convenience, set them out in the following outline:

1. The fact that the Statutes of the 1st Defendant are made to regulate and in some parts also the word “Regulation” is used did not make it a “Regulation” within the meaning of article 11(7) to require compliance with the conditions set thereunder.

2. This Court in the case of BAFFOUR OSEI AKOTO V. ATTORNEY GENERAL [2012]2 SCGLR 1295 applying the decision in REPUBLIC VRS MINISTER OF INTERIOR, EX PARTE BOMBELLI has held that for an instrument to come within Orders, Regulations and Rules within the intendment of Article 11(7) it must be of Legislative nature. Not all instruments made under an enactment come within that intendment.

3. The Statutes of the 1st Defendants as defined under its Section 34 are administrative guidelines enacted to govern the internal operations of the University. It is not of a legislative nature as resolved in the cases cited.

4. The University of Ghana Act (Act 806), itself under Section 34 sets out the process by which the Statutes was to be enacted and this was complied with before the statutes came into force six years ago (i.e., as at the filing of the statement of case).

Determination

We start the analysis from the enabling provision in Section 33(1) of the Act which states:

 

“33. (1) The University Council may enact Statutes for carrying this Act into effect and in particular to (a) regulate the-

(i) Appointment

(ii) Conditions of service

(iii) Termination of appointment and

(iv) Retirement benefit of employees of the University

(b) determine the persons who form the academic staff under this Act;

(c) determine the persons who are authorized to sign contracts, cheques and any other documents on behalf of the University and otherwise regulate the procedure in relation to transactions entered into by the University;

(d) fix the academic year of the University; and

(e) ensure that the seal of the University is kept in proper custody and used only on the authority of the University Council.”

The Act then defines “Statutes of the University” under Section 34 to mean “administrative guidelines enacted by the University Council in accordance with this Act to govern the internal operations of the University.”

Pursuant to the above, the Statutes enacted has provided under Section 2 thus:

“2. These Statutes are made in accordance with the powers conferred on the Council under Section 33 of the Act.” And in line with its mission, the Statutes cover a wide range of matters for the governance of the operations of the University.

Article 11(7) whose interpretation and enforcement are being sought on this issue has the following provisions:

“(7) Any Order, Rule or Regulation made by a person or authority under a power conferred by this Constitution or any other law shall—

(a) be laid before Parliament;

(b) be published in the Gazette on the day it is laid before Parliament; and

(c)  come into force at the expiration of twenty-one sitting days after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Order, Rule or Regulation votes of not less than two-thirds of all members of Parliament.”

We are clear in our minds that the power granted to the University Council to enact the Statutes was not conferred by the Constitution. It was conferred under the aegis of “any other law” in terms of article 11(7). The Act (Act 806) is the law under which Parliament conferred the power by Section 33(1).

The first question that agitates our minds is whether Parliament itself intended the Statutes to be Order, Rule or Regulation within the intendment of article 11(7) so as to require the 1st Defendant to comply with the provisions in the said article. We believe the intention of Parliament in conferring the power is a constituent part of the broader context of the law which we cannot ignore as we embark upon this venture of interpretation, which is the determination of whether the Statutes belong to the class of instruments requiring article 11(7) compliance. The intention of the law maker belongs to the context of the law. In “The Discipline of the Law”, one of the memorial treatises of Lord Denning, the legend said of the evolution and establishment of this approach under English common law as follows:

“The new approach was scotched. It took a long time to bring it to life again. Yet gradually it came. Even in the House of Lords, some Law Lords began to say…that it was their task to find out the intention of Parliament: and that they would adapt the words of the statute-put a strained construction on them if need be, to carry out that intention.”

The celebrated wordsmith cites the case of NIMMO V ALEXANDER (1968) AC 107 at 130 where Lord Wilberforce applied the approach in these terms:

“If I thought that Parliament’s intention could not be carried out, or even would be less effectively implemented, unless one particular (even though unnatural) construction were placed on the words it has used, I would endeavor to adopt that construction.”[Page 14- 15]

To the same effect, Kludze JSC in ASARE V ATTORNEY GENERAL [2003-2004]2 SCGLR 823 at 846, opined:

“I agree that we must adopt a purposive construction of the constitutional provision. This means that we do not construe words in the abstract but within the context in which they are used. Language is a tool for expressing the wishes of the speaker, author, or writer. Therefore, regardless of the theoretical classification and methodology of construction, the fundamental rule is for the court to construe every enactment with the purpose of effectuating the true intent of the framers of the 1992 Constitution. All other canons of construction have the ultimate purpose of achieving this goal.”

Date-Bah JSC for his part said (at page 846):

 

“The task of interpretation is always complex, usually involving the balancing of competing interests, and the ‘rules’ of interpretation, whether the ‘literal rule’, ‘the golden rule’, ‘the mischief rule’ or ‘the purposive approach’ are to be applied in the context of particular enactment in order to achieve justice.”

We note that when Parliament granted the power to the University Council to enact the Statues under Section 33(1), it did not stop at that. It proceeded to set out in detail how the University Council was to discharge the duty. This is contained in Section 33(2) of the Act as follows:

33. “(2)  A  Statute  of  the  University  is  enacted  if

(a)   a draft of the Statute has been circulated to the members of the University Council at least fourteen days before the meeting at which it is to be considered, and

(b)  after consideration by the meeting the draft has been provisionally approved without amendment or only with amendments of which notice in writing was circulated to the members at least three days before the meeting,

(c)  the Statute as provisionally approved has been circulated to the members of the University Council and where in the opinion of the Council, the Statute affects academic matters, the Statute shall be circulated to the members of the Academic Board at least seven days before the meeting at which the Statute is to be confirmed and,

(d)  the Statute is confirmed without amendment at a meeting of the University Council held not less than one month after the meeting at which it was provisionally approved.”

The above procedure is what Parliament itself prescribed for purposes of enacting the Statutes by the University Council. To our minds, if Parliament intended that the Statutes be subjected to its surveillance procedure under article 11(7), it would have stated so.

It is to be recognized that the conditions set out under article 11(7) for a subsidiary legislation to meet, are underscored by Parliament’s legislative power under the Constitution. Those conditions are anchored on the power of delegated legislation. The rationale is not far-fetched. In simple terms, it is to economize Parliamentary time and allow infusion of expertise in rule-making. If Parliament were to enact every minute legislation, the legislative machinery would crush. Thus, allowing the executive and other bodies to legislate on subsidiary basis is to bring efficiency and sometimes expertise to bear on rule-making. In the words of H.W.R Wade:

“All the orders, rules, and regulations made by ministers, departments and other bodies owe their legal force to Acts of Parliament, except in the few cases where the Crown retains original prerogative power. Parliament is obliged to delegate very extensive law-making power over matters of detail and to content itself with providing a framework of more or less permanent statutes.” (H.W.R. WADE & C.F FORSYTH “Administrative Law”, 11th ed., p.723).

At the same time, it is necessary for Parliament to keep a legislative eye on such subsidiary legislations. It must oversee and supervise the rules thus made. It must keep the subsidiary legislation on its parliamentary dashboard. After all, Parliament was the origin of the power. This, we think is the raison d’etre of the article 11(7) conditions.

Observably however, in the majority of cases where Parliament has granted power to make subsidiary legislations in the parent Acts, it has not gone beyond stating the subject areas on which the body is to legislate. We illustrate the point by citing few examples from a catalogue of Acts of Parliament.

In the Registration of Births and Deaths Act, 2020 (Act 1027) the power is granted under Section 47 thus:

“47. The Minister shall, within twelve months of the coming into force of this Act, by a legislative instrument, make Regulations—(a) on the particulars for the registration of births, foetal deaths, and deaths; (b) to prescribe the forms and content of a certificate to be issued under this Act; (c) to provide for the disposition of dead bodies; (d) to provide detailed procedures for late registration; and (e) on any matter necessary for the effective and efficient implementation of this Act.”

This model has been used in the following list of Acts of Parliament; Section 83 of the Right to Information Act, 2019 (Act 989); Section 29 of the National Communication Authority Act, 2008 (Act 769); Section 112 of the Narcotic Control Commission Act, 2020 (Act 1019); Section 96 of the Mental Health Act, 2012 (Act 846); Section 41 of the Human Trafficking Act, 2005 (Act 694); Section 96 of the Cybersecurity Act, 2020 (Act 1038); Section 83 of the Borrowers and Lenders Act, 2020 (Act 1052); Section 41 of the Domestic Violence Act, 2007 (Act 732); Section 50 of the Anti-Money Laundering Act, 2008 (Act 749 (As amended); Section 207 of the National Pensions Act, 2008 (Act 766); Section 27 of the Judicial Service Act, 2020 (Act 1057); Section 59 of the Witness Protection Act, 2018 (Act 975); Section 97 of the Electronic Communications Act, 2008 (Act 775) (As amended); Section 78 of the 78 of the Office of Special Prosecutor Act, 2017 (Act 959) and Section 10 of the Vigilantism and Related Offences Act, 2019 (Act 999).

In none of these provisions did Parliament prescribe the procedural steps by which the institution was to enact the instrument as it has done in the case of the enactment of the Statutes of University of Ghana by Section 33(2) set out above. It is trite that Parliament does not speak in vain. Every provision is presumed to be enacted to satisfy an intention or cure a mischief. There is a presumption against tautology. The maxim ut res magis valeat quam pereat applies here. In LANGUNJU V OLUBADAN-IN-COUNCIL (1947)12 WACA 223 at 236 the court noted:

“…in the words of Halsbury’s Laws of England, 2 ed., Vol. XXI pages 501-2: It may be presumed that: (i) that words are not used in a statute without a meaning and so effect must be given, if possible, to all the words used, for the legislature is deemed not to waste its words or say anything in vain.”

We think the provision in Section 33(2) is a manifestation that the law maker itself did not intend the statutes to be an instrument to be laid under article 11(7).

My Lords before we are misunderstood, the foregoing is not to say that Parliament has power to waive a constitutional provision or requirement. In the system of constitutional supremacy that we have carved for ourselves under the 1992 Constitution, Parliament has no such power. We certainly cannot reason for ourselves such a position. The point being made however is that, since this was a power granted not under the Constitution but under an Act of Parliament, Parliament had the right to determine how the University Council was to exercise the power and having so determined, we, for purposes of interpretation are entitled to draw inferences and conclusions.

A corollary of the above conclusion is the principle which appears settled in our law that where an enactment has prescribed a procedure for doing an act, that is the procedure to follow. See BOYEFIO V NTHC [1997-98]1 GLR 768.

But were the Statutes of legislative nature so as to require compliance with article?

 

It is prudent to begin with the determination of the nature of the Statutes. No doubt the Statutes were a statutory instrument. Statutory instrument, they were, because they were made under a power conferred by an Act of Parliament. The term ‘Statutory instrument’ appears a generic expression for all subsidiary rules made upon a power granted by Parliament. Legislative instrument and executive instrument are the key examples.

Constitutional Instrument does not come in. For its source of power is the Constitution itself.

The plaintiff argues that the statutes were a legislative instrument. He relies on Section 21(9) of the Interpretation Act. The provision there is as follows:

“One statutory instrument may be made under powers variously expressed as powers to make Rule, Regulation or any other different descriptions of legislative instrument or under powers variously expressed as powers to make orders, or give directions or any other different descriptions of executive instrument, and the provisions of the instrument may be described as being of one of those descriptions.”

It is doubtful the above provision leads to the conclusion that the statutes were a legislative instrument. The statutes do not fall under powers expressed as “any other different descriptions of legislative instrument” to yield the conclusion the plaintiff draws. In any event, legislative instrument has been defined under Section 1 of the Interpretation Act. The plaintiff could have made a straight dive to that section. Legislative instrument is defined as“…a statutory instrument that is legislative in character.” What does it mean to say an instrument is “legislative in character”? The court in EX PARTE BOMBELLI (supra) gives a pointer. It said:

“Legislative acts deal with general enactments i.e. laws which affect the general public. Such laws or enactments are not generally controllable by the courts.” (page 212 of the report).

A similar indication was given by this court in ASSOCIATION OF FINACE HOUSE V. BANK OF GHANA & ATTORNEY GENERAL, Writ No. J1/04/2021 judgment of 28th July 2021 where our revered brother Kulendi JSC opined on the facts of the case as follows:

“The 1st Defendant in its statement of case referred to the learned authors of Wade’s Administrative Law (6th Edition) at pages 847-848 which distinguishes between legislative power and administrative power. To recap the thought expressed therein in other words, an administrative power is one that is used to lay down the law or apply the law in particular situations, whereas legislative power is the power to lay down the law for people in general. The directive at issue in this case was to apply the already existing law or lay down the law when it comes to corporate governance on the Banks, necessitated by the recent financial crisis that our country has emerged from. It does not create laws that are of general application and therefore is an administrative (or executive) act and not a legislative act.” [emphasis added]

If one thing is beyond disputation in this case, it is that the Statutes were enacted to govern the internal operations of the 1st Defendant. It affects the members of that academic community only. It does not lay down the law to affect the general public. The Act thus defines the statutes under Section 34 as: “…administrative guidelines enacted by the University Council in accordance with this Act to govern the internal operation of the university”.

The plaintiff is not ready to accept this definition for the reason that in some parts of the statutes, the word regulation has been used. The blow in this contention is not powerful enough. For in the same Statutes, such other expressions as “Rules and Procedure, Bye laws, and in some instances, Statutes have been used to describe various rule-making activities at various levels. (See Schedules F, K M and N of the University of Ghana Statutes). So, if the word ‘Regulation’ appeared anywhere in the Statutes, it did so loosely. It could not have defined the character of the entire Statutes. We shall reject the Plaintiff’s contention that the Statutes are a legislative instrument.

Having done so, we are ready to adopt the description of the Statutes as administrative guidelines to govern the internal operations of the University” in terms of the definition in Section 34 of the Act. We sustain this position on the basis of Section 38 of the Interpretation Act which prescribes the application of Interpretation provisions of an enactment thus:

“38. (1) Definitions or rules of interpretation contained in an enactment apply to the construction of the provisions of the enactment which contains those definitions or rules of interpretation.”

In OKWAN V AMANKWA II (1991)1 GLR 123 at 131 Wiredu JA (as he then was) advocated:

“The general rule of interpretation is that where an enactment has clearly defined particular words in its interpretation section, it is uncalled for and most unnecessary to look elsewhere for the meaning of those words.”

Taking this direction, we are mindful that this is not an intractable rule. Definitions in interpretation sections do not apply inflexibly in every context. The law-maker recognizes this general common law position hence the provision under Section 38(2)(a) of the Interpretation Act which says we can take that path only if a contrary intention does not appear in the enactment. On reading the Act as whole, we find no provision suggesting an intention contrary to the adoption of the definition. The definition accords with what Parliament intended for it.

It is also worth-mentioning that in his persistent resolve that the Statutes required compliance with article 11(7), the Plaintiff never alluded to a single policy benefit for the position he advanced. During our deliberations at conference, we tried to turn our heads around to see if there was any compelling policy benefit for subjecting the 1st Defendant’s Statutes and by extension Statutes of the country’s Universities to article 11(7) conditions. We did not find any. On the contrary, we noted that the Universities are a place of higher education, research and professional training. Theirs is a pottage of disciplines that belong to the academic, research and professional community. Their area encompasses such special matters as higher education pedagogy, curriculum development and design, career training coaching and mentoring as well as the management of students’ behaviour and welfare. It is a turf that should be left to the community to run. Parliament may not have the expertise in such areas to launch any effective supervision over how they operate. The interpretation urged upon us by the Plaintiff therefore promises no benefit.

We on this note bring to mind the presumption in favour of consequential construction which the distinguished authors of Halsbury’ Laws of England describe in the following terms:

“1471. Presumption favouring consequential construction.

It is presumed to be the legislator’s intention that the court when considering

…which of the opposing constructions of the enactment …should assess the likely consequences of adopting each construction, both to the parties of the case and the law generally. If on balance, the consequences of a particular construction are more likely to be adverse than beneficent, this is a factor telling against that construction and may call for a strained interpretation… Equally, where the application of an enactment yields a beneficent result, the interpretative factors may on a balance indicate that the court should widen its application; this is known as liberal construction.” (Vol, 44(1), 4th ed., para1472, page 901--902).

On this note, we reject the Plaintiff’s contention on this issue and by reason of the analysis made, come to the conclusion that the Statutes of the 1st Defendant as administrative guidelines to govern the internal operations of the University, did not require to comply with the provisions in article 11(7) of the Constitution. Thus, on the basis that the Statutes were not legislative in nature, we follow the decisions of this Court in the BAFFOUR AKOTO and ASSOCIATION OF FINANCE HOUSES cases to hold that they did not require compliance of article 11(7).

Before resting from this issue, we think we need to recommend a legislative intervention in this area of the law, particularly to bring clarity and precision to the class of statutory instruments that must go through the conditions in article 11(7). The cases that have come before this Court, talking about BAFFOUR OSEI AKOTO V ATTORNEY GENERAL, ASSOCIATION OF FINANCE HOUSES V. BANK OF GHANA & ATTORNEY GENERAL and indeed, the one presently before us, have been dealt with in a ‘patchy fashion’. The Constitutional Revision Commission had cause to deliberate on the problem. In the end it made the following recommendation which wins our full approbation:

“The Commission recommends that the current provision on subsidiary legislation be amended to clarify the type of Orders, Rules and Regulations that are required to be approved by Parliament and those that do not need parliamentary approval. The Commission recommends that, in particular, the Constitution should clarify that Orders, Rules and Regulation of a legislative nature (those that lay down the law) would need to be approved by Parliament whilst those of an Executive and Administrative character do not need to be approved by Parliament.”

Alternative Relief

 

This is a convenient point to dispose of the Plaintiff’s alternative relief. The Plaintiff has argued in the alternative that having failed to comply with article 11 in making the Statutes, the 1st Defendant was to comply with article 296(c) of the Constitution since the enactment of the Statutes was a discretionary exercise. That is to say, the 1st Defendant was to publish by constitutional or statutory instrument, regulations that are not inconsistent with the Constitution to govern the exercise of the discretion.

We get rid of this argument easily by saying that being administrative guidelines, the 1st Defendant did not require to comply with article 296(c) either. We are convinced the position is settled by this Court in AFOKO V ATTORNEY GENERAL [2017-2020]2 SCGLR 1 where it was held that the Attorney General’s power to enter a nolle prosequi was an executive act which did not require compliance with article 296(c). We, in the strength of our conviction add that even if the 1st Defendant was required to comply with article 296(c), failure to do so will not nullify the Statutes as claimed by the Plaintiff. See RANSFORD FRANCE (No.3) V. ELECTORAL COMMISSION & ATTORNEY GENERAL [2012]1 SCGLR 705.

We now come to resolve Issue 1 which is- Whether or not Section 5 of Defendant’s Act (Act 806) which includes the Chairperson of the University Council as a Principal Officer, is inconsistent with article 195(3) and article 285 of the Constitution.

On this issue, the plaintiff’s case turns on the provisions in Section 5 of the Act and articles 195(3) and 285 of the Constitution. For a proper appreciation of the plaintiff’s argument, we set out the provisions in full.

“Principal Officers of the University

5. (1) The Principal Officers of the University are the Chancellor, the chairperson of the University and the Vice Chancellor.

(2) Prior to their assumption of office, the Chancellor, chairperson and members of the University Council and the Vice Chancellor shall swear the oath of office as prescribed in the Second Schedule of the Constitution and modified in the Schedule to this Act.

(3) The President shall administer the oath of the Chancellor.

(4) The Chancellor shall administer the oath to the other officers.”

Article 195(3). “The power to appoint persons to hold or act in an office in a body of higher education, research or professional training shall vest in the council or other governing body of that institution or body.”

Article 285. “No person shall be appointed to act as Chairman of the governing body of a public corporation or authority while he holds a position in the service of that corporation or authority.”

Plaintiff’s argument on issue (1)

 

In respect of article 195(3), the plaintiff argues that the power to appoint persons to act in an office in a public university is vested in the University Council. However, Parliament by Section 5 of the Act, has arrogated to itself the power to designate the chairperson of the University Council as a Principal Officer of the University when it is not the Council (but rather the President under article 70) that appoints him to any office. Thus, the authority to name an officer of the university does not belong to Parliament under Section 5 but to article 195 of the Constitution. To this extent, Section 5 of the Act is inconsistent with article 195(3) and must be declared void.

As regards article 285, the plaintiff contends that the provision therein clearly disallows the chairperson of the governing board of a public corporation or authority from holding a position in the service of that corporation or authority. The designation of the Chairperson of the Council as a Principal Officer contravenes this prescription. To the plaintiff, the Chairperson of the 1st Defendant’s Council is not just named a Principal Officer under the Act, but in terms of Section 8(4) of the Act and Section 4(3) of the Statutes of the 1st Defendant, he is made to perform a function in the absence of the Chancellor. By that, argues the Plaintiff, Section 5 is inconsistent with article 285 (and in the same sense, article 195(3) of the Constitution.

Defendants’ argument on issue (1)

 

The 1st and 2nd Defendants have contended otherwise. In its arguments (as contained in the Written Address filed on 6th June 2019), the 1st Defendant urges upon us a purposive interpretation of article 195(3) of the Constitution. And what did the 1st Defendant mean by that? It meant, article 195(3) is intended to give power to appoint other officers apart from the Chairperson and Council members to the Council itself. In essence and for consistency, office holders/officers anticipated under article 195(3) must be interpreted to mean other officers apart from office holders who by virtue of the provisions of the Constitution are to be appointed by other authorities as for example the president under article 70.

The 1st Defendant further argues that the Chairperson of the Council does not play a dual role as contended by the plaintiff. The plaintiff has failed to show that the chairperson in fact or by virtue of the Act, performs a dual role in the university aside what his job as chairperson entails. In the view of the 1st Defendant, to the extent that the chairperson holds a position in the university by virtue of article 70 of the Constitution, he is an officer of the university but not an officer appointed by the Council as contemplated under article 195(3).

The 2nd Defendant takes a position, similar to the 1st Defendant’s. It submits that whilst the Chairperson of the Council (and Council members) is appointed by the President by virtue of article 70 and Section 8(1) of the Act, other officials are appointed by other means of authority. The Council is empowered by article 195(3) to appoint other officers or staff of the university. Those officers or staff constitute the human resource pool of the university. However, there are those who bear the responsibility of ensuring that the policy objectives of the university are achieved and those are the Principal Officers named under Section 5(1). It is along this same vein that the chairperson of the university is appointed. He presides over the governing Council to among other things, ensure the realization the policy objectives of the university. To quote the 2nd Defendant;

“With such responsibilities, the 2nd Defendant submits that the Chairperson is an important entity in the leadership of the University. One whose shoulders lie [sic] the responsibilities of guiding the institution to achieve its objectives. Thus, to designate the Chairperson as one of the Principal of the University is to confirm the leadership position already conferred on him/her by virtue of the appointment (Chairperson). In effect the provisions in section 5(1) of Act 806 is meant to supplement Article 195(3) of the Constitution.”

To the plaintiff’s argument that the designation of the chairperson as Principal Officer of the university contravenes article 285 of the constitution, the Defendants’ simple answer is that the plaintiff has failed to show in fact or by virtue of the Act and the Statutes of the 1st Defendant that he plays a dual role hence, the plaintiff’s argument is flawed.

Determination.

 

Here, we have an invitation to determine the constitutionality of Section 5(1) of the Act which designates the Chairperson of the University Council as a Principal Officer. We are to inquire whether the section contravenes article 195(3) of the Constitution. In effect, the task is to assess whether in enacting the said section, Parliament exercised a power it did not have or exceeded a power it had. We embark on this venture by the power conferred on this court by article 130(1) of the Constitution. This is truly the power of judicial review of legislative acts. The foundation of it, is the supremacy of the Constitution in terms of article 1(2) which is enforceable under article 2.

In ADOFO VRS ATTORNEY GENERAL & COCOBOD [2005-2006] SCGLR 42 Date-Bah JSC touched on this court’s judicial review power over legislative acts as follows:

 

“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 enforced by this court in the discharge of its obligation to uphold the Constitution of the country. It is a power over whose legitimacy 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…”

About two years previously, Edward Wiredu JSC (as he then was) had had the following to say of the ambit of this court’s said jurisdiction in the case of GHANA BAR ASSOCIATION V ATTORNEY GENERAL (Abban case) [2003-2004]1 SCGLR 250 at 259:

“In this country… under the new order of constitutional supremacy, the Constitution… has vested the power of judicial review of all legislation in the Supreme Court. It has done away with either executive or parliamentary sovereignty and subordinated all the organs of State to the Constitution… The arms of State and the institutions involved in the appointment of the Chief Justice are all creatures of the Constitution and each, in playing its part, must exercise such powers as are authorized by it in a democratic manner as enshrined in the Constitution.”

We also agree that the relevant provisions especially article 195(3) must be construed purposively. The jurisprudence of this court appears settled on the purposive approach to interpretation and this has a statutory backing. Section 10(4) of the Interpretation Act, 2009 (At 792) states:

“(4) Without prejudice to any other provision of this section, a court shall construe or interpret a provision of the Constitution or any other law in a manner (a) that promotes the rule of law and the values of good governance, (b) that advances human rights and fundamental freedoms, (c) that permits creative development of the provisions of the Constitution and the laws of Ghana, and (d) that avoids technicalities and recourse to niceties of form and language which defeats the purpose and spirit of the Constitution and laws of Ghana.”

Even long before the enactment of the Interpretation Act, this court had in several decisions adopted the purposive approach to interpretation. For instance, in APPIAH AMPOFO V COMMISSIONER ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE [2005-2006] SCGLR 227, Date-Bah JSC in his opinion in support of the unanimous decision of the court opined:

“This case is a classic illustration of the need for purposive interpretation in constitutional matters. The plaintiff’s contention is for an interpretation of the provisions in Chapter Eighteen of the 1992 Constitution which might have some plausibility on a literal reading of the provisions but which, when viewed purposively, undermines what must have been the purpose of the framers of the Constitution and is therefore not a credible interpretation of the relevant provisions.”

The eminent jurist of our time repeated the same sentiment when in DANSO ACHEAMPONG & ABODAKPI V ATTORNEY GENERAL [2009] SCGLR 353 at 358 he said:

“These days, a literal approach to statutory and constitutional interpretation is not recommended. Whilst a literal interpretation of a particular provision may in its context be the right one, a literal approach is always a flawed one, since even common sense suggests that a plain meaning interpretation of an enactment needs to be checked against the purpose of the enactment, if such can be ascertained. A literal approach is one that ignores the purpose of the provision and relies exclusively on the alleged plain meaning of the enactment in question.”

A list of other cases in which the court has adopted the purposive approach will include; ASARE V ATTORNEY GENERAL [2003-2004]2 SCGLR 823; AGYEI-TWUM V ATTORNEY- GENERAL [2005-2006] SCGLR 732; TUFFOUR V ATTORNEY GENERAL (1980) GLR 637; OKOFO ESTATES V MODERN SIGNS LTD [1996-97] SCGLR 224, NMC V ATTORNEY GENERAL [2000] SCGLR 1.

Let it be pointed out at once that the chairperson of the governing Council, which is the office the plaintiff’s complaint is about, certainly cannot belong to the class of officers contemplated under article 195(3). To place him in that class will strike as absurd. In terms of article 195(3), he chairs the body with the power to appoint persons to hold or act in an office in a body of higher education, research or professional training.

Under Section 12 of the Act, the Council which he chairs performs the following functions:

 

“12. (1) The Council shall

(a) ensure the realization of the aims and objectives of the University;

(b) determine the strategic direction of the University and monitor, evaluate and implement the resultant policies;

(c)  ensure the creation of an environment of equal opportunity for members of the University without regards to ethnicity, sex, race, religious belief or political affiliation;

(d) promote income generating activities for the operations of the University as part of the University’s programme

(e) make professional level appointments on the recommendation of the Appointments Board of the Academic Board as may be determined in the Statutes of the University.”

These functions no doubt confer leadership role in the chairperson of the Council. The plaintiff’s argument is to the effect that by making the chairperson a Principal Officer, he is made to play a dual role of chairman of the governing board of the institution and at the same time a person holding a position of service in it. Sections 8(4) of the Act and Section 4(3) of the Statutes of the 1st Defendant are cited for this proposition.

The plaintiff’s argument will hold only if it is demonstrated that by his designation as a Principal Officer, the chairperson performs services in the University outside the scope of his leadership function as chairperson. On our review of the provisions in the Act and the Statutes of the 1st Defendant, we are unable to come to that conclusion. The Section 8(4) of the Act and Section 4(3) of the Statutes cited by the Plaintiff have the following provisions:

“8. (4) The chairperson of the University Council shall preside at meetings of the Council and where the Chancellor is absent, at Congregations and other meetings and ceremonies of the University.”

“4. (3) In accordance with Section 8 of the Act, the Council shall be headed by the Chairperson who shall act in the absence of the chancellor and shall preside at all meetings of the Council and generally provide direction to the Council in the performance of its functions.”

Reading the provisions as a whole and purposively, what the chairperson does apart from presiding over meetings of the council is to preside “where the chancellor is absent, at congregations and other meetings of the and ceremonies of the university.” ‘Other meetings’ when construed noscitur a sociis implies ceremonial rather than executive occasions. This duty, probably performed occasionally, is not outside the scope of his leadership role as chairperson of the council of the university. We take judicial notice of the fact that persons appointed as Chancellors are men and women of repute mostly international, who may not always be within the jurisdiction to chair such ceremonies. The Sam Jonas and the Otumfour Osei Tutus readily come to mind. We do not accept the position that whenever the chairperson of the Council presides over meetings in the absence of such persons, his role as chairperson is dualized in the real sense of the word. We must repudiate this contention the Plaintiff puts up..

What about article 285? Is Section 5(1) inconsistent with its provision? We may have to repeat the provision in article 285 which is:

“285. No person shall be appointed or act as the Chairman of the governing body of a public corporation or authority while he holds a position in the service of that corporation.”

In an article he titled “Public Accountability under the Constitutional framework of Ghana” published in Volume 26 of the University of Ghana Law Journal Professor Kofi Quashigah, a professor of law brings to the fore the essence of Chapter 24 of the Constitution on Code of Conduct of public Officers which includes article 285. He authored:

“An open and genuine attitude of ethical commitment to fight against corruption is very essential for any success in the crusade against corruption. The Constitution of Ghana went a step beyond mere commitment to an ethical code to actually establish a public sector ethical code. Under Chapter Twenty-four of the Constitution on Code of Conduct of Public Officers, a public officer is cautioned not to put himself in a position in which his personal interest conflict with the performance of the functions of his office.”

Article 285 ought to be understood in this context. The essence is to ensure that public officers do not position themselves or are not put in a position where their personal interest will conflict with the performance of their functions. This is to promote probity and accountability, a basic ideal espoused in various parts of the Constitution including the preamble and the social objectives under article 37(1). These are ideals we must champion at all times to eradicate corruption from all national endeavours.

As pointed out, the chairperson has not been shown to engage in duality of function in a manner contemplated by article 285 which is a conflict of interest--prevention provision. In the final analysis, we hold that Section 5(1) is not inconsistent with articles 195(3) and 285 of the Constitution.

We now come to deal with issues 3 to 6 which as we indicated shall be resolved in composite terms. The provisions in Section 11 of the Act are under attack in those issues. The Plaintiff is contending that certain provisions (almost all) under the section are inconsistent with the President’s power of appointment under article 70 of the Constitution. Even before we lay out the Plaintiff’s arguments, it will pay to set out the provisions in extenso to ease reference and allow a good appreciation of the rival arguments. They are:

“The University Council.

11. The governing body of the University is a Council consisting of

(a)  The Chancellor;

(b)  A chairperson;

(c)  The Vice Chancellor

(d) Four persons appointed by the President taking into account

(i) The need for gender balance,

(ii) Expertise in finance

(iii) Expertise in management

(e) One representative of the alumni of the University;

(f) Two representatives of Convocation, one of whom is from the non-teaching staff;

(g) One representative by the National Council for Tertiary Education nominated by the Council for Tertiary Education;

(h) A Vice Chancellor of an African University appointed by the Council

(i) An elected representative of the heads of second cycle institutions in Ghana;

(j) Four other persons appointed by the Council from outside the University two of whom are women;

(k) One representative of the University Teachers Association;

(l) One representative of  undergraduate students elected by  the  Students Representatives Council

(m) One representative of post-graduate students of the University branch of the Graduates Students Association; and

(n) One representative of the Teachers and Educational Workers Union.”

The Plaintiff’s arguments on issues (3)—(6)

The premise of the Plaintiff’s arguments stretching across all the impugned provisions of the Section is that by the provisions in article 70 of the Constitution, all the members of the governing body of the 1st Defendant (the Council) are to be appointed by the President. However, certain provisions under the section allocate or subject the power of appointment to other sources of authority in violation of article 70.

The first batch of provisions is contained in Section 11 subsections (a), (b) and c) above (although it appears from his argument, he has no issue with the (b)). The following passage from the Plaintiff’s statement of case encapsulates his contention:

“In effect, with the exception of the Chairman of Council whose inclusion in the governing body is already implied by article 70, the other persons, namely the Chancellor and Vice Chancellor take their permanent membership from Act 806. Thus, the right to be on the Council for these members is founded in statute. These provisions of the Act sins [sic] against the clearly prescribed constitutional process stipulated in article 70 for becoming a member of a governing board.”

The Plaintiff argues that the President is under article 58 duty to exercise the executive powers of Ghana in accordance with the Constitution. If the Constitution wanted to constrain the presidential power of appointment or dictate to the President by way of composition of the governing boards, it would have done so or at least empowered parliament to do so as in for example article 88(2) or article 259(1). In any case, contends the Plaintiff, if for any reason, Parliament believes the policy rationale for article 70 is faulted, the right process is an amendment process in article 289 and not by the ordinary legislative process.

The Plaintiff contends further that a further inconsistency is seen when the Act is juxtaposed with article 297(a) of the Constitution which provides that:

“The power to appoint a person to hold or act in an office in the public service shall include the power to confirm appointment, to exercise disciplinary control over persons holding or acting in any such office and to remove the person from office.”

Thus, if members of the University Council are acquiring their right to be members under an Act of Parliament, not only does it contradict the constitutional power of appointment but also creates the presumption that the power to remove belongs to the process under the Statute and not the President.

The next batch of the provisions under attack is 11(h) and (j).

 

The Plaintiff’s point is that the power to appoint members of the Council under article 70 is only constrained by the requirement to consult the Council of State. An Act of Parliament cannot encumber that power unless the Constitution itself subjects the exercise of the power to an Act of Parliament or to Constitutional instrument as in the case of for example article 278(1).

Furthermore, the power under article 70 is not a discretionary power that requires an article 296 procedure, it is a mandatory power. It therefore does not require a statutory or constitutional instrument to be exercised. The 1st Defendant’s Act which therefore seeks to take away that power and/or modify it, is immensely unconstitutional. If Council is being given the power to appoint under an Act, then by operation of article 297(a), Council is being given the power to remove. This, the Plaintiff describes as contradictory power of appointment and removal, prescribing that the only cure is to declare Section 11(h) and (j) void.

Next, the Plaintiff attacks the institutional/group representation provisions under sub- sections (e), (f), (k), (m), and (n) of Section 11. The Plaintiff’s argument is that the provisions have named the institutions/groups to be represented on the Council without expressly stating the mode to be used by the groups. Without specifying any mode to be employed according to the Plaintiff, the Act has vested a right of representation in those groups. The right created is inconsistent with the provisions in article 70 of the Constitution.

The Plaintiff argues that where the Constitution seeks to specify how a power of appointment should be exercised or what should guide a power of appointment, it stated so. He cites for example article 78(1) which states that majority of ministers of state should be appointed from Parliament. The posture is repeated in article 83(1), 206 and 201. Thus, if the framers of the Constitution wanted an Act of Parliament to regulate or modify the presidential power, they would have specifically stated so under article 194(b). He says even under article 194(b) where Parliament is given power to prescribe membership of the Public Services Commission, the Constitution makes that power subject to article 70. This, he contends manifests the fact that article70 power is a superior power and that where an Act of Parliament could modify it, that Act must be subordinate to and consistent with article 70 and must also take its authority from the Constitution itself.

Finally, the Plaintiff attacks the provisions in sub-section (i) and (g) of Section 11 of the Act. His plaint with respect to sub-section (i) is that by making an elected representative of the heads of second cycle institutions a member of the Council, the Act has prescribed its own mode, i.e., election which cannot co-exist with appointment. He wonders whether it is logical for a person to be elected and appointed at the same and if so whether a person whose right accrues by election can be ‘disappointed’ by the president. He contends that by prescribing election as a route and being silent on the President’s power to appoint, all that the provision seeks to achieve is to make a person a member of the Council by an election.

With respect to sub-section (g), which provides for one nominated representative of the National Council for tertiary education, the Plaintiff again sees a constraint on the President’s power. He argues that nomination cannot be a pre-condition to appointment under article 70. He explains:

“Nomination means there must be prior event by the NCTE before the President can appoint. The prior event in itself constitutes a prior restraint on a constitutional power because it limits the pool of persons from which the President can appoint. To the extent that section 11(g) constraints a constitutional power without authority, it can’t stand.”

In support of his arguments, the Plaintiff relies on three (3) decisions of United States courts in the cases of PUBLIC CITIZEN V UNITED STATES DEPARTMENT OF JUSTICE 491 U.S 440, 487 (1988), BUCKLEY V VALEO 424 U.S 1 (1976) and GUBIENSIO-ORTIZ V KANAHELE 857 f.2d 1245, 1260 (9th Cir).

 

2nd Defendant’s arguments on issues (3)—(6)

 

The 1st Defendant did not file a statement of case in response to these arguments. The 2nd Defendant’s responses to each of the attacks are captured as follows:

First, responding to the attack on the first batch of provisions contained in subsections (a), (b) and c), the 2nd Defendant disagrees that the Act has made the Chancellor and the Vice-Chancellor automatic members of the Council. It points out that Section 8(1) of the Act in confirmation of article 70 of the Constitution has provided that “The President shall in accordance with Article 70 of the Constitution appoint the Chairperson and other members of the University Council.” Section 8(1) therefore serves as a preamble to Section 11 of the Act which only spells out the membership of the Council to be appointed by the President as empowered by the Constitution. It also contended that article 190(3) clearly addresses the Plaintiff’s concerns by providing that an Act of Parliament stipulating provisions for governing boards shall provide for the functions and the membership. In effect, it is not out of place that those provisions spell out the membership of the governing board of the 1st Defendant. Subsections (a), (b) and (c) are not inconsistent with the Constitution and therefore not void as the Plaintiff has prayed.

In response to the next set of provisions under sub-sections (h) and (j) challenged by the Plaintiff, the 2nd Defendant does not agree that the appointments by the Council of a Vice-Chancellor of an African University and the four other persons take away the President’s power under article 70. About the Vice-Chancellor of an African University, the 2nd Defendant argues that the appointment by the Council is a selection process after which the suitable candidate is presented to the President to be appointed to the Council in accordance with article 70.

The 2nd Defendant refers to article 58(3) which stipulates that all functions conferred on the President may be exercised by him either directly or, through officers subordinate to him. The significance of the provision according to the 2nd Defendant is that the President in appointing the members of the University Council may be assisted by persons and or institutions to select suitable persons for appointment.

The 2nd Defendant makes a similar argument about the four (4) persons under sub- section (j) that, the so called appointment is a selection process by the Council after which a ‘formal’ appointment is made by the President.

To the attack on the institutional/group representation under sub-sections (e), (f), (k), (m), and (n) of Section 11, the 2nd Defendant refers to the norm where in the appointment of institutional representations on governing boards and Councils, the Council writes to such institutions to nominate representatives to be appointed by the President. This is to ensure that stakeholders of the university also contribute to the attainment of the University’s objectives. There is a constitutional provision allowing the President to delegate its powers and therefore it is not unconstitutional for the institutions to be spelt out in the law.

Finally, responding to the Plaintiff’s argument that the provisions under sub-sections (g) and (i) of Section 11 have set out a different procedure (appointment and election) to become members of the Council, the 2nd Defendant again refers to Section 8(1) which shows clearly that it is only the President who can appoint. It then delivers itself thus:

“The Black’s Law Dictionary, Ninth Edition defines “election” to men the exercise of choice; esp., the act of choosing from several possible rights or remedies…” The Black’s Law Dictionary (supra) also defines “nomination” as 1. “The act of proposing a person for election or appointment. 1. The act of naming or designating a person for an office, membership, award like title or status.” Thus, the words election and nomination as stated under section 11 of Act 806 are means by which the institutional representations on the University Council can choose suitable persons from their institutions for the appointment of the President to serve on the University Council. It is indeed not a different route of appointment.”

The 2nd Defendant concluded its argument by saying that the Constitution is a living document and therefore ordinary legislative growth is legitimate unless demonstrably unconstitutional. The provisions in Section 11 are not inconsistent with the Constitution as Plaintiff has argued. SALLAH V. ATTORNEY GENERAL (1970)2 G& G 493 and TUFFOUR V ATTORNEY GENERAL (1980) GLR 637 cited.

Determination

We should begin by hastening to address what we consider to be a misconception of two constitutional provisions contained in the 2nd Defendant’s responses. The first is the 2nd Defendant’s argument that article 190(3) addresses the Plaintiff’s concerns by providing that an Act of Parliament stipulating provisions for governing boards shall provide for the functions and the membership. Article 190(3) cannot address the Plaintiff’s concern which is that the Act under Section 11(a) and (c) has made the Chancellor and the Vice- Chancellor automatic members of the University Council in contravention of article 70 of the Constitution.

Article 190(3) stipulates thus:

 

“(3) Subject to the provisions of this Constitution, an Act of Parliament enacted by virtue  of  clause  (1)  of  this  article  shall  provide  for

(a)  the governing council for the public service to which it relates;

(b)  the function of that service; and

(c)  the membership.”

 

Meanwhile, the provision in article 70, material to the Plaintiff’s argument provides:

 

“70. (1) The President shall, in consultation with the Council of State, appoint—

(d) (iii) the governing bodies of public corporation.”

Article 190(3) begins with the phrase “subject to the provisions of this Constitution…” This means that article 190(3) is subject to the article 70(1)(d)(iii). The Plaintiff therefore cannot invoke article 190(3) to address the alleged unconstitutionality of the Section 11(a) and (c) in terms of article 70(1)(d)(iii). Article 190(3) cannot override or even out article 70(1)(d)(iii). It is subservient to it. The phrase “Subject to” is explained in the words of Uwaifo JSC in the Nigerian case of N.D.I.C. V OKEM ENTERPRISE LTD (2004)10 N.W.L.R (Pt. 880) 107 at 183 as follows:

 

“The expression “subject to” means liable, subordinate, subservient, or inferior to; governed or affected by; provided that or provided; answerable for…It must therefore be understood that “subject to” introduces a condition, a restriction, a limitation, a proviso. See Oke v Oke (1974)1 ALL N.L.R. (Pt.1) 443 at 450. It subordinates the provisions of the subject section to the section empowered by reference thereto and which is intended not to be diminished by the subject section… The expression generally implies that what the section is subject to shall govern, control and prevail over what follows in that subject section of the enactment so that it renders the provision to which it is subject to conditional upon compliance with the adherence to what is prescribed in the provision referred to…”

The explanation is not any different from the following statement of Megarry J in C & J CLARK LTD VRS INLAND REVENUE COMMISSIONERS (1973)2 ALL ER 513 at 520 to which ATUGUBA JSC referred in EDUSEI V ATTORNEY GENERAL (1998-99) SCGLR 753 at 805 to 806:

 

“…In my judgment, the phrase ‘subject to’ is a simple provision which merely subjects the provisions of the subject sub-sections to the provisions of the matter sub-sections. Where there is no clash, the phrase does nothing; if there is collision, the phrase shows what is to prevail. The phrase provides no warranty for universal collision.”

What we make of the above is that the 2nd Defendant cannot stand on article 190(3) to counter the Plaintiff’s contention that Section 11(a) and (c) are inconsistent with article 70(1)(d)(iii).

The other provision the 2nd Defendant refers to is article 58(3) which states:

 

“Subject to the provisions of the Constitution, the functions conferred on the President by Clause (1) of this article may be exercised by him either directly or through officers subordinate to him.”

The Plaintiff’s had argued that the provisions in Section 11(h) and (j) which appear to empower the Council to appoint a Vice Chancellor of an African University and four persons from outside the University contravene article 70. It is in answer to this contention that the 2nd Defendant invokes article 58(3).

In the first place, it is doubtful that the President’s power under article 70 is delegable. Again, the point we made about article 190(3) is applicable here because article 58(3) also begins with the phrase “subject to the provisions of the Constitution”. In any event, in the absence of any thing in the two sections to show that the Council was acting for the President, that, the 2nd Defendant will invoke article 58(3) to respond to the complaint of the Plaintiff against those sections is strange to relate.

That said, we come to the main controversy. Are the impugned provisions truly inconsistent with the provision in article 70 as the Plaintiff has contended? The pathway begins with two previous decisions of this court which have touched on the issue at bar.

Theophilus Donkor v Attorney General

 

The first is THOPHILUS DONKOR V ATTORNEY GENERAL Suit No J4/08/2017 judgment dated 12th June 2019. The reliefs of the Plaintiff in that suit are useful to state. He sought:

“1. A declaration that the removal from office of such Chief Executives, Chief Executive Officers, Director-Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic does not amount to just cause and is accordingly unconstitutional.

2.A declaration that to the extent that section 14 of the Presidential (Transition) Act 2012 (Act 845) requires all Chief Executives, Chief Executive Officers, Director Generals (howsoever called) and members of governing boards of public corporations to cease to hold office merely on account of the assumption of office of the person elected as President of the Republic, the said section 14 is unconstitutional as being inconsistent with the letter and spirit of the Constitution, particularly Articles 70(1)(d)(iii), 190 and/or191(b) of the Constitution.

3. An order of perpetual injunction restraining any person or authority from removing from office such Chief Executives, Chief Executive Officers, Director Generals (howsoever called) and members of governing boards of public corporations merely on account of the assumption of office of the person elected as President of the Republic of Ghana.”

A key task of the court was to determine the scope of Section 14 of the Presidential (Transition) Act, 2012 (Act 845) particularly paragraph 6 of the Schedule to Section 14 which captured “6. Persons appointed by the President or a Minister of State as members of Statutory Boards and Corporation.”

After considering the relevant Constitutional and statutory provisions including articles 70(1)(d)(iii), 190, 191(1)(b) 195(1) and Section 14 of Act 854 the Court speaking through Kotey JSC noted:

“Our first conclusion is therefore that paragraph 6 of the schedule to section 14 of Act 845 only applies to members of the governing bodies of statutory boards and corporations appointed by the President or a Minister of State of these public corporations who are public officers and not affected by Act 845. This is reiterated by section 14(3) of Act 845 which excludes public officers from the operation of the section. The composition, appointment, tenure and removal of the members of the governing bodies of Statutory Boards and Corporations is determined by the constituent Acts of particular institutions and no generalization can be made. The provisions of a random selection of constituents Acts will be examined to buttress this conclusion.”

The Court then ‘randomly’ selected the University of Ghana Act and proceeded to opine thus:

“3.3.1 Appointment of Members of Governing Bodies Section 11 of the University of Ghana Act provides;

11.  The governing body of the University is a Council consisting of

(a)  the Chancellor

(b)  a chairperson

(c)  the Vice-Chancellor

(d)  four persons appointed by the President taking into account

(i)  the need for gender balance

(ii)  expertise in finance

(iii)  expertise in management

(e) one representative of the alumni of the University

(f) two representatives of Convocation, one of whom is from the non-   teaching staff;

(g) one representative of the National Council for Tertiary Education nominated by the Council for Tertiary Education;

(h) a Vice Chancellor of an African University appointed by Council

(i) an elected representative of the heads of second cycle institutions of Ghana;

(j) four other persons appointed by Council from outside the University two of whom are women;

(k) one representative of the University Teachers Association;

(l) one representative of undergraduate students of the University elected by the Students Representative Council;

(m) one representative of post-graduate students of the University branch of the Graduate Students Association;

(n) one representative of the Teachers and Education Workers Union.

It is quite clear that apart from the Chairperson and four other persons appointed by the President, members of the University Council are not appointed by the President.”

Republic v High Court, Ex Parte John Bondzie Sey

The second case is REPUBLIC V HIGH COURT CAPE COAST, EX PARTE JOHN BONDZIE SEY, UNIVERSITY OF EDUCATION WINNEBA INTERESTED PARTY, now reported in [2019-2020] SCLRG (ADAARE) 575. It was case where one Dr. Samuel Ofori Bekoe who was a representative of Convocation on the governing Council of the University of Education Winneba, was dismissed by the Council following disciplinary proceedings conducted at the instance of the acting Vice Chancellor. An application for certiorari to quash the decision of the University and a prohibition to halt further disciplinary proceedings against him in the Cape Coast High Court was unsuccessful.

Subsequently the applicant invoked the supervisory jurisdiction of this court pursuant to article 132 of the Constitution and Rule 61 of the Supreme Court Rules (C.I 16). The remedies sought were an order of certiorari to quash the ruling of the High Court, a declaration that the dismissal of Dr. Bekoe was in breach of natural justice and an order reinstating him. It had inter alia been argued on behalf of the applicant that since the alleged misconduct of Dr. Bekoe occurred during a governing Council meeting and as a member thereof, the proper person to investigate the said misconduct was the Minister of Education and not the Vice-Chancellor. The provision relied upon was Section 6(3) of the University of Education, Winneba Act (Act 672). The provision is that; “Members of the University Council shall be appointed by the President in consultation with the Council of State.”

Contrariwise, the Interested Party argued that Dr. Bekoe as a Senior Lecturer was elected together with three others as convocation representatives onto the governing Council pursuant to Section 6(2)(f) of Act 672. It was submitted in that behalf that not all members of the governing Council were appointed by the President. Some persons were appointed by various stakeholders in the University such as UTAG, Convocation and SRC. The Court had to interpret Section 6(3) of Act 672 to determine how the governing Council of the University is constituted. Referring copiously to the Court’s earlier position in THEOPLHILUS DONKOR, Dotse JSC delivering the unanimous decision of the court noted:

“To understand the import of these provisions, the unreported Supreme Court case of Theophilus Donkor vrs The Attorney General Writ No. J1/08/2019 dated 12th June, 2019 is instructive. Our illustrious brother, Kotey JSC after reproducing section 11 of the University of Ghana Act concluded in the Theophilus Donkor case supra as follow:

“It is quite clear that apart from the Chairperson and four other persons appointed by the President, members of the University Council are not appointed by the President.”... In comparison to the University of Ghana Act where the court stated that the power of appointment of the President is limited to only the Chairperson and the other four persons, in the National Petroleum Authority Act and Forestry Commission Act, 1999 (Act 571) the President in consultation with the Council of State appoints all members.”

Even though the respected jurist saw, in terms of the appointment of the governing Council, a slight variation in the University of Ghana Act and those of the University of Health and Allied Sciences and University of Education Winneba, he was nonetheless prepared for demonstrable reasons, to construe Section 6(3) of Act 672 not to cover Dr Bekoe and other institutional and group representatives. He said:

“If one is to simply apply what the Supreme Court has stated to the Acts governing the Universities, one may conclude that in the case of the University of Ghana, the President’s power to appoint is limited., however in the case of the University of Health and Allied Sciences and university of Education, Winneba one may conclude that the legislature intended that all the Governing Council Members will be appointed by the President as has been admitted by the Applicant.”

For his reasons, his Lordship said:

 

“The absurdity that will arise from such interpretation is that the President in consultation with the Council of State must appoint representatives of Student Representative Council and even Alumni of the Universities. A true and proper interpretation of the relevant statutes would indicate that this is not the case. One must realize that the Vice Chancellor is part of the Governing Council. According to Article 195(3) of the Constitution 1992 which states:

“The power to appoint persons to hold or act in an office in a body of higher education, research or professional training, shall vest in the council or other governing body of that institution or body” Emphasis. The Supreme Court in the Donkor case (supra) in interpreting the said article stated thus:

“In accordance with article 195(3), the University of Ghana Act, 2010 (Act 806), for example provides in Section 9 as follows:

9(1) The university Council shall appoint the Vice-Chancellor who is answerable to the Council and is the academic and administrative head and chief disciplinary officer of the University. (2) The Vice-Chancellors shall hold office on terms and conditions specified in the letter of appointment. (3) The Vice-Chancellor shall hold office for a period of up to four years and is eligible for re-appointment for another term only. Vice Chancellor and heads of institutions of higher education appointed by their councils and not the President or Minister of State” Emphasis.”

In the final analysis, His Lordship concluded as follows:

 

“The conclusion one may arrive at from the above analysis is that the Vice Chancellor is part of the Governing Council because he is the Vice Chancellor not because he is appointed by the President. As such, other persons are members of the Governing Council by virtue of the fact that they are representatives of a particular group or entity albeit within the University. The power of appointment of the President should be limited to the Chairperson and those who are on the Council as representatives of the President. It is necessary to note that some members are on the Council purely as appointees of the President as can be seen from Section 11(d) of the University of Ghana Act, 2010 Act 806, Section 5(1)(c) of the University of Health and Allied Sciences Act, 2011 act 828 and Section 6(2)(a) of the University of Education, Winneba Act, 2004 Act 672.

The legislative intent behind Section 6(3) of the University of Education, Winneba Act, 2004 Act 672 is that, it spells out the mode of appointment of persons who are to be appointed by the President and not the mode of appointment of all members of the Governing Council. Only these “special persons” can be removed by the President. All other members of the Governing Council are subject and can be removed by the governing laws of the university or the body or institution they represent. The limitation as placed in the University of Ghana Act and as stated in the Donkor case should apply to all Universities.”

My Lords, we have had to engage in this elaborate recast of the decisions in the two cases for the simple but weighty reason that it bears answers to the substance of the Plaintiff’s grievance on the issue in contention. The decisions obviously contain definitive pronouncements and conclusions on matters of law that have emerged in the issues in contention before us. Being this court’s own previous decisions, we are bound to follow and apply them unless it appears to us right not to do so in terms of article 129(3) of the Constitution. It is instructive that none of the parties referred us to the two cases much less argue any grounds for us to make a departure.

In the event, following the decisions in Theophilus Donkor and Ex parte Bondzie Sey as we have decided to do, we hold that the provisions in the impugned provisions under Sections 11(a), (c), (e), (f), (g), (h), (i), (j), (k), (l) (m) and (n) are not inconsistent with article 70 of the Constitution. We are convinced by those decisions that the President’s power to appoint members of the 1st Defendant’s council must be limited to the chairperson and the other four appointees.

Coming to this decision, we advert a serious attention to Section 8(1) of the Act (Act 806) which states that “The President shall in accordance with article 70 of the Constitution appoint the chairperson and other members of the University”. This provision mirrors article 70 of the Constitution and we think it also underscores the well-known common law presumption of constitutionality, meaning, the legislature is presumed to have intended a statute to be constitutional. A well- recognized presumption applicable in many common law jurisdictions, it is said of it by the Indian Supreme Court in the case of SHRI RAM DALMIASHI JUSTICE S R TENDOLKAR [1959]SCR 279 thus:

“There is always a presumption in favour of the constitutionality of an enactment and this burden is on upon him who attacks it to show that there has been a clear transgression.” See application in the Singaporean cases of LEE KEN GUAN V PUBLIC PROSECUTOR [1977-1978] SLR (R) 78; PUBLIC PROSECUTOR V TAW CHENG KONG [1998]2 SLR (R)489; also U.S. cases of FLETCHER V. PECK 10 U.S. (6 Cranch) 87, 128 (1810); PARSONS V BEDFORD, 28 U.S. 433 (1830).

 

We presume that Parliament did not intend the provisions under Section 11 of the Act to run afoul with article 70 of the Constitution hence the provision in Section 8(1). Against this background and in order to work out the legislative intent, we think Section 8(1) must be construed harmoniously with the provisions in Section 11. By harmonious interpretation, we mean construing the Act as a whole in order that all the parts will work in harmony to achieve the legislative intent. See United Savings Assoc. of Texas v Timbers of Inwood Forest Associates Ltd. 484 U.S 365 (1988); Clark v Uebersee Finaz-Korporation, 332 U.S 480, 488 (1947); Tsikata v The Republic [2011]36 GMJ 1 Appiah-Ofori v Attorney General [2010] SCGLR 484; National Media Commission v Attorney General [1999-2000]2 GLR 577.

The decisions in Theophilus Donkor and Ex Parte Bondzie Sey have taught the lesson that, constituting the governing bodies of the Universities is not the preserve of a single authority. The President shares the power with the other stakeholders listed under Section 11 of the Act. A harmonious construction of Section 8(1) with Section 11 leads to the effect that the President’s power to appoint must be limited to the appointment of the chairperson of the Council and the additional four persons in terms of Section 11(b) and (d) whilst the other modes of ‘appointment’, ‘election’ or ‘representation’ are retained. This marks our rejection of the interpretation urged upon by the Plaintiff which is that it is only the President who must appoint all the members of the governing Council. We think we must also reject the part of the Defendants’ argument which suggests that the President is the ultimate appointing authority and that all the other ‘appointments’ and ‘elections’ are a precursor to that power.

The court in Ex parte Bondzie identified an absurdity that will result from the Plaintiff’s approach which is that it will mean that the President must in consultation with the Council of State, appoint representative of the Student Representative Council and even Alumni of the Universities. A worse from of absurdity we envisage, going by the Plaintiff’s approach, is traceable to the implied power provision in article 297(a). The provision states:

“(a) the power to appoint a person to hold or act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such and to remove the persons from office.”

This will mean that it is the President who will exercise disciplinary authority over the representative of the Students Representative Council or the Alumni representative. This is an absurdity that must be prevented and we do so by following the two earlier decisions of this court. The Plaintiff’s arguments are rejected together with the three external decisions he cited in support thereof which we find inapposite to our discourse.

Conclusion.

 

From the analysis made on all the issues set out in the joint memorandum of issues, we think the Plaintiff’s action must fail on all the reliefs sought on both writs of summons. Both suits are accordingly dismissed.

 

 

 

 

 

R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT)

 

 

 

 

G. SACKEY TORKORNOO (MRS.) (CHIEF JUSTICE)

 

 

 

G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

 

 

 

E.  YONNY KULENDI (JUSTICE OF THE SUPREME COURT)

S.K.A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

 

 

 

E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT)

 

 

 

 

COUNSEL

 

SOLOMON FAAKYE ESQ. APPEARS IN PERSON FOR THE PLAINTIFF.

 

KWABENA ADU-KUSI ESQ. FOR THE 1ST DEFENDANT WITH HIM, ALFRED SETORWU BUATSI & EMMANUELLA FAAH KYEREMEH.

DAPHNE AKONOR (PRINCIPAL STATE ATTORNEY) FOR THE 2ND DEFENDANT WITH GEORGINA MENSAH BONSU (PRINCIPAL STATE ATTORNEY) & DANIEL ARTHUR OHENE-BEKOE (ASSISTANT STATE ATTORNEY) LED BY HELEN AKPENE AWO ZIWU (MRS.) (SOLICITOR-GENERAL).