Akuse Amedeka Citizens Association v Attorney General and Another (J1/10/2013) [2015] GHASC 10 (15 January 2015);

Flynote:

Democracy

THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT ACCRA

WRIT NO.J1/10/2013

15^TH JANUARY, 2015

AKUSE AMEDEKA CITIZENS ASSOCIATION ---- PLAINTIFFS

Vs.

1. THE ATTORNEY-GENERAL ---- DEFENDANTS

2. ELECTORAL COMMISSION

JUDGMENT

GBADEGBE JSC:

On 15 January 2014, we pronounced judgment in the matter herein and reserved our reasons which we hereby provide as follows:

On 27 May 2014, we raised for the consideration of the parties a point of law that was carefully formulated as follows:

“Whether or not the reliefs in the instant action are not substantially the same as those sought in the case of Paul Obroni and Another v The Attorney-General and Others (Suit No J1/10/2013)?”

Following the said order, the parties have made full compliance by filing their respective responses to the point of law for the court’s consideration. While the plaintiff and the first defendant answered the question posed in the negative, the second defendant’s response was in the affirmative. In order to fully appreciate the said point of law and the responses filed by the parties reference is made in extenso with the reliefs claimed in the present action and that which was claimed in the Paul Obroni case (supra). In view of the fact that the issue was raised in the instant action, we commence with the reliefs claimed in the action herein.

i. “A declaration that on a true and proper interpretation of Article 4(1) of the Constitution, 1992 and the Greater Accra Act, 1982, PNDCL 26 as amended by Greater Accra Region (Amendment) Act, 1982, PNDCL 28, the ‘Erstwhile Osudoku Local Council’ established pursuant to Local Government (Osudoku Local Council) Instrument, 1952, constitute a part of the Greater Accra Region of the Republic of Ghana.

ii. A Declaration that, on a true, and proper interpretation of the Article 4(1) of the Constitution, 1992 and the Greater Accra Region Act, 1982, PNDCL 26 as amended by the Greater Accra Region (Amendment) Act, 1982, PNDCL 28, the townships of Akuse and Amedeka together with their electoral areas, namely, Salon Zongo New Town, Akutue, Osuduku Amedeka and Bungalow, being within the area of authority of the Erstwhile Osudoku Local Council, form part and parcel of the Greater Accra Region, one of the Regions provided for under Article 4(1) of the Constitution, 1992.

iii. A Declaration that the 1^st Defendant, the Minister of Local Government and Rural Development, acted in excess of powers granted him under section 3 of the Local Government Act, 1993, Act 462, when he purported to place Akuse and Amedeka Townships together with their electoral areas, namely Salon, Zongo New Town, Akutue, Osuduku, Amedeka and Bungalow in the Lower Manya Krobo District (as it then was) within the Eastern Region pursuant to Local Government (creation of new District Electoral areas and Designation of Units) Instrument, 2010 L. I. 1983, with the result that L. I. 1983 of 2010 to that extent is inconsistent with and in contravention of Article 4(1) of the Constitution, PNDCL 26 as amended by PNDCL 28, unlawful, null and void.

iv. A Declaration that the 1^st Defendant, the Minister of Local Government and Rural Development, acted in excess of powers granted him under section 3 of the Local Government Act, 1993, Act 462, when he purported to place Akuse and Amedeka Township together with their electoral areas, namely Salon, Zongo New Town, Akutue, Osuduku, Amedeka and Bungalow in the Lower Manya Krobo Municipal Assembly within the Eastern Region pursuant to Local Government (Local Manya Krobo Municipal Assembly) (Establishment) Instrument, 2012 L. I. 2046, with the result that L. I. 2046 of 2012 to that extent is inconsistent with and in contravention of Article 4(1) of the Constitution, 1992, PNDCL 26 as amended by PNDCL 28, unlawful, null and void.

v. A Declaration that the President, acted in excess of powers granted him under section 1(2) of the Local Government Act, 1993, Act 462, when he purported to place Akuse and Amedeka Townships together with their electoral areas, namely Salon, Zongo New Town, Akutue, Osuduku, Amedeka and Bungalow in the Lower Manya Krobo Municipality within the Eastern Region pursuant to Declaration of Municipalities, Instrument 2011, E. I. 82, with the result that E. I. 82 of 2011 to that extent is inconsistent with and in contravention of Article 4(1) PNDCL 26 as amended by PNDCL 28, unlawful, null and void.

vi. A Declaration that the 3^rd Defendant, the Electoral Commission, acted in excess of powers granted it under Article 47 clauses (1) and (5) and Article 51 of the Constitution, 1992, when he purported to place Akuse and Amedeka Townships together with their electoral areas, namely Salon, Zongo New Town, Akutue, Osuduku, Amedeka and Bungalow in the Lower Manya Krobo Constituency within the Eastern Region pursuant to Representation of the people (Parliamentary Constituencies) Instrument, 2012. C.I. 78 with the result that C. I. 78 of 2012 to that extent is inconsistent with and in contravention of Article 4(1) of the Constitution, 1992, PNDCL 26 as amended by PNDCL 28, unlawful, null and void.

vii. A Declaration that the omission of the President to exercise the powers granted him under section 1(2) to create a District within the Greater Accra Region for the Shai-Osudoku District Assembly established pursuant to Local Government (Shai-Osudoku District Assembly) (Establishment) Instrument, 2012, L.I. 2039, is inconsistent with and in contravention with Articles 240 and 241 of the Constitution, 1992.

viii. An order directing the Defendants to take all necessary and or proper steps to create a District within the Greater Accra Region within which to situate the Shai-Osudoku District Assembly established under Local Government (Shai-Osudoku District Assembly) (Establishment) Instrument, 2012, L. I. 2039.

ix. An order directing Defendants to take all necessary and or proper Constitutional steps to place Akuse and Amedeka Townships, together with all their electoral areas, inclusive of Salon, Zongo New Town, Akutue, Osuduku, Amedeka and Bungalow under the Shai-Osudoku District Assembly within the Greater Accra Region in compliance with PNDCL 26 as amended by PNDCL 28 and section 3 of the Local Government Act, 1993, Act 462.

x. An order directing the defendants to place Akuse and Amedeka Townships, together with all their electoral areas, namely, Salon, Zongo New Town, Akutue, Osuduku, Amedeka and Bungalow under the Shai-Osudoku constituency, established under the Representation of the People (Parliamentary Constituency) Instrument, C. I. 78.

xi. And for any such further or other order(s) as this Honourable Courtmay deem just.”

In the Paul Obroni case the following reliefs were also sought:

1. “A declaration that on a true and proper interpretation of Articles 4 and 11(4A) (5)(6) of the 1992 Constitution, Akuse which formed an integral part of the erstwhile Osudoku Local Council constitutes part of the Greater Accra Region, vide the Greater Accra Region Law, 1982, PNDCL 26 as amended by the Greater Accra Region (Amendment) Law, PNDCL 28 and Executive Instrument 30 of 1969.

2. An order directing the Ministry of Local Government and Rural Development and the Lands Commission of re-define the existing boundary map for the Greater Accra Region to conform precisely with PNDCL 26 as amended by PNDCL 28.

3. A declaration that LI 1983 of 19^th October, 2010, which seeks to place Akuse within the Eastern Region of the Republic of Ghana is in violation or inconsistent with the letter and spirit of Articles 4,11(4)(5)(6) and PNDCL 26 as amended by PNDCL 28 and to the extent of the inconsistency is null and void.

4. Any further reliefs or directions which the court may deem appropriate to give full effect or to enable effect to be given to the letter and spirit of the 1992 Constitution in this matter generally and particularly Articles 4(1) and 11(4)(5)(6) of the Constitution.”

A careful examination of the reliefs in the two suits reveals that the main issue that confronted the Court in both actions is the status and extent of PNDCL26 as amended by PNDCL 28 in so far as the location of Akuse and its environs, which are presently part of the Eastern Region of Ghana are concerned. The same question was previously decided by this Court in the case of Charles Mate Korle and Azago Kwetsiku v Electoral Commission and Attorney- General [2012] SCGLR 244. Indeed, in the Paul Obroni case (supra), following a preliminary objection taken to the action on grounds of res judicata by the previous judgment of the Court in the Charles Mate Korle case (supra), the Court unanimously upheld the plea and dismissed the action. The effect therefore of the point of law set down for trial in the action herein is that should we reach the conclusion that the action herein raises substantially the same questions for our decision as was the situation in the Paul Obroni case (supra), then we may have to apply our decision in the Charles Mate Korle case (supra), to the case herein. We think that the parties in their respective briefs responded to the point of law on this common understanding.

As said earlier on of the instant case, it raises the same questions for our decision as was the position in the Paul Obroni case (supra) as the main relief claimed is whether by PNDCL 26 and its subsequent amendment contained in PNDCL 28, Akuse and its environs properly speaking fall within the Greater Accra Region and not the Eastern Region. As the two previous actions to which reference has been made are in their nature in rem, the decisions are binding and conclusive against all persons situate within the jurisdiction irrespective of the question whether they were parties to the said cases or in privity to the parties. See: Lazarus Barlow v Regent Estates Ltd [1949] 3 All ER 118 at 122.

The binding and conclusive nature of judgments in rem as stated above also finds support in Volume 16 of Halsbury’s Laws of England(4th Edition) paragraph 1537 at page 1036 where writing on the differences between judgments in rem and judgments in personam or judgments inter partes, the learned authors make the point that unlike judgments inter partes, judgments in rem are binding on all persons situate within the jurisdiction of the court that pronounced upon the status, of persons or property or their disposition and the like. And that it does not matter if the parties to this case are not the same as those in the Charles Mate Korle case or their privies. We think the nature of the judgment in the Charles Mate Korle case (supra) enabled this court to apply the decision in that matter to the subsequent case of Paul Obroni by its unanimous judgment of 3 July 2014 wherein Atuguba JSC (presiding) delivering the judgment of the Court said as follows:

“Quite clearly then the complete ascertainment of the nature, extent and composition of the said Osudoku state is, as a customary state, a matter for the Chieftaincy Tribunals.

It follows therefore that the plaintiffs’ new plank that Akuse is not beyond…….. East Longitude of Greenwich does not necessarily per se mean that Akuse is within the Osudoku State. It may or may not be depending on the decision of the relevant Chieftaincy Tribunal and the cartographical limitation of….Greenwich.

It follows that we are driven back to the position taken by this court in the afore mentioned earlier ruling of this court in Charles Mate Korle & Azago Kwetsiku I vrs Electoral Commission & Attorney-General, supra.”

In our view, notwithstanding the different formulations by which the reliefs in the action herein are expressed in relation to the two previous cases, it does raise for our determination substantively the same relief concerning the extent of Greater Accra Region as created by PNDCL 26 and its subsequent amendment of PNDCL 28 in so far as Akuse and its environs are concerned. Clearly such a claim requires us to decide the same question that was pronounced upon by this Court in the previous cases to which reference has been made in this ruling. Although the plaintiffs contended to the contrary, the position herein asserted becomes clearer when one examines the statement of case filed by the plaintiff on 13 December 2013 in the instant action wherein a frank admission was made at page 2 thereof that the action herein was mounted to determine whether Akuse and Amedeka townships together with their said Electoral Areas fall within Greater Accra Region. This, no doubt is the same claim that was previously decided by this court in the Charles Mate Korle case which was subsequently applied to the case of Paul Obroni. For ease of reference, we quote from the said process as follows:

“The case of the Plaintiff is that on a true and proper interpretation of Article 4(1), Article 241 of the Constitution, 1992 and the Greater Accra Region Act, 1982, PNDCL 26 as amended by Greater Accra Region (Amendment Act), 1982, PNDCL28 and section 1(4) (b) Local Government (Osuduku Local Council) Instrument, 1952, Akuse and Amedeka townships together with their said Electoral Areas fall within and inside Greater Accra.”

Although in the response to the point of law raised by the court, plaintiff shied away from the concession contained in their statement of case, we find it difficult to reach the same conclusion as a careful consideration of the processes before us compels us to a contrary view. We think that the plaintiff in answering the issue of res judicata sought to take a different position in order to avoid the effect of the previous subsisting judgment on the matter. In any event, even though the instant action has apart from the main claim that seeks a pronouncement on the status of Akuse and Amedeka other ancillary reliefs the grant of those reliefs are subject to the declaration of the status of the said townships and therefore the previous decision is binding and conclusive of the matter. This aside, by the decision of this Court in the case of Gyetua v Boafo [1964] GLR 433, notwithstanding the slight differences in the formulation of the relief in the instant action and irrespective of the fact that by the claim herein the reliefs claimed exceed in their number that which was claimed in the Paul Obroni case (supra), the reliefs are identical and as such juridically raise the same question for our decision .At page 448 in the Gyetua case (supra) Apaloo JSC (as he then was), whose judgment was concurred in by his learned brethren observed as follows:

“If therefore the subject matter of the litigation was identical with the one in the present suit, then the matter can properly be said to be res judicata”.

Before we end this delivery, we wish to consider a point which was strenuously raised by the plaintiff in regard to the statements referred to at page 11 of the judgment in the Charles Mate Korle case (supra), wherein it was said:

“For the reasons given, we do not decide the District or Region to which the disputed land belong. That can be litigated by the appropriate legal processes in the light of the foregoing reasons…”

We do not think that the word “litigated” within the context of the words associated with it was used in the literal sense but figuratively and requires a careful reader to make an effort to search for the appropriate legal redress provided for at law in relation to the cause of action herein whether it be by resort to the courts or some other process by which their grievance could be redressed.

As the court in the case of Paul Obroni (supra) declined on jurisdictional grounds to inquire into the matter, and we do not see any reason to depart there from, we decline to inquire into the matter for the clear reasons stated in the Charles Mate Korle case (supra).

(SGD) N . S. GBADEGBE