Baiden v Attorney General and Another (J1/7/2014)[2015] GHASC 10 (22 July 2015)

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA

AD 2015

WRIT NO.J1/7/2014

22^ND JULY 2015

JOHN EPHRAIM BAIDEN (DR.)

C/O KOKROKO CHAMBERS

C91 KWAME NKRUMAH AVE

ADABRAKA, ACCRA … PLAINTIFF

VRS

THE ATTORNEY GENERAL

ATTORNEY GENERAL’S DEPT.

ACCRA … 1^ST DEFENDANT

THE BANK OF GHANA

NO. 1 THROPE ROAD

ACCRA (HIGH STREET) … 2^ND DEFENDANT

JUDGMENT

ADINYIRA (MRS), JSC :

The original jurisdiction of this Court is stated in article 130 (1) of the Constitution thus:

“130(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in-

a) All matters relating to the enforcement or interpretation of this Constitution; and

b) All matters as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution

(2)Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”

Dr. John Ephraim Baiden, the Plaintiff herein describes himself as “a citizen of Ghana who has lost wealth through Foreign Exchange Rate losses”. Per his writ filed on 7 March 2014 against the Attorney-General and the Bank of Ghana, the first defendant, and the second defendant respectively; the Plaintiff claims the following reliefs:

1. A declaration that upon a true and proper interpretation of articles 183(2) (a) of the 1992 Constitution and Bank of Ghana Act, 2002, Section 4(1) (b), The Bank of Ghana has neither promoted nor maintained a stable currency for the Republic of Ghana.

2. A Writ of Mandamus to issue on Bank of Ghana or its Governor and the Board of Directors ordering the following:

a. To Provide the Republic of Ghana a Stable Currency.

b. A change from a floating exchange regime to a fixed exchange rate regime or a reasonable adjustable peg regime.

3. An order on 2^nd Defendant to abrogate the present Dual Exchange Rate or Multiple Exchange Rate System to a Single Exchange Rate System.

4. An Order on 2^nd defendant to provide the Republic of Ghana with a 1:1 or nearer relationship with the Leading Global Reserve Currency, thus the U.S. Dollar, as the Republic had in July 2007.

5. A Perpetual injunction on 2^nd defendant against deferring to Floating Exchange Rate Regime in the conduct of their Monetary Policy.

6. 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 Article 183(2) (a) of the 1992 Constitution, and also Bank of Ghana Act, 2002, Section 4(b).

The 2^nd Defendant upon service of the writ on it immediately launched a preliminary legal objection to the action on grounds of jurisdiction. These are:

1. ‘The action has been wrongly commenced in the Supreme Court in that the complaint of Plaintiff is basically to the effect that 2^nd Defendant has not maintained a stable currency and has caused a depreciation in the value of the Ghanaian currency but deliberately couched as an application for interpretation of the constitution in [order] to bring the action under the ambit of Article 2(1) and 130 of the Constitution.

2. That the Supreme Court in the exercise of its original jurisdiction is not the proper forum for the interpretation of an Act of parliament and it is therefore wrongful for plaintiff to have invoked Articles 2(1) and 130 to seek an interpretation of Section 4(1) (b) of the Bank of Ghana Act, Act 612 in the Supreme Court.

In deciding the issue of jurisdiction, matters to take into consideration include the statute which invests jurisdiction as well as the true nature of the claim having regard to the pleadings, issues and reliefs sought or the actual effect of the reliefs, regardless of words used or the manner in which the claims and reliefs are couched. See Ghana Bar Association v Attorney-General and another (Abban Case) [2003-2004 SCGLR 250 at 266 to 267, per Bamford-Addo JSC. We therefore ordered the 1^st and 2^nd Defendants to file their respective statements of case.

The Plaintiff’s case

The Plaintiff contends that this instant suit requires the true and proper interpretation of particularly article 183(2) (a) of the 1992 Constitution, alongside section 4(1) (b) of the Bank of Ghana Act, 2002, (Act 612) which would affect how the Bank of Ghana conducts monetary policy or manages the Ghana Cedi.

The Plaintiff alleges the Ghana Cedi has depreciated against the US dollar since July 2007 when Ghana re-denominated its currency for near parity with the US dollar to January 2014 by as much as 136% over a 7 year span; averaging 19.3 percent per year.

The Plaintiff argues that: “by the wording of Article 183(2) (a) of the 1992 Constitution, and Section 4(1) (b) of the Bank of Ghana Act, 2002, (Act 612), the 2^nd Defendant cannot continuously employ a ‘floating exchange rate regime’ to manage the Ghanaian Cedi. 2^nd Defendant knows it lacks the requisite reserves or exchange rate stabilization fund or to effectively intervene in the market to give the Cedi a stable value…The defendant’s inability to manage the floating rate regime put the Ghana Cedi in a perpetual flux.”

The Plaintiff submits that by the wording of the respective laws, the 2^nd Defendant “must migrate to a Fixed Exchange Rate Regime in order to fulfill its mandate of promoting and maintaining a stable currency within and outside Ghana for the economic progress of the country”

The Plaintiff suggests that in the alternative “Ghana can adapt another country’s currency that is stable altogether”.

The Plaintiff submits further that the 2^nd Defendant will continue “to utilize its unworkable monetary measures unless this highest court grants his reliefs”.

Finally the Plaintiff submits that until the Supreme Court defines or interprets ‘promoting and maintaining a stable currency’, the 2^nd Defendant will be in apparent breach of Article 183(2) (a) of the 1992 Constitution, and continue to be in breach

1^st Defendant’s Case

The 1^st Defendant also raised an objection to the propriety of the writ before this Court. The 1^st Defendants submits that “the Plaintiff presents his case, couched as an application for interpretation of the Constitution in order to bring the action under articles 2(1) and 130 (1) of the 1992 Constitution when in fact there is no cause warranting invocation of the original jurisdiction of this honorable Court”.

The 1^st Defendant contends this Court is not the proper forum for the evaluation of economic factors, which are responsible for inflation in the country. The 1st Defendant rejects the Plaintiff’s assertion that the 2^nd Defendant has not maintained a stable currency and has therefore caused depreciation in the value of the Ghana currency on the basis that the Central Bank does not have absolute control over factors which cause inflation.

The 1^st Defendant concludes that “the Plaintiff’s request of the court that Article 183(2) (a) of the 1992 Constitution, and section 4(1) (b) of the Bank of Ghana Act, 2002, (Act 612) be interpreted to affect how the 2^nd Defendant should conduct monetary policy or manage the currency of the Republic if granted, will amount to an infraction of the law considering the provision under section 3 (2) of Bank of Ghana Act, which among others, is to the effect that the 2^nd Defendant “shall operate independent of instructions from the Government or any other authority.”

The 1^st Defendant therefore urged that this Court declines the reliefs sought by the Plaintiff per his writ.

The 2^nd Defendant’s case

The 2^nd Defendant submits “there is no issue of ambiguity about Article 183(2) (a) which calls for interpretation. The real complaint of Plaintiff is that in his opinion, 2^nd Defendant has not managed the monetary policy of Ghana properly, with the effect that the Ghanaian cedi has depreciated over 134% since 2007.”

The 2^nd Defendant submits that “granted for purposes of arguments the alternate policies advanced by Plaintiff (which we deny), the proper place to commence the action is not by seeking an interpretation of Article 183(2) (a) of the 1992 Constitution, alongside section 4(1) (b) of the Bank of Ghana Act, 2002,(Act 612)”

The 2nd Defendant submits further that the real complaint of Plaintiff is not about an interpretation of Article 183(2) (a) of the 1992 Constitution. What the Plaintiff has done is to couch his claim as one seeking an interpretation of Article 183(2) (a) so as to enable him invoke the original jurisdiction of this Court.

The 2^nd Defendant submits further that: “the present suit is misconceived in that the duty required of 2^nd Defendant under the said Article 183(2) (a) is one which is not justiciable and therefore outside the control of the judiciary. The 1992 Constitution has laid down duties and rights of the 3 (three) arms of government namely the judiciary, the legislator and the executive. This is in line with the doctrine of separation of powers which allocates specific functions to the various arms of government. … What it implies is [that] as much as possible, the various arms of government would be allowed to perform their assigned duties. At best the complaint of Plaintiff is what was referred to as ‘The principle of non-justiciable political question’.”

Consideration of the Preliminary legal objection

We will quickly dispose of the 2^nd ground of objection which to us is of no consequence. This ground is to the effect that:

“The Supreme Court in the exercise of its original jurisdiction is not the proper forum for the interpretation of an Act of parliament and it is therefore wrongful for plaintiff to have invoked Articles 2(1) and 130 to seek an interpretation of Section 4 (1) (b) of the Bank of Ghana Act, Act 612 in the Supreme Court.”

The Plaintiff combined Article 183(2) (a) and section 4(1) (b) of the Act, in his application requesting an interpretation by this Court. It is correct that the Supreme Court in the exercise of its original jurisdiction is not the proper forum for the interpretation of an Act of parliament. However as the Plaintiff correctly puts it, Article 183 and section 4(1) (b) of the Bank of Ghana Act are pari material.

Article 183 (2) (a) provides:

“The Bank of Ghana shall promote and maintain the stability of the currency of Ghana and direct and regulate the currency system in the interest of the economic progress of Ghana”

Section 4(1) (b) of the Bank of Ghana Act, provides:

(1) In addition to the functions under Article 183 (2) (a) of the Constitution the Bank shall for purpose of section 3

(b) promote by monetary measures the stabilization of the value of the currency within and outside Ghana

Looking at the two provisions, the statute has some nexus with the said article and we do not think combining the said statute with the Article 183(2) (a) of the Constitution to invoke our original and exclusive jurisprudence in interpreting Article 183(2) (a) is fatal.

We will therefore dismiss the preliminary objection on ground 2

Is the Plaintiff’s Action a Masquerade?

The most serious matter to be considered is ground 1; which is:

“The action has been wrongly commenced in the Supreme Court in that the complaint of Plaintiff is basically to the effect that 2^nd Defendant has not maintained a stable currency and has caused a depreciation in the value of the Ghanaian currency but deliberately couched as an application for interpretation of the constitution in [order] to bring the action under the ambit of Articles 2(1) and 130 of the Constitution.”

Simply put, we have to consider whether the Plaintiff’s action raises any issue for interpretation of article 183(2) (a) of the 1992 and Bank of Ghana Act, 2002, Section 4 (1) (b), thus warranting the exercise of the original and exclusive jurisdiction of this Court, or it is a mere masquerade.

The nature of the 1^st relief sought by the Plaintiff is as follows:

“A declaration that upon a true and proper interpretation of article 183(2) (a) of the 1992 Constitution and Bank of Ghana Act, 2002, Section 4 (1) (b), The Bank of Ghana has neither promoted nor maintained a stable currency for the Republic of Ghana.”

The latter part of his claim implies that the 1^st Defendant has failed in its duty to maintain a stable currency as the Constitution and the Act required, accordingly we see the Plaintiff’s claim not merely as a request for interpretation but also as one for enforcement.

The 1^st Defendant contends that considering the independence of the Bank of Ghana as stipulated in section 3(2) of the Bank of Ghana Act, were the Supreme Court to interpret and enforce Article 183(2) (a), alongside section 4 (1) (b) of the Act, 2002, would be an infraction of the Act. We think this submission is misplaced. No arm of government and no organ deriving its authority and independence from the Constitution can claim immunity from any action commenced in the Supreme Court by any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment or any act or omission of any person is inconsistent with or in contravention of the Constitution. An action for such a declaration is maintainable under article 2(1) (a) and (b). For purposes of clarity I set out article 2(1) (a) and (b:

“2 (1) A person who alleges that-

a) an enactment or anything contained or done under the authority of that or any other enactment; or

b) any act or omission of any person

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

In Okudzeto Ablakwa & Another v Attorney-General & Obetsebi-Lamptey [2011] 2 SCGLR 986 at 1020 I had reason to say thus:

“Article 2(1) of the 1992 Constitution imposes on the Supreme Court the duty to measure the actions of both the legislature and the executive against the provision of the Constitution. This includes the duty to ensure that no public officer conduct himself in such a manner as to be in clear breach of the provisions of the Constitution. It is by actions of this nature that gives reality to enforcing the Constitution by compelling its observance and ensuring probity, accountability and good governance. In this respect, I share the views expressed by the majority of the Supreme Court (per my brother Gbadegbe JSC) in Sumaila Bielbiel (No1) v Adamu Daramani & Attorney-General (No 1) reported in [2011]1SCGLR 132 at 146 to the effect that:

‘In our view, it is important that we do nothing to undermine the confidence that the ordinary person has in our ability to compel observance of the Constitution by invalidating in appropriate cases not only enactments that are in breach of it but also acts of, among others, constitutional office holders that do not derive their legitimacy from the Constitution in terms of article 2(1)’.”

Where a person or authority is not by the provisions of the Constitution or any other law subject to the direction or control of any person or authority in the performance of his duties or functions, the Court is not precluded from examining the correctness or otherwise of the exercise of such duties or functions. We recall Article 295 (8) which states:

“No provision of this Constitution or any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under the Constitution or that law shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or law”

Consequently, though the 2^nd Defendant is an independent body not subject to the direction or control of anyone in the performance of its functions, [just like all other independent created under the Constitution such as the Electoral Commission, Commission on Human Rights and Administrative Justice, National Commission for Civic Education, National Media Commission, Public Service Commission among others;] it does not enjoy absolute independence and is subject to the Constitution from which it derives its powers. So as the Plaintiff correctly put it in answer to the 1^st Defendant’s brief, the 2^nd Defendant is not above the law and is subject to the Constitution.

All the same, this Court has to resolve whether there is a question of interpretation involved in relief (1). Where the words in the Constitution are plain and unambiguous and there is no dispute in their meaning, the question of constitutional interpretation does not arise and the Court will decline to give an interpretation in such circumstances.

In Yiadom I v Amaniampong [1981] 2 GLR 3 at 8 Apaloo CJ in delivering the ruling of the court said:

“The plain truth of the matter is the original jurisdiction of this court has wrongly been involved. We will accordingly accede to the challenge to our jurisdiction. Perhaps we should point out, at least for the benefit of the profession, that where the issue sought to be decided is clear and is not resolvable by interpretation; we will firmly resist any invitation to pronounce on the meaning of constitutional provisions. It would, we think, be a waste of mental effort and thoroughly pointless”

The Plaintiff invites us to interpret article 183 (2) (a) of the 1992 Constitution together with Section 4 (1) (b) of the Bank of Ghana Act, 2002, Act 612.

Article 183 (2) (a) provides:

(2) The Bank of Ghana shall-

(a) promote and maintain the stability of the currency of Ghana and direct and regulate the currency system in the interest of the economic progress of Ghana

Section 4 (1) (b) of the Act provides:

(1) In addition to the functions under Article 183 (2) (a) of the Constitution the Bank shall for purpose of section 3

(b) promote by monetary measures the stabilization of the value of the currency within and outside Ghana

The Plaintiff has strained himself in an attempt to persuade us that: “the phrase stable currency is not uniform in meaning but abstract or ambiguous, and therefore the need for an interpretation by this Honorable Court.”

The Plaintiff submits further that the question before this Court is a mixed question of law and fact. “It is a question of fact because the answer to the question “whether 2^nd defendant has promoted and maintained a stable currency for Ghana must be derived or inferred from market data of Cedi Dollar exchange rate from past to present. It is also a question of law because the question as to whether 2^nd defendant has promoted and maintained a stable currency for Ghana must be answered from the interpretation of article 183 (2) (a) of the 1992 Constitution by this Supreme Court.”

The Plaintiff maintains that until the Supreme Court defines or interprets ‘promoting and maintaining a stable currency’, the 2^nd Defendant will be in apparent breach of Article 183(2) (a) of the 1992 Constitution, and continue to be in breach.

If all that was involved in the Plaintiff’s writ was a mere constitutional interpretation this Court will not shy away from the issue as it is our constitutional duty. Is there then a controversy as to the meaning of the said article? If there is a controversy and it is a justiciable issue, the Court has jurisdiction to entertain the issue raised by the Plaintiff’s writ. In this regard the 1st and 2^nd defendants however assert there is no question of interpretation as the words are plain and unambiguous.

It is therefore the duty of the Court to examine the true nature of the Plaintiff’s claim, however camouflaged or disguised in another form, in order to decide whether it is clothed with the requisite jurisdiction to entertain that case under articles 2(1) and 130(1) of the 1992 Constitution.

We cannot deny that the wording in article 183(2) (a) is plain and unambiguous, yet there are multifarious pronouncements and opinions on this one question of what is a stable currency. Judging from the numerous newspaper articles the Plaintiff and 2^nd Defendant attached as exhibits to their statements there are divergent views by the Ghanaian public on what constitutes a stable currency. We take judicial notice of the fact that economic and monetary experts worldwide hold divergent views on what is a stable currency, a fact the plaintiff brings out in paragraph 9 of his answer to 2^nd Defendant’s statement of case where Plaintiff states:

“In fact there is no unanimous interpretation of a stable currency, as can be inferred from paragraph 8 of Plaintiff’s statement of case. The 2^nd Defendant states that there is no ambiguity with what is a stable currency. The debate as to what constitutes a stable currency is very evolutionary and on-going. The debate on stable currency or stable money dates back to John Law in the 17^th Century. Since then the Currency School, Banking School, Ludwig von Misses, Irving Fischer, Keynesian School, Neo-Keynesian School, Chicago School, Financial Stability Forum (now Financial Stability Board) have all influenced respective jurisdictions as to what is Stable Currency. Currently most of the industrial economies are utilizing Irving Fischer’s Index Number Standard. Index targeting is widely viewed as a state of the art concept, and criticism has largely been confined to the issue of the choice of the actual index.”

The Plaintiff concludes that:

“Ghana must have its determination of what is a Stable Currency is, and per our legal framework, Plaintiff thinks this matter is constitutional, therefore a Supreme Court matter.”

But then taking a look at relief 1 together with his other reliefs 2, 3, 4 and 5, it seems to us that the request for interpretation of the said article is not the real complaint of the Plaintiff. For clarity they are restated below:

1. A declaration that upon a true and proper interpretation of article 183(2) (a) of the 1992 Constitution and Bank of Ghana Act, 2002, Section 4 (1) (b), The Bank of Ghana has neither promoted nor maintained a stable currency for the Republic of Ghana.

2. A Writ of Mandamus to issue on Bank of Ghana or its Governor and the Board of Directors ordering the following:

a) To Provide the Republic of Ghana a Stable Currency.

b) A change from a floating exchange regime to a fixed exchange rate regime or a reasonable adjustable peg regime.

3. An order on 2^nd Defendant to abrogate the present Dual Exchange Rate or Multiple Exchange Rate System to a Single Exchange Rate System.

4. An Order on 2^nd defendant to provide the Republic of Ghana with a 1:1 or nearer relationship with the Leading Global Reserve Currency, thus the U.S. Dollar, as the Republic had in July 2007.

5. A Perpetual injunction on 2^nd defendant against deferring to Floating Exchange Rate Regime in the conduct of their Monetary Policy.

Notwithstanding the way in which the Plaintiff has couched his claim for interpretation, a look at the nature of the reliefs and the substance of the Plaintiff’s statement of case and his response to the preliminary objection and to the 1^st and 2^nd Defendants’ statements of case respectively, we are of the view that the Plaintiff’s case is in substance an action to have this Court declare the 2^nd Defendant had failed in its monetary policies and for orders to compel the 2^nd Defendant in the conduct of its constitutional mandate to follow the way the Plaintiff believes the monetary policies of the country should properly be administered to stabilize the Ghanaian currency. Obviously to issue an order of mandamus to the 2^nd Defendant to abandon its monetary policy and adopt a particular one designed by this Court on the Plaintiff’s terms is to assume the constitutional mandate reserved for the2^nd Defendant. The Supreme Court nevertheless has no concurrent jurisdiction with the 2^nd Defendant in such matters. We do not think it is necessary in this ruling to discuss the principle of the non-justiciable political question raised by the 2^nd Defendant.

In assuming jurisdiction over this matter, we shall certainly be entering into policy determination for which judicially manageable standards are not available, even though we are committed to uphold the Constitution and to defend and protect economic rights of the people among other fundamental human rights and freedoms.

The Plaintiff’s request for us to order a policy change from a floating exchange regime to a fixed exchange rate regime or a reasonable adjustable peg regime is a task the Bank of Ghana is constitutionally mandated to do. It a task for the trained professionals, subject to the day-to-day control of the responsible authorities of Bank of Ghana, who, necessarily must make comparative judgments on the merits as to evolving methods with respect to their duties under the Constitution. It is our considered opinion that it would be inappropriate for this Court to undertake this responsibility in the unlikely event that we possess the requisite technical competence to do so.

From the foregoing, we hold that the Plaintiff’s plea that: ‘Ghana must have its determination of what is a Stable Currency is, and per our legal framework, Plaintiff thinks this matter is constitutional, therefore a Supreme Court matter;” is misplaced. We disagree that determining what is a stable currency is a matter for interpretation and justiciable.

This Court is not the best forum for formulating currency and monetary policies. By which judicial standard shall we determine a stable currency for Ghana, bearing in mind the divergent views and opinions in the management of the economy, currency, monetary and fiscal policies? In any event the Court has no institutional competence to direct the 2nd Defendant, even if we had the authority, which we doubt. This Court should be able to make a determination based on judicially discernable and manageable standards which is lacking here.

Consequently we hold that the determination of the issues before the Court involves more than an interpretation of the Constitution. The difficulty of fashioning reliefs that involve an initial policy determination of a kind clearly for non judicial discretion fall outside the constitutional interpretive and enforcement role of this Court.

By way of obiter, the effect of the inflation is not lost on members of this Court. It is a global phenomenon resulting in unemployment affecting even giant economies like USA and Germany. In Ghana we have been faced by an economy which had not been stable for a considerable period of time. Some causes of inflation are fluctuation in the energy markets, high import rates and fluctuating prices of our export commodities, low revenue generation insufficient to manage recurrent expenditure and services. Treasury bills rates are high so industries/commerce rather invest in treasury bills rather than invest in capital. The economy would be vibrant if moneys are kept in banks in Ghana here. We think it is imperative to improve the agricultural sector to bring food imports down and also patronize made in Ghana goods to bring down our imports expenditure.

There is also the need for a radical change of attitude to work. We must reject mediocrity and demand and meet deadlines. Mitigation plans must be put in place where deadlines are not met. We must stop giving too many excuses and be responsible and accountable. This change would improve productivity and avoid waste and also contribute to boost the economy.

It is heartening to note that at the time we were deliberating on this case, the Ghana Cedi has started stabilizing against major trading currencies and we pray it remains stable and sustained.

In conclusion, the lack of satisfactory criteria for a judicial determination of the issues and policies involved in the reliefs sought is a dominant factor in our holding that this is not a case which calls for the interpretation of the Constitution so as to cloth the Supreme Court with the requisite jurisdiction under articles 2(1) and 130 (1), to entertain the case. This is not the proper forum for the Plaintiff to ventilate his frustration with the way the Ghana Cedi has been fluctuating and his claims that he has lost wealth through foreign exchange losses.

In the result, this Court should decline jurisdiction and dismiss the Plaintiff’s writ. The preliminary legal objection to our jurisdiction is upheld.

Plaintiff’s action is dismissed.

S. O. A. ADINYIRA (MRS)