Mensah v Attorney General and Another (J1/4/2015)[2015] GHASC 117 (3 December 2015)

IN THE SUPERIOR OF JUDICATURE

IN THE SUPREME COURT

ACCRA

CONSOLIDATED WRITS NO: J1/4/2015

3^RD DECEMBER, 2015

SAMUEL ATTA-MENSAH --- PLAINTIFF

VRS.

THE ATTORNEY-GENERAL --- 1^ST DEFENDANTS

RT. HON. EDWARD DOE ADJAHO --- 2^ND DEFENDANTS

AND

WRIT NO: J1/20/2015

PROFESSOR STEPHEN KWAKU ASARE … PLAINTIFF

VRS

THE ATTORNEY-GENERAL … DEFENDANT

CONSOLIDATED JUDGMENT

GBADEGBE JSC:

The questions for our decision in the consolidated actions herein by which our interpretive and enforcement jurisdiction is sought arises out of the refusal by the Speaker of Parliament (hereinafter conveniently referred to as the Speaker), to subscribe to the oath of the President when both the President and the Vice- President were out of the country on November 5, 2014 and November 7, 2014 respectively. Subsequently, the plaintiffs in the consolidated actions, at different times caused the writs herein numbered as J1/4/2015 and J1/20/2015 to issue seeking reliefs, which concern the said refusal. At the hearing of the respective actions, in view of the fact that they raised common questions for our decision and arise from the same transaction, we made an order consolidating them for trial. In making the order of consolidation, we were guided by Order 31 rule 2 of the High Court (Civil Procedure Rules) of 2004, (CI 47) by which it is provided:

……“Where two or more causes or matters are pending in the same Court and it appears to the Court

(a) That some common question of law or fact arises in both or all of them, or

(b) That the rights to relief claimed are in respect of or arise out of the same transaction or series of transactions or

The said common questions of law are the true meaning of article 60 (11) and (12) of the 1992 Constitution. Beyond this question, we have to decide other questions, which though turning on the said refusal are not common to both actions. One such question is whether the Speaker has violated his oath of office; the other being whether he is a necessary and proper party in suit number J1/4/2015.As the questions for determination arise from the same act, we are obliged to dispose of the common questions of law or rights to relief claimed in both actions at the same time. See: (1) Daws v Daily Sketch and Sunday Graphic Ltd [1960] 1 All ER 397; (2) Beardsall v Cheetham,(1858) EB & E 243.

The plaintiff in suit number J1/4/ 2015 seeks the following reliefs:

(a) declaration that upon a true and proper construction and or interpretation of articles 60 (11) and 60 (12) of the Constitution of 1992 of the Republic of Ghana, the Speaker of Parliament shall, always, before assuming the functions of the President where the President and the Vice- President are unable to perform their functions, take and subscribe the oath set out in relation to the office of president.

(b) An order restraining the Second Defendant from holding himself out as President of Ghana without first complying with article 60 (12).

(c) Any other order or orders consequential to the enforcement of the provisions of articles 60 (11) and 60 (12) of the 1992 Constitution of the Republic of Ghana.

The following reliefs were also sought in suit number J1/20/2015:

1. A declaration that the Speaker of Parliament’s refusal to take and subscribe the oath set out in relation to the office of the President on November 5, 2014 when the President and Vice- President were both unable to perform the functions of the President violated Article 60 (11) of the 1992 Constitution.

2. A declaration that Speaker of Parliament’s refusal to take and subscribe to the oath set out in relation to the President on November 5, 2014 when the President and the Vice- President were both unable you perform the functions of the President violated article 60 (11) of the 1992 Constitution.

3. A declaration that the Speaker of Parliament’s refusal to take and subscribe to the oath set out in relation to the office of the President on November 5, 2014 when the President and the Vice- President were both unable to perform the functions of the President violated the Speaker’s oath as set out in the Second Schedule of the 1992 Constitution which requires him to uphold, preserve, protect and defend the Constitution of Ghana.

4. A declaration that the Speaker of Parliament’s refusal to take and subscribe to the oath set out in relation to the office of the President on November 5, 2014 when the President and the Vice- President were unable to perform the functions of the President violated this court’s order in Asare Attorney-General [2003-4] SCGLR 823 which obligates the Speaker to perform the functions of the President where both the President and Vice- President are absent from Ghana.

5. A declaration that Speaker of Parliament’s violation of this Court’s order in Asare Attorney- General [2003-4] SCGLR 823 on November 5, 2014 constitutes a high crime under the 1992 Constitution.

6. A declaration that Speaker of Parliament’s refusal to take and subscribe the oath set out in relation to the office of the President on November 7, 2014 when both the President and the Vice- President were unable to perform the functions of the President violated article 60 (11) of the Constitution.

7. A declaration that the Speaker of Parliament’s refusal to take and subscribe the oath set out in relation to the office of the President on November 7, 2014 when both the President and Vice- President were unable to perform the functions of the President violated article 60 (12) of the 1992 Constitution.

8. A declaration that the Speaker of Parliament’s refusal to take and subscribe the oath set out in relation to the office of the President on November 7, 2014 when the President and Vice- President were both unable to perform the functions of the President violated the Speaker’s oath as set forth in the Second Schedule of the 1992 Constitution which requires him to uphold, preserve, protect and defend the Constitution of Ghana.

9. A declaration that Speaker of Parliament’s refusal to take and subscribe to the oath set out in relation to the office of the President on November 7, 2014 when the President and Vice- President were both unable to perform the functions of the President violated this Court’s order in Asare v Attorney– General [2003-4} SCGLR 823 which obligates the Speaker to perform the functions of the President where both the President and Vice- President were absent from Ghana.

10. A declaration that Speaker of Parliament’s violation of this Court’s order in Asare Attorney – General [2003-4] SCGLR 823 on November 7, 2014 constitutes a high crime under the 1992 Constitution.

11. An order directing the Speaker of Parliament or his successors to permanently cease and desist from violating articles 60 (11) - (12), his oath of office and this court’s order in Asare v Attorney- General [2003-4} SCGLR 823.

12. Such further or other orders as the honourable court will deem fit.

13. Costs for court expenses and counsel fees.

In view of the fact that the plaintiffs seek the determination of common questions of law in the separate actions filed by them, we propose in our consideration of those questions to refer to the parties as plaintiffs and defendants. However, in considering the questions, which are not common to both actions, we shall refer to the parties as plaintiff and defendant(s). In making out their claims, the plaintiffs placed great reliance on the decision of this court in Asare v Attorney-General [2003-2004] SCGLR 823, which pronounced that when the President and the Vice-President are absent from the country, the Speaker is required to assume the office of the President. According to the plaintiffs, that decision, which construed the scope of article 60 (11) is binding and effect must be given to it in these proceedings.

The plaintiffs contend that following the decision in the Asare case (supra) to the effect that when both the President and Vice-President are absent from the country, the Speaker is obliged to perform the functions of the President, he must before assuming such office subscribe to the Presidential oath as provided for in article 60 (12) of the constitution. The plaintiffs also assert that subscription to the oath of President is a condition precedent to the exercise by the Speaker of the functions of President which he assumes by virtue of article 60 (11) of the constitution and obligated on each such occasion to take and subscribe to the oath of President. The plaintiff in J1/20/2015 also contends that the refusal of the Speaker to take the oath prescribed in article 60 (12) of the constitution, constitutes a violation of his oath of office by which among others he swore to “uphold, preserve, protect and defend the Constitution of the Republic of Ghana.….” as well as a high crime and additionally seeks an order directing the Speaker or his successors to permanently cease and desist from violating articles 60 (11)and 60 (12) of the Constitution. The plaintiff in J/1/14/2015 pre-emptively raised the question whether or not the Speaker who is sued as 2^nd defendant is a necessary and proper party to the action. In suit number J1/14/2015, the plaintiff seeks a determination whether the joinder of the Speaker to the action as 2^nd defendant is proper in view of article 88 of the constitution.

On the other side of the aisle, so to say, the learned Attorney- General contends that the Speaker acted properly and that the framers of the constitution did not intend him to subscribe to the oath of the President each time that he assumes the functions of the President under article 60 (11) of the constitution and that in particular, the previous decision of this court in the case of Asare v Attorney – General ( supra)was not correctly decided and consequently urges us in these proceedings to depart from the said decision as indeed, we are enabled by article 129 of the constitution in appropriate instances when so satisfied to do. In support of this assertion, the learned Attorney- General invites us to consider what he described as parliamentary precedent in the practice of the first Speaker of the fourth Republic when he declined to swear on two occasions when he assumed office under article 60 (11) of the constitution.

The learned Attorney- General contends further that the said decision does not make the law accord with changing circumstances that sees the President and Vice-President having to travel on several occasions and sometimes for relatively short periods of time such that to require the Speaker whenever the President and his vice are out of the country to subscribe to the oath of President provided for in article 60 (12) of the constitution would render the requirement of oath taking absurd. In the view of the learned Attorney - General, the requirement in article 60 (12) is satisfied when the Speaker swears to the oath of the President on the first occasion that he assumes that office under article 60 (11). That argument seems to take its root from purposivism, a mode of interpretation that seeks to construe legislation to keep pace with the times. Such an approach enables legislation passed previously to be interpreted to apply to changed circumstances prevailing at the time of the decision being rendered. For example in the case of R v Misic [2001] NZLR 1, the word “documents” appearing in a statute made before the advent of internet technology was construed to include computer programs. See also: R v Fellows [1997] 2All ER 548. Whiles the purposive approach allows for the law to take into account the social and economic context in which it should now operate relative to those at the time the enactment was passed, such an approach to construction should not take precedence over the clear meaning of the words.

The learned Attorney - General then proceeded to argue that the case of Asare v A-G (supra) only decided the question relating to the constitutionality of the swearing of the Speaker in the absence of both the President and Vice-President and that the question of his subscription to the oath of President in the event of such assumption of the office of President was not decided by the Supreme Court in that case and appears to be an issue for our decision in these proceedings. Accordingly, so the learned Attorney - General contends, there cannot be a violation of the orders and or directions made by this court in the Asare case (supra) such to bring the conduct of the Speaker within the designation of a high crime under the constitution.

On the question of the violation of the oath of office by the Speaker, the learned Attorney- General denies that the refusal to swear to the oath in the circumstances of this case constitutes a violation and in regard to the question whether the Speaker was properly sued as 2^nd defendant in J1/4/2015, he responded that the said question should receive a negative answer by virtue of article 88 of the constitution.

From the pleadings before us in the consolidated actions herein, the issues for our determination appear to be as set out in the respective memorandum of issues filed by the parties prior to the making of the order of consolidation as they did not file an agreed memorandum of issues. Before proceeding with a consideration of the issues for our determination, we would like to comment on a matter of procedure which appears to be of some importance in the preparation of constitutional actions for trial before the Supreme Court. In our opinion, nearly two decades after the coming into force of the Rules of the Supreme Court in 1996 by the enactment of CI 16, parties to constitutional disputes, it is surprising that parties to such disputes fail to submit a joint memorandum as required by Rule 50 of the Supreme Court Rules.

The observation is made that the said provision is a case- management technique that affords the parties the opportunity of reaching agreement on the questions for our determination and indeed, in appropriate instances narrowing down the contested issues and thus moving the action in respect of which such an initiative is taken closer towards disposition. Where the parties file a memorandum of agreed issues, we are prevented from considering the different formulations that are intended to raise for our determination the same questions and enhances our understanding of the issues. Considering the fact that constitutional issues turn on provisions of the constitution, and for that matter not based entrenched positions of interest of parties that is common to ordinary actions where their competing interest come up for determination by a court of law, we are unable to comprehend whatever difficulties that parties have in complying with rule 50 of CI16 as the filing of separate memorandum appears from the reading of rule 50 of the Supreme Court Rules and in particular sub-rule 3 not to be as of right but subsequent to a demonstration that although they endeavored to comply with the rule, they were unable to reach an agreement on the issues hence the need for the filing of separate memorandum of issues. It is hoped that counsel will in future endeavor to comply with the provision by endeavoring to file a memorandum of agreed issues. This procedural lapse was recently discussed by my able brother Dotse JSC in his unreported judgment in case number J1/15/2015 entitled Professor Stephen Kweku Asare v the Attorney- General delivered on October 14, 2015. We are of the opinion that the time has come for us about two decades since the coming into force of the Supreme Court Rules, CI 16 to determine the appropriate practice to be followed by parties in relation to the submission of a memorandum of agreed issues.

The questions that we have to decide in these proceedings are both substantive and procedural. The substantive questions are whether the Speaker is required to subscribe to the oath of President each time that the President and the Vice-President are out of the country. Closely linked to the first question is whether by his refusal to take the said oath he has violated his oath of office and lastly within the context of the admitted facts in the actions herein, he has conducted himself in a manner that constitutes a high crime under the constitution. While the first substantive question for our decision is common to both actions, the second one applies only to J1/20/2015. The procedural question, which relates only to Suit Number J1/4/2015 is whether the Speaker is a necessary and proper party to the action entitled: Samuel Atta Mensa v. (1). The Attorney- General and (2) The Honourable Edward Doe Adjaho (The Speaker). In this judgment, we shall first consider the substantive issues commencing with that which is common to the consolidated actions herein and thereafter proceed to deal with the procedural question.

We have had the advantage of very detailed arguments upon what seemed to be an important question in this case relating to the previous decision of this court in the Asare case (supra) and have come to the opinion in relatively few words that the learned justices expounded the law correctly in that case (supra) and find no reason to yield to the invitation urged on us by the learned Attorney - General to depart there from. We venture to say that the discretion conferred on us under article 129 of the constitution to depart from previous decisions is to be used rarely and sparingly and with great circumspection. The power is not intended to be exercised merely because a different panel of judges think that the issues that they are confronted with can be resolved differently from the previous panel. The doctrine of precedent exits to affirm certainty and avoid the danger of unsettling existing arrangements.

Learned counsel for the plaintiffs was right when they invited us to accept the said decision which forms the fulcrum of their claims as having been correctly decided. In our opinion, the absence of both the President and Vice-President from the jurisdiction triggers the requirement imposed on the Speaker upon whom power is then conferred to assume the office of President until such time that he is relieved from such a responsibility by the return to Ghana of either the President or the Vice-President. The assumption of the office of President by the Speaker is intended to avoid a vacuum being created by the absence of both the President and the Vice - President from the country and to ensure that the organizational machinery of the state is kept on-going at all times. In this regard, the practice of the first Speaker of the Fourth Republic to which reference was made appears from the available facts to have been eroded as a precedent, so to say by his successors who acted differently when they assumed the office of the President under article 60 (11).

Having reached this view of the matter as we are, indeed in principle bound to be having regard to the decision in Asare v Attorney- General (supra), the next question of relevance for our decision is whether on each occasion that the Speaker steps into the high office of President, he must before exercising the functions of the office of President subscribe to the Presidential oath. It appears from a consideration of the Asare case (supra), that the said question was neither decided nor was an issue that the parties could have raised for a decision of the court and consequently the parties are not precluded from raising it before us in these proceedings for our binding pronouncement thereon.

In order to better appreciate the question raised under article 60 (12), it is important to understand that the office of the Speaker as created by the 1992 constitution relates to the functions of the legislature and accordingly when the occupant of the office is required by the constitution under article 60(11), to assume the functions of the President, he temporarily occupies an office which is outside the purview of the legislature. Therefore, in order to assume that new office, which he assumes by operation of law, he must for such assumption to be effectual subscribe to the oath of the President. The language of the relevant constitutional provisions contained in articles 60 (11) and 60 (12) compel us to the view that the obligation imposed on the Speaker when both the President and his vice are unable to perform the functions of the office of President, the Speaker must subscribe to the oath spelt out in article 60 (12) to enable him exercise the functions of the President. When the Speaker is either not sworn in or refuses to be sworn in as the circumstances of this case point to, then notwithstanding his assumption of office as contemplated by article 60 (11), he cannot exercise any function that pertains to the office of the President.

The position, which the learned Attorney-General has pressed on us to the contrary, has the effect of inviting us to shut our eyes to the essential differences in the nature and functions of the office of the President and that of the Speaker. While the office of the President has a wider constituency and indeed extends beyond the narrow frontiers of Parliament and carries a greater and more onerous responsibility, that of the Speaker is limited in its scope to the legislature and the requirement to subscribe to the oath whenever he assumes the office of President is not a mere formality but intended to remind him of his added responsibilities and also serve as notice to the entire citizenry that the Speaker, though for a limited period has assumed the office of the President. Perhaps, it can be said that as the assumption of office by the Speaker under article 60 (11) is known to the framers of the constitution, if they intended that he swears only once during the tenure of Parliament specific provision would have been made to that effect. As it is, the failure to make any such provision renders the interpretation urged on us by the learned Attorney - General unattractive and the same is rejected. A careful consideration of the provisions of the constitution on which the consolidated actions herein turn informs us that the assumption of office of President by the Speaker is not intended to be a matter of routine but one that arises in situations of exigency when neither the President nor his vice are within the country and therefore unable to perform the functions of the President. The occasions on which such a situation arise must in the contemplation of the framers of the constitution be rare indeed, hence the requirement in article 60 (11) regarding the swearing by the Speaker of the oath of President whenever he assumes that office. Any other interpretation of the provisions would not only be contrary to the clear provisions of the constitution but equally an assault on the spirit of the constitution.

In reaching this opinion, we have given careful consideration to the arguments canvassed before us by the learned Attorney- General that to require the Speaker to take an oath whenever he assumes the high office of President will create a situation in which we have two Presidents, one exercising his functions extra territorially and the other exercising his functions within the jurisdiction. That argument, however disregards the fact that by the decision in the Asare case (supra), the presence in Ghana of the President is a condition precedent to the exercise of the functions conferred on him under the constitution. But that is not all. When article 60(12) of the constitution is read together with article 60 (11), it is quite clear that the requirement to swear to the oath of the President relates to each occasion that both the President and the Vice – President are out of the country and indeed, to accept the position of the learned Attorney - General will constitute the Speaker into an alternate president. As hereinbefore discussed, we are of the opinion that the Speaker is obliged by the requirements of the constitution to subscribe to the oath each time that he assumes the onerous responsibility as President in order to exercise the functions of that office. Judicial notice is taken of the fact that such oaths are by practice recorded in a special book known as the “Oaths Book” and that when sworn to by the Speaker is an act that validates his assumption of the office of President, and also serves as a permanent record to which easy reference can be made in the event of there being any question regarding any such assumption of office by him.

Then there is the point raised by the learned Attorney- General in support of the refusal by the Speaker to swear to the oath of the President, which turns on the Oaths Act, NRCD 6 of 1972 as follows. It was urged in that behalf that by swearing the Presidential oath on September 19, 2014 the Speaker had satisfied the requirement of the constitution and relies for this proposition on section 3(1) and (2) of NRCD 6, the Oaths Act which is reproduced hereunder as follows:

(1) “A person who has duly taken the Oath of Allegiance or the Judicial Oath shall not be required again to take that oath on appointment to any other office or on any other occasion.

(2) A person shall not be required to take an oath on appointment to an office unless the oath is different from or in addition to an oath duly taken by that person in respect of any other appointment”

The above provisions do not advance the case of the learned Attorney- General as the office of the President which the Speaker assumes under article 60 (12) of the constitution is not one to which he was appointed and the oath seems to be one required of him in respect of an additional office. In this regard the case of Kuenyehia v Archer [1993-94] 2 GLR 525 which was cited to us by the learned Attorney- General appears not to be applicable as the pronouncement of the court on the question of judges repeating the oaths, which they had previously taken before the appointing authority after they had entered upon their offices as judges before the coming into force of the 1992 Constitution is covered by section 3 (1) of the Oaths Act, NRCD 6.It seems to us from a fair reading of the applicable statutory provisions that the requirement precluding the taking of a new oath appears to be in relation to those who would have previously taken oaths in respect of the same office, a view of the matter that tends to reinforce the point that the Speaker is obliged to swear the oath each time that he assumes the office of President under the 1992 Constitution.

Indeed, a careful reading of article 60 (12) of the constitution in relation to article 156 (1) which was construed in the case of Kuenyehia v Archer (supra) reveals that the words “shall, before commencing the functions of the President under clause (11) of this article” is followed by words which negate the meaning placed on the phrase contained in article 156(1) which reads “shall, before assuming the exercise of the duties of his office”. In any event, there seems not to be any ambiguity in the meaning of article 60 (12) to enable us embark as it were on a journey of discerning its meaning by resorting to the rule of “in parimateria.”

Having resolved the question as to the true meaning of article 60 (12), we now turn our attention to consider the vexed question whether by refusing to take the oath of President on the two dates with which this action is concerned, the Speaker has violated his oath of office. From the admitted facts, the Speaker swore to the oath of the resident on September 19, 2013 when he was required to assume the office of President but declined to do so on November5 and 7, 2014 on the ground that he had previously taken the said oath and that it was unnecessary for him to subscribe to another oath. Although the Speaker provided an explanation which raises a probable case for interpretation, by articles 1(2) and 2(1) of the constitution we are required by the constitution to measure acts of constitutional office holders with provisions of the constitution for the purpose giving effect to the provisions of the constitution, and having carefully considered his refusal to swear to the oath of President on the dates relevant to the proceedings herein, we think that it constitutes an act that contravenes the constitution.

A declaration that the refusal to swear to the oath of President contravenes the provisions of the constitution necessarily has the effect of rendering that conduct into an act that violates his oath as the word “violation” is synonymous with “contravention”. As the constitution is the fundamental law of the land, our decision has retrospective effect with the contravention dating back to November 5, 2014 when following the absence of the President and Vice- President from the country, he was obliged under article 60 (11) to assume the functions of President and subscribe to the oath in terms of article 60 (12).We are of the opinion that to constitute a violation of an oath, one needs not to prove that the refusal was done for the purpose of undermining the constitution and that even an error of judgment which contravenes a provision of the constitution will suffice to establish a violation as in this case. The violation need not in our opinion be culpable.

This leads us to the next question for determination, which touches and concerns the allegation of a high crime committed by the Speaker when he refused to subscribe to the oath of President on two dates - November 5, 2014 and November 7, 2014. The offence of a high crime is created in article 2 (4) and (5) of the 1992 Constitution in the following words:

“(4) Failure to obey or carry out the terms of an order or direction made or given under clause (2) of this article constitutes a high crime under this constitution.

(5) A person convicted of high crime under clause (4) of this article shall

(a) be liable to imprisonment not exceeding ten years without the option of a fine and

(b) not eligible for election, or for appointment to any public office for ten years beginning with the date of the expiration of the term of imprisonment”

We are in great difficulty in the face of the clear provisions of article 2 (4) and (5) of the constitution, the purpose for which our jurisdiction was invoked in respect of an allegation, proof of which constitutes a crime. In any event, even if we had jurisdiction to inquire into the allegation of a high crime, it cannot be tried together with our interpretive function which is purely civil. That aside, the mode for the initiation of criminal proceedings is at the instance of the Attorney-General and not a private person as we have before us in the matter herein. In the circumstances, the said question is not properly before us for determination and we proceed to have it struck out. We are of the opinion that as a high crime raises the question of personal liability for a crime, the Speaker ought to have been joined to suit number J1/20/2015 irrespective of whether our jurisdiction has been wrongly invoked in relation to it.

The last question for our decision is in regard to the competency of the Speaker being a party to the action herein which was raised by the plaintiff in Suit Number J1/4/ 2015. For emphasis, the allegation of a high crime was not raised in this action and as such the statements made in the preceding paragraph on the question of the Speaker being a party to that action must be limited to J1/20/2015.Weaccept the argument of the learned Attorney - General that the refusal of the Speaker to swear to the oath of President concerns a constitutional office holder and is not personal to the individual occupant and as such the proper party to answer for the said act is the Attorney- General by virtue of article 88 of the constitution. In our opinion, when the constitution imposes an obligation on a constitutional office holder, the performance of that obligation is an act that is not personal to him but properly belongs to those acts which are performed on behalf of the state and come within the purview of matters in respect of which the Attorney- General is by article 88(5) of the constitution responsible for. The qualification made in respect of article 88(5) of the constitution by this court in relation to the Attorney- General in the case of Amegatcher v the Attorney- General and others [2012] SCGLR 679 is clearly inapplicable to the circumstances of this case as the position of the 1st defendant in J1/4/2015 is coterminous with that of the Speaker. There is no reason in principle why an act or omission by some other public officer creates a liability in the Attorney- General under article 88 whiles that of the Speaker does not. Accordingly, the 2^nddefendant who was improperly joined to the said action is hereby struck out on grounds of misjoinder.

N. S. GBADEGBE