A: Introduction: The test on the test of jurisdiction

I had a dream. I had an awesome dream. Not about people in the park playing games in the dark. I had been transported into my Ghana School of Law Class of 1996/97 academic year. It was about an examination in Civil Procedure. It was the end of Part 1 Exams and I found myself seated in one of the rows towards the front part of the lecture room. With a surname beginning with 'B,' I was always destined for a near-front row seat during exams.

The invigilator passed round to share the exams question papers. Question 1, the famous 'compulsory question', went along these lines:

"On 15th October, 2024 the Speaker of Parliament evinced his intention to state his position on four (4) seats in Parliament based on a motion he had received from an opposition MP. The reason for the intended action was that three Members of Parliament (MPs) who entered the House on the ticket of two different political parties (that is, the NDC & NPP) had decided to run for the impending national general elections in December, 2024 as independent candidates. One MP who was in the House as an independent MP had also decided to contest for the seat again, but on the ticket of a political party (NPP). Thus, all four MPs were deemed to have vacated their seats by law.

The Speaker proposed to rely on articles 97(1) (g) and (h) and 99 of the Constitution, 1992 to pronounce on the matter of the four seats. Article 97(g) provides that a Member of Parliament must vacate his seat in Parliament “if he leaves the party of which he was a member at the time of his election to Parliament to join another party or seeks to remain in Parliament as an independent member.” Article 97(h) also states that a member would forfeit his seat “if he was elected a Member of Parliament as an independent candidate and joins a political party.”

Article 99 states that the High Court has jurisdiction to hear and determine any question whether - (a) a person has been validly elected as a member of Parliament or the seat of a member has become vacant; or (b) a person has been validly elected as a Speaker of Parliament or, having been so elected, has vacated the office of Speaker.

On the same day, that is, 15^th October, 2024, - before the Speaker could pronounce the four seats of the MPs aforesaid vacant -  the Majority Leader caused a writ to be issued at the Supreme Court against the Speaker of Parliament & Attorney-General. The writ was seeking declarations and interpretation based on articles 2 (1), 12 (1) & (2), 17 (1), 21 (1) (b) & (e), 35 (1) & (5), 55, 97(1) (g), 130 (a) and 296 (a) & (b) of the Constitution, 1992. The writ was issued in specific regards to three of the four affected MPs.

For the avoidance of doubt as to whether the Speaker could go ahead with his intended declaration of vacancies in spite of the issuance of the writ, the writ was accompanied by an ex parte order of interim injunction. The injunction application had been filed, placed before the Supreme Court, moved, granted, drafted, signed by the five Justices of the Court, certified by the Registrar and made ready for service on the defendants on the same day the writ was issued. The Attorney-General was served with the writ and injunction order without incident.

Strenuous efforts were made to serve the Speaker but to no avail. It later emerged that the Speaker had declined service of the writ, not based on the Rules of Court but, on a 'circular' issued by the Judicial Secretary. The circular had directed all court processes to be served on MPs and the Speaker only on Mondays. Note that Parliament, by convention and practice, does not sit on Mondays.

In the meantime, on 17^th October, 2024, the Speaker put his intention into effect when he announced to the House that the 4 parliamentary seats affected by the change in colouration of their occupants’ political affiliation had become vacant. As was to be expected, the Majority Leader - whose peremptory strike through the writ and order of injunction had been ignored by the Speaker - filed an application to set aside the Speaker's order of declaration of the vacant seats. The application to set aside the order was made ex parte. Thus, the Speaker and Attorney-General as defendants were not informed about it.

The Supreme Court heard the application and granted an order to set aside the Speaker's decision. The Chief Justice, in making the order, stated that the Supreme Court was aware of the efforts to serve the Speaker and the latter's antics of avoiding service by relying on certain constitutional provisions and the much beloved St. Monday[1] service 'circular.'

Now, sensing that the Judiciary is fired up to disrupt the sanctified principle of "separation of powers," the Speaker has ignored the Attorney-General - with whom he is defendant - and instructed a private law firm to represent him. The law firm's immediate task is to file an application to set aside the Majority Leader's writ and every legal process based on it, including the Supreme Court's order to set aside the declaration of vacant seats.

(a) As Counsel for the Speaker, state the grounds on which you would apply to set aside the Majority Leader’s writ.

(b) Will your answer be different if the writ had been issued in the High Court and the plaintiffs had been the four MPs whose seats had been identified as vacant by the Speaker of Parliament?

                                                                                                50 marks"

B: Answers to the test

By the time I finished reading the question, the blue cover on my Bic pen had lost its virtue through mastication. With sweaty palms and forehead that required intermittent mopping, I set out to answer this monstrosity of an exam question. I read over it a second time and jotted down the possible grounds of law and authorities I intended to rely on to answer the question. I made short notes on the question paper as follows:

“Question 1 (a)

Legal grounds on which to set aside the writ:

(i) Accrual of cause of action: Assuming the Supreme Court has jurisdiction, had the cause of action accrued at the time the writ was filed?

Note - Speaker had not yet declared vacancies when the writ was filed; see: Ransford France (No. 2) v Electoral Commission & Attorney-General.^[2]

(ii) Jurisdiction of Supreme Court:  Article 2(1) (a) & (b) of Constitution, 1992 - interpretation & enforcement of the Constitution & striking down laws inconsistent with the Constitution. Does the Majority Leader’s case fall under the Supreme Court’s original jurisdiction?

(iii) Proper Forum → High Court: It is the appropriate court for hearing of cases relating to Parliamentary elections and seats: Article 99.

See the following parliamentary cases filed in the High Court as court of first instance:

o   Re: Parliamentary Elections for Wulensi Constituency; Zakaria v Nyimakan^[3]

o   Republic v High Court, Ho; Ex parte Attorney-General (Prof. Margaret Kweku & Others Interested Parties)^[4]

o   Republic v High Court, Koforidua; Ex parte Asare (Baba Jamal & Others Interested Parties)[5]

o   Republic v High Court, Sunyani; Ex parte Collins Dauda (Boakye-Boateng Interested Party)[6]

o   New Patriotic Party v National Democratic Congress[7]

o   Republic v High Court, Bolgatanga; ex parte Hawa Yakubu[8]

See also: MANUAL ON ELECTIONS ADJUDICATION IN GHANA, (4^th Ed.) Judicial Service of Ghana (Nov. 2020)

(iv) Parties - Proper persons to sue in parliamentary cases are those whose parliamentary seats are affected, not officious intermeddlers: See; examples of cases concerning parliamentary elections in (iii) above, for example, Ex parte Asare and Ex parte Collins Dauda.

(v) Service of writ – Serving a court process/document is regulated by the rules of court, not ‘circulars.’ Is the Judicial Secretary’s 'circular' binding to make service on an MP or the Speaker on a day other than Monday a nullity?

(vii) Ex parte interim injunction order - Were the conditions ripe for making such an application?

(viii) Ex parte application and order to stay 'execution' of Speaker's declaration of vacant seats - Is it sanctioned by law and procedure?

Question 1 (b)

Yes, my answer would be different if the case was filed at the High Court and the plaintiffs were the affected 'gang of four' MPs.

Reasons:

i. The 4 MPs affected would be the proper persons to sue (cite earlier cases e.g. Ex parte Asare)

             ii. The High Court is the proper forum (cite earlier authorities)

  iii. It must be noted that their ‘cause of action’ would accrue after the Speaker’s announcement of the vacancy, not before.

After putting down these points, I set out to address the issues raised in detail, beginning with accrual of cause of action. This was followed by the issue of jurisdiction. The remaining issues were to follow in due course.

C: Accrual of cause of action

Every citizen of Ghana has a constitutional right to sue in the Supreme Court for interpretation or enforcement of the Constitution or, for the Supreme Court to declare any law as null and void because it was made in excess of Parliament’s power to make laws.^[9] A person who sues another in the Supreme Court must satisfy herself that she has a cause of action. Secondly, she must ensure that her case falls under either or both causes of action laid down in article 2 (1) of the Constitution, 1992.

Thirdly, the person suing as plaintiff must determine whether her cause of action has accrued. This is very necessary because a party may have a present cause of action and might have decided on the nature of the cause of action to pursue. But the cause of action may not have accrued, meaning it will be premature to file the case in the Supreme Court.

So, the question to be asked is this: At what point can a plaintiff challenge a law (that is, an Act, Order, Rules or Regulations) or an act or omission under article 2 (1) of the Constitution as the Majority Leader sought to do?  This question appeared as a side note, so to speak, in Ransford France (No. 2) v Electoral Commission & Attorney-General.^[10] The Supreme Court found, and the applicant (for an order of joinder) himself had asserted that at the time the plaintiff issued his writ, the Representation of the People (Parliamentary Constituencies) Instrument, 2012 (C.I. 73) which was the subject-matter of the suit had not yet come into force.

Moreover, Ablekuma West Constituency where the applicant claimed he was interested in contesting as a Parliamentary candidate was only one of the 45 constituencies proposed or intended to be created under C.I. 78. It was yet to be created; at best the process for its creation was in progress in Parliament. It was within the power of Parliament to approve or annul the constitutional instrument laid before it. If it was approved, it would become law and the proposed constituencies would come into being. If on the other hand the constitutional instrument was annulled, it would not.

In the circumstances, since the law under attack in the suit (C.I. 78) was not yet in existence, had the plaintiff’s action accrued? The Supreme Court expressed doubt about the plaintiff’s right to sue under a yet-to-be made law. This is what Ansah, JSC said regarding the issue:

“At present, the stage is set for the legal battle to test the constitutionality of the law in C.I. 78 on 4^th October, 2012. As at today [25^th September, 2012] C.I. 78 having not become law, I doubt if any legal rights can flow from it. Ablekuma West Constituency has not been created as yet. This the applicant knows truly well. His submissions are predicated upon a possibility of an event of the constituency being created and I wonder what the situation will be if Parliament for reasons best known to it, decides to annul the instrument?” (Emphasis in italics supplied)

Thus, in the question before us, one can conclude that the Majority Leader’s case is premature. At the time he filed his writ, the Speaker had not yet made any pronouncement to the effect that the 4 seats had become vacant. One may ask: What would have been the fate of the case pending in the Supreme Court if the Speaker had decided not to rule on the motion to declare the vacancy, as Ansah, JSC asked rhetorically in the Ransford France case?

D: Invoking the original jurisdiction of the Supreme Court

What is 'jurisdiction' of a court'? The jurisdiction of a court is the power given to the court to sit and hear cases and give judgments. A court’s jurisdiction is given by the Constitution and other laws. Different courts in the court’s hierarchy have different jurisdiction. One court may not have the power to do what has been assigned to another court by law.

The Supreme Court, as the highest court, exercises various jurisdiction. These are original, appellate, review, supervisory, reference, challenge of election of President, production of official documents in court and jurisdiction relating to the President’s prerogative of mercy.[11] In constitutional litigation, the act of issuing a writ – or, simply put, suing in the Supreme Court – is known in legalistic linguistics as ‘invoking the original jurisdiction of the Supreme Court.

                  •         Grounds for suing in the Supreme Court

Most writs filed in the Supreme Court concern the interpretation and enforcement of the Constitution. But it is not every word in the Constitution that need to be interpreted or enforced by the Supreme Court. The grounds on which the Supreme Court entertains cases filed to seek provisions in the Constitution interpreted or enforced  were set out in the famous case of Republic v Special Tribunal; ex parte Akosah^[12] as follows:

“From the foregoing dicta, we would conclude that an issue of enforcement or interpretation of a provision of the Constitution under article 118 (1) (a) [of the Constitution, 1969] arises in any of the following eventualities:

(a) Where the words of the provision are imprecise or unclear or ambiguous.  Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;

(b) Where the rival meanings have been placed by the litigants on the words of any provision of the Constitution;[13]

(c)  Where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail;

(d) Where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.

On the other hand, there is no case of “enforcement or interpretation” where the language of the article of the Constitution is clear, precise and unambiguous.  In such an eventuality, the aggrieved party may appeal in the usual way to a higher court against what he may consider to be an erroneous construction of those words; and he should certainly not invoke the Supreme Court’s original jurisdiction under article 118.  Again, where the submission made relates to no more than a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case for interpretation arises.”

These grounds have been the abiding guiding light for the Supreme Court over the years whenever the Court has been called upon to exercise its original jurisdiction. If a plaintiff’s case does not fall within the purview of the Republic v Special Tribunal; ex parte Akosah^[14] grounds, the action is bound to fail.

The Supreme Court has stated on numerous occasions that it will decline to interpret constitutional provisions where the words are plain, clear and unambiguous. Thus, in Tuffour v Attorney-General,^[15] in refusing to apply article 2 of the then Constitution, the Court stated as follows:

“We are precluded, by express omission, from dealing with article 2, whatever coherence or symmetry that it may have with the Constitution as a whole. The words of section 3 admit of no ambiguity.”

The cases of Ghana Bar Association v Attorney-General,^[16] and Tait v Ghana Airways Corporation^[17] reinforce the learning in Tuffour v Attorney-General^[18] and Republic v Special Tribunal; ex parte Akosah.^[19] In Tait v Ghana Airways Corporation^[20] it was held as follows:

“If the words of the statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature… Where the language of the Constitution is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise.”

Again, the point was recently re-echoed in James Kwabena Bomfeh, Jnr v Attorney-General,^[21] as follows:

“A Constitutional issue is not raised on account of a plaintiff’s absurd, strained and far-fetched understanding of clear provisions in the Constitution. For a person to assert a manifestly absurd meaning contrary to the very explicit meaning and effect of clear words in the Constitution does not mean that a genuine issue of interpretation of some relevant Constitutional provision has arisen.”

In the light of the above position taken by the Supreme Court for about half a century now, can one argue that the words in article 97(1) (g) of the Constitution, 1992 pass the Ex parte Akosa test of being imprecise or unclear or ambiguous? The question becomes more apposite when one considers the fact that article 97(1) (g) has been applied in all instances of “cross carpeting” under the 4^th Republican Constitution, 1992. Indeed, the last application of the beleaguered provision was as recently as the year 2020.

The provision - article 97(1) (g) - was applied to declare the seat of an MP vacant when, after entering Parliament on the ticket of a political party, he filed his nomination to contest impending elections as an independent MP. By a wicked twist of fate, the political party that declared that its’ said MP had vacated his seat by filing to contest his parliamentary seat as an independent candidate, is now pushing a different ‘legal’ theory. The new position is that an independent candidate who files for nomination on the ticket of a political party in upcoming elections remains an independent MP. His seat cannot be said to be vacant. With this new position, heads party wins; tails we lose.  

E: Proper forum other than the Supreme Court

As it must be clear by now, the Supreme Court’s original jurisdiction is reserved specially for those cases that genuinely raise issues of constitutional interpretation or enforcement. Thus, where a plaintiff invokes the Supreme Court’s original jurisdiction to enforce his personal rights, the Supreme Court will decline the invitation to exercise its jurisdiction. The Court will point the plaintiff in the direction of the High Court for redress. Prof. Kofi Kumado sums up the reasoning behind the Supreme Court’s posture in most colourful terms as follows:

“… [t]he additional value in allowing lower courts to participate in the enforcement of the provisions of the Constitution is that, given the very liberal access conditions to the Supreme Court provided by the Court, the participation of lower courts saves the Supreme Court from becoming like “Makola Market” where everybody can shop needlessly resulting in the flooding of the Supreme Court. This flooding of the Supreme Court affects the court’s ability to dispose of cases expeditiously. When added to its other jurisdictions, we submit that it also adversely affects the quality of the court’s output in constitutionality cases.”[22]

To avert the “Makola Market” effect, the Supreme Court has on many occasions declined to entertain cases that have been dressed up as fit for Supreme Court banqueting when, in fact, their proper playing ground is a lower court, such as the High Court. Such was the fate that befell the plaintiff in Bimpong-Buta v General Legal Council & Others.^[23] The facts of the case were that, Dr. Bimpong-Buta (the plaintiff), was for many years a public officer who worked as the Editor of the Ghana Law Reports. He enjoyed the same terms and conditions of service as a Justice of the Court of Appeal. He was later appointed as the Director of Legal Education of the Ghana School of Law by the General Legal Council (the first defendant).

His letter of appointment stated he would be entitled to benefits similar to those of Justices of the Court of Appeal, other than their retiring awards. Dr. Bimpong-Buta went on a two-year secondment to The Gambia. On his return, he found out that the General Legal Council had appointed a senior lecturer at the Ghana School of Law (the second defendant) as the substantive Director of Legal Education of the Ghana School of Law. He protested that the appointment of the senior lecturer was unlawful but this was rejected by the General Legal Council.

Dr. Bimpong-Buta sued General Legal Council, the senior lecturer, and others in the Supreme Court for interpretation of certain clauses in the Constitution, 1992. He also asked the Court to declare the senior lecturer’s appointment as null and void. The Supreme Court did not entertain Dr. Bimpong-Buta’s case. The case was struck out for want of jurisdiction. The reason was that his case did not properly raise any real or genuine issues of constitutional interpretation or enforcement of the Constitution, 1992 that could justify the Supreme Court exercising its original jurisdiction.

The Supreme Court explained further that the constitutional clauses Dr. Bimpong-Buta wanted interpreted were precise, clear and unambiguous. They were not obscure or in any manner capable of any meaning other than what the words said. Moreover, none of the parties had placed or attempted to place any meaning on those words to rival another party, among other things.

Most importantly, the Court noted that his

claimed accrued right to retire at the same age as a Court of Appeal Justice derived from the terms and conditions of his contract of employment, and not from the Constitution, 1992. Thus, the Court reasoned, Dr. Bimpong-Buta’s claim was essentially one regarding his employment. It was a personal action to him and the High Court was the appropriate forum to ventilate his grievances, not the Supreme Court.

Similarly, in Tait v Ghana Airways Corporation,^[24] Mr. Tait’s (the plaintiff) case was held to be essentially one of wrongful dismissal. In the result, the Supreme Court rejected the contention of Mr. Tait’s lawyer that the Court was being called upon to interpret and enforce articles^[25] in the Constitution. The case was not entertained.

Again, Ghana Bar Association v Attorney-General^[26] was held to be a case aimed at removing a Chief Justice from office. But the case had been clothed in the garb of one for interpretation and enforcement of the Constitution. Thus, the Supreme Court declined to exercise its original jurisdiction.

Another example is Yeboah v Mensah.^[27]  The case was held to be an election petition dressed up as a writ for the interpretation and enforcement of the Constitution. The case was, therefore, dismissed by the Supreme Court.

In the well-known case of Yiadom I v Amaniampong,^[28] the Queenmother of Asante Effiduase, Nana Konadu Yiadom, sued Mamponghene Nana Atakora Amaniampong, in the Supreme Court seeking the interpretation and enforcement of the Constitution, 1979. The Supreme Court refused to entertain the case because it was found out that the case was a chieftaincy dispute couched as a writ to invoke the original jurisdiction of the Supreme Court.

In a nutshell, as has been demonstrated by the Bimpong-Buta and other cases discussed above, where a plaintiff’s case seeks to obtain a remedy that is within the High Court or other fora’s province to handle, the Supreme Court will not spend its precious and exclusive original jurisdiction on it. The Supreme Court does not assume jurisdiction out of compassion or sympathy. So long as there is a proper forum other than the Supreme Court for the plaintiff to ventilate his or her rights, the Supreme Court will not entertain the case.

For instance, in Turkson & Others v Economic & Organized Crime Office & Attorney-General,^[29] one Turkson and two others (the plaintiffs) issued a writ invoking the Supreme Court’s original jurisdiction. Turkson and the others sought reliefs for the de-freezing of their bank accounts and the return of their confiscated funds by Bank of Ghana, among other reliefs. The Supreme Court held that, the writ did not disclose any issues that needed interpretation or required enforcement of the Constitution. The Court added as follows:

“[E]ven though the plaintiffs appeared to have been denied justice in the whole handling of their case at the High Court, their decision to file the writ at the Supreme Court to invoke its interpretative and enforcement jurisdiction appeared desperate and ill-conceived.”

After considering all these cases on how the Supreme Court exercises or refuses to exercise its original jurisdiction, is the Majority Leader's case a proper one to invoke the Supreme Court's Jurisdiction? The Supreme Court is unlikely to assume jurisdiction over such a case. This is so because it is essentially a case concerning parliamentary seats. That is a case within the jurisdiction of the High Court, not the Supreme Court. Article 99 clearly says so. As such, the constitutional provisions cited as the basis for the filing the case in the Supreme Court appear to be a smokescreen intended to mask the true nature and effect of the suit as a parliamentary seat dispute.

F: Conclusion

Just when I turned over my answer sheet to tackle the next issue, my friend Genevive sneaked upon me on my blind side from her seat at the back of the class. (With her surname, Ocansey, starting with the letter 'O', Genevive always sat far from me with Odartey-Wellington, Felix and others forming the ‘O’ crew during exams.) I felt a gentle tap on my shoulder and, thinking it to be the invigilator who needed my attention, I turned. And there Genevive was, with a mischievous grin on her face.

Once she realised she had my full attention, she blurted out: "Hey, Madam, what are you doing here? Didn't Chairman & Friends say you should not think or breathe ‘law’ for Nebuchadnezzaran years?" Sensing by my countenance that I was going to issue a riposte, she fled off in a fit of giggles, drawing concurring laughter from Abena Koranteng. Even the oft-gentle and soft-spoken Daniel Addai[30] could not help but join the feast of giggles that had been laid out at my expense.

At that moment, I knew a verbal response would not serve my turn. I devised a more lethal plan. I slowly leaned downwards on my right side from my seat. My right hand extended to reach my right high-heeled shoe. I silently and methodically unbuckled my shoe. At the same time, my eyes were intently fixed on the absconding naughty young lady, lest she escaped my gaze. Once I had my right shoe firmly in hand, I slowly stood up from my seat with the intention to propel it with maximum force and precision to land on her fast-disappearing image.

Just then I was awoken by the shrill barks of Kuro, my beloved son's dog. What a bummer! And thus it was that I could not finish answering the question.

Woe is me if I do not get the chance to do so.