A: Introduction

The Office of Special Prosecutor (OSP) must be exhausted. This is an office that was set up as a specialised agency to investigate and prosecute corruption and corruption-related offences involving public officers and politically exposed persons. The law that set up the OSP stated that it must prosecute the designated offences on the authority of the Attorney-General. A concerned citizen of the Republic has filed a constitutional case in the Supreme Court challenging the OSP’s action of prosecuting cases without the Attorney-General’s authorisation as required by law.[1]

 

This article discusses two matters arising from the effect of the interlocutory ruling on the OSP’s application for joinder in Adamtey v Attorney-General.[2] The first is the notion that without the OSP’s participation in the proceedings, the plaintiff and the defendant are of the same mind (ad idem, on pain of sounding colloquial). Thus, there is no ‘real’ or ‘live’ issue of contention before the Supreme Court.

 

The second matter for discussion is the notion of ‘symbiotic posturing’ being exhibited by the parties. It has been argued that such posturing casts doubt on the legitimacy of the parties’ contentions and arguments. It also appears to reflect badly on the apex Court as using its precious time to dabble in ‘non-issues’ when serious cases are stuck in the dark tunnel of adjudication.

 

B: Should the OSP have been joined in the case?

The plaintiff sued the Attorney-General in Adamtey v Attorney-General[3] to question the OSP’s alleged breach of its constituent Act (Act 959 of 2017). The plaintiff did not join the OSP as a defendant. In due course when the suit came to the OSP’s attention, the OSP took steps to join and defend its position. But the OSP’s application for joinder was dismissed. The Supreme Court ruled that the OSP’s presence was not necessary for deciding the issues presented by the plaintiff.

 

At first glance, the Supreme Court’s decision not to allow the OSP to join the proceedings appears to be fair. After all, the OSP is an office that works directly under the Attorney-General, the defendant. Thus, it would not seem out of place if the Attorney- General were the sole defendant to defend the action; ultimately in the OSP’s interest. However, the optics in the case presents an entirely different reality. Contrary to the expectation that the Attorney-General (the defendant) would put up a different case to challenge the plaintiff’s claim for relief, the Attorney-General’s ‘defence’ is in support of the plaintiff’s case.

 

With the Attorney-General not only singing from the same hymnal as the plaintiff but also singing the same ‘tenor’ part, one does not need any oracular consultation to see that the OSP’s interest in the case is hardly secure. If one wants to be metaphoric, the OSP could be likened to an orphan in this instance. Indeed, the mother hen that is expected to protect the OSP from the claws of the hawk has joined the hawk in singing and dancing to “krekete soya.”

 

It is for this reason that one would have expected the Supreme Court to grant the OSP leave to join the case as a defendant and defend itself. After all, the OSP is a statutory corporate body created under the full legislative force and power of the Republic. It has capacity to sue and be sued. It has the legal right to access the courts just like every other person – human, corporate or otherwise. Thus, to be shut out of the corridors of justice when its prosecutorial power is on the precipice is an unfortunate turn of events. In the absence of a ‘proper’ defendant in the case, it is submitted that the Supreme Court may be disabled from effectively resolving the issues in controversy presented in the plaintiff’s case. 

 

The Supreme Court has encountered joinder applications similar to that of Adamtey v Attorney-General^[4] in its 150 years old lifetime. There have been cases in the Supreme Court where there have already been ‘real’ defendants or respondents prepared to do substantial battle with plaintiffs. Nonetheless, the Supreme Court has granted leave to other persons to join the case as defendant or respondent to ensure that all matters in dispute between the parties are completely and effectually determined.[5]

 

It will be recalled that in the 2012 Presidential election challenge case of In re Presidential Election Petition; Akufo-Addo, Bawumia & Obestebi-Lamptey (No. 4) v Mahama, Electoral Commission & National Democratic Congress (No. 4),^[6] the Supreme Court granted an order for the National Democratic Congress (the political party whose President-elect was being challenged) to join the case as third respondents. The petitioners were Nana Akufo-Addo (the National Patriotic Party (NPP) presidential candidate), his running-mate Dr. Bawumia and Mr. Obetsebi-Lamptey (the Chairman of the NPP).[7]

 

There have also been cases where the Supreme Court has made an order for a person who had not been joined as a defendant - but whose rights were at stake in the proceedings - to be joined as ‘defendant.’ A classic example of such situations is the case of Okudzeto Ablakwah & Another v Attorney-General & Obetsebi-Lamptey.^[8] This was the case in which Hon. Okudzeto Ablakwa and the late Dr. Omane Boamah sued in the Supreme Court to challenge the sale of a Government bungalow to the late Mr. Jake Obetsebi-Lamptey. They initially sued the Attorney-General, the Chairman of the Lands Commission and the Chief Registrar of Lands as defendants.

 

The Supreme Court struck out the two other defendants and the Attorney-General became the sole defendant. The plaintiffs did not sue Mr. Obetsebi-Lamptey. It was Mr. Obetsebi-Lamptey himself who later applied to join as a defendant in his capacity as the lessee and beneficiary of the grant of the Government bungalow in dispute. Mr. Obetsebi-Lamptey’s application was granted and that was how he became a defendant in the case.

 

The interesting aspect of the Okudzeto Ablakwah case was that, had the Supreme Court failed to join Mr. Obetsebi-Lamptey as defendant, it is doubtful whether the Attorney-General would have defended and protected his interest in the manner he did himself. Mr. Obetsebi-Lamptey’s situation in Okudzeto Ablakwah & Another v Attorney-General & Obetsebi-Lamptey^[9] has a striking resemblance to the OSP’s Adamtey v Attorney-General.^[10] The only difference is that whereas Mr. Obetsebi-Lamptey had his day in court - and defeated the plaintiffs, the OSP has had no such luck. The OPS can only perch on the rooftop of the Supreme Court and peep in to the ongoing proceedings and pray for prosecutorial salvation.     

 

C: The doctrine of ‘symbiotic posturing’

I came across the expression “symbiotic posturing” for the first time in Mr. Justice Gabriel Pwamang’s dissenting opinion in the case of Francis Osei-Bonsu v Attorney-General.[11] This was a case where a citizen sued the Attorney-General at the Supreme Court for a declaration granting dual citizens the right to hold certain public offices such as Chief Justice, Justice of the Supreme Court, Director-General of Prisons, Chief Fire Officer and so on.

 

In the light of the submissions made by the plaintiff and the Attorney-General, it was not too difficult for one to see the symbiotic nature of the parties’ posturing. In the Attorney–General’s statement of case, he expressed substantial support for the views and positions canvassed by the plaintiff. The Attorney-General ascribed his unusual stance to "the spirit of intellectual honesty" and after "careful consideration." The majority panel of the Supreme Court admitted that the Attorney-General’s approach was “uncommon.” But they found it “impressive and for that matter commendable.”[12] The plaintiff’s declarations and orders sought were granted.

 

In his dissenting opinion, Mr. Justice Pwamang deprecated the plaintiff and the Attorney-General’s symbiotic posturing. Secondly, he queried whether, on the face of the plaintiff's writ and his statement of case, the case filed raised a real constitutional controversy for adjudication. And thirdly, whether the original jurisdiction of the Supreme Court had been properly invoked. He answered all the questions in the negative. He prophesied that holding otherwise would “set a dangerous precedent that may come back to haunt the Court in the future and I do not wish to be part of it.”

 

Indeed, Mr. Justice Pwamang added that he could not grant the reliefs sought by the plaintiff since he had sued on a matter that had not been shown to have occasioned any injustice. To reiterate Mr. Justice Pwamang’s view in Francis Osei-Bonsu v Attorney-General,^[13] the question to ask is this: What injustice has been caused by the OSP’s prosecution of corruption cases without the Attorney-General’s authorisation in Adamtey v Attorney-General?^[14]

 

As a constitutional case, the Attorney-General is the defendant in Adamtey v Attorney-General.[15] By all accounts, the Attorney-General has embraced the case with all seriousness beyond what the Department would usually do as a ‘nominal’ defendant. The OSP whose conduct and actions form the basis of the suit was not added as a defendant. The OSP reportedly applied to join the case but the application was dismissed. In effect, the case is a ‘showdown’ (apologies to Mr. Kennedy Agyapong) between two parties who are in court expressing the same views on the subject-matter of the plaint. In fact, a more fitting description of the Attorney-General is a “co-plaintiff” rather than defendant. In the meantime, the party whose past and future actions are going to be affected by the Supreme Court’s decision is sitting on the sideline, biting its nail in anxious anticipation.

 

The question that confronts one dealing with a case where both the plaintiff and defendant are of the same mind on the issues and reliefs before the court can be put thus: If both parties are in agreement on the plaint, issues and reliefs sought, what is the point in going to court? What ‘controversy’ is there to be resolved? Most especially, in the Supreme Court whose role is to interpret and enforce laws?

 

To put it more graphically, imagine two friends who approach the Supreme Court, arm in arm, with broad smiles and plead as follows:

“Hello, Honourable Justices, we need certain declarations and orders made for our joint benefit. Since litigation necessarily entails having a ‘plaintiff’ and a ‘defendant,’ we will present ourselves as such. We will file statements of case, mimicking each other in the spirit of intellectual honesty. Never mind that such an approach is uncommon at best, and egregious at worst. Just hear us out and give us our desired declarations. We will handle anyone who later describes your decision as “contrived,” “rubber-stamp(ed),” “cooked” or “judicially-engineered.” Easy as pie!”

How will the Supreme Court receive such an approach?

 

D: Conclusion

The case filed in the Supreme Court in Adamtey v Attorney-General^[16] may go a long way to enriching Ghana’s constitutional democracy and rule of law credentials. It is contended that in such important constitutional cases, opportunity must be given to persons whose interests and rights would be impacted by the Court’s decision to be made parties. That could be so whether such persons are joined at the outset or they are joined during the pendency of the case.

 

Most importantly, the courts must guard against embracing suits in which the parties present cases that only reinforce the plaint filed. ‘Controversy’ is the lifeblood of adjudication. Where there is no controversy, adjudication becomes a plaything.

 

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