KUENYEHIA AND OTHERS vs. ARCHER AND [1993]DLSC4910

Date	1993-05-25
Suit No.	[1992 – 1993] 3 G B R 1260 – 1356 S C
Citation No.	[1993]DLSC4910

ADADE JSC

FRANCOIS JSC

AMUA-SEKYI JSC

AIKINS JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

[1993]DLSC4910
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													<main id="main" class="content" style="min-height: 60rem" >KUENYEHIA AND OTHERS<o:p></o:p>vs.<o:p></o:p>ARCHER AND<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992 – 1993] 3 G B R 1260 – 1356 S
C&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 25 MAY 1993<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ADADE
JSC, FRANCOIS JSC, AMUA-SEKYI JSC, AIKINS JSC, WIREDU JSC, BAMFORD-ADDO JSC,
HAYFRON-BENJAMIN JSC<o:p></o:p>

</div><o:p>&nbsp;</o:p>ADADE JSC. <o:p></o:p>On
23/2/93, the Chief Justice, 1st defendant to this action, armed with a letter
dated 22/2/93 from the President’s office, administered the oath of allegiance
and the judicial oath to justices of the Supreme Court. Three days later, on
26/2/93, justices of the Court of Appeal were likewise sworn. The Ghana Bar
Association complains that in either case the swearing-in was not in conformity
with the 1992 Constitution and was null and void.<o:p></o:p>The
Association’s first step was to write to the Chief Justice exhibit SC2, dated
4/3/93, explaining in some detail its position. Not receiving any satisfactory
response, and apparently teased by the report of a press conference given by
the Judicial Secretary, the 2nd defendant, the Association mandated three of
its principal officers to institute the present action.<o:p></o:p>In
their statement of case, as in the writ of summons filed on 18 March 1993, the
three officers describe themselves respectively as the National President, the
National Vice-President and the National Secretary of the Ghana Bar
Association.<o:p></o:p>As
was pointed out by the defendants in their statement of case, the plaintiffs do
not need to sue in a representative capacity since by article 2 of the
constitution, any person “who alleges that any act or omission of any person is
inconsistent with, or is in contravention of, a provision of the constitution
may bring an action in the Supreme Court for a declaration to that effect.”
Nothing however turns on the capacity in which the plaintiffs have sued, and
the question need not be addressed further.<o:p></o:p>The
1st and 2nd defendants, although not described by office in the title of the
action, were sued in their official capacities as the Chief Justice and the
Judicial Secretary respectively, of the Judicial Service. The 3rd defendant is
the Attorney-General of the Republic of Ghana, and was sued as such.<o:p></o:p>By
their writ of summons, the plaintiffs seek two reliefs, viz.<o:p></o:p>&nbsp;“1. A declaration that by the combined effect
of article 156(1),<o:p></o:p>(2) and (3), section 4 of the
Transitional Provisions (the 1st Schedule) and the 2nd Schedule of the 1992
Constitution of the Republic of Ghana, all justices of the Supreme Court, the
Court of Appeal and the High Court in Ghana holding office immediately before
the coming into force of the said constitution are obliged to take and
subscribe the oath of allegiance and the judicial oath set out in the 2nd
Schedule to the said constitution before the President of the Republic of Ghana
only and not before any other person.<o:p></o:p>2. A declaration that the purported
taking and subscribing of the oath of allegiance and the judicial oath by
justices of the Supreme Court and the Court of Appeal of Ghana on or about 23rd
and 26th February 1993, respectively, before the Chief Justice is null and void
and of no effect whatsoever.”<o:p></o:p>In
the statement of case accompanying the writ of summons, the plaintiffs explain
at some length, as they did in exhibit SC2, why they consider the action of the
Chief Justice unconstitutional. They argue in particular, that by the combined
effect of article 156 and section 4 of the Transitional Provisions the Chief
Justice has no capacity to administer the oath of allegiance and the judicial
oath to justices of the superior courts.<o:p></o:p>The
defendants quite naturally reject this argument. They contend, in particular,
per paragraph 8 of their statement of defence thus:<o:p></o:p>“8. The defendants say further, or in
the alternative, that the President properly designated the 1st defendant, the
Chief Justice, by letter Ref No OP/S 550 dated 22/2/93, a copy of which is
annexed hereto, to administer the oath of allegiance and the judicial oath to
justices of the superior courts whose appointments continued under the
Transitional Provisions.”<o:p></o:p>That
letter shows, at the extreme left hand corner, that it was received by the
Office of the Chief Justice on 23/2/93, the same day that the justices of the
Supreme Court were sworn. The letter reads as follows:<o:p></o:p><o:p>&nbsp;</o:p>“ADMINSTRATION
OF OATH OF OFFICE TO JUDGES OF THE SUPERIOR COURTS - SECTION 4 (PART III)
TRANSITIONAL PROVISIONS<o:p></o:p>In conformity with section 4, Part III
(Transitional Provisions) of the constitution, the President has designated the
Chief Justice to swear-in the judges of the superior courts.<o:p></o:p>(Sgd) ATO DADZIE<o:p></o:p><o:p>&nbsp;</o:p>OFFICE OF THE PRESIDENT.<o:p></o:p><o:p>&nbsp;</o:p>HIS LORDSHIP,<o:p></o:p><o:p>&nbsp;</o:p><p</main>