ABEL EDUSEI vs. THE ATTORNEY-GENERAL & THE DIRECTOR, BUREAU OF NATIONAL INVESTIGATIONS (BNI) [1998]DLSC6125

ABEL EDUSEI vs. THE ATTORNEY-GENERAL & THE DIRECTOR, BUREAU OF NATIONAL INVESTIG... [1998]DLSC6125

Date	1998-04-22
Suit No.	CIVIL MOTION NO. 21/96
Citation No.	[1998]DLSC6125

MRS. BAMFORD-ADDO

J.S.C. (PRESIDING)

HAYFRON-BENJAMIN J.S.C.

AMPIAH J.S.C.

KPEGAH J.S.C.

ADJABENG J.S.C.

ACQUAH J.S.C.

ATUGUBA J.S.C.

NANA AKUFO ADDO WITH AKOTO AMPAW FOR THE APPLICANT

DR. OBED ASAMOAH ATTORNEY-GENERAL WITH MR. MARTIN AMIDU DEP.

ATTORNEY-GENERAL MR. AVAH; CHIEF STATE ATTORNEY FOR THE ATTORNEY-GENERAL.

[1998]DLSC6125
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													<main id="main" class="content" style="min-height: 60rem" >ABEL EDUSEI<o:p></o:p>{PLAINTIFF/APPLICAN}<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY-GENERAL &amp; THE DIRECTOR, BUREAU OF NATIONAL
INVESTIGATIONS (BNI)<o:p></o:p>{DEFENDANT/RESPONDENTS}<o:p></o:p>[SUPREME
COURT, ACCRA-GHANA]<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">

CIVIL
MOTION NO. 21/96&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; &nbsp; &nbsp; DATE: 22nd APRIL, 1998.<o:p></o:p>

DR.
OBED ASAMOAH, ATTORNEY-GENERAL WITH MR. MARTIN AMIDU DEP. ATTORNEY-GENERAL, MR.
AVAH; CHIEF STATE ATTORNEY FOR THE ATTORNEY-GENERAL.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>JOYCE
BAMFORD-ADDO, J.S.C.<o:p></o:p>This is an application the
Applicant asking for a review of the decision of this Court dated 13th February<o:p></o:p>1996 which held that the
court has no jurisdiction to hear the case brought before it in the above mentioned
case. Since jurisdiction is a fundamental issue, the absence of which would render
any decision of a Court null and void, it is of utmost importance for a Court
to ensure that in any case brought before it, it has the requisite jurisdiction
to hear and determine that case. Where there is lack of jurisdiction a Court
ought to decline jurisdiction. In the same manner where a court has
jurisdiction in any case is should accept jurisdiction and adjudicate on it. It
would be wrong in a such case to decline jurisdiction, as this would result in
injustice to an applicant and would constitute exceptional circumstance for
which a review would be granted under Article 133 of the 1992 Constitution.<o:p></o:p>The Plaintiff/Applicant by
a writ and accompanying statement of case invoked the original jurisdiction of this
Court for the following reliefs, namely:<o:p></o:p>A declaration that:<o:p></o:p>"1(i) Section 5(1) and 12(3) of
the Passport and Travel Certificate Decree 1967 NLCD 155 which seek to give the
Minister of Foreign Affairs ("Member Responsible") wide discretionary
powers in the grant, refusal, revocation, cancellation or impounding of
passports and travel certificates, Section 5(2)a, (b)(ii)(iii) which provides
the Minister of Foreign Affairs ("Member Responsible") shall not
issue a passport to specified categories of persons, and section 17(e) which
seeks to give the Minister of Foreign Affairs absolute discretion in refusing
to grant travel certificates are inconsistent with, and a contravention of the
letter and spirit of the Constitution and especially Article 11 (1), (2) and
(3) and 21(1)(g). Accordingly the said Sections of NLCD 155 are null and void
and unenforceable.<o:p></o:p>(ii) As a citizen of Ghana by birth,
the Plaintiff has a constitutional right to enter and leave Ghana and a fortiori
to a passport to enable him exercise and enjoy that right.<o:p></o:p>(2) An order directing the Minister of
Foreign Affairs and Director of BNI to return to the Plaintiff his old passport
to enable the Plaintiff to apply for a new Passport."<o:p></o:p>The Defendant admit that
the Plaintiff is a citizen of Ghana and conceded that the right to a Passport
was inherent in the freedom of movement guranteed under Article 21(1)(g) of the
Constitution. Before the hearing at the Supreme Court a Preliminary objection
to jurisdiction was raised by the Defendants on the ground that the Plaintiffs
case was not a proper case in which the original jurisdiction of the Court
under Article 130(1)(a) of the Constitution could be invoked. The Defendants submitted
that the Plaintiff had clothed a Human Rights enforcement issue as a request
for interpretation of the Constitution and that the proper forum for such an
action was the High Court as provided under Article 33 of the Constitution: namely<o:p></o:p>"33(1) Where a person alleges
that a provision of this Constitution on the fundamental Human Rights and Freedoms
has been or is being or is likely to be contravened in relation to him then,
without prejudice to any other action that is lawfully available, that person
may apply to the High Court for redress."<o:p></o:p>The issue for decision is
whether the Plaintiffs claim concerns a question of interpretation which would enable
him to invoke the original exclusive jurisdiction of the Supreme Court, or
whether he is in actual fact seeking only an enforcement of his fundamental
rights, in which case the proper forum would be the High Court. The endorsement
on the Plaintiffs Writ of Summons sought an interpretation of various clauses
of NLCD 155 in an attempt to render those clauses inconsistent with the
Constitution namely Article 21 (1)(g) and therefore to have them declared null
and void and unenforceable.<o:p></o:p>Article 21(1)(g) which
deals with general fundamental freedoms and provides as follows:<o:p></o:p>"Article 21(1) All persons shall
have the right to (g) freedom of movement which means the right to move freely
in Ghana, the right to leave and enter Ghana, and immunity from expulsion from
Ghana."<o:p></o:p>I do not find any
difficulty in understanding the import of these words, which in my opinion does
not need to be interpreted by the Court at all. The Plaintiff in his writ and endorsement
1(ii) that "he had a constitutional right to leave Ghana and a fortiori to
a passport to enable him to exercise and enjoy that right."<o:p></o:p>T</main>