FRANK BO AMISSAH vs. THE ATTORNEY GENERAL [2003]DLSC2385

Date	2003-03-12
Suit No.	WRIT NO. 7/2000
Citation No.	[2003]DLSC2385

MRS BAMFORD-ADDO J.S.C. (PRESIDING)

MRS. WOOD J.S.C

BROBBEY J.S.C.

BADDOO J.S.C

DR. TWUM J.S.C.

NANA AKUFFO-ADDO ATTORNEY GENERAL MISS GLORIA AKUFFO DEPUTY

ATTORNEY AND MR. OSAFO SAMPONG D.P.P FOR DEFENDANT

NANA ADJEI AMPOFO FOR PLAINTIFF.

[2003]DLSC2385
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													<main id="main" class="content" style="min-height: 60rem" >FRANK BO AMISSAH<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY GENERAL<o:p></o:p>[SUPREME
COURT]<o:p></o:p>WRIT
NO. 7/2000<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">

DATE: 12TH MARCH, 2003.<o:p></o:p>

</div>COUNSEL<o:p></o:p>NANA
AKUFFO-ADDO, ATTORNEY GENERAL, MISS GLORIA AKUFFO, DEPUTY ATTORNEY AND MR.
OSAFO SAMPONG D.P.P FOR DEFENDANT<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">

NANA
ADJEI AMPOFO FOR PLAINTIFF.<o:p></o:p>

</div>CORAM:&nbsp;
<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">

MRS
BAMFORD-ADDO, J.S.C. (PRESIDING), MRS. WOOD, J.S.C, BROBBEY, J.S.C., BADDOO,
J.S.C., DR. TWUM, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>RULING<o:p></o:p>BROBBEY
J.S.C.:<o:p></o:p>Describing
his capacity as a citizen of Ghana simpliciter and a person with the duty to
defend the Constitution, the plaintiff issued a writ invoking the original
jurisdiction of this court. He cited as the defendant the Attorney General in
his capacity as the principal legal officer of the Government and the person
who conducts criminal prosecutions or on whose behalf criminal prosecutions are
conducted. In his writ, the plaintiff claimed the following reliefs;<o:p></o:p>“i) A declaration that section 179A(3)
of the Criminal Code, 1960 (Act 29) as amended by Act 458 is inconsistent with
and in contravention of Article 19(11) of the Constitution of Ghana, 1992.<o:p></o:p>ii) A declaration that any criminal
prosecution, trial and or conviction held or done under or on the authority of
the said section 179 A (3) of Act 29 is in contravention of the Constitution
and void and of no effect.<o:p></o:p>iii) A declaration that the
prosecution or trial of some former public officers of Ghana under the said
section 179 A (3) of Act 29 in suit FT/MISC/2/2001 otherwise known as the
Quality Grain Case is being done in contravention of the Constitution"<o:p></o:p>Statements
of the plaintiff's case were filed, followed by affidavit verifying the facts
and particulars in the terms of the rules. For his part, the defendant filed
statements of his case and memorandum of issues were also filed. Monday, March
4th, 2003 was fixed for the hearing of the writ. As late as half past ten in
the morning of that Monday, the plaintiff filed supplementary statement of his
case. At half past two on the same day of 3rd March, the plaintiff filed a
notice in these terms:<o:p></o:p>PLEASE
TAKE NOTICE that the plaintiff wholly discontinues/withdraws this action"<o:p></o:p>When
the case was called on that day, counsel for the plaintiff formally applied on
behalf of the plaintiff in open court to withdraw or discontinue the action.
According to counsel, the plaintiff applied to withdraw or discontinue the case
for "personal reasons.”<o:p></o:p>At
that juncture, the defendant opposed the application to withdraw or
discontinue. In sum, the submissions made to oppose the application were as
follows;<o:p></o:p>1.
Counsel for the plaintiff did not state the rule under which he applied to
withdraw the case. There were no express rules on similar withdrawals in the
Supreme Court Rules, C.I. 16, and therefore he invited the court to apply rule
5 of the said Rules and treat the application as an application to for leave to
withdraw or discontinue the suit.<o:p></o:p>2.
In the view of the Attorney General, leave should be refused for two main
reasons.<o:p></o:p>3.
The first reason was that the case raised a serious constitutional issue as to
the constitutionality of section 179A of the Criminal Code. In the interest of
the public, that issue should be determined finally by the highest court of the
land to bring to an end the spate of criticisms levelled against that section,
especially in some criminal trials pending in the courts.<o:p></o:p>4.
The second reason was that the application to withdraw was brought in bad
faith. This point was grounded on the fact that the same counsel who applied to
withdraw the suit had openly in the High Court ten days earlier castigated the
Chief Justice and the Acting Supreme Court Registrar for failing or refusing to
list for hearing the very suit that he was applying to withdraw after it had
been listed.<o:p></o:p>5.
The Attorney General relied on Fox v. Star Newspaper &amp; Co. (1898) 1 QB 636,
638 to support his contention that the application to withdraw the suit should
be refused.<o:p></o:p>In
his reply, counsel for the plaintiff contended that the plaintiff could not be
forced to pursue the case and that he should be allowed to withdraw, citing as
his authority a similar case of withdrawal granted by this court in Obeng Manu
(Jnr.) v. the Attorney General (Writ no. 6/93 dated 23rd May 1995.)<o:p></o:p>There
is no doubt that C.I. 16 contains no express provision by which a person who
has filed a writ may withdraw it or discontinue his action commenced before
this court. In the state of the lacuna in the rules, it is usually rule 5 which
is invoked to find a solution. Rule 5 provides that<o:p></o:p>“Where no provision is expressly made
by these Rules regarding the practice and procedure which shall apply to any
cause or matter before the court, the court shall prescribe such practice and
procedure as in the opinion of the court the justice of cause or matter may
require."<o:p></o:p>In
deciding on this issue,</main>