ERNEST ADOFO AND ANOTHER vs. THE ATTORNEY-GENERAL AND ANOTHER [2005]DLSC2406

Date	2005-05-20
Suit No.	WRIT J1/3/2004
Citation No.	[2005]DLSC2406

ATUGUBA J.S.C. (PRESIDING

MISS AKUFFO J.S.C

MRS. WOOD J.S.C

DR. DATE-BAH J.S.C

ANINAKWAH J.S.C.

MRS. KATHLEEN QUARTEY AYENSU C.S.A. FOR ATTORNEY-GENERAL.

MR. SAMUEL KLAYSON FOR PLAINTIFF.

MR. JOHN D. CLOTTEY-SEFA FOR 2ND DEFENDANT.

[2005]DLSC2406
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													<main id="main" class="content" style="min-height: 60rem" >ERNEST ADOFO AND ANOTHER<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY-GENERAL AND ANOTHER<o:p></o:p>[SUPREME
COURT]<o:p></o:p>WRIT
J1/3/2004<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: 20TH APRIL 2005.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MRS. KATHLEEN QUARTEY AYENSU C.S.A. FOR
ATTORNEY-GENERAL.<o:p></o:p>MR.
SAMUEL KLAYSON FOR PLAINTIFF.<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">

MR.
JOHN D. CLOTTEY-SEFA FOR 2ND DEFENDANT.<o:p></o:p>

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

ATUGUBA,
J.S.C. (PRESIDING), MISS AKUFFO, J.S.C., MRS. WOOD, J.S.C., DR. DATE-BAH,
J.S.C, ANINAKWAH, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>&nbsp;<o:p></o:p>DR.
DATE-BAH, J.S.C:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>This
is the unanimous judgment of the Court.&nbsp;
The Plaintiffs issued a Writ on 2nd March 2004 seeking an enforcement of
the Constitution by:<o:p></o:p>&nbsp;1.&nbsp;&nbsp; “A
declaration that by the proper interpretation of the Article 36(1) and (2) of
the 1992 constitution PNDC law 125 ceased to exist or to have any effect upon
the coming into effect of the 1992 constitution of the Republic of Ghana.<o:p></o:p>&nbsp;2.&nbsp;&nbsp; A
declaration that said PNDC law 125 is inconsistent with the provision of the
discriminate (sic) 1992 constitution in so far as it tends to decrements (sic)
against certain categories of workers in Ghana and within the CocoBod.<o:p></o:p>&nbsp;3.&nbsp;&nbsp; A
declaration that the said P.N.D.C. law 125 is unconscionable and must be
removed from the statute books of Ghana.”<o:p></o:p>&nbsp;<o:p></o:p>The
Writ was expressed to be issued by three Plaintiffs, namely, Ernest Adofo, Paul
K Sekley and Samuel Ntiful “for themselves and on behalf of 70 other workers of
the Cocobod retrenched in September 1994”.&nbsp;
In the accompanying Statement of Case, verified by an affidavit deposed
to by the first Plaintiff, the Plaintiffs stated that they were citizens of
Ghana and former employees of the Ghana Cocoa Board.&nbsp; They further stated that in or about 1994 the
Plaintiffs, numbering about 70, were declared redundant and their employment
terminated.&nbsp; Their terminal benefits were
not paid them, they claimed.&nbsp; When they
made inquiries regarding these benefits, they alleged that they were informed
of PNDC Law 125, which was said to empower the Ghana Cocoa Board to terminate
their employment and to indemnify the Board from any liability for the payment
of retirement benefits in accordance with the collective agreement of these
employess.&nbsp; The Plaintiffs contended that
PNDCL 125 was unconstitutional, as it offended against the express stipulation
in Article 36 of the 1992 Constitution.&nbsp;
This reference in the Plaintiff’s Statement of Case was in fact wrong
and should have read section 36 of the Transitional Provisions (First Schedule
to the Constitution).<o:p></o:p>On
25th November 2004, the Plaintiffs filed a motion on notice for an amendment of
their Writ in order to cure an irregularity which had been identified by the
Defendants.&nbsp; The Plaintiffs’ Writ had
failed to provide the addresses of the first three Plaintiffs nor the names or
addresses of the 70 other workers of Cocobod that the first three Plaintiffs
purported to represent.&nbsp; The amendment
was granted on 18th January 2005.&nbsp; By the
amended Writ, the three Plaintiffs no longer purported to be representing
others and their respective addresses were now inserted.&nbsp; The nature of the relief sought was now
endorsed as follows:<o:p></o:p>&nbsp;“Enforcement of the Constitution by:<o:p></o:p>1.&nbsp;&nbsp;
A declaration that by the proper interpretation of the Article 36(1) and
(2) of the Transitional Provisions of the 1992 constitution PNDC Law 125 ceased
to exist or to have any effect upon the coming into effect of the 1992
constitution of the Republic of Ghana.<o:p></o:p>&nbsp;2.&nbsp;&nbsp; A
declaration that said PNDC Law 125 is inconsistent with the provisions of the
1992 constitution in so far as it tends to discriminate against certain
categories of workers in Ghana and within the CocoBod and in so far as it seeks
to oust the jurisdiction of the courts.<o:p></o:p>&nbsp;3.&nbsp;&nbsp; A
declaration that the said PNDC Law 125 is unconscionable.”<o:p></o:p>&nbsp;Learned counsel for the Attorney-General,
Mrs.Kathleen Quartey Ayensu, Chief State Attorney, filed a notice of preliminary
objection to the Plaintiffs’ Writ, insisting that the Writ did not raise issues
predominantly within the ambit of Article 130(1) of the Constitution and that
the issues raised were predominantly employment issues.&nbsp; At the hearing of this case, the Court
decided that it would rule on this objection when giving its judgment on the
Writ itself.<o:p></o:p>&nbsp;In the course of his argument before this
Court, learned counsel for the Plaintiffs, Mr Klayson, refined his case and
eventually agreed to limit the relief sought from this Court to the declaration
of the unconstitutionality of sections 5 and 6 of PNDC Law 125.&nbsp; In other words, he orally abandoned all the
other reliefs he had sought and requested the Court to strike them out. In
similar vein, learned counsel for the Attorney-General stated that if all the
other issues were to be remitted to the proper forum, namely the High Court,
then she would concede the unconstitutionality of sections 5 and 6 of PNDC Law
125.<o:p></o:p>