FRANK AGYEI TWUM vs. ATTORNEY-GENERAL [2006]DLSC6403

Date	2006-07-12
Suit No.	WRIT NO. J1/7/2006
Citation No.	[2006]DLSC6403

AKUFFO (MS) J.S.C. (PRESIDING)

WOOD (MRS) J.S.C.

DR. DATE-BAH J.S.C.

PROF. OCRAN J.S.C.

ANSAH J.S.C.

ASIAMAH J.S.C.

ADINYIRA J.S.C.

MR. KOFI ASANTI WITH NANA ASANTE BEDIATUO AND MR. ASARE OKYERE

DARKO FOR PLAINTIFFS. 2ND DEFENDANT IN PERSON

[2006]DLSC6403
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													<main id="main" class="content" style="min-height: 60rem" >FRANK AGYEI TWUM <o:p></o:p>vs.<o:p></o:p>ATTORNEY-GENERAL<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. KOFI ASANTI WITH NANA ASANTE
BEDIATUO AND MR. ASARE OKYERE DARKO FOR PLAINTIFFS. 2ND DEFENDANT IN PERSON. <o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AKUFFO (MS) J.S.C. (PRESIDING), WOOD
(MRS) J.S.C., DR. DATE-BAH J.S.C., PROF. OCRAN J.S.C., ANSAH J.S.C., ASIAMAH
J.S.C., ADINYIRA J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>WOOD
(MRS), J.S.C. <o:p></o:p>I
have also had the benefit of reading the well reasoned opinion of my learned
brother Dr. Date-Bah, J.S.C. I am in full agreement with him on the findings
and conclusions reached on the substantive issues raised in this important
constitutional matter. <o:p></o:p>As
rightly found by him, the applicant is entitled to only the reliefs (iv), (v)
and (vi) of his claim.<o:p></o:p>DR.
DATE-BAH, J.S.C <o:p></o:p>Preliminary
objection Before dealing with the merits of this case, it is necessary to set
out the reasons why this Court on 26th May 2006 rejected the second defendant’s
preliminary objection to the composition of the Court. <o:p></o:p>At
the first hearing of this suit, on 9th May 2006, the second defendant orally
stated that he objected to the empanelling of this Court by the incumbent Chief
Justice, since he had an interest in the outcome of this suit. The Court
accordingly ordered him to file the grounds for his objection in writing and
adjourned the case to enable this to be done and for the plaintiff to respond
to the second defendant’s preliminary objection. The second defendant duly
filed, on 15th May 2006, his written preliminary objection to the empanelling
of the Supreme Court by the Chief Justice and the plaintiff responded to it in
writing. After considering these written submissions, the Court dismissed the
preliminary objection, on 26th May 2006, and indicated that it would give its
reasons for the dismissal in its judgment on the merits of this case. <o:p></o:p>The
crux of the second defendant’s objection is expressed in his written submission
as follows (at p. 2): <o:p></o:p>"It
offends against the rules of natural justice, equity and good conscience for
the CJ in the peculiar circumstances of this case, to empanel the judges who
will hear this case, which case is organically related to the performance of
the duties of his office." <o:p></o:p>The
second defendant further develops this point in the following terms (at p. 3 of
his submission): <o:p></o:p>"The
principles of natural justice will be offended if the CJ becomes a judge in his
own cause. He has the authority, both constitutional and statutory, to choose
the panel, and the discretion to determine which of the judges would constitute
the panel. But it would be more honourable, and a boost for the image of the
judiciary, which image he (the CJ) has so badly dented with repeated and
unsubstantiated allegations of corruption, if he invites the next most senior
Supreme Court Judge, as provided for in Article
128(3) of the Constitution, to compose the panel for this case. That would
give the lie to the Petitioner’s claim of judicial misconduct and abuse of
office." <o:p></o:p>Whatever
may or may not be the moral or honourable thing for the Chief Justice to do,
this Court’s concern can only be with the law and whether the Chief Justice is
prevented by the law, as is, from empanelling the Court for this case. I
interpret the second defendant’s claim, therefore, to be one that the Chief
Justice is legally disabled from empanelling this Court because the common law
doctrine of natural justice, particularly the principle of nemo iudex causae
suae, overrides statutory and constitutional provisions. Indeed, the second
defendant, in his written preliminary objection, after reviewing the case law,
concludes as follows (at pp 5-6): <o:p></o:p>"Statute
law must not override the principles of natural justice at all times as the
Courts should seek to do justice, not only accordingly (sic) to statutory
provisions, but according to equity and good conscience as well. Statutory
provisions may override the principles of natural justice, but not in the
current case. Public interest would weigh more than the statutory provisions in
this case." <o:p></o:p>This
argument is virtually a natural law one and yet it is addressed to this Court
whose constitutional responsibility it is to apply positive law. The difficulty
with the argument is that it conflicts with case law binding on this Court.
Accordingly, unless the second defendant can establish a material distinction
between this case and the decided cases or, alternatively, persuade this Court
to depart from its previous decisions, this argument must fail. It is thus to
these previous decisions that I must turn next. <o:p></o:p>However,
before considering the decided cases, I would like to highlight the basis for
the Chief Justice’s constitutional authority to empanel this Court. This is
article 125(4) of the 1992 Constitution, which reads as follows: <o:p></o:p>