PROFESSOR STEPHEN KWAKU ASARE (PLAINTIFF/APPELLANT) vs. ATTORNEY GENERAL & 3 ORS (PLAINTIFF/APPELLANT) [2008]DLCA7469

PROFESSOR STEPHEN KWAKU ASARE (PLAINTIFF/APPELLANT) vs. ATTORNEY GENERAL & 3 ORS... [2008]DLCA7469

Date	2008-12-11
Suit No.	CIVIL APPEAL NO.: H1/65/07
Citation No.	[2008]DLCA7469

MRS. ABBAN JA [PRESIDING]

ACQUAYE JA

ADUAMA JA

BONDZI SIMPSON FOR PLAINTIFF/APPELLANT.

[2008]DLCA7469
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													<main id="main" class="content" style="min-height: 60rem" >PROFESSOR STEPHEN KWAKU ASARE<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>ATTORNEY GENERAL &amp; 3 ORS<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: H1/65/07&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11TH
DECEMBER, 2008<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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SIMPSON FOR PLAINTIFF/APPELLANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>MRS. ABBAN JA [PRESIDING], ACQUAYE JA, ADUAMA JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>ACQUAYE,
JA<o:p></o:p>The undisputed facts resulting in this
appeal are that in November 2005, the Honourable Eric Amoateng, Member of
Parliament for Nkoranza North Constituency under Standing Order 15 obtained the
Speaker of Parliament’s permission to absent himself from Parliament from 17th
November to 24th November 2005. He then traveled to the United States of
America where he was arrested and detained for possession of narcotic drugs.
Unable to attend Parliament, Eric Amoateng sent his lawyer with a letter to the
Speaker some three months thereafter explaining the cause of his continued
absence from Parliament and requesting for an indefinite leave of absence. The
Speaker referred the letter to the Parliamentary Committee on Privileges which
met on 22nd February 2006 and recommended to the House of Parliament on 2nd
March 2006 to grant the Honourable Member an indefinite leave of absence. After
some debate, Parliament approved the recommendation and granted the Honourable
Member an indefinite leave of absence to fight the drug case in Court in the
United State of America.<o:p></o:p>&nbsp;On 14th March 2006 the Plaintiff/Appellant
took out a writ of summons in the High Court claiming:— <o:p></o:p>1.
A declaration that on a true and proper interpretation of Article 97(1)(c) of
the 1992 Constitution, the seat of the Honourable Eric Amoateng by operation of
law became vacant by virtue of his absence from 15 continuous sittings of
Parliament without the written permission of the Speaker and without any
explanation to the Parliamentary Committee on Privileges. <o:p></o:p>2.
A declaration that on a true and proper interpretation of Article 97(c) of the
1992 Constitution the Parliamentary Committee on Privileges (and hence
Parliament) has no authority to grant to the Honourable member a dispensation
to be absent from Parliament indefinitely as they have power to grant
dispensation for only 15 days and that the request for dispensation came too
late and is unconstitutional, incompetent, void and of no effect. <o:p></o:p>3.
A declaration that the Honourable Member of Parliament has failed to offer any
reasonable explanation for his absence from Parliament for 15 sittings and that
any attempt to justify his absence on account of his lawful detention in
connection with investigations into a criminal/narcotic case is in law
unreasonable. <o:p></o:p>4.
An order directing the Speaker of Parliament to direct the Clerk of Parliament
to report the vacancy of the Nkoranza North seat to the Electoral Commissioner
with a view to the latter conducting bye-elections for the vacant seat.<o:p></o:p>&nbsp;5. Costs.<o:p></o:p>&nbsp;6.&nbsp; Such
further order or orders that the Court may deem fit. The Plaintiff/Appellants
claims were resisted by the 1st and 2nd Defendants/Respondents on the grounds
that:<o:p></o:p>&nbsp;1. The issue of a
declaration or interpretation of a provision of the 1992 Constitution is under Articles
2 and 130 reserved unto the Supreme Court hence the High Court has no
jurisdiction to entertain the claims of the Plaintiff/Appellant. <o:p></o:p>2. Parliament in its wisdom has debated the vacancy of
the Nkoranza North seat and has arrived at a contrary conclusion and that
procedural matters are within the exclusive province of Parliament under
Article 110 and the courts do not have the function of determining for
Parliament the procedural rules of Parliament.<o:p></o:p>&nbsp;The Trial High Court set down the issues raised
for legal arguments and after going through the written submissions for the
parties ruled that under Article 99(1)(a) of the 1992 Constitution the High
Court has jurisdiction to hear the case. The learned Trial Judge also held that
once Parliament in the performance of its functions acted within the confines
of the Constitution or complied with the provisions of the Constitution, its
acts are not open to the scrutiny of the courts. For Article 110(1) of the
Constitution allows Parliament to regulate its own procedures. It is against
this judgment that the Plaintiff has appealed. <o:p></o:p>The
fist ground of appeal is that the learned judge erred in law in holding that
once Parliament had decided to grant 4th Defendant an indefinite dispensation
to be absent from Parliament, the matter was a political question which the
High Court could not review. It was argued on this ground that Article
97(1)(c) says “A member of Parliament shall vacate his seat in Parliament if he
is absent without the permission in writing of the Speaker and he is unable to
offer a reasonable explanation to the Parliament Committee on Privileges </main>