DAASEBRE NANA ASARE BAAH III & 2 ORS. vs. THE ATTORNEY-GENERAL & ANOR. [2012]DLCA6698

Date	2012-06-14
Suit No.	CIVIL APPEAL NO. H1/53/2012
Citation No.	[2012]DLCA6698

A. ASARE-KORANG J. A [PRESIDING]

HENRIETTA ABBAN (MRS) J. A

F.G. KORBIEH J.A.

MR. JAMES AHENKORA FOR PLAINTIFFS/APPELLANTS

GRACE EWOOL (STATE-ATTORNEY) FOR 1ST RESPONDENT

[2012]DLCA6698
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													<main id="main" class="content" style="min-height: 60rem" >DAASEBRE NANA ASARE BAAH
III &amp; 2 ORS.<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY-GENERAL
&amp; ANOR.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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 APPEAL NO. H1/53/2012&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;DATED: 14TH JUNE, 2012<o:p></o:p>

GRACE
EWOOL (STATE-ATTORNEY) FOR 1ST RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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">JUDGMENT<o:p></o:p>

</div>F.G. KORBIEH, J.A. <o:p></o:p>A
summary of the facts leading to this appeal is as follows: the first two
plaintiffs/appellants herein (together with three others) instituted an action
in the Supreme Court against the defendants/respondents herein, purporting to
invoke that Court’s original jurisdiction and to ask for certain reliefs. In
her judgment in that case, her ladyship the Chief Justice (Wood C.J.) distilled
their claim into two verified particulars; to wit <o:p></o:p>‘1.
The President’s failure to direct the Electoral Commission to undertake a study
and submit findings and recommendations for his study in contravention of s. 1
of the Local Government Act, Act 462, for which reason E.I. 11 2007, being in
violation of articles 240, 241 and 296 of the 1992 constitution are a nullity. <o:p></o:p>2.
The purported naming of Nkonya Ahenkro, (rather than Worawora) as District
capital per L.I. 1910 without gazette notification is in breach of the law, and
constitutes a capricious, arbitrary, unfair and unreasonable of executive
discretion, inconsistent with articles 240, 241 and 296 of the 1992 constitution.’
(sic) <o:p></o:p>In
her judgment in that case, the Hon. Lady Chief Justice said as follows: <o:p></o:p>‘It
is indeed quite difficult, if not impossible, to understand what provoked the
plaintiff’s second complaint, that which expresses their extreme
dissatisfaction with the selection of Nkonya Ahenkro and not their veritable
choice of Worawora, as the capital of the Biokoye District. This allegation is
not supported by the facts on the record. Section 6 of the Local Government
(Biokoye District Assembly) (Establishment) Instrument, 2007 L.I. 1910
exhibited by the Plaintiffs as “Exhibit WBA 1” provides as follows: <o:p></o:p>Location of principal
offices of assembly <o:p></o:p>2.
The Assembly shall establish its principal offices at Worawora where meetings
of the Assembly shall be held. <o:p></o:p>The
specific words District capital has not been used to describe Worawora, but it
is plain, from the legislation, in which no mention is made of Nkonya Ahenkro
as District capital, that the reference is to the District capital position.
Plainly, under L.I. 1910, which the plaintiff prays be struck down, the
District capital position has, in accordance their unanimous decision, by
reason of matters they have alluded to, namely its central location coupled
with the existence of physical and social infrastructure, amenities and
abundant space, been conferred on Worawora.&nbsp;
It follows that the very foundation of the plaintiff’s case or the
fulcrum around which it evolves is non existent.’ (sic) <o:p></o:p>The
Supreme Court therefore went on to dismiss the case of the
plaintiffs/appellants before it on the basis that the jurisdiction of the
Supreme Court had been wrongly invoked.&nbsp;
Continuing, her ladyship the Chief Justice said as follows: <o:p></o:p>“I
dismiss the plaintiff’s action in its entirety as not been cognizable under the
legislative review jurisdiction of this court.” (sic) <o:p></o:p>In
his concurring judgment, Dotse, JSC opined as follows: <o:p></o:p>“It appears to me that the plaintiffs
only resorted to the instant action to stultify and or prevent the bringing
into fruition the operationalization of the Biokoye District Assembly.&nbsp; Such blatant abuse of the legal and judicial
processes should be and are hereby frowned upon and deprecated.’ <o:p></o:p>Notwithstanding
these latter pronouncements, the first two plaintiffs/appellants joined forces
with the third plaintiff/appellant herein (describing themselves as the
paramount chief and sub-chiefs respectively of the Worawora Traditional Area)
to institute the present action, this time in the High Court, Fast Track
Division, Accra asking for the following reliefs:<o:p></o:p>‘1. A declaration that by the by the
Judgment of the Supreme Court dated 18th February 2010 in Writ No. JI/8/2009,
Worawora is by law the District Capital of the newly created Biokoye
District/Assembly in the Volta Region. <o:p></o:p>2. An Order restraining the Defendants
whether acting by themselves or agents from inaugurating the newly created
Biokoye District/Assembly or establishing/locating the principal offices
thereof in any place or town other than and except Worawora. <o:p></o:p>3. Further and other orders.’ <o:p></o:p>In
the statement of claim accompanying the writ of summons, the
plaintiffs/appellants (hereinafter only referred to as the plaintiffs) averred
that despite the fact</main>