CASE BRIEF

In the Superior Court of Judicature

In the Supreme Court of Ghana
AD 2006

Frank Agyei Twum

Versus

Attorney General
Bright Akwetey.

Writ No J1/7/2006
12th July 2006

1st Hearing 9th May 2006:

*The plaintiff’s writ of judicial misconduct and abuse of office against both the 1st & 2nd
Defendant.
The 2nd Defendant (Bright Akwetey) orally objected to the empanelling of the court judges by
the Chief Justice since he had an interest in the outcome of the law suit.
*Accordingly the court ordered the 2nd Defendant to file the grounds for his objection in
writing and the case was adjourned to enable the plaintiff to respond to the 2nd Defendant’s
preliminary objection.
Preliminary Objection
*On 15th May 2006, the 2nd defendant filed his written preliminary objection to the
empanelling of the Supreme Court by the Chief Justice.
*The 2nd Defendant appended to the written preliminary objection, a copy of a letter dated
27th April, 2006 petitioning the president to suspend the current chief justice from office
based on Article 126(10)(a).

2nd Defendant’s Grounds for the Objection:

(a)It offends against the rules of natural justice, equity & good conscience
*because the case is organically related to the performance of the duties of the CJ’s office
Hence he can’t empanel judges who will hear the case.
*the CJ is legally disabled from empanelling the court because the common law doctrine
of natural justice (particularly Nemo iudex causa in sua) overrides statutory and constitutional
provisions.

Court’s Dismissal of Preliminary Objection

(a)The argument for the preliminary objection is based on natural law which is addressed to
the Supreme Court whose constitutional responsibility is to apply positive law.
(b)The argument conflicts with case law binding on the Supreme Court.
No establish a material distinction between this case and the decided cases.
(c) Judicial oath of judges does not permit the court to interfere with the functions of the
Chief Justice. Supreme Court judges are not malleable clay in the hands of the CJ.
Amissah JA also made a similar point in the case of Akufo-Addo & ORS vs. Quashie Idun
[1968] GLR 667. (If judges could be influence in administering justice then no one would
dare bring a lawsuit against the government because appointment of judges is made by the
government.
(d) In the case of Ghana Bar Association vs. Attorney-General & Anor [1995-96] 1 GLR 598,
even though “the removal of the Chief Justice” was the issue before the panel, yet the CJ
constitute the panel.

Therefore the CJ presiding over this case does not contrast with the Judicial Powers of the CJ
Basis for the Dismissal of Preliminary Objection
*The Chief Justice’s constitutional authority to empanel the Supreme Court is derived from
Article 125(4) of the 19992 Constitution. (The CJ is subject to the constitution, he is the
head of the judiciary and he is responsible for the administration and supervision of the
judiciary).
*It is the CJ’s right and obligation to constitute panels of the Supreme Court.

[*If the CJ because a judge in his own cause. Though the CJ has the constitutional and
statutory authority to choose the panel and the discretion to determine which of the judges
will constitute the panel, it would be more honourable and more a boost for the image of the
judiciary if the CJ under Article 128(3) invites the next most senior Supreme Court Judge to
preside over the case.
*the CJ has so badly dented the image of the judiciary with repeated and unsubstantiated
allegations of corruption.]

(The case organically related to the performance of the duties of his office because the petitioner’s
claim of judicial misconduct and abuse of office concerned the Chief Justice’s office)

2nd Hearing 26th May 2006:

The court rejected the 2nd Defendant’s preliminary objection after considering the written
submissions from both the defendant and Plaintiff.

FACTS
Petitioner claimed judicial misconduct and abuse of Office

HEARING HISTORY
ISSUES
(a) Constitutional interpretation: whether or not the Chief Justice should be preside over a
case that organically related to him.
(b) Whether or not the Chief Justice should empanel the judges who will sit over the case
though the case constitute alleged judicial misconduct and abuse of his office.
(c)

HOLDING/JUDMENT
The principles of natural justice are not, in any case, applicable nor relevant to the
empanelment decision, since that decision is neither judicial nor quasi-judicial, but merely
ministerial, hence dismissal of Preliminary Objection of 2nd Defendant.

The provision in Article 128(3) with respect, has nothing to do with empanelment. It only
deals with who shall preside over the panels constituted by the Chief Justice. The more
relevant provision will be Article 144(6) which gives the Chief Justice the statutory right to
choose the most senior justice of the Supreme Court to perform the functions of his office
when he the Chief Justice is unable to perform.
*In order for the Court to consider Article 144(6) the 2nd Defendant must demonstrate how
the Chief Justice is unable to perform the functions of his office because of a perceived
conflict of interest.

COMMENTS

Footnotes:
Preliminary Objection—objection raised by the defendant at the beginning of a hearing.
Crux—most important point at issue
Principle of Natural Justice (Jus Naturale)
It is a principle to ensure law with fairness and to secure justice. Fairness and justice should
vest the manner of arriving of decisions by judicial process.
*The mere fact that a decision affects
2 Elements of Natural Justice
a) The rule against bias (Nemo iudex causa in sua)
b) Hearing both sides (Audi alteram partem)

Case Law— the law as established by the outcome of former cases

Positive Law— statutes which have been laid down by a legislature, court, or other human
institution and can take whatever form the authors want.

Doctrine of Necessity
Is the basis on which extra-legal actions by state actors, which are designed to restore order,
are found to be constitutional. It also includes the ability of a private person to violate a law
without punishment where the violation of law was necessary to prevent even worse harm
Article 128(3)
The Chief Justice shall preside at sittings of the Supreme Court and in his absence , the most
senior of the justices of the Supreme Court, as constituted, shall preside.

Article 125(4)
The Chief Justice shall subject to this constitution, be the head of the judiciary and shall be
responsible for the administration and supervision of the judiciary.

Article 126(10)(a)
Where a petition has been referred to a committee under this article, the President may in the
case of the Chief Justice, acting in accordance with the advice of the Council of State, by
warrant signed by him, suspend the Chief Justice.

Article 144(6)
“Where the office of Chief Justice is vacant, or where the Chief Justice is for any reason
unable to perform the functions of his office.
(a) until a person has been appointed to, and has assumed the functions of, that office; or
(b) Until the person, holding that office has resumed the functions of that office; as the case
may be, those functions shall be performed by the most senior of the Justices of the Supreme
Court.”

Moot Case—means a case which has already been resolved by a court of law. The term
moot case is also used to signify a case that is entirely fictional or in the form of an abstract
question as it is based upon a fact or right which is not recognizable by law

Cases Cited
In the Akufo-Addo & ORS vs. Quashie Idun [1968] GLR 667 case, the principle laid down
was that where the common law principles of Natural Justice conflicts with mandatory
statutory provisions, by implication the constitutional provision prevails even if it results in
non-compliance with the rules of Natural Justice. This position is justified by reference to the
doctrine of necessity. Court of Appeals judge, Amissah JA, in delivering a judgement said
“In our judgment where a statute clearly enjoins a person to perform an act, he has to do it
even if its performance is incompatible with the strict rules of Natural Justice”.

In the English case of Dimes vs. Grand Junction Canal Proprietors (1852) 3H.L. Cas. 759,
the doctrine of necessity applied. The opinion of Parke B expressed on behalf of the judges in
that case “The opinion of the judges delivered by Parke B met with the approval of the House
of Lords in that case and in the later case of Ranger v Great Western Railway Co. (1854) 5
H.L. Cas. 72 at p. 88. In like manner this present case presents a situation of necessity where
the person to exercise the power to constitute the bench hearing the appeal is also a party to
the appeal. As no other may perform his duties for him, the objection on the ground of
natural justice cannot be sustained.”

The endorsement of the doctrine of necessity in the case of Tsatsu Tsikata v Chief Justice
and Attorney-General (supra). The Chief Justice though being accused of bias in this case, is
not disabled to perform the functions of his office such as, the empanelling of the bench to sit
on the case.

In the case of Bilson vs. Apaloo [1981] GLR 27, Justice Anin said ““There can therefore be
no question of either reasonable suspicion or real likelihood of bias arising in the discharge of
such a ministerial, non-judicial duty. In discharging his official ministerial duty of
empanelling the court that heard the Tuffuor case, the defendant neither performed a judicial
or quasi-judicial duty nor assumed the mantle of a judge deciding his own cause. He could
not by any stretch of the imagination be said to have committed any breach of natural justice
in the event.”

In the Abban case the plaintiff has a strong case of conflict, hence the plaintiff sought the
removal of the Chief Justice through the judicial process.
CASE BRIEF
Re Akoto and 7 Others, [1961] GLR 523

Appellants: Baffour Osei Akoto (Sr. Linguist of Asantehene)

7 Others: Nana Antwi Busiako, Osei Assibey Mensah, Peter Alex Danso, Joseph Kojo
Antwi-Kusi, Benjamin Kweku Owusu, Andrew Kojo Adusei, Halidu Kramo.

Chief Justice: Kobina Arku Korsah

Appellants Counsel: Dr J.B Danquah
Respondents Counsel: G.Bing (AG) & A.N.E. Amissah

FACTS:
The appellants were arrested and placed in detention for 2 days (10th-11th November, 1959),
by the Governor-General’s orders and signed on his behalf by the Minister of the Interior
(A.E. Inkumash) under section 2 of the Preventive Detention Act, 1958 (No. 17 of 1958).
According to the Governor-General’s Order the appellants are to be detained for 5 years.

Appellants filed an application to the High Court for writs of habeas corpus ad
subjiciendum which was refused. They appealed and counsel on their behalf argued seven
main points, namely:
By the Governor-General’s Order they were supposed to be detained for 5 years.

(1) The learned judge acted in excess of jurisdiction in refusing the application without
making an order for a formal return.
(2) By virtue of the Habeas Corpus Act of 1816 the court is required to enquire into the truth
of the facts contained in “The Grounds” upon which the Governor-General was satisfied that
the order was necessary to prevent the appellants from acting in a manner prejudicial to the
security of the state. [p.524] of [1961] GLR 523
(3) The Minister of Interior who signed the order for and on behalf of the Governor General
was actuated by malice.
(4) The grounds upon which the appellants were detained do not fall within the ambit of the
expression “Acts prejudicial to the security of the state”.
(5) By virtue of section 3 of the Criminal Procedure Code, Cap. 10 of the Laws of the Gold
Coast (1951 Rev.) now section 1 of the Criminal Procedure Code 1960 (Act 30), the
Governor-General is precluded from exercising the powers conferred on him under the
Preventive Detention Act, to make an order for the arrest and detention of the appellants
without trial except in accordance with the Criminal Procedure Code.
(6) The Preventive Detention Act, 1958, by virtue of which the appellants were detained, is in
excess of the powers conferred on Parliament by the Constitution of the Republic of Ghana
with respect to article 13 (1) of the Constitution, or is contrary to the solemn declaration of
fundamental principles made by the President on assumption of office.
(7) The Preventive Detention Act not having been passed upon a declaration of emergency is
in violation of the Constitution of the Republic of Ghana.

Re Akoto case challenged the constitutionality of the Preventive Detention Act 1958
(repealed in 1966)
ISSUES

(1) Whether the Preventive Detention Act, 1958 (No. 17 of 1958), should be interpreted in
such a way as to allow for judicial review of the discretion given by the Act to the President
(formerly, the Governor-General) to detain persons without trial, and
(2) Whether the Preventive Detention Act was ultra vires the 1960 Constitution and therefore
void.

HOLDINGS
The court response to Issue (1):
The court declared that it was bound to follow an English war-time majority decision of the
House of Lords in which it had been held that “where an administrative plenary discretion
is vested in an official in cases where a detention order is made for the security of the
State, the court cannot review the exercise of that discretion.”

English Habeas Corpus Act of 1816 applies to Ghana as a “statute of general application”

Reviewing the type of discretionary power exercised, it was a question of law which was not
binding on the court. The court not willing to review the discretionary administrative powers
of the president (Stare Decisis)

The court response to Issue (2):

The constitution was treated as a mechanistic document and Article 13(1) as a compendium
of moral principles which could not be said to be justiciable.
*“the provisions of Article 13 (1) do not create legal obligations enforceable by a court of
law.”
*The people of Ghana by deliberate act have chosen to enforce the Preventive Detention Act
of 1958 with the coming into force of the 1960 Constitution.
* Finally, the court agreed with the Attorney-General’s argument that Article 20 of the
Constitution, which created a “sovereign Parliament” placed no limitation whatsoever on the
legislative power of Parliament, except in relation to amendments to the Constitution, and by
no stretch of the imagination could the Preventive Detention Act, 1958, be said to constitute
an amendment to the Constitution
* Thus, the Act was upheld, and the concept of legislative supremacy triumphed under the
1960 Constitution as it had done under the 1957 Constitution, with the readily forthcoming
blessing of the courts.

Article 13(1) Protection of Right to Life

No person shall be deprived of his life intentionally except in the exercise of the execution of
a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has
been convicted.
Ultra Vires—Acting or done beyond ones legal power/authority
Habeas Corpus—a writ requiring a person under arrest to be brought before a judge,
especially to secure their release unless lawful grounds are shown for their detention.
Stare Decisis--a legal doctrine/principle that obligates courts to follow historical case when
making ruling on similar cases.

*Each of these two issues called for the exercise of high judicial creativity, not only in terms
of the letter and spirit of the Act and the Constitution to be interpreted, but also in terms of
the taught traditions of the common law
 The court’s role in protecting the personal liberty and rights of individuals)

Page 11 of 16
The Re Akoto Case
One cannot speak about the notorious Preventive Detention Act without discussing the now infamous case of Re Akoto.
This case is a blotch on the judiciary of this country. It is akin to a cancerous tumour which must be extirpated if ever
the opportunity arises.
As is well known, this case deals with the arrest and imprisonment without trial of an important and highly respected
traditional ruler from Ashanti. Baffuor Osei Akoto was the Chief Linguist of Otumfuo the Asantehene. He occupied a
very high traditional office in Ashanti and was well known throughout Ghana. He was the Chairman of the erstwhile
National Liberation Movement which started its agitation, in the dying years of colonial rule, to demand what they
considered to be a fair producer price for the country’s primary produce, cocoa. Later, as a constitutional structure to
insulate the emergent nation from incipient but manifest left-wing centralism with dictatorial tendencies, the National
Liberation Movement also demanded a Federal form of government for the independent Ghana. Federalism failed, but
Kwame Nkrumah could not forgive those who had championed or advocated that cause. They and other political
opponents were systematically targeted and arrested and imprisoned indefinitely without charge and without access to
the courts. They had committed no crime, and there was no evidence of planning or contemplating any criminal Act.
If there were any such evidence, they would have been prosecuted under the Criminal Code of Ghana. However,
applications for the writ of habeas corpus for their release failed on the sufficient ground that they were in lawful
custody pursuant to detention orders issued against them under the pernicious Preventive Detention Act. In cases like
Re Okine & Others, Re Amponsah & 1 Other, and Re Dumoga & 12 Others, the courts declined to enquire into the truth
of the basis of the detention of the Applicants. One court even held that the English Habeas Corpus Act, clearly a
statute of general application, was not applicable in Ghana. Although the ruling on habeas corpus was later vacated, it
showed the extent to which the judiciary was prepared to pander to the Executive branch of government, meaning
Kwame Nkrumah. The courts would not make a value judgment on the Preventive Detention Act but concentrated on
the formal validity and apparent legality of the detention orders.
When the bogus Constitution of 1960 was promulgated after a questionable referendum, Dr. J. B. Danquah brought to
the Supreme Court again the case of the detainees, including Baffuor Akoto and others. This became the celebrated
case of Re Akoto & 7 Others. This time the indomitable and learned Dr. Danquah had several strings to his bow.
Dr. Danquah referred to the requirement in Article 13 of the 1960 Constitution that the President, on assumption of
office, shall make a solemn declaration before the representatives of the people in Parliament assembled. The
constitutional declaration said:
“That freedom and justice should be honoured and maintained…
“That no person should suffer discrimination on grounds of sex, race, tribe,
religion or political belief…
“That …no person should be deprived of freedom of religion or speech, of the right to move and assemble without
hindrance or of the right of access to courts of law…”
He argued that the declaration was binding on the President. Consequently, Dr. J.B. Danquah argued, the same
President could not order the imprisonment of a citizen without trial, merely because the President was, on the basis of
undisclosed facts, “satisfied” that it was necessary to prevent that person from acting in a manner prejudicial to the
security of the state or the relations of Ghana with other states. The Supreme Court rejected this argument and held
that the President’s Declaration under Article 13 of the said Constitution was not binding on the President and, in any
event, was not justiciable. The Court went further to draw the incongruous and inapposite analogy that the Ghanaian
President’s Declaration was similar to the Coronation Oath of the Queen of England and thus not justiciable or
enforceable in any form. The Supreme Court, referring to Dr. Danquah’s argument, said:
This contention...is based on a misconception of the intent, purpose and effect of Article 13(1) the provisions of which
are, in our view, similar to the Coronation Oath taken by the Queen of England during Coronation Service. In one case
the President is required to make a solemn declaration, in the other the Queen is required to take a solemn oath.
Neither the oath nor the declaration can be said to have a statutory effect of an enactment of Parliament.
That statement of the Supreme Court of Ghana was palpably wrong. The Coronation Oath (or Accession Declaration) of
the Queen or King of England, though not mandated by a written constitution, is required by statute. At Coronation, the
English Monarch is required by the law to declare that “I am a faithful Protestant” and will uphold and maintain those
“enactments which secure the Protestant succession to the Throne of my Realm.” These impose enforceable
obligations. Thus the Queen of England cannot retain her throne if she abjures Protestantism, or confesses the Roman
Catholic faith, or becomes a Muslim or a Buddhist. In any case, the ruling of the Supreme Court on this point showed
that the Declaration provided for in Article 13 of Nkrumah’s 1960 Constitution was a great hoax on the people of Ghana
to whom it was touted as the equivalent of a Bill of Rights.
Dr. Danquah canvassed another critical jurisprudential issue before the Supreme Court in Re Akoto. He strenuously
argued that, in detaining a citizen without trial, the President had to state for judicial review the facts on the basis on
which he was satisfied that a detainee was likely to act in a manner prejudicial to the security of he state or the foreign
relations of the state. In other words, the President could not be satisfied in vacuo on any issue. The “satisfaction,”
such as there was, had to be based on established facts or conduct. This is particularly important, as the detainee was
not being detained as punishment for past conduct but avowedly to prevent future conduct. Mr. Geoffrey Bing, an
Irishman who was Nkrumah’s Attorney-General, urged the Supreme Court to reject that interpretational approach to
the meaning of “satisfied” in the Preventive Detention Act. For this position, Mr. Bing relied on the majority decision of
the English House of Lords in the well-known case of Liversidge v. Anderson. In that case the applicant, a person of
German ancestry, was detained under the Defence of the Realm Regulations during the Second World War in which
Great Britain was fighting Nazi Germany.
The Home Secretary claimed to have detained the applicant because he was “satisfied,” within the intendment of the
Defence Regulations, that the applicant was likely to act in a manner prejudicial to the security of the state. The Home
Secretary refused to disclose the grounds on which he became satisfied about the threat posed by the applicant. By a
majority of 4 to1, the House of Lords held that the Home Secretary was not compellable to disclose his reasons. Dr.
Danquah was unable to persuade the Ghana court to adopt the rather famous dissenting judgment of Lord Atkin who
held that, inasmuch as the liberty of the subject was concerned, reasons must be given for deprivation of his freedom.
This ground of Dr. Danquah was, therefore, rejected, The Ghana Supreme Court held that in terms of the wording of
the Preventive Detention Act, the President could not be compelled to disclose the grounds on which Baffuor Osei Akoto
and the others were arbitrarily deprived of their liberty. It was not the best day for the judiciary in Ghana.
Before and after the Re Akoto decision by the Supreme Court of Ghana, many commentators have criticised the
majority decision in Liversidge v Anderson. The dissenting judgment of Lord Atkin has become one of the most famous
in legal history and has been generally commended. A future English Supreme Court (successor to the former House of
Lords) is certainly unlikely to follow the majority decision in Liversidge v. Anderson. In fact, in Padfield v Minister of
Agriculture and other cases, the English House of Lords unequivocally rejected the majority decision in Liversidge v.
Anderson and refused to endorse the proposition of unlimited Ministerial discretion.
A further argument of Dr. J.B. Danquah in Re Akoto was that the majority decision in Liversidge v. Anderson was
delivered in the unusual context of the national emergency of a raging world war of an unprecedented scale. That was
in no way comparable to the peacetime conditions under which Baffuor Osei Akoto and others were detained in Ghana.
He, therefore, argued that, in any event, the decision in Liversidge v Anderson ought to be distinguished from the Re
Akoto case. As the learned Doctor put it, the Supreme Court of Ghana “should avoid and eschew the English war-time
cases in interpreting Ghanaian peace time cases.” In their zeal to please Nkrumah, the Supreme Court of Ghana did not
accept the force of Dr. Danquah’s argument, The Ghana Supreme Court rather retorted by accepting Mr. Geoffrey
Bing’s position that “we do not accept the view that Parliament is competent to pass a Preventive Detention Act in war
time only and not in time of peace.”
This was a legal monstrosity, particularly in the face of the words spoken by the English judges themselves in the
decision relied upon in Ghana. In fact, the majority decision in Liversidge v. Anderson was not without qualification.
Although declining to compel the Home Secretary to disclose his reasons for judicial scrutiny, the Law Lords made it
clear that their decision was limited to the wartime situation of a grave national emergency. They did not, therefore,
spell out a general proposition of the type that the Supreme Court of Ghana ascribed to them. For instance, in
Liversidge v. Anderson, Lord Macmillan said:
‘…in time of emergency, when the life of the whole nation is at stake, it may well be that a regulation for the defence of
the realm may quite properly have a meaning which, because of its drastic invasion of the liberty of the subject, the
courts would be slow to attribute to a peacetime measure…”
Similarly Lord Wright said in that case:
”…If extraordinary powers are here given, they are here given because the emergency is extraordinary, and they are
limited to the period of the emergency…”
The decision of the Supreme Court in Re Akoto is a permanent and ugly stain on the reputation of that Court. The
judges could have taken a bold and pragmatic approach to the law without being guilty of excessive judicial activism.
The Supreme Court failed the nation in this regard and in the process deliberately whittled away even the waning
vestiges of freedom of the people. That decision legitimised the arbitrary use of executive power by a President who
would eventually declare the country a One-Party State so he could rule Ghana forever. When Re Akoto was decided
the way it was, Nkrumah and his advisers apparently interpreted it as an endorsement of the arbitrary right of the
deprivation of freedom and liberty of the citizens. With that apparent blessing of the Supreme Court, therefore,
detentions by Nkrumah without trial increased exponentially. At the time of the Re Akoto decision in 1961, it was
estimated that there were only several hundred detainees in Nkrumah’s prisons without trial. By the time of Nkrumah’s
overthrow about five years later in 1966, there were several thousand Ghanaians under detention without trial under
the notorious Preventive Detention Act.
BALOGUN v. MINISTER OF INTERIOR

CASE BRIEFING GUIDELINE

1. Title and Citation
2. Facts of the Case
3. Issues
4. Decisions (Holdings)
5. Reasoning (Rationale)
6. Separate Opinions
7. Analysis