AMIDU v KUFUOR AND OTHERS PDF

AMIDU v KUFUOR AND OTHERS [2001-2002] 2 GLR 510 Division: SUPREME COURT, ACCRA Date: 25 APRIL 2001 Before: EDWARD WIREDU AG CJ, BAMFORD-ADDO, AMPIAH, KPEGAH, ADJABENG, ACQUAH, ATUGUBA, AKUFFO AND LAMPTEY JJSC Constitutional law—Supreme Court—Jurisdiction—Original jurisdiction—Enforcement of statutory provision—Appointment by President of third to fifth defendants to political offices—Plaintiff claiming appointments contrary to Act 463—Act 463 not extension of Constitution—Whether action by plainiff under original jurisdiction of Supreme Court to determine matter competent—Constitution, 1992, art 2(1)(b)—Presidential Office Act, 1993 (Act 463). Constitutional law—President—Proceedings against—Executive act of President—Proper person to sue—Actions against State to be brought against Attorney-General—President appointing third to fifth defendants to political offices—Action by plaintiffagainst President personally over appointments—Whether action competent—Constitution, 1992, arts 2, 57(4) and 88(5). Constitutional law—Supreme Court—Jurisdiction——Original jurisdiction—Third to fifth defendants appointed by President to political offices—Action by plaintiff under article 2 of Constitution against defendants for their appointments—Whether Supreme Court with jurisdiction over action—Constitution, 1992 art 2(1)(b). Courts—Jurisdiction—Moot issue—President appointing third to fifth defendants to political offices—Plaintiff claiming appointments unlawful as contrary to Act 463—Appointees subsequently approved by Parliament as ministers of State—Appointments not made under Act 463—Whether plaintiff’s action to be struck off as moot—Act 463. It is provided by articles 2(1)(b), 57(4) and (5) and 88(5) of the Constitution, 1992 that: “2. (1) A person who alleges that— (b) any act of omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect. (4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall [p.511] of [2001-2002] 2 GLR 510 not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law. (5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court... (5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.” It is also provided by the Presidential Office Act, 1993 (Act 463), ss 3(1) and 4(1) that: “3. (1) The Presidential Office shall be made up of— (a) 4. (1) persons appointed as presidential staff under this Act one of whom shall be appointed as head of the Office and (b) such other public officers as may be seconded or transferred to the Office. The President shall, acting in consultation with the Council of State appoint such persons as he considers necessary to hold office as presidential staff in the Office.” The candidate of the New Patriotic Party Mr J A Kufuor (JAK) won the December 2000 Presidential Election and was sworn in as the President on 7 January 2001. Subsequently, it was announced by the media that the President had appointed JO-L, EO and JH as Chief of Staff, Presidential Adviser on Public Affairs and National Security Adviser, respectively in the Office of the President. Thereupon, the plaintiff claiming that the appointments were unconstitutional brought an action before the Supreme Court under article 2 of the Constitution, 1992 against JAK as the first defendant; the Attorney-General as the second defendant; and the appointees—JO-L, EO and JH—as the third, fourth and fifth defendants, respectively for a declaration that on a true and proper interpretation of articles 58(1) and (2) and 295(8) of the Constitution, 1992 and sections 2–4 of the Presidential Office Act, 1993 (Act 463), JO-L, EO and JH could not be appointed by the President as staff of the Office of President without consultation with the Council of State as required by article 91(1) of the Constitution, 1992; and that the conduct of JAK in making those appointments was inconsistent with and in contravention of the letter and spirit of the Constitution, 1992. The Attorney-General, however, raised a preliminary objection against the action on the grounds, inter alia, that: (1) the President had under article 57(4) of the Constitution, 1992 immunity from legal proceedings while in office; and (2) JO-L, EO and JH had been nominated by the President for ministerial appointments and Parliament had approved their nominations for those positions and therefore the action against them was moot. Held, upholding the preliminary objection (Ampiah, Kpegah and Adjabeng 8 JJSC dissenting): (1) for an action to lie in the Supreme Court under article [p.512] of [2001-2002] 2 GLR 510 2(1)(b) of the Constitution, 1992 a specific provision of the Constitution itself had to be the subject for consideration. However, in the instant case, the subject matter of the plaintiff’s action was the alleged violation of the Presidential Office Act, 1993 (Act 463) which dealt with the various positions and other office holders in the office of the President. Since Act 463 was not an extension of any provision of the Constitution, 1992, the Supreme Court lacked jurisdiction under article 2(1)(b) of the Constitution, 1992 to entertain the plaintiff’s action which involved the interpretation and enforcement of Act 463. New Patriotic Party v National Democratic Congress SCGLR 461. (2) Under article 57(4) of the Constitution, 1992 the executive actions of the President might be challenged by an action in the Supreme Court either under article 2 of the Constitution, 1992 or by the prerogative writs. However, article 88(5) of the Constitution, 1992 provided that all civil actions against the State should be instituted against the Attorney-General as the defendant. Accordingly, the plaintiff’s action against the President personally was incompetent. New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC cited. (3) The plaintiff’s action against the third to fifth defendants would be struck off because: (a) Before any person could be sued under article 2(1)(b) of the Constitution, 1992 that person should have done or omitted to do something in contravention of a provision of the Constitution, 1992. The third to fifth defendants were however appointed by the President. Accordingly, they were not answerable for that act of the President. Dictum of Charles Hayfron-Benjamin JSC in Ghana Bar Association v Attorney-General [1995-96] 1 GLR 590 at 622, SC applied. (b) The third to fifth defendants’ appointment had been approved by Parliament and they had been sworn in as ministers of state. Besides, it was now a matter of public notoriety that none of them was holding any office under Act 463. Accordingly, the plaintiff’s action was moot since no useful purpose would be served be going into the merits of the case. Dictum of Brobbey J (as he then was) in Barake v Barake [1993-94] 1 GLR 635 at 664 applied. J H Mensah v Attorney-General [1996-97] SCGLR 320 cited. CASES REFERRED TO (1) Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC. (2) Barake v Barake [1993-94] 1 GLR 635. (3) New Patriotic Party v Rawlings [1993-1994] 2 GLR 193, SC [p.513] of [2001-2002] 2 GLR 510 (4) Mensah v Attorney-General [1997-98] 1 GLR 227, SC; sub nom Mensah (JH) v Attorney-General [1996-97] SCGLR 320. (5) Youngstown Street & Tube Co v Sawyer (Steel Seizure Case), 343 US 579 (1952). (6) Mississippi v Johnson, 4 Wall 475 (1867). (7) De Funis v Odegaard, 416 US 312 (1974). (8) Roe v Wade, 410 US 113 (1973). (9) United States v Concentrated Phosphate Ex Assn, 393 US 199 (1968). (10) United States v WT Grant & Co, 345 US 629 (1953). (11) Akoto, In re 2 GLR 523, SC. (12) Balogun v Edusei (1958) 3 WALR 547. (13) Bilson v Apaloo GLR 24, SC. (14) Campell, Ex parte; Re Catheart (1870) LR 5 Ch App 703. (15) Attorney-General of New Zealand v Ortis 2 All ER 93, HL. (16) Tuffour v Attorney-General GLR 637, CA. (17) Sam v Attorney-General [1999-2000] 2 GLR 331, SC; SCGLR 305. (18) Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511, SC. (19) Kuenyehia v Archer [1993-94] 2 GLR 525, SC. (20) New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC. (21) Director of Public Prosecutions v Luft 3 WLR 32, HL. (22) National Media Commission v Attorney-General SC GLR 1. (23) Pattinson v Finningley Internal Drainage Board 2 WLR 622. (24) Republic v High Court, Accra; Ex parte Attorney-General (Delta Foods Case) [1998-99] SCGLR 595. (25) Sallah v Attorney-General (1970) 2 G & G 493. (26) Bilson v Attorney-General [1993-94] 1 GLR 104, SC. [p.514] of [2001-2002] 2 GLR 510 (27) New Patriotic Party v Attorney-General [1997-98] 1 GLR 378, SC; sub nom New Patriotic Party v Attorney-General (Ciba Case) [1996-97] SCGLR 796. (28) Letang v Cooper 3 WLR 578, CA; 1 QB 232, HL. (29) Ghann v Tamakloe (1957) 2 WALR 353. (30) Adegbenro v Akintola 3 WLR 63, PC. (31) Ningkan v Government of Malaysia AC 379, PC. (32) Mericks v Nott-Bower 2 WLR 702, CA. (33) Eastham v Newcastle United Football Club 3 WLR 574. (34) Okorie alias Ozuzu v The Republic 2 GLR 272, CA. (35) New Patriotic Party v National Democratic Congress [1999-2000] 2 GLR 511, SC; SCGLR 461. (36) Practice Direction (Practice and Procedure of the Supreme Court) GLR 1. (37) Yeboah v J H Mensah [1998-99] SCGLR 492. (38) Marbury v Madison 1 Cranch 137. (39) Baker v Carr 369 US 186 (1962). (40) Blackburn v Attorney-General 1 WLR 1037, CA. (41) Kwakye v Attorney-General GLR 994, SC. (42) Spokesman (Publications) Ltd v Attorney-General 1 GLR 88, CA (full bench). (43) Ghana Muslims Representative Council v Salifu 2 GLR 246, CA. (44) Lawrence v Lord Norreys (1890) 15 App Cas 210, HL. (45) Wenlock v Moloney 1 WLR 1238; 2 All ER 871; 109 SI 496, CA. (46) Dyson v Attorney-General 1 KB 410; 81 LJKB 217; 105 LT 753, CA. PRELIMINARY OBJECTION by the Attorney-General to the action of the plaintiff under article 2 of the Constitution, 1992 in the Supreme Court against the President personally as the first defendant and, inter alia, [p.515] of [2001-2002] 2 GLR 510 three persons he had given political appointments for a declaration, inter alia, that on a true and proper interpretation of articles 58(1) and (2), 91(1) and (2), 190 and 295 of the Constitution, 1992 and sections 2–4 of the Presidential Office Act, 1993 (Act 463) the appointments of those persons as staff in the office of the President without consultation with the Council of State were inconsistent with and in contravention of the Constitution, 1992 and so null and void, on the grounds, inter alia, that (i) the Supreme Court lacked jurisdiction to entertain the plaintiff’s action; and (ii) the matter before the court was moot. The facts are sufficiently set out in the rulings of Acquah and Kpegah JJSC. Martin Alamisi Amidu, plaintiff-respondent in person. Hon Nana Akufo-Addo, Attorney-General (with him S Y Anim, Chief State Attorney, Mrs Quansah, Chief State Attorney, Kuwornu, State Attorney and Mrs Owusu-Adjei, State Attorney) for the defendant-applicants. Edward Wiredu Ag CJ. This ruling is the outcome of a preliminary objection raised on behalf of the defendants by the Attorney-General on the following grounds: “(1) this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein; (2) that no cause of action is disclosed by the plaintiff’s writ and the statement of case; and (3) that the questions raised in the plaintiff’s action for determination are moot; and for such further or other orders as to this honourable court may seem it. Article 11 of the Constitution, 1992 provides as follows: “11. (1) The laws of Ghana shall comprise— (a) this Constitution; (b) enactments made by or under the authority of the Parliament established by this Constitution; (c) any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution; [p.516] of [2001-2002] 2 GLR 510 (d) the existing law; and (e) the common law.” From the above it will be observed that there are five different kinds of laws which are recognised and enforceable in the courts of Ghana. Each court in Ghana has its own jurisdiction prescribed for it under the laws of Ghana. Some of these laws are not enforceable directly by invoking the original jurisdiction of the Supreme Court. Save those specifically provided for under article 130(1) and (2) of the Constitution, 1992 which reads as follows: “130. (1) (2) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in— (a) all matters relating to the enforcement or interpretation of this Constitution; and (b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution. Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.” That there are different kinds of laws in Ghana in addition to the provisions of the Constitution, 1992 itself is also buttressed by article 1(2) of the Constitution, 1992 which states in effect that any law which is inconsistent with any provision of the Constitution is to the extent of such inconsistency void. See also article 2(1)(a) of the Constitution, 1992. The events which have provoked this case are provided by the plaintiff in his statement of claim, paragraphs (2)–(7) with particular reference to paragraphs (5) and (6). The said paragraphs read as follows: [p.517] of [2001-2002] 2 GLR 510 “(2) The first defendant is the President of the Republic of Ghana and is being sued as a person whose conduct is violating the Constitution, 1992 of Ghana. (3) The second defendant is the Attorney-General and the principal legal adviser to the government who is being sued as the person against whom all civil proceedings affecting the State shall be instituted. (4) The third, fourth and fifth defendants are private citizens of Ghana and members of the New Patriotic Party (a political party and a corporate body registered under the laws of Ghana) who are holding themselves out as officers or staff in the Office of the President of Ghana. (5) After the first defendant assumed office as the President of Ghana, he purported to appoint the third, fourth and fifth defendants as chief of staff, presidential adviser for public affairs and national security adviser, respectively. (6) The purported appointment by the first defendant of the third, fourth and fifth defendants as staff in the Office of the President were done without consultation with the Council of State as required by the Constitution and the laws of Ghana. (7) The third, fourth and fifth defendants have since their illegal and unconstitutional appointments by the first defendant intentionally and deliberately held themselves out and acted as officers or staff in the Office of the President.” (The emphasis is mine.) It is clear from the above that the first defendant as the President of the Republic of Ghana is alleged to have violated the provisions of the law governing the appointment of some members of staff of his office. The question then is, what kind of law is the plaintiff complaining about, ie the alleged or the purported appointments? The answer to the above question posed, is in my judgment the Presidential Office Act, 1993 (Act 463). This Act is the creator of the various positions and other office holders of the President’s Office. Such staffers are not the creatures of the Constitution, 1992. Nowhere in the [p.518] of [2001-2002] 2 GLR 510 Constitution, 1992 is mention made of the positions allegedly held by the third, fourth and fifth defendants as stated in paragraphs (5) and (6) of the plaintiff’s statement of claim. The positions as mentioned in paragraphs (5) and (6) (supra) cannot be the subject matter of adjudication by invoking the original jurisdiction under article 2(1)(b) of the Constitution, 1992 on which the plaintiff is basing his claim. I am of the respectful view, therefore, that the alleged violation of the provision of a statute such as Act 463 falls outside a provision of the Constitution, 1992. For an action to lie in this court under article 2(1)(b) of the Constitution, 1992 a specific provision of the Constitution, 1992 itself must be the subject for consideration. The enforcement and interpretation of Act 463 in this regard lies elsewhere and not in this court. Act 463 is not an extension of any provision of the Constitution, 1992 but a statute which deals with the Office of the President. Its provisions are not to be elevated to the status of a provision of the Constitution. In my judgment, therefore, this court lacks jurisdiction to entertain the plaintiff’s action. I will now deal with the first defendant in this case. The first defendant undisputedly is the President of Ghana and the Commander-in-Chief of the Ghana Armed Forces. In the course of writing my opinion I received the opinion of my sister Akuffo JSC She has exhaustively and eruditely reviewed the facts of this case and dealt with the law as far as the first defendant is concerned. To avoid repeating the facts and the law I can say and I say here that I endorse her views. I agree that the action by the plaintiff against the first defendant in his personal capacity is misconceived and ought to be dismissed. With regard to the second defendant, the Attorney-General, I unfortunately have to part company with her. I am of the respectful view that at the time of filing his writ the plaintiff knew well that there was no Attorney-General at post. I am of the view that if there was, the plaintiff would have been content with suing the second defendant alone as the defendant instead of going against the first defendant also who was performing his executive functions. On the arguments put forward by my sister Akuffo JSC as to joinder of parties, the rules of court presume that the person sought to be joined must be known to exist as rightly argued by her. In the instant case, however, the post of [p.519] of [2001-2002] 2 GLR 510 the Attorney-General was vacant and no one had been put in place at the time the said writ was filed. He could not therefore be joined as a party. I think in this regard the haste with which the plaintiff issued out his writ ought not be disregarded. The writ ought to be struck out as having been prematurely issued. I hold in my judgment that the Attorney-General, who under the Constitution, 1992 is answerable in court for the executive acts of the first defendant, who had not been put in place at the time the plaintiff issued his writ is entitled to move for the writ to be set aside. In my view, it is impossible to join a non-existing personality. With regard to the rest of the defendants, I associate myself with her views and ask myself, following the case of Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC, what have the third, fourth and fifth defendants done or omitted to do to make them answerable in court under article 2(1)(b) of the Constitution, 1992? Article 2(1)(b) of the Constitution, 1992 reads: “2. (1) A person who alleges that— (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.” The above quoted article presupposes that the person sued must have done or omitted to do something in contravention of a provision of the Constitution, 1992 which can provoke an action under 2(1)(b) of the Constitution, 1992. The obvious answer to the above question is that they have done nothing on the facts of this case. Admitting even that the facts allegedly made by the plaintiff are true, they did not appoint themselves as to make them answerable for the act of whoever appointed them. As pointed out in the able opinion of my sister Akuffo JSC they are the objects of the first defendant’s action. Finally, the present undisputed position of the third defendant at the date when the submissions were made in this case was that he had already been sworn in as a Minister of State for Presidential Affairs, the fourth defendant as a minister of state responsible for media relations and the fifth defendant as security adviser. The above [p.520] of [2001-2002] 2 GLR 510 appointments are now matters of public notoriety and it also shows that none of these defendants, ie the third, fourth and fifth defendants holds any office under Act 463 as claimed by the plaintiff as specified in his statement of case. In Barake v Barake [1993-94] 1 GLR 635 at 664. Brobbey J (as he then was) had this to say: “If we should provide any meaningful service to the people of this society wherein our courts operate, it is imperative that we in the courts muster sufficient courage to take cognisance of the happenings in our society and ensure that our judgments duly reflect facts of common notoriety. Facts so notorious that everyone in our society can be deemed to be aware of, can be said to be matters in respect of which judicial notice can be taken.” On this score, I accept the argument that the case is now moot and no useful purpose will be served by going into the merits. On the present facts, the plaintiff has not been able to prove that the alleged appointments complained about have been made. Bamford-Addo JSC. I agree. Acquah JSC. My Lords, does this court have jurisdiction to entertain a suit, the subject matter of which seeks to challenge an executive action of the President of the Republic? The learned Attorney-General says that there is no such jurisdiction, while Mr Martin Amidu vehemently contends otherwise. But first, the facts. Following the victory of the New Patriotic Party (NPP) in the December 2000 Parliamentary and Presidential Elections, Mr JA Kufuor was sworn in as the President of the Republic on 7 January 2001. Not long thereafter, a number of persons were announced as assisting the President in the performance of his official duties. Three of such persons are Mr Jake Obetsebi-Lamptey, Miss Elizabeth Ohene and Mr Joshua Hamidu. Taking the view that the appointments of these persons were improper, Mr Martin Amidu filed the instant action at the Supreme Court, against Mr J A Kufuor as the first defendant, the Attorney-General as the second defendant, and Jake Obetsebi[p.521] of [2001-2002] 2 GLR 510 Lamptey, Elizabeth Ohene and Joshua Hamidu as the third, fourth and fifth defendants, respectively, claiming: “(1) A declaration that: (i) On a true and proper interpretation of the Constitution, 1992 particularly articles 58(1) and (2), 91(1) and (2), 190 and 295 thereof, and sections 2, 3, 4 of the Presidential Office Act, 1993 (Act 463) the third, fourth and fifth defendants cannot be appointed by the President as staff of the presidential office without consultation with the Council of State. (ii) The conduct of the first defendant President John Agyekum Kufuor, in appointing the third, fourth and fifth defendants as staff of the presidential office without consultation with the Council of State is inconsistent with and in contravention of the letter and spirit of the Constitution, 1992. (iii) The conduct of the third, fourth and fifth defendants in holding themselves out and acting as officers or staff in the Office of the President is inconsistent with and in contravention of the Constitution, 1992. (iv) Accordingly, all acts undertaken by the third, fourth and fifth defendants as officers or staff in the Office of the President are inconsistent with and in contravention of the Constitution, 1992 null, void and without effect whatsoever. (2) Perpetual injunction restraining the first defendant President from appointing the third, fourth and fifth defendants as staff to the presidential office without consulting the Council of State. (3) Perpetual injunction restraining the third, fourth and fifth defendants from continuing to hold themselves out and acting as officers or staff in the Office of the President. (4) Such other orders or directives as the court may seem fit to give effect to the above declaration.” At the time this writ was filed, Parliament had not yet approved the [p.522] of [2001-2002] 2 GLR 510 nomination of any person to the office of Attorney-General. On 9 February 2001 after the Honourable Nana Akufo-Addo had been sworn into the office as the Attorney-General, he filed this motion seeking an order to set aside the writ and statement of case on grounds that: (i) this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein; (ii) that no cause of action is disclosed by the plaintiff’s writ and the statement of case; and (iii) that the questions raised in the plaintiffs action for determination are moot. In an affidavit opposing the application, Martin Amidu swore, inter alia: “(4) The plaintiff-respondent says that the President of Ghana is amenable to the jurisdiction of this court in the exercise of the executive authority conferred on him by the Constitution, 1992. (5) The plaintiff-respondent says further that the purported appointment of the third, fourth and fifth defendants-applicants as Chief of Staff, Presidential Adviser on Public Affairs, and National Security Adviser, respectively by the first defendant-applicant without consultation with the Council of State cannot be said to be an exercise of the executive authority conferred on him by the Constitution, 1992. (6) The plaintiff-respondent says in addition that a declaration or a declaration in the nature of quo warranto can be made by the court against the first defendant-applicant in this action in addition to an order of injunction, or mandamus pursuant to article 2 of the Constitution, 1992. (7) The plaintiff-respondent contends that there are triable issues between the parties in this action. (8) The plaintiff-respondent contends further that the mere subsequent approval by Parliament and appointment of the third and fourth defendants/applicants as Ministers of State on 6 February 2001 does not render this action moot. [p.523] of [2001-2002] 2 GLR 510 (9) The plaintiff-respondent says that the second defendant-applicant was used only in a nominal capacity. (10) The plaintiff-respondent says further that the fact that there was no substantive person appointed as the Attorney-General at the time the writ and statement of case were filed did not mean that no action could be commenced against the State in the name of the Attorney- General. (11) The plaintiff-respondent maintains that the application to set aside the writ and statement of case has no merit whatsoever.” Moving his motion, the learned Attorney-General advanced a number of arguments. He contended, inter alia, that since the complaint relates to the performance by the President of his executive function, this court has no jurisdiction to go into the matter. He referred to the doctrine of the separation of powers underlying the Constitution, 1992 and argued that any such interference by this court would violate this doctrine. Furthermore, it was wrong for the President to be sued since article 57(4) of the Constitution, 1992, grants him immunity from legal proceedings while in office subject to the operation of the prerogative writs. He further contended that since the institution of this action, the third and fourth defendants have been nominated for ministerial positions, and that Parliament had approved the said nominations. Consequently, the plaintiff’s action is now moot and no more live for adjudication. He pointed out that at the time the writ was issued no one had been appointed to the office of the Attorney-General, and that since the personality of the office is important, the action cannot be entertained. He cited in support of his arguments cases like New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC and J H Mensah v Attorney-General [1996-97] SCGLR 320. Mr Martin Amidu in his response to the arguments of the Attorney-General, vehemently disagreed with each of the above arguments. Referring to article 2(1) of the Constitution, 1992, he submitted that this court has jurisdiction to entertain his action. Conceding that his action is not one seeking a prerogative order, he nevertheless argued that the President was amenable to the jurisdiction of this court under article 2 of the Constitution, 1992. He said that the Attorney-General [p.524] of [2001-2002] 2 GLR 510 was sued as a nominal defendant and therefore the absence of a substantive Attorney-General at the time he issued his writ, was immaterial. He further submitted that notwithstanding the approval of the third and fourth defendants by Parliament, his complaint could still be heard. There is no doubt that the Constitution, 1992 prescribes a government consisting of three branches: the legislature, executive and the judiciary. Each playing a distinct role. Apart from these three branches of government, the Constitution, 1992 also establishes a number of offices, bodies and institutions. Now each of these branches of government, offices, bodies and institutions is, of course, subject to the Constitution, 1992 and is therefore required to operate within the powers and limits conferred on it by the Constitution. And in order to maintain the supremacy of the Constitution and to ensure that every individual organ of State, body or institution operates within the provisions of the Constitution, 1992 authority is given in article 2 thereof to any person who alleges that the conduct or omission of anybody or institution is in violation of a provision of the Constitution to seek a declaration to that effect in the Supreme Court. Thus, so long as an individual, body, institution or organ of the government performs its functions in accordance with the relevant constitutional provisions and the law, the Supreme Court has no business or jurisdiction to interfere in the performance of its functions. But where it is alleged before the Supreme Court that any organ of government or an institution is acting in violation of a provision of the Constitution, 1992 the Supreme Court is duty bound by articles 2(1) and 130(1) of the Constitution, 1992 to exercise jurisdiction, unless the Constitution, 1992 has provided a specific remedy, like those of articles 33 and 99 of the Constitution, 1992 for dealing with that particular violation. It follows therefore that no individual nor creature of the Constitution, 1992 is exempted from the enforcement provision of article 2 thereof. No one is above the law. And no action of any individual or institution under the Constitution, 1992 is immune from judicial scrutiny if the constitutionality of such an action is challenged. Thus the doctrine of the political question found mainly in the Unite States [p.525] of [2001-2002] 2 GLR 510 constitutional jurisprudence by which the courts refuse to assume jurisdiction in certain disputes because the subject matter of those disputes are alleged to be “textually committed” to that institution, is inapplicable in our constitutional law because of the power granted to any person in article 2 of our Constitution, 1992 to challenge the constitutionality of any action or omission of an individual or institution. For under the Constitution, 1992 even if the body in question is independent from any other authority, the courts can still assume jurisdiction in disputes alleging that that institution is acting in violation of the Constitution, 1992 because article 295(8) provides: “(8) No provision of this Constitution or of any other law to the effect that a person or authority shall not be subject to the direction or control of any other person or authority in the performance of any functions under this Constitution or that law, shall preclude a court from exercising jurisdiction in relation to any question whether that person or authority has performed those functions in accordance with this Constitution or the law.” (The emphasis is mine.) Thus in J H Mensah v Attorney-General (supra) at 368, (supra) it was explained: “... if by the political question doctrine, it is meant that where the Constitution allocates power or function to an authority, and that authority exercises that power or function within the parameters of that provision and the Constitution as a whole, a court has no jurisdiction to interfere with the exercise of that function, then I entirely agree that the doctrine applies in our Constitutional jurisprudence. For this is what is implied in the concept of the separation of powers. But if by the doctrine, it is meant that even where the authority exercises that power in violation of that constitutional provision, a court has no jurisdiction to interfere because it is the Constitution which allocated that power to that authority, then I emphatically disagree. For two reasons: First, articles 2(1) and 130(1) of the Constitution, 1992 empower this Supreme Court to declare null and void not only any enactment but also any act of omission of any person [p.526] of [2001-2002] 2 GLR 510 which is inconsistent or in contravention of the Constitution, Secondly, if even the power or function is entrusted exclusively to an authority... and in the exercise of that function the authority is subject to no direction or control of anybody, article 295(8) of the 1992 Constitution still empowers the Ghanaian courts to enquire into whether that authority is exercising that function in accordance with the Constitution.” (The emphasis is mine.) Consequently, I hold that this court has jurisdiction under articles 2(1) and 130(1) of the Constitution, 1992 in respect of suits challenging the constitutionality of an executive action of the President. As to whether the President should personally be made a defendant to such an action is another matter depending on the scope of the immunity from legal action granted to the President while in office. Generally speaking, the head of state, in most jurisdictions, is granted absolute immunity from legal proceedings in any civil or criminal actions while in office. But the head of state’s immunity from legal proceedings in respect of actions arising from the performance of his official duties while in office, raises an interesting problem. A head of state, is certainly the first citizen of every state, and as Justice William Douglas said said in Youngstown Street & Tube Co v Sawyer, 343 US 579 at 633 (1952). “... represents the people and is their spokesman in domestic and foreign affairs. The office is respected more than any other in the land. It gives a position of leadership that is unique. The power to formulate polices and mould opinion inheres in the Presidency and conditions our national life.” But to grant the President immunity from such actions may remove the needed accountability which he owes to the people whom he represents. While to allow him to be subject to such suits could make the execution of presidential duties impossible, the question therefore is whether the President, while in office, should not be granted any immunity at all from legal proceedings in respect of actions arising from the performance of his official duties, or be granted qualified immunity, or absolute immunity. [p.527] of [2001-2002] 2 GLR 510 In the United States, the Supreme Court’s first significant venture into the area of executive immunity came in the aftermath of the civil war. In Mississippi v Johnson, 4 Wall 475 (1867) the court was asked to enjoin the President from executing laws passed by Congress on the grounds that the laws were unconstitutional. The court unanimously held that the President was immune from such suits. Kenya grants absolute immunity to the President in article 14(2) of the 1992 Constitution (Revised 1998) in the following words: “(2) No civil proceedings in which relief is claimed in respect of anything done or omitted to be done shall be instituted or continued against the President while he hold office or against any person while he is exercising the functions of the office of President.” But in Namibia and Eritrea, the President has no immunity from legal proceedings in respect of acts done in his official capacity. Thus article 31(1) of the 1990 Constitution of Namibia provides: “31. (1) No person holding the office of the President or performing the functions of President may be sued in any civil proceedings save where such proceedings concern an act done in his or her official capacity.” (The emphasis is mine.) Likewise, article 43 of the 1996 Constitution of Eritrea too provides: “43. Any person holding the office of the President may not be used in any civil proceedings or charged for a crime, save where such proceedings concern an act done in his official capacity as President...” (The emphasis is mine.) What is the position in Ghana? Article 57(4) and (5) of the Constitution, 1992 provides: “(4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done [p.528] of [2001-2002] 2 GLR 510 or omitted to be done, or purported to be done, or purported to have been done in the performance of his functions, under this Constitution or any other law. (5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.” These two provisions are not new in our constitutional jurisprudence. The Constitution, 1979 reproduced them in article 44(9) and (10) thereof while the Constitution, 1969 reproduced them with some modifications in its article 36(6) and (7). Now article 57(5) of the Constitution, 1992 bars the institution of civil and criminal actions against the President while in office. Such actions may be instituted within three years of the President leaving office: see article 57(6) of the Constitution, 1992. Article 57(4) of the Constitution, 1992 deals with legal actions against the President in the performance of his duties while in office. The clause deals with three matters: first, the provisions of article 2 of the Constitution, 1992; secondly, the operations of the prerogative writs; and finally, immunity from legal proceedings subject to actions falling under article 2 of the Constitution, 1992 and those of the prerogative writs. As earlier explained, article 2 of the Constitution, 1992 empowers any person who believes that a provision of the Constitution, 1992 is being or has been breached to seek the relevant declaration from the Supreme Court. Article 2(3) of the Constitution, 1992 directs any individual or institution in respect of whom the Supreme Court gives a direction, to obey and carry out the terms of the order or direction. And if the order or direction is to the President or Vice-President, then article 2(4) of the Constitution, 1992 provides that failure on his part to comply with such an order constitutes a high crime under the Constitution, 1992 and a ground for his removal from office. It stands to reason therefore that for any such order or directive to be meaningful and satisfy the requirements of the audi alteram partem principle, the President or Vice President must have an opportunity in the said suit to be heard. The President’s immunity is also subject to the operation of the prerogative writs. These are actions for habeas corpus and orders of mandamus, certiorari, prohibitions and so on, directed against the [p.529] of [2001-2002] 2 GLR 510 President in the performance of his official functions. Apart from actions under article 2 of the Constitution, 1992 and those seeking prerogative orders the President has immunity from legal proceedings in the performance of his functions under the Constitution, 1992. But it is important to emphasise that the grant of such immunity to the President does not mean that legal proceedings cannot be instituted for relief arising from any damage, harm or otherwise caused to an individual in the exercise of the executive authority of the President. In the event of such situations, actions may be instituted against the Attorney-General, who as provided in article 88(5) of the Constitution, 1992: “(5)... shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.” What the immunity in article 57(4) of the Constitution, 1992 does is to prevent the institution of such actions against the President personally. Article 57(4) of the Constitution, 1992 does not and cannot, under a regime of the rule of law, forbid legal actions challenging any conduct or omission of the executive arm of the State. Now, the scope of article 57(4) of the Constitution, 1992 fell for determination in New Patriotic Party v Rawlings (supra) wherein the President was personally sued on his nominations for district chief executives of the district assemblies. On the issue whether under article 57(4) of the Constitution, 1992 the President could personally be made a defendant, Amua-Sekyi and Aikin JJSC held that article 57(4) of the Constitution, 1992 granted the President qualified immunity and that he can be sued personally in respect of actions under article 2 of the Constitution, 1992 and those seeking prerogative orders. Abban JSC (as he then was) and Bamford-Addo JSC were positive that the President could not be personally sued and that in all such actions, the Attorney-General should be the proper defendant. Ampiah JSC on the other hand expressed his view thus at 219: “Article 57(4) of the Constitution, 1992 which exempts the President from being brought before the court personally for acts [p.530] of [2001-2002] 2 GLR 510 done in the exercise of his functions under the Constitution, 1992 excludes actions brought under article 2 of the Constitution, 1992 and also proceedings involving the prerogative writs. Any person who alleges that there has been executive, legislative or judicial act which is inconsistent with or in contravention of the provisions of the Constitution may bring an action against any person (including the President) who is alleged to have done the act or authorised the doing of that act. That action could be against that person alone or jointly with the Attorney-General.” (The emphasis is mine.) As said earlier on, article 57(4) of the Constitution, 1992 is a reproduction, word by word, of article 44(9) of the Constitution, 1979 of Ghana. Now the rationale for granting to the President, qualified and not absolute immunity from proceedings arising in connection with the performance of his official duties, was clearly and unambiguously articulated at paragraph 122 of the 1978 Memorandum to the 1979 Constitution in the following words: “We are, however, convinced that even an executive President should not be endowed with unlimited powers nor be immune from constitutional controls. On the contrary, we believe that the President should exercise the executive power of the State in accordance with the Constitution and subject to conditions clearly stipulated in that Constitution.” (The emphasis is mine.) Hence the subjection of the President’s immunity to the enforcement actions in article 2 of the Constitution, 1992. The language of article 57(4) of the Constitution, 1992 is so clear that I cannot bring myself to agree with my brethren who hold that the President cannot be sued personally in actions under article 2 of the Constitution, 1992 and those of the prerogative writs. But what is meant or implied by “suing the President personally?” Certainly not by using the personal name of the President, as is done in this case, but by naming the presidency as the defendant. Like, “His Excellency, The President of the Republic of Ghana (Mr JA Kufuor).” For so long as he is in office, he is entitled to be addressed properly anywhere he is or mentioned. [p.531] of [2001-2002] 2 GLR 510 The next objection of the learned Attorney-General is that the plaintiff’s action is moot with the approval by Parliament of the third and fourth defendants as ministers. As defined in Black’s Law Dictionary, 6th ed, an action is generally considered moot when it no longer presents a justiceable controversy because issues involved have become academic or dead. This may happen when the matter in dispute has either been resolved already and hence no need for judicial intervention or events happening thereafter have rendered the issue no longer live. In either situation, unless the issue is a recurring one and likely to be raised again between the parties, the courts would not entertain such a dead issue. Let me illustrate ,with two American cases. First, the case of De Funis v Odegaard, 416 US 312 (1974). Rejected for admission to the University of Washington Law School, Marco De Funis brought a personal suit against the school, alleging that it had engaged in reverse discrimination, that it had denied him a place, but accepted statistically less qualified minority students. In 1971 a trial court found merit in his claim and ordered that the university admit him. While De Funis was in his second year of law school, the state’s high court reversed the trial judge’s ruling. He then appealed to the United States Supreme Court. By that time, De Funis had registered for his final quarter in school. In a per curiam opinion the court refused to rule on the merits of De Funis’s claim, asserting that it was moot: At p 319 to 320 the court said: “Because (De Funis) will complete his law school studies at the end of the term for which he has now registered regardless of any decision this Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art. III of the Constitution, consider the substantive constitutional issues tendered by the parties.” In Roe v Wade, 410 US 113 (1973) on the other hand, the court legalised abortions performed during the first two trimesters of pregnancy. Norma McCorvey, also known as Roe, was pregnant when she filed a class action challenging the constitutionality of the Texas criminal abortion law in 1970. [p.532] of [2001-2002] 2 GLR 510 When the court handed down the decision in 1973, she had long since given birth and put her baby up for adoption. But the justices did not declare the case moot. Why? De Funis had been admitted to law school, and he would “never again be required to run the gauntlet.” Roe could become pregnant again; that is, pregnancy is a situation capable of repetition or recurrence. In Ghana, this court in J H Mensah v Attorney-General (supra), relying on United States v Concentrated Phosphate Exp Assn, 393 US 199 (1968), and United States v W T Grant & Co, 345 US 629 (1953) held that if the question though moot, was certainly not likely to recur, the courts would not waste their time to determine dead questions and issues. And that for the court to decline deciding a moot question it must be established that subsequent events had made it absolutely clear that the alleged wrong behaviour could not reasonably be expected to occur. I still hold that this holding represents the correct statement of the law. In the instant case, does the approval of Parliament, render the plaintiff’s action moot or pointless for adjudication? From his reliefs and statement of case the gravamen of the plaintiff’s case is that the alleged appointment of the third, fourth and fifth defendants to the offices of Chief of Staff, Presidential Adviser for Public Affairs and National Security Adviser, respectively, without consulting the Council of State was contrary to the Constitution, 1992, and the Presidential Office Act, 1993 (Act 463). Thus in paragraphs (5) and (6) of his statement of case the plaintiff pleaded: “(5) After the first defendant assumed office as the President of Ghana he purported to appoint the third, fourth and fifth defendants as Chief of Staff, Presidential Adviser for Public Affairs, and National Security Adviser respectively. (6) The purported appointment by the first defendant of the third, fourth and fifth defendants as staff in the Office of the President were done without consultation with the Council of State as required by the Constitution and laws of Ghana.” Now neither does Act 463 nor the Constitution, 1992 create any any office called Chief of Staff, Presidential Adviser for Public Affairs, [p.533] of [2001-2002] 2 GLR 510 and National Security Adviser, to require the Council of State’s consultation in the appointment of persons to them. Sections 3 and 4 of Act 463 provide: “3. 4. (1) The Presidential Office shall be made up of— (a) persons appointed as presidential staff under this Act one of whom shall be appointed as head of the Office; and (b) such other public officers as may be seconded or transferred to the office. (2) Subject to section 2 members of the Office shall be assigned such duties as the President may determine. (1) The President shall, acting in consultation with the Council of State appoint such persons as he considers necessary to hold office as presidential staff in the Office. (2) The number of persons that may be appointed under subsection (1) of this section and the grade of the officers shall be determined by the President.” It is clear from the above provisions that it is the President’s prerogative to determine the number and designation of persons he desires to appoint as his staffers, and that those appointed under section 4(1) of Act 463 are required to be so appointed in consultation with the Council of State. Thus the alleged offices of the third, fourth and fifth defendants must be shown to be offices coming under section 4(1) of Act 463 to support any allegation that such appointments require the Council of State’s consultation. But with the parliamentary approval of the offices of the third and fourth defendants, is the Council of State’s consultation still needed to perfect these appointments? If the answer to the question is in the negative, as it certainly is, what then is left in the plaintiff’s action worthy of adjudication? Which provision in the Constitution, 1992 and Act 463 requires the President to consult the Council of State in nominating people for ministerial positions? Indeed, if the plaintiff had not hurriedly rushed to issue this writ, he would have realised that the offices he was complaining of were not contemplated by the President to be offices under Act 463, and consequently did not require [p.534] of [2001-2002] 2 GLR 510 consultation with the Council of State. The plaintiff thought the offices were those under section 4(1) of Act 463, but events thereafter have shown that they are not. In respect of the fifth defendant there is similarly nothing to show that it is an office under Act 463. I think it is important to appreciate that it is not every appointment by the President that requires the consent of the Council of State, or Parliament. For example, appointments under section 7 of Act 463 do not need the consent nor consultation of any body. Whoever therefore alleges that a particular presidential appointment requires the consent of another body must dearly demonstrate the relevant law and regulation showing that that particular appointment indeed requires that approval. In the instant case, I am fully satisfied that the subsequent approval by Parliament had unequivocally shown that the offices complained of were not those contemplated under Act 463, and that the said parliamentary approval had glaringly exposed the fallacy underlying the plaintiff’s action and rendered same pointless for adjudication. The plaintiff’s action is nothing but an exercise in futility. I would accordingly uphold the preliminary objection and dismiss the action. Atuguba JSC. As the facts of this matter have been stated in the rulings that have preceded mine, I would not repeat them except where necessary. As to the first contention that “this court lacks jurisdiction to entertain the plaintiff’s action against the defendants herein”, the same is partially well founded. The first defendant is the President of Ghana and it was the contention of the Honourable Attorney-General, Nana Akufo-Addo that he enjoys immunity from suit or court proceedings generally under article 57(4) of the Constitution, 1992 which provides: “(4) Without prejudice to the provisions of article 2 of the Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or I omitted to be done, or purported to be done, of purported to have been done or purporting to be done in the performance of his [p.535] of [2001-2002] 2 GLR 510 functions, under this Constitution or any other law.” (The emphasis is mine). The proper construction of this provision is quite a vexed question. I must confess that if it were open to me so to hold, I would have eagerly held that the President could be sued in the performance or purported performance of his functions under the Constitution, 1992 since that would advance constitutionalism, the rule of law and the negation of the bemoaned days of Re Akoto GLR (PtII) 523, SC. But as was aptly put by Smith J in Balogun v Edusei (1958) 3 WALR 547 at 553: “The Courts of Justice exist to fulfil, not to destroy the law...” It does not appear that there is any real controversy over the fact that article 57(4) of the Constitution, 1992 does confer some immunity from court process on the President, but it is the extent of it, that is said to fall short of actions under article 2 of the Constitution, 1992 and the prerogative writs. Thus in Bilson v Apaloo GLR 24 at 54, SC Anin JSC delivering the judgment of himself and that of Sowah and Charles Crabbe JJSC said: “It would be noticed that article 44(9), relied on by the plaintiff, itself does not create a right of action; it merely confers a qualified immunity from suit on the President while in office; but significantly saves actions brought under article 2 and by prerogative writs.” (The emphasis is mine.) It is noticeable that article 44(9) of the Constitution, 1979 which was thus construed is in the ipsissima verba of article 57(4) of the Constitution, 1992. Counsel for the plaintiff naturally relied on this decision for his contention that his suit against the President is proper. This contention has the support of the well-settled principle of construction as stated by James LJ in Ex parte Campbell; Re Cathcart (1870) LR 5 Ch App 703 at 706 that: “Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be [p.536] of [2001-2002] 2 GLR 510 taken to have used them according to the meaning which a Court of competent jurisdiction has given to them.” (The emphasis is mine.) See also Attorney-General of New Zealand v Ortiz 2 All ER 93, HL. It is trite law, as laid down in Tuffuor v Attorney-General GLR 637 CA; Sam v Attorney-General (No 2) SCGLR 305 and others that a written national Constitution ought not to be construed according to the ordinary rules of construction of statutes. But that does not mean that they can be excluded altogether from the construction of such a Constitution. Sowah JSC (as he then was), the chief protagonist of this principle in the Tuffuor case (supra), later stated in Republic v High Court, Accra; Ex parte Adjei [1984-86] 2 GLR 511, SC that whether these ordinary rules of construction do or do not apply to the construction of the Constitution depends on the particular circumstances of each case. After all these rules of construction are part of the common law which is part of the existing law under article 11(5) of the Constitution, 1992 and are therein allowed to operate unless they are inconsistent with the Constitution, 1992. Accordingly, they have been applied, sometimes extensively in constitutional cases: see Kuenyehia v Archer [1993-94] 2 GLR 525, SC and New Patrotic Party v Attorney-General [1993-94] 2 GLR 35, SC. However, the principle about the prior construction of similar statutory words supra, is a rebuttable presumption. In Director of Public Prosecutions v Luft 3 WLR 32 at 41, HL the House of Lords held that a long standing wrong construction of the words of a statute in pari materia is no bar to its correction. If the President can be sued in respect of the performance of his functions, actual or purported, under the Constitution, 1992 such action can be brought under articles 2 and 130 of the Constitution, 1992. But if that is so then it would mean that the immunity from suit granted to the President under article 57(4) of the Constitution, 1992 in respect of the performance of his functions, actual or purported, has been negated completely. That would mean that those provisions purporting to confer the said immunity on him have been rendered meaningless or useless. It is however a settled rule of construction that [p.537] of [2001-2002] 2 GLR 510 all statutory provisions ought, if possible, to be given effect, whether those provisions are in the same statute or in different statutes, which conflict, and may therefore imply a repeal of the earlier one by the later statute. I reiterated this principle in National Media Commission v Attorney-General [1999-2000] 2 GLR 581, SC. In Pattinson v Finningley Internal Drainage Board 2 WLR 622 at 624 Bean J, quoted the following passage from Maxwell on the Interpretation of Statutes, (12th ed, 1969) with approval: “A later statute may repeal an earlier one either expressly or by implication. But repeal by implication is not favoured by the courts. ‘Forasmuch,’ said Coke, ‘as Acts of Parliament are established with such gravity, wisdom and universal consent of the whole realm for the advancement of the commonwealth, they ought not by any constrained construction out of’ the general and ambiguous words... to be abrogated.’” (The emphasis is mine.) This is particularly true of a written national Constitution. As my learned and respected brother Acquah JSC aptly put it in National Media Commission v Attorney-General (supra) at 590: “But to begin with, it is important to remind ourselves that we are dealing with our national Constitution, 1992 not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers in them. It gives certain rights to persons as well as bodies of persons, and imposes obligations as much as it confers privileges and powers. All these duties, obligations, powers, privileges and rights must be exercised and enforced not only in accordance with the letter, but also with the spirit of the Constitution, 1992. Accordingly, in interpreting the Constitution, 1992 care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards accomplishing the intended goal. Each provision must therefore [p.538] of [2001-2002] 2 GLR 510 be capable of operating without coming into conflict with any other.” (The emphasis is mine.) Applying this salutary principle, I would hold that the way to avoid a conflict between the provisions conferring immunity from suit on the President and article 2 of the Constitution, 1992 is to hold that the President’s immunity shields him from suit in respect of the performance of his functions, actual or purported under the Constitution, 1992 but his acts in those respects can still be challenged by suing the Attorney-General under article 88, particularly under clause (5) thereof, which provides: “(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.” This is because the acts of the President in the discharge of his constitutional functions are acts of the government or the State. This, mutatis mutundis, is substantially what this court decided in Republic v High Court, Accra, Ex parte Attorney-General (Delta Food case) [1998-99] SCGLR 583. After all, such an action would still be governed by article 2 of the Constitution, 1992. This is further buttressed by the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana. At page 3 the committee stated in paragraph 3 thereof as follows: “3. The Committee operated on the cardinal principle that we should not re-invent the wheel. Accordingly wherever we found previous constitutional arrangements appropriate, we built on them. In this connection, with appropriate modifications, we relied substantially on some of the provisions of the 1969 and 1979 Constitutions of Ghana to the extent that they are relevant to the general constitutional structure proposed in this report.” (The emphasis is mine.) Then at page 22, para 34, the committee clearly and unambiguously stated as follows: [p.539] of [2001-2002] 2 GLR 510 “34. The Presidential immunity from legal proceedings provided in Article 44 clauses 9-11 of the 1979 Constitution of Ghana is meant to preserve the dignity of the office of the President, but should not preclude proceedings against the state in appropriate case. The proper procedure in such cases is to institute proceedings against the Attorney-General, as the official representative of the Republic.” It is quite clear therefore that the committee, though sub silentio, endorsed the construction of the President’s immunity from suit as expounded by Archer, Sowah and Apaloo JJA (as they then were) in Sallah v Attorney-General (1970) 2 G & G 493 at 493, 502 and 507, respectively. They had to construe articles 36(7) and (8) and 47 of the Constitution, 1969 the provisions of which save as the substitution of article 2 for article 47, are substantially the same as those under the Constitutions, 1979 and 1992. In my view, the substitution of article 2 for article 47 was to make it clear that where actions cannot lie against the President, they may lie against the State under that article. Indeed, since the same acts of the President can be challenged under article 2 of the Constitution, 1992 against the State rather than against the President, it is difficult to think that article 2 suffers any real prejudice by reason of the presidential immunity from suit. This court has often upheld the clear intention of the framers of the Constitution, 1992 wherever revealed by the committee of experts’ report on the matter. Indeed, resorting to the appropriate passages of the said report, this court departed from the requirement of locus standi for Ghanaian citizens for the purposes of constitutional actions under article 2 of the Constitution, 1992 even though previous decisions, inclusive of this court’s own decisions and some earlier dicta, required the contrary: see Bilson v Attorney-General [1993-94] 1 GLR 104, SC. However, compare New Patriotic Party v Attorney-General (Ciba Case) [1996-97] SCGLR 796 and Sam v Attorney-General (supra). Indeed, it is refreshing to note that Bilson v Apaloo (supra) relied on by the plaintiff, was before that, one of those decisions which required locus standi generally for actions under the Constitution, 1992. It is true that in Letang v Cooper 3 WLR 573 at 578, CA [p.540] of [2001-2002] 2 GLR 510 Lord Denning MR cautioned against too much adherence to committees’ memoranda because the legislature might as well use language that departs from their recommendations; but as shown supra, the committee of experts’ recommendations on the presidential immunities, referred to the ipsissima verba, provisions of the Constitution, 1979. I would therefore hold that the plaintiff’s action against the President in this case flies in the face of his constitutional immunity from suit and cannot be entertained. I, however, refrain from saying that in other proceedings against the State, an order cannot be made against the President. After all the Constitution, 1992 omnia potest. It is for these reasons that I support the majority decision of this court in New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC despite the views of Adade JSC and others in New Patriotic v Attorney-General (supra) which tend to support the view that the President can be sued under article 2 of the Constitution, 1992. As to whether the action properly lies against third and fourth defendants, I doubt whether the decision in Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598, SC is not open to divergent views. A person wrongly appointed to an office and acting in it can be sued: see Ghann v Tamakloe (1957)2 WALR 353, Adegbenro v Akintola 3 WLR 63, PC and Ningkan v Government of Malaysia AC 379, PC. I would therefore not say that they have been wrongly sued. As to whether the action is now moot because the appointments impugned have, as at now been regularly made, it was held by this court in J H Mensah v Attorney-General [1996-97] SCGLR 320 that if the matter could still arise in future then the action is not moot. Similarly in Merricks v Nott-Bower 2 WLR 702 at 707, CA Denning MR said: “If a real question is involved, which is not merely theoretical, and on which the court’s decision gives practical guidance, then the court in its discretion can grant a declaration.” (The emphasis is mine.) In Eastham v New Castle United Football Club 3 WLR 574 even though the transfers of the policemen who were the plaintiffs had long taken place and would not be reversed, it was held that the action [p.541] of [2001-2002] 2 GLR 510 would still serve a useful purpose to the various police authorities as to the scope of their powers. Similarly there is no indication that the President has exhaustively made all his necessary appointments. In fact some are still going on. A declaration on the issue could still be useful to the President and other relevant officials, like the Council of State. In Tuffuor v Attorney-General (supra) it was held that since a citizen has the duty to defend the Constitution, he can bring an action, if there is a controversy), for an interpretation simpliciter, even though no further relief be sought by him. Indeed, since, as was held in the said Tuffuor case (supra) a Constitution is a living organic document which mirrors the experiences of its people in the past and their aspirations for the future, then interest in a constitutional matter would be a recurrent affair and therefore not moot; especially as similar appointments would fall to be made virtually every four years. It has also been said in Okorie alias Ozuzu v The Republic 2 GLR 272, CA that the question whether a breach of the Constitution causes some injury such as miscarriage of justice is irrelevant since the mere breach of the Constitution carries with it the stigma of illegality, impropriety, etc. It seems to me therefore that the upholding of the supremacy of the Constitution is itself of great constitutional utility. This action is therefore not moot. The declaratory jurisdiction of this court is not discretionary or the same as a declaratory action at common law as Bilson v Apaloo (supra) would seem to conceive it to be. However, the ground on which I concur in upholding the preliminary objection, generally, is that the plaintiff’s action arises under certain clauses of the Constitution, 1992 as well as under ordinary legislation, namely the Presidential Office Act, 1993 (Act 463) Section 4(1) thereof provides: “4. (1) The President shall, acting in consultation with the Council of State appoint such persons as he considers necessary to hold office as presidential staff in the Office.” (The emphasis is mine.) On the other hand article 70(1) of the Constitution, 1992 provides: “70. (1) The President shall, acting in consultation with the Council of State, appoint— (e) the holders of such other offices as may be prescribed [p.542] of [2001-2002] 2 GLR 510 by this Constitution or by any other law not inconsistent with this Constitution.” Article 91 of the Constitution, 1992 similarly provides: “91. (1) The Council of State shall consider and advise the President or any other authority in respect of any appointment which is required by this Constitution or any other law to be made in accordance with the advice of, or in consultation with, the Council of State.” (The emphasis is mine.) By virtue of these provisions, I think that a default in an appointment under section 4(1) of Act 463 can be challenged, as here, under these provisions in this court. In New Patriotic Party v National Democratic Congress SCGLR 461. I concurred in dismissing the plaintiffs action in that case because it was one that could be instituted either under article 94(3)(b) of the Constitution, 1992 or under section 9 of the Representation of the People Law, 1992 (PNDCL 284). In such a situation since the action could have been instituted in the High Court which, apart from the fundamental human rights, can enforce ordinary legislation or the common law, the plaintiff’s action, straightaway in this court, without first resorting to the High Court violated paragraph (6) of the Practice Direction of the Supreme Court GLR 1. The plaintiff’s action in this case suffers, in consimili casu with the New Patriotic Party v National Democratic Congress case (supra) the defect of violating the said Practice Direction. No compelling reasons, or at all, have been given for this violation. Consequently, I have no grounds for waiving non-compliance with the said Practice Direction under rule 79 of the Supreme Court Rules, 1996 (CI 16). I do not consider it necessary to deal with the other submissions. I would therefore also strike out the plaintiff’s action for want of jurisdiction. Akuffo JSC. By a writ issued by the plaintiff-respondent (herein after referred to as the plaintiff) against the defendants-applicants [p.543] of [2001-2002] 2 GLR 510 (hereinafter referred to as the defendants) the plaintiff, pursuant to the powers of this court under article 2 of the Constitution, 1992 seeks the following declarations: “(1) That on a true and proper interpretation of articles 58(1) and (2), 190 and 295 of the Constitution, 1992 and sections 2, 3 and 4 of the Presidential Office Act, 1993 (Act 463) the third, fourth and fifth defendants cannot be appointed by the President as staff of the Office of the President without consultation with the Council of State. (2) That the conduct of the first defendant in appointing the above-mentioned defendants as staff of the presidential office without prior consultation with the Council of State is inconsistent with and in contravention of the letter and spirit of the Constitution. (3) That the conduct of the third, fourth and fifth defendants in holding themselves out and acting as staff of the Office of the President is inconsistent with and in contravention of the Constitution. (4) That all acts undertaken by the said three defendants are void and of no effect.” In this application, the Attorney-General, the second defendant in the said writ, prays this court to set aside the plaintiff’s writ or strike out the action, on the ground that this court lacks jurisdiction to entertain the plaintiff’s action, because: (1) the writ and statement of claim disclose no cause of action based on article 2(1) of the Constitution, 1992; and (2) the questions raised for determination by the plaintiff’s action are moot. The plaintiff, in his affidavit in opposition herein, urges the court to decline the application for the reasons that: “(1) The first defendant, as the President of the Republic of Ghana is amenable to the jurisdiction of the court in the exercise of the executive authority conferred on him by the Constitution, 1992. (2) The appointment of the three officials, by the first [p.544] of [2001-2002] 2 GLR 510 defendant, without prior consultation with the Council of State cannot be said to be a constitutionally sanctioned exercise of executive authority. (3) Under article 2 of the Constitution, 1992 the court has the power to entertain his action and to make declarations in the nature of quo warranto, as well as injunction or mandamus. (4) There are triable issues raised by the plaintiff’s action and moreover, the matter had not been rendered moot merely by the subsequent appointment of the third and fourth defendants as Ministers of State. (5) Since the second defendant was sued in a nominal capacity, the fact that as at the date of the filing of the writ there was no substantive Attorney-General does not mean that no action could be commenced against the State in the name of the Attorney-General.” During the hearing of the application, the Attorney-General, relying on the authority of New Patriotic Party v Rawlings [1993-94] 2 GLR 193, SC and J H Mensah v Attorney-General [1996-97] SCGLR 320 submitted that: (1) The writ against the President, in his personal capacity, is improper. (2) By virtue of article 57(4) of the Constitution, 1992, executive actions by the President cannot be questioned in this manner. (3) The writ is defective because at the time it was issued there was no substantive Attorney-General in office. (4) The matters giving rise to the action have been overtaken by events and the action is, therefore, moot. The plaintiff, on the other hand, contended that the precedents cited by the Attorney-General rather supported his case since article 57(4) of the Constitution, 1992 is subjected to article 2 of the Constitution, 1992 and the prerogative writs. Furthermore, according to the plaintiff, under article 2 of the Constitution, 1992 this court has the power to make whatever orders it sees fit, therefore, in matters of this nature, the proper approach must be to take each writ on a case-by-case basis. He further contended that the decision in J H Mensah v Attorney-General (supra) did not operate to suspend the operation of the Constitution, [p.545] of [2001-2002] 2 GLR 510 1992 nor did it oust the possibility of making the Attorney-General a nominal defendant pursuant to article 88(5) of the Constitution, 1992. On the issue of mootness, the plaintiff argued that the cause of his action is still alive and must be determined. He, therefore, submitted that the writ was properly issued against the defendants and that it does disclose triable issues. Before tackling the issues that properly arise from this application, I wish to touch upon the submission that, since the writ predates the appointment of a substantive Attorney-General, it is defective. In J H Mensah v Attorney-General (supra) the question arose as to whether or not an action may be instituted against the Attorney-General when Parliament has not previously given its approval to any person to act or hold himself out as such. This court held that, because it is stipulated under article 88(1) of the Constitution, 1992 that the Attorney-General shall be a Minister of State and the principal legal adviser to the government, the individual personality of the office holder is paramount. I see no reason to depart from this conclusion. Does it then follow that, for this reason alone, the writ herein is so incurably bad that it must be struck out? I do not think so. Part IV of the Supreme Court Rules, 1996 (CI 16) spells out the procedure applicable to actions brought under article 2 of the Constitution, 1992 to invoke the original jurisdiction of the Supreme Court. In rule 45(3) and (4) of CI 16, it is provided as follows: “(3) A copy of the writ shall be served on each of the parties mentioned in the writ as directly affected who shall be considered as the defendants and on the Attorney-General if not named specifically as a defendant. (4) The Court may, at any time on its own motion or on the application of a party, order that any other person shall be made a party to the action in addition to or in substitution for any other party.” In my opinion, the clear intent of these rules of procedure is to assure that, in all actions to invoke the original jurisdiction of the court, effect is duly given to article 88(5) of the Constitution, 1992 first, by requiring the service of a copy of the writ on the Attorney[p.546] of [2001-2002] 2 GLR 510 General, and secondly, by empowering the court to order the addition or substitution of any other person, which “any other person” presumably includes the Attorney-General. The rationale for these rules is quite obvious; actions to invoke the original jurisdiction of this court are presumed to be of crucial importance to the enforcement of the supreme law of the land, the Constitution, 1992 and it is, therefore, in the interest of the public that such actions not be defeated merely by the non-joinder or misjoinder of any party, including the Attorney-General. Indeed, even in ordinary civil actions before the High Court, rule 6 of the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129) affords litigants and interested persons a similar safeguard and empowers the High Court, either on its own motion, or on application, to order the striking out of a party or the joinder of another person in the suit, so as to ensure that the matters in issue are thoroughly determined and finally disposed of. Consequently, although at the time the writ herein was issued against the Attorney-General no person had been approved by Parliament to occupy the position, the writ is not thereby rendered so incurably defective as to dictate that it is struck out. All that needs to be done is to order that the Attorney-General, now that Parliament has duly granted its approval, be deemed to have been properly joined as a defendant. Turning now to the matter at hand, clearly this application raises two fundamental issues: (a) whether or not the writ discloses any cause of action properly arising under article 2(1) of the Constitution, 1992. And if so; and (b) whether or not the plaintiff’s action is in any case moot? In dealing with issue (a), I will first consider the question of whether the first, third, fourth and fifth defendants have been properly brought before this court. I will then consider whether, in the circumstances of this case, it was proper for the plaintiff to have brought his action under article 2(1) of the Constitution, 1992. It is presumed that every word contained in the Constitution, 1992 was placed therein after the utmost deliberation. Consequently, in the construction and enforcement of the Constitution, 1992, it is necessary to read and apply each provision in such a manner as would not do [p.547] of [2001-2002] 2 GLR 510 injury to any provision merely for the sake of upholding another provision therein. Therefore, within the context of this matter, we need to consider the cumulative effect of articles 2(1), 57(1) and (4) and 88 of the Constitution, 1992. Article 57(1) and (4) of the Constitution, 1992 states that: “57. (1) There shall be a President of the Republic of Ghana who shall be the Head of State and Head of Government and Commander-in-Chief of the Armed Forces of Ghana...” (4) Without prejudice to the provisions of article 2 of this Constitution, and subject to the operation of the prerogative writs, the President shall not, while in office, be liable to proceedings in any court for the performance of his functions, or for any act done or omitted to be done, or purported to be done, or purported to have been done or purporting to be done in the performance of his functions, under this Constitution or any other law.” (The emphasis is mine.) And article 88(5) of the Constitution, 1992 stipulates that: “(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.” (The emphasis is mine.) Under article 2(1)(b) of the Constitution, 1992 a person who alleges that any act or omission of any person is inconsistent with or in contravention of a provision of the Constitution, 1992 may bring an action in this court for a declaration to that effect. Therefore, since the plaintiff issued his writ pursuant to article 2 of the Constitution, 1992, does that mean that it was proper for him to have made the President a defendant therein? The answer is “no.” In the case of New Patriotic Party v Rawlings (supra), it was held by a majority of this court, that, although the President has procedural immunity from civil proceedings, his official actions may be challenged through prerogative writs or actions brought pursuant to article 2 of the Constitution, 1992. [p.548] of [2001-2002] 2 GLR 510 However, the Attorney-General would be the only proper defendant in any such challenge. That was a case wherein the New Patriotic Party sued the then President of Ghana, together with the Attorney-General, for a declaration that the appointment of district secretaries by the said President was inconsistent with and in contravention of the Constitution, 1992. The then Attorney-General raised the issue of whether or not, under the Constitution, 1992 the President is personally amenable to suit and, whereas Amua-Sekyi and Aikins JJSC were of the opinion that he is, Abban JSC (as he then was), Bamford-Addo and Ampiah JJSC were of the contrary view. His Lordship Abban JSC (as he then was) expressed himself thus at 207-208: “Article 57(5) and (6) of the Constitution, 1992 gives complete immunity in civil and criminal proceedings to the President while in office. But it seems to me that the immunity which article 57(4) of the Constitution, 1992 grants to the President is not absolute. That is, article 57(4) does not confer substantive immunity in so far as prerogative writs and actions brought under article 2 of the Constitution, 1992 are concerned. Thus, official acts of the President can be challenged either by means of prerogative writs or by instituting action in the Supreme Court under article 2 of the Constitution, 1992. However, I am of the view that in such cases, it would not be right to make the President a defendant. By virtue of article 57(1) of the Constitution, 1992 the President is not only the ‘Head of State’ but also the ‘Head of Government’; and article 58(1) of the Constitution, 1992 vests the executive authority of Ghana in the President. So whenever the President carries out executive duties vested in him by the Constitution, 1992 or by any other law, he does so as the Government of Ghana... In the particular circumstances of the present case, the suit herein should be brought against the Attorney-General only as the defendant for and on behalf of the Government of Ghana, in accordance with article 88(5) of the Constitution, 1992. That is, the Attorney-General is the proper defendant and not the President.” (The emphasis is partly mine) And at 210 his Lordship continued as [p.549] of [2001-2002] 2 GLR 510 follows: “There is therefore no doubt that the official acts of the President can be questioned in the Supreme Court under article 2 of the Constitution, 1992 and also through the use of the prerogative writs. But as I have already stated, in such cases, as in the present one, only the Attorney-General should appear in the suit as the defendant for and on behalf of the government or the state for that matter...” In the writ issued by the plaintiff herein, the conduct at the root of the complaint is the action of the President in making staff appointments to the Office of the President. If this is not an act done or purported to be done by the President officially and in his capacity as President, then I cannot imagine what else could be. Therefore, to borrow the words of my learned sister Bamford-Addo JSC, in the above-mentioned New Patriotic Party case (supra), if the President, according to article 57, is the head of state and has acted in his official capacity in appointing or purporting to appoint the third, fourth and fifth defendants, which action is alleged to be unconstitutional, then, it is not the head of state himself who should be sued, but the Attorney-General, as dictated by article 88(5) of the Constitution, 1992. That this was the intent of the framers of the Constitution, 1992 is evidenced by paragraph 34 of the Report of the Committee of Experts (Constitution) on Proposals for a Draft Constitution of Ghana, wherein it is explained that: “34. The Presidential immunity from legal proceedings provided in Article 44 clauses 9-11 of the 1979 Constitution of Ghana is meant to preserve the dignity of the office of the President, but should not preclude proceedings against the state in appropriate cases. The proper procedure in such cases is to institute proceedings against the Attorney-General, as the official representative of the Republic.” Consequently, I have no hesitation in concluding that the President is not a proper party to the plaintiff’s suit and he must be struck out as a defendant. In arriving at this conclusion, I am not unmindful of [p.550] of [2001-2002] 2 GLR 510 the concern expressed by Amua-Sekyi JSC in the aforementioned New Patriotic Party case (supra), to the effect that since under article 2(4) of the Constitution, 1992 failure by the President to obey or carry out the terms of an order or direction addressed to him by the Supreme Court, in the exercise of its powers under article 2(2) of the Constitution, 1992 to issue consequential orders or directions, would constitute a ground for removal from office, to hold that the President cannot be made a party to an action under article 2 of the Constitution, 1992 would offend against the audi alteram partem rule. However, it is my view that the regime created by article 2 of the Constitution, 1992 constitutes an exception to this rule, since the mere existence of such a ground for removal would not automatically remove the President, for the Constitution, 1992 provides specific procedures for the removal of a President. What about the propriety of the inclusion of the third, fourth and fifth defendants as parties to the suit? The plaintiff issued his writ because he claims that the appointment of the third, fourth and fifth defendants as staff in the Office of the President is unlawful and unconstitutional. Clearly, therefore, they have been included in the suit only because of their alleged appointments and not because of any unconstitutional acts they, themselves, may have committed. They did not appoint themselves and, as such therefore, what provision of the Constitution, 1992 has any of them contravened and what acts on their parts might we legitimately declare unconstitutional pursuant to article 2 of the Constitution, 1992 As was stated by Charles Hayfron-Benjamin JSC in the case of Ghana Bar Association v Attorney-General [1995-96] 1 GLR 598 at 622, SC wherein the Ghana Bar Association, in a suit against the Attorney-General challenging the constitutionality of the appointment of Justice I K Abban to the office of Chief Justice, joined Justice Abban as the second defendant: “At a glance, it is obvious that the second defendant—the object of the power conferred on the President—cannot be involved in this case. He has not committed any infraction with respect to the Constitution, 1992 and no action can be brought against him which can be founded on article 2 of the Constitution, 1992.” [p.551] of [2001-2002] 2 GLR 510 The same may be said of the third, fourth and fifth defendants in the plaintiff’s suit; they are merely the objects of the President’s action. Therefore, their names must be struck out as defendants to the plaintiff’s writ. In view of the foregoing, assuming there is a proper cause of action raised by the plaintiff’s writ, the only proper defendant would be the Attorney-General. However, there remains the question of whether or not the executive action complained of by the plaintiff may be subjected to judicial scrutiny by way of a writ under article 2 of the Constitution, 1992. There is no doubt that as already discussed above, executive action is subject to judicial scrutiny, provided the writ is one properly issued pursuant to article 2 of the Constitution, 1992 or is a prerogative writ. In Ghana, the Constitution, 1992 is the supreme law and every act performed by the President in the exercise of his executive authority, must be referable to the word or spirit of the Constitution, 1992 or a law properly existing under the Constitution, 1992. However, a writ, such as the plaintiff’s, issued under article 2(1)(b) of the Constitution, 1992 must necessarily show that the act complained of is in contravention of a provision of the Constitution, 1992. Although there are several provisions in the Constitution, 1992 governing appointments into certain positions by the President, these do not include of staff appointments to the Office of the President. Rather, the latter appointments are governed by the Presidential Office Act, 1993 (Act 463). If it is alleged that any appointments are in breach of this legislation, there are other legal processes by which such appointments may be challenged and the proper course of action for the plaintiff is to pursue such processes, not to seek to enforce such legislation by way of a writ under article 2 of the Constitution, 1992. Consequently, it is my view that, indeed, the plaintiff’s writ does not disclose a proper cause of action under article 2 of the Constitution, 1992 and must, therefore, be struck out. Hence I do not see the need to advert my mind to the issue of mootness. Lamptey JSC. I agree that the plaintiff’s writ and statement of case be struck out and the action be dismissed against all the five defendants. I wish however to express my opinion on some of the issues raised. [p.552] of [2001-2002] 2 GLR 510 I must preface my opinion with the unambiguous statement that this court has no jurisdiction to hear and determine the plaint before it. I agree with and adopt the opinions expressed so clearly and succinctly by the majority of this court on the issue of jurisdiction. The action of the plaintiff cited Mr John Agyekum Kufuor as the first defendant. The address for service was stated as “Office of the President, State House Accra.” The plaintiff in providing the address of the first defendant referred and described the first defendant as “President of Ghana.” Since the plaintiff commenced the action relying on the power and right guaranteed to him, among others, on article 2(1)(a) and (b) of the Constitution, 1992, I reproduce in particular article 2(1)(b) as follows: “2. (1) A person who alleges that— (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration...” Is it the intention of the law makers that the “person” whose act or omission of the alleged breach should and must be sued in his person? The answer, in my view, is and must be in the positive. Prima facie the plaintiff must be right in law to sue Mr John Agyekum Kufuor, as the first defendant in the instant case. However, the plaintiff at paragraph (2) of his statement of case averred as follows: “2. The first defendant is the President of Ghana and is being sued as person whose conduct is violating the Constitution of Ghana.” Further and better particulars of the conduct of the first defendant were stated at paragraphs (5), (6) and (8). These are: “(5) After the first defendant assumed office as the President of Ghana he purported to appoint the third, fourth and fifth defendants as Chief of Staff, Presidential Adviser for Public Affairs and National Security Adviser respectively. (6) The purported appointment by the first defendant of the third, fourth and fifth defendants as staff in the Office of the President were done without consultation with the Council of State as required by the Constitution and laws of Ghana... [p.553] of [2001-2002] 2 GLR 510 (8) By virtue of the conduct of the defendants, state resources are being misappropriated and misapplied by the defendants without any constitutional authority whatsoever.” In my view, the statement of case shows and establishes that the conduct complained of was the conduct of the President of Ghana. The action must not be mounted against Mr John Agyekum Kufuor. In my understanding of the Constitution, 1992 and the facts stated by the plaintiff, the proper and lawful party to sue is the President of Ghana and not John Agyekum Kufuor. In further support and explanation of my view, I cite article 60(9) and (12) of the Constitution, 1992 as follows: “(9) The Vice-President shall, before commencing to perform the functions of the President under clause (6) of this article, take and subscribe the oath set out in the Second Schedule to this Constitution in relation to the office of President... (12) The Speaker shall, before commencing to perform the functions of the President under clause (11) of this article, take and subscribe the oath set out in relation to the office of President.” I must point out and draw attention to the fact that the Constitution, 1992 enjoined the Vice-President and the Speaker each to take and subscribe the respective oaths of their offices before they each assumed that office. The Constitution, 1992, art 60(9) and (12) imposed a legal obligation on the Vice-President and the Speaker to each take and subscribe the oath of a President before they each assumed office as President. My understanding of these constitutional provisions is that the Office of President is not personal to the holder for the time being in office. In my view, the President of Ghana is the person who at any point in time has taken and subscribed the oath of President. I find further support for my view in article 58(1) of the Constitution, 1992. This provision reads as follows: “58. (1) The executive authority of Ghana shall rest in the President and shall be exercised in accordance with the provisions of this Constitution.” The Constitution, 1992 in clear and plain language spelt out the functions and duties of the Vice[p.554] of [2001-2002] 2 GLR 510 President in article 60(1) and of the Speaker in article 101 of the Constitution, 1992. Thus when the Speaker, acting legally and constitutionally as President of Ghana, is alleged to have violated and breached a provision of the Constitution, 1992 a plaintiff cannot sue the Speaker by his or her true name, or sue him or her as “Speaker” or as “acting President” because it would be wrong in law to sue in the name of the person for the time being occupying the high office of President. I agree with and accept the opinion that in cases of this nature, that is when the exercise of the executive authority and power is alleged to be unconstitutional, the proper and lawful party to sue is the Attorney-General. On this issue article 88(5) of the Constitution provides: “(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.” This provision clearly makes the Attorney-General the party to sue in civil proceedings against the President when he has exercised executive power of state. The provision of article 57(5) of the Constitution, 1992 is in language following: “(5) The President shall not, while in office as President, be personally liable to any civil or criminal proceedings in court.” In my opinion, the above provision clearly and plainly guaranteed to the President while in office qua President, total and complete immunity from the jurisdiction of the courts; in simpler language, the President cannot be sued in the civil courts or criminally prosecuted in the criminal courts or both. This legal immunity is intended to continue for a period of three years only after the President leaves office as President. In my view, this constitutional provision gives further support to my opinion that it was wrong to sue Mr John Agyekum Kufuor as the first defendant. The Hon Attorney-General and the plaintiff each addressed us on the issue whether or not the plaintiff’s writ and statement of case disclosed a cause of action. I must preface this opinion with the statement that as at the date of considering the arguments and [p.555] of [2001-2002] 2 GLR 510 submission of counsel for the parties, the plaintiff failed and omitted to provide the further and better particulars called for by the statement of case filed on behalf of the defendants. I received a copy of the memorandum of issues filed by the plaintiff on 2 April 2001. The defendants caused to be filed the memorandum of issues on 19 March 2001. To deal carefully and critically with the claim of the plaintiff before the court, I again refer to the statement of case of the plaintiff as I have reproduced same elsewhere in this ruling, in particular, paragraphs (5), (6) and (8). In reply to the averments cited therein, the defendants caused to be filed a statement of case. I reproduce the relevant paragraphs as follows: “(7) In answer to paragraph (5) of the plaintiff’s statement of case, the third, fourth and fifth defendants aver that the first defendant exercising his executive authority called in aid the expertise of the third fourth and fifth defendants to assist him in the performance of his functions as advisers and spokesperson to the first defendant. (9) In further answer to paragraph (6) of the plaintiff’s statement of case, the defendants aver that the plaintiff has not shown any evidence to indicate that thefirst defendant has appointed the third, fourth and fifth defendants as staff in the Office of the President.” (The emphasis is mine.) There can be no doubt that paragraph (9) of the defendants’ statement of case raised a serious issue, namely that the case put forward by the plaintiff was not supported or verified by

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