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How Tsatsu Tsikata and Nana Akuffo Addo Teamed Up against the Attorney General in 1979 - Episode 2

Feature Article How Tsatsu Tsikata and Nana Akuffo Addo Teamed Up against the Attorney General in 1979 - Episode 2
MAY 8, 2021 LISTEN

Attorney General’s Defence and Objections by the Plaintiff’s Lawyers

In defending Government, the Attorney-General, Mr Joe Reindorf raised a preliminary objection in court. He submitted that Dr. Tuffuor was not the right person to bring an action defending Justice Apaloo since the matter concerned the capacity of the latter to serve as Chief Justice. Nana Addo and Tsikata countered the Attorney General, indicating that the Office of the Chief Justice and the CJ’s tenure of office were matters of concern for every Ghanaian citizen.

Accordingly, the plaintiff (Dr. Tuffuor), a Ghanaian citizen was only seeking to enforce certain constitutional provisions relating to appointment of Justice Apaloo as Chief Justice and his tenure of office. The Court upheld the plaintiff’s lawyers’ objection and rejected the Attorney General’s argument.

With the Court’s blow to his preliminary objection, the Attorney General (Mr Joe Reindorf) made the following submissions to the Court.

  1. He stated that there was a new era under the 1979 Constitution and that prior to the coming into force of the 1979 Constitution, the highest court in Ghana was the Court of Appeal. As such, no justice should have held office as Chief Justice of the Supreme Court. In that regard, therefore, Justice Apaloo was only a Chief Justice of the Court of Appeal and that was a ground for his nomination and vetting by Parliament to process him for appointment as both a Justice of the Supreme Court and a Chief Justice. He argued that Justice Apaloo was but a transitional CJ who must go through the appointment procedure stipulated under Article 127 of the Constitution, 1979.
  2. He also questioned the jurisdiction of the Court itself to hear the case and the Speaker of Parliament’s competency as a defendant in the case. He argued that as provided under the Third Schedule of the Constitution, the Court was not well constituted and clothed with power to hear and determine matters of Constitutional Interpretation. This was because it was a Court of Appeal sitting as a Supreme Court.
  3. He also argued that even if Article 127 (8) and (9) made Justice Apaloo a Chief Justice upon the coming into force of the Constitution, the fact that Justice Apaloo himself went through the parliamentary vetting after his nomination as CJ deprived him of any immunity under the Constitution. Therefore, Justice Apaloo should accept his rejection by the Appointment Committee; his rejection was a consequence of his own action.
  4. The process of appointing the Chief Justice as provided under Article 127 was mandatory hence Justice Apaloo’s nomination, vetting and rejection was in accordance with a fair constitutional procedure.

Decisions of the Court in Tuffuor v Attorney General

As expected, Nana Addo and Tsatsu Tsikata objected to the Attorney General’s submissions enumerated above. In determining the case, the Court held among other things that:

  1. In his capacities as the Chief Justice and the Head of the Superior Court of Judicature, Justice Apaloo was the President and Member of all the courts hence his appointment was not limited to only the Court of Appeal as the Attorney General argued. The Attorney General’s submission in that regard was unconstitutional and untenable.
  2. The Court furthered that even though the institution (the Superior Court of Judicature) lost one of its departments, it was not dismembered because it remained intact as one Superior Court of Judicature.
  3. It (the Court) had the jurisdiction to hear and determine the case. It added that the plaintiff was a proven Ghanaian citizen so he did not need any special interest in the nomination, vetting and rejection of a Chief Justice before he could sue the State.
  4. It, however, upheld the Attorney General’s objection to the Speaker of Parliament’s competency as a defendant in the case. This was because the Constitution provided that no court could question a business done by Parliament. Specifically, Article 96 stated, There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any Court or place out of Parliament.” Similar provisions were made under Articles 97, 98, 99 and 104 of the Constitution to insulate Parliament from judicial interference on the altar of separation of powers or privileges and immunities of Parliament. Accordingly, the Court could not inquire into how Parliament conducted its business. Therefore, the Court discharged the Speaker of Parliament (Jacob Hackenbug Griffiths-Randolph) as a defendant in the case.
  5. In interpreting the phrase, “shall be deemed” inscribed in Article 127 (8), the Court opted for the natural or ordinary meaning of the phrase, indicating that it meant anything that was said to be something else subject to its attendant consequences, when it actually was not. Accordingly, the Court held that the phrase, “shall be deemed” in Article 127 (8) of the 1979 Constitution should mean, “a justice of the superior court of judicature holding office immediately before the coming into force of the Constitution should continue in office as if he had been so appointed. It follows from this that Justice Apaloo, being the head of the Superior Court of Judicature before the coming into effect of the 1979 Constitution became the CJ by virtue of article 127(8) of the 1979 Constitution. There was no need for him to have been nominated by the President and vetted by parliament for the purpose of approving him as the CJ.”
  6. Once Justice Apaloo was constitutionally in office already as Chief Justice, his removal from office was only possible by invoking Article 128 of the 1979 Constitution. Article 128 (4) of the Constitution stated that a Justice of the Superior Court of Judicature could be removed from office only when he was unable to perform the functions of his office due to infirmity of body or mind or due to a stated misbehaviour. Even that, the procedure outlined in Article 128 (5), (6), (8), (9), (10), (11), (12) and (13) of the Constitution must be followed. Accordingly, nominating, vetting and rejecting Justice Apaloo as Chief Justice subject to Article 127, which related to appointment of CJ was unconstitutional and procedurally wrong.

In this case, Sowah JSC (as he then was) stated, “A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people's search for progress. It contains within it their aspirations and their hopes for a better and fuller life.”

Readers should still expect episode 3 of this piece. It will be the last episode. Before drawing the curtain on the topic (How Tsatsu Tsikata and Nana Akuffo Addo Teamed Up against the Attorney General in 1979), episode 3 will touch on the following:

  1. The Precedent with regard to Dismissal of a Chief Justice in Ghana
  2. The Legal Collaboration between Nana Addo and Tsatsu Tsikata in the Tuffuor Case in 1979: The Beauty, Fruitfulness and Lessons Therefrom

~Asante Sana ~

Author: Philip Afeti Korto

Email: [email protected]

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