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IN THE MENSAH SARBAH JUDICIAL BOARD OF JUSTICE LEGON, AD 2013 SUIT NO: 01/01/13 CORAM: GYEPI GARBRAH (CJ,

, PRESIDING) AKYEA ANSAH, J HAIZEL, J

MICHAEL BAMFO VERSUS THE LEGAL ADVISOR MENSAH SARBAH HALL JCR Cases referred to: 1. Marbury v Madison5 US (1 Cranch) 137; 2 L E 60 (1803). 2. J. H Mensah v. Attorney General[1996-1997]SCGLR 320 3. Boyefio v NTHC Properties Ltd. [1996-97] SCGLR 531 4. Labour Commission v. Crocodile Matchet (unreported) 5. Joseph Sam v Attorney General [2000] SCGLR 6. NPP v. Attorney General (1996 - 97) SC GLR

PLAINTIFF

DEFENDANT

7. Tuffuor v. Attorney General [1980] GLR 637, CA sitting as SC. 8. Republic v High Court (Fast Track Division) Accra; Ex Parte Commission On Human Rights And Administrative Justice (Richard Anane Interested Party) [2007-2008] SCGLR 213, at 247 9. Ghana Bar Association v Attorney-General(1995- 1996) 1 GLR 10. Omaboe 111 v Attorney General & The Lands Commission [2005-2006] SCGLR 579 11. Danso-Acheampong v Attorney General [2009] SCGLR 353 12. National Media Commission v Attorney - General [2000] SCGLR 1

JUDGEMENT OF GYEPI-GARBRAH, JSC (PRESIDING) On 29th October 2013 the plaintiff, Michael Bamfo, issued out of this court a writ in which he sought to invoke the original jurisdiction of this court. The reliefs indorsed on the writ are as follows: a) A declaration that the meeting of Sarknesset which took place on the 4th October 2013,at 7:00pm at the Main Hall Reading and any other decisions whatsoever due to the simple reason that the proceedings at the meeting impugned the requirement for quorum under article 13 of the JCR Constitution. b) An interpretation of the statement where necessary as used in article 12 (1) of the JCR Constitution to mean being entitled to participate in the proceedings of Sarknesset and shall be accorded all the privileges of a member except the entitlement to vote as used in article 13(a) of the Constitution of the Students Representative Council, University of Ghana which is in pari material with the JCR Constitution of Mensah Sarbah Hall. c) A perpetual order restraining Sarknesset from regarding the JCR President as a mere observer and must be accorded all priviledges when he comes to discuss matters in relation to his office or appointment due to the simple reason that article 13(1)(b) the President or other members of the executive to form quorum for Sarknesset meetings The defendant, in his defence, denied all the averments made by the plaintiff and indicated that the said sitting of Sarknesset did not violate any constitutional provisions on quorum since in practice, the house has adapted to conventions that make the day to day management of the house effective and convenient. He then made a submission of no case indicating that the action brought by the plaintiff was frivolous and vexatious, lacks merit and therefore should be thrown out. The court insisted on hearing both sides in fulfilment of audi alteram partem rule and so the proceedings began with the plaintiff counsel stating the facts of the case. The facts undisputed by the defendant are as follows:

On the 4th of October 2013, Sarknesset meeting was scheduled to take place at the Mensah Sarbah hall reading room but begun at 8:30 pm without meeting the requirement of quorum for Sarknesset meeting under article 13 of the Constitution of the Mensah Sarbah Hall JCR. Notwithstanding the inability of members present for the meeting to meet the quorum under article 13, the Speaker went ahead to conduct the meeting. The plaintiff raised a concern with regards to constitutional requirement for quorum since there was just one JCR executive instead of three for Sarknesset meeting and the speaker replied: Sarknesset is a master of its own. Also, during the discussion of the first agendum on the letter of invitation, the JCR president had to explain the executives inability to present the budget, however the speaker prevented him from doing so claiming that he was an observer and cannot make any contribution. The defendant filed a motion to set aside action indicating that Sarknesset is the legislative arm of government of the JCR of Mensah Sarbah Hall and therefore its sitting cannot be questioned by the court and therefore its procedures cannot be questioned by court due to the doctrine of separation of powers as espoused in the celebrated case of Marbury v Madison5 US (1 Cranch)
137; 2 L E 60 (1803).

In my opinion, I must say that I agree with counsel but not entirely. Parliament, I admit, has its Standing Orders and the judiciary has no business questioning the process by which Parliament exercises its legislative powers. (J.H Mensah v. Attorney-General[1996-1997]SCGLR 320 applied). However, it must also be noted that the Judiciary has judicial review powers under article 14(2)a(ii) of the Sarbah Hall Constitution which provides that the judiciary has jurisdiction in all matters arising as to whether a resolution was made or a person or authority has acted in excess of the powers conferred on it/him/her by this constitution or any other provisions made thereunder. In effect, parliament, being an authority is also bound by this
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provision since it is also subject to this Constitution. Moreover, in Judicial Review in Ghana[1977] VOL XIV NO.1 UGLJ 144), E.V.O Dankwa and Flinterman state: Judicial review in its most comprehensive sense includes the power of the Judiciary to invalidate legislation as unconstitutional and to control the legality of administrative action. My point therefore is that the judiciary can interfere with parliamentary actions but only after it has made its decisions. It may not interfere with parliamentary procedure but can question parliamentary decision. Accordingly, the matter before us seeks to invalidate decisions made at the sitting of Sarknesset since according to the plaintiff, it violated certain clear provisions in the Sarbah Hall Constitution (that is, article 13). It is my submission therefore that this court does have the jurisdiction to deal with such a matter. The issue agreed by both parties is whether or not there was a quorum. The determination of this matter would render the decisions made therefrom valid or otherwise. In my opinion the question of whether or not there was a quorum is a question of fact and this question is answered by looking closely at evidence adduced before court. The pieces of evidence include the documents and materials used at the meeting. Per Section 179 of the Evidence Decree, 1975 (NRCD 323), Evidence means testimony, writings, material objects, or things presented to the senses that are offered to prove the existence or non-existence of a fact. The court, under section 2(3) of NRCD 323 determines questions of fact. In order to aid this determination I consider the following factors: 1. Whether or not there was some law (Constitution, Statute, etc) stipulating the requirement for the formation of the quorum If yes, 2. Whether or not those requirements were adhered to and record taken to that effect

If such record was taken, 3. Whether or not the person seeking to challenge the formation of the quorum took reasonable steps in obtaining such records. With the first factor the court would find out whether there must be a justification of some sort warranting or requiring an act to be done. The laws of Ghana are not only substantive in nature but also procedural, giving some guidance to an event. Now, turning to the specific event of meeting and proceedings, there are rules governing how such meetings and proceedings should be conducted including the formation of a quorum for any Sarknesset meeting. It was stated in the erudite judgement of Ansah JSC in Labour Commission v. Crocodile Matchet (unreported) thus: It is observed that where the Legislature has in its wisdom provided in mandatory terms the numerical composition and designation of persons to form a quorum and also entrusted a specific function to it, then these provisions must necessarily be honoured in their observance strictly in other to give validity to whatever they were alleged to have done; furthermore any non-compliance will have the maximum debilitating effect on what they did: see Boyefio v NTHC Properties Ltd. [1996-97] SCGLR 531. Now in our context the JCR Constitution is the body which prescribed the requirement for the formation of a quorum before the start of a Sarknesset meeting. It states in article 13(1) thus: The quorum for a meeting of the Sarknesset shall be: a. The chairperson of Sarknesset or the Deputy. b. Three(3) JCR Executives c. At least one representative from each block. d. Two General Assembly members And so the first condition as to whether there was a law governing the proceeding can be answered in the affirmative. The second condition raised above is whether or not those requirements were adhered to and record taken to that effect. Now the judiciary does not have eyes to wander about places to
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ensure that procedures are followed and things are done the right way. It relies on the ordinary citizen and member of the society as its ears and eyes that is why provision is made in article 2 of the Sarbah Hall Constitution for any person to institute an action against persons whose acts and omissions contravene the constitution (also in (Joseph Sam v Attorney General [2000] SCGLR; NPP v. Attorney General (1996 - 97) SC GLR; Tuffuor v. Attorney - General[1980] GLR 637, CA sitting as SC). I must state however that this person must not be a mere busybody. He must have a claim supported by evidence. From submissions made by the Legal Advisor of the Hall, Sarknesset has a traditions one of which is the taking of records of attendance by the Secretary. This record could serve as proof as to whether the persons recorded met the requirement of a quorum. He further admitted that records were actually taken. The bench posed a simple question to the Counsel for the plaintiff as to whether they have evidence, viz the records taken by the secretary and the simple answer given was, No, my Lord. Now this leads us to the third condition as to whether the plaintiff took necessary steps to attain this record which could have served as evidence. To this condition the bench concurred in the negative. This was based on the adversarial nature of Common law practised in Ghana and the general position of law that He who alleges must prove. It is not the business of this court to go round looking for evidence to support the plaintiffs claim. He has the burden of proof to prove whichever claim he makes and must take necessary actions in that regard. The bench upon questions posed to Counsels for the plaintiff concluded that the plaintiff did not do what was required to substantiate his claim.

Now turning to the relief concerning interpretation, the plaintiff seeks to invoke the jurisdiction of this court under article 14 2a)i) of the Sarbah Hall Constitution. The judiciary has over the years so adeptly dealt with the vexed question of the proper approach to construing constitutions.
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The plaintiff in the current action seeks an interpretation of the words where necessary as stated in article 12 (1) of the Sarbah Hall Constitution. The whole article states thus:

1. All members of the JCR shall have the right to witness, be accorded the privileges to participate in Sarknesset deliberations where necessary.

Generally in interpretation in our Ghanaian Courts, we have been more adept with the two main approaches, ie literal and purposive approaches to interpretation. As was observed in the case of Republic v High Court (Fast Track Division) Accra; Ex Parte Commission On Human Rights And Administrative Justice (Richard Anane Interested Party) [2007-2008] SCGLR 213, at 247, the literalist or strict approach, that is a mechanical approach that does not look to the purpose of the contested provisions as a legitimate part of the exercise.. Then again more recently Abban JSC (as he then was) in Ghana Bar Association v Attorney-General(1995 - 1996) 1 GLR said that in construing any statute, for that matter any of the provisions of the Constitution, the duty of the court is to stick to the ordinary meaning of the actual words used.

This court would like to use the purposive approach in reaching a meaningful interpretation to the above provision. It appears to me that generally, in constitutional interpretation, when we speak of the purposive approach, we are referring to what is known as the purposive- strained or objective-based purposive approach. The purposive and literal approach is in proper context commendable, it is the purely mechanical or literal, that pays no heed to the legislative purpose or intent that has no place in this area of the law. On this important legal point, I will make reference to the observations of Professor Ocran JSC in Omaboe 111 v Attorney General & The Lands Commission [2005-2006] SCGLR579 and Dr. Date- Bah JSC in Danso-

Acheampong v Attorney General SCGLR [2009] 353. Professor Ocran JSC expressed himself thus:

We hereby recognise as we did in the Asare case, the utility of the purposive approach to the interpretation of the constitution, but with the clear understanding that it does not rule out the legitimacy of other techniques of interpretation in appropriate circumstances. While Dr. Date-Bah JSC observed: These days, a literal approach to statutory and constitutional interpretation is not recommended. Whilst a literal interpretation of a particular provision may, in its context, be the right one a literal approach is always a flawed one, since even common sense suggests that a plain meaning interpretation of an enactment needs to be checked against the purpose of the enactment, if such can be ascertained. A literal approach is one that ignores the purpose of the provision and relies exclusively on the alleged plain meaning of the enactment in question. Sowah JSC (as he then was) may be credited with having laid the foundation for this approach, which he described as the broad, generous and liberal spirit approach. His famous dicta was stated in the well-known case of Tuffuor v Attorney General [1980] GLR 637, at pages 647648. The importance of purposively reading a constitution, which is considered as a document sui generis, as a whole, not piecemeal, for the reasons set out by Acquah JSC, as he then was, in the National Media Commission v Attorney- General [2000]SCGLR 1, cannot be over emphasised. He observed:

Accordingly, in interpreting the constitution, 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 rational, internally consistent framework. And because the framework has a purpose, the parts are also to work dynamically, each working towards accomplishing the intended goal.

What then is the import of the article 12(1) of the Sarbah Hall Constitution? Does a clear picture of the intent of the framers emerge therefrom? As a first step, I would state that a member of Sarknesset should be allowed to also participate as and when the need arises. It must be noted that Sarknesset is the representative body of the hall and it is the body that makes decisions which bind all persons therein. Due to the binding nature of their decisions, it would be inconceivable not to allow the members of the hall, although mere observers to make such contributions to these decisions. I believe the intent of the framers is to ensure an all - inclusive administration and more importantly to ensure that the members comply with whatever decision that is made since they themselves make contributions in making such decisions. Now as to whether the president can be barred from going to parliament, I would say that the President does not rise one fine morning and just decide to enter parliament for no reason. He goes there for a reason which may be to give the state of the nation address, in this case the state of the hall address and so he should be permitted to perform his duty and not be barred. More so, he, like any other person, is also first and foremost a member of the hall and therefore entitled to such privilege as participating in the proceeding of sarknesset. The only caveat, I must add is that he does not participate in the voting process. The provision therefore being sought interpretation therefore means where the need arises and such need may arise when any member wants to make any submission or the President needs to perform a function. The court hereby grants the relief of the plaintiff for interpretation but will however cancel out the main claim sought for lack of evidence. Plaintiff cannot come to court and make baseless claims as open sesame or legal abracadabra and expect the court to rule in his favour. Claims need to be substantiated with evidence. Application dismissed in part.