Report on Supreme Court’s Ruling: EDUSEI v. ATTORNEY GENERAL and others 

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The Supreme Court of Ghana
The Supreme Court of Ghana

The applicant, a Ghanaian citizen, had his passport withdrawn following investigations into some of his activities by the security agencies. Thereafter the applicant was sent off to the United States in exchange for another person who had been arrested in the United States on espionage charges of spying for the Government of Ghana. After staying for some time in the United States the applicant, who sought to return to Ghana, instructed his solicitors in Ghana to request from the Foreign Ministry and the Bureau of National Investigation for the restoration of his old passport.

After waiting for some time without any response from the said authorities, he filed suit invoking the original jurisdiction of the Supreme Court for a declaration, inter alia, that: (i) sections 5(1), 5(2)(a), (b) (ii) and (ii), and 17(e) of the Passport and Travel Certificates Decree, 1967 (NLCD 155) were inconsistent with and in contravention of the letter and spirit of certain provisions of the Constitution, 1992 and were consequently null and void; (ii) as a citizen of Ghana by birth the applicant had a constitutional right to enter and leave Ghana and a fortiori to a passport to enable him execute and enjoy that right and (iii) an order directing the Minister of Foreign Affairs and the Director of the Bureau of National Investigations to return to the applicant his old passport to enable him apply for a new passport.

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At the hearing, the respondents inter alia raised an objection regarding the jurisdiction of the court on the ground that the applicant’s case was not a proper case in which the original jurisdiction of the Supreme Court under article 130(1)(a) of the Constitution, 1992 could be invoked; and submitted that the applicant had clothed a human rights enforcement issue as a request for interpretation of the Constitution and that the proper forum for such an action was the High Court as provided under article 33 of the Constitution, 1992.

In its judgment delivered on 13 February 1996, the Supreme Court by a majority of three to two dismissed the applicant’s action on the ground that his claim was in essence and substance a claim for the enforcement of his fundamental human rights and therefore the Supreme Court had no concurrent original jurisdiction with the High Court.

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Aggrieved by this decision, the applicant filed the instant application for review on the ground that the dismissal of his
suit on jurisdictional grounds was a fundamental error which constituted an exceptional circumstance; and that in the interest of justice the decision ought to be reversed. In support of his application, counsel for the applicant submitted that the relief sought by the applicant was a declaration that certain sections of the NLCD 155 were inconsistent with or in contravention of certain provisions of the Constitution, 1992 and therefore null and void. Hence, counsel maintained that since it was only the Supreme Court which had the authority under the Constitution, 1992 to make such a declaration, it was wrongful for the court to have declined jurisdiction.

Held, dismissing the application for review (Charles Hayfron-Benjamin JSC dissenting): although the applicant couched his reliefs as seeking the interpretation of certain provisions of the Constitution, 1992 vis-à-vis sections of the Passport and Travel Certificate Decree, 1967 (NLCD 155), it was clear from, inter alia, the reliefs sought in his writ as well as the written submissions in the statement of case that he was in substance and effect seeking the enforcement of his fundamental rights under the Constitution, 1992, and not the interpretation of the Constitution, 1992 as to vest the Supreme Court with appropriate jurisdiction under article 130(1)(a) of the Constitution.

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However, if one read together articles 2(1), 33, 130(1) and 140(2) of the Constitution, the in escapable conclusion was that the enforcement jurisdiction of the Supreme Court did not include the enforcement of the provisions of the Constitution relating to the liberties of the individual as a court of first instance; that jurisdiction had been expressly reposed on the High Court under article 33(1) of the Constitution, 1992. Specifically, the contention that the Supreme Court had concurrent jurisdiction with the High Court in the enforcement of fundamental human rights and freedoms was clearly inconsistent with the exclusiveness of the original jurisdiction vested in the High Court in the main part of article 130(1) of the Constitution, 1992 and was indeed a failure to appreciate the “subject to” part of article 130(1) of the Constitution, 1992 and the meaning and effect of the word “exclusive” in the main part of the same article Ditcher v Denison (1857) 11 Moo PC 324.

Below is the full ruling.

SOURCE: Coverghana.com.gh

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