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GHANA LAW FINDER

HOME 1970 GHANA LAW REPORT

55 SALLAH v ATTORNEY-GENERAL

SC. 20. 4. 70.

(Apaloo, Siriboe, Sowah, Anin and Archer JJ.A.)

Constitutional law - President – Action against – Validity and propriety of judicial proceedings against
President – Meaning of “Government” – Constitution, 1969, article 36(6 ), (7) and (8).

Constitutional law – Military government – Proclamation – Effect – Whether the effect of the overthrow of
civil government by military government and the promulgation of a proclamation for a military government is
to abrogate all existing laws – Constitution ,1960, articles 40-46, 51,52 .

Constitutional law – Transitional provisions – Dismissal of 568 officers – Category of officers contemplated
by s.9 (1) which the Government could lawfully terminate by 22 February 1970 - Meaning of “established” –
Constitution, 1969, Sched I s. 9(1).

Statutes – Interpretation – Unambiguous words – Whether to be interpreted in their natural dictionary sense
– Category of offices contemplated by section 9(1) which the Government could lawfully have terminated
by 22 February 1970 – Meaning of “established” – Constitution, 1969 Sched. 1, s. 9(1).

The plaintiff was, on 16 October 1967, appointed a manager of the G.N.T.C., a post which had been held
by one Nunoo since 1961 and who had left the G.N.T.C. on the ground of ill-health. The plaintiff held that
appointment until it was terminated on 21 February 1970 by the Presidential Commission acting in
pursuance of the 1969 Constitution, Sched. I (Transitional Provisions), s. 9(1). By his statement of claim
he sought a declaration that on a true and proper interpretation of the said section 9(1) the Government
was not entitled to terminate his appointment for the reason that his office fell outside the category of
public offices to which section 9(1) applied. Neither party disputed the fact that the G.N.T.C. was originally
established by the Instrument of Incorporation E.I. 203 of 1961 in exercise of he powers conferred on the
then President by the Statutory Corporations Act, 1961 (Act 41) which was repealed and replaced by the
Statutory Corporations Act, 1964 (Act 232). Under Act 232 was passed L.I. 395 which in turn continued the
existence of the G.N.T.C. Counsel for the respondent argued that to determine the offices contemplated
by section 9(1) it was necessary to analyse the legal consequences flowing from the 1966 revolution which
overthrew the Government of the First Republic and the Proclamation of the National Liberation Council
(N.L.C.). After referring to Kelsen’s General Theory of Law and State counsel argued further that the 1966
revolution repudiated the 1960 Constitution and everything that flowed from it: But for the N.L.C
Proclamation, the 1960 Constitution, laws and public officers in Ghana would have ceased to exist legally
after the 1966 revolution. He contended also that the N.L.C. did not derive its authority from the 1960
Constitution but established a new legal order. All offices deriving their sources from laws which historically
existed before the N.L.C. were juristically established by the N.L.C. by virtue of the proclamation. He
submitted that “established” should be given a technical meaning and “any offices established” in section
9(1) should be interpreted to mean “any office which derives its legal validity from the N.L.C.” He
submitted further that the plaintiff’s office was a new one created for him and differed from that held by
Nunoo. Counsel for the plaintiff however referred to the use of “establish” in local statutes (N.L.C. Decrees
and the Constitution, 1969) and contended that that word should be given its ordinary dictionary meaning
as defined in the Oxford Dictionary. He submitted that establishing a new legal order was not the same as
establishing new offices and further that there was a distinction between “establish” and “continue in
being”. He also contended that the plaintiff’s post was established by E.I. 203. Before the substantive suit
was heard the defendants, through the Solicitor-General and later the Attorney-General, raised a
preliminary objection to the effect that the plaintiff‘s writ did not disclose any cause of action on the ground
that since the plaintiff’s dismissal letter was signed by the Secretary to the Presidential Commission, the
proper defendants should have been the Presidential Commission and not the Government. Relying on
article 36(6), (7), they argued further that the actions of the President (now the Presidential Commission)
were immune from question in any court while he remained in office. The court overruled the objection but
embodied its reasons therefor in the substantive judgment.
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[On the day of judgment, however, all the judges, save Siriboe J.A. appeared and read in open court
their individual judgments. On the court’s view of Siriboe J.A.’s withdrawal from the panel, see below].

Held, Siriboe and Anin JJ.A. dissenting: (1) article 36(6) merely provided a procedural not
substantive, immunity to the President. It means that the official acts of the President can be
challenged but he cannot be made a defendant in judicial proceedings or be made personally liable
for the result of the proceedings. By virtue of article 36(7) and (8) the President’s personal civil and
criminal liability is suspended while he holds the office of President but the liability can be
prosecuted within three years after ceasing to hold office.

OBITER: Per Archer J.A.: “But article 36(6) has two exceptions. Steps may be taken as provided in
article 47 for the removal of the President from office for any of the reasons stated in article 47.
Secondly, the President is subject to the prerogative writs. I must confess that I am not too happy
about the use of the expression ‘prerogative writs’ in a Republican Constitution... As the President
does not discharge any judicial or quasi-judicial functions as an inferior tribunal, the orders of
certiorari and prohibition cannot lie against him. But the order of mandamus will lie against him
because he has public duties to perform and their performance can be compelled under article 47
even though I can envisage that such a compulsion may not be necessary as the Council of State is
there ‘to aid and counsel him’ to behave himself. The President is therefore not above the
constitution but he is subject to it.”
(2) The effect of the N.L.C. Proclamation was that it announced to the world that the then
Government of the First Republic had been overthrown by the N.L.C. It further disclosed the
intentions of the N.L.C. by making it clear that it reserved the right to alter all existing laws by
Decree. The Proclamation did not repeal, revoke or abrogate the 1960 Constitution; it merely
suspended its operation. The 1960 Constitution itself recognized the existence of certain laws, such
as common law and customary law and certain enactments existing at the time of the coming into
force of the Constitution, which did not derive authority or validity from it. To recognize the existence
of a state of affairs is a far cry from giving that state of affairs its validity.

Per Anin J.A dissenting: The issues raised in this case and the categories of offices contemplated
by section 9(1) could best be discovered by examining the legal consequences of the February
1966 coup d’etat and the N.L.C Proclamation. Judicial notice must be taken of the notorious fact that
on 24 February 1966 President Nkrumah’s Government was overthrown and in its place was formed
the N.L.C which proceeded to suspend the 1960 Constitution and vested in itself the executive,
legislative and judicial powers. The legal effect of the Proclamation, para. 2(2) is that with the
suspension of the 1960 Constitution in 1966, all public offices and laws of Ghana as defined in
article 40 to 46, 51 and 52 of the 1960 Constitution ceased to exist. The N.L.C. then proceeded to
establish or create, by a process of ‘reception’ and ad hoc Decrees, a new legal order, public
services and offices. Notwithstanding the fact that public offices which were in existence prior to the
coup bore practically the same names before as after the coup, the true legal position is that these
public offices and services were the creation of the N.L.C. and they existed by virtue of, and in
pursuance of the Proclamation and in some cases in pursuance of subsequent N.L.C. Decrees.
Awoonor-Williams v Gbedemah (1970) C.C. 18, SC. applied; Dictum of Denning L.J, in Seaford
Court Estates Ltd. v Asher [1949] 2 K.B. 481 at p. 498 approved.
(3) Where the words of a statute are themselves precise and unambiguous, they must be
expounded in their ordinary and natural sense. The operative word in section 9(1), “establish,”
should be interpreted in its ordinary, dictionary sense to mean to found, create or bring into being.
Since the post to which the plaintiff was appointed was created by an executive instrument in 1961.
(E.I. 203) and the existence of such post continued in a subsequent instrument (L.I. 395) the plaintiff
fell outside the purview of section 9(1). Section 9(1) must be limited to persons who held or were
acting in any office set up by either the Proclamation, a Decree or under the authority of the N.L.C.
Dictum of Tindall C.J. in Waburton v Loveland (1832) 2 D. & CI. (H.L.) 480 approved and applied.
Per Anin J.A. dissenting: since the 1966 revolution and the Proclamation brought the old legal
order to an end recreated a new legal order, new laws, new public services and offices, all persons
holding public offices under the N.L.C on 22 August 1969 were caught by section 9(1). As an officer
of the G.C.T.C., a statutory corporation under the N.L.C. the plaintiff fell within the purview of section
9(1) and as such the Government was empowered to terminate his appointment.
Judgment for the plaintiff.

Counsel:

Joe Riendorf (Quashie-Idun with him) for the plaintiff.

EXTRACTS FROM JUDGMENT:

Per Apaloo J.A: “That the plaintiff is entitled to invoke article 106 of the Constitution and seek an
interpretation of the provisions which were alleged to put an end to his employment is not in dispute. The
real problem is: Against whom will such action lie? Article 36(6) disables the plaintiff from proceeding
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against the entity which ex facie, committed the act of which he complains. Is there any entity against
which he can lawfully proceed? To answer this question, one has to look at some of the provisions of
article 37 and determine the meaning of the word ‘Government’ as used in the Constitution… Article 172
says: ‘Government means any authority by which the executive authority of Ghana is duly exercised.’ It
follows from this that unless that executive authority christened ‘Government,’ is constitutionally immune
from legal proceedings, it must answer for the act complained of in court. Is the Government like the
President, immune from legal proceedings? That question is answered in language that admits of no
ambiguity by article 170(1) of the Constitution… I think the Government has been properly sued for the act
complained of…

…we are entitled to assume that the draftsman of section 9(1) is fully conversant with the judicial
principles of statutory interpretation. That being so, the question is: What is the meaning of the word
‘establish’ in the context of section 9(1)? Article 172 does not define it and our natural recourse must be to
the dictionary. The Concise Oxford Dictionary gives it the following meaning: (a) Set up on permanent
basis; (b) Settle (person or oneself in office); (c) Secure permanent acceptance for; (d) place beyond
dispute. It seems that in the context of section 9(1), ‘establish’ means to set up or create.

Accordingly, it seems that any person who held or was acting in any office set up either by the
Proclamation or a Decree of the National Liberation Council or under the authority of that Council fell fairly
and squarely within the ambit of section 9(1). …The post to which the plaintiff was appointed was created
by executive instrument in November 1961 by the President and such post was continued in the
subsequent instrument of 1965. It would seem, prima facie, and on a natural construction of the words,
that the plaintiff fell outside the purview of section 9(1)

…As there is a difference of opinion in this court on the correct interpretation of section 9(1), I think I
ought to examine briefly the grounds on which, as understand it, some of my brothers take a different
view. I believe it is said that we must resort to such external aids as section 19 of the interpretation Act,
1960 (CA. 4) provides for the purpose of construing this section and these aids justly, what l would call, the
unnatural interpretation of the word ‘establish’. But to do this would seem to me to engage in ex post facto
rationalization, because we have to proceed on the premise that the word ‘establish’ was used in an
unnatural sense and then find reasons to support it. For my part, I do not think such a course justified…

STATEMENT BY PRESIDENT AFTER JUDGMENT

We have considered the position which resulted from the fact that our brother Siriboe announced
himself as withdrawing from this case. He declined an invitation to sit with us to deliver judgment today.

But he took part in this case to its conclusion and also in the judgment conference held on Tuesday
March 24 between 9.35 – 12.25 p.m. when a decision was reached. He dissented from the decision of the
majority and agreed to articulate his dissent in a judgment to be delivered on April 13.

He says he has withdrawn. We take this to mean that the reason for his dissent is not ready and if it
is, it will be made part of the official record.

The Acting Chief Justice informs us that our brother Siriboe has not been excused from this case.

(sgd.) F.K. Apaloo

PRESIDENT.”

Per Archer J.A: “…It seems to me that when Kelsen speaks of his Norms and Basic Norm, the
reader must appreciate what he means... His ‘norm’ is not the equivalent of the English word ‘standard’ but
according to him norm is referable to the concept of law as an ‘ought’. The Basic Norm he describes in
German as ‘Grundnorm,’ that is the highest norm from which all norms derive their validity. In countries
with written Constitutions, Kelsen will identify the written Constitution as the Basic Norm. Where there is
no written Constitution, it is not easy to say where the Basic Norm is. He advocates that the basic norm
should be regarded as an ‘Initial Hypothesis’ which in a latter comment he regards as a ‘Fiction.’ In
Ghana, the courts of law do not rely on fictions in constructing statutes nor do they apply fictions in
resolving disputes between parties. Suppose we apply this juristic reasoning to the present case, it follows
that when the Proclamation suspended the 1960 Constitution, the old Basic Norm disappeared. What was
the new Basic Norm? Was it the Proclamation? It was not because it was not a Constitution. How then do
we trace the Basic Norm? Is the Basic Norm the people of Ghana who supported the Armed Forces and
the Police or is the Basic Norm to be detected from the armored cars at Burma Camp? ... Kelsen is of the
view that the basic norm cannot be a Divine God but it seems that in Ghana, under our new Constitution,
we have made it quite clear in the Preamble, that the constitution has been enacted in the name if Almighty
God from whom all authority is derived. I think Kelsen’s doctrine is opposed to what the people of Ghana
have enacted. We should not also forget that Kelsen originally wrote his ‘Pure Theory of Law’ with civil law
countries in mind and on the continent of Europe where ideology was in the ascendancy and monarchies
had been replaced permanently by Republics. What happened here in Ghana on 24 February 1966 was
just the beginning of a revolution which culminated in the promulgation of the 1969 Constitution which
annulled or revoked the 1960 Constitution. I do not therefore think that Kelsen’s General Theory of Law
and State can help us in ascertaining whether or not the Proclamation of 24 February 1966 was our new
‘Grundnorm’ for laws existing before that date…

The question whether or not the Proclamation created a new legal order, I am afraid, can only be
answered first of all by finding out what we mean by ‘legal order’? Is it the legal system of the courts, is it
the administrative machinery or is it the political organization? The answer depends therefore on what one

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means by legal order. Legal order I understand to mean the Constitution of a State. The proclamation
cannot be classified as the new constitution of Ghana on 24 February 1966.

Constitutions, written or unwritten, have one significant quality. That quality is the element of
predictability. On the contrary, the Proclamation had the too obvious quality of unpredictability because
there were no limits to the executive or legislative powers of the N.L.C. Indeed, the N.L.C. had full power
and authority to amend, revoke or suspend the Proclamation itself or any provision thereof. Here again we
are back to Kelsen – the structural analysis of the law means ‘Norm to norm.’ If the proclamation is the
basic Norm, then the N.L.C was a norm which derived its validity from the proclamation, the Basic Norm.
But the continued existence of the proclamation itself was made subject to the full power of the N.L.C to
amend, revoke or suspend it. So in effect the Proclamation itself was dependant on the wishes of the
N.L.C., the norm it had created. Was the Proclamation or the N.L.C the Basic Norm? The wording of the
Proclamation itself makes Kelsen’s theory inapplicable. If we were to rely on Kelsen’s ‘Grundnorm’ we
shall, like the Greek Sisyphus in Taratarus, be condemned to push a heavy stone up to the summit of a hill
just to roll down to the bottom of the hill for us to push it up again…

…My attention has also been drawn to N.L.C. Decree No. 380, para.2 (1). …Are the words used in
section 9(1) the same as those in Decree No. 380 just stated. They are not. In my view it is just an
attempted resume or précis of section 9(1) and its three categories with the omission of the most important
word ‘established.’ I shall definitely award very low marks to an examinee who wrote such a précis of
section 9(1). I think what matters in this exercise of interpretation is what the Constituent Assembly
ultimately promulgated. In any case, N.L.C.D. No. 380 merely asked the Assembly to reconsider the
matter without indicating to the assembly the lines on which the matter should be reconsidered. I do not
therefore think that N.L.C.D No. 380 is of assistance…

…Another argument dealt with by the defendants was that section 9(1) dismissed all public servants
or gave them notice to the effect that after six months from 22 August 1969 their services would no longer
be required. On this submission, the plaintiff has counter-argued that such an interpretation would be
inconsistent with article 138 of the Constitution which protects public servants from dismissal or removal
without just cause. Section 9(1) itself preserves the supremacy of the Constitution. Twice in that section
we have the expressions ‘save as otherwise provided in this constitution’ and ‘as far as is consistent with
the provisions of this constitution.’ On the other hand article 176 provides:

‘The transitional provisions specified in the first schedule to this constitution shall have effect
notwithstanding anything to the contrary contained in this constitution.’

It has therefore been suggested that the requirement in section 9(1) for consistency with the provisions of
the Constitution and, the overriding provision in article 176 cancel each other. I do not think so and I
maintain that they do not cancel each other but stand as independent pillars serving assigned purposes.
…In me view, article 176 deals with the operation of the Transitional Provisions and not with their
constructions. It seems to me that, first of all, section 9(1) must be construed bearing in mind the
requirement of consistency with other provisions of the Constitution as to the meaning of the section. Once
the meaning of the section has been ascertained in a manner consistent with the Constitution, then that
meaning operates by virtue of article 176. In other words, the class of persons affected must be
ascertained so as not to conflict with the Constitution… However article 138 of the new constitution has
provided such a protection [for the security of tenure of office of public servants] and it seems to me that
before a public servant is dismissed or removed, there must be just cause for such removal or dismissal.
Notwithstanding this constitutional guarantee, the defendants have argued that all public servants were
dismissed by the Constitution or their appointments were terminated by the constitution after six months
notice.

It sounds strange that the whole gallant army of soldiers and police who brought about the
revolution should all be dismissed by the very Constitution which came into force as a result of their
prowess. It would mean that all doctors, nurses, locomotive drivers, firemen, teachers, sanitary workers
and every employee in the public service were all dismissed. I think the suggestion that the Constitution
dismissed every public servant sounds incongruous and if indeed the Constituent Assembly intended such
an incongruity then it should have said so in very express terms. The interpretation being put on section
9(1) by the defendants in my view will conflict with article 138…

…The constitution of Ghana is a conglomeration of English words. The lives of citizens depend on
these words. Rights and obligations, qualifications and disqualifications, privileges and disabilities depend
on these words. Unless these words are specially defined in the constitution, then the ordinary meaning of
these words as popularly and generally understood by literate persons should prevail. No system of
jurisprudence, however popular, be it analytical positivism, the Pure Theory, or the Historical, can assist
the courts in this country in their interpretation of the Constitution. All the famous jurists we know were
influenced in their theories by their own respective observations and experience in the countries in which
they lived and wrote their theories. We should not be harmstrung by writings of these jurists although we
admire their learning and their originality in thinking, for Constitutio est tutissima cassis sub clypeo
constitutionis nemo decipitur (The constitution is the safest helmet; under the shield of the Constitution, no
one is deceived). Moreover constitutio est exercitus judicum tutissimus ductor (The constitution is the
safest leader of the army of judges – not esoteric legal philosophies).

To be established or not to be established by the Proclamation or the N.L.C, that is the question. I
think the plaintiff succeeds in this action and he is therefore entitled to the declaration he seeks.”

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Per Anin J.A.: “Prior to the events of 24 February 1966 the fundamental law of the land was the
1960 constitution. It was this constitution which established the public services including the Judicial
Service as they stood on the eve of 24 February 1966. [His lordship then referred to articles 51, 52, 40 to
46 of the 1960 Constitution and the services or offices created and continued:]…It may be mentioned in
this connection that the G.N.T.C. was first established by E.I. 203 of 15 November 1961 and that this E.I.
203 was made pursuant to powers conferred on the President by Act 41, s. 1. Both this E.I. 203 and Act 41
and L.I 395 (which established staff posts for G.N.T.C.) clearly fall into category (b) of article 40 of the
1960 Constitution namely, ‘enactments made by or under the authority of the Parliament established by the
Constitution.’ …It will be seen from the [Preamble to the Proclamation] that the N.L.C. derived its support,
and based its authority and legitimacy on the people of Ghana, and not on the 1960 Constitution. The
N.L.C’s declared purpose was to assume the reins of Government and to make laws for ‘the proper
administration of the country’ and ‘for the maintenance of law and order therein.’ In short, the N.L.C.
established a new legal order, buttressed not upon the suspended 1960 constitution, but upon the support
of the people of Ghana, whose interests it strove to advance through beneficent Decrees… In my opinion,
the true legal effect of the revolutionary provisions of paragraph 2(2) of the Proclamation is that, with the
suspension of the 1960 Constitution, all public offices and laws of Ghana as defined in articles 40 to 46, 51
and 52 of the said 1960 Constitution yielded place to a new legal order under an omnipotent, eight-
member, military-cum-police sovereign - a veritable octopus whose tentacles covered the whole gamut of
executive, legislative, and judicial powers of the state (vide paragraph 7 of the proclamation)…

…I hold the view that ‘any office’ in the third line means ‘any office in the public service,’ and does
not include any office in the private sector… What then is the first category of offices mentioned in section
9(1) (a), to wit, ‘any office established by or in pursuance of the Proclamation’? From my earlier analysis of
the Proclamation, I construe these words to cover

(i) any office in the public services established or recreated by the proclamation; and
(ii) any office in the public service deriving its legal validity and continued existence from the
Proclamation.

More specifically, I hold that the following offices in the public service fall within the ambit of section 9(1)
(a):

(i) all judges and all holders of offices in the judicial service immediately before 24
February 1966 and whose tenure of office was not abolished by the subsequent
Decrees of the N.L.C.; together with all persons appointed into judicial service under
the N.L.C. (vide paragraph 2(3) of the Proclamation);
(ii) all persons holding any office in the public services of Ghana on the eve 24
February 1966; and, in addition, all holders of offices in the public services whose
offices were either created or preserved of redesignated by the N.L.C. by any
enactment in force after 24 February 1966 and by virtue of the Proclamation (vide
paragraph 5 of the Proclamation); an obvious example is the civil service;
(iii) all persons holding other offices in the public services established by any enactment
in force in Ghana on the eve of 24 February 1966 and not subsequently repealed by
the N.L.C. Included in this category are persons holding offices in statutory
corporations, e.g. the Ghana National Trading Corporation, or other public authority by
virtue of these enactments (vide paragraph 3(2) of the Proclamation). Another
important example is the police service.

The second category of offices contained in section 9(1)(b) is, in my opinion, easier to identify. It
comprises all offices established, created or set up in pursuance of a Decree of the National Liberation
Council… Examples are legion. [His lordship then catalogued the following Decrees of the N.L.C as
examples: 16, 17, 25, 82, 125, 207, 224, 226, 254, 282, 330, 368, 383, 385]... The third and final category
comprise offices established by or under the authority of the N.L.C. (vide section 9(1) (c). This subsection
refers neither to the Proclamation nor to an N.L.C Decree, but simply to the ‘authority’ of the N.L.C.
Obviously, it was intended to comprehend all public offices which were created neither by the Proclamation
nor by any of the 406 Decrees passed by the N.L.C. Having assumed full executive and administrative
powers, inter alia, the N.L.C was competent, and did in fact create offices by executive directives. In my
opinion, section 9(1) (c) is an omnibus provision intended to cover all public offices not previously covered
by section 9(1) (a) and (b); and it must have been added ex abundantia cautela, to make the list truly
comprehensive and all embracing…

…It will be recalled that on 18 August 1969 the N.L.C passed Decree No. 380 and invited the
Constituent Assembly to reconsider some specified provisions of the draft Constitution. Among these
matters for reconsideration were the provisions of section 9(1) of the Transitional Provisions, N.L.C.D 380,
para. 2(1)(a) requested the Constituent Assembly to reconsider the provisions of section 9 of the
Transitional Provisions appearing in the First Schedule to the draft Constitution which was approved by the
Constituent Assembly on 15 August 1969, which provides that any person holding a public office under the
National Liberation Council shall after the constitution comes into force, continue to hold that office only for
six months unless reappointed.’ A comparison of the wording of section 9 of the Transitional Provisions
appearing in the First Schedule to the draft Constitution with the words of the same section in the enacted
constitution shows on textual difference between the two versions. Under section 9(1) of the Interpretation
Act (C.A. 4), Bills and papers laid before the National Assembly in reference to an enactment can be
resorted to as an aid to the construction of the enactment. I therefore hold that the above quoted N.L.C.D.
380, para. 2(1) (a) which was laid before the Constituent Assembly prior to the enactment of final
constitution puts the meaning of section 9(1) of the Transitional Provisions beyond doubt.
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Learned counsel for the plaintiff urged us strongly to confine the offices mentioned in section 9(1)
solely to N.L.C. appointees and not to holders of offices in existence before the coup. I am afraid this
submission is unacceptable to me…Section 9(1) undoubtedly confers the power of terminating certain
appointments in the public service to the first Government of the Second Republic by the Constituent
Assembly to prune the public services. It is in the nature of a political power. Granted the need for it - and
I must confess non politicians may well doubt the wisdom of such a power – it is hardly just or reasonable
or equitable to confine its operation to only a few ill-defined branches of the public service… In the second
place, it can hardly be contended with any justification that persons holding offices established before the
overthrow of the Nkrumah regime are ipso facto more efficient, honest or forward-looking than their
counterparts first appointed to their offices by that band of devoted and well-meaning patriots – the
National Liberation Council.

…Mr. Reindorf also drew attention to isolated passages in section 9)1) which seemed to make the
operation of the six-month rule dependent on the main Constitution; and submitted that section 9(1) must
be read subject to article 138 which vouchsafes to all public officers immunity from arbitrary dismissals. It
is true that section 9(1) contains such phrases of limitation as ‘save as otherwise provided in this
Constitution,’ and ‘as far is consistent with the provisions of this Constitution’; but it must be borne in mind
that the main Constitution contains the important article 176 which clearly exempts section 9(1) and other
provisions contained in the First Schedule (i.e. sections 1 to 15 inclusive of the Transitional Provisions)
from the operation of contrary rules and articles in the main Constitution…I would have thought that this
article176 should be held to override any inconsistent rules in the Transitional Provisions, which deal with
matters of a temporary or fleeting nature. In fact, article 177 ensures that in the next reprinting of the
Constitution within five years, the whole of the Transitional Provisions should disappear from the printed
constitution. The reason is clear: the Transitional Provisions would by then have become effete and a
spent force. Be that as it may, I hold that the reference to the Constitution in section 9(1) are cancelled out
by the clear, unambiguous provisions of article 176. As in the case of ‘an estoppel against estoppel,’ the
matter is put at large; and, in my opinion, effect ought to be given to section 9(1) of the transitional
provisions without reference to any contrary articles in the Constitution… Since article 176 of the
constitution enacts that section 9(1) of the Transitional Provisions ‘shall have effect notwithstanding
anything to the contrary in the Constitution,’ then neither article 138 nor any other article of the Constitution
can operate in ouster of the jurisdiction and powers clearly conferred on the Government as appointing
authority by section 9(1). In my judgment, the plaintiff’s action fails.

Per Sowah J.A: “The Constitution [article 36] seeks to maintain that awe, dignity and majesty which
surrounds the office [of the President] and to seek to insulate it as far as possible from the humdrum of
legal processes and even from the arena of political life. In him is personified the Government of Ghana.
When his reign is over then he suffers personally all the legal consequences of his personal acts while in
office. Though the Presidency cannot be inducted into the legal arena, the Government of Ghana can be
and is answerable for the lawful performance of the executive powers vested in the President. In this
instance it was in furtherance of a constitutional duty that the letter complained of was written…

…Though much of the testimony led by the parties appears irrelevant, there were one or two pieces
of evidence relating to the incorporation of the G.N.T.C and the office of a manager which are of some
significance. In passing, it must be observed that it is singularly unfortunate that the defendant did not take
the opportunity to deflate plaintiff’s boast of being efficient, honest and ‘forward-looking’ and to bring home
to him some of his defaults for which he had been condemned by his dismissal. It would at least provide
some justification for the action taken. The only reasonable inference is that one of the considerations for
his dismissal was his refusal to put on sale those pamphlets. If this is so, it is a clear violation of the spirit
of the Constitution. But the Attorney-General might well have taken the view that it was not necessary
since, according to him, the plaintiff was dismissed by the Constitution.

It is difficult to conjecture how a Constitution can of its own motion take such action. A Constitution
like a limited liability company may have its own legal personality but the sinews of life with which it is
endowed are injected into it by human agency. A limited liability company acts through its directors and the
persons to whom authority is delegated; in like manner, this Constitution is implemented by the various
human agencies to whom various powers are entrusted. Of course, the plaintiff received the letter, the
subject-matter of the compliant, at the direction of the Presidential Commission in purported performance
of its duties under the constitution…”

EDITORIAL NOTE:

This case was heard on 16, 17 and 18 March when the court adjourned to advise itself on its judgment.
Before judgment was given, the Attorney-General filed a motion on notice raising judicial objection to the
further sitting and hearing of the case by Apaloo and Sowah JJ.A. For a digested report of this motion, see
(1970) C.C. 54, SC.

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