Kuenyehia and Others Vs Archer and Another

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KUENYEHIA AND OTHERS
vs.
ARCHER AND
[SUPREME COURT, ACCRA]
[1992 – 1993] 3 G B R 1260 – 1356 S C DATE: 25 MAY 1993
CORAM:
ADADE JSC, FRANCOIS JSC, AMUA-SEKYI JSC, AIKINS JSC, WIREDU JSC,
BAMFORD-ADDO JSC, HAYFRON-BENJAMIN JSC
ADADE JSC.
On 23/2/93, the Chief Justice, 1st defendant to this action, armed with a letter dated
22/2/93 from the President’s office, administered the oath of allegiance and the judicial
oath to justices of the Supreme Court. Three days later, on 26/2/93, justices of the Court
of Appeal were likewise sworn. The Ghana Bar Association complains that in either case
the swearing-in was not in conformity with the 1992 Constitution and was null and void.
The Association’s first step was to write to the Chief Justice exhibit SC2, dated 4/3/93,
explaining in some detail its position. Not receiving any satisfactory response, and
apparently teased by the report of a press conference given by the Judicial Secretary, the
2nd defendant, the Association mandated three of its principal officers to institute the
present action.
In their statement of case, as in the writ of summons filed on 18 March 1993, the three
officers describe themselves respectively as the National President, the National Vice-
President and the National Secretary of the Ghana Bar Association.
As was pointed out by the defendants in their statement of case, the plaintiffs do not need
to sue in a representative capacity since by article 2 of the constitution, any person “who
alleges that any act or omission of any person is inconsistent with, or is in contravention
of, a provision of the constitution may bring an action in the Supreme Court for a
declaration to that effect.” Nothing however turns on the capacity in which the plaintiffs
have sued, and the question need not be addressed further.
The 1st and 2nd defendants, although not described by office in the title of the action,
were sued in their official capacities as the Chief Justice and the Judicial Secretary
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respectively, of the Judicial Service. The 3rd defendant is the Attorney-General of the
Republic of Ghana, and was sued as such.
By their writ of summons, the plaintiffs seek two reliefs, viz.
“1. A declaration that by the combined effect of article 156(1),
(2) and (3), section 4 of the Transitional Provisions (the 1st Schedule) and the 2nd Schedule
of the 1992 Constitution of the Republic of Ghana, all justices of the Supreme Court, the
Court of Appeal and the High Court in Ghana holding office immediately before the coming
into force of the said constitution are obliged to take and subscribe the oath of allegiance
and the judicial oath set out in the 2nd Schedule to the said constitution before the
President of the Republic of Ghana only and not before any other person.
2. A declaration that the purported taking and subscribing of the oath of allegiance and the
judicial oath by justices of the Supreme Court and the Court of Appeal of Ghana on or
about 23rd and 26th February 1993, respectively, before the Chief Justice is null and void
and of no effect whatsoever.”
In the statement of case accompanying the writ of summons, the plaintiffs explain at some
length, as they did in exhibit SC2, why they consider the action of the Chief Justice
unconstitutional. They argue in particular, that by the combined effect of article 156 and
section 4 of the Transitional Provisions the Chief Justice has no capacity to administer the
oath of allegiance and the judicial oath to justices of the superior courts.
The defendants quite naturally reject this argument. They contend, in particular, per
paragraph 8 of their statement of defence thus:
“8. The defendants say further, or in the alternative, that the President properly designated
the 1st defendant, the Chief Justice, by letter Ref No OP/S 550 dated 22/2/93, a copy of
which is annexed hereto, to administer the oath of allegiance and the judicial oath to justices
of the superior courts whose appointments continued under the Transitional Provisions.”
That letter shows, at the extreme left hand corner, that it was received by the Office of the
Chief Justice on 23/2/93, the same day that the justices of the Supreme Court were sworn.
The letter reads as follows:
“ADMINSTRATION OF OATH OF OFFICE TO JUDGES OF THE SUPERIOR

COURTS - SECTION 4 (PART III) TRANSITIONAL PROVISIONS
In conformity with section 4, Part III (Transitional Provisions) of the constitution, the
President has designated the Chief Justice to swear-in the judges of the superior courts.
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(Sgd) ATO DADZIE
OFFICE OF THE PRESIDENT.
HIS LORDSHIP,
CHIEF JUSTICE,
SUPREME COURT BUILDINGS,
ACCRA.”
Thus for the first time the defendants gave an indication that the Chief Justice might have
acted, not on his own authority after all, as claimed in the original statement of defence
(see paragraphs 5, 6 and 8 of the statement of defence), but that he was authorised by the
President to act, as it were, as the President’s agent. In all the paragraphs of the statement
of defence referred to, the defendants emphasised that the Chief Justice acted “in his
capacity as the Chief Justice.” The new paragraph 9 introduced another capacity, viz. as
a person authorised by the President to act; in other words, as the agent of the President.
This is sought to be established by the letter of 22/2/93.
This letter, it is to be observed, merely conveys the information that the President has
done something. The defendants say he designated the Chief Justice to do an act and that
it was not a delegation of authority. The plaintiffs, on the other hand, say that what the
President did was a delegation of authority, and that it was in breach of the Constitution.
When a person is delegated to do an act, he is entrusted with a function to discharge.

Designating a person to do something is equally to ask him to do that thing; it is to entrust
him with a function to perform. To me the two terms mean the same thing and may be
used interchangeably. I see no point in quibbling over them, especially in a document
such as a constitution.
In this case the letter says the President has designated the Chief Justice to swear-in
judges. The designation, or delegation, might have been by a power of attorney or by a
deed under the presidential seal or by word of mouth. The letter is not any of these; it is
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not the document by which the designation or delegation was done. If delegation vel non,
and the manner in which it was done had been issues requiring proof in this case, it might
not have been easy to accept this letter as providing that proof.
Notice that paragraph 9 is pleaded as “further or in the alternative”, implying that it is

“additional to” or “alternative to” paragraph 8. In a case such as this, I wonder whether
a plea in this form is open to the defendants. If the act complained of were about to be
performed, in future, I can very well understand a defendant in effect saying: “I have a
range of options to choose from. I can do it on my own authority; alternatively I can do it
on the authority of Mr X as his attorney or agent.” But where the act has already taken
place a defendant must know by what authority he acted, his own or another person’s.
The two defences pleaded are mutually exclusive; the one excludes the other. For if the
1st defendant used his own authority, conferred, as pleaded in paragraph 8, by certain
laws, then he did not rely on presidential authority. If, on the other hand, he performed
the act in reliance on authority delegated to him by the President, then he is impliedly
admitting that he had no authority in himself to do it or if he had, he did not use the
authority on that particular occasion; he depended on some authority external to himself.
I think the defendant ought to have elected. Pleading the two defences together, even in
the alternative, creates the unfortunate impression that the defendants are unsure of the
source of their authority, or else that they have no credible defence and are groping for
one, which does not send the right signals.
At a stage in the proceedings, I hinted that the defendants had abandoned one of the
defences. Mr Adjetey, for the plaintiffs, was quick to remind me that they had not.
Somehow, the hint was not taken up, with the result that arguments concluded without
the defendants strictly putting up any defence at all. Rather the defendants adumbrated
a number of alternative defence options which could have been open to them, leaving it
to the court to choose one defence on their behalf. I do not find this satisfactory for at the
end of the day the defendants are yet to answer positively and definitely the question:
“By what authority did the 1st defendant do this act - his own or the President’s?”
It is, however, to the credit of the learned and Honourable Attorney-General that shortly
after he had been published as taking office, the letter from the President’s office dated
22/2/93 was pleaded and, what is more, exhibited and brought into the public domain,
thus making all the facts available to the court and to all parties concerned.
When arguments began on 20 April 1993, Mr Adjetey, counsel for the plaintiffs, made
two requests. The first was that, given the nature and significance of the action he
considered that it would be in the interest of all if all the justices of the Supreme Court
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with the exception of the Chief Justice, a party to the action, were given the opportunity
to express their views on the matters in controversy and that they should be empanelled
to sit. The second was that as the Attorney-General was a party to the action as 3rd
defendant, it was not proper that he should argue the case as counsel for all three
defendants. This latter point was not pressed and, to all intents and purposes, must be
taken to have been abandoned.
The first request was refused. The minimum number of justices to sit at any one time was
constitutionally fixed at five under article 128(2) “except as otherwise provided in article
133” (relating to the exercise of the review jurisdiction of the court).
Whilst I agree that each judge should have the opportunity to let the world know how he
interprets the articles and sections of the constitution in issue, it is not mandatory, nor
necessary, that this be done. Seven is large enough a number to deal with the matter.
Further, granting the request will be setting an unhealthy precedent; the court will be
ceding to litigants the right to dictate the strength of the panel at any one time. Next time,
I can see a party complaining that a panel of nine sitting on his case is too unwieldy and
may delay his case, and should be reduced to the constitutional minimum of five.
Empanelling a court is the prerogative of the Chief Justice, and unless there is very good
reason for seeking a change, e.g. on grounds of legal bias, I will be loath to interfere with
the Chief Justice’s exercise of his prerogative. No such reason was advanced on this
occasion.
From the nature of the pleadings and the arguments in court, the relevant pieces of
legislation which call for interpretation are article 156 of the 1992 Constitution, section 4
and section 25 of the Transitional Provisions (or 1st Schedule), the oath of allegiance and
the judicial oath contained in the 2nd Schedule to the constitution.
Let me observe at this point, by way of putting myself on caution, that the 2nd Schedule
to the Constitution is not part of the Transitional Provisions as certain statements would
seem to imply (see paragraphs 7 and 8 of the statement of defence). The said schedule
does not enjoy the precedence accorded to the Transitional Provisions by article 299 of
the constitution.
Article 156(1) of the Constitution reads as follows:
“(1) A Justice of a Superior Court, the Chairman of a Regional Tribunal and also a person
presiding over a lower court or tribunal and any other judicial officer or person whose
functions involve the exercise by him of judicial power shall before assuming the exercise
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of the duties of his office take and subscribe the oath of allegiance and the Judicial Oath set
out in the Second Schedule to this Constitution.
(2) The President may, on the advice of the Chief Justice, direct that any other person
connected with the exercise of judicial power, shall take and subscribe the Judicial Oath.
(3) The Oath of Allegiance and the Judicial Oath required by this article shall be taken and
subscribed
(a) in the case of the Chief Justice or other Justice of a Superior Court, and a
Chairman of a Regional Tribunal, before the President; and
(b) in the case of any other person, before the Chief Justice or before any other Justice
of a Superior Court or Chairman of a Regional Tribunal as the Chief Justice may
direct.”
Section 4 of the Transitional Provisions says:
“4(1) A justice of the Supreme Court, the Court of Appeal or the High Court holding office
immediately before the coming into force of this Constitution, shall continue to hold office
as if appointed to that office under this Constitution.
(2) Any person to whom this section applies shall on the coming into force of this
Constitution, take and subscribe the Oath of Allegiance and the Judicial Oath set out in
the Second Schedule to this Constitution.”
The oaths themselves are, for the purposes of the present case, not of any significance.
What is important is the note appearing in italics at the foot of each of the oaths. These
were referred to in argument as footnotes or as indicators. I propose, for convenience, to
keep the description, footnotes, although I am sure that the term is not acceptable to all
sides.
Article 156(3) divides all the persons mentioned in article 156(1) into two groups, viz.
(a) Group 1 - The Chief Justice, justices of the superior courts and chairmen and,
(b) Group 2 - all others not comprised in Group 1.
By article 156(3) all persons in Group 1 are to be sworn by the President: article 156(3)(a).
The Chief Justice has nothing to do with them. Superior court justices fall within Group
1, not Group 2. Therefore the Chief Justice, as Chief Justice, cannot properly swear them.
The defence, such as is pleaded under paragraph 8 of the statement of defence cannot
avail the defendants.
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The Chief Justice can act under article 156(3)(a) only if the President authorises him to
act. The question therefore is whether the President can, under article 156(3)(a), delegate
his functions to the Chief Justice. Going by the structure of the legislation in issue I am
bound to answer this question in the negative.
Both sub-section (3)(a) and sub-section (3)(b) are part of the same article 156. Sub-section
(3)(b), coming immediately after sub-section (3)(a), expressly empowers the Chief Justice
to delegate his functions in relation to persons within Group 2. Even there, the delegation
is not open-ended; it must be to a person within a specified group. Article 156(3)(a) does
not contain any such power of delegation. The constitution-makers have evinced a clear
intention that the President should have no such power. A delegation to the Chief Justice
under article 156 is therefore out of the question.
In the same way it strikes me that notwithstanding his exalted position, the President
cannot assume functions under article 156(3)(b) and proceed to swear-in persons within
Group 2, e.g. circuit judges, magistrates etc, nor can the Chief Justice delegate his
functions under the said article 156(3)(b) to the President. Any such delegation will not
be in accordance with the constitution.
Article 60(1) however permits the President to delegate or assign any of his functions,
those under article 156(3)(a) included, to the Vice-President. Attention may here be
drawn to article 60(8) under which the Vice-President, as Vice President, performs the
duties of the President. But he does this, not as a result of any delegation of authority
from the President, but because the constitution asks him to take on those duties, as a
matter of necessity, for the reason that “the President is absent from Ghana or is for any
other reason unable to perform the functions of his office”; see (article 60(8)). No question
of delegation or designation is involved here.
Again under article 60(6) the Vice-President takes over the duties of the President. But
here he assumes the office as President; he does not perform as Vice-President and
therefore an issue of delegation does not arise either.
If both President and Vice-President should be unavailable, the Speaker of Parliament

would assume the functions of the President under article 60(11). The constitution has
made more than adequate provision for the discharge of the functions of the office of the
President. I am convinced that under article 156(3)(a) the President cannot delegate his
functions to the Chief Justice; similarly the Chief Justice cannot delegate his to the
President under article 156(3)(b).
It even appears to me that the arrangements under article 156 are closely linked to those
under article 144 which deals with the appointment of judges. It will be seen that judges
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in Group 1 (article 156) are, appointed by the President under article 148. Those in Group
2 (judicial officers) are appointed by the Chief Justice under article 18. It may be that the
constitution makers, in structuring article 156, worked with the idea that he who
appoints, inducts his appointees into office by swearing them.
It has been argued that article 156(1) applies only to new judges, and has no application
to sitting justices. The argument urged in support of this contention is the phrase “before
assuming the exercise of the duties of [their] office” appearing, in article 156(1) of the 1992
Constitution. Mr Adjetey, for the plaintiffs, conceded this point.
In matters of fact a court is generally bound by admissions, concessions, accords etc by

or between parties and, or their counsel. In matters of law, a court is not so bound. I am
not attracted by the arguments advanced that article 156(1) applies only to new judges,
because of the phrase “before assuming the exercise of the duties of [their] office.”
Section 4 of the Transitional Provisions stipulates that superior court judges in office on
the eve of 7/1/93, referred to in this opinion as “sitting judges” or “sitting justices”, “shall
continue to hold office as if appointed under [the] constitution”. In other words, although
those judges were in fact not appointed under the constitution, it must be taken or
assumed that they were so appointed.
Appointments of superior court justices under the constitution are governed by article
144, the relevant portions of which read:
“144.(1) The Chief Justice shall be appointed by the President, acting in consultation with
the Council of State and with the approval of Parliament.
(2) The other Supreme Court Justices shall be appointed by the President on the advice of
the Judicial Council, in consultation with the Council of State and with the approval of
Parliament.
(3) Justices of the Court of Appeal and of the High Court and Chairmen of Regional
Tribunals shall be appointed by the President acting on the advice of the Judicial Council.”
It is obvious that the Council of State, established by article 80, was not operative on 7
January 1993, the members had not been appointed. We may take judicial notice of the
fact that the members were appointed in April this year and sworn into office on or about
27 April 1993. Similarly the Judicial Council created under the constitution had not been
established, and even if it were granted that the council existing prior to 7 January could
carry on under section 8(1) of the Transitional Provisions, nobody can claim that it has
had anything to do with the tenure of office of sitting justices since 7 January 1993 nor
has Parliament either.
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In short, sitting justices have not gone through the procedures for appointment laid down
under the constitution. This notwithstanding, section 4 of the Transitional Provisions
provides that it be assumed that they have been appointed under article 144. The phrase
“as if appointed … under the constitution” clearly conveys a legal fiction. What it says is
not true in fact, but we are asked to assume it to be true, for convenience and in order to
attain certain desirable objectives: in this case, for the purpose of a smooth transition.
There was some argument as to whether “as if” in section 4 of the Transitional Provisions
has the same force and effect as “deem” as used in certain enactments and in some places
of the constitution. To me this is a mere splitting of hairs over practically nothing. The
phrases “as if”, “shall be deemed”, “shall be taken as” etc have the same or similar import:
they all introduce messages which are clearly legal fictions. See e.g. section 1(1), 2(1) of
the Transitional Provisions both of which use the phrase “shall be taken to have been
duly elected.”
By these sections, both the President and Parliament, although elected long before the
constitution came into force on 7/1/93, are “taken to have been duly elected for the
purposes of the constitution.” In both sections the phrase “shall be deemed to have been
duly elected”, or “as if duly elected under the constitution” would equally have been
appropriate. Thus while sections 3(1), 8(1) and 31(2) of the Transitional Provisions use
“shall be deemed”, sections 11, 22(1) and 31(1) prefer the phrase “as if.” All of them have
the same significance.
The sitting judges under section 4 of the Transitional Provisions are deemed to have been
appointed under the constitution and therefore are taken as having gone through all the
procedures required for their appointment under the constitution. For all practical
purposes therefore, they are appointees under the constitution, in the same manner as
new entrants are appointees under the constitution. They have all been appointed under
article 144, the one, in fact, the other, by a device of legal fiction.
Article 156 requires appointees to take the two oaths in the 2nd Schedule. The repetition
of this requirement in section 4(2) of the Transitional Provisions is merely to remind the
sitting justices that notwithstanding the fact that they have, by a legal fiction, skipped the
procedures in article 144 they must nonetheless take the oaths as anyone else. The
requirement therefore is to emphasise the fact that sitting judges are in no different or
privileged position, vis-à-vis new entrants, as far as the obligation to take the oaths is
concerned.
After all, both categories of judges, being creatures of the constitution, must at some time
or the other assume office, i.e. embark upon their duties “under the constitution.”
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In the case of new judges, the phrase “before assuming the exercise of the duties of their
office” in article 156(1) implies that they are to take the oaths as soon as practicable after
their appointment. So long as they have not started work or do not intend to start work,
they need not take the oath. They take it if they are about to assume office.
In the case of sitting judges the position is slightly different. There is some urgency about
their case. Because they are already in office but are to continue to function under section
4 of the Transitional Provisions “as if appointed … under the constitution”, they are to
take the oaths “on the coming into force of the Constitution.” Strictly interpreted this
means on 7/1/93, the date on which the constitution came into force.
But we are expounding a constitution, not a penal code; a lot of flexibility is called for.
Accordingly I think that the 7/1/93 or within a reasonable time thereafter as may be
convenient would be an acceptable interpretation.
The question then would be: What is reasonable time? I would not consider a delay of
seven days or, 14 days, too much. But given the urgency implicit in the phrase “on the
coming into force of the constitution”, and the fact that the sitting judges must continue
to sit, a period of 14 days will appear to me to be unreasonable, and not in accord with
the spirit of the constitutional provision that the oaths be taken “on the coming into force
of the constitution.”
The obvious intendment of this provision is that sitting judges, like the newly-appointed
ones, must also take the oath before entering upon their duties under the constitution; see
s 4(1) of the Transitional Provisions.
It must be noted that prior to the constitution these judges were in office and discharging
their duties. But the duties were, quite naturally, not being performed under the
constitution; they could not have been. From 7/1/93, however they were to discharge
their duties “under the constitution”; they were assuming office under the constitution,
if only because they were deemed to have been “appointed to their offices under the
constitution” under section 4(1) of the Transitional Provisions and not under any other
law.
To my mind the phrase “before assuming the exercise of the duties of their office”
appearing in article 156(1) cannot be limited to post-constitution appointees only; it
applies to sitting judges too. Therefore article 156 applies to both categories of judges.
They are both required to take the same oaths as appear in the 2nd Schedule and the
administering officer is as mentioned in article 156(3) i.e. the President.
This argument is not affected in any way by section 3 of the Transitional Provisions, that:
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“3(1) The Supreme Court, the Court of Appeal and the High Court in existence
immediately before the coming into force of the Constitution shall be deemed to have been
established under this Constitution and shall perform the functions of the Supreme Court,
the Court of Appeal and the High Court specified respectively in Chapter 11 of this
Constitution.
(2) All proceedings pending before any court referred to in sub-section (1) of this section
immediately before the coming into force of this Constitution may be proceeded with and
completed in that Court notwithstanding anything in this Constitution.” (Emphasis
supplied.)
This section has nothing to do with the oath-taking by justices. It is only designed
primarily to ensure that writs and appeals filed before 7 January 1993 and pending in the
morning of 7 January 1993, do not abort on 7 January 1993. There is no need to file these
writs and appeals afresh in what would otherwise be the new post-constitution courts
established under Chapter 11. The old courts are deemed to have been established under
that Chapter 11.
But the defendants say that section 4 of the Transitional Provisions, which obliges sitting
judges to take the oaths does not specify the functionary before whom the oaths are to be
taken and that in those circumstances we must fall on NRCD 6, section 9 which lists the
Chief Justice as one of several persons authorised to administer any lawful oath.
They also refer to section 25 of the Transitional Provisions that:
“25. The Oaths Decree, 1972 (NRCD 6) as amended, shall have effect subject to the
provisions of this Constitution.” (Emphasis supplied.)
That Decree was passed in 1972. Since then it has undergone a number of amendments,
mainly consequential, arising from the changes in government from the National
Redemption Council to the Supreme Military Council to the Armed Forces Revolutionary
Council to the 3rd Republic and to the Provisional National Defence Council. In
substance, however, the Decree has remained intact from 1972 through 1991. We may
therefore safely take a leap from 1972 straight to 1992 to see what amendments have
become necessary as a result of the 1992 Constitution.
The Oaths Decree 1972 (NRCD 6) by itself has no application to sitting judges. Section 3
of the Decree states:
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“3.(1) No person who has duly taken the Oath of Allegiance or the Judicial Oath shall be
required again to take that oath on the appointment to any other office or on any other
occasion.
(2) No person shall be required to take any oath on appointment to any office unless that
oath is different from or in addition to an oath duly taken by him, in respect of any other
appointment.” (Emphasis mine.)
The oaths that the sitting judges are required to take, and did take, are the oath of
allegiance and the judicial oath. These are not different from or in addition to what each
had already taken. I hope the defence is not contending that all the sitting judges had not
taken any of those oaths for over the past 10, 15 or even 20 years that they had been sitting
on the Bench. The court can take judicial notice of the fact that all the judges, including
those appointed shortly before the constitution, had all been sworn before the
constitution came into force on 7/1/93.
By section 3(1) therefore the sitting judges, having duly taken the oaths “shall [not] be
required again to take those oaths on appointment to any other office or on any other
occasion.”
Thus because of section 3, the whole of NRCD 6 does not apply to sitting justices; for if
the justices are not to be sworn, then the question of who should swear them, how and
when etc do not arise. Therefore section 9 of the Decree on which reliance is placed by
the defendants as well as section 2 (along with the 2nd Schedule) will also not apply.
But section 25 of the Transitional Provisions 1992 requires that the Decree be applied
“subject to the provisions of the Constitution.” One such provision to which NRCD 6
must be made subject is article 156 which defines the persons competent to swear judges.
This article, inserted into NRCD 6, amends section 2 and section 9 of the Decree as to
those who should administer the oath. Thus under Column 3 of the 2nd Schedule to the
Decree there will appear only the phrase “The President” against the names “Chief
Justice” and “Justices of the Superior courts” in Column 2. We must also add “Chairmen
of Regional Tribunals” under Column 2, against which, in Column 3, must be written
President. Column 3 of Schedule 2 of NRCD 6 must be read and interpreted with great
discernment.
On each occasion, at least as far as the judiciary is concerned, the person to administer a
particular oath must be ascertained from the constitution or other relevant law. Section 9
of NRCD 6 cautions that the persons therein-mentioned “may administer any lawful oath
required to be taken or made for the purpose of complying with any law ... except where
such law expressly or by necessary implication excludes such procedure.”
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Another provision of the constitution which must amend the Decree is section 4(2) of the
Transitional Provisions, requiring sitting justices to take the oath. This, inserted into the
Decree, will abrogate section 3 thereof (already referred to) or else effect such
modifications to it as will make the Decree applicable to sitting justices too. A simple
amendment that readily suggests itself to me is to insert “other than a justice of a superior
court” immediately after “No person” in section 3(1). The sub-section will then read:
“3(1) No person, other than a justice of a Superior Court, who has duly taken the Oath of
Allegiance or the Judicial Oath shall be required again to take that oath on appointment to
any other office or on any other occasion.”
Sub-section (2) will then be rendered as follows:
“(2) No such person as is mentioned in sub-section (1) above shall be required to take any
oath on appointment to any office etc.”
Thus amended, the Decree would have satisfied the requirements of the constitution.
It will then be seen immediately that it must be applicable to all justices, new, as well as
old. A better way of dealing with the same section 3 of NRCD 6 may be to bring back the
original sub-section 3 of section 3 of the Oaths Act 1960 (CA 12) which was dropped when
the said section was re-enacted in NRCD 6. That sub-section was:
“(3) For the avoidance of doubts and notwithstanding the provisions of sub-section (1) of
this section a person holding an office specified in the Second column of the Second
Schedule to this Act shall, on or immediately after the first day of July, 1960 as may be
convenient, take the oath, prescribed for that office in the first column of the said Schedule.”
(Emphasis supplied.)
Subsections 3(1) and 3(2) of CA 12 are the same as subsections 3(1) and 3(2) of NRCD 6.
The Second Schedule referred to in the just-quoted subsection (3) is the same as the
Second Schedule in NRCD 6 and the columns are also identical.
The Oaths Act 1960 (CA 12) was enacted on 29 June 1960 to cater for the requirements of
article 45(2) of the 1960 Constitution that:
“(2) Provision shall be made by law for the form and administration of the Judicial Oath
which shall be taken by every person appointed as judge of the Supreme Court, or as a
Judge of the High Court before the exercise by him of any judicial function.” (Emphasis
supplied.)
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CA 12 was one of the Acts passed by the Constituent Assembly, along with the
constitution, to come into force on the same date as the constitution on 1 July 1960. The
idea of article 45(2) of the 1960 Constitution is repeated in section 2 of CA 12, viz.
“2. A person appointed to an office set out in the second Column of the Second Schedule
to this Act shall take the oath specified in the first column of the said Schedule which shall
be administered by the authority specified in the third Column of the said Schedule.”
The two provisions quoted above will seem to apply to new appointees only after 1 July
1960, until we come to section 3(3) of CA 12 which puts it beyond doubt that those
provisions apply also to persons holding the same offices as are specified in section 3 of
CA 12, i.e. holding office prior to July 1960. These persons take the same oaths, which are
administered by the same authorities as are mentioned in the same 2nd Schedule.
The difficulty seems to have been created when, within barely a week of their seizing
power, the NRC, re-enacting NRCD 6 dropped subsection 3 of the earlier Oaths Act 1960
(CA 12) from their own section 3, in all probability as a result of some form of prodding
from within the judiciary.
The requirement under section 4 of the Transitional Provisions 1992 that sitting judges
must also take the oaths, sends us back to section 3(3) of CA 12, and to the situation as it
existed prior to NRCD 6 that both new and old judges must take the same oaths in the
2nd Schedule, to be administered by the same authorities. There was not one regime for
new appointees, and another for sitting justices; those “holding over” from one era to the
other. If we have problems in handling the new situation, prudence dictates that we look
at what it was before 1972.
In Halsbury’s Laws of England Vol 36 3rd ed p 402 para 607 it is stated that:
“All statutes made in pari materia should be construed together, as one system and as
explanatory of each other, so that when there is an ambiguity in one, it may be explained
by reference to another statute in the same system. In construing a statute it is therefore
legitimate to refer to an earlier statute in pari materia even if it has expired or has been
repealed.”
Thus NRCD 6, appropriately amended, as to competent oath administrators, (see article

156(3)) applies to all justices, new and old. It is a contradiction to say that NRCD 6 applies
to sitting justices, but that article 156 does not apply to them. NRCD 6 which applies by
virtue of section 25 of the Transitional Provisions is not the original, the raw, NRCD 6; it
is the one which has been amended, changed or polished by the constitution, which
14
therefore incorporates article 156 inter alia. So that applying NRCD 6 is the same as
applying article 156.
The defendants cannot eat their cake and have it: they cannot take the benefit of section
25 of the Transitional Provisions to apply NRCD 6 and at the same time refuse to amend
it before applying it by conveniently ignoring article 156. NRCD 6 must be applied
“subject to the provisions of the constitution” ( section 25 of the Transitional Provisions).
For this additional reason I am of the opinion that the contention by the defendants that
article 156(3) applies only to new judges cannot be seriously persisted in. It is untenable
and I reject it.
Further, the provision in the Oaths Act 1960 (CA 12), section 3(3) quoted above, that
persons (including judges) holding offices before the constitution came into force on
1/7/1960 “shall take the prescribed oaths on or immediately after the 1st day of July 1960
as may be convenient” gives us a reliable clue as to how to interpret and apply the
requirement in the 1992 Constitution, section 4(2) of the Transitional Provisions that
sitting justices must take the oath “on the coming into force of this Constitution.”
All else failing, the defendants rely on the footnotes as justifying the act of the 1st
defendant. This posture presupposes that the defendants are abandoning reliance on
presidential delegated authority.
In the first place, the footnotes, like marginal or side notes, are not part of the legislation.
They are not debated by Parliament, (in this case the Consultative Assembly); you will
never find them anywhere in the debates of the Consultative Assembly. Side notes are
put in by the draftsman, with the best of intentions no doubt, as subject headings, or as
quick guides to the subject-matter of the various sections. That is why, on occasions, they
may be looked at for interpretation of the sections to which they refer. But the fact remains
that they are not part of the statute. So also, in my view, are footnotes.
It was suggested vaguely that these footnotes were put in italics purposely to emphasise
their importance as an essential part of the oaths. There can be nothing further from the
truth. After all they could have been put in italics to distinguish them from the oaths
themselves, and to emphasise that they are not part of the oaths. Besides, if they are part
of the oaths, as claimed then one would expect that they will be recited along with the
oaths when the oaths were being sworn. But let anyone try to do this at a swearing-in
ceremony. He will be taken, at best, to have lost concentration.
The footnotes to the oaths in the 1992 Constitution were simply reproduced by the
draftsman from the predecessor constitutions of 1969 and 1979, without much regard to
15
the changes effected in the body of the 1992 Constitution. For instance the footnotes to
the Judicial oath in the 1992 Constitution reads:
“To be sworn before the President, the Chief Justice or such other person as the Chief Justice
may designate.”
This is the same as appears in the 1969 and 1979 constitutions. But we do know that in
each of those constitutions the provision for oath-taking by justices of the superior courts
are not the same.
In the 1969 Constitution the oaths were administered by:
“(a) The President in the case of the Chief Justice, and
(b) the Chief Justice in the case of any other such judge…”
i.e. judge of the Supreme Court, Court of Appeal and High Court: article 118 of the 1969
Constitution.
There was no provision for delegation of functions by any of those two authorities, the
President and the Chief Justice.
In 1979 the corresponding provisions were:
“(a) the President, in the case of the Chief Justice and the other Justices of the Supreme
Court; and
(b) the Chief Justice, in the case of any other such Justice.”
[i.e. judges of the Court of Appeal and the High Court: article 130 of 1979 Constitution).
Here again there was no provision for delegation of functions by the President or the
Chief Justice.
The situation in the 1992 Constitution, as we have already seen, is again quite different
(see article 156) i.e. the President swears all justices of the superior courts, i.e. the Supreme
Court, Court of Appeal and High Court.
All these differences notwithstanding, we have the same footnotes in all three
constitutions, a sure indication that a blind and uncritical application of the footnotes
cannot be appropriate. In each case therefore the obvious course is to look at the
provisions in the enabling articles themselves, and not footnotes reproduced almost
mechanically, if I may say so with respect, from constitution to constitution. I cannot see
that the footnotes are any help to the defendants.
16
It only remains for me to comment very briefly on article 297 of the constitution on
implied powers. The defendants have drawn the court’s attention to this article, in
particular sub-sections (h), (i) and (j), arguing that the President may lawfully delegate
his authority to the Chief Justice under one or the other of these subsections. The
subsections are:
“297. In this Constitution and in any other law
(h) words directing or empowering a public officer to do any act or thing, or otherwise
applying to him by the designation of his office, include his successors in office and all his
deputies and all other assistants;
(i) words directing or empowering a Minister of State to do an act or a thing, or otherwise

applying to him by the designation of his office, include a person acting for him, or if the
office is vacant, a person designated to act in that office by or under the authority of an act
of parliament and also his successors in office and all his deputies or other assistants;
(j) where a power is conferred or a duty is imposed on the holder of an office as such, the
power may be exercised and the duty shall be performed by the person for the time being
charged with the performance of the functions of that office.”
I shall limit myself to very short comments on the above: (a) sub-section (h) provides
words applying to an officer by designation of his office “include his successors in office
and all his deputies and all other assistants.” I have reason to believe that no one will
quarrel with an assertion that the Chief Justice is not the “successor in office” to the
President, nor his deputy, nor his assistant. The Chief Justice is head of the third arm of
state - the judiciary. The President belongs to a different arm of state, the Executive. The
Judiciary is “independent and subject only to [the] Constitution” - article 125 (1). The
head of this independent body cannot be an assistant to the President; (b) sub-section (i)
applies to Ministers of State: article 78. The President is not a Minister of State: article 57;
(c) sub-section (j) is not relevant either. The President has always been at post. It has never
become necessary for anyone to take over his functions “for the time being.” If this should
become necessary, the person to assume his functions will not be the Chief Justice, as
already explained in this opinion; (d) I have also looked at sub-section (c) of article 297. I
find that for reasons given inter alia in (a) above, it cannot benefit the defendants either.
In my opinion the plaintiffs have made out their case. I agree with them that under article
156 the authority to administer the oaths to justices of the superior courts is the
President’s; that this function cannot be delegated to the Chief Justice; that sitting justices
under section 4 of the Transitional Provisions must be sworn in the same manner as post-
constitution justices, by the President, and not by the Chief Justice.
17
I will grant the declarations sought, subject only to slight amendment, by deleting “and
not before any other person” appearing at the end of the 1st relief. In my view, and as
explained above, the oaths may properly be administered by the Vice-President or by the
Speaker of Parliament, as the occasion demands, but not by the Chief Justice.
FRANCOIS JSC.
“Who swears the judges?” or its variant “Swear them at your peril” might well be apt
captions of a melodramatic soap opera. But levity aside, they sadly encapsulate the very
serious constitutional issue in this declaratory action.
The plaintiffs who are high office holders of the Ghana Bar Association, invoke the
original jurisdiction of this court to seek the following declarations:
“1. A declaration that by the combined effect of article 156(1), (2) and (3), section 4 of the
Transitional Provisions (the 1st Schedule) and the 2nd Schedule of the 1992 Constitution
of the Republic of Ghana, all justices of the Supreme Court, the Court of Appeal and the
High Court in Ghana holding office immediately before the coming into force of the said
constitution are obliged to take and subscribe the oath of allegiance and the judicial oath
set out in the 2nd Schedule to the said constitution before the President of the Republic of
Ghana only and not before any other person.
The plaintiffs charge the defendants, the Chief Justice, the Judicial Secretary and the
Attorney-General, with violating or permitting the violation of the constitution by
disregarding the proprieties duly set out for administering the oath of allegiance and the
judicial oath to the Superior Court judges.
The plaintiffs urge that the constitutional requirements in article 156 and section 4 of the
Transitional Provisions admit of only one construction namely, that all superior court
judges subscribe and have administered to them the oath of allegiance and the judicial
oath by only one person, the President. They argue that the manner Superior Court
judges subscribe to the constitutional oaths referred to is laid down and circumscribed
by article 156(3). They further urge that since article 156 introduced the 2nd Schedule,
there could be no proper interpretation of s 4 of the Transitional Provisions in relation to
18
the offspring, the 2nd Schedule without reference to article 156, its procreator. This is the
linkage theory.
The plaintiffs warn that what appear at the tail piece of the various oaths in the 2nd
Schedule are mere footnotes which should be taken to restrict or modify article 156.
It is the plaintiffs’ view that no distinction is permissible between justices of the superior
courts affected by s 4 of the Transitional Provisions and those to be appointed in the
future, and the true construction of the constitution affords no warrant for drawing any
distinctions.
Turning to the power of the President to administer oaths, the plaintiffs urge that the
President has no constitutional power to delegate or designate someone to exercise his
power to administer oaths to Superior Court judges. Article 297 which deals with the
implied powers of the President, gives no such authority. Even if delegation were at all
possible, the argument goes on, the proprieties of delegation which a court could
properly countenance had not been observed.
A power of delegation which a court would recognise, must be under the hand and seal
of the President, especially as the duty of administering an oath is not an executive
exercise or function, but is personal to the President, who occupies the position of a
trustee and is the personification of the state.
The Attorney-General challenged the plaintiffs’ interpretation of these provisions of the

constitution. He denounces an interpretation that christens imperative directions as
“footnotes” and points to an elementary cannon of construction which requires every
word of a section to be given equal force. The distinction which article 156 and s 4 of the
Transitional Provisions sought to make between serving Superior Court judges and those
subsequently to be enrolled was real and could not be ignored. Article 156 (1) and (3) of
the 1992 Constitution provide as follows:
“156 (1) A Justice of a Superior Court, the Chairman of the Regional Tribunal, and also a
person presiding over a lower court or tribunal, and any other judicial officer or person
whose functions involve the exercise by him of judicial power shall before assuming the
exercise of the duties of his office take and subscribe the oath of allegiance and the judicial
oath set out in the Second Schedule to this Constitution.
subscribed-
Chairman of a Regional Tribunal, before the President, and
19
(b) in the case of any other person, before the Chief Justice or before any other
Justices of a Superior Court, or Chairman of a Regional Tribunal as the Chief
Justice may direct.” (Emphasis supplied.)
There are clearly very important limitations to the operation of article 156 (3). First, it
affects only new appointees, that is, those exercising judicial power for the first time. For
it states that the oath taking and its subscription must be done “before assuming the
exercise of the duties of his office.” Second, the prescribed oaths relate only to conditions
stipulated by the article, i.e. limited to article 156. That is the true intendment of the “oath
required by this article” in article 156(3). Section 4 of the Transitional Provisions under
Part III, which deals exclusively with the judiciary states:
“4. (1) A Justice of the Supreme Court, the Court of Appeal or the High Court holding
office immediately before the coming into force of this Constitution, shall continue to hold
office as if appointed to that office under this Constitution.
(2) Any person to whom this section applies shall, on the coming into force of this
In the 2nd Schedule after the wording of the oath of allegiance, are the following words:
“To be sworn before the President, the Chief Justice or such other person as the President
may designate.”
The concluding words to the judicial oath are in the following terms:
“To be sworn before the President, the Chief Justice or such other person as the Chief Justice
may designate.”
Any attempt to construe the various provisions of the constitution relevant to the present
enquiry must perforce start with an awareness that a constitutional instrument is a
document sui generis to be interpreted according to principles suitable to its peculiar
character and not necessarily according to the ordinary rules and presumptions of
statutory interpretation. Though basic rules of statutory construction may provide the
first steps, they should strictly be kept at the first rung as servants and never elevated in
flight as masters.
This essential pre-requisite is illustrated in a number of cases. In Minister of Home Affairs

v Fisher [1979] All ER 21 at 26, Lord Wilberforce delivered himself at the Privy Council
as follows:
20
“A Constitution is a legal instrument giving rise amongst other things, to individual

rights capable of enforcement in Court of law. Respect must be paid to the language which
has been used and to the traditions and usages which have given meaning to that language.
It is quite consistent with this and with the recognition that rules of interpretation may
apply, to take as a point of departure for the process of interpretation a recognition of the
character and origin of the instrument”. (Emphasis supplied.)
It appears that the overwhelming imperatives are the spirit and objectives of the
constitution itself, keeping an eye always on the aspirations of the future and not
overlooking the receding footsteps of the past. It allows for a liberal and generous
interpretation rather than a narrow legalistic one. It gives room for a broader attempt to
achieve enlightened objectives and tears apart the stifling strait-jacket of legalistic
constraints that grammar, punctuation and the like may impose. Moreover it ensures that
what has been termed “the austerity of tabulated legalism”, is avoided, as also the dry
interpretation of a section with its attendant difficulties. See per Lord Sumner in Inland
Revenue Commissioners v Brooks [1915] AC 478 at 493.
In interpreting the relevant provisions of the constitution we must be very careful to

avoid importing into the written document what does not appear therein. For there could
be no difficulty, if an extension was intended as a desired result for it to be explicitly
expressed, in precise terms. Rules of construction do not permit a passage which has a
clear meaning, to be complicated or obfuscated by any interpolation, however well-
intentioned.
To borrow from Adegbenro v Akintola [1963] 3 WLR 63 at p 73, the constitution “must
be interpreted according to the wording of its own limitations and not to limitations
which that wording does not import.” That case dealt with the Nigerian constitution and
declared:
“That instrument now stands in its own right; and, while it may well be useful on
occasions to draw on British practice or doctrine in interpreting a doubtful phrase whose
origins can be traced or to study decisions on the Constitutions of Australia or the United
States where Federal issues are involved, it is in the end the wording of the Constitution
itself that is to be interpreted and applied, and this wording can never be overridden by
extraneous principles of other Constitutions which are not explicitly incorporated in the
formulae that have been chosen as the frame of this Constitution.”
For a further example of the principles to be borne in mind, we may turn with profit to
our domestic constitutional case of Tuffuor v Attorney-General [1980] GLR 637, SC. There
the court said a written constitution embodies the will of a people. Its spirit mirrors the
21
people’s history, aspirations and hopes for the future, and is accordingly a pivotal
landmark in their search for progress. It continued:
“Its language therefore must be considered as if it were a living organism capable of growth
and development … A broad and liberal spirit is required for its interpretation. A
doctrinaire approach to interpretation would not do. We must take account of its principles
and bring that consideration to bear in bringing it into conformity with the needs of the
time. And so we must take cognisance of the age-old fundamental principle of
constitutional construction which gives effect to the intent of the framers of this organic
law. Every word has an effect. Every part must be given effect.” (Emphasis mine.)
Reflecting on the wisdom of Lord Wilberforce, in the Fisher case, supra, and turning to
the relevance of history, traditions and usage, a brief diversion may be necessary at this
stage to understand the administration of the oaths to superior court judges in the past.
Under article 130 of the 1979 Constitution:
“A Justice of the Superior Court of Judicature, shall, before assuming the functions of his
office, take and subscribe before–
(a) the President, in the case of the Chief Justice, and the other Justices of the Supreme
court; and
(b) the Chief Justice, in the case of any other such Justice, the Oath of Allegiance and the
Judicial Oath set out in the Second Schedule to this Constitution.”
That article dealt with newly enrolled judges, and, in a sense, did not differ from article
156 of the 1992 Constitution.
The question to be asked is how did history deal with judges then already in the Judicial
Service and the answer is readily seen in the Oaths Decree 1972 (NRCD 6), specifically s
3 which states:
“3. (1) No person who has duly taken the Oath of Allegiance or the Judicial Oath shall be
required again to take that oath on appointment to any other office or on any other occasion.
3(2) No person shall be required to take any oath on appointment to an office unless that
oath is different from or in addition to an oath duly taken by him in respect of any other
appointment.”
If a change were contemplated by the 1992 Constitution linking those already in the
service with newly recruited judges, there would be an express, unambiguous statement
to that effect. Tedious though it may appear, one must here repeat the well-known canon
of construction that the courts will presume that the lawgiver would use clear and
22
unmistakable words if the intention were to abrogate a long-standing rule of law. See
Maxwell on Interpretation of Statues 12 Edition (1969) p 116.
This has been expressed by Devlin J in his inimitable way thus in National Assistance
Board v Wilkinson [1952] 2 All ER 255 at 260:
“It is a well established principle of construction that a statute is not to be taken as effecting
a fundamental alteration in the general law unless it uses words that point unmistakably
to that conclusion.”
Lord Simon states the consequences of rejecting this principle in search of the esoteric in
Black-Clawson International v Papierwerke Waldhof-Aschaffenburg AG (1974) [1975] 1
All ER 810 at 847 as follows:
“It is refusing to follow what is perhaps the most important clue to meaning. It is perversely
neglecting the reality, while chasing shadows. As Aneurin Bevin said: why gaze in the
crystal ball when you can read the book. Here the book is already open; it is merely a matter
of reading on.”
The only unambiguous constitutional statement of relevance appears in article 156 which
limits its application to newly recruited judges who must swear “before assuming the
exercise of the duties of office” and further delimits the parameters in article 156(3) as
oaths “required by this articles.” Any attempt to extend the scope of article 156 is clearly
subversive of this direction restricting its ambit.
Again section 4 of the Transitional Provisions is a new creature vis-a-vis the 1979
Constitution. It clearly caters for judges already in service, and deals specifically with
their continuation in office and the oaths that must be subscribed by them. But for s 4(2)
judges in office would not have needed to swear any further oaths; that would have been
taken care of by the Oaths Decree. But section 25 of the Transitional Provision amends
the Oaths Decree “to have effect subject to the provisions of this Constitution.” This
means that the former dispensation or judicial absolution from swearing for judges in
office was removed and in its place was introduced a requirement to swear in terms of
the Second Schedule. This directive appears in the 1st Schedule dealing with the judiciary
whose full force can only be gleaned by a serious consideration of article 299 which states:
“The Transitional Provisions specified in the First Schedule to this Constitution shall have
effect notwithstanding anything to the contrary in this Constitution.” (Emphasis mine.)
Turning next to the 1969 Constitution, article 118 states:
23
A Judge of the Superior Court of Judicature shall, before assuming the functions of his
office, take and subscribe before
(a) the President, in the case of the Chief Justice, and
(b) the Chief Justice, in the case of any other such Judge, the Oath of Allegiance and the
Consequently in 1969, and by force of the relevant provision, it was only a Chief Justice
who swore before the President. The other superior court judges subscribed their oaths
before the Chief Justice.
It should however be pointed out that this article in the 1969 Constitution dealt only with
new judges who were to subscribe their oaths “before assuming the functions of [their]
office.” To recapitulate then, and bearing in mind Lord Wilberforce’s wise words in the
Fisher case, supra, to derive guidance from past history and usage, one can only note that
in 1969 superior court judges were sworn-in by the Chief Justice. Judges in office by 1979,
when that constitution came into operation did not require any new oaths by force of the
Oaths Decree of 1972. Consequently if changes to oaths administration of superior court
judges were contemplated ousting completely the Chief Justice’s involvement in the
exercise, they would have been expressly stated, especially as an explicit distinction is
drawn between judges in office and those newly to be sworn into office.
Counsel for the plaintiffs has referred the court to article 144 of the 1992 Constitution in
an inspired bid to compel comparison between the mode of appointment of categories of
judicial officers and their respective oath administration. I find this article most unhelpful
as it deals solely with officers newly inducted into office whilst the bone of conflict relates
to the distinction between serving officers and those yet to be appointed.
The analogy of relevance lies, it seems to me in the modalities for administering oaths to
the President and the Vice-President. Even if arguments on article 144 generated any
doubts, they are effectively dispelled and positively resolved by a reference to articles 57
and 60. The mystique in oath-taking that has bedeviled the plaintiffs’ perception of the
constitutional requirements can be exorcised and laid to rest once and for all by a
consideration of these articles.
Article 57(3) states
“Before assuming office the President shall take and subscribe before Parliament the Oath
of Allegiance and the Presidential Oath set out in the Second Schedule to this
Constitution.”
24
The modalities for subscribing to this oath are spelt out in the 2nd Schedule, with the
following mandatory directions:
“To be administered by the Chief Justice before Parliament.”
Similarly, the oath to which the Vice-President should subscribe is set out in the 2nd
Schedule as indicated by article 60(5). This is “to be administered by the Chief Justice
before Parliament.” If these directions are capable of effecting the administering of an
unimpeachable oath, it appears utterly incomprehensible to me that they stir a hornet’s
nest when the procedure is applied to serving judges even though the directions affecting
them are in terms similar and bordering on a twin-likeness.
If the 2nd Schedule can be complied with without the aid of any enabling article, then the
linkage theory alluded to above, which attempts to extend the ambit of article 156 to the
Transitional Provisions is subversive of the constitution which demands that directions
to be complied with in the 2nd Schedule created under the 1st Schedule must be given
their unalloyed force.
Halsbury’s Laws of England authoritatively asserts that sections of a statute and

schedules accompanying the statute are all essential elements of the intended legislation.
In paragraph 551 of the 3rd edition, Vol 36 are the following words:
“…a schedule is as much an enactment, as is the section by which it is introduced.”
This is in conformity with the rule of construction that a statute should be construed as a
whole. See paragraph 594. It continues in paragraph 601:
“The division of a statute into separate sections or into sections and schedules, is an
arbitrary matter of convenience which ought not to affect their construction.”
Consequently where positive directions are given in a schedule as to a mode of

performing an act, in the absence of any conflict or repugnancy it would be wrong to
amend or add to the directions so expressly given. Moreover, the fact that those directions
were sufficient for the legitimate administering of oaths to the President and Vice-
President should immediately foreclose any discretion or power to tamper with them,
however ingenious the reasoning for the interference. It follows, and must be stressed,
that by the canons of construction, the matters set out at the tail end of the oaths in the
Second Schedule must be complied with and given effect to and not taken as mere
ornamental embellishments or to use counsel’s words, “footnotes”, to which he
attempted no legal definition. No sound reasoning compels a different conclusion.
25
The apt words in the Tuffuor case must again be recalled:
“No person can make lawful what the Constitution says is unlawful. No person can make
unlawful what the Constitution says is lawful.”
Draftsmen are the first to acknowledge the effect of bad drafting. Legal authority
recognises their efforts in avoiding such results. In construing legislation therefore, it is
unacceptable to consign difficulties in construction to the errors of the draftsman unless
absurdity and repugnancy are unremitting concomitants.
In the particular circumstances of this case, it cannot be said with any degree of realism
that the draftsman could not, in article 156(1), have added “while continuing in office” in
order to add or link the second category of serving officers to the newly recruited. The
draftsman could surely have omitted the limitation in article 156(3) “the judicial oath
required by this article”, to include both categories if he were so minded, and not exclude
as he positively did.
Thirdly, he would have removed the specific directions on oath taking appearing in
section 4 of the Transitional Provisions, if that were his intention. In this way he could
easily have contained in the same pen judges already in office and those to be yoked in
the future. This shows the utter futility in reading into section 4 of the Transitional
Provisions something more than is actually stated. These extensive references to the
constitutional guidelines have become necessary since an essential plank of the plaintiffs’
case is an implicit linkage between article 156 and section 4 of the Transitional Provisions
and the issue simply has been whether this linkage is permissible, helpful, or destructive
of the legislative intent of the fundamental provisions of our constitution. The answer is
obvious.
Drawing again on the amplitude of history and in particular on the perspective that the
Oaths Decree 1972 provides, one notes that under that Decree, the Chief Justice leads in
the persons listed to administer oaths. As the Oaths Decree 1972 was not abrogated but
rather retained by the 1992 Constitution, it cannot be optimistically urged that directions
for oath-taking in the 2nd Schedule of the Constitution which repeat what is contained in
the Oaths Decree 1972 can be ignored. The fact that an incumbent Chief Justice swears in
the President is due acknowledgment of the previous oath taken by the Chief Justice on
the assumption of office. The force of this oath is not whittled down by the receipt of a
constitutional oath administered by the President in return.
It is the force of this previous oath that underscores the Chief Justice’s competence to
swear his colleagues as he did in the past The constitution appears to confer on the Chief
Justice the competence and power denied him by the plaintiffs to administer the oath to
26
the highest personality of State whom counsel describes as the personification of the
State.
Before I conclude, some assertions of plaintiffs’ counsel must be corrected. It is not

accurate to state that article 156 introduced the 2nd Schedule and therefore the latter
derives its sustenance from the former. Indeed articles 57 and 60 refer to the 2nd Schedule
earlier and clearly expose the error. The mistake was indeed perceived by counsel in the
course of his submissions but it failed to halt him in his tracks and did not succeed either
to make the slightest dent in the linkage theory he was espousing.
A lot of argument has centered round the President’s power, or lack of it, to delegate or
designate, but this issue relates only to the 2nd Schedule and particularly to the directions
on the forms of oath-taking. The burden of this judgment is that no word in the 2nd
Schedule can be ignored. They are directions to be given the fullest force. Consequently
the simple construction to the directions of oath-taking regarding the oath of allegiance
is that the President or the Chief Justice may administer the oath while a constitutional
power is reserved in the President to designate to some other person, his power of
swearing, if he chooses and circumstances so dictate, and with regard to the judicial oath
the Chief Justice is similarly empowered to designate.
One has only to contrast the other oaths to see that no choices are given. For instance the
oaths to members of the Council of State, the Cabinet Oath and the oath to a Minister of
State. It would thus be constitutionally improper for the Speaker to subscribe his oath
before any other person than the Chief Justice.
Nothing more need be said to emphasise the force of the directions appertaining to each
form of oath in the 2nd Schedule and dispose of the suggestion that directions in the 2nd
Schedule are empty, or constitute, “footnotes.”
It seems to me that in any case article 295(7) affords a protective shield over issues such
as these so that non-consequential irritants would not affect the true democratic course
charted by this constitution. The article states:
“295(7) Where power is vested by this constitution in any person or authority to appoint
a person to act in or perform the functions of an office if the holder of the office is unable to
perform those functions, the appointment shall not be called in question on the ground that
the holder of the office could have performed those functions.”
Article 295(7) is plain enough but I shall spell its meaning in relation to the issues in
controversy. As I understand it, whether the President delegated his powers of
administering the oath or designated someone to exercise those powers, or expressed his
27
decision through an officer in his office, that appointment cannot be questioned. This
ouster epitomises what must be plain, that the Parliament of a country is the master of its
own household, to borrow from the Queensland case. The constitution of this land must
be the supreme master.
It is clear that I reject the view that the Chief Justice is guilty of a constitutional
impropriety in swearing Superior Court justices.
I regret the length of this judgment though unavoidable, even as I regret that time and
talent have been remorselessly spent on this matter when the undoubted legal ability that
has been demonstrated could have been channeled into more profitable avenues.
My third regret arises from the polemics associated with the dispute with their trappings
of contempt for institutions of authority in the country. It seems to me that where the
constitution gives the Supreme Court the final say in the interpretation of its provisions,
some measure of discourtesy is demonstrated when, far from seeking the court’s
interpretation, a partisan view is proclaimed and even extended by a publicity stunt
whose objective is to fuel disenchantment and project an impression that a contrary view
is at odds with constitutional proprieties.
I can only conclude with the hope that what now appears an arid unrewarding academic
exercise, may well be a useful dress-rehearsal, for any real constitutional dispute that may
arise in the future, where new perils would not be associated with the swearing of judges
but the for-swearing of imperative rules of statutory construction.
AMUA-SEKYI JSC.
Article 144 of the 1992 Constitution makes elaborate provisions for the mode of
appointment of the Chief Justice and other justices of the superior courts. Article 156(1)
requires that when appointed, they take and subscribe the oath of allegiance and the
judicial oath set out in the 2nd Schedule to the constitution. Article 156(3) deals with the
person before whom the oaths are to be taken and subscribed. It provides:
“(3). The Oath of Allegiance and the Judicial Oath required by this article shall be taken
and subscribed-
(a) in the case of the Chief Justice or other justice of a Superior Court ...before the President;
and
(b) in the case of any other person, before the Chief Justice or before any other Justice of a
Superior Court ... as the Chief Justice may direct.”
28
Section 4(1) of the Transitional Provisions exempted justices of the superior courts who
were in office on the date the constitution came into force from seeking reappointment
under the provisions of article 144. However section 4(2) required that they be re-sworn.
The controversy that has arisen is over whether the continuing justices are required to
take and subscribe the oaths before the President, as article 156(3)(a) seems to demand,
or that it is permissible for them to take and subscribe them before the Chief Justice, as
the 2nd Schedule seems to suggest. Before dealing with terms of the constitution, I should
like to consider, first of all, the general laws of the land.
At the time the constitution came into force the law that governed oaths was the Oaths
Decree 1972 (NRCD 6). In spite of its authoritarian origins, this enactment has been in the
books for twenty years. When in 1979 a new constitution was introduced, the Decree was
left untouched. As part of the existing law it continued in operation, although the courts
were enjoined to construe it and all other existing laws “with such modifications,
adaptations and exceptions as [may] be necessary to bring it into conformity with the
provisions of the constitution, or otherwise give effect to, or enable effect to be given to,
any changes effected by this constitution.”
One of the changes effected by the 1979 Constitution was in the content of the oath of
allegiance. Those who were required to take and subscribe the oath were no longer called
upon to swear that they would “preserve, protect and defend the Decrees of the National
Redemption Council”, but that they would “preserve, protect and defend the
constitution.” During the rule of the Provisional National Defence Council, even though
the oaths were in practice modified to meet the needs of the time, no enactment was made
to amend them.
The 1992 Constitution preserved the Decree as part of the existing law subject to its being
construed in such a way as to bring it into conformity with the provisions of the
constitution and give effect to, or enable effect to be given to, any changes effected by the
constitution. It was for nothing more than the avoidance of doubt that section 25 of the
Transitional Provisions stated that: “The Oaths Decree, 1972 (NRCD 6), as amended, shall
have effect subject to the provisions of this Constitution.” Even if this reference and
formulation had not been made, the Decree would have continued in operation as part
of the existing laws under article 11(5), (6).
Sections 1 and 2 of the Decree provide as follows:
“1. The oaths to be taken as occasion may demand shall be the oaths set out in the First
Schedule.
29
2. The oaths specified in the first column of the Second Schedule shall be taken by a person
appointed to an office set out in the second column of that Schedule and shall be
administered by the authority specified in the third column of that Schedule.”
The oath of allegiance and the judicial oath are among the oaths set out in the 1st
Schedule. The 2nd Schedule is divided into three columns; the 1st is headed: “Nature of
Oath”, the second: “Person to tender Oath.” Among those mentioned in the second
column as being persons who are required to take the oath of allegiance are justices of the
superior courts, and the persons authorised to tender it to them are, according to the third
column as amended by the 2nd Schedule of the 1979 Constitution, “the President or the
Chief Justice or such other person as the President may designate.” For the judicial oath
the person authorised to tender it to the justices is “the President, Chief Justice or such
other person as the Chief Justice may designate”.
There can be little doubt that even though the Decree relegates the form of the oaths and
other details to schedules, these provisions have equal force with the main part of the
Decree. The point could not have been better put than it is in Halsbury’s Laws of England,
3 ed Vol 36 para 551 page 374 where the learned authors state:
“To simplify the presentation of statutes, it is the practice for their subjectmatter to be
divided, where appropriate, between sections and schedules, the former setting out matters
of principle, and introducing the latter, and the latter containing all matters of detail. This
is purely a matter of arrangement, and a schedule is as much a part of the statute, and as
much an enactment, as is the section by which it is introduced.”
The combined effect of the directives in the third column of the 2nd Schedule to the
Decree is that the oaths may be tendered to the justices of the superior courts by either
the President or the Chief Justice but that (a) the oath of allegiance may be tendered by
any other person authorised by the President, and (b) the judicial oath may be tendered
by any other person authorised by the Chief Justice. We are told the President designated
the Chief Justice to tender the oaths. Under the Decree he need not have done so as the
Chief Justice is himself mentioned in the third column of the 2nd Schedule as a person
who may tender the oaths to the justices.
The 2nd Schedule of the 1992 Constitution states the law in the same terms as it is in the
third column of the 2nd Schedule of the Decree, as amended. However in article 130 of
the 1979 Constitution and article 156(3)(a) of the 1992 Constitution the law is stated
differently. Article 156(3)(a) has already been quoted. Article 130 of the 1979 Constitution
stated as follows:
30
“130. A justice of the Superior Court of Judicature shall, before assuming the functions of
his office, take and subscribe before —
(a) the President, in the case of the Chief Justice and the other justices of the Supreme Court
and
(b) the Chief Justice, in the case of any other such justice, the Oath of Allegiance and the
If this article of the 1979 Constitution meant that only the President could lawfully tender
the oaths to the justices of the Supreme Court, and only the Chief Justice could lawfully
tender them to the justices of the Court of Appeal and of the High Court, then there was
an apparent conflict between it and the 2nd Schedule of that constitution. A similar
apparent conflict arises if article 156(3)(a) of the 1992 Constitution is interpreted to mean,
as counsel suggests, that the President “and no other person”, may tender the oaths to
the justices of the superior courts.
In some respects, the directives in the 2nd Schedule to the 1992 Constitution are
inadequate because whereas article 156(3)(b) gives the Chief Justice power to direct, in
the case of inferior courts that the oath of allegiance be taken before a justice of the
superior court, he is denied that power in the directives which confer the power on the
President alone.
These inadequacies notwithstanding, the question is whether the words suggested by

counsel may properly be imported into article 156(3)(a). It seems to me that since under
the third column of the 2nd Schedule of the Oaths Decree the Chief Justice has power to
tender the oaths to justices of the superior courts, this cannot be done unless we find that
with the coming into force of the constitution there has been a repeal by implication of
the relevant provisions of the Decree.
In Halsbury’s Laws of England, 3 ed Vol 36, para 709, page 465 - 466 we read:
“Repeal by implication is not favoured by the courts for it is to be presumed that Parliament
would not intend to effect so important a matter as the repeal of a law without expressing
its intention to do so. If, however, provisions are enacted which cannot be reconciled with
those of an existing statute, the only inference possible is that Parliament, unless it failed
to address its mind to the question, intended that the provisions of the existing statute
should cease to have effect, and an intention so evinced is as effective as one expressed in
terms. The rule is, therefore, that one provision repeals another by implication if, but only
if, it is so inconsistent with or repugnant to that other that the two are incapable of standing
together. If it is reasonably possible so to construe the provisions as to give effect to both,
that must be done.”
31
In conformity with these principles, the rule of construction is that when a later enactment
is worded in affirmative terms only, without any negative expressed or implied, it does
not repeal the earlier law.
Three cases may be cited by way of illustration. In R v Greenland (1867) 36 LJMC 37 it

was held that section 52 of the Stamp Act 1815 which required that affidavits for the
verification of accounts be made before the Commissioners of Stamps was not
inconsistent with section 7 of the Bank Notes Act 1828 which empowered justices of the
peace to administer such oaths. In Muir v Hore (1877) 47 LJMC 17, which was cited with
approval by this court in Republic v Circuit Court Judge, Accra, ex parte Sakara [1989-
90] 2 GLR 379, it was held that there was no inconsistency and therefore no repeal by
implication of an Act which provided that the offence should be tried by the Queen’s
Bench or the Assizes by a later act which authorised the quarter sessions to try the same
offences. And in Re Ellerton (1864) 33 LJ Bank 32 the court decided that section 109 of the
Bankruptcy Act 1861, which gave power to creditors to decide whether any, or what,
allowance shall be made to the bankrupt up to the time of passing his last examination,
did not repeal section 194 of the Bankruptcy Law Consolidation Act 1849 by which that
power was given to the court, and held that the former power was still in force and may
be resorted to whenever the creditors did not exercise that given them by the later Act.
Article 156(3)(a) is in affirmative terms only, without any negative expressed or implied.
It says simply that justices of the superior courts shall take and subscribe the oaths before
the President. There is no inconsistency with the Decree, as amended or with the 2nd
Schedule of the 1992 Constitution, both of which require that the oath be sworn before
the President, the Chief Justice or such other person as the President may designate, in
the case of the oath of allegiance, and by the President, the justice or such other person as
the Chief Justice may designate in the case of the judicial oath.
Therefore, giving effect to both the constitution and the Decree, I find the law to be that
the President has a prior right to administer the oaths to the justices, but that if he does
not exercise that right the Chief Justice or any other person designated by the President
or the Chief Justice, depending on the oath in question, may do so.
In the matter before us, it is clear that the President waived his right to administer the
oaths to the justices, so that it was lawful for the Chief Justice to administer the oaths to
them. If, out of abundance of caution, the Chief Justice was issued with a document
purporting to come from the President authorising him to administer the oaths that did
not take away his right under the law to do so.
32
For the above reasons, I would dismiss the action.
AIKINS JSC.
The plaintiffs, by their writ, are invoking the original jurisdiction of this court under
article 2(1)(b) of the 1992 Constitution and are seeking, by virtue of that provision, two
declarations in the following terms:
of the Republic of Ghana, all justices of the Supreme Court, Court of Appeal and the High
Court in Ghana holding office immediately before the coming into force of the said
about 23rd or 26th February 1993, respectively, before the Chief Justice is null and void
The basis of the plaintiffs’ claim is contained in a statement of their case which
accompanied the writ, both of which were filed in this court on 18 March 1993 pursuant
to the provisions of rule 46 of the Supreme Court Rules 1970 (CI 13).
The facts of this case as set out by the plaintiffs in paragraph 11 of their statement of case
are as follows:
“On or about 23 February and 26 February, 1993 respectively, the justices of the Supreme
Court of Ghana and the Court of Appeal whose offices have been continued by section 4 of
the 1st Schedule, the Transitional Provisions, of the Constitution, purported to take and
subscribe the oath of allegiance and the judicial oath set out in the 2nd Schedule to the
constitution before the 1st defendant in his capacity as the Chief Justice of the Republic of
Ghana.”
The defendants disputed the claim to the declarations, and in a statement of their case
verified by affidavit and filed on 1 April 1993 replied to the plaintiffs’ case paragraph by
paragraph. As regards the facts the defendants admitted as follows:
33
“The justices of the superior courts of Ghana whose offices have been continued by the
Transitional Provisions took and subscribed to the oath of allegiance and the judicial oath
set out in the 2nd Schedule of the constitution before the 1st defendant in his capacity as
the Chief Justice of the Republic of Ghana on or about 23 February 1993 respectively.”
Article 2(1) of the 1992 Constitution which empowers the plaintiffs to seek the reliefs
itemised in their writ reads as follows:
“2(1) A person who alleges that:
(a) an enactment or anything contained in or done under the authority of that or any other
enactment; or
(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 pertinent provision is clause (1)(b) of the article which deals with “any act or omission
of any person.”
Before proceeding with his main submissions on the claim of the plaintiffs, Mr Peter
Adjetey, leading counsel for the plaintiffs raised two preliminary objections, first to the
composition of the court and asked for the full complement of the Supreme Court,
excluding the Chief Justice (who is the 1st defendant) to sit on this matter to make
pronouncements once and for all. He argued, in effect, that it would be preferable that
the full complement of the court was empanelled to lay down the law in such critical and
vital areas as constitutional interpretation, which would be binding on all members of
the court. The second objection is to the role of the Attorney-General, a co-defendant, as
counsel for all the three defendants since, according to counsel, there would be conflict
of interest, more so that the action was not against the State but against the Chief Justice
and his secretary in the performance of their official duties.
We thought that there was no merit in these submissions and accordingly he was
overruled. The constitution does not lay down any rule that all the justices in the Supreme
Court should be empanelled to adjudicate on any particular issue. The Attorney-General
being the principal legal adviser to the Government could properly represent the Chief
Justice and the Judicial Secretary.
In this case the plaintiffs are seeking two declarations, and the very nature of the reliefs
sought raises an issue as to the interpretation of certain provisions of the 1992
Constitution. The controversy centers upon the taking and subscribing of the oath of
allegiance and the judicial oath scheduled to the constitution by justices of the Supreme
34
Court and the Court of Appeal before the Chief Justice, the determination of which
depends upon an interpretation of the constitution.
In considering the articles of the constitution and the sections of the Transitional
Provisions of the constitution, the interpretation of which gave rise to this controversy,
the language therein has to be given its ordinary everyday meaning. If the language is
clear and the words used are familiar and are in use, the courts need not proceed further
to define them by judicial interpretation. As was stated in Halsbury’s Laws of England,
3rd ed Vol 36 p 392 para 587:
“Words are primarily to be construed in their ordinary meaning or common or popular

sense … [W]here the words used are familiar and are in common and general use in English
language, then (1) it is inappropriate to try to define them further by judicial interpretation
and to lay down their meaning as a rule of construction, and the only question for a court
is whether the words are apt to cover or to describe the circumstances in question in a
particular case, and (2) evidence that they are used in some special and peculiar sense is
not admissible.”
This court in Tuffuor v Attorney-General [1980] GLR 637 at 647 succinctly put the issue
in this way:
“The constitution has its letter of the Law. Equally the constitution has its spirit … Its
language, therefore must be considered as if it were a living organism capable of growth
and development as the body politic of Ghana itself is capable of growth and development.
A broad and liberal spirit is required for its interpretation. It does not admit of narrow
interpretation. A doctrinaire approach to interpretation would not do. We must take
account of its principles and bring that consideration to bear, in bringing it into conformity
with the needs of the time.”
Arguing in support of the first leg of the claim, leading counsel for the plaintiffs urged
that “on a true and proper construction of the combined effect of article 156, section 4 of
the 1st Schedule and what have been described as the oath of allegiance and the judicial
oath in the 2nd Schedule to the 1992 Constitution, the oath of allegiance and the judicial
oath, when taken and subscribed by justices of the Supreme Court, the Court of Appeal
and the High Court, whether holding office immediately before the coming into force of
the constitution or appointed later, are required mandatorily by the Constitution to be
taken before the President of the Republic of Ghana, and that the footnotes to the oath of
allegiance and the judicial oath merely mean that these oaths may be taken and
subscribed before the President of the Republic of Ghana or before the Chief Justice,
depending upon whether it is Superior Court justices who are taking and subscribing the
said oaths, or it is ‘any other person’, in the language of article 156(3) of the Constitution.”
35
Article 156 of the 1992 Constitution provides that:
“(1) A Justice of the Superior Court, the Chairman of a Regional Tribunal, and also a
person presiding over a lower court or tribunal and any other judicial officer or person
whose functions involve the exercise by him of judicial power shall, before assuming the
exercise of the duties of his office, take and subscribe the Oath of Allegiance and the Judicial
Oath set out in the Second Schedule to this Constitution.
subscribed -
(b) in the case of any other person, before the Chief Justice or before any other Justice
direct.” (Emphasis supplied.)
The language of clause (3) of this article, in my opinion, shows clearly that the framers of
the constitution intended that the mode of taking and subscribing the oath of allegiance
and the judicial oath shall be restricted to justices of the superior court mentioned in
clause (1) of article 156, i.e. such justices appointed after the coming into force of the
Constitution who are mandated to take the said oaths before assuming the exercise of the
duties of their office.
The oath of allegiance and the judicial oath as contained in the 2nd Schedule are in the
following terms:
“THE OATH OF ALLEGIANCE
I, … do (in the name of the Almighty God swear) (solemnly affirm) that I will bear true
faith and allegiance to the Republic of Ghana as by law established; that I will uphold the
sovereignty and integrity of Ghana; and that I will preserve, protect and defend the
Constitution of the Republic of Ghana. (So help me God).
To be sworn before the President, the Chief Justice or such other person as the President
may designate. “
36
“THE JUDICIAL OATH
I, ... having been appointed (Chief Justice/a Justice of the Supreme Court/a justice of the
Court of Appeal/a Justice of the High Court of Justice, etc) do (in the name of the Almighty
God swear) (solemnly affirm) that I will bear true faith and allegiance to the Republic of
Ghana as by law established; that I will uphold the sovereignty of the Republic of Ghana;
and that I will truly and faithfully perform the functions of my office without fear or favour,
affection or ill-will; and that I will at all times uphold, preserve, protect and defend the
Constitution and laws of the Republic of Ghana. (So help me God).
To be sworn before the President, the Chief Justice or such other person as the Chief Justice
may designate.”
I will postpone the arguments of counsel touching on the interpretation of the 2nd
Schedule and the footnotes, and proceed to comment on section 4 of the Transitional
Provisions of the 1992 Constitution since this step, in my view, will lead to a better
appreciation of the law involved.
The section deals with the continuance of the appointments of justices of the superior
courts. It states:
“4(1) A Jjustice of the Supreme Court, the Court of Appeal or the High Court holding office
as if appointed to that office under this constitution.
A casual glance at the constitutional history of this country reveals that even though the
Constitution, 1969 made provision for taking and subscribing the oath of allegiance and
the judicial oath by a justice of the superior courts before assuming office under article
118 of the said constitution, no provision was made either in the body of the constitution
itself or in the Transitional Provisions in the 1st Schedule to the constitution for justices
holding office immediately before the coming into force of the said constitution. The only
provision made for existing officers, which I think includes a justice of the superior courts,
is in section 9(1) of the Transitional Provisions of that Constitution which states:
“Subject to the provisions of this section, and save as otherwise provided in this
Constitution, every person who, immediately before the coming into force of this
Constitution held or was acting in any office established –
37
(a) by or in pursuance of the proclamation for the constitution of the National Liberation
Council for the administration of Ghana and for other matters connected therewith dated
the twenty-sixth day of February, 1966, or
(b) in pursuance of a Decree of the National Liberation Council, or
(c) by or under the authority of that Council, shall, as far as is consistent with the
provisions of this Constitution, be deemed to have been appointed as from the coming into
force of this Constitution to hold or to act in the equivalent office under this Constitution
for a period of six months from the date of such commencement, unless before or on the
expiration of that date, any such person shall have been appointed by the appropriate
appointing authority to hold or act in that office or some other office.”
In a situation like this I think it would be prudent on re-appointment before or on the

expiration of the period of six months, as from the coming into force of that constitution,
for any such judge of the Superior Court of justice to take and subscribe the oath of
allegiance and the judicial oath set out in the 2nd Schedule to that constitution in
accordance with the provisions of article 118 of the constitution before assuming the
functions of his office.
Article 118 reads as follows:
“118. A judge of the Superior Court of Judicature shall, before assuming the functions of
his office, take and subscribe before
(a) the President, in the case of the Chief Justice, and
(b) the Chief Justice, in the case of any other such judge, the Oath of Allegiance and the
Judicial Oath set out in the 2nd Schedule to this Constitution.”
The 1979 Constitution, however, made a slight change in the mode of taking and
subscribing the oath of allegiance and the judicial oath by other justices of the Supreme
Court. Article 130 of that constitution provided that:
“A justice of the Superior Court of Judicature shall, before assuming the functions of his
office, take and subscribe before
38
(a) the President, in the case of the Chief Justice, and the other justices of the Supreme
Court; and
(b) the Chief Justice, in the case of other such justice, the Oath of Allegiance and the Judicial
Oath set out in the 2nd Schedule to this Constitution.”
As to a justice already at post before the coming into force of the constitution, clauses (8)
and (9) of article 127 of the 1979 Constitution made the following provisions:
“(8) Subject to the provisions of clause (9) of this article, a justice of the Superior Court of
Judicature holding office as such immediately before the coming into force of this
Constitution shall be deemed to have been appointed as from the coming into force of this
Constitution to hold office as such under this Constitution.
(9) A Justice to whom the provisions of clause (8) of this article apply shall, on the coming
into force of this Constitution, take and subscribe the Oath of Allegiance and the Judicial
Oath set out in the Second Schedule to this Constitution.” (Emphasis supplied).
These provisions were not reproduced in the main body of the 1992 Constitution, but
were rather reproduced with certain modifications in the Transitional Provisions of the
constitution as section 4. The question is why did the framers of the 1992 Constitution
choose to do this and not be content with their reproduction in the main body of the
Constitution? The answer is obvious and will be made clear later in this judgment.
In construing the provisions of section 4 of the Transitional Provisions and other articles
of the 1992 Constitution, it is pertinent to bear in mind the provisions of article 299 of the
constitution. That article states:
“The transitional provisions specified in the First Schedule to this Constitution shall have
effect notwithstanding anything to the contrary in this Constitution.”
This simply means that the said Transitional Provisions take precedence over the
constitution and are superior to the body of the constitution. The language is plain and
leads to no controversy. It implies therefore that if by the normal rules of construction
there is a conflict between any article of the constitution and a section of the said
Transitional Provisions, the latter will prevail. The provisions of section 4(2) of the
Transitional Provisions cannot by any stretch of imagination be said to be in accord with
those of article 156(3) of the constitution and as long as the inconsistency exists the
provisions of section 4(2) prevail and hold sway over article 156(3) which by the terms of
its provisions governs the taking and subscribing of the two oaths by a justice before
assuming the exercise of the duties of his office.
39
It is argued that article 156 of the 1992 Constitution introduced the 2nd Schedule to the
constitution and that in interpreting section 4 and the 2nd Schedule this court has to have
recourse to article 156. For me I find it difficult to appreciate the logic and legal basis of
this argument. I reject it. The article does not introduce the 2nd Schedule per se. It merely
refers to the forms scheduled to it, and the law is that a scheduled form may be referred
to for the purpose of throwing light on the construction of a doubtful or ambiguous
enactment. See Thomas v Kelly (1888) 13 App Cas 506, HL at 511 and Halsbury’s Laws of
England Vol 36 3rd ed para 603 p 399.
But even in this context it must be remembered that where the words of the statute are in
themselves precise and unambiguous it is not necessary to proceed further than expound
those words in their natural and ordinary sense which declare the intention of the
legislature. As Maxwell states in the opening paragraph of his treatise, Interpretation of
Statutes 11 ed:
“A statute is the will of the legislature … in that a statute is to be expounded according to

the intent of them that made it.”
I think the construction which counsel seeks to put upon section 4 would nullify in great
measure its usefulness.
It is further argued that the footnotes to the forms of oaths prescribed in the 2nd Schedule
to the constitution should not be taken to restrict or modify the meaning of article 156.
The Attorney-General controverts this contention. The thrust of his argument is that the
footnotes form part of the oaths and that they are part of the Schedule. Counsel for both
parties seek inspiration from a passage at page 374 para 551 of Halsbury’s Laws of
England 3rd ed Vol 36. The passage refers to schedules to a statute and says simply that
“a schedule is as much a part of the statute, and as much an enactment, as is the section
by which it is introduced.”
I concede that footnotes are not part of the enactment or schedules to an enactment, but I
do not see how it can be successfully argued that they do not aid the interpretation of the
enactment. They can be used as guides. It is to be observed that the framers of these
footnotes and marginal notes are generally persons of good education, intelligence and
understanding, and if the framers of the oath of allegiance say that the oath is “to be
sworn before the President, the Chief Justice or such other person as the President may
designate” and speak also of the Judicial oath that the oath is “to be sworn before the
President, the Chief Justice or such other persons as the Chief Justice may designate” why
should such notes be completely ignored?
40
I admit that here in Ghana by virtue of the Interpretation Act 1960 (CA 4) marginal notes,
footnotes and references placed at the side of any enactment are meant for convenience
of reference only and do not form part of the enactment. But as Collins MR rightly said
in Bushell v Hammond [1904] 2 KB 563 at 567, CA, “some help will be derived from the
side- note (though of course it is not part of the statute) which shews that the section is
dealing with” certain matters.
Be that as it may, it is my view that this court is justified by the very language of section
299 in ignoring the provisions of article 156(3) as far as section 4(2) of the Transitional
Provisions are concerned, whatever coherence or symmetry that article 156 may have
with the constitution as a whole. The process of swearing the oath of allegiance and
judicial oath under section 4 is directly referable to sections 25 and 31 of the Transitional
Provisions of the constitution. These sections provide:
“25. The Oaths Decree, 1972 (NRCD 6), as amended, shall have effect subject to the
provisions of this constitution …
31. (1) Where any matter that falls to be prescribed or otherwise provided for under this
Constitution by Parliament or by any other authority or person, is prescribed or provided
for by or under any existing law or is otherwise lawfully prescribed or provided for
immediately before the coming into force of this Constitution, that prescription or provision
shall, as from the coming into force of this Constitution, have effect with such
modifications, adaptations, qualifications and exceptions as may be necessary to bring it
into conformity with this Constitution as if made under this Constitution by Parliament
or, as the case may be, by the other authority or person.
(2) For the avoidance of doubt, and without prejudice to the general effect of subsection (1)
of this section, where anything is required or authorised by this Constitution to be
prescribed or provided for by or under an Act of Parliament, it shall be deemed to be duly
prescribed or provided for, if it has been prescribed or provided for by or under an Act,
Decree, or a Law in force immediately before the coming into force of this Constitution.”
The Chief Justice is authorised generally to administer any lawful oath or take any lawful
affirmation which may be required to be taken or made for the purpose of complying
with any law for the time being in force in Ghana or elsewhere, except where such law
expressly or by necessary implication excludes such procedure. The provisions of this
section, in my view, empowered the Chief Justice to administer the oaths of the President
and the Vice-President before Parliament under articles 57(3) and 60(5) of the 1992
Constitution even though no procedure for administering the oaths have been provided
41
in the Constitution except the footnotes (or indicators, if I may term them so) under the
said oaths set out in the 2nd Schedule to the constitution.
The words in section 4 are plain, and they mean what they say, and are to be expounded
in their ordinary and natural sense. As long as the primary or popular or literal meaning
of those words is not disputed, there is no need for the words to be interpreted. Section
4(1) merely says that a justice of the superior courts holding office immediately before the
coming into force of the Constitution, shall continue to hold office as if appointed to that
office under the constitution. The phrase “as if” as defined by the Advanced Learner’s
Dictionary of Current English 2nd ed means simply “as it would be if” or “as though”,
and examples are given to explain the meaning in the following terms - “he talks as if he
knew all about it” “he looks as if he had seen a ghost.”
The provisions of section 4(1) are differently worded from those of article 127(8) of the
antecedent 1979 Constitution. Article 127(8) says that such justice, holding office
immediately before the coming into force of the constitution, shall be deemed to have
been appointed as from the coming into force of the Constitution to hold office as such
under the constitution. As was pointed out by this court in Tuffuor v Attorney-General,
supra at p 660 “the phrase, ‘shall be deemed’ is a legislative device which is resorted to
when a thing is said to be something else which it, in fact, is not. When a thing is to be
“deemed” something else, it is to be treated as that something else with its attendant
consequences.”
Perhaps if clauses (8) and (9) of article 127 of the 1979 Constitution had been imported
into the main body of the current constitution, the argument of the leading counsel for
the plaintiffs that the oaths required to be taken can only be properly taken in accordance
with article 156 would have been a bit meaningful.
As it is, I, for my part, seem to agree with the submission of the Attorney-General that
the oaths taken before the Chief Justice did not violate the constitution, and I so hold.
The next submission by the leading counsel for the plaintiffs is that, since the President
is the legal representative of the State, and the justices of the superior courts take their
authority directly from the State, the oaths must be taken before the President, and that
the nature of the oaths themselves is such that it is only appropriate that they are taken
before the President, and not before any other person, be he the Chief Justice whose
relationship with the superior court justices is primus inter pares, and such justices
should not take their oath before their “equal.”
I confess I am unable to follow the logic or legal basis of this reasoning. Articles 57(3) and
60(5) enjoined the President, the Head of State, the Head of Government and
42
Commander-in-Chief of the Armed Forces of Ghana and the Vice-President, the two top-
most officers of State, to take and subscribe before Parliament the oath of allegiance and
the Presidential Oath and also the Vice-Presidential Oath before assuming office. If it was
thought fit, convenient and prudent, if not logical for the Chief Justice who is on a lower
rung of the ladder of precedence to administer those oaths, no doubt by virtue of section
9 of the Oaths Decree 1972 (NRCD 6) which had been specifically recognised and saved
by section 25 of the Transitional Provisions to the 1992 Constitution, not to mention the
sacrosanctity of the oaths and the accompanying footnotes (for reference only), I wonder
why it should be considered an abomination and a legal perversion for justices to take
their oaths before him.
But for the provision of section 4(2) of the Transitional Provisions of the 1992
Constitution, which overrides section 3 of the Oaths Decree 1972, there would have been
no need for the sitting justices of the superior courts having taken the two oaths before
the coming into force of the 1992 Constitution, to take again those oaths, unless any of the
oaths is different from or in addition to that duly taken by them. This is the essence of the
provision of section 25 of the Transitional Provisions of the Constitution.
However, though the footnotes or indicators under the oaths set out in the 2nd Schedule
to the Oaths Decree 1972 may not form part of the Schedule, the indicators in the 2nd
Schedule to the Oaths Decree 1972 do not form part of the Schedule. This is made clear
by section 2 of the Decree which states:
“2. The oaths specified in the first column of the Second Schedule shall be taken by
a person appointed to an office set out in the second column of that Schedule and
shall be administered by the authority specified in the third column of that
Schedule.”
The oath of allegiance and the judicial oath are specified in the Second Schedule to
the Decree as follows:
Nature of Oath
(a) Oath of Allegiance
(b) Judicial Oath
Person to take Oath
Justices of the Superior Court of Judicature
43
–do–
Person to tender Oath
Chairman of the National Redemption Council or the Chief Justice or such other
person as the Chief Justice may designate.
–do–
In my view counsel’s submission is hardly tenable, and I have not the slightest
hesitation in rejecting it.
Touching on paragraph 8 of the defendants’ amended statement of case which

stated that the President had designated the Chief Justice by letter No OP/S 550
dated 22 February 1993 to administer the oath of allegiance and the judicial oath
to justices of the superior courts, leading counsel for the plaintiffs submitted that
under the 1992 Constitution the President has no authority to delegate his
functions to administer the oaths to the Chief Justice, and that even if the President
had such authority no proper delegation had taken place in this case. Counsel
further urged that the President is a creature of the constitution and therefore
derives all his authority and powers from the constitution, but no article of the
constitution gives him power to delegate under such circumstances. He further
contended that if the President had authority to delegate, it must be done under
his own hand and under the Presidential seal. The letter under consideration was
signed by Mr Ato Dadzie “of the President’s Office.”
In reply the Attorney-General argued that any person who writes from the office of the
President may be described as an assistant to the President under article 297(h) and (i)
and that the letter signed by Mr Ato Dadzie can be classified under clause (i). He urged
that under those clauses the President might delegate his power, but in this case, it was
not a matter of delegation, but that of designation.
I find it difficult to follow the logic of the Attorney-General’s submission. Article 297(i)
contains “words directing or empowering a Minister of State to do an act or a thing” and
the designation of the office of a Minister is said to include a person acting for him and
also his successors in office and all his deputies or other assistants. There is no evidence
on record to show that Mr Ato Dadzie’s is an assistant to the Minister. In any event, Mr
Ato Dadzie’s letter indicated that he was working in the office of the President and
conveying the authorisation in the name of the President and not that of a Minister of
State. In my view, neither clause (h) nor clause (i) of the article supports the Attorney-
44
General’s contention that the said letter is a proper document to delegate presidential
authority.
As to the submission by the leading counsel for the plaintiffs that no article gives the
President power to delegate, it seems to me that on a closer look at article 297(c) the
President had the power to do so. The clause states:
“Where a power is given to a person or authority to do or enforce the doing of an act or a

thing, all such powers shall be deemed to be also given as are necessary to enable that person
or authority to do or enforce the doing of the act or thing…”
If counsel’s submission is correct it would seem that the President would be bogged down
in his effort to get his instructions carried out as quickly as possible, especially in an
emergency.
But the question is: did the letter under reference properly convey the authorisation of
the President to delegate or designate the Chief Justice to undertake the assignment? It
seems to me that under clause (5) of article 58 that letter, to be legally valid, should have
been authenticated by the signature of a Minister of State.
That clause runs thus:
“A constitutional or statutory instrument or any other instrument made, or issued or

executed in the name of the President shall be authenticated by the signature of a Minster
and the validity of any such instrument so authenticated shall not be called in question on
the ground that it is not made, issued or executed by the President.”
I therefore agree with counsel that no proper delegation had taken place by the authority
of the letter.
Learned counsel was unable to cite any authority to support his contention that the
President can only delegate his authority validly by an instrument under the Presidential
seal. No authority has also come my way in support of that contention. I would therefore
reject it.
Be that as it may, it is my judgment that the oaths taken by the justices of the superior
courts before the Chief Justice or the oaths administered by him, were in order, proper
and constitutional, and were not null and void as claimed by the plaintiffs, and I do so
hold.
In the result, I would for my part dismiss the plaintiffs’ action because none of the claims
for declaration has been made out.
45
WIREDU JSC.
In this action the plaintiffs, representing the Ghana Bar Association are claiming the
following declarations:
Court in Ghana holding office immediately before the coming into force of the said
about 23rd or 26th February 1993, respectively, before the Chief Justice is null and void
The 1st plaintiff is the National President of the Association. The second is the National
Vice-President and the 3rd is the National Secretary. The 1st defendant is the Chief Justice
of Ghana. The 2nd defendant is the Judicial Secretary and the 3rd is the Attorney-General.
The pith of the plaintiffs’ case is that all continuing Superior Court judges are enjoined
under the 1992 Constitution by section 4(2) of the 1st Schedule (Transitional Provisions)
to take and subscribe the oath of allegiance and the judicial oath as set out in the 2nd
Schedule to the constitution in accordance with the mode provided under article 156(3)(a)
of the constitution.
The defendants have joined issue with the plaintiffs and, for their part, contended that
section 4, 1st Schedule of the Transitional Provisions was silent as to the mode in which
such oaths were to be taken and subscribed to and that the swearing-in of the continuing
judges of the superior courts, about which the plaintiffs were complaining, was
legitimately carried out and was not in violation of any provision of the constitution as
contended by the plaintiffs.
When hearing commenced before us on April 20 1993, leading counsel for the plaintiffs,
Mr Peter Ala Adjetey (SAG), raised two preliminary points for consideration. The first
concerned the composition of the court and the second was, in effect, an objection to the
Attorney-General, the 3rd defendant, representing the 1st and 2nd defendants.
Learned counsel argued that in view of the important nature of the case, it would be in
the public interest if all the justices had the opportunity of pronouncing their opinions on
46
the matter. We summarily dismissed the two points raised and allowed the proceedings
to continue. We indicated that we would give our reasons later. I will therefore begin my
judgment by expressing my opinion first on the two preliminary points.
Leading counsel for the plaintiffs informed the court in the course of his argument that
the plaintiffs had written to the Chief Justice, the 1st defendant, about the issue of the
composition of the court and had requested for a full bench but had had no response to
their request. He therefore felt it proper to raise the matter in court. A copy of that letter
was tendered and accepted as SC1.
In my respectful view the submission made on behalf of the plaintiffs did not persuade
me as legally commendable. The right to empanel judges to sit on cases has by
convention, use and practice become the exclusive preserve of the Chief Justice. He has
constitutional responsibility for the smooth administration and supervision of the
Judiciary. He is the constitutional head of the Judiciary. The right to empanel justices by
the Chief Justice is in accordance with precedent and authority. He has no power to
delegate or waive that responsibility or that duty in favour of any other person whilst in
office and able to act. I am sure that the plaintiffs must have realised and recognised this
position of the Chief Justice hence their request to him in their letter, exhibit SC1.
It is not being alleged that the Chief Justice had illegally acted or that he was incompetent
to empanel the court or that he did so in bad faith or that the court was wrongly
constituted which would have given us a cause to examine the issue. The Chief Justice
having declined to do what the plaintiffs requested in exhibit (SC1) that brought the
matter to an end. In the absence of any cause to justify the court interfering with the
exercise of a power which is his exclusive preserve, the matter must rest there.
On the second preliminary point about the propriety of the Attorney-General, the 3rd
defendant, representing the 1st and 2nd defendants, on the ground that he himself is a
defendant in the case, I am of the respectful view that the Attorney-General should not
have been sued. According to the leading counsel for the plaintiffs the present action is
not against the State but one personally against the Chief Justice and the Judicial Secretary
in the performance of their official duties. One may ask, what part did the 3rd defendant
play in the matters complained of by the plaintiffs to make him answerable to a court
action. See Rule 57(3) of CI 13.
It will be right to say that this is an action which the Attorney-General has been wrongly
made a party and it does not lie in the plaintiffs’ mouth to use this to deny him the right
to represent 1st and 2nd defendants, the Chief Justice and the Judicial Secretary, who
have been sued in the performance of their official duties. On the face of the plaintiffs’
47
case, it was incompetent for them to have sued the 1st and 2nd defendants jointly with
the Attorney-General. I will not conjecture what arguments the plaintiffs would have
urged in respect of this representation if he had not been sued. I will, therefore, rest the
matter here.
Now to the main issue in controversy between the parties. I think it will be pertinent at
this stage to remind ourselves of the standard of proof required to sustain declarations of
the nature being sought by the plaintiffs. In my respectful view the standard of proof is
very high since the constitution is the supreme law of the land which the defendants have
all sworn to defend and any violation of its provisions is normally punishable. The
standard must therefore be equated to that required in penal cases. This would demand
that the plaintiffs in order to succeed must rely on the strength of their own case by
proving beyond doubt that the actions of the defendants which have provoked their
action is unconstitutional. Any weakness therefore in the defence should not avail the
plaintiffs.
It was contended on behalf of the plaintiffs that in order to satisfy the constitutional
requirement as to the taking of the oath of allegiance and the judicial oath, the provisions
of article 156 must be read together with section 4 of the 1st Schedule of the Transitional
Provisions of the constitution. According to the leading counsel for the plaintiffs, the
combined effect of the two would be the only way by which the constitutional
requirement could be satisfied.
The plaintiffs pleaded in paragraphs 13 to 16 of their statement of case as follows:
“13. The plaintiffs will contend that the contention by the 2nd defendant, that because
section 4 of the Transitional Provisions did not specify before whom justices holding office
immediately before the coming into force of the constitution shall take and subscribe the
oath of allegiance and the judicial oath, this leaves room for such justices to take and
subscribe such oaths before the Chief Justice, is seriously misconceived and ignores the
fundamental requirements with regard to the administration of the oath of allegiance and
the judicial oath as contained in section 156 of the constitution.
14. The plaintiffs further contend that neither the footnotes to the forms of oaths prescribed
in the Second Schedule to the Constitution, nor Section 4 of the First Schedule, that is to
say, the Transitional Provisions of the Constitution, nor Article 156 of the said
Constitution, should be read in isolation from one another.
15. The plaintiffs will contend that on a true and proper construction of the combined effect
of article 156, section 4 of the First Schedule and what have been prescribed as the oath of
allegiance and the judicial oath in the Second Schedule to the 1992 Constitution, the oath
48
of allegiance and the judicial oath, when taken and subscribed by justices of the Supreme
Court, the Court of Appeal and the High Court, whether holding office immediately before
the coming into force of the constitution or appointed later, are required mandatorily by
the constitution to be taken before the President of the Republic of Ghana and that the
footnotes to the oath of allegiance and the judicial oath merely mean that these oaths may
be taken and subscribed before the President of the Republic of Ghana or before the Chief
Justice, depending upon whether it is superior court justices who are taking and
subscribing the said oaths, or it is “any other person” in the language of article 156(3) of
the constitution.
16. The plaintiffs will consequently contend that the purported taking and subscribing of
the oath of allegiance and the judicial oath before the Chief Justice of the Republic of Ghana,
the 1st defendant herein, on 23 and 26 February 1993, by the justices of the Supreme Court
and the Court of Appeal, were null and void and of no effect whatsoever and ought to be so
declared.”
The defence by paragraphs 4 to 10 of the statement of defence pleaded as follows:
“4. The defendants say that save that the 1st defendant is the Chief Justice of the Republic
of Ghana appointed before the coming into force of the Constitution 1992 and whose
appointment is continued in force under the Transitional Provisions paragraph 4 of the
statement of plaintiffs’ case is denied.
5. The defendants aver that save that justices of the superior courts of Ghana whose office
have been continued by the Transitional Provisions took and subscribed to the oath of
allegiance and the judicial oath set out in the 2nd Schedule of the constitution before the
1st defendant in his capacity as the Chief Justice of the Republic of Ghana on or about 23
February and 26 February 1993 respectively paragraph 11 of the statement of the plaintiffs’
case is denied.
6. The defendants deny paragraphs 13, 14, 15 and 16 of the statement of the plaintiffs’ case
in so far as they allege that the 1st defendant in his capacity as Chief Justice of Ghana
violated any provisions of the Constitution 1992 in administering the oath of allegiance
and the judicial oath to justices of the superior courts who continue to hold office by virtue
of the Transitional Provisions of the constitution.
7. The defendants say in additional denial of paragraphs 14 and 15 of the statement of

plaintiffs’ case that the indicators to the forms of oaths prescribed in the 2nd Schedule, and
article 156 of the Constitution are not imperative as to the person before whom continuing
justices of the superior courts under the Transitional Provisions are to take their oath of
49
allegiance and judicial oath as the Transitional Provisions take effect notwithstanding
anything to the contrary in the constitution.
8. The defendants say in further denial of paragraphs 14 and 15 of the statement of the
plaintiffs’ case that the 1st defendant as Chief Justice of the Republic is the proper person
under section 4 of the Oaths Decree NRCD 6, the constitution and the Transitional
Provisions to administer the oath of allegiance and judicial oath to the continuing justices
of the superior courts.
9. The defendants say further that the constitutional provisions on the taking and
subscribing of the oath of allegiance and the judicial oath in the schedule to the constitution
by a justice of a superior court, a chairman of a regional tribunal and other judicial officers
and persons before assuming the exercise of the duties of his office do not and cannot be
applicable to a justice of the Supreme Court, Court of Appeal or High Court holding office
immediately before the coming into force of the constitution who continue to hold office as
if appointed to that office under the constitution.
10. The defendants in the premises deny that the plaintiffs are entitled to the reliefs
claimed.”
The defendants also amended their statement of case by adding the following:
“The defendants say further or in the alternative that the President properly designated
the 1st defendant, the Chief Justice, by letter which is annexed hereto, to administer the
oath of allegiance and the judicial oath to the justices of the superior courts whose
appointments continued under the Transitional Provisions.”
This letter was with the leave of the court allowed.
A careful examination of the pleadings in this case reveal that there is one area of common
agreement among the parties and that is, the view that section 4 of the 1st Schedule (the
Transitional Provisions) is relevant to determining the issue joined between them. They
part company however, at the point where the plaintiffs contended that section 4 ought
to be read together with the provisions of article 156 of the constitution and not in
isolation.
According to the plaintiffs when so read their combined effect leaves no doubt that the
swearing-in on the days specified in their statement of case were devoid of any legality
and are therefore null and void.
50
To the above, the defence submitted that there was no legal justification for the demand
to read section 4 of the 1st Schedule of the Transitional Provisions, together with article
156. According to the Attorney-General, the language of the two does not permit that
construction since section 4 makes no reference to article 156 nor does article 156 make
reference to section 4 either. According to the Attorney-General, article 156 applied only
to superior court justices who are yet to be appointed under article 144 and not to
incumbent justices who were continuing their duties of office as was envisaged under
section 4. But for the provisions of section 4(2), the latter would not be required under
NRCD 6 to take and subscribe the oaths. According to him, the provisions of section 4(2)
were fully complied with and that the procedure adopted was and that the plaintiffs’
action should be dismissed as unproved.
I shall now examine the scope of the provisions of the constitution referred to by the
learned counsel in their statements of case and submissions in order to determine which
of the two rival views is to be preferred, bearing in mind that the burden rests heavily on
the plaintiffs to establish their case in view of the grave nature of the indictment against
the defendants. Section 4 of the 1st Schedule (the Transitional Provisions) of the
constitution provides as follows:
“(1) A justice of the Supreme Court, the Court of Appeal or the High Court holding office
as if appointed to that office under the Constitution.
the 2nd Schedule to the Constitution.”
The 2nd Schedule to the constitution prescribes the following forms for the Oath of
Allegiance and the Judicial Oath:
“THE OATH OF ALLEGIANCE
I … do (in the name of the Almighty God swear) (Solemnly affirm) that I will bear true
faith and allegiance to the Republic of Ghana as by law established; that I will uphold the
sovereignty and integrity of Ghana; and that I will preserve, protect and defend the
Constitution of the Republic of Ghana (So help me God)
51
To be sworn before the President, the Chief Justice or such other persons as the President
may designate.
THE JUDICIAL OATH:
I, ... having been appointed (Chief Justice/a justice of the Supreme Court/a justice of the
Court of Appeal/justice of the High Court of Justice, etc.) do (in the name of the Almighty
God swear) (Solemnly affirm) that I will bear true faith and allegiance to the Republic of
Ghana as by law established; and that I will truly and faithfully perform the functions of
my office without fear or favour, affection or ill-will; and that I will at all times uphold,
preserve, protect and defend the Constitution and laws of the Republic of Ghana. (So help
me God).
To be sworn before the President, the Chief Justice or such other person as the Chief
Justice may designate.”
Article 156 of the constitution reads as follows:
“(1) A Justice of a Superior Court, the Chairman of a Regional Tribunal and also a person
presiding over a lower Court or Tribunal and any other judicial officer or person whose
functions involve the exercise by him of judicial power shall, before assuming the exercise
of the duties of his office, take and subscribe the Oath of Allegiance and the Judicial Oath
set out in the Second Schedule to this Constitution.
(2) The President may, on the advise of the Chief Justice direct that any other person
connected with the exercise of judicial power shall take and subscribe the Judicial Oath.
subscribed–
(a) in the case of the Chief Justice or other Justice of a Superior Court and a
Chairman of a Regional Tribunal before the President; and
(b) in the case of any other person, before the Chief Justice or before any other justice
direct.”
While the plaintiffs contend that it is the combined effect of section 4 supra and article
156 of the constitution supra which comply with the requirement of the constitution to
justify the swearing-in of superior court justices holding office on the coming into force
52
of the constitution, the defence say that all the materials relevant to satisfy the
requirement of the constitution in so far as they relate to such justices are contained in
the Transitional Provisions with particular references to section 4 and section 25 of the
Transitional Provisions without reference to any of the provisions in the main body of the
constitution. The Transitional Provisions is the heart of the defendants’ case.
I will first examine the language in section 4 and see whether in its true construction it
will be necessary to consider the provisions of article 156 of the constitution. That
approach will in my respectful view be in line with the true spirit of the language of article
299 of the constitution. This article gives supremacy to the Transitional Provisions. They
are given priority and preference over the other provisions in the body of the constitution.
In effect article 299 has placed the Transitional Provisions in a world of its own. It reads:
“299. The transitional provisions specified in the First Schedule to this Constitution shall
have effect notwithstanding anything to the contrary in this Constitution.” (The
emphasis is mine.)
A careful examination of the language of section 4(2) of the 1st Schedule of the
Transitional Provisions of the constitution clearly reveals (a) the forms of oaths i.e. the
oath of allegiance and judicial oath (b) that they are set out in the 2nd Schedule to the
constitution.
The next question to answer is which provision of the constitution recognises the forms
of oath as are set out in the 2nd Schedule to the constitution? An answer to this question
can be found in section 25 of the Transitional Provisions as pleaded by the defendants.
This section recognises, by express language the existence of the oaths by giving legal
cognisance to the continuity of the Oaths Decree NRCD 6 as amended by the constitution
and subject to its provisions. The section reads:
“The Oaths Decree, 1972 (NRCD 6), as amended shall have effect subject to the provisions
of this Constitution.”
NRCD 6 as amended by the constitution is to be enforced subject to the provisions of the

latter to the extent within the particular context of this case in so far as section 4(2)
demands the swearing-in of continuing superior court justices otherwise it would not
have been necessary for the incumbent justices of the superior courts to swear the oaths
again. See NRCD 6 para 3. It is further amended by the expansion of the language of the
oaths.
In order, therefore, to find a correct answer to the issues raised for the determination in
this case in spirit with the provision of article 299 of the constitution, one must first
53
exhaust the provisions under the Transitional Provisions, in so far as they relate to justices
who are being ushered into the 4th Republic.
Section 4 of the 1st Schedule (the Transitional Provisions) of the constitution makes no
mention or reference in its language to article 156 neither does article 156 make reference
to section 4. In fact there is no legally acceptable nexus between the two for them to be
read together. It is therefore, highly inconceivable how any articulate judicial mind can
be persuaded to read the two provisions together.
Section 4 supra is silent as to the mode, manner and the procedure to be followed
mandatorily in the taking and subscribing to the oaths therein specified. It prescribes no
time limit within which the oaths must be subscribed nor does it provide any procedure
to be followed. The language of article 156 however is clear, precise and unambiguous.
Under it a mandatory procedure for taking and subscribing to the oath has been
prescribed and it is limited to justices covered by that article. Under article 156 the
authority mandated to swear-in justices of superior courts cannot be delegated.
The makers of the constitution cannot be said to have been unaware of this provision and
the procedure therein spelt out. In fact they are presumed to be aware of it. If they had
intended or contemplated that the procedure prescribed under article 156 to govern the
requirement envisaged under section 4(2) supra they would have specifically stated so
and in no uncertain terms by adding immediately after the phrase “2nd Schedule to the
Constitution” the words “as provided under article 156 (3) of this Constitution.” The
absence of such clear words to that effect leaves room for any other permissible procedure
to be resorted to. In the absence of such clear words, one would be committing fatal
violence and would be doing unpardonable injustice to the language and spirit of section
4(2) supra by restricting its legitimate parameters of operation. Moreover, the language
of article 156 emphasises the words or the phrase “before assuming the exercise of his
duty of office.”
The justices within the contemplation of section 4(2) supra have already assumed the
duties of their office and are continuing within the language and spirit of the
constitutional provisions under 4(1). If such justices were within the contemplation of
article 156, as is being urged on behalf of the plaintiffs, the provision would read as
follows: “A justice of a Superior Court… shall before assuming the exercise of the duties
of his office under this constitution, take and subscribe… in 156 (1).” (The emphasis is
mine.)
The indicators spelt out under the 2nd Schedule to the form of oaths derive their authority
from section 25 of the Transitional Provisions. They are not reflections or extensions of
54
the procedure prescribed under article 156. They are part of the general legal forms of
oaths under the 2nd Schedule to the Constitution. They are creatures of NRCD 6 and are
recognised by section 25 of the Transitional Provisions.
By the 2nd Schedule of NRCD 6, the indicators (with particular reference to the oath of
allegiance and the judicial oath) specify the persons authorised to tender or administer
them. It will be seen clearly there that the power of the Chief Justice to tender or
administer such oaths is second to the President in order of preference. The authority of
the Chief Justice, as shown in the indicators, is concurrent and in fact is co-ordinate with
that of the President. He has this power in his own right and that power emanates from
NRCD 6 itself. Within the particular context of this case, it was exercised outside the
provisions of article 156.
The Chief Justice was described in the submission as primus inter pares the other justices
of the superior court and therefore incompetent to swear-in his colleagues. With due
respect that submission was a complete misconception of the status of the Chief Justice.
He is under the constitution, the head of the Judiciary, responsible for the general
administration and supervision of the Judiciary - article 125(4). When sitting in the
Supreme Court, he is the President of that court - article 128 (2). He is the first judge of all
the other superior courts in the country; see articles 136 and 139. He sits in all the other
courts in his own right as member of those courts. No Supreme Court judge can sit in any
of the other Courts without his written authority. I cannot sit in the Court of Appeal
without the authority of the Chief Justice because I am not a member of that court; but I
can be invited by the Chief Justice to sit as an additional judge of that court even though
the Supreme Court, of which I am a member, is higher than the Court of Appeal in the
hierarchy. The Chief Justice is the head of the third organ of State.
The procedure for his appointment, removal and resignation are different from the
procedure laid down in the constitution for the appointment removal and resignation of
the other superior court justices: see articles 144 and 160. Commonsense therefore dictates
that if the President who is the first citizen of the State, the Vice-President and the Speaker
of Parliament, in that order of precedence, should be sworn-in by the Chief Justice. One
is at a loss with the submission that the Chief Justice could not swear-in other superior
court judges who come under the organ of State of which he is the head even in the
absence of clear, prohibitive language. The President swears-in members of his cabinet,
of which he is the head.
The Speaker of Parliament swears-in members of Parliament who work under his
directions. It is therefore, legitimate, in the absence of any mandatory words restraining
the Chief Justice, to be competent to swear-in the other justices of the superior courts.
55
Such a prohibition must be specifically proved beyond doubt that the Chief Justice has
been restrained by the constitution by express provision to swear-in continuing superior
court judges as expressly stated in article 156.
Articles 57(3) and 60(5) enjoin the President and the Vice-President to take and subscribe
the oath of allegiance, the oaths for the President and the Vice-President respectively,
without prescribing who should administer those oaths. However, the indicators set out
in the form of oaths in the 2nd Schedule under which those oaths are set out clearly show
who should administer them. It is clear therefore that the indicators set out in the form of
oaths in the 2nd Schedule to the constitution are to be read as part of the schedule, as
guidelines in themselves and not as footnotes or extensions of provisions in the
constitution that refer to the schedule. The schedule is as much a part of the statute and
is as much an enactment as any other part; per Brett LJ in Attorney-General v Lamplough
(1878) 3 Ex D 214 at 229.
In the absence therefore of any mandatory procedural provision in section 4 of the 1st
Schedule of the Transitional Provisions requiring the swearing-in of the justices of the
superior court continuing in office under the constitution, what was done was legitimate
and permissible and cannot be said to have violated any provision of the constitution.
The law as I understand it is that where a statute, speaking on some points is silent as to
others, usage may well supply the defect. There is precedent in the history of our courts
under written constitutions where the Chief Justice has had to swear in other justices of
the superior courts. See article 118 of 1969 Constitution and also article 130 of the 1979
Constitution; in the latter save Supreme Court justices. The latter were excluded because
they were not continuing Supreme Court justices. They were in fact assuming office as
such justices of the Supreme Court. It is therefore not unknown in the history of our
courts where other justices of superior courts have been sworn-in by the Chief Justice.
The indicators to the forms of oath show that the authority to administer the oath under
the 2nd Schedule of the 1969 Constitution, which provides the forms of oath, is similar in
all the three constitutions. The argument therefore, that section 25 of the Transitional
Provisions is the law which recognises the continuation of NRCD 6 under the 1992
Constitution to support the legality of the forms of oaths set out in the 2nd Schedule,
ought to be preferred to the argument that the indicators derive their authority from the
article which merely makes mention of them.
Section 9 of NRCD 6, as amended by the constitution under section 25 of the Transitional

Provisions, gives the Chief Justice a concurrent authority in his own right to administer
the two oaths. In the absence, therefore of any express prohibitive language, to the
56
contrary, in section 4 of the First Schedule, Transitional Provisions against the swearing-
in of continuing justices of the superior courts, what was done was legitimate.
An attempt was made to find out why there should be two different modes of
administering the oath of allegiance and the judicial oath for continuing justices and those
to be appointed under article 154 of the constitution. My short answer is that, in my
respectful view, that is the clear and unambiguous language of section 4 of the 1st
Schedule (the Transitional Provisions) and article 156 of the Constitution respectively.
The language of the two admit of no other interpretation. The two provisions make it
clear that the constitution recognises and envisages two kinds of justices of the superior
courts i.e. those holding office on the coming into force of the constitution who are to
continue under section 4 and those to be appointed under article 154 who are to take and
subscribe the oaths before assuming the exercise of their duties of office, as required by
article 156. Any attempt to find an answer to that question would be speculative and will
throw us into the realm of conjecture.
It is pertinent to note that article 145(1) provides different retiring ages for both Supreme
Court and the Appeal Court judges on the one hand and those of the High Court and the
chairmen of the Regional Tribunal on the other, although these are all superior court
judges. Why the differences? One should not speculate the answer.
The legal force of the submissions on behalf of the plaintiffs, though ingeniously,
brilliantly and confidently urged, pale into insignificance when one looks at the mighty
force of the language of article 299 which has placed the 1st Schedule of the Transitional
Provisions in their own world by clothing them with supremacy over the other provisions
in the main body of the constitution.
In other words, where an act can be legitimately done within the framework of the 1st
Schedule of the Transitional Provisions, no consideration should be given to any other
article in the body of the constitution which runs contrary to the act lawfully done.
Sections 4 and 25 of the Transitional Provisions, which in my respectful view are relevant
to determining the matter in controversy between the parties, take the swearing-in of
continuing justices of the superior courts out of the provisions of other articles in the main
body of the constitution.
I hold in my judgment therefore, that the contention by the defence that the Transitional
Provisions of the constitution provide sufficient material to justify what was done by the
1st defendant in the view expressed by the 2nd defendant as pleaded in paragraph 13 of
the statement of case of the plaintiffs, supra is legal and right. I am also satisfied in my
judgment that it is legally unacceptable, in the face of the clear and unambiguous
57
language of section 4 of the 1st Schedule (Transitional Provisions) of the constitution, to

read its provision together with article 156 of the constitution which latter provision I find
is only applicable to justices to be appointed under the construction and especially in the
instant case would do injustice to the spirit and language of article 299 and therefore
unacceptable.
In the result, I find in my judgment that the plaintiffs have failed to make out their case
against the defendants and I will accordingly dismiss their action.
Before I am done, I would like to make a brief observation on the effect of the annexure
to the amended defence pleaded in the alternative, i.e. the letter of 22 February 1993
reference OP/S 500 from the office of the President. The contents of this letter, when read
in the light of the 1st defendant’s act which provoked the present action, in its spirit and
true intent, can be construed as a letter from the President’s office to the effect that the
President, who on the indicators had concurrent authority with the Chief Justice to
administer such oaths under section 4(2) of First Schedule of the Constitution, has waived
his own right and opted in favour of the 1st defendant to swear-in the continuing justices
of the superior courts.
This in my respectful view did not involve a delegation of power. The 1st defendant has
under the constitution a concurrent right to administer the oaths in question with the
President. He did not derive his authority from that letter. In that regard, the letter in
effect is otiose. I therefore do not wish to make any further comment on that letter.
In the result, I find in my judgment that the plaintiffs have failed to make out their case
against the defendants and I will accordingly dismiss their action.
BAMFORD-ADDO JSC.
The plaintiffs in this case have invoked the original jurisdiction of this court and are
seeking an interpretation of certain provisions of the 1992 Constitution, under article 2
thereof, by praying for declarations:
(1) that by the combined effect of article 156(1), (2) and (3) of the Transitional
Provisions, the 1st Schedule and the 2nd Schedule of the Constitution of the
Republic of Ghana 1992, all justices of the Supreme Court, the Court of Appeal and
High Court of Ghana, holding office immediately before the coming into force of
the said constitution are obliged to take and subscribe the oath of allegiance and
the judicial oath set out in the 2nd Schedule to the said constitution, before the
President of the Republic of Ghana only and not before any other person.
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(2) that the purported taking and subscribing of the oath of allegiance and the
judicial oath by justices of the Supreme Court, and the Court of Appeal of Ghana
on or about 23 and 26 February 1993 respectively by the Chief Justice of Ghana, is
null and void and of no effect whatsoever.
Before going on to argue the substance of the case, senior learned counsel for the
plaintiffs, Peter Ala Adjetey Esq, raised two preliminary issues regarding the composition
of the court and the position of the Attorney-General in the case as representing the Chief
Justice. He submitted in respect of the composition of the court that all the members of
the Supreme Court minus the Chief Justice should be empanelled to sit on this case
because it is an important constitutional case and the final decision of the court would
carry more weight if all judges were given the opportunity to pronounce on the matter.
The Attorney-General in his answer to this submission referred the court to article 128(2)
of the 1992 Constitution which said that:
“The Supreme Court shall be duly constituted for its work by not less than five Supreme
Court Justices except as otherwise provided in article 133 of this Constitution.”
He submitted that five judges could have legally sat on the case and that by increasing
the number to seven, the provisions of article 128(2) have been more than satisfied.
I agree with the Attorney-General. Instead of five, seven judges have been empanelled to
sit, and the increase from the normal five to seven is undoubtedly an indication of the
importance of the case to the authority empanelling the court. It is also true that the
decision of this court would be as authoritative as any given by all the members of the
Supreme Court sitting together. Moreover to accede to the plaintiffs’ request to increase
the composition of the court would be tantamount to permitting litigants to chose their
own judges or allowing them to dictate the manner in which the Chief Justice should
perform his duties. This, if permitted would undermine the administration of justice in
the country.
The second preliminary issue argued by the plaintiffs’ counsel is that the Attorney-
General, being himself the 3rd defendant in this case, cannot appear for the Chief Justice
who is the 1st defendant. He submitted also that since the responsibilities of counsel are
different from those of litigants there might be conflict of interest if the Attorney-General
were permitted to appear not only for himself but also for the Chief Justice.
The answer to this submission, as I see it, is that both the Judicial Secretary and the
Attorney-General should not have been made defendants in this case in the first place,
59
but only the Chief Justice, who is alleged to have contravened some provisions of the
constitution.
If, as counsel says, the case is not against the Government but against the Chief Justice
personally, then he was the proper person to be sued, not the Attorney-General or the
Judicial Secretary who played no role in the swearing-in of the judges by the Chief Justice
and should therefore be dismissed from the suit. However under the Supreme Court
Rules 1970 (CI 13) rule 45(3) even if the Attorney-General is not named specifically as a
defendant he should be served with the writ, and under rule 48(3) may, if he chooses, file
an answer within fourteen days of the service on him of the statement of the plaintiffs’
case or when ordered by the court to do so. This way, the Attorney-General comes into a
constitutional case and can appear for a defendant, in this case the Chief Justice.
It is for the above reasons that I concur with the overruling of the two preliminary issues
raised by the plaintiffs.
I now turn to the main substance of the case. Simply put the case of the plaintiffs is that
the combined effect of article 156 clauses (2) and (3) and section 4 of the 1st Schedule of
the Transitional Provisions to the 1992 Constitution obliges all superior court judges, both
those in office immediately before the coming into force of the said constitution and also
new judges to be appointed under article 144, to take and subscribe the oath of allegiance
and the judicial oath before the President and no other person. Therefore the taking of
such oaths by judges of the Supreme Court and the Court of Appeal in February 1993
before the Chief Justice was unconstitutional, null and void and of no legal effect
whatsoever.
The opposing view of the Attorney-General is that the said oaths were properly taken
before the Chief Justice by virtue of the authority given to the Chief Justice under sections
4 and 25 of the 1st Schedule i.e. the Transitional Provisions and the 2nd Schedule of the
1992 Constitution; that the provisions of article 156 cover only future judges to be
appointed under article 144 and do not affect superior court justices holding office
immediately before the coming into force of the constitution, who have been referred to
in these proceedings as “sitting” judges. Consequently it is the contention of the
Attorney-General that the “sitting” judges properly took their oaths before the Chief
Justice.
It is a matter of disagreement between the plaintiffs and the defendants on the proper
interpretation of the relevant provisions of the 1992 Constitution that we are being called
upon to resolve.
60
Article 2 of the 1992 Constitution has given the Supreme Court the exclusive jurisdiction
of interpreting the constitution and in the exercise of this function I would like to refer to
the case of Tuffour v Attorney-General [1980] GLR 637 at 647 wherein the nature, sanctity
and mode of interpretation of the 1979 Constitution were discussed and which is as
relevant today to the 1992 Constitution as it was to the 1979 Constitution. In that case
Sowah JSC stated, and I wish to adopt and re-echo those sentiments here:
“A written constitution such as ours is not an ordinary Act of Parliament. It embodies the
will of the 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.
The constitution has its letter of the law. Equally, the constitution has its spirit. It is the
fountain-head for the authority which each of the three arms of Government possesses and
exercises. It is a source of strength. It is a source of power. The executive, the legislature
and the judiciary are created by the constitution. Their authority is derived from the
constitution. Their sustenance is derived from the constitution. Its methods of alteration
are specified. In our peculiar circumstances, these methods require the involvement of the
whole body politic of Ghana. Its language therefore must be considered as if it were a living
organism capable of growth and development. Indeed it is a living organism capable of
growth and development, as the body politic of Ghana itself is capable of growth and
development. A broad and liberal spirit is required for its interpretation. It does not admit
of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must
take account of its principles and bring that consideration to bear, in bringing it into
conformity with the needs of the time.
And so we take cognisance of the age-old fundamental principle of constitutional

construction which gives effect to the intent of the framers of this organic law. Every word
has an effect, every part must be given effect...” (Emphasis mine.)
I wish to refer to the following case as to how to discharge our duties of statutory
interpretation. Denning LJ in Seaford Court Estates v Asher [1949] 2 KB 481 at 498 said:
“Whenever a statute comes up for consideration it must be remembered that it is not within
human power to foresee the manifold sets of acts which may arise and that even if it were,
it is not possible to provide for them in terms free from all ambiguity. The English language
is not an instrument of mathematical precision ... A judge, believing himself to be fettered
by the supposed rule that he must look to the language and nothing else, laments that the
draftsmen have not provided for this or that or have been guilty of some other ambiguity.
It would certainly save the judges trouble if Acts of Parliament were drafted with divine
prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot
61
simply fold his arms and blame the draftsman. He must set to work on the constructive
task of finding the intention of Parliament, and he must do this not only from the language
of the statute, but also from a consideration of the social conditions which give rise to it,
and of the mischief which it was passed to remedy, and then he must supplement to written
words so as to give “force and life” to the intention of the legislature.”
Guided by these principles I shall presently endeavour to interpret the relevant articles
mentioned in this case by applying certain relevant canons of construction known to the
law.
The first principle of interpretation is to give words in a statute their ordinary meaning.
If this yields a reasonable result the matter ends there, if not then one goes on to apply
other canons of statutory interpretation. According to Halsbury’s Laws of England 3rd
edition Vol 36 p 391 paragraph 584-585:
“It is not competent to any court to proceed upon the assumption that Parliament has made
a mistake, there being a strong presumption that Parliament does not make mistakes. If
blunders are found in legislation they must be corrected by the legislature, and it is not the
function of the court to correct them. Thus while terms can be introduced into a statute to
give effect to its clear intention by remedying mere defects in language and to remedy
obvious misprints or misnomers no provision which is not in the statute can otherwise be
implied to remedy an omission. If there is nothing to modify, nothing to alter, nothing to
qualify the language which a statute contains, the words and sentences must be construed
in their ordinary and natural meaning.” (Emphasis supplied.)
Broadly the general method of interpreting statutes or constitutions is to give words their
ordinary meaning and if the ordinary meaning makes sense of the passage then the
intention as deduced therefrom must be given effect. It is only when the construction
leads to absurdity or is ambiguous that one is required to look elsewhere or to resort to
the application of other principles of interpretation in order to ascertain the true meaning
and intention of the legislature.
As Tindal CJ said in the Sussex Peerage Case (1844) 11 Cl & Fin 85 HL at 143:
“The only rule for construction of Acts of Parliament is that they should be construed
according to the intent of the Parliament which passed the Act. If the words of the statute
are in themselves precise and unambiguous then no more can be necessary than to expound
those words in their natural and ordinary sense. The words themselves alone do, in such
case, best declare the intention of the lawgiver.”
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Another important canon of construction which would later be seen to be applicable to

this case is the one which requires that every word in a statute has a meaning and must
be interpreted to give effect to it. See Halsbury’s Laws of England, 3rd edition Vol 36 para
582 where it is stated:
“A statute must, if possible, be construed in the sense which makes it operative and nothing
short of impossibility so to construe it shall allow a court to declare a statute unworkable
... It is not permissible to treat statutory provisions as void for mere uncertainty ...”
Paragraph 583 also states:
“It may be presumed that words are not used in a statute without a meaning and are not
tautologous or superfluous, so effect must be given, if possible, to all words used, for the
legislature is deemed not to waste its words or say anything in vain.”
An illustration of this principle can be found in R v Bishop of Oxford (1879) 4 QBD 545 at
261 per Cockburn CJ:
“It was suggested on the part of the bishop that the words “if he shall think fit” in s 3
should be rejected as superfluous. To do this we answer that in so doing we should violate
a settled canon of construction, namely, that a statute ought to be construed that, if it can
be prevented, no clause, sentence, or word shall be superfluous, void or insignificant.”
In the same vein, in the case of Canada Sugar Refining Co v R (1898) AC 735 at 741 it was
stated by Lord Davey that:
“Every clause of a statute should be construed with reference to the context and other
clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole
statute or series of statutes to the subject-matter.”
I shall examine the words in article 156 and interpret them by giving them their ordinary
meaning. As stated in Tuffuor v Attorney-General, supra, holding (5):
“The duty of the court in interpreting the provisions of article 127(8) and (9) was to take
the words as they stood and give them their true construction, having regard to the
language of the provisions of the Constitution, always preferring the natural meaning of
the words involved, but nonetheless giving the words the appropriate construction
according to the context.”
Counsel for the plaintiffs has invited us to give the provisions of article 156 (3)(a), dealing
with the judicial oath of the Superior Court judges therein-mentioned, a broad meaning
so as to include also the particular class of judges referred to in section 4 of the
63
Transitional Provisions (the 1st Schedule) of the constitution, namely the superior court
judges already at post before the coming into force of the 1992 Constitution.
For ease of reference it would be necessary to set out the provisions of article 156 in full:
“156 (1) A Justice of a Superior Court, the Chairman of a Regional Tribunal and also a
person presiding over a lower court or tribunal, and any other judicial officer or person
whose functions involve the exercise by him of judicial power shall, before assuming the
exercise of the duties of his office take and subscribe the oath of allegiance and the Judicial
Oath set out in the Second Schedule to this constitution.
subscribed in the case of the Chief Justice or other Justice or a Superior Court and a
(b) In the case of any other person, before the Chief Justice or before any other justice of a
Superior Court or Chairman of a Regional Tribunal as the Chief Justice may direct.”
To ascertain the ordinary meaning of article 156(3)(a) it is necessary to find out the
ordinary meaning of the word “before.” “Before” is defined in the Oxford Advanced
Learners Dictionary as “earlier in time … ahead of”. If this is the meaning to be given to
the word “before” in article 156 then the ordinary meaning of clause (3)(a) is that the
Chief Justice, or other justices of the Superior Court and chairmen of Regional Tribunals
are required to take and subscribe the judicial oath and the oath of allegiance before they
can assume their functions as judges. Quite clearly the taking of the oaths is a condition
precedent to the assumption of duties as indicated by the word “before.” Further it seems
to me that the clear intention is that article 156 should apply to the class of judges
mentioned in article 156.
But the plaintiffs’ counsel argues that article 156 should be interpreted to apply to all
classes of judges both those in office immediately before the coming into force of the 1992
Constitution or “sitting” or continuing judges as well as all future judges to be appointed
under article 144 of the constitution. This interpretation is disputed by the Attorney-
General who is of the view that the provisions of sections 3, 4 and 25 of the Transitional
Provisions are the proper provisions applicable to the appointment and swearing-in of
“sitting” judges.
64
To arrive at a proper interpretation of the sections referred to in the Transitional

Provisions, one must ascertain the intention of the drafters of the constitution as gathered
from the ordinary meaning of the words used therein.
Section 3 of the Transitional Provisions states that the Supreme Court, the Court of
Appeal and the High Court in existence immediately before the coming into force of the
constitution shall be deemed to have been established under the constitution and shall
continue to perform the functions of those courts specified in Chapter 11 of the
constitution. Section 4 of the Transitional Provisions provides:
“4(1) A Justice of the Supreme Court, the Court of Appeal or the High Court holding office
Constitution take and subscribe the oath of allegiance and the judicial oath set out in the
Second Schedule to this Constitution.”
Section 4 of the Transitional Provisions, unlike article 156 provided no specific point in
time for taking the oaths, no mention was made of the President as the only person
entitled to administer the said oaths and the list of judges did not include a chairman of
a regional tribunal, which is a new post created under the constitution. So then one would
ask, before whom are the sitting judges to take their oaths? It is my view that the key to
this question can be found in the provisions of section 25 of the Transitional Provisions
and the Second Schedule of the 1992 Constitution. According to section 4(2) the oaths of
allegiance and judicial oath specified in the Second Schedule are those to be sworn by the
“sitting” judges listed in section 4. But section 25 provides also that:
“The Oaths Decree, 1972 (NRCD 6) as amended shall have effect subject to the provisions
of this Constitution.”
Since section 25 and every word in that section must be given effect, section 25 must
necessarily mean that the Oaths Decree 1972 as amended should be read together with
section 4(2). The amendment to NRCD 6 as I see it can be found in section 4(2) which
specifies that the oaths to be sworn are in the mode and form set out in the Second
Schedule of the constitution, in other words, not those set out in the First Schedule to
NRCD 6. The oaths in the Second Schedule of the constitution are longer and more
detailed than those in the First Schedule of NRCD 6 and to that extent NRCD 6 has been
amended.
65
In my opinion this is the proper meaning of section 25. It would be unjustified to read
sections 4 and 25 in any other way because in my view, to do so would be to give a
meaning different from the ordinary meaning of those words. There is a difference
between the words “before assuming the exercise of the duties of his office” contained in
article 156 and the words “shall continue to hold office” in section 4(1) of the First
Schedule, Transitional Provisions.
Whereas the former phrase implies the time when the oaths are to be taken, as well as the
requirement of satisfaction of a precondition by the use of the word “before” the latter
implies that the precondition has already been complied with and the office-holder is
permitted to “continue” to hold office.
These two provisions are referable to two different classes of judges namely future
superior court judges to be appointed under article 144 of the constitution, and those who
have already been appointed and exercising judicial functions before the coming into
force of the 1992 Constitution. The former class of judges are required under article
156(3)(a) to take and subscribe their oaths before the President, and the latter class in
accordance with the provisions of sections 4 and 25 of the Transitional Provisions and the
Oaths Decree 1972 (NRCD 6).
Counsel for the plaintiffs is of the view that since section 4(2) did not mention the
President as the authority to administer the oaths, as was done in article 156(3)(a), this
word “the President” must be implied and that it is the President and President only who
can administer the oaths to continuing judges under section 4(2).
I disagree with counsel on this issue, because to accept this view would be to ignore the
provision of section 25 and import words not intended into section 4. This would be
wrong as it would be contrary to the intention of drafters of the constitution which
appears in the provision of section 25. If counsel’s view is correct, why did the
constitution specifically mention the President in article 156, but omit him in section 4,
and not only that, but went on to make further provision in section 25?
In the absence of section 25, counsel’s view would have been tenable and the inference
that the President is the authority to administer the oaths to the class of judges specified
in section 4 acceptable. However it is neither the footnotes to the 2nd Schedule of the
constitution nor article 156 which designates the authority to administer the oaths for the
“sitting” judges, but the cumulative effect of sections 4 and 25 of the Transitional
Provisions as well as NRCD 6 that indicates the proper authority namely, the President
or the Chief Justice.
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Furthermore the rule is that where a later statute incorporates by reference the whole or
any part of an earlier statute into the later statute the whole of the provisions in the earlier
statute should be read into the later one (in this case as amended) as if set out in full
therein. See Re Barker (1881) 17 Ch D 241 CA, per James LJ at 243:
“Here the 8th section of the Partition Act says in so many words that in any sale effected
under the authority of that Act, the Court is to deal with the money in exactly the same
way as it would be dealt with under the Settled Estates Act – that is to say, we must read
the Act of Parliament as if all the 23rd to 25th clauses of the Settled Estates Act were
repeated totidem verbes in the Partition Act.”
Applying the principle in the Barker case it is from the Oaths Decree 1972 (NRCD 6) as
read together with section 4 that we can find the proper authority to administer the oaths
to “sitting” judges.
NRCD 6 states in section 2 that:
“The oaths specified in the first column of the Second Schedule shall be taken by a person
appointed to an office set out in the second column of that Schedule and shall be
administered by the authority specified in the third column of that Schedule.” (Emphasis
mine.)
The 2nd Schedule to section 2 of NRCD 6 specifies that the oath of allegiance and the
judicial oath for justices of the Superior Court of Judicature i.e. Supreme Court, Court of
Appeal and High Court, shall be taken before “the Chairman of NRC, (now President),
the Chief Justice or such other person as the Chief Justice may designate.” It can be seen
clearly that either the President or the Chief Justice is entitled to swear-in Superior Court
judges. The intention gathered from the language of NRCD 6 is clear to me and, given
their ordinary meaning, must be interpreted in the way I have done.
Even though it is the Second Schedule to NRCD 6 that designates the Chief Justice as the
officer to administer the relevant oath that schedule must be given the same weight and
force as the provision in article 156(3)(a). This designates the President as the one to
administer the oath to the class of judges therein-mentioned. This is because a schedule
is as much a part of a statute and as ,much an enactment as the section by which it is
introduced. In Attorney-General v Lamplough (1878) 3 Ex D 214 at 229 Brett LJ said:
“We come to the remaining part of the schedule. With respect to calling it a schedule, a
schedule in an Act of Parliament is a mere question of drafting a mere question of words.
The schedule is as much a part of the statute and is as much an enactment as any other
part.”
67
See also Inland Revenue Commissioner v Gittus [1920] 1 KB 563 at 575 and also the case
of Panagotis v SS Pontiac [1912] 1 KB 74 at 79 where Farwell LJ stated:
“The Act of 1906 is divided into three parts the 1st part being in the usual form of Act
followed by three schedules. I do not know the reason of such division, which is extremely
inconvenient for purposes of reference, but in my opinion the schedules must be treated as
part of the Act and the Act must be read as if it were divided into parts with sections
running on in the usual way. As Lord Asher says in Attorney-General v Lamplough “with
respect to calling it a schedule a schedule in an Act of Parliament is a mere question of
drafting - a mere question of words. The Schedule is as much a part of the statute and is as
much an enactment as any other part.”
Therefore, the fact that the Chief Justice derives his authority to swear in the judges from
a schedule does not detract from its binding force but has the same authoritative effect as
provisions of article 156(3)(a) of the constitution.
Counsel for the plaintiffs appeared to have excluded the provision of section 25 from his
consideration, therefore his attention was drawn to that section. In reply to a question
from the court as to the effect of section 25 of the Transitional Provisions he replied that
that section was to be treated as superfluous and that in his opinion it made no difference
to the interpretation which should be put on article 156, to the effect that that article
covers all superior court judges including “sitting judges” mentioned in section 4 of the
Transitional Provisions. He argued that section 4 should be read together with article
156(3)(a) to the total exclusion of section 25.
In other words we are being asked to ignore or wish away the provision in section 25 and
to impute or supply the absent word namely, ‘President’, into section 4.
I am afraid that in the absence of compelling words to the effect that the President should
swear in judges specified in section 4, I cannot accept counsel’s invitation to treat the
words in section 25 which provide the key to the proper interpretation of section 4 as
superfluous. In an enactment no word is allowed to be ignored, every word has a
meaning and must be interpreted to be effective, and nothing short of impossibility
would permit a word or provision to be ignored.
Therefore section 25 must be interpreted and made operative by reading it together with
the other relevant provisions of the constitution. It is in so doing that the intention or the
will of the people becomes crystal clear to the discerning mind.
68
I am not implying that section 4 wears its meaning on its sleeve, far from that. Its meaning
cannot be ascertained at first glance but only after a patient and thorough examination of
all the relevant provisions of the constitution that the section yields its secret and the
answer leaps out.
Therefore without positive words, I cannot, in the face of clear words, read into section 4
the meaning which counsel seeks to put on it namely, that the provisions of article 156
are by implication applicable to section 4.
Another aspect to which I must avert my mind is the question whether the provisions of
article 156 are in conflict or contradict those of section 4. My view is that the two
provisions are neither in conflict nor contradictory, the reason being that those two
provisions deal with different classes of judges and are contained in different parts.
Article 156 deals with those to be appointed under article 144 and section 4 of the
Transitional Provisions affects those judges specified in section 4 i.e. “sitting judges.”
But even assuming that they conflict, which I deny, there is a proper and legal way to
resolve the conflict. The principle of law is that whenever in an enactment there appears
general provisions as well as particular provisions which are contradictory the particular
provisions are to be considered as an exception to the general rule, and should be made
effective despite the general provisions. In the case of Pretty v Solly 26 Beav 606 at 265
Romilly MR stated thus:
“The rule is, that whenever there is a particular enactment and a general enactment in the
same statute, and the latter, taken in its most comprehensive sense, would overrule the
former, the particular enactment must be operative, and the general enactment must be
taken to affect only the other parts of the statute to which it may properly apply… Again
wherever two parts of the statute are contradictory, the Court endeavours to give a distinct
interpretation to each of them looking at the context.”
See also Ebbs v Boulnois 10 Ch 484 to the same effect and Churchill v Crease (1828) 5 Bing
1028 at 1030 per Best CJ:
“… the rule is, that where a general intention is expressed and the act expresses also a
particular intention incompatible with the general intention, the particular intention is to
be considered in the nature of an exception.”
Therefore since article 156 contains general provisions of universal application and
section 4 contains particular provisions to be applied to a limited class of judges, section
4 should be considered as an exception to article 156 and be given effect.
It is also pertinent to note the provisions of article 299 namely:
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“The Transitional Provisions in the First Schedule to this Constitution shall have effect
notwithstanding anything to the contrary in this Constitution.”
Article 299 dispels any doubt that article 156 is not to be read with section 4. This article
means that irrespective of anything to the contrary in the constitution, the Transitional
Provisions, including sections 4 and 25 are to apply and be made operative. In the face of
these clear provisions I do not find myself warranted to hold any other view than that
section 4 and 25 of the Transitional Provisions should apply to “sitting” judges.
Another argument advanced on behalf of the plaintiffs why the Chief Justice cannot
administer the oaths to the Supreme Court judges is that being equal in all respects it
would be discriminatory for the Chief Justice to swear before the President and the other
judges to swear before the Chief Justice and for this reason the Chief Justice cannot be the
proper authority to administer the relevant oaths to the superior court judges.
With respect I doubt the soundness of this reasoning. An oath is a pronouncement or

swearing to the truth of a statement or promise usually by an appeal to God to witness
its truth. An oath is taken when it is required by law to be taken by any particular person
or official on appointment, usually before assuming office (as stated in article 156 by use
of the word “before”). It is the same statute which normally designates the authority to
administer the oath and it does not necessarily follow that the designated person should
be higher in rank to the official required to take the oath. This is purely a matter of
convenience, the important thing is that the oath must be sworn, of course, before the
proper person designated.
An example is that the President who is higher in rank than the Chief Justice is required
to take the oath of allegiance before the Chief Justice because he cannot administer it to
himself. So also the Chief Justice takes the oaths before the President even though he is
also a person designated to administer the oaths to all superior court judges including
himself under the Oaths Decree 1972 (NRCD 6). In fact he was only complying with the
law when he swore in the judges and his action being in conformity with constitutional
provisions the swearing-in cannot be said to be null and void; nor can it be said that
because he is of the same status and equal in all respects with the other Supreme Court
judges, he cannot be a proper person to administer the oaths in the face of clear provisions
of section 4 an 25 of the Transitional Provisions as well as NRCD 6 authorising him to do
so.
There is another issue worthy of consideration which was raised on behalf of the
plaintiffs, even though I think it is irrelevant to the resolution of the dispute in this case.
Counsel ably and rightly submitted that the letter written by Mr Ato Dadzie, which the
70
Attorney-General referred to in the statement of defence as amounting to a delegation of

power by the President to the Chief Justice to administer the oaths, was of no effect and
could not authorise the Chief Justice to administer the oaths. The letter stated that:
“In conformity with section 4 Part III (Transitional Provisions) of the Constitution the
President has designated the Chief Justice to swear-in the judges of the superior courts.”
The Attorney-General made a feeble attempt to rely on this letter in an alternative defence
and argued that this authorised the Chief Justice to swear in the judges, which attempt I
think he rightly abandoned.
If, as I see, the Attorney-General was relying on sections 4 and 25 of the Transitional
Provisions as the authority by which the Chief Justice acted, then his alternative defence
is not only unnecessary and irrelevant but also misconceived and erroneous because
under sections 4 and 25 of the Transitional Provisions and NRCD 6 it is not the President
but the Chief Justice who is permitted to designate another person to swear in judicial
officers.
Counsel also submitted that in any case the President could not even delegate his
functions under article 156(3)(a) to the Chief Justice. After a careful reading of article
297(j) which states:
“Where a power is conferred or a duty is imposed on the holder of an office as such, the
I am inclined to agree with counsel on this point. It is the duty of the President to perform
the swearing-in of the Superior Court judges himself under article 156(3)(a) but in his
absence this function can be performed by the Vice-President or any other person when
acting as President. It follows that the swearing-in of future judges to be appointed under
article 144 must be done by the President himself and that he cannot delegate his powers
to the Chief Justice under article 1563)(a) or to any other person other than as specified
under article 297(j).
I would like finally to conclude that for the above reasons, I am of the firm view that the
Chief Justice rightly swore-in the superior court judges. All the canons of statutory
construction lead me to this inevitable conclusion and no amount of logic, inferences or
resort to the spirit of the constitution can be allowed to override stout, clear and explicit
constitutional provisions, to the effect that under article 156(3)(a) the President should
swear-in all future judges of superior courts to be appointed under article 144 of the
constitution but that either the President or the Chief Justice can swear in “sitting” judges
71
under section 4 of the Transitional Provisions of the constitution. Therefore the swearing-
in by the Chief Justice of the superior court judges holding office immediately before the
coming into force of the 1992 Constitution is lawful and not null and void.
I cannot end without commenting on the benefit that, speaking for myself, I have derived
from the brilliant exposition of senior counsel for the plaintiffs, Mr Peter Adjetey, and
which has aided me in arriving at the view that I have reached. I might also add that in
bringing to the Supreme Court this as the first constitutional case under the 1992
Constitution, the Bar Association, through the plaintiffs, has demonstrated its firm
resolve to defend the constitution by preventing any breaches of its provisions. Surely
this is a positive contribution towards the realisation of the people’s desire to live in peace
and harmony under a just constitutional order where the will of the people as contained
in the constitution is scrupulously obeyed or enforced.
HAYFRON-BENJAMIN JSC.
I have no doubt in my mind that there are serious constitutional issues involved in this
case. However, ever since the promulgation of the 1992 Constitution, otherwise called
“the Constitution of the Fourth Republic”, the armchair constitutional experts and the
wiseacres have had a field day interpreting in the print and electronic media what they
believe to be the true meaning of the provisions of the constitution. Of course the
constitution guarantees these “experts” the freedom to express themselves and to air their
views.
Unfortunately the plaintiffs, the Ghana Bar Association, fell into this very mould and in
the exercise of their undoubted right of freedom of expression presumed to instruct and
gratuitously advise His Lordship the Chief Justice, the 1st defendant, in an open letter
dated 4 March 1993 that:
“It is therefore clear that the taking and subscribing of the judicial oath before you as Chief
Justice, by members of the Supreme Court on 23 February 1993 and the Court of Appeal
on 26 February 1993 were unconstitutional and illegal acts, flying in the face of express
constitutional provisions.”
Those were strong words, but the plaintiffs were undaunted. They concluded the “open
letter” by demanding that His Lordship the Chief Justice should “take rapid steps to
rectify the breach of the constitution occasioned by the events of the 23 and 26 February
1993 by ensuring immediate and due compliance with the provisions of article 156 of the
constitution in relation to all the members of the superior courts.”
72
In spite of these presumptuous and gratuitous advice the plaintiffs did not suggest how
His Lordship, the Chief Justice, was going to commit the volte-face and comply with
article 156 of the 1992 Constitution. No doubt the plaintiffs had at the back of their minds
the traditional sankofa principle that if one makes a mistake one could always turn
around and do the correct thing; that is in the case of the Chief Justice if he agreed with
the views expressed in the open letter of the plaintiffs then His Lordship would arrange
for the superior court judges to assemble before His Excellency the President and be re-
sworn.
The plaintiffs were not, it seems, aware of the provisions of section 3(1) of the Oaths
Decree 1972 (NRCD 6) which states as follows:
“3(1) No person who has duly taken the Oath of Allegiance or the Judicial Oath shall be
required again to take that oath on appointment to any other office on any other occasion.”
It must be said in passing that not a single argument was advanced to us by the parties
with respect to the NRCD 6 as is referred to in section 25 of the Transitional Provisions
which in my view is part of the constitution.
However the 2nd defendant who is also the Judicial Secretary disagreed with the
opinions expressed by the plaintiffs, the Ghana Bar Association in their open letter to His
Lordship, the Chief Justice. At a press conference held by the 2nd defendant and
published in the national daily newspaper, the Daily Graphic, captioned “Reaction to
GBA letter” on Saturday 13 March 1993 the Judicial Secretary fully expressed a contrary
opinion and advised “the GBA to go to the Supreme Court for interpretation of the
relevant clauses instead of resorting to newspaper publication.”
On 18 March 1993, it appears the Ghana Bar Association acceded to the advice of the
Judicial Secretary, filed a writ to invoke the original jurisdiction of this court and, for good
measure, made the Judicial Secretary the 2nd defendant.
By their summons the plaintiffs claimed:
Court of Ghana holding office immediately before the coming into force of the said
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As I have said earlier there are serious constitutional issues involved in what, to the
untutored and popular world, may be mind-boggling. But it is necessary that in a
fledgling democracy like ours, embarking on what all our citizens expect will be a
constitutional journey which will survive us and our children’s children, that the
provisions of our constitution be explained in simple language so that the average man
in the street - the man walking at the Holy Gardens, Kwame Nkrumah Circle in Accra or
Kejetia Roundabout in Kumasi - or indeed in his village square, would understand.
People have prejudices and may hold and canvass opinions which may not accord with
the law. It is therefore my decision that in this opinion I shall immediately deal with two
matters which I consider to be precedent to the assumption of jurisdiction by this court.
It is true that the Ghana Bar Association has issued the writ against His Lordship the
Chief Justice for administering the oath of allegiance and the judicial oath to certain
categories of superior court judges. It cannot be denied that the superior court justices are
interested in the result of this litigation. Yet it is these same justices of the superior courts,
of whom the Chief Justice is one, who are invited to hear and determine the case.
Two issues arise. First, there may be the likelihood of bias in favour of the status quo and
secondly, what is the nature of the jurisdiction this court is exercising, since impliedly the
plaintiffs contend that these categories of superior court judges have not been sworn-in
in terms of the 1992 Constitution?
The short answer to the first issue is that all the Superior Court judges - and indeed all
judges in the hierarchy of our courts - have taken the oath as required under the Oaths
Decree 1972 and in accordance with section 3(1) thereof. But for the provision of section
4(2) of the Transitional Provisions - which will be explained later - there would be no
necessity to take another set of the same oaths.
Speaking for myself I would not hesitate to give a verdict favourable to either side if on
examination of the arguments advanced before us I am satisfied that it is so. Of the
members of the Supreme Court I said in Quarcoo v Nana Akwasi Afranie, 20 October
1992, SC that the justices of the court may be likened to Shakespeare’s toad, “ugly and
venomous yet wears a precious jewel in its head.” I then concluded that: “It is this
precious jewel, which we wear in our heads, in which the citizens of this country have
invested in the certain hope that we will express their prospects and aspirations without
74
fear or favour, goodwill or ill-will.” Certainly if this court is to earn the confidence and
approbation of our countrymen then we need to express our opinions frankly, not only
in respect to our decisions in other cases, but also in respect to the interpretation and
enforcement of the constitution - the fundamental law of the land.
Next, this is a court of necessity. In other words there is no other court in this land which
can hear and determine the present case. In Bilson v Apaloo [1981] GLR 15 the Supreme
Court discussed the issue of a court of necessity. One of the cases on which Anin JSC
relied was the Canadian case of the Judges v The Attorney-General for Saskatchewan
(1937) 35 TLR 464 which is a case covering the two issues I have raised. In his opinion
contributed to that judgment Anin JSC summarised the facts of that case at pages 20 and
21 of the report as follows:
“Thus in a Canadian case, the Government of Saskatchewan called upon the Court to
determine whether the salaries of judges were liable to Income Tax. The judges, though
obviously biased by pecuniary interest did not decline jurisdiction but heard the case and
incidentally reached a decision adverse to themselves. On appeal, the Privy Council
confirmed that the Court was right to decide the case as a matter of necessity.”
I concede that the generality of the plaintiff-association who are all lawyers, and indeed
the defendants who are also all lawyers, are not unaware of this principle of necessity.
Indeed, in presenting their writ of summons to this court the plaintiffs are deemed to
have submitted to the jurisdiction of this court. If at all there could be any objection to
jurisdiction, it is the defendants who should take the point. This they have not done.
I would like to buttress the issue of jurisdiction in this case by reference to two articles of
the 1992 Constitution. Article 2(1)(b) provides as follows:
“2(1) Any person who alleges that any act or omission of any person; is inconsistent with
or in contravention of a provision of this Constitution, may bring an action in the Supreme
Court for a declaration to that effect.”
Then again under article 130(1)(a): “The Supreme Court shall have exclusive jurisdiction
in … [all] matters relating to the enforcement or interpretation of this Constitution.”
I have discussed the above matters because before us, while the plaintiffs were not
directly challenging the jurisdiction of the court, they nevertheless raised two preliminary
matters one of which had a bearing on the jurisdiction of this court. The matters raised
were (1) the question of the composition of the court and (2) the position of the
Honourable Attorney-General acting as counsel for His Lordship the Chief Justice. We
75
dismissed these two preliminary matters and the learned and respected President of this
court, Adade JSC, recorded the order of the court as follows:
“Court: We have listened to the two points raised by Mr Adjetey. We are not inclined to
accept them. We dismiss both. Case to proceed. Full reason shall be given in our judgment.”
I now proceed to give my reasons for dismissing those two matters. In argument before
us, Mr Peter Ala Adjetey, leading counsel for the plaintiffs informed us that on
instructions from his clients he had written a letter dated 19 April 1993 to His Lordship
the Chief Justice with a copy thereof to the Honourable Attorney-General asking that the
whole Supreme Court minus the Chief Justice should be empanelled to sit upon and
adjudicate upon this case:
“In view of the critical importance of the above-mentioned case and its constitutional
implications, and in order that no question of the exercise by your Lordship of the right to
appoint a panel for this case may arise, in the interest of justice, to arrange that the above-
mentioned matter be heard by the Supreme Court as a whole or in other words by the full
bench of the Supreme Court excepting, of course, your Lordship himself in view of the fact
that you have been specifically named as a party to the action.”
Learned counsel proceeded to suggest that the constitution of such court, as he envisaged,
(that is what he called the full bench) would not only enure to the benefit of the whole
nation, but also each of the justices of the Supreme Court would then be given the
opportunity to pronounce on the case.
Learned counsel further submitted that he had discussed the contents of his letter to the
Chief Justice with the Honourable Attorney General and he had the impression that the
latter had no objection to the request contained in the letter addressed to His Lordship
the Chief Justice.
The Honourable Attorney-General in reply submitted that if Mr Adjetey had gained the
impression that he was in agreement with his request then Mr Adjetey was wrong. All
the Honourable Attorney-General had said was that the letter was addressed to the Chief
Justice who had to react to the contents.
It sounds strange to me that learned counsel for the plaintiffs in his letter was directly
requesting the Chief Justice to waive his right to appoint a panel of this court to hear and
determine this case. The matter is covered by authority. In Akufo-Addo v Quashie-Idun
[1968] GLR 667 the matter came up for discussion and at page 674 Amissah JA held that:
“This present case presents a situation of necessity where the person to exercise the power
to constitute the bench hearing the appeal is also a party to the appeal. As no other may
76
perform his duties for him, the objection on the ground of natural justice cannot be
sustained.”
Yet again in Mechanical Lloyd Assembly Plant Ltd v Nartey [1987-88] 2 GLR 598 my
learned and respected brother Francois JSC when considering the constitution of a panel
to hear an application for review by this court stated in clear terms that:
“… a panel which should exercise the jurisdiction to review must be appointed by the Chief
Justice in the exercise of his administrative functions.” (Emphasis mine.)
Clearly the Chief Justice was right in appointing the seven justices to sit and determine
this case. By article 128(2) of the 1992 Constitution:
“the Supreme Court shall be duly constituted for its work by not less than five Supreme
Court Justices except as otherwise provided in article 133 of this Constitution”.
Article 133 deals with the power of this Court to review its decisions and clause 2 thereof
reads:
“(2) The Supreme Court, when reviewing its decisions under this article, shall be
constituted by not less than seven Justices of the Supreme Court.”
The complement of the Supreme Court is, apart from the Chief Justice, nine justices, seven
of whom are now sitting on this case. It is agreed that by the provisions of the constitution,
as stated above, not less (I think the proper word should be no fewer and not less) than
five justices shall sit for the work of this court to be valid.
In my respectful opinion I think that in choosing seven justices to adjudicate on this case,
he was not unmindful of the constitutional right of any of the parties to apply
subsequently to this court in exercise of their undoubted constitutional right for a review.
On the issue of the constitution of the court for the discharge of various duties my learned
and respected brother Francois JSC in the Mechanical Lloyd Assembly Plant Ltd case
supra, wrote:
“With history then as our guide, I make two observations. Firstly, the panel that hears an
appeal in the final appellate court is not automatically that panel that disposes of a review
application. Secondly, a panel which should exercise the jurisdiction to review, should be
appointed by the Chief Justice in the exercise of his administrative functions. Both statutory
intelligence and logic would seem to propound the folly of making an adjudicating panel
comprising persons with entrenched views to pronounce, confirm and reiterate their
division.”
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Then also in the same case my learned and respected brother Amua-Sekyi JSC wrote:
“As I have tried to show, and the majority by inviting arguments on the merits of the
review would seem to accept, the defendants are entitled to have the judgment reviewed,
the question to be asked is: Is the review to be heard by the same panel of judges or should
the Court be re-constituted … If justice is to be seen to have been done this review ought
to be taken by a differently constituted court. The moral of the mote and beam teaches us
that example is better than precept.”
The concern expressed by my brothers above have been resolved by the provisions of
article 133 of the 1992 Constitution which now vests the power of review exclusively in
no fewer than seven justices of the Supreme Court. In the Quarcoo case supra, I said in
comment on the dicta of Francois and Amua-Sekyi JJSC cited above that:
“there is wisdom in adding two or more members to a panel which has delivered the original
judgment to enable fresh thinking to be brought upon the issues at stake and more
particularly when the original adjudicating panel comprises “persons with entrenched
views.”
My digression into the realms of review is to illustrate that the Supreme Court is now
restricted to the members thereof and therefore in considering the empanelling of justices
to adjudicate on any matters regard must be taken of the undoubted constitutional right
of the parties to have the court’s judgment reviewed.
If as learned counsel demands, all the nine judges should sit and express their opinions
on this case it will be the height of folly to invite the same justices to sit again and change
their minds. We do not sit in this court for fun. On the other hand the composition of this
court which allows new members to be added will or may ensure that fresh thinking is
brought on the issue at stake.
In my respectful opinion therefore, His Lordship the Chief Justice lawfully exercised his
administrative functions bearing in mind the requirements of the constitution and he
cannot be faulted. The first preliminary matter therefore fails.
Before I deal with the second preliminary matter raised by learned counsel for the
plaintiffs, I am of the view that it is first requisite that I consider the capacities in which
the plaintiffs are suing and the defendants are defending.
I must here remark that the parties did not file a memorandum of issues. But I think my
learned and respected sister and brothers were satisfied that the statements of their
respective cases sufficiently revealed the issues which were to be addressed. The
principal issue in my view is whether in terms of section 4 of the Transitional Provisions
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and article 156 of the 1992 Constitution the Chief Justice had breached the constitution in
purporting to administer the oath of allegiance and the judicial oath to the Supreme Court
judges and the Court of Appeal judges.
Clearly if the Chief Justice had so done in breach of the 1992 Constitution or the
Transitional Provisions then the plaintiffs were entitled to pursue him in accordance with
the intendment of the constitution. In my respectful opinion therefore His Lordship the
Chief Justice, The Hon Mr Justice Philip Edward Nii Kwei Archer is properly a defendant.
Alhaji Dramani Yakubu is the Judicial Secretary and he is listed in the plaintiffs’ writ of
summons as the 2nd defendant. On examination of the plaintiffs’ statement of case filed
on 18 March 1993 I find that there is only one mention of the 2nd defendant in that whole
statement. It reads thus:
“5. 2nd defendant is the Judicial Secretary of the Republic of Ghana, responsible under the
1st defendant, for the administration of the Judicial Service of the Republic of Ghana.”
The Judicial Secretary in the defendants’ statement of case admits that he is the Judicial
Secretary, which is a matter of notoriety within our municipality. But the question may
be asked in connection with the 1st defendant’s alleged breach of the constitution: what
has he done to be included as a defendant against whom some relief may be obtained?
The plaintiffs do not say. But perhaps as noted earlier in this opinion the Judicial
Secretary had incurred the ire of the plaintiffs in directing their paths into the way which
has led them to this court. Hence he must be sued.
I think the plaintiffs grievously erred in suing the Judicial Secretary. There was absolutely
no justification in bringing this action against him and I will dismiss him from this case.
As I have stated before the second preliminary matter raised by the plaintiffs concerns
the representation of the Chief Justice by the Honourable Attorney-General.
Learned counsel for the plaintiffs contended that as the Honourable Attorney-General
was the 3rd defendant in this case, there would be a conflict of interest if the Attorney-
General represented both the Chief Justice and himself. In learned counsel’s view the
responsibilities of counsel were different from the responsibilities of a litigant.
True, but was the Honourable Attorney-General a defendant properly so-called having
regard to the issues at stake? Surely, a defendant is a party against whom a writ of
summons or other original process is commenced and against whom execution may be
levied, a judgment or order enforced or sentence of a court may be passed. What was the
plaintiffs’ cause of action against the Honourable Attorney-General?
79
A reference to the plaintiffs’ statement of case reveals the following:
“6. The 3rd defendant is the Attorney-General of the Republic of Ghana and principal legal
adviser to the Government of Ghana and required by law to be served with all processes
involving the invocation of the original jurisdiction of the Supreme Court under the
constitution.”
It is contended by the plaintiffs that this single passage in their statement of case makes
the Attorney-General a defendant. What is the relief sought against him, which is relevant
to the matter in hand? In my respectful opinion there is none. The plaintiffs rely
specifically on the rules of this court - the Supreme Court Rules 1970 (CI 13) rule 45(3)
which states:
“(3) A copy of the writ shall be served on each of the parties mentioned in the writ as
directly affected who shall be deemed to be the defendants and on the Attorney-General if
not named specifically as a defendant.”
Rule 48(3) of the rules of this court further states:
“The Attorney-General if not mentioned as a defendant may, if he chooses, file an answer

within fourteen days of the service on him of the statement of the plaintiffs’ case and shall
in any case do so when so ordered by the Court.”
The plaintiffs seem to contend that by merely putting down the name of the Attorney-
General on their writ he thereby becomes a defendant.
I have already defined in this opinion who can be designated a defendant. In my

respectful opinion the Attorney-General does not fit this description. There is in the
present case no judgment or order which can be enforced against the Attorney-General.
In Tuffuor v Attorney-General [1980] GLR 637 the plaintiffs correctly sued the Attorney-
General. In that case the real defendant was the President of the Republic who the
plaintiffs alleged had contravened a provision of the 1979 Constitution. Since the
President could not be sued in any court or tribunal in the country, it was proper that the
Attorney-General be sued. Mr Tuffuor won his case and sanity prevailed. I shall return
to the Tuffuor case later in this opinion. For the present it is enough to say that by all the
tests at my disposal the Attorney-General is not properly a defendant and I so declare.
The Honourable Attorney-General is therefore dismissed from this case as 3rd defendant.
There is, however, the need to discuss briefly the requirement in rule 45(3) of CI 13, why
a copy of the writ shall be served on the Attorney-General and the requirement in rule
48(3) of CI 13 that the Attorney-General, if he chooses, may file an answer to the plaintiffs’
statement of case or when called upon by the court to do so.
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Let me say at once that if in the circumstances the Attorney-General files an answer he
does not thereby become a defendant. The policy reason for including in this part of the
rules of this court the provision that the Attorney-General shall be served with all original
writs affecting the interpretation or enforcement of the constitution is to enable the
executive branch, if it chooses, to present its views on any constitutional matter to the
court. Thus whereas under the rules a defendant is required to file a statement of the
defendants’ case, the Attorney-General is only required to file an answer in response to
the plaintiffs statement of claim.
The two cases of Bilson v Apaloo [1981] GLR 15 and page 24 illustrate the point I am
making. In the first of the two cases, it appears that the plaintiffs complied with the rules
and served the Attorney-General, because the report shows that the Solicitor-General
represented the Attorney-General. But in the second case, the report does not reveal that
the plaintiffs complied with the rules by serving the Attorney-General. Consequently he
did not appear in court. Indeed if the Attorney-General had been served he might have
answered as the court held in holding 7(a) at page 30 of the report that:
“(a) The claim was in reality an appeal masquerading as an action for declaration. The
plaintiff having by his writ invoked the Supreme Court’s original jurisdiction under article
2(1)(b), it was improper for him to tag to it a ground of appeal going to the merits of the
decision in the Tuffuor case.”
Their Lordships, in the cases under discussion, would have been spared that exercise in
semantics. As it happened the Honourable Mr Justice Fred Kwasi Apaloo, the Chief
Justice of the Republic of Ghana was, so to speak, abandoned to provide for his own
defence. It is I think this provision for his own defence by Mr Justice Apaloo in the Bilson
v Apaloo case which encourages counsel for plaintiffs to raise his second preliminary
matter that the Honourable Attorney-General cannot represent the Chief Justice in this
case.
I have already concluded that in this case the Attorney-General is not a party, that is a
defendant. Learned counsel contends that the duties of the Attorney-General are spelt in
article 88(5) of the constitution. That may well be so. But it seems to me to be a strange
and unreasonable concept that a high officer of state, the Chief Justice, the head of the
Judiciary in the mistaken performance of his constitutional duties should be personally
saddled with the cost of litigating with citizens who seek to prove him wrong.
The Fourth Republican Constitution which, with a few exceptions is founded on the
hallowed doctrine of the separation of powers should in its spirit, if not in its letter,
guarantee and ensure that high officers of state representing the acknowledged arms of
81
government should not in allegations against them of the wrongful exercise or

performance of their constitutional duties or functions be left naked in the snares of
scheming arm-chair constitutional experts and wiseacres in our society. In the spirit of
the constitution, therefore, I hold that His Lordship the Chief Justice is entitled to be
represented in this case by the Attorney-General or any competent lawyer from his
department. The second preliminary matter must therefore be decided against the
plaintiffs.
In this case the plaintiffs themselves have not escaped challenge as to their locus standi.
If I understand the pleading correctly the defendant is saying that the plaintiffs are an
amorphous group of lawyers upon whom the constitution and other statutes of the
Republic call from time to time to fulfil certain functions. The defendants say in
paragraph 2 of their statement of case as follows: “The defendants say that save that
various statutes of the Republic mention the Ghana Bar Association and confer on it some
rights and obligations they are not in a position to admit paragraph 2 of the statement of
the plaintiffs case.”
This equivocal pleading of the defendant in application to the plaintiffs’ assertion in their
statement of case that they were “the only association of lawyers in professional practice
in Ghana recognised by the constitution of the Republic of Ghana and by various other
statutes of the Republic”, was in my respectful opinion a tacit admission of the locus
standi of the plaintiffs as the Ghana Bar Association.
As every lawyer knows, a specific pleading must be clearly traversed and a statement
that the party “is not in a position to admit” any statement constitutes an admission of
the pleading. In this case the plaintiffs were not to be outdone by the defendants
replication to their pleading. The plaintiffs in a reply referred to diverse places in the 1992
Constitution which not only contain their name but also entitles them to membership of
some constitutionally established organisations. I think this pleading of the defendant
was made more in sorrow than in anger. For it cannot be seriously contended that the
Ghana Bar Association and other professional Associations mentioned in the
Constitution are neither recognised by the constitution nor unknown to the laws of this
country. In my respectful opinion if no such association existed or was intended to play
active roles in the operation of the constitution, its name would not appear in the
constitution. At the very least it can be said that the Ghana Bar Association was in
existence when the Legal Profession Act 1960 (Act 32) came into force on the 12 January
1961. By the first schedule to that Act which deals with the constitution of the General
Legal Council of which the 1st defendant is chairman, paragraph 2 of that schedule reads
“four members of the Bar elected by the Ghana Bar Association.” (Emphasis mine). I am
82
satisfied that the only Ghana Bar Association referred to in the constitution and other
statutes is the Association of practising lawyers of which the three plaintiffs are presently
the principal officers. In my respectful opinion the Ghana Bar Association as presently
represented by their three principal officers are properly the plaintiffs and have locus
standi in this case.
Therefore as from this stage in my opinion the Ghana Bar Association shall be referred to
as ‘the plaintiffs’ and the Honourable Mr Justice Philip Edward Nii Kwei Archer, the
Chief Justice of Ghana, shall hereafter be referred to as ‘the defendant.’ Also the statement
of defendants’ case originally filed by the three defendants shall mutatis mutandis stand
as the case for the defendant.
On the day of the hearing of this case the defendant sought leave to amend his defence
and the same was granted. The amendment reads as follows:
“The defendants say further or in the alternative that the President properly designated
1st defendant the Chief Justice by letter reference No OP/S 550 dated 22nd February 1993,
a copy of which is annexed hereto, to administer the oath of allegiance and the judicial oath
to the justices of the superior courts whose appointments continued under the Transitional
Provisions.”
The letter which was annexed to the amended statement of case reads
“OFFICE OF THE PRESIDENT
THE CASTLE - OSU
ACCRA
TEL: 664515
Reference: OP/S.550
22nd February 1993
ADMINISTRATION OF OATH OF OFFICE TO JUDGES OF THE SUPERIOR

COURTS - SECTION 4 (PART III) TRANSITIONAL PROVISIONS
In conformity with section 4 Part III (Transitional Provisions of the Constitution), the
President has designated the Chief Justice to swear in the judges of the superior courts.
83
(Signed)
(ATO DADZIE)
OFFICE OF THE PRESIDENT
HIS LORDSHIP
CHIEF JUSTICE
SUPREME COURT BUILDINGS
ACCRA”
Before us and with regard to the amended paragraph 8 of the statement of defendants’
case referred to above, learned counsel for the plaintiffs submitted that the President had
no authority to delegate his function to administer the oaths. Further, learned counsel
contended that even if the President has any such power of delegation, no proper
delegation had taken place within the meaning of the letter exhibited to the defendants’
case. In learned counsel’s view the President is a creature of the constitution and therefore
derives all his powers and authority from the constitution. There is, in the view of learned
counsel, no article which gives the President power to delegate. He further considered
articles 297(h), (i) and (j) and submitted that perhaps the nearest clause in article 297
which could entitle the President to delegate his powers is article 297(j).
Now article 297(j) reads as follows:
“Where a power is conferred or a duty is imposed on the holder of an office as such, the
Learned counsel concluded that the President is a trustee of his powers and therefore
could only perform the functions assigned to him under the constitution himself. He
could not delegate those powers and functions. In an indirect reference to the letter
exhibited with the statement of the defendants’ case, learned counsel was willing to
concede that even if the President had the power to delegate, it should have been done
under the President’s own hand, under the Presidential seal. The letter referred to above
84
and signed by Mr Ato Dadzie did not possess that quality. Section 4 of the Transitional
Provisions did not give any power to delegate and therefore the so-called delegation had
no force. Learned counsel for the plaintiffs concluded that administering an oath was not
an exercise of executive power under article 58(1) and (3) of the constitution. In counsel’s
view that letter signed by Mr Ato Dadzie did not avail the defendant.
In reply the Honourable Attorney-General submitted that there had been no breach of
the constitution by the defendant swearing-in the superior court justices. In his view,
considering the position of the letter signed by Mr Ato Dadzie, he would say that that
letter constituted a valid authority for the defendant to swear-in the superior court
justices. Looking at article 297 he was of the view that clause (i) applied to the contents of
that letter. Clause (i) reads as follows:
“297(i) Words directing or empowering a Minister of State to do an act or a thing, or

otherwise applying to him by the designation of his office, include a person acting for him,
or if his office is vacant a person designated to act in that office by or under the authority
of an Act of Parliament and also his successors in office and all his deputies or other
assistants.”
I have diligently read and re-read the provisions of article 297 and I do not find any
support for the proposition by the counsel for the plaintiffs and the Attorney-General that
the President’s powers of delegation are contained in any of those two clauses. There was
much argument about whether the President had “designated” or “delegated” the
defendant to perform the oath-taking ceremonies. I do not intend to continue that
argument in this opinion. But I am certain of one thing, and that is, that the President has
powers of delegation. Those powers are contained in article 58 of the constitution.
Article 58(3) of the constitution states as follows:
“Subject to the provisions of this Constitution, the functions conferred on the President by
clause (1) in this article may be exercised by him either directly or through officers
subordinate to him.” (Emphasis mine.)
I understand this clause to mean that if the President himself will not exercise the
functions allotted to him under the constitution then he may do so through officers
subordinate to him. I understand subordinate within the context of article 58 to mean a
person belonging to an inferior order in a classification. Under the executive such
subordinate officers include Ministers and their deputies, ambassadors and such other
persons as are required to perform some functions or be members of agencies created
under Chapter 8 of the constitution. Within the context of this clause therefore the
defendant is not a subordinate officer.
85
That of course does not end the matter. If I am right in the view that I hold that within
the context of the executive branch of government the defendant is not a subordinate
officer then the defendant was at liberty to swear-in the superior court justices, if there
was any law or any provision under the constitution which empowered him so to do.
That, of course, would bring into sharp focus the contention of the plaintiffs that by the
combined effect of section 4 of the Transitional Provisions and article 156, the defendant
was incapable of swearing-in the said justices. But the defendant places great reliance on
the contents of the letter written by Mr Ato Dadzie.
The Honourable Attorney-General submitted to us that any person writing from the
office of the President may be described as an “assistant” to the President. He was certain
that Mr Ato Dadzie was one such assistant in the office of the President. I agree, the heavy
burdens involved in the management of the machinery of state would necessitate the
appointment of several assistants by the President for the effective despatch of
government business. Such assistants however, find no place in the constitutional order
and therefore if an assistant purports to write in the name of the President to “designate”
another person to perform a duty imposed upon the President by the constitution, that
letter must be examined within the ambit of article 58. Therefore we must look at the
whole of article 58.
In the English case of Smith v Portsmouth JJ [1906] 2 KB 229 at 235 Collins MR wrote:
“The question here is what is the true construction of s. 11, sub-s. 4, of the Licensing Act,
1902. We must, I think, read the section as a whole and construe each sub-section in
relation to the others. It seems to me that the general purview of the section is correctly
indicated by the side-note, which is “Control of justices over structure of licensed
premises”, as being that it deals with structural alterations of the premises.”
Yet again in another English case decided before Smith v Portsmouth JJ supra, that is
Bushell v Hammond [1904] 2 KB 563 at 567, where the court was dealing with the
interpretation of the same Licensing Act of 1902 it is written in the report that: “In order
to understand subsection 4 we must look at the whole section of which it forms part and
some help will be derived from the side note (though of course it is not part of the statute)
which shows that the section is dealing with the control of justices over the structure of
licensed premises.”
Examining article 58 as a whole, without the aid of the side note or marginal note - a
matter to which I shall soon direct my attention - it is clear that if the President does not
or is not in a position to exercise his functions under the constitution he has the power to
delegate his powers to a subordinate officer within the meaning of chapter 8 of the
86
constitution. Such delegation must however be done in terms of clause (5) of article 58
which reads:
“A constitutional or statutory instrument or any other instrument made, issued or

executed in the name of the President shall be authenticated by the signature of a Minister
and the validity of any such instrument so authenticated shall not be called in question on
the ground that it is not made, issued or executed by the President.”
Article 295 provides the interpretations for the expressions “constitutional” and
“statutory” instruments. The difficulty arises with the interpretation of the expression
“any other instrument.” I think the canons of construction permit me to interprete the last
expression ejusdem generis with the preceding words. Thus by reference to the preceding
words the expression “any other instrument” means any document, letter or paper
writing which purports to effect a result similar to a constitutional or statutory
instrument. For such an instrument to be valid it must be authenticated by a Minister.
There is an interpretation of who is a Minister in article 295 of the Constitution.
The letter signed by Mr Ato Dadzie and purporting in the name of the President to
designate the defendant to swear-in the justices of the superior courts seriously lacked
the quality of authentication by a Minister and was therefore invalid. It therefore did not
operate to confer Presidential authority on the defendant to swear-in the justices of the
superior courts.
The policy reason for such a provision is clear. The constitution will not permit the name
of the President to be used in vain. Persons employed or engaged in the office of the
President as “assistants” will not be permitted, in the name of the President, to issue
instructions or directives in the nature of a constitutional or authority instrument without
the authentication of a Minister.
In the circumstances if the defendant His Lordship the Chief Justice thought that he
derived his authority to swear-in the Superior Court justices from the letter or note signed
by Mr Ato Dadzie, with the greatest deference to His Lordship, he was in error.
This finding would seem to conclude the matter in favour of the plaintiffs. But it does
not. I have found, earlier in this opinion that the defendant is not subordinate to the
President within the intendment of article 58 of the constitution. I have also found that
the letter, instrument or not, signed by Mr Ato-Dadzie is ex facie invalid. Speaking for
myself, therefore I would say that Mr Ato Dadzie’s note or letter is irrelevant to the issues
at stake in this case.
87
By their writ to invoke the original jurisdiction of this court the plaintiffs principally
sought the following relief:
Court of Ghana holding office immediately before the coming into force of the said
Ghana only and not before any other person.”
I think that the last part of the relief claiming that the two oaths could not be sworn
“before any other person” is, to put it mildly, too wide. Article 60(1) of the constitution
reads: There shall be a Vice-President of Ghana who shall perform such functions as may
be assigned to him by this constitution or by the President.” Thus the President cannot
“delegate” his powers to the Vice-President. He assigns functions to him. The President
as the Chief Executive is the senior partner in the duo of executive authority under the
constitution. So that if the oaths had to be taken before the President, as the plaintiffs
contend, the President could have assigned that function to his Vice-President.
No doubt judging by the stand taken by the plaintiffs in their plaint, they would still not
have been satisfied with the Vice-President’s performance.
In argument before us learned counsel for the plaintiffs and the Honourable Attorney-
General representing the defendant urged on us certain technical legal matters which
they contended were important for the proper interpretation of the constitutional
provisions and the Transitional Provisions under consideration by this court. These
technical legal matters related to the positions of footnotes or side notes, or marginal
notes or side notes as they are sometimes called.
Learned counsel for the plaintiffs referred to what he termed “footnotes” at the end of
the second schedule on the oath of allegiance which reads: “To be sworn before the
President, Chief Justice, or such other person”, and submitted that not only were these
footnotes not part of that schedule but even if they could be looked at in aid of
interpretation they could not also modify or restrict the meaning of article 156. The
Attorney-General does not appear to have answered this submission. However this did
not mean that as a court we were obliged to accept the submission of learned counsel for
the plaintiffs as correct.
88
Interpretations of statutes and, indeed of this constitution within our municipality are
governed by the Interpretation Act 1960 (CA 4) as from time to time amended. If indeed
footnotes in a statute are to be read as part of a section of a statute or schedule, then the
Act must say so. If it is not to be a part to be used in aid of construction the Act must also
say so. I have examined the interpretation Act 1960 (CA 4), section 4 of which provides
as follows:
“An arrangement of sections or of similar divisions of an enactment placed at the front of

an enactment, titles placed at the head or beginning of any subdivision of an enactment
and notes and references placed at the side of any provision are intended for convenience of
reference only and do not form part of the enactment.”
It will be observed from section 4 of the CA 4 that there is no mention of footnotes.

Footnotes do not therefore exist in our statutes and that submission is therefore wrong.
In Attorney-General v Lamplough (1878) 3 Ex 214 it was held that:
“the schedule is as much a part of the statute and is as much an enactment as any other
part.”
In my respectful opinion every word in the second schedule stands as it is and forms part
of that schedule.
Some arguments were advanced before us with regard to the place of marginal notes in
the interpretation of the constitution and the Transitional Provisions of course as section
4 of the Interpretation Act says that they are put there for convenience only but do not
form part of the enactment. This position was made clear in the English case of Re Woking
Urban Council (Basing Stoke Canal) Act 1911 [1914] 1 Ch 300 at 322 where Phillimore LJ
said:
“I am aware of the general rule of law as to marginal notes, at any rate in public general
Acts of Parliament; but that rule is founded, as will be seen on reference to the cases, upon
the principle that those notes are inserted not by Parliament nor under the authority of
Parliament, but by irresponsible persons. Where, however as in s. 10 of this Act, and in
some other recent local and personal Acts which have come under my cognisance, the
marginal notes are mentioned as already existing and established, it may well be that they
do form a part of the Act of Parliament.”
However it is clear that the earlier case of Smith v Portsmouth supra, had accepted that
“the general purview of the section is correctly indicated by the side-note.”
89
In the present case we are attempting to put interpretation on certain parts of the 1992
Constitution. I must say that it was not for fun that the PNDC appointed the Committee
of Experts to examine the proposals which had been collected from various symposia
held all over the country. Nor was it for fun that the Committee of Experts submitted
their report to the PNDC. The Consultative Assembly was not constituted for fun nor was
the draft constitution submitted to the PNDC for fun.
For the first time in the history of this country the sovereign people of this country
expressed their will and approval for promulgation on 7 January 1993 of the 1992
Constitution commonly called the Constitution of the 4th Republic. This constitution
therefore came down to us like the decalogue and the people of this country approved it
word, letter, marginal notes and all. It will be wrong therefore for anyone to contend that
the marginal notes in the constitution were inserted into our constitution “by
irresponsible people” and therefore do not form part of the constitution. So to hold will
be a gross affront to the intelligence of the people of this country.
In the present case considering the circumstances under which the constitution was
approved as it is, the marginal notes in the constitution and the Transitional Provisions
will not be ignored. Wherever convenient they will be used as aids in the construction of
the section under interpretation.
I now come to the central point of this litigation. The plaintiffs contend that by the
conjoint signification of article 156 and section 4 of the Transitional Provisions the
defendant had done the wrong thing and we must declare his action null and void. I do
not think we can consider the conjoint signification of the article and section unless we
first examine their separate signification. Thus in the English case of Whitney v Inland
Revenue Commissioners [1926] AC 37 at p 52 Lord Dunedin wrote:
“A statute is designed to be workable, and the interpretation thereof by a Court should be

to secure that object, unless crucial omission or clear direction makes that end
unattainable.”
Clearly it is the duty of the court to interpret a statute and it is only where there is a crucial
omission or clear direction which makes the object of the Act unattainable that the court
may call in aid another statute for the attainment of the object of the former statute. The
Attorney-General submitted that the article and section must be dealt with separately. In
his submission there is no cause for a combined interpretation of the article and the
section. The two speak entirely different languages. I agree with him.
90
The popular canon for the construction was stated in the English case of Curtis v Stovin
(1889) 22 QBD 513 at p 517 where Bowen LJ wrote:
“The rules for the construction of statutes are very like those which apply to the
construction of documents, especially as regards one crucial rule, viz. that if it is possible,
the words of a statute must be construed so as to give a sensible meaning of them. The
words ought to be construed ut res magis valeat quam pereat.”
The ut res magis rule was amplified and explained in the English case of The Duke of
Buccleuch (1889) 15 PD 86; Lord Esher at page 90 wrote:
“I think that the decision was a wholesome one, and one which such judges as those who
have decided that case (The Fanny Mcarvill 13 App Cas 455n) must inevitably have come
to. I think their rule of construction was correct, they say “we must construe it as nearly
as possible literally, we must construe it as strictly as it will be, so as not to lead to the
absurdities which have been pointed out; short of that it must be construed to its full
extent.”
Then at page 99 of the same report Ludley LJ contributed the following opinion:
“The question of law appears to be settled in the case of The Fanny M Carvill…You are
not to construe the Act of Parliament as to reduce it to rank absurdity. You are not to
attribute to general language used by the legislature in this case anymore than any other
case, a meaning that would not only carry out its object, but produce consequences which
to ordinary intelligence are absurd. You must give it such a meaning as will carry out its
objects.”
The Attorney-General submitted that only justices appointed under the relevant clauses
of article 144 of the Constitution were affected by the provisions of article 156. He
submitted further the Superior Court justices currently in office were not affected. To do
so would amount to rank absurdity as those justices required to take the oath before the
President were required to do so “before assuming the exercise of the duties” of their
office.
It takes no great shakes as a grammarian to appreciate the syntactical arrangement which

the draftsman has made with the provisions of article 156(1). In plain language that clause
should read as follows:
“Before assuming the exercise of the duties of his office, a justice of the Superior Court, the
Chairman of a Regional Tribunal, and also a person presiding over a lower Court or
Tribunal and any other judicial officer or person whose functions involve the exercise by
91
him of judicial power shall take and subscribe the Oath of Allegiance and the Judicial Oath
set out in the Schedule to this Constitution.”
I think that this rendition of article 156(1) is simple enough for the common man to
understand. The clause is specific. It is only those judges who will be assuming office
under this constitution who will be required as a condition precedent to their assumption
of office to subscribe the two oaths before the persons specified in clause (3) of that article.
Further, in plain English when a person is in office and goes away on vacation and returns
he does not “assume” his duties, he “resumes” his duties. Certainly there must be a
distinction between those who are already in office and those newly entering office. That
to me is the true intendment of article 156(1). Not to so hold would lead to grave
absurdity.
For section 3(1) of the Oaths Decree (NRCD 6) says clearly that no person who has taken
the two oaths shall again be required to take the same oaths - Thou shall not take the
name of my Lord thy God in vain. I am sure the plaintiffs are very much aware of what
the Good Lord says He will do to those who take His name in vain.
Further, I am surprised that the plaintiffs have not bothered about the other classes of
judges mentioned in article 156(1) of the constitution. If the plaintiffs are correct then
upon the coming into force of this constitution all those other classes of judges should
have taken their oath before assuming their respective offices. Since I am not aware that
any of those classes have taken any new or fresh oaths the plaintiffs would conclude that
all the judgments, decisions, orders and rulings of these courts are null and void and so
indeed will be the judgments of all the superior courts since the promulgation of the 1992
Constitution. Such a situation if upheld would lead to patent absurdity and unmitigated
chaos.
The problem of the swearing-in of the superior court judges alone arises from the
provision of section 4 of the Transitional Provisions and has no nexus with article 156 of
the constitution.
Section 4 of the Transitional Provisions states as follows:
“(1) A Justice of the Supreme Court, the Court of Appeal or the High Court holding office
Constitution, take and subscribe the oath of allegiance and the judicial oath set out in the
Second Schedule to this Constitution.”
92
A casual reference to our law reports will find that in Tuffuor v Attorney-General, supra
Sowah JSC, delivering the judgment of the Court of Appeal, sitting as the Supreme Court,
in which the court was called upon to interpret clauses (8) and (9) of article 127 of the
1979 Constitution which are similar in form and content to section 4(1) and (2) of the
Transitional Provisions of the 1992 Constitution, wrote at page 661-662 of the report as
follows:
“Similarly clause (8) of article 127 declares in no uncertain terms that a justice of the
Superior Court of Judicature (that one composite institution) holding office as such
immediately before the coming into force of the Constitution shall continue to hold the office
he was holding as if he had been appointed by the processes laid down in the Constitution.
In the case of a justice of the High Court or a justice of the Court of Appeal, he shall be
considered to have been appointed upon the advice of the Judicial Council by the President
even though no such advice has been tendered and no appointment made. He is only
required to take the oath under clause (9) to complete the process of his appointment.”
It is clear that the draftsman has lifted the words of section 4(1) directly from the passage
cited in the Tuffuor case, supra. The bone of contention between the parties is if the oaths
are to be sworn to “complete the process of his appointment”, that is of a superior court
judge who is to tender the oaths. The plaintiffs say it is His Excellency the President of
the Republic. The defendant says he has tendered the oaths and in the alternative he has
the letter or note from Mr Ato Dadzie designating him to swear-in the superior court
justices.
I have already said that article 156 does not apply to the justices of the superior courts
continuing in office. The clause (2) of section 4 under interpretation is part of the
Transitional Provisions to the 1992 Constitution. It is therefore to the Transitional
Provisions that we must look for interpretation. Further there is a severe injunction
placed on us by the constitution as to how wide we can extend our researches. Article 299
of the constitution reads as follows:
“The Transitional Provisions specified in the First Schedule to this Constitution shall have
effect notwithstanding anything to the contrary in this Constitution.”
We cannot look into this constitution for assistance because in the view of the framers of
the constitution and the Transitional Provisions each part is complete and the two cannot
help each other in matters of interpretation. I will therefore direct my attention solely to
the provisions contained in the Transitional Provisions.
In the English case of R v Bishop of Oxford 4 QBD 245 Cockburn CJ, considering the issue
of the construction of a statute wrote:
93
“To this we answer that in so doing we should violate a settled canon of construction,
namely, that a statute ought to be so construed that if it can be prevented, no clause,
sentence or word shall be superfluous, void or insignificant.”
I said earlier in this opinion that none of the parties before us referred to section 25 of the
Transitional Provisions. It must be conceded, however, that the parties referred to the
Oaths Decree 1972 (NRCD 6) but not in association with section 25 of the Transitional
Provisions. Section 25 of the Transitional Provisions reads as follows: “The Oaths Decree,
1972 (NRCD 6), as amended, shall have effect subject to the provisions of this
Constitution”. The marginal note to section 25 of the Transitional Provisions which in this
case I find very useful states: “Consequential amendments to the Oaths Decree 1972
(NRCD 6).”
The meaning to me is clear. The Oaths Decree has been amended obviously by the 2nd
Schedule to the Transitional Provisions to which the constitution refers. But in obedience
to the injunction imposed on us by article 299 of the constitution section 4 (2) must be
construed by reference to the 2nd Schedule as consequentially amended in the Oaths
Decree. In other words the 2nd Schedule to this constitution has been incorporated into
the Oaths Decree and it is to that Decree that we must look for the person to tender the
oath.
In Tuffuor v Attorney-General supra, Sowah JSC has at page 647 of the report succinctly
stated a gem or rare jewel of advice on the attitude to the construction of our constitution
which our courts particularly this court must adopt. Speaking of the language used by
the framers of the 1979 Constitution which I say applies to our attitude to the present
constitution, he wrote:
“Its language therefore, must be considered as if it were a living organism capable of growth
and development. Indeed, it is a living organism capable of growth and development, as the
body politic of Ghana itself is capable of growth and development. A broad and liberal spirit
is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire
approach to interpretation would not do. We must take account of its principles and bring
that consideration to bear, in bringing it into conformity with the needs of the time. And
so we must take cognisance of the age old fundamental principle of constitutional
construction which gives effect to the intent of the framers of this organic law. Every word
has an effect. Every part must be given effect.”
I have considered the 2nd Schedule of the Oaths Decree, as amended by section 25 of the
Transitional Provisions, and incorporated into the latter carefully and I am satisfied that
within the intendments of the Transitional Provisions it was His Lordship Mr Justice P E
94
N K Archer, Chief Justice of Ghana, who was the proper authority to tender the oath of
allegiance and the judicial oath to the Superior Court justices in terms of section 4(2) and
25 of the Transitional Provisions of the 1992 Constitution, commonly called the Fourth
Republic Constitution.
As a postscript, I would like to commend Mr Peter Ala Adjetey, learned leading counsel
for the plaintiffs for his excellent exposition of our new constitution which I am sure
greatly assisted me in coming to the decision at which I have arrived. Of course the glory
reflects on his able team of counsel. This is however a case in which the plaintiffs were
swayed by their misconceptions of the canons of interpretation and the true intendment
of article 299 of the constitution which clearly prevents the constitution and the
Transitional Provisions being read together. But it is well that, at least, we now know the
depth of thought which has gone into the preparation of our opinions.
In the result the declarations sought by the plaintiffs are denied. The plaintiffs’ writ is
dismissed.
Action dismissed.
95

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DENNIS LAW ONLINE REPORT www.dennislawgh.

KUENYEHIA AND OTHERS

[1992 – 1993] 3 G B R 1260 – 1356 S C DATE: 25 MAY 1993

By their writ of summons, the plaintiffs seek two reliefs, viz.

“1. A declaration that by the combined effect of article 156(1),

“ADMINSTRATION OF OATH OF OFFICE TO JUDGES OF THE SUPERIOR

(Sgd) ATO DADZIE

OFFICE OF THE PRESIDENT.

SUPREME COURT BUILDINGS,

When a person is delegated to do an act, he is entrusted with a function to discharge.

Notice that paragraph 9 is pleaded as “further or in the alternative”, implying that it is

Article 156(1) of the Constitution reads as follows:

Section 4 of the Transitional Provisions says:

(b) Group 2 - all others not comprised in Group 1.

If both President and Vice-President should be unavailable, the Speaker of Parliament

In matters of fact a court is generally bound by admissions, concessions, accords etc by

They also refer to section 25 of the Transitional Provisions that:

Sub-section (2) will then be rendered as follows:

Thus NRCD 6, appropriately amended, as to competent oath administrators, (see article

In the 1969 Constitution the oaths were administered by:

“(a) The President in the case of the Chief Justice, and

In 1979 the corresponding provisions were:

“297. In this Constitution and in any other law

(i) words directing or empowering a Minister of State to do an act or a thing, or otherwise

The Attorney-General challenged the plaintiffs’ interpretation of these provisions of the

This essential pre-requisite is illustrated in a number of cases. In Minister of Home Affairs

“A Constitution is a legal instrument giving rise amongst other things, to individual

In interpreting the relevant provisions of the constitution we must be very careful to

Turning next to the 1969 Constitution, article 118 states:

(a) the President, in the case of the Chief Justice, and

Article 57(3) states

“To be administered by the Chief Justice before Parliament.”

Halsbury’s Laws of England authoritatively asserts that sections of a statute and

“…a schedule is as much an enactment, as is the section by which it is introduced.”

Consequently where positive directions are given in a schedule as to a mode of

The apt words in the Tuffuor case must again be recalled:

Before I conclude, some assertions of plaintiffs’ counsel must be corrected. It is not

Sections 1 and 2 of the Decree provide as follows:

These inadequacies notwithstanding, the question is whether the words suggested by

Three cases may be cited by way of illustration. In R v Greenland (1867) 36 LJMC 37 it

For the above reasons, I would dismiss the action.

“2(1) A person who alleges that:

(b) any act or omission of any person is inconsistent with, or is in contravention of a

“Words are primarily to be construed in their ordinary meaning or common or popular

Article 156 of the 1992 Constitution provides that:

“THE OATH OF ALLEGIANCE

“THE JUDICIAL OATH

(b) in pursuance of a Decree of the National Liberation Council, or

In a situation like this I think it would be prudent on re-appointment before or on the

Article 118 reads as follows:

(a) the President, in the case of the Chief Justice, and

“A statute is the will of the legislature … in that a statute is to be expounded according to

(a) Oath of Allegiance

(b) Judicial Oath

Person to take Oath

Justices of the Superior Court of Judicature

Person to tender Oath

Touching on paragraph 8 of the defendants’ amended statement of case which

“Where a power is given to a person or authority to do or enforce the doing of an act or a

That clause runs thus:

“A constitutional or statutory instrument or any other instrument made, or issued or

The plaintiffs pleaded in paragraphs 13 to 16 of their statement of case as follows:

The defence by paragraphs 4 to 10 of the statement of defence pleaded as follows: