The role of the supreme court

THE SUPREME COURT SHOULD

BE BOLD AND FEAR NO EVIL

*

One intriguing jurisprudential teaching is that a variety of factors,

including the breakfast taken by judges, influence judges’ decisions. While

this teaching is irrefutable, it is trite that the teaching hardly squares

up to the ideal that justice be administered evenhandedly to all. In keeping

with the Freedom and Justice mantle of our independence and democracy, there

is no doubt that our judges aspire to exclude or at least guard against

injecting extra-judicial matters into their practical handling of cases.

However, the ways some cases have been handled recently make one wonder

whether our venerable Freedom and Justice ideal has any practical meaning in

Ghana. One case inciting this skeptical sentiment is the recent decision on

Nungua where, instead of taking the golden opportunity to address and rule

on the validity of the highly discredited and extremely divisive Indemnity

Clause, the five-member panel of the Supreme Court Justices endorsed a

patently erroneous ruling of High Court Judge Asamoah.

The Nungua case, readers may recall, sprang from PNDC 18, which purported to

prohibit Nii Odai Ayiku, IV, from performing his functions as the Chief of

Nungua. The existing laws, before the PNDC coup, entrenched the law on

chieftaincy as fundamental. Under these laws, chiefs were enstolled,

enskinned, destooled or deskinned by established customs and procedures. The

government simply did not have any authority to interfere with these

processes. Nor was it authorized to curb a chief’s powers by a dint of an

executive instrument. Upon ousting President Liman, the PNDC preserved

chieftaincy laws in their entirety. Thus, when Flt. Lieutenant Rawlings

purportedly prohibited Nii Odai Ayiku from exercising his chiefly functions,

Nii Odai Ayiku, the person sworn-in and installed as the Nungua Chief,

brought an action against the EI. Because Rawlings issued the EI as the Head

of State, only the A.G. is authorized to represent the State. Upon

information and belief, Rawlings’ Chieftaincy Secretariat advised Rawlings

against implementation of the EI. Presumably, consistently with this

admonishment, the A.G did not file any responsive pleading to the action

challenging the EI.

To protect the respect and dignity of the judiciary, any person against whom

an action is filed must answer or move to dismiss it within a specified

time, often 20 days. Failure to respond is deemed grossly disrespectful of

the judiciary, entitling judges to issue default judgments. Here, Ebiasah,

J., the High Court judge on the case, correctly defaulted the A.G. and,* a

fortiori*, the Government. While a defaulted party, with GOOD CAUSE, is

allowed to move within 10 to 20 days to vacate the default, the A.G. never

so moved in the Nungua case. Because the EI was clearly untenable under both

the substantive and procedural laws, violating all principles of justice,

including the *audi alteram patem* rule, one wonders what prompted the

A.G.'s inaction, whether it was the Chieftaincy Secretariat’s admonishment

or the A.G’s recognition that the EI was indefensible.

However, FOUR YEARS after the default and notwithstanding its legal

sanctity, Justice Asamoah, Justice Ebiasah’s colleague on the High Court,

allowed a PRIVATE INDIVIDUAL to file an action to lift the default. This

individual, who self-styled himself as Wor Bortelabi Borketey Larweh XIV

(when Nungua has never had any Wor Bortelabi Borketey Larweh I through

XIII), is not the A.G.; is not a chief; and is not an elder for chieftaincy

purposes. The puzzle is how Justice Asamoah could have ignored the law on

standing and allowed a person to do something that only the A.G. is

authorized to do and long, long, after the statutorily prescribed period had

expired. Nor did Asamoah, J., afford any meaningful basis for his ruling.

First, it is troubling that he grounded his decision on the argument that

Nii Odai Ayiku’s action affected Chieftaincy and that the High Court lacked

jurisdiction to hear such cases. But, ironically, Asamoah was a High Court

Judge like Ebiasah, and the matter at issue before him affected chieftaincy

even more than that before Ebiasah, considering that Asamoah’s plaintiff was

an imposter challenging a lawfully installed chief. Moreover, Asamoah, J.,

ludicrously stated that the imposter presented an affidavit indicating that

he had been installed as the Chief in 1999, clearly exhibiting a gross

abdication of Asamoah’s judicial role where the imposter is not from the

Nungua Royal family.

Further compounding the troubling vacation of the default, the Appeal Court

and, later, a five-member panel of the Supreme Court, affirmed that faulty

decision. In doing so, the appellate justices, without addressing the status

of Asamoah as a High Court Judge and the fact that the case before him

affected chieftaincy, dwelt on Asamoah’s error, especially his

self-contradictory statement that Ebiasah, J., had no jurisdiction to deal

with matters affecting Chieftaincy. In addition, the appellate judges

casually cited the Indemnity Clause, essentially saying that because

everyone is precluded from questioning the validity of any act done by the

PNDC and other military regimes, Asamoah’s decision should stand intact. As

judges appointed to uphold the law and dispense justice evenly without fear

or favor, and in keeping with the separation of powers principle, one would

expect the Supreme Court judges to seize this golden opportunity to address

and shed justiciable light on the highly discredited and intensely divisive

Indemnity Clause, especially given that the Indemnity Clause has been

side-stepped by the Human Rights and National Reconciliation Commissions,

etc., to redress wrongs visited upon people by our military regimes.

In conclusion, I humbly recommend to the Learned Justices of the Supreme

Court that, to be faithful to their judicial mission and thereby disabuse

the minds of all about Ghana’s sincerity to our Freedom and Justice slogan,

the Full panel of the Supreme Court revisit the Nungua and other cases and

correct their patent errors. In Nungua’s case, the pivotal issue is whether

or not the Indemnity Clause is valid. The Court cannot just uphold the* ultra

vires* and *void ab initio* EI by merely hiding behind the Indemnity Clause.

Instead, as the Organ whose province is to declare what the law is, i t

should hold the bull by the horn and, pursuant to the *audi alteram

patern* rule,

give the legitimate parties, Nii Odai Ayiku, et. al., and the A.G. a full

hearing and issue with finality its authoritative decision on the validity

of the Indemnity Clause and, *a fortiori*, the status of Nii Odai Ayiku *viz

a viz* the EI.

Boye Shakespear