Material Facts:

The plaintiff challenges the validity of section 15 of the Divestiture of State Interests (Implementation) Law, 1993 PNDCL 326 on the grounds that: “it is inconsistent with or in contravention of the provisions of articles 140(1) and 293(2) and (3) of the Constitution, 1992 of the Republic of Ghana and to that extent it is null and void.”

Issues:

1. Whether or not the plaintiff the locus standi to bring the present action.

2. Whether or not section 15 of the Divestiture of State Interests (Implementation) Law, 1993 PNDCL 326 is inconsistent with the provisions of articles 140(1) and 293(2) and (3) of the Constitution.

Arguments of the Defendant:

1. That he is a citizen of Ghana and has locus by virtue of article 2(1).

Arguments of the Defendant:

1. That the plaintiff does not aver that any right of his has been infringed or is being threatened with infringement.

2. That the plaintiff had no standing to bring the suit since he had no personal interest in the outcome of the case, and consequently invited the court to strike out the plaintiff’s writ for lack of standing.

3. The defendant also maintained that section 15 of PNDCL 326 would have to be subsumed under the umbrella of sections 34(1) and (2 ) of the transitional provisions of the Constitution, 1992 which provided immunity for acts done by the Provisional National Defence Council (PNDC) and its appointees.

Holding:

1. The plaintiff has the locus standi.

2. Section 15 of the Divestiture of State Interests (Implementation) Law, 1993 (PNDCL 326) was inconsistent with and in contravention of articles 140(1) and 293(2) and (3) of the Constitution, 1992.

Ratio Decidendi:

That article 2(1) gives locus standi to any person who alleges an enactment or anything contained in that enactment was inconsistent with or in contravention of the Constitution and to obtain a declaration to that effect. Further, that the constitution of Ghana in article 140(1) gave the High Court jurisdiction in all matters, subject to the Constitution. Section 15 of PNDCL 326, being a subordinate law, was in contravention of article 140 as it sought to oust or curtail the High Court’s jurisdiction in relation to proceedings brought against the State and members of the Divestiture Implementation Committee. Section 15 of PNDCL 326 was also inconsistent with article 293 of the constitution as it sought to prevent aggrieved persons from seeking redress in the courts in respect of any torts committed by the State and its employees under PNDCL 326. On the argument of immunity, the court believed that immunity was only provided for acts committed prior to the coming into force of the 1992 constitution, and not acts committed by the present government or its appointees.