Asare v. Attorney General and Another (J1 1 of 2020) [2020] GHASC 50 (28 July 2020)

Material Facts:

The plaintiff described himself as a citizen of Ghana, interested in upholding the 1992 Constitution and preventing a contravention of its provisions.

The second defendant, the General Legal Council, is a public body established under the Legal Professions Act, 1960 (Act 32) and is, inter alia, responsible for the organisation of legal education in Ghana.

The plaintiff invoked the original jurisdiction of the Supreme Court under articles 2(1) and 130(1) for a declaration that the activities of the second defendant are inconsistent with articles 25(2) and 296(b) of the 1992 Constitution. He submits that Article 25(2) empowers all persons to establish and maintain a school. However, the second defendant has created a monopoly over legal education by being the only body that offers the Professional Law Course at the Ghana School of Law. By virtue of Article 25(2), Universities should also be able to offer the Professional Law Course, after which students will proceed to take the Qualifying Certificate Examination pursuant to Section 13 of Act 32. He further submits that the decision of the second defendant to create a distinction between the Professional Law Course and Academic Law Course, where the former is only offered at the Ghana School of Law and the latter is offered at the Universities, is arbitrary and capricious, contrary to Article 296 .

Issues:

1. Whether the Plaintiff has met the pre-condition for the exercise of the exclusive original enforcement and interpretive jurisdiction of the Supreme Court?
2. If the General Legal Council has created a monopolist provider of the Professional Course (Ghana School of Law), does that creation violate Article 25(2)?
3. Whether the bifurcation of legal education into an ‘’ academic course’’ and a ‘’professional course, where the latter can be taught only at the Ghana School of Law, is arbitrary and capricious in violation of Article 296 (b)?

Arguments of the Plaintiff:

1. Since the plaintiff and defendants are not ad idem on the true meaning of the phrase "school or schools at all levels and categories" in article 25(2), the plaintiff has properly invoked the interpretative jurisdiction of the court.

Arguments of the Second Defendant:

1. That the present action is not one within the original jurisdiction of the court under articles 2(1) and 130(1).
2. That the two constitutional provisions relied on by the plaintiff, articles 25(2) and 296(b), are all clear and not in need of interpretation.
3. If the plaintiff thought the defendant had acted contrary to the Legal Professions Act, Act 32, he should have instituted a claim at the High Court.

Holdings:

1. The plaintiff’s writ and his pleadings do not invoke the original enforcement and interpretative jurisdiction of the Supreme Court.
2. There is no violation of Article 25(2).
3. The bifurcation is not a discretionary act by the second defendant and is not captured by Article 296(b).

Ratio Decidendi:

Article 2(1) empowers the Supreme Court to ensure compliance with every provision of the 1992 Constitution. If anyone alleges that an act is in contravention of the Constitution, it is up to that person to show that the act complained of is inconsistent with specific provisions of the Constitution. In the present case, the plaintiff is contending that the monopoly of the Ghana School of Law is contrary to Article 25(2) . Per Marful Sau JSC, the plaintiff has failed to provide evidence that the second defendant has prohibited any citizen or body from establishing private schools of any level or category. Due to this failure, it cannot be concluded that the second defendant is acting contrary to Article 25(2).

On the plaintiff’s argument that there is an issue of interpretation given the contrary meanings given by the parties to the phrase "school or schools at all levels and categories" in article 25(2), Marful Sau JSC stated

We regard this argument as very fanciful and we would not be lured by same to invoke our interpretative jurisdiction just because a party places an absurd meaning on words or phrases on constitutional provisions.

The provision in Article 25(2) is clear and does not need interpretation. The fact that the plaintiff places an absurd meaning on the provision does not render it ambiguous or in need of interpretation.

Finally, the plaintiff sought to justify the jurisdiction of the court by submitting that the distinction between the Professional Law Course run by the Ghana School of Law and the Academic Law Course run by approved universities is arbitrary and capricious, and thereby contrary to Article 296(b), which provides that "the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law". The court held that the distinction between the Professional Law Course and the Academic Law Course is grounded in substantive law and not mere discretions exercised by the second Defendant and the various approved universities. The laws that govern the operations of the two courses have designated them as ‘’Professional’’ and ‘’Academic’’ and have nothing to do with the discretion exercised by the second Defendant. Consequently, the provision in Article 296(b), which is exclusively on the exercise of discretionary power, does not apply to the distinction between the two law courses.

The court, per Marful Sau, reiterated that it will not allow the exclusive jurisdiction of the court to be abused.

This Court has resisted the abuse of its exclusive original interpretative and enforcement jurisdiction; and its laudable policy not to assume jurisdiction in actions that fall short of the measuring threshold, such as in this case, should not be compromised or lowered in any way

The plaintiff’s action was accordingly dismissed.