In the Matter of Abena Ackah v Agricultural Development Bank: Has the Supreme Court Given to Caesar What Belongs to God?
The dichotomy between the Church and the State was epitomized in the words of Jesus Christ in the following text which is found in the book of Mark Chapter 12:
“Later they sent some of the Pharisees and Herodians to Jesus to catch him in his words. They came to him and said, “Teacher, we know that you are a man of integrity. You aren’t swayed by others, because you pay no attention to who they are; but you teach the way of God in accordance with the truth. Is it right to pay the imperial tax to Caesar or not? Should we pay or shouldn’t we?” But Jesus knew their hypocrisy. “Why are you trying to trap me?” He asked. “Bring me a denarius and let me look at it.” They brought the coin, and he asked them, “Whose image is this? And whose inscription?” “Caesar’s,” they replied. Then Jesus said to them, “Give back to Caesar what is Caesar’s and to God what is God’s.” And they were amazed at him.”
In the words of Jesus Christ, what belongs to the State cannot be given to the Church and vice versa.
In law, there are a set of remedies which are applicable to disputes arising out of private dealings (such as contracts and torts) and there is another set of remedies which are available to any person who has been a victim of any action or inaction by a public entity. Hence, the remedies available to private dealings cannot be applied to disputes arising from dealings with public entities and vice versa.
In this article, the author seeks to contend that in the Abena Ackah v. Agricultural Development Bank (hereinafter referred to as ADB), the Supreme Court applied a remedy available to private disputes in a matter which was commenced and presented to the Court as a public law dispute.
2.Facts of the Case
Madam Abena Ackah (hereinafter referred to as the “Applicant”) was employed by ADB as a Retail Performance Monitoring Officer until 13th February 2012 when her appointment was terminated due to the events which gave rise to the action. Her appointment was terminated by ADB on the allegation that the employee had breached the oath of secrecy contained in the Human Resources Policy Manual of the Bank when she made certain remarks about the operations of the bank to a journalist in a private conversation, and which private conversation was secretly recorded by the journalist and shared with the bank. Piqued by the decision of the bank to terminate her employment, the Applicant filed an originating motion on notice under the provisions of Order 67 rule 3 of the High Court (Civil Procedure Rules), 2004, CI 47 and pursuant to article 33 of the 1992 constitution for the following reliefs:
- “A declaration that the purported termination by Respondent of the Applicant’s employment with the Respondent on the basis of comments made by the Applicant in a private telephone conversation between the Applicant and another person, and which was clandestinely recorded by the Respondent herein, is a gross infringement of the Applicant’s fundamental human rights to the freedom of speech, expression, thought and opinion as well as the Applicant’s rights to privacy guaranteed by the Constitution 1992, and therefore manifestly unlawful.
- A declaration that the purported termination of the Applicant’s employment with the Respondent is in violation of the Applicant’s right to a fair hearing.
- An order of certiorari to bring in the decision of the Respondent herein purporting to terminate the Applicant’s employment complained of in (i) above and quash same as being in violation of the Applicant’s fundamental human rights guaranteed by the Constitution, 1992.
- An order of prohibition directed at the Respondent herein forbidding it from instituting disciplinary proceedings against the Applicant herein on the strength of commentary made by Applicant herein in a telephone conversation between the Applicant and another person and who was surreptitiously recorded by the Respondent herein.
- Damages for breach of privacy.
- Damages for violation of the Applicant’s fundamental human rights to the freedoms of speech, expression and opinion.
- Any other order(s) as this honourable court may deem meet upon the grounds contained in the accompanying affidavit.”
3.The Decision of the High Court and Court of Appeal
The matter was determined on affidavit evidence only and no viva voce evidence was led by either party to the action. Both the High Court and the Court of Appeal dismissed the case of the Applicant on the basis that the secret recording of the private conversation, the basis of the termination of the Applicant’s employment, did not amount to a breach of her right to privacy as provided for under Article 18 (2) of the 1992 Constitution. In neither the High Court nor the Court of Appeal, was the issue of the procedure (i.e., means of commencement of the action vis a vis the reliefs sought by the Applicant) adopted by the Applicant raised for determination.
4. The Decision of the Supreme Court
Not satisfied with the decision of the Court of Appeal, the Applicant filed a further appeal at the Supreme Court, principally on the grounds that the Court of Appeal erred when it held that the secret recording of a private conversation was not in breach of the right to privacy of the Applicant as enshrined in the provisions of the 1992 Constitution.
For the first time in the action, the Supreme Court raised suo motu, the issue of the competency of the Applicant’s action, having regard to the provisions of Order 67 rule 3 (1) (a) and (b) of the High Court (Civil Procedure) Rules, 2004, CI 47, vis a vis the provisions of article 33 of the 1992 Constitution.
In relying on the decision of the Supreme Court in the case of Awuni v. West African Examination Council (WAEC), Dotse JSC held as follows: “In concluding on this issue, I hold that the applicant’s action in the High Court, which resulted in this appeal, not only complied with the provisions of articles 33 of the Constitution but also with Order 67 rule 3 (1) (a) & (b) of the High Court (Civil Procedure) Rules, 2004, CI 47”. The Supreme Court went further to award GHS100,000.00 as damages to the Applicant for a breach of her fundamental human rights.
This article will focus on the decision of the Supreme Court in respect of the procedure adopted by the Applicant and the award of GHS100,000.00 as damages to the Applicant.
The author will now set out the basis of his contention in respect of the decision reached by the Supreme Court on the procedure adopted by the Applicant in ventilating her grievances in this matter.
5.Procedure for Enforcing Fundamental Human Rights
Article 12 (2) of the Constitution, 1992, states:
“Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedom of the individual contained in this chapter but subject to respect for the rights and freedoms of others and for the public interest.”
Article 18 (2) provides that:
“No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”
Article 33 of the Constitution of 1992 provide thus:
- “Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or likely to be contravened in relation to him, then, without prejudice to any other action that is lawfully available, that person may apply to the High Court for redress.
- The High Court may, under clause 10 of this article, issue such directions or orders including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.”
- The Rules of Court Committee may make rules of court with respect to the practice and procedure of the Superior Courts for the purpose of this article.”
Pursuant to the provisions of Article 33 (4), Order 67 of the High Court (Civil Procedure) Rules was enacted in 2004 with the following provisions:
Order 67 (1): “A person who seeks redress in respect of the enforcement of any fundamental human right in relation to the person under article 33 (1) of the Constitution shall submit an application to the High Court.”
Order 67 rule 2 (1): “The application shall be made to the Court by motion supported by an affidavit signed by the applicant or by the applicant’s lawyer and shall contain the following particulars:
(a) the full name and address for service of the applicant and the lawyer of the applicant;
(b) the facts upon which the applicant relies;
(c) the relief or remedy sought by the applicant and the grounds on which the applicant seeks the relief or remedy: and
(d) the full name and address for service of any person directly affected by the application.
Order 67 rule 2 (2): “A copy of the application shall be served on the Attorney-General and such other persons as the Court may direct.”
Order 67 rule 3 (2): “Notice of the application shall be served on the Attorney-General and all parties named in the affidavit of the applicant as being directly affected.”
Order 67 rule 8: “The Court may issue such directions, orders or writs including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms of the Constitution to the protection of which the applicant is entitled.”
From the wording of these laws reproduced above, there is no controversy on the position that if any person is of the opinion that his or her human rights have been infringed upon:
- That person may commence an action at the High Court.
- The means of commencing that action will be by originating motion on notice.
- The Attorney General must be a Respondent to that action; in addition to any other entity which may be directly affected by the outcome of the Application.
- Upon hearing of such an application, the Court may issue any directions, order or Writs for the purposes of enforcing or securing the enforcement of the fundamental human rights of the applicant.
6.Why Must the Attorney-General be a Party to a Human Rights Action?
The primary responsibility of promoting and enforcing the fundamental human rights of all persons within Ghana, lies with the State. Article 35 (4) of the 1992 Constitution provides to this end thus, “The State shall cultivate among all Ghanaians respect for fundamental human rights and freedoms and the dignity of the human person.”
Article 88 of the 1992 Constitution provides as follows:
(1) There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government.
(2) The Attorney-General shall discharge such other duties of a legal nature as may be referred or assigned to him by the President, or imposed on him by this Constitution or any other law.
(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.
Being the principal legal officer of the State of Ghana, it is only proper that the Attorney- General is made a Party to all actions commenced with the aim of enforcing the fundamental human rights of persons in Ghana as enshrined in the 1992 Constitution.
Nonetheless, where the alleged perpetuator of the human rights violation is an appendage of any State entity or a body created by statute or the constitution, that entity is entitled to appoint a counsel of their choice other than the Attorney General. Any other person, who is affected by an action involving the state can also join the said action by counsel of his or her own.
In the case of Amegatcher v. Attorney-General, it was held by the Supreme Court that: “Consequently, we consider that the time has come for a realistic revisit to article 88 (5). Accordingly, we come down on article 88 (5) as follows. All the constitutionally established independent bodies like the Commission on Human Rights and Administrative Justice, the Electoral Commission etc. can sue and be sued on their own relating to their function per counsel of their choice. Any person affected by an action involving the State can upon application, be joined to such action, to protect his or its interest.”
From the foregoing analysis, the author contends that in any action to enforce the fundamental human rights, the Applicant must join the Attorney- General as a party to the action. Any other person or entity (whether private or public) which will be affected by the action must also be made a party. The Attorney-General may decide to just be a nominal party and will not file any processes in the matter .
I must be quick however, to admit that per the provisions of Order 4 rule 5 of CI 47, the non-joinder of a party, does not necessarily invalidate the action and the Court; even for the first time on appeal, the Court may order a party (including the Attorney-General) to be joined to the action. Hence, in this ADB case, even though the Attorney General was not made a party to the action, that non-joinder cannot be deemed to have been fatal to the action of the Applicant. That notwithstanding, it would have been in further demonstration of the fidelity to the rules of Court by the Supreme Court to have ordered that the Attorney General be made a party to the action.
7.Remedies Available in Human Rights Action
As has been reproduced above, the High Court has the jurisdiction at first instance to adjudicate a human right action. Per the provisions of article 33, The High Court may issue such directions or orders including writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition, and quo warranto as it may consider appropriate for the purposes of enforcing or securing the enforcement of any of the provisions on the fundamental human rights and freedoms to the protection of which the person concerned is entitled.”
The ordinary meaning of this article is that the decision to be given by the High Court in any human right action can only be a decision aimed at enforcing or securing the enforcement of fundamental human rights and freedoms of the victims of any such infraction. The High Court would, therefore, not have the jurisdiction to make any order or give any direction in a human rights action which does not result in the enforcement or secures the enforcement of the fundamental human rights of any such applicant. Any order or direction by the High Court which would have any other effect stands the risk of been declared void and a nullity, having been made outside the jurisdiction of the High Court.
In Boyefio v. NTCH Properties, it was held that “The law was clear that where an enactment has prescribed special procedure by which something was to be done, it was that procedure alone that was to be followed.”
In Republic v. High Court, Accra; Exparte Sanger-Dery, it was held that where a statute provides for a relief which can be ordered by a Court or an adjudicative tribunal, the court or tribunal cannot grant any other relief.
Human Rights forms part of Public Law. It is trite that public law remedies are available for infraction of public laws by State actors and/or other citizens.
It is trite that orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto are public law remedies which are available against public entities for breach of public law such as fundamental human rights.
Twum JSC, held in the case of Republic v. High Court; Kumasi: Ex parte Mobil Oil GH. Ltd that, “There is a special family of public remedies available when public law rights are infringed. These are principally Certiorari, prohibition and Mandamus.”
The mentioning of examples of such orders or directions which can be issued by the High Court in such an action in Article 33 and Order 67, lends credence to the interpretation of the clause proffered immediately above by the author.
8. Comparism With an Application for Judicial Review
Now, in Order 55 of CI 47, the rules of court provide for a means of commencing action to seek Judicial Review or any action of an administrative body or public officer exercising judicial or quasi-judicial authority. Judicial Review, which is commenced by means of originating motion on notice, may result in any of the following orders by the High Court:
(a) an order for prohibition, certiorari or mandamus;
(b) an order restraining a person from acting in any public office in which that person is not entitled to act;
(c) any other injunction;
(d) a declaration;
(e) payment of damages.
Order 55 rule 3 further provides that, “The Court on an application for judicial review, may award damages to the applicant if the applicant makes a case for damages and if in the opinion of the Court such damages arise from a matter to which the application relates, and damages would have been awarded to the applicant in an action begun by the applicant at the time of making the application.”
One will notice that unlike an application under Order 67 of CI 47, an application for judicial review under Order 55 confer on the High Court, the jurisdiction to make an order for the payment of damages. It is trite that in statutory interpretation, the express mention of one excludes the other. Hence, it can be safely presumed that if the framers of the applicable constitutional provision and statute intended to confer on the High Court the jurisdiction to make an order for the payment of damages in an application under Order 67, the framers would have included that relief in like manner to an application under Order 55 of the same CI 47.
Are Collateral Remedies Available in Human Rights Actions?
Now, it has been settled by judicial pronouncements that where a statute provides for the remedy which can be available to a party in respect of a cause of action, that party cannot use that means to achieve a collateral purpose.
A comparison may be made with the remedies available to a party who seeks an order against a company for actions which the party deems to be oppressive to that party’s interest as a shareholder of the company.
In the English case of Re Bellador Silk Ltd., Plowman J. when dealing with an application under section 210 of the English Companies Act stated the position as follows:
“A petition which is launched not with the genuine object of obtaining the relief claimed, but with the object of exerting pressure in order to achieve a collateral purpose is, in my judgment, an abuse of the process of the court, and it is primarily on that ground that I would dismiss the petition.”
This principle was applied by the Ghanaian Court in the case of Pinamang v Abrokwa where the Court of Appeal dismissed an application brought under section 218 of Act 179 because the Court concluded that the real object of the application was to remove the Managing Director and Chairman of the Company and not to seek the remedies laid out in section 218 of Act 179.
Now, from the facts of this ADB case, the reliefs indorsed on the originating motion on notice and the depositions contained in the affidavit in support of the application made it obvious that the genuine object of the applicant was to get a remedy for the wrongful termination of her employment by ADB. The relief for a declaration that her right to privacy had been breached, was only a means to reach the end of getting justice for the wrongful termination of her employment contract.
The author arrived at this conclusion because of the undisputed fact that an action by the Applicant for declaration for wrongful termination of employment and for damages therefrom cannot be sustained without adducing evidence of the breach of privacy.
On the application of the principles of law espoused immediately above, it is the contention of the author that the indorsement of the human right reliefs in the originating motion on notice was only a subterfuge by the Applicant to achieve the collateral relief of damages for wrongful termination of contract; and that strategy should not have received juridical blessing by the highest court of the land.
10.Was the Supreme Court to Award Damages in this Case?
As stated earlier, the Supreme Court was exercising appellate jurisdiction over the decision of the High Court to refuse to award damages.
Article 129 (4) of the 1992 Constitution provides that “For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgement or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and Jurisdiction vested in any court established by this Constitution or any other law.”
This means that the as a final appellate Court, the Supreme Court was limited to exercise the jurisdiction which was conferred by the applicable statute on the High Court as the court of first instance. In other words, in exercising appellate jurisdiction, the Supreme Court cannot grant a relief which the High Court did not have the jurisdiction to grant in the first place.
As has been contended earlier, in an application for enforcement of fundamental human rights, the High Court does not have the jurisdiction to make an award for payment of damages.
The Supreme Court in awarding the damages, relied heavily on the ratio in the case of Awuni & Ors v West Africa Examination Council (WAEC). In this case, the Applicants had their results cancelled, and they were further barred from partaking in any WAEC examinations for a period of 3 years. The Applicants filed an originating motion on notice for the following reliefs:
(i)a declaration that the decision of the Final Awards and Examinations Committee of WAEC to cancel the entire results of the appellants is unlawful, void and of no effect; and
(ii)the barring of the appellants from taking any examination conducted by WAEC for three years is equally unlawful, void and of no effect.
The application also sought such directions or orders which the court felt was necessary for the enforcement of any declarations made by it.
After holding that the actions of the Respondent were in breach of the rules of natural justice, the Supreme Court, speaking through Kpegah JSC held that, “The appellants have been frustrated in planning their future in the academic field and entire life for the past four years not only as a result of the unlawful suspension of their entire results but also their illegal barring from taking any examinations under the auspices of the council for three years. I find intolerable and unconscionable the situation the appellants went through by the decision of the council; especially when under their own regulations they are not entitled to withhold the entire results of the appellants and in addition bar them for three years. In the circumstances, I think a token and moderate compensatory award coupled with the relevant orders and directions to the council will fairly and reasonably redress the contravention of the appellants’ rights.”
In relying on the ratio in the WAEC case, Pwamang JSC held that “I have upheld the applicant’s claim for damages for the breach of her fundamental human right just as the court did in the case of Awuni v WAEC…. Under the circumstances, I consider an award of GHS100,000.00 as damages to the Applicant as appropriate.”
With great respect to the judges of the Supreme Court, the author is of the opinion that the award of the damages based on the WAEC case was misconceived and inappropriate for the following reasons:
First, at the time of the judgment in the WAEC case by the Supreme Court, the High Court (Civil Procedure) Rules, 2004, CI 47 had not been enacted. There was therefore no laid down procedure for the commencement of an action to enforce fundamental human rights. This was confirmed by Kpegah JSC when he held that, “Under clause (4) of article 33, the Rules of Court Committee of the Judicial Council is entrusted with the responsibility to make rules to regulate the practice and procedure for enforcing the fundamental rights of the individual by the courts. And it is common knowledge that this constitutional responsibility has not yet been discharged by the appropriate authority.”Hence, the Supreme Court in this ADB case should not have wholly admitted the award of damages in the WAEC case without reference to the specific provisions of the applicable law, at the time of the delivery of this judgment, i.e., Order 67 of CI 47.
Secondly, in the WAEC case, unlike the ABD case, the Applicants did not indorse their application with any other relief to suggest that their claim for a breach of fundamental human rights was only a means to achieve the collateral purpose of claiming damages. The originating motion in the WAEC case did not include a relief for damages and so it was obvious that all that the Applicants were interested in was a declaration that their fundamental human rights had been infringed upon and for further direction as to the enforcement of their rights.
Thirdly, Unlike ADB, WAEC is a public institution whose duties and functions are regulated by Statutory provisions. The actions of WAEC are therefore subject to judicial review, and by which means the High Court has the jurisdiction to make an award for the payment of damages by the public office to acting contrary to its enabling statute or any other applicable law. The Supreme Court, at the time of delivering the decision in the Awuni case, can justify its order for payment of damages by placing the order squarely under the provisions of the rules of court which entitles the court to award damages in exercising its judicial review jurisdiction over administrative and quasi judicial bodies.
Fourthly, unlike in this ADB case, in the WAEC case, the Supreme Court invited the Parties before it to file supplementary written submissions in respect of the award of damages. Both Parties had an opportunity to address the court on the basis for the award of damages.
For these four reasons, the author is of the opinion that the Supreme Court in this ADB case should have restrained itself from awarding damages and heeded the advice of Kpegah JSC in the WAEC case, thus, “I must, however, caution that this should be limited to its own facts since it is not intended to represent any general principle regulating a court’s discretion which will open the floodgates for the award of all types of damages in public law proceedings.”
Twum JSC, put it more succinctly in the WAEC case as follows: “This is compensation for a public law wrong which is not actionable at common law. I believe that we should tread carefully and gingerly in this novel territory. Similarly, I do not think that this is an appropriate case in which to award exemplary/punitive damages, as we were urged to do by the appellant. At the commencement of the evolution of the new remedy that this case has established, it would be prudent to exercise restraint and to allow time to provide an opportunity for the courts to monitor how the new remedy fits into the general fabric of our public law. I believe that the modest general damages awarded in this case against an administrative body for breach of article 23 in itself sends a strong message to public authorities to be mindful of their constitutional obligations under that article in particular and under chapter five in general.”
The author is of the opinion that where a party has suffered a breach of his fundamental human rights and which breach has resulted in any other cause of action maintainable by common law or statute, that person should be put to an election as to which of the cause of actions he would pursue. This is because, the means of commencing an action to enforce a fundamental human right under Order 67 of CI 47 is not necessarily the same as the means of commencing an action in respect of any other cause of action under Order 2 of CI 47 and the remedies available under both causes of action are different.
Secondly, in the event that a court is minded to award damages in an Order 67 application, the Court should allow the parties to adduce evidence to determine the nature of damage that the Applicant has suffered because of the breach of his fundamental human right. That is the only way the court will be able to award damages to put the Applicant in the position the Applicant was prior to the breach of his fundamental human right. The court may give this direction in exercise of its jurisdiction to make give further directions to enforce the fundamental human rights of the Applicant.
When an Applicant has successfully prosecuted an action under Order 67, that Applicant may use the decision rendered by the court under Order 67 to commence another action by means of a Writ of summons to claim damages or other reliefs relating to the breach of his fundamental human right.
The author commends the bench of the Supreme Court for holding that the secret recording of private conversation is a breach of the fundamental human rights of the Applicants. Again, the author agrees with the decision of the Supreme Court in dismissing the reliefs relating to certiorari and unlawful termination of employment which were sought by the Applicant.
However, in awarding damages of GHS100,000.00 against a private entity for breach of a fundamental human right of its former employee, the Supreme Court has opened the flood gates for person to use the avenue provided in Order 67 of CI 47 to achieve collateral purposes. For reasons contended in this article, the author is of the opinion that the Supreme Court erred in awarding damages of GHS100,000.00 in favor of the Applicant.
It is true that justice must be seen to be done in all cases but the court must continually be minded, as opined by Taylor J (as he was then) in Bonsu v. Bonsu that, “There is always a real danger when vague ideas of justice undefined by statute or case law are propounded and brandished like a cure–all magic wand– without appreciating the actual position, namely that the true legal notions of justice are circumscribed by the demands of the law and that in this court we administer justice according to three and only three yardsticks: Statute, Case Law or our well defined practice.”
The court must ensure that in dispensing justice, it would not give to Caesar what belongs to God!
 The New International Version
 Mark 12 v 13
 Mark 12 v 14
 Mark 12 v 15
 Mark 12 v 16
 Mark 12 v 17
 Civil Appeal No: J4/31/2014 and reported as [2017-2018]2SCGLR 1
 [2003-2004] SCGLR 471
 The author agrees with the conclusion reached by the Supreme Court in the interpretation and application of the provisions of Article 18 (2) to the effect that a secret recording of a private conversation is in breach of the right to privacy of the party against whom the secret recording is adversely used.
The author also agrees with the decision of the Supreme Court to dismiss the reliefs relating to an order for Certiorari and termination of contract of employment.
  GHASC 26
 This is repeated in Order 67 rule 8 of CI 47
 [1997-1998] 1 GLR 768
 [2016-2017] 1 GLR 67
 [2005-2006] SCGLR 312
 See Order 55 rule 2 of CI 47
  1 All E.R. 667
  2 GLR 384
 The Companies Act, 1963, Act 179 has been repealed by The Companies Act, 2019, Act 992. Section 218 of Act 179 has been replaced by section 219 of Act 992.
  2GLR 241 @ 260