Shalabi v Attorney-General

• Jurisdiction: Ghana
• Date: 26 November 1971
• Court: High Court (Ghana)

Ghana, High Court.

(Hayfron-Benjamin, J.)

Shalabi

and

Attorney-General

States as international persons Succession of governments In general Overthrow of government Proclamation of interim government Powers of interim government Whether including Power to deprive persons of their nationality The law of Ghana

The individual in international law Nationality Loss of nationality Plaintiffs acquiring nationality under 1967 decree Decree of 1969 purporting retrospectively to amend 1967 decree Whether plaintiffs deprived of their citizenship Powers of revolutionary government Interim nature of regime Doctrine of parliamentary sovereignty The law of Ghana

Summary: The facts:The plaintiffs had been born to Lebanese parents in the Gold Coast becoming citizens of the United Kingdom and Colonies by birth. The Gold Coast became independent as the State of Ghana in 1957. In 1968 the plaintiffs renounced their citizenship of the United Kingdom and applied for Ghanaian passports under the Ghana Nationality Decree 1967,1 which granted Ghanaian citizenship to citizens of the United Kingdom who had been born in Ghana prior to independence. In 1969 the National Liberation Council promulgated the Ghana Nationality (Amendment) Decree which stated that it amended the Council's earlier decree and

which restricted citizenship to those born in Ghana with at least one parent or grandparent born in Ghana. The 1989 Decree was stated to have come into force on the same day in 1967 as the earlier decree had done. The plaintiffs applied for a declaration that they were Ghanaian nationals

Held:(1) The National Liberation Council had established itself as an interim government by the Proclamation of 1968, following the overthrow of the previous regime. As an interim government its powers were limited to what was necessary for the administration and good government of the country. It was not omnipotent. These powers did not include the power to deprive those to whom citizenship had been granted of their Ghanaian nationality. Nationality once granted could only be lost through the due process laid down in the instrument which granted it.

(2) Although the 1969 Decree was stated to have come into force on the same day as the 1967 Decree had done, there was no question that the plaintiffs had in fact been granted Ghanaian nationality by the earlier measure. Deprivation of citizenship was a most serious step and in the absence of express deprivation of nationality in the 1969 Decree it must be presumed that the Council had not intended the measure to have that

(3) The fact that it might be administratively inconvenient or undesirable that persons whose parents and grandparents were not born in Ghana should have Ghanaian nationality did not affect the position.

The following is the text of the judgment of the Court:

Hayfron-Benjamin J. The plaintiffs are partners in the firm of Messrs. Shalabi Transport Service, Accra, registered under the Incorporated Private Partnerships Act, 1962 (Act 152), registered No. P. 208. The first plaintiff was born in the then Gold Coast on 30 September 1933 and the second plaintiff on 13 September 1935. Their parents were Lebanese. By reason of their birth in the Gold Coast, the plaintiffs were British subjects. The foregoing facts are admitted by the defence.

The plaintiffs go on and aver in their statements of claim that they were holders of British passports and gave the numbers of their passports. They held their passports until the Ghana Nationality Decree, 1967 (N.L.C.D. 191), was made, when they renounced their British nationality and applied for and obtained Ghanaian passports on 30 September 1968 and 24 October 1968 respectively. With the passage of the Ghanaian Business (Promotion) Act, 1970 (Act 334), which seeks to restrict the activities of aliens in certain sectors of the economy, the plaintiffs instructed their solicitors in view of the provisions of Ghana Nationality (Amendment) Decree, 1969 (N.L.C.D. 333), to seek a confirmation from the authorities that they were Ghanaians and free to carry on their transport business without hindrance. Their solicitors were told that the authorities hold the view that the plaintiffs axe neither Ghanaian nor British citizens, but Lebanese. They therefore took out a writ for a declaration that they are Ghanaian citizens and as such entitled to carry on running their transport firm without let or hindrance.

The only serious defence put forward by the defence is found in paragraph (5) of the statement of defence, which states that The defendant hereby maintains that the Decree 333 affected those who had acquired citizenship under Decree 191. The only issue set down for trial on the summons for directions was whether or not the amendment of N.L.C.D. 191 by N.L.C.D. 333 does affect or is intended to affect those who had already acquired citizenship under the Decree No. 191.

The whole case therefore turns upon the effect of N.L.C.D. 333. This decree provides that:

1. The Ghana Nationality Decree, 1967 (N.L.C.D. 191) is hereby amended by the substitution for paragraph 1 thereof, of the following paragraph:

1. A person born in Ghana is a citizen of Ghana by birth if

• (a) having been born in Ghana before the date of commencement of the Ghana Independence Act, 1957 (L.N. 63), that is to say, the 6th day of March 1957,

  • (i) he was immediately before that date a citizen of the United Kingdom and Colonies or a British protected person, and

  • (ii) one at least of his parents or grandparents was born in Ghana or

• (b) having been born in Ghana after the 6th day of March 1957 one at least of his parents at the time of his birth was a citizen of Ghana.

2. This Decree shall be deemed to have come into force on the 25th day of July, 1967.

This Decree itself was made on 15 February 1969 and its Gazette notification was published on 21 February 1969. This Decree, as stated, amended the Ghana Nationality Decree, 1967 (N.L.C.D. 191), by substituting the above for paragraph 1 thereof. Section 1 of N.L.C.D, 191 originally provided that:

1. A person born in Ghana is a citizen of Ghana by birth: Provided that

• (a) a person born in Ghana before the date of commencement of the Ghana Independence Act, 1957 (L.N. 63) (i.e. the 6th day of March, 1957) shall not be a citizen by virtue of this paragraph unless he was immediately before the 6th day of March 1957, and within the meaning of the law in force in Ghana on that date a citizen of the United Kingdom and Colonies or a British protected person;

• (b) a person born in Ghana after the 6th day of March, 1957 is not a citizen of Ghana by virtue of this paragraph, if at the time of his birth neither of his parents was a citizen of Ghana and...