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Procedure -
clarification and further
directions in respect of Supreme
Court judgment - Supreme Court
Rules, CI 16 of 1992 - inherent
jurisdiction rule 5 - Whether or
not order made by this
honourable court pursuant to the
judgment in the that the 1stDefendant/
Respondent to “delete or clean”
the current register of voters
to conform to the provisions of
the 1992 Constitution and
applicable law means the
immediate removal of names of
persons who registered with the
National Health Insurance Scheme
Card and who had otherwise not
established qualification to
register or remain on the
register of voters - Whether or
not the Constitution of Ghana
and provides the legal basis and
authority for 1st
Defendant/Respondent to comply
with same forthwith.- Whether
the said court can
remove the names of persons who
used the National Health
Insurance Scheme Card and others
who had not lawfully established
qualification to register from
the current register of voters
forthwith and provide those who
remain eligible and subsequently
establish qualification to
register under law an
opportunity to do so in time to
participate in the general
elections of 2016.
HEADNOTES
.
The application was expressed in
the body of the motion paper to
have been brought under our
inherent jurisdiction and rule 5
of the Supreme Court Rules, CI
16 of 1992.The reliefs prayed
for by the applicants numbering
four A declaration that the
order made by this honourable
court pursuant to the judgment
in the instant suit dated May 5th,
2016 that the 1stDefendant/Respondent
to “delete or clean” the current
register of voters to conform to
the provisions of the 1992
Constitution and applicable law
means the immediate removal of
names of persons who registered
with the National Health
Insurance Scheme Card and who
had otherwise not established
qualification to register or
remain on the register of
voters; and A declaration that
the said order is made pursuant
to Article 2(2) of the
Constitution of Ghana and
provides the legal basis and
authority for 1st
Defendant/Respondent to comply
with same forthwith. A
declaration that the dismissal
of Plaintiffs/Applicants reliefs
4(a) and (b) in the suit does
not bar 1st
Defendant/Respondent from
adopting the validation process
as an auditing tool to clean the
current register of voters. An
order further directing the 1st
Defendant/Respondent to remove
the names of persons who used
the National Health Insurance
Scheme Card and others who had
not lawfully established
qualification to register from
the current register of voters
forthwith and provide those who
remain eligible and subsequently
establish qualification to
register under law an
opportunity to do so in time to
participate in the general
elections of 2016. The
application was supported by an
affidavit which provided the
factual basis of the motion. The
Defendants/Respondents in
their answer to the application
raised objections to the
substantive reliefs claimed by
the applicants in the matter.
The respondents contend that the
applicants having invoked the
court’s jurisdiction for the
clarification of the judgment of
05 May 2016, the reliefs sought
should be limited to the scope
and meaning of the orders made
under it and that it is
incompetent for the applicants
to seek substantive declaratory
reliefs. The respondents also
take issue with the applicants
for pursuing reliefs which were
clearly granted in the judgment
of the court on which this
application is premised.
Finally, the respondents argue
that there is no ambiguity in
the judgment requiring
clarification.
HELD -
By way of clarification of the orders
made under the judgment of 5th
May 2016, the 1st
defendant respondent was to take
immediate steps that is
forthwith to take steps to
remove from the current register
of voters all persons who had
used NHIS cards to register.
This order having been made
under Article 2 (2) of the
constitution therefore takes
precedence over any existing
statutory provision including CI
91. Accordingly, the 1st
respondent was to take steps
forthwith to remove the names of
all persons who had registered
with NHIS cards. In order not to
violate their fundamental
electoral rights and in order
not to disenfranchise such
persons, the 1st respondent was
to give adequate notice to those
affected by the order of the
processes of deletion and
re-registration subject to proof
of eligibility. The removal of
the names from the register was
to precede the processes of
re-registration as clarified. By
the order requiring the 1st
respondent to ‘delete” we meant
that the first respondent was to
take the necessary steps to
remove the names of such
affected persons from the
register and give them the
opportunity to re-register early
enough to take part in the 2016
general elections
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Supreme Court Rules, CI 16 of
1992
Public Elections (Registration
of Voters) Regulations, CI 91 of
2016.
CASES REFERRED TO IN JUDGMENT
Light v Grimes, 136 Conn. App.
161, 166, 43 A. 3d 808,305 Conn.
926 (2012),
Isaac & Sons v Salbastein [1916]
2KB, 139.
State v Denya, 294 Conn. 516,
528,986A. 2d 260(2010).
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of England,
(Volume 26) (Fourth Edition) at
page 275
DELIVERING THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
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RULING
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GBADEGBE
JSC:
Pending before us is an
application by the
plaintiffs-judgment creditors-applicants(the
applicants) for clarification
and further directions in
respect of our judgment dated
May 05 2016. The application was
expressed in the body of the
motion paper to have been
brought under our inherent
jurisdiction and rule 5 of the
Supreme Court Rules, CI 16 of
1992.The reliefs prayed for by
the applicants numbering four
are as follows;
(a)
A declaration that the order
made by this honourable court
pursuant to the judgment in the
instant suit dated May 5th,
2016 that the 1stDefendant/Respondent
to“delete or clean” the current
register of voters to conform to
the provisions of the 1992
Constitution and applicable law
means the immediate removal of
names of persons who registered
with the National Health
Insurance Scheme Card and who
had otherwise not established
qualification to register or
remain on the register of
voters; and
(b)
A declaration that the said
order is made pursuant to
Article 2(2) of the Constitution
of Ghana and provides the legal
basis and authority for 1st
Defendant/Respondent to comply
with same forthwith.
(c)
A declaration that the dismissal
of Plaintiffs/Applicants reliefs
4(a) and (b) in the suit does
not bar 1st
Defendant/Respondent from
adopting the validation process
as an auditing tool to clean the
current register of voters.
(d)
An order further directing the 1st
Defendant/Respondent to remove
the names of persons who used
the National Health Insurance
Scheme Card and others who had
not lawfully established
qualification to register from
the current register of voters
forthwith and provide those who
remain eligible and subsequently
establish qualification to
register under law an
opportunity to do so in time to
participate in the general
elections of 2016.
The application was supported by
an affidavit which provided the
factual basis of the motion. The
Defendants/Respondents in
their answer to the application
raised objections to the
substantive reliefs claimed by
the applicants in the matter.
The respondents contend that the
applicants having invoked the
court’s jurisdiction for the
clarification of the judgment of
05 May 2016, the reliefs sought
should be limited to the scope
and meaning of the orders made
under it and that it is
incompetent for the applicants
to seek substantive declaratory
reliefs.
The respondents also take issue
with the applicants for pursuing
reliefs which were clearly
granted in the judgment of the
court on which this application
is premised. Finally, the
respondents argue that there is
no ambiguity in the judgment
requiring clarification.
We think that thesaid objections
are fundamental in nature and
turn on the jurisdiction of the
court and will accordingly
proceed to consider them before
proceeding to the merits of the
application.In our view, as
these proceedings are based on a
judgment by which the
substantive dispute between the
parties had been determined, the
applicants cannot seek from the
court orders that are new and
have the effect of altering the
judgment in the main action
dated 05 May 2016. The power of
the court to clarify its
judgment and orders enables it
to give effect to their true
meaning. As there is a dearth of
decided cases in the
jurisdiction, wemake reference
to the case of Light v Grimes,
136 Conn. App. 161, 166, 43 A.
3d 808,305 Conn. 926 (2012), a
case decided in the United
States which though of only
persuasive effect correctly
expounds the jurisdiction
exercised by courts in
applications for clarification
as follows:
“The
purpose of a clarification is
take a prior statement, decision
or order and make it easier to
understand. Motions for
clarification, therefore, may be
appropriate where there is an
ambiguous term in a judgment or
decision….. but, not where the
movant’s request would cause a
substantive change in the
existing decision. Moreover,
motions for clarification may be
made at any time and are
grounded in the in the court’s
equitable authority to protect
the integrity of its judgments.
A motion for clarification is a
post judgment motion which does
not modify or alter the
substantive terms of a prior
judgment.”
In the application before us,
the parties contend that there
is no ambiguity in the orders of
the court but we have observed
that they all place different
meanings on the scope and
meaning of the orders of 05 May
2016.
In our opinion when the parties
to a judgment express strong
divergent opinions on the true
meaning of a judgment or order
made by a court, ,the court’s
inherent jurisdiction arises to
clarify the judgment or order to
put an end to the controversy.
Accordingly, in the face of the
strong divergent opinions
expressed by the applicants and
the 1st respondent,
there is a dispute as regards
the true meaning of the
consequential orders of 05 May
2016 and this requires our
clarification.
As already noted the court’s
power to clarify judgments
arises from its inherent
jurisdiction. Applying the
settled practice in such
applications, the respondent’s
contention that reliefs (b)
and(c) are not properly
cognizable by this court is
justified. We emphasise in
regard to the relief(c) by which
the applicants invite the court
to adopt the process of
validation, that it was
specifically sought in the
action that was determined on 05
May 2016 and refused. It is
therefore surprising, if not
baffling that the applicants
thought it fit to re-package the
same relief and present it to
this court by way of a post
judgment motion when the real
purpose is to seek an alteration
or modification of the judgment
or orders of 05 May 2016. This
is a jurisdiction which we
cannot assume in an application
for clarification.
To reinforce the point that we
have made in relation to the
validation method canvassed by
the applicants (then plaintiffs)
in the main action we refer to a
portion of the judgment at page
23 as follows;
“While there appears to be
some reason in the proposal for
validation, it is without
statutory authority and seeks to
introduce a mechanism that the
law maker did not make provision
for to be utilized in deleting
the names of ineligible and
deceased persons from the
register of voters. In carrying
out its functions under the law,
the Electoral Commission cannot
employ non-statutory remedies,
as the law does not give it that
mandate. It is observed that it
is unreasonable to demand from a
public officer whose authority
is derived from law, performance
that is not authorised by law.”
In regard to relief(d) by which
an order is sought directing the
removal of certain names from
the current register of voters,
our view is that it is a
subsisting order of this court
dated 05 May, 2016 on which this
application for clarification is
based. It being so, we cannot be
invited in an application that
derives its source from that
judgment to make the same order
again.
We find that there is merit in
the objections raised by the
respondents to reliefs (b) (c)
and (d).It is plain that we are
precluded from determining the
same reliefs not only on grounds
of res judicata, which renders
the judgment of 05 May 2016
conclusive between the parties
and the whole world, but merger
of cause of action in the
judgment. In relation tothe
conclusive effect of the
judgment of 05 May
2016,reference is made to the
discernible principle which
appears at paragraph 550 of
Halsbury’s Laws of England,
(Volume 26) (Fourth Edition) at
page 275 as follows:
“A party
who has once sued a defendant to
judgment may not, while the
judgment stands, even though not
satisfied, sue him again for the
same cause, not because he is
estopped from doing so (although
he, as well as the defendant, is
estopped from averring anything
contrary to the record), but
because the cause of action is
merged in the judgment, which
creates an obligation of a
higher nature.” See: Isaac &
Sons v Salbastein [1916] 2KB,
139.
The learned authors continue at
para 551 on page 276 under the
heading “Merger of cause of
action in judgment” as follows:
“When
judgment has been given in an
action, the cause of action in
respect of which it was given is
merged in the judgment and its
place is taken by the rights
created by the judgment so that
a second action may not be
brought on that cause of
action”.
This leaves only relief (a) for
our consideration. Although the
formulation of the said relief
is prefaced with “A
declaration”, it substantially
seeks the true meaning of the
court’s order of 05 May 2016
that names of persons who
utilized the NHIS card to
register be deleted or “cleaned”
from the current register of
voters a prayer, which is
properly cognizable under our
jurisdiction of clarification of
judgments and orders. It was for
this reason that we directed on
that the matter be proceeded
with on the merits. We thought
that as issues affecting the
right to be registered are at
the heart of democratic
governance, a strict adherence
to technicalities would
undermine the quest for justice.
The fundamental principle is
that the court looks at the
substance of every application
and not the form and this
principle must apply with
greater force in issues arising
under the constitution. See
also: State v Denya, 294 Conn.
516, 528,986A. 2d 260(2010).
In exercising the court’s
jurisdiction in relation to
clarification of judgments and
orders the caveat is that
attempts to introduce new facts
outside of what was available at
the trial or hearing preceding
the judgment or order sought to
be clarified should be avoided
in order not to re-open
settled matter or matters.The
reason by which the introduction
of new facts is foreclosed is
one of the pillars of the common
law under the doctrine of
estoppel by res judicata.
The orders of 5th May
2016 on which the application
for clarification turns are:
(a)
“That the Electoral
Commission takes steps
immediately to delete or as is
popularly known “clean” the
current register of voters to
comply with the provisions of
the 1992 Constitution and
applicable laws of Ghana.”
(b)
That any person whose
name is deleted from the
register of voters by the
Electoral Commission pursuant to
order (a) above be given the
opportunity to register under
the law.”
The applicants contended that
the order of the court requires
steps to be taken immediately to
delete or clean names of persons
who registered with NHIS cards
as well as those of deceased
persons and minors ostensibly
without recourse to those
affected. The 1st
respondent however, holds a
contrary view and argues that
the processes of deletion and or
cleaning should be done under
the Public Elections
(Registration of Voters)
Regulations, CI 91 of 2016.The
different interpretations placed
on the order of the court by the
applicants and the first
respondent constitutes a dispute
as to the scope and meaning of
the court’s order which we must
clarify. It was for these
reasons and in order to expedite
the hearing of the application
for clarification that we made
two interim orders directed at
the 1st respondent to
provide in writing to the court
the full list of persons who
utilized the National Health
Insurance Card as a means of
identification to register and
also submit clearly in writing
to the court the steps and or
modalities it intends employing
to ensure full compliance with
the courts consequential orders
made in the judgment in the
action on 05 May, 2016.
The 1st respondent
complied with the interim order
and at the hearing on 30 June
2016, we had before us a list of
persons alleged by the
Commission as having utilized
the NHIS card to register. The
said list was contained in a
bundle of documents filed at the
registry of the court and made
available to the parties. In the
course of the hearing on that
day, learned counsel for the
applicants raised objections to
the list amongst other reasons
that it was not authentic as
some of them did not bear NHIS
card numbers. Another objection
raised to the list appeared to
be the total number of persons
involved. In view of the nature
of objections raised by the
applicants, they were ordered to
have them formally presented to
the court.
The applicants have complied
with the court’s order by filing
an affidavit detailing the
objections to the list submitted
to the court by the Electoral
Commission. By the affidavit
and the documents exhibited
thereto, the applicants
challenged the accuracy and
credibility of the list of NHIS
registrants filed by the
Electoral Commission on 29 June
2016. In particular, it was
deposed to in paragraphs 26 and
27 as follows:
“26. Plaintiffs would contend
that the list of NHIS
registrants filed by the 1st
Defendant on 29th
June 2016, is neither accurate,
nor credible, or of doubtful
integrity, riddled with
manifest, contradictions and
inconsistencies.
27. Plaintiffs
contend that the 1st
Defendant has acted in bad faith
and has not been candid and it
is important that the full
picture regarding the instant
issue be brought to light in
order for the court to be fully
seized with all the facts.”
We have given due consideration
to the objections tendered to
the list of persons submitted to
the court by the 1st
defendant respondent. We are of
the opinion that we are
precluded in the instant
post-judgment application for
clarification from veering into
issues that are not immediately
covered by this application. The
determination of those questions
does not properly belong to an
application for clarification.
Our jurisdiction is limited to
clearly indicating what we meant
by the portions of the judgment
on which this application is
based-- the consequential orders
made under article 2 (2) of the
1992 Constitution.
We are of the opinion that an
inquiry in to the authenticity
and credibility of the list
submitted might result in the
modification or alteration of
the substance of the judgment.
The issues raised by the
objections to the list submitted
by the 1st respondent
seeks to introduce new elements
which are outside the orders on
which this post=judgment
clarificatory application is
based seek to introduce new
elements which are outside the
judgment on which this post
judgment application is based.
We now turn our attention to the
merit of the application. After
reading the processes filed by
the parties before us and
listening to their arguments in
open court, our view is that the
consequential orders on which
this application turns should
not be read in isolation but as
part of the entire judgment to
which it properly belongs. In
construing judgments, which are
a species of documents, the
rules which guide the
construction of documents should
be applied in order to ascertain
its true meaning. And a
disjunctive reading of the
orders made in the judgment as
though they standalone does not
reflect its true meaning. This
suggested approach is made
clearer when we recognise that
the order was made under article
2(2) of the 1992 Constitution by
which the court is empowered as
follows:
“ The
Supreme Court shall, for the
purposes of a declaration under
clause(1) of this article, make
such orders and give such
directions as it may consider
appropriate for giving effect,
or enabling effect to be given,
to the declaration so made.”
By way of clarification of the
orders made under the judgment
of 5th May 2016, the
1st defendant
respondent was to take immediate
steps that is forthwith to take
steps to remove from the current
register of voters all persons
who had used NHIS cards to
register. This order having been
made under Article 2 (2) of the
constitution therefore takes
precedence over any existing
statutory provision including CI
91. Accordingly, the 1st
respondent was to take steps
forthwith to remove the names of
all persons who had registered
with NHIS cards. In order not to
violate their fundamental
electoral rights and in order
not to disenfranchise such
persons, the 1st respondent was
to give adequate notice to those
affected by the order of the
processes of deletion and
re-registration subject to proof
of eligibility. The removal of
the names from the register was
to precede the processes of
re-registration as clarified.
By the order requiring the 1st
respondent to ‘delete” we meant
that the first respondent was to
take the necessary steps to
remove the names of such
affected persons from the
register and give them the
opportunity to re-register early
enough to take part in the 2016
general elections.
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) G. T. WOOD
(MRS)
CHIEF JUSTICE
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
NANA ASANTE BEDIATUO WITH HIM
FRANK DAVIES GODFRED DAME –
YEBOAH, MISS OFOSUA AMAGYEI AND
ABU JINAPOR FOR THE
PLAINTIFFS/APPLICANTS.
THADDEUS SORY FOR THE 1ST
DEFENDANT/RESPONDENT.
HON. MARIETTA APPIAH BREW-OPONG
(ATTORNEY GENERAL) WITH HER MRS
HELEN ZIWU (AG. SOLICITOR
GENERAL) MRS. DOROTHY AFRIYIE
ANSAH ( CHIEF STATE ATTORNEY)
FOR THE 2ND
DEFENDANT/RESPONDENT |
