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JUDGMENT
WOOD, JA:
A notice published in
the Gazette No 1 of January 5th 2000, declared the
appellant, Samuel Nyimakan the duly elected Member of
Parliament (MP) for the Wulensi Constituency in the
Northern Region. Following this, the respondent
instituted proceedings in the High Court Tamale for a
declaration that the appellant was, at the time of his
election not qualified to be elected as an MP and
consequently that his purported election was void and
must be set aside.
The action, which was
brought under Article 94(1)(b) of our Constitution and
S16 of the Representation of the People Law 1992 PNDCL
284 was based on three grounds namely that:
(i) “ He was not
resident in the Wulensi Constituency, nor had been
resident thereat for a total period of five (5) years in
the ten (10) years immediately proceeding 7th December
2000.
(ii) Nyimakan Samuel
does not hail from the Wulensi Constituency” (par 3 of
the petition refers):
After hearing evidence,
the learned trial judge found for the respondent and
held that the appellant was not qualified under our
electoral laws for election. He accordingly declared his
purported election as an MP void. It is against this
decision that this instant appeal has been lodged.
I would first deal with
the legal ground, which has understandably, been
described by the appellant as ‘being fundamental to the
process of the court”. It is an additional ground of
appeal we nevertheless, on an application brought by the
appellant, allowed to be argued viva voce, well after
the hearing of this appeal has been conducted and a date
set for judgment. It states that:
“The procedure adopted
in the presentation of the petition was not in
conformity with the law governing petitions”.
This petition was not
commenced by a writ of summons and accompanying
statement of claim. The form used, was the English form
by which petitions generally and election petitions
specifically are presented. It was therefore instituted:
“In the matter of
article 99 of the Constitution of Ghana
and
In the matter of a
Parliamentary election for Wulensi Constituency held on
7th December 2000”.
In the main body of the
petition was included the name and address of the
petitioner and briefly and in summary form, the material
facts on which the petitioner relied. Also included in
a footnote are the names of persons required to be
served with the petition, it included the appellant, the
person who was naturally bound to be affected by the
petition. It is this form of presentation which has come
under attack.
The argument in support
of the legal ground is that the procedural rules
governing petitions brought under PNDCL 284 are the
rules governing civil causes or matters in the High
Court i.e. 1954 Supreme (High) Court (Civil Procedure)
Rules LN 140A/1954. It was submitted that the order 2
of the rules which deals with the procedure for actions
instituted by a writ of summons are the appropriate
rules governing election petitions brought under PNDCL
284. It was therefore contended that this petition ought
to have been commenced by a writ, with the title being
in the names of the parties, in this case, the parties
to this present appeal, that is to say Fuseini v. Samuel
Nyimakan.
The argument
consequently was that, since this was not the procedure
followed, both the petition and the entire proceedings
founded thereon are a complete nullity and the same
ought to be set aside in entirety.
We have however, been
urged to dismiss this argument outright. The reasons
being that, firstly even if as argued, the proper form
for presentation was by the issue of a writ, the failure
to do so, that is to say, the non compliance of the
rules would amount to a mere irregularity clearly
incapable of rendering the entire proceedings void, but
only voidable. It was further contended that in any
case, since this objection has been raised rather
belatedly and not within a reasonable time, at a stage
when with full knowledge of the irregularity the
appellant had fully and actively participated in the
hearing of the petition to its logical conclusion, he
would be deemed to have waived the alleged irregularity.
Secondly, and more
importantly, respondent's counsel justified the use of
the English forms on the ground that our own rules are
silent on the form in which election petitions should be
presented. It was thus submitted that, the only option
open to them was by resort to the English forms as has
been provided for under order 74 of the High Court
Rules. The contention here then, is that the petition
as it stood, (in its present form) is in conformity with
the rules and perfectly valid.
The article 99(1) (a)
of the Constitution, and Sec. 26 (1) of PNDCL 284, the
laws under which this petition is brought, provide that:
“Article 99(1) (a)
………..
1. The validity of an
election to Parliament may be questioned only by a
petition brought under this part.
2. Every election
petition shall be presented before the High Court for
hearing.”
S. 26(1) of PNDCL 284
stipulates:
“The rule of procedure
for presentation and hearing of a petition under this
Part shall be the same, as the rules of procedure
applicable to a civil cause or matter before the high
Court.”
Procedural rules for
presentation, would in my view include the form of the
petition itself. Therefore the question raised by this
legal ground is: should an election petitions brought
under our electoral laws be commenced by a writ of
summons with the title setting out the names of the
parties as advocated by appellant's counsel or should it
take some other form? There are various methods of
initiating proceedings in our courts. A petition,
separate and distinct from the well-known method of
beginning proceedings by a writ of summons, is one of
them. It, being the method sanctioned by law for
questioning the validity of parliamentary elections, the
law would look to that method and that method alone.
The High Court rules
have set out the various forms to be used in proceedings
brought before it. So for example order 2 rule 3
provides:
“ The writ of summons
for the commencement of an action shall, except in the
case in which any different form is hereinafter
provided, be in the forms Nos. 1 and 2 in appendix A
Part 1, with such variations as circumstances may
require”.
See also order 54 rule
4 headed “form and issue of originating summons.”
It states: “ An
originating summons shall be in the for No. 2, 3, or 5
appendix K to these rules……”
The various precedent
forms are neatly lined up in the appendixes to the rules
book. Unfortunately, the rules do not prescribe that
petitions are to take the form of writ of summonses. It
is for this reason that I find it incongruous to hold,
as had been argued, that election petition shall be in
the form prescribed for writs of summonses.
I believe that a brief
review of what a petition is, will demonstrate how very
distinct it is from a writ and reinforce the point about
the legal illogicality that I have pointed out. All
the well known authorities are agreed that it is a
prayer addressed to the court and not to the other party
and also that although no form is prescribed by the
rules, the general form is well settled.
In 31 Atkins Court
Forms 2nd Edition Page 256 Writing under the heading “
Form of Petition”, the learned author describes a
petition as: “A written document, presented to the
court, praying that a particular order be made. Its form
is not prescribed. It is addressed to the court and not
to the other party …..
It must include a
concise statement of the nature of the claim made or the
relief or remedy required in the proceedings, which it
begins but it is not a pleading.” Also, the author of
Atkins Court Forms 2nd Edition in his treatment of the
High Court Procedure at page 96 reiterates the same
point “A petition is a document which, whilst
containing many of the matters commonly found in
pleadings, is not, for the purposes of the rules of
Supreme Court to be taken as pleading. No form of
petition is prescribed by the rules of the Supreme
Court, but the general form is well settled … It must be
entitled in the matter of the company, patent or other
matter, or the person, to which the order sought relates
and of the Act of Parliament conferring jurisdiction on
the court to entertain the petition.
The petition is
addressed to Her Majesty’s High Court of Justice and
commences by whom it is presented. Like the other
learned authors, Giles Francis Harwood on odgers’
Principles of Pleading and Practice in civil actions in
the High Court of Justice 19th Edition states at page
355:
“The persons who are to
be respondents to the Petition and upon whom it will be
necessary to serve it are set out in a Footnote” The
same has been provided for under order 52 rules 16 of
the High Court Rules. Precedent forms for petitions
generally and election petitions specifically, found in
Atkins Court Forms Volumes 1 2nd Edition page 180 are
all in line with general principles discussed above.
In considering this
appeal however, I propose to rely on or be guided by the
precedent form for petitions generally, and which may be
found at page 166 of Atkins Court Forms 2nd Edition, and
not the form for elections specifically, for the simple
reason that although they are similar, the forms for
petitions under the latter, have been prescribed for the
particular purpose of questioning elections, by their
existing rules i.e. The Election Petition Rules 1960 No
543.
In this regard, I am in
agreement with the respondent's counsel that because of
the absence of specific rules on the form of the
petition, we may have resort to order 74 of the rules,
which stipulate that:
“Where no provision is
made by these rules the Procedure, practice and forms in
England, shall, so far as they can be conveniently
applied, be in force”…
To this extent, it is
plain that the petition is in its proper form and
altogether valid. But assuming I am in error and indeed
this petition ought to have been presented in the form
of a writ of summons, reasons advocated by the
respondent's counsel impels me to dismiss appellant's
counsel's argument.
Order 70 of the rules
would reduce the non-compliance complained of the type
described as a mere irregularity incapable of rendering
the petition and the proceedings founded thereon void.
In other words that default is, as was done by the
appellant in this case, capable of being waived.
The age-old case of
Mosi v Bagyina (1963) GLR 337 at 347,draws a clear
distinction between the non-compliance which amounts to
a mere irregularity capable of being waived, as opposed
to those which because it is clearly unwarranted by any
rule of law or procedure renders the entire proceedings
void.
The court held that:
“The provisions of
order 70 apply to such irregularity as does not render
void any proceedings based thereon such an irregularity
is only voidable and may be waived, an application to
set it aside must be made within a reasonable time”
Given that equity looks
at the substance rather the form and the fact also that
appellant with full knowledge of the irregularity
actively participated in the hearing, and did not raise
this matter promptly but belatedly coupled also with the
fact that he has not also demonstrated he has suffered
any miscarriage of justice, I would dismiss this ground
of appeal as being unmeritorious.
A number of arguments
were advanced in support of the other two grounds of
appeal namely:
(a) The judgment is
against the weight of evidence
(b) The learned High
Court Judge's decision that the respondent does not,
hail from Kumboni in the Wulensi Constituency is not
supported by the evidence”.
The Ground (b)
In determining the
question of where the appellant hailed from, the trial
judge first had to determine the meaning of the word
“hail from” His conclusion was that for the purposes of
our electoral laws the expression “hailing from”
carries the same meaning as “home Town.” Evidently,
appellant's counsel has no quarrel with this line of
reasoning, which incidentally, falls in line with the
dictionary meaning of the expression, i.e. “originate
from”. The first of his complaints however is that, the
trial judge, in spite of the ample evidence on the
record, held that neither the appellant nor his mother
DW3, spoke of where he was born or hails from.
The second was that he
drew wrong inferences from the appellant's failure to
invite the court to move to Saboba to take evidence from
his ailing father. The third was that the trial judge
yet again wrongly concluded, in spite of the over
whelming evidence, that appellant did not challenge the
respondent's assertion that he did not hail from the
constituency but from Saboba.
I agree with
appellant's counsel that both the DW3 as well as the
appellant did give evidence on where the latter was born
or hails from.
Again, for reasons that
I would state shortly in the judgment, the inference
drawn from the failure by appellant to expressly
challenge the respondent's evidence that he did not hail
from the constituency, is on the particular facts of
this case in error.
Be that as it may, the
presence of these errors do minimal damage to his case
and, even if they are corrected and the proper findings
are made and the proper inferences are drawn in favour
of the appellant, there will still be evidence on the
record, sufficiently strong enough to support the
critical finding that he did not hail from the
constituency and was therefore, on that score, at the
date of this election, ineligible.
But perhaps, the more
substantial point urged was that the trial judge placed
undue reliance on the Exh. C, D, E, F, G, H, and K.
Counsel contended that those Exhibits are hearsay
evidence. Further that when the respondent made those
vital declarations concerning his hometown and or his
birthplace, he did so as a child who was merely putting
down facts as handed down to him by someone who may well
have been mistaken about these facts.
It was urged that under
these circumstances, the oral testimony of the
appellant's mother and others on the crucial issue of
where he hailed from was more reliable than the Exhibits
which the trial judge relied on to rule against him.
With the exception of
exhibits H, these documents are forms filled in by
either the appellant himself or by school authorities
(or officials) with information supplied by him or his
parent or guardian. These events occurred at different
stages in his life when he sought admission to
educational institutions in this country and, in one
instance when he was actually in enrollment as a pupil.
The Exh. H is a voter registration form filled in by an
official of the Electoral Commission, obviously or
better still, presumably with information supplied by
him. Significantly, on all those occasions, with the
exception of Exh. "C" and F he identified Saboba as his
hometown. Indeed, not even once, did he state that he
originated from Kumboni or for that matter any other
place in the Wulensi Constituency. In both Exh. C and F,
Saboba is again described as his permanent postal or
home address. In adulthood, he stuck to the same facts.
Thus, at age 20, when seeking admission into Dagamba
Training College, in 1995, when he applied to be
registered as a voter at a time he was aged 33 years,
and finally in 1997 when he sought entry into the
University as a mature student, the story was the same.
Surprisingly, it was
only recently, when he sought political office (when the
fact that a candidate must hail from the constituency
became a necessary criterion) that he varied this aspect
of his family history. Therefore, in September 2000 for
the first time in his lifetime, when completing his
Parliamentary nomination Papers, he declared Kumboni as
his hometown and birthplace. Kumboni, the evidence
discloses, falls in the Constituency. Therefore
counsel's contention that he filled in those forms, as a
child is not supported by the record. We do not have any
evidence from him to that effect and the record cannot
therefore uphold any such finding. With regard to the
particulars in Exh. C, the record filled in by the
school authorities when he first entered the Primary
school, the probabilities are that the particulars
therein were supplied by another Nyimakan who would then
be his guardian. The more pertinent point is that
Saboba is stated therein as the address of that parent
or guardian. By the time he came in to fill the Exh. K,
he was a very well educated gentleman, a teacher who has
gone through training college and was seeking entry into
one of the highest institutions of learning in this
country. Any claims that the information given in those
declarations are unintentional errors would receive due
recognition and possibly acceptance only if they came
from him. However, looking through his evidence we find
that he made no effort to explain what brought about the
marked inconsistency in the two sets of declarations,
the exhibits C, D, E, F, G, H, and K on the one hand and
Exh. J on the other.
The closest to any such
attempt is what he deposed to as follows:
“When I completed the
University, then I decided to set my records correct to
reflect on where my father was born”.
First, this evidence is
false. It was when he sought political office that he
thought of “setting the records straight”, not when he
left the university.
Even so, this evidence
was clearly not supported by any independent testimony,
documentary or oral, thus leading to the conclusion that
truly it was when he sought to enter parliament that he
identified Kumboni as his hometown. But even more
importantly, the evidence led does not amount to an
explanation, let alone a satisfactory one as to why he
made those previous contradictory declarations.
The criticism that the
trial judge placed under weight on the exhibits is
clearly unjustified. In the first place, the statements
contained in them are by virtue of s.128 (1) of the
Evidence decree NRCD 323, and contrary to appellant's
counsel's argument, clearly admissible. Under this rule,
statements by a declarant concerning his pedigree
provided they were made before the controversy arose
over the fact of family history, does constitute one of
the exceptions to the hearsay rule.
The S.128 stipulates:
"Evidence of a hearsay
statement by a declarant concerning his own birth, or
marriage, divorce, relationship by blood, marriage or
adoption ancestry or other similar fact of his family
history is not made inadmissible by S. 117 and will not
be made inadmissible by the fact that the declarant had
no means of acquiring personal knowledge of the matter
declared if the statement was made before controversy
arose over the fact of family history"
It is upon this basis
that the court held that “Until this nomination for
election, the respondent had never given any place
within the Wulensi Constituency as his home town. In
the face of these strong pieces of evidence as it were
many admissions, the respondent sought to give evidence
to explain by what he wrote in the documents.
Counsel for the
petitioner quite rightly raised an objection that oral
evidence is not admissible to interpret written
documents, especially when there is no ambiguity.
In view of the
sensitive nature of the case and the fact that a right
of a very high profile member of the society was at
stake, I allowed the respondent to give evidence
indicating to him that what mattered was the weight to
be placed on the evidence given…
With mass of evidence
from the Petitioner which included many admissions, by
the respondent of the fact that he hails from Saboba, I
felt compelled to find and I so find that the respondent
did not hail from the Wulensi Constituency”
I must confess that I
find some part of the reasoning, particularly on the
issue of the explanation offered and the issue of the
construction of the document hard to follow. But I do
not think that the final conclusion, namely that the
mass of evidence supports the finding that he does not
hail from the constituency, can be faulted.
As against the
respondent testimony that he did not hail from the
constituency and which was supported by all these
documents, we have the evidence of the appellant
consisting wholly of his oral testimony and that of his
relations, persons, who like the parties have a vested
interest in the outcome of this case. Understandably, he
also relied on the declaration in exhibit "J" as proof
of his counter assertion that he hails from Kumboni and
not Saboba, a fact the trial judge validly in my view,
rejected.
An evaluation of the
evidence led on both sides of this legal divide led him
to place maximum weight on these documents and to
roundly reject the story about Kumboni, for the other
reason also that it is not shown on a topographical map
of the area made in 1961. Indeed, if the appellant’s
hometown were Kumboni why did he have to wait until it
became a condition precedent to seeking political office
before saying so? In any event, the fact that the
Kumboni story came up while filling in this Exh. J does
not tally with the impression he created that it was
after he completed university that out of his own good
sense, he set out to correct that anomaly.
In the case that the
trial judge was met, with the documentary evidence
became the safest and most reliable indicator of the
truth and the court as, already stated was justified in
placing the weight it did on the documents and rejecting
the appellant’s case on the basis that it lacked
credibility. This court speaking with one voice in the
case of Asia v. Ayevudu and Anor. [1987-88]1GLR 177
outlined the principle under which a prior inconsistent
statement can have a negative impact on a witnesses
credibility on a particular issue.
It was held that:
"Under the principle of
prior self contradiction, a prior inconsistent
statement, if not satisfactorily explained as to the
circumstances under which it was made under duress or
mistake would go to impeach credit on that particular
fact."
It is plain however
that the said explanation must come from the declarant
himself. Admittedly, it (the explanation) may be
corroborated by the evidence of another witness, but it
is quite clear that it is the maker of the statement who
owes the court an explanation. On this basis,
appellant's counsel's proposition that DW2 offered a
credible explanation on behalf of the appellant as to
why he had all along described Saboba as his hometown
has no basis in law; for the declarant himself offered
none.
The undoubted principle
of law is that in civil trials, although the burden of
proof lay on the one who must succeed in the action, it
shifted in the course of the trial (See in Re Krah
Deceased Yan Kyeraaha and Others v Osei tutu and Anor
1989-90 GLR 638. On the issue of where he hailed from
the appellant failed to discharge the evidentiary burden
which shifted on him after the respondent had discharged
the initial burden placed on him, by establishing a
prima facie case. Again the circumstances under which an
appellate court may interfere with the findings of fact
of a trial court and the inferences and conclusions
drawn there from have long been established. These two
cases:
1. Praka v Ketewa 1964
GLR 423 at 426 where the following opinion was expressed
“An appeal is by way of rehearing and so an appellate
court is entitled to make up its own mind on the facts
and to draw inferences from them to the extent that the
trial court could. Where however, the decision depends
on the credibility of witnesses, the appeal court ought
not to interfere with findings of fact except where they
were shown to be wrong or where these facts were wrong
inferences drawn from admitted facts or facts found by
the trial court"
Yakubu II v Abdulai
1984-86 GLR 241 also summed up the principle as follows:
"An appellate court
could set aside a finding of fact if there was no
evidence in support or that the preponderance of
evidence weighs heavily against the finding or that
inferences from the findings were wrong."
Applying these
principles to this instant appeal, I would have no
justification in disturbing the findings made nor
inferences drawn and the conclusion reached on the key
issue of where the appellant hailed from. The appeal on
this ground must fail.
Additionally, the trial
judge upheld the claim that appellant was unqualified
also in terms of the residential requirement imposed by
Article 94(1)(b) of the Constitution. This finding has
again been challenged on the grounds that it is against
the weight of evidence. One of the arguments in support
of this ground is that the trial judge erred in limiting
himself to only one ambit of that requirement, so that
the moment he ruled on one, he failed to consider
whether he nevertheless qualified under the second.
The article 94(1)(b) of
the Constitution, and which provision is repeated in
S.9(1)(b) of PNDCL 284 provides as follows:
"Subject to the
provisions of this article, a person shall not be
qualified to be a member of Parliament, unless he is
resident in the Constituency for which he stands as a
candidate for election or he has resided there for a
total period of not less than five years out of the ten
years immediately preceding the elections for which he
stands, or he hails from that constituency."
One of the flaws about
this case is that it proceeded to trial without the
appellant filling an answer to the petition. It was thus
impossible at the on set to know which of the
qualifications: if any, he fell short of. It followed
that all the material facts upon which the petition was
founded was put in issue. Put in other words, the
respondent had to prove also that he satisfied none of
the requirement under residence. I am however of the
opinion that it would be uncharitable to say that the
judge failed to appreciate that the claim under
residential requirement fell into two distinct parts and
further that they needed separate consideration. On the,
in considering the task facing him he said:
"Article 94(1)(b) sets
out three situations for qualification to stand as a
candidate in a Constituency: - namely general residence,
residence for five out of ten years immediately
preceding the election and hailing from the
constituency. A candidate is qualified to stand for
election if he can satisfy any one of these situations.
In the course of this case, the respondent did not file
any paper, which shows which of the three situations he
relied on as his qualification to stand as a candidate
for Wulensi Constituency. I will therefore have to
examine all three situations in relation to the
respondent"
Again, the position the
trial judge took was that from the evidence the
appellant was not relying on the Residence criteria, but
on the fact that he hailed from the Constituency. His
view therefore was that there was "no live issue"
concerning residence. He nevertheless proceeded a step
further and considered the "five year residential"
question but then ruled that even on that, the evidence
pointed to the contrary,
(1) That he does not
reside in the constituency, and indeed,
(2) That appellant had
never in the whole of his lifetime lived in the
Constituency. He therefore reasoned that this proved
that fact leads to the irresistible conclusion that he
had also not been resident there for a total of five
years out of the ten immediately years preceding the
elections.
While I agree with the
appellant counsel that the burden lay on the respondent
to prove that he did not satisfy any of the residential
requirements, I am satisfied that he discharged the
burden.
He deposed to the fact
that apart from the campaign period, the appellant has
never lived in the constituency. Furthermore under
cross-examination he testified that:
"He taught at Dakpam
Primary in Bimbila Constituency from 1985 upwards. He
left Dakpam in 1993. These are the areas I know he
stayed. Even he stayed in Nanumba District it was in the
Bimbila Constituency, but not in Wulensi Constituency."
Of course, appellant
also gave an account of where he had lived since 1985.
From his version he had most times continued to reside
in his village Kumboni since it has always turned out to
be close to schools he has been posted to. At the date
of Exhibit "J" the declaration was that he lived at
Lugui.
With the respondents
prima facie evidence establishing that
(a) His hometown is
Saboba;
(b) He has never in his
lifetime lived in Kumboni or for that matter any other
place within the constituency and therefore that he did
not meet any of the requirements under residence,
the evidential burden
shifted on to him to lead evidence in disproof of these
facts asserted. Plainly, facts related to his
residential qualifications are all matters peculiarly
within his knowledge. The law would thus require that he
led credible evidence in proof of them. On the facts of
this case, it must go beyond merely mounting the witness
box and listing places in the constituency where he had
lived, also because on his own showing, the schools he
had taught in are all located outside the constituency.
That approach, would in my respectful view, offend the
principle enunciated in the well known case of Majolagbe
v Larbi 1958 GLR 490, which principle has been fully
endorsed in Zamabra v Segbedzia 1991 2GLR 221.
That kind of evidence
if led, would not constitute sufficient proof in law.
Unfortunately, that is exactly what he did. He produced
no corroborative evidence in proof of these essential
facts:
(1) That he was
resident in the constituency and or
(2) That he had lived
in his home village Kumboni for a total period of not
less than five years out of the ten years immediately
preceding the elections since 1985 and had when resided
there as he was posted to these other places outside the
constituency.
Is it the case that he
could not find one single person who lived in that
village for these number of years to come and testify on
his behalf? What of the teachers he worked with in the
various schools? Contrary to his counsel’s proposition,
he is the one who must be accused of making "bald
assertions".
In any event, I have
already demonstrated that the court found and the same
is supported by the record, that he hails from Saboba
not Kumboni. His home village therefore could not have
been Kumboni, thus making his story about how and why he
had since 1985 continued to live in Kumboni, on the
balance, improbable if not a complete falsehood. The
evidence on the record weighs heavily against him on the
issue of residential qualification as well.
Finally, I think the
trial judge was right in concluding that if any he never
relied on the residence requirement. On exhibit “J” he
expressly indicated that, that requirement was
inapplicable to him. Inapplicable means that it is not
relevant or cannot be applied to his situation. The
trial judge rightly held him bound by that record. While
I agree with applicant counsel that this declaration per
se does not absolve the court from determining in the
action, whether or not he was in fact unqualified under
the residential requirement, the legal position is that
the absence of any satisfactory explanation from him
(not from his counsel in argument) as to why he made
that previous contradictory declaration, would clearly
weigh against his case. And the truth is that he himself
offered no explanation on this matter. Indeed the
"residential requirement" is the first and second
criteria listed on the form. If he were indeed qualified
under either or both of them, why did he not bring
himself under them but choose the third - the "hail
from" criteria. If he chose the third because he found
or thought that more attractive and more likely to earn
him the much-needed votes, then it was his duty to
explain that to the court, but he did not. Since the
question of whether or not he satisfied the residential
requirement turned on the issue credibility and the
court for good reasons rejected his claim we cannot
upset the findings correctly made and inferences
properly drawn. Before coming to this conclusion, I have
adverted my mind to another criticism levelled against
the trial judge. It is this that he misdirected himself
by taking the rather hard position that because the
appellant failed to cross-examine the respondent’s
evidence in chief that he did not reside in the
constituency, he is deemed to have admitted the fact.
Mantey v Botwe 1989 GLR
479 cautions against a strict application of the general
rule that failure to cross-examine a witness on a
material fact given on oath amounts to its admission.
Occasions on which a strict application would work
manifest injustice was held to include: "If a person
total response in the witness box added up to a
clear-dermal of what his opponent had alleged either
against him or to bolster up his case." I would extend
the rate exception to cover situations where both
parties are in breach of the rule. It would be unjust to
apply the rule against one party to the exclusion of the
other. I find in this case that not only does the
appellants total response an outright rejection of the
respondents claim, but indeed both sides on occasions
failed to go through the mechanical motions of denying
assertions made on oath against them.
Be that as it may, this
position I have taken would not alter the fortunes of
the appellant. In the result, I would dismiss the
appeal.
G.T. WOOD(MRS.)
JUSTICE OF APPEAL
FARKYE, JA:
This judgment is in
respect of an appeal brought to this court against the
decision of the High Court, Tamale, dated 6th July,
2001.
Whereby the petition of
Fuseini Zakaria was granted against the election of
Samuel Nyimakan as a member of Parliament.
The facts culminating
in bringing the appeal are that on 7th December, 2000
there was an Election in Wulensi Constituency to elect a
person as a Member of Parliament. There were four
contestants namely
(1) Samuel Nyimakan
(2) Ayi Abdu-Rahamani
(3) Alhaji Saani Iddi
and
(4) Binyam S. Jangboja.
At the end of the
election the Appellant Samuel Nyimakan, pulled 9,537
votes being the highest number of votes Cast. The
Appellant was therefore declared elected for the Wulensi
Constituency.
The Respondent to this
appeal, Fuseini Zakaria, who is a registered voter in
the Wulensi Constituency, filed a petition as a
petitioner against the election of the Appellant, Samuel
Nyimakan, at the High Court Tamale. The Petition was
heard and on the 6th July 2001, Tamale High Court gave
judgment declaring the election of Samuel Nyimakan to
the Parliament as void.
The appellant has
brought this appeal to this Court for the Court to
reverse the decision of the Tamale High Court dated the
6th July 2001.
Learned counsel for the
Appellant filed two grounds of appeal
(a) The judgment of the
Court is against the weight of evidence.
(b) The learned High
court Judge’s decision that the respondent does not hail
from Kumboni in the Wulensi Constituency is not
supported by the evidence.
The issues involved in
this petition are two. These issues are (1) whether the
Respondent /Appellant who was declared the winner of
Parliament for the Wulensi Constituency; hails from that
constituency; and (2) whether the Respondent/ Appellant
who was declared the winner had resided in the
constituency i.e Wulensi Constituency for a period of 5
years within the 10 years immediately before the 7th
December, 2000 election.
The
Petitioner/Respondent gave evidence to show that the
Respondent/Appellant did not hail from Wulensi
Constituency and also the Respondent/Appellant did not
reside in that constituency for a period of 5 years
within the 10 years immediately before 7th December,
2000 election.
The
Petitioner/Respondent gave evidence to show that he
resided in Wulensi Constituency during December 7th 2000
election. That the Respondent/Appellant was a candidate
for the Wulensi Constituency during the Parliamentary
elections and he was declared the winner of the Wulensi
Constituency.
The
Petitioner/Respondent stated that the
Respondent/Appellant came from Saboba which is not in
the Wulensi Constituency. Again apart from the campaign
period towards the election the Respondent/Appellant who
was a teacher had never lived in the Wulensi
Constituency.
In the course of the
hearing of this petition exhibits A, C, D, E, F, G, H
and K were tendered in evidence. P.W.1 was Salifu
Zenabu who lived at Saboba. He was a teacher at Saboba
Local Authority Primary School P.W.1 tendered Exh, C
which was the Register started in 1969 and ended in
1974. In exh. “C” was the name of Samuel Nyimakan
appearing at page 4 of the Register No 21 admission No
932. Exh. C i.e. the Register No. 21 at page 4 is as
follows:
Samuel Nyimakan
Admission No. 932 date of admission 24th November, 1970.
Name and address of
Parent or Guardian Nyimakan Konkonba, Regional
Organization, Saboba. Exh., “D” is the cumulative
records of the Respondent/Appellant. Exh., D was sent by
the West African Examination Council to Tamale Senior
Secondary School. Exh. D is dated 5th November, 1976. On
Exh. D it is stated that Samuel Nyimakan came from
Saboba.
Exh. F. is the
application form which the Respondent/Appellant
completed when he wanted to enter Bagabaga Training
College dated 18th November, 1982. On Exh. F it is
stated home or permanent address of the
Respondent/Appellant as Saboba.
Exh. G is the Bagabaga
Training College – Tamale Interview Form. On Exh. G, the
hometown of Samuel Nyimakan, the Respondent/Appellant,
is Saboba.
When the
Respondent/Appellant wanted to register as a voter he
completed the Voter Registration Form, and gave Saboba
as his hometown. The Voter Registration form was
tendered in evidence as Exh. H.
Exh. E is the
Cumulative Record Form about the Respondent/Appellant.
Paragraph 4 of Exh. E state that Saboba is the Home Town
of the Respondent/Appellant. Exh. E is dated September,
1977, this exhibit was completed by the father of the
Respondent/Appellant.
On 29th January, 1997,
the Respondent/Appellant wanted to further his
education. He therefore completed University of cape
Coast Form No 300086. This form was tendered in
evidence as Exh. K.
On this form paragraph
3 place of birth of the Respondent/Appellant was given
as Saboba. This exh. is dated 28th November, 1997.
When the
respondent/Appellant desirous of becoming a
Parliamentarian completed Parliamentary Nomination
Paper. This paper was tendered in evidence as Exh. J.
Exh. J is dated 8th September, 2000. In this Exh. the
Respondent/Appellant gave his Home Town as Kumboni and
place of birth too as Kumboni.
Learned Counsel for the
respondent/Appellant in his statement of case stated
that the learned trial Judge misdirected himself when he
stated that neither the respondent/Appellant nor D.W.3,
his mother, spoke of where the respondent/Appellant was
born or hails from, when there was ample evidence to the
contrary and thus committed a substantial miscarriage of
Justice. This was against the weight of evidence.
I have dealt with Exhs,
C D E F G H K above. All these Exhibits stated
that the Home Town of the Respondent/Appellant is
Saboba.
According to Exh. “G”
which is the Bagabaga Training College – Tamale.
Interview Form, the Respondent/Appellant stated his date
of birth as 26th October, 1962. By his date of birth the
Respondent./Appellant clocked 18 years after 26th
October 1980, when he completed Exh. “G” in 1982 at the
age of 20 years the Respondent/Appellant who was of age
and knowing very well that he came from Saboba stated
categorically that his home town is Saboba – Yendi in
the Northern Region; and the place where the
Respondent/Appellant resided.
On 9th October, 1995,
when the Respondent/Appellant completed Exh. H, the
Voter Registration Form, he was well over 32 years of
age and yet he stated on exh. H Saboba as his home town.
Again the
Respondent/Appellant filled/completed University of cape
Coast Form of application for Admission as a ‘Mature’
Student on 28th January, 1997. At that time the
Respondent/Appellant was over 34 years old. Howbeit he
stated that his hometown is Saboba and place of birth
too as Saboba.
These Exhibits i.e. C D
E F G and K showed the place of birth of the
Respondent/Appellant and where he comes from as Saboba.
I will say for sure
that the exhibits are not hearsay evidence. By Sec. 117
of the Evidence Decree 1975, NRCD 323 hearsay evidence
is not admissible in evidence.
However Sec. 128(1) of
the above Decree states as follows:-
“(1) Evidence of a
hearsay statement by a declarant concerning his own
birth, marriage, divorce, relationship by blood,
marriage or adoption, ancestry or other similar facts of
his family history is not made in admissible by Sec 117
and will not be made inadmissible by the fact that the
declarant had no means of acquiring personal knowledge
of the matter declared if the statement was made before
controversy arose over the fact of family history.”
Exhs C, D, E, F, G, H
and K concern the birth of the Respondent/Appellant
therefore these cannot be said to be hearsay.
Accordingly the Learned
Trial Judge did not misdirect himself by placing undue
reliance on these exhibits. These exhibits i.e. C D E F
G H and K were very material to show the place the
Respondent/Appellant comes from i.e. Saboba.
These documents not
ambiguous actually say the respondent/Appellant comes
from or hails from Saboba. The home town of the
Respondent/Appellant which has been published to the
whole Ghana by exhs C, D, E, F, G, H and K is Saboba.
The Home Town of a person in my candid opinion is where
he or she hails from. (There was abundant and strong
evidence as well as material on record.)
The Learned Trial Judge
was therefore right when he stated in his judgment that
the Respondent/Appellant did not come from Wulensi
constituency because Saboba – the home town – of the
Respondent/Appellant was Saboba and it is not in Wulensi
Constituency.
Accordingly the
judgment of the trial Court was not against the weight
of evidence.
The electoral Laws
required the Respondent/Appellant desirous of becoming a
Member of Parliament for Wulensi constituency to have
resided in the Wulensi constituency for a total period
of not less than five years out of the ten years
immediately preceding the elections of 2000.
In completing or
filling exh, J part IV 5 (i) (ii) the
Respondent/Appellant cancelled these requirement. These
are 5 (i). I am resident in ……….. Constituency for which
I can stand as a candidate for election to Parliament;
or 5(ii) I have resided in……….. Constituency for a
total period of not less than five years out of the ten
years immediately preceding the elections for which I am
standing.
The
respondent/Appellant by deleting Part IV 5(i) and (ii)
of exh. J told the whole world that he was not resident
in Wulensi Constituency and he had not resided in the
Wulensi constituency for a total period of not less than
five years out of the ten years immediately preceding
the election for which he stood in 2000.
Apart from Exh. J which
dealt with the residence of the Respondent/Appellant,
the Petitioner/Respondent gave evidence to the effect
that apart from the period of campaigning for the
elections, the Respondent/Appellant had never resided in
the Wulensi Constituency. Petitioner/Respondent was not
challenged during cross-examination, which was quite
exhaustive and extensive. Also during the early age of
the Respondent/Appellant, he stayed at Saboba to attend
Saboba Local Authority Primary School, which is a day
school. Exh. C confirms this.
From 1977 to 1982 the
Respondent/Appellant was a Student at Tamale Secondary
School. During this period the Respondent/Appellant
stayed in Tamale and Saboba. Exh. E confirms this.
The
Respondent/Applicant from 1982-1985 was at Bagabaga
Training College and he gave his hometown as Saboba
Exhibits F & G confirmed that his address was Saboba.
From 1985 to 1993 the
respondent/applicant taught in the Bimbila constituency.
From 1993 to 1994 the
respondent/Appellant taught in Tamale. From 1997 to
2000, the Respondent/Appellant was a student at the Cape
Coast University and he gave his address as P. O. Box 54
Abossey Okai, Accra.
Before he entered the
University he was living in Accra because he gave his
place of work and address as Odorkor 6 JSS P.O. Box 118,
Darkuman, Accra Exhibit K refers.
The
Respondent/Appellant in 1995, registered in Accra as a
voter. He completed voter registration Form Exhibit H to
show that he was living in Accra in 1995. He also gave
Saboba as his hometown.
The Learned trial judge
dwelt on these exhibits I have mentioned above before he
came to the conclusion that the Petitioner/Applicant did
not have residential qualification to stand as a
candidate for the 2000 election.
Finally I will say from
what I have stated above the respondent/Appellant did
not reside at Kumboni for a period of five years within
10 years before the 2000 election. The Learned trial
judge was right in declaring that the purported election
of the respondent/Appellant as a Member of Parliament
for the Wulensi constituency was void. The appeal is
accordingly dismissed. The judgment of the High Court
Tamale delivered on 6th July 2001 is confirmed.
S .T. FARKYE
JUSTICE OF APPEAL
OMARI-SASU, JA:
I also agree with the
President and my brother Farkye J.A. that the Appeal
should fail and the decision of the court below affirmed
and upheld. I would, however, want to state my reasons
which are given hereunder.
This is an appeal filed
by Mr. Samuel Nyimakan against the judgment of Aninakwa
J. given at the High Court Tamale on 6th July 2001. In
the said judgment the learned trial judge held (inter
alia) that Mr. Samuel Nyimakan who had been declared as
winner in the constituency election of 7th December 2000
was not qualified as a candidate to have stood election
in the Wulensi constituency and he declared his
purported election to be a nullity.
Two ground of appeal
were originally filed in the notice of appeal i.e.
(grounds (a) & (b) and later on this court permitted a
third to be added (ground (c)).
These are as follows:
Ground (a) states the
judgment is against the weight of evidence.
Ground (b) says the
decision of the learned trial judge that the
Petitioner-Respondent (Mr. Samuel Nyimakan) does not
“hail from” Kumboni in the Wulensi constituency is not
supported by the record and
In Ground (c) it is
said that the procedure followed by the petitioner in
filing the election petition was contrary to S. 26(1) If
PNDC 284 — irregular and contrary to law.
I shall now examine the
above three grounds in detail but I shall start from
ground (c) and later take on grounds (a) &(b) together.
Ground (c).
In respect of the above
ground learned counsel for Mr. Samuel Nyimakan who will
henceforth be referred to as the respondent/appellant
attacked the title of the case saying it was irregular
as it did not disclose the names of the parties and was
at variance with S.26 of PNDC law 284 the Representation
of the people law which provides that the rules of
procedure applicable to election petitions shall be the
same as those applicable to civil cases and matters
before the High Court.
He concluded by saying
the procedure adopted by the petitioner – respondent was
not in conformity with the law of Ghana and should be so
declared.
In reply learned
counsel for the petitioner respondent said the attack
was baseless since on knowing of the alleged
irregularity the appellant-respondent did nothing in the
court below and allowed the petition to travel its whole
length until it was heard and judgment given. Further it
was said that the High Court rules make provision for
petitions to be brought the way the
petitioner-respondent did.
My view of the matter
is that by taking steps to examine the
petitioner-respondent and his witnesses and also by
putting in the appellant-respondent and his witnesses to
testify and be examined without raising the objection
which he now raises in ground (c), the appellant was
caught by ORDER 70 Rule 2 of LN 140 A of 1954 – the High
Court Civil Procedure Rules which provides that :—
"No application to set
aside any procedure for
"irregularity shall be
allowed unless made within
"a reasonable time nor
if the party applying has
"taken any fresh step
after knowing of the irregularity."
Further ORDER 74 OF
L.N. 140A of 1954 provides:—
"where no provision is
made by these rules the
“procedure, practice
and forms for the time being in force
"in the High Court of
Justice in England shall
"as far as they can be
conveniently applied, be
"in force in the High
Court of the Gold Coast."
In our case, learned
counsel for the petitioner-respondent has adequately and
satisfactorily demonstrated that he complied wish 0.74
above and that he followed the direction in ATKINS COURT
FORMS – 2ND EDITION VOL. 128
In the result I
consider the objection raised in ground (c) to be
improper and I dismiss same.
Grounds (a) and (b)
These deal with the contention that the judgment from
the court below is against the weight of evidence and
also that the learned trial judge erred when he held
that the Appellant-Respondent does not "hail from"
KUMBONI. There two grounds shall be taken together.
It should be observed
that prior to the conclusion which the learned trial
judge came to the petitioner-respondent had given
evidence and had been examined by the
appellant-respondent’s counsel who had also called
witnesses and these had been examined.
On the part of the
Appellant-Respondent he had also testified and had been
examined and had called witnesses who had equally been
examined.
The case for the
Petitioner-Respondent is that the Appellant Respondent
was not living and had never lived in the Wulensi
Parliamentary Constituency. He the respondent "hailed
from" Saboba which was in Bimbila Constituency and was
thus not qualified to represent the people of Wulensi
Constituency as S.9(b) of PNDC Law 284 requires.
The defence of
Appellant-Respondent does not deny that between the time
he was a school boy in Primary School through Secondary
School, Teacher Training College to the University he
had made documents in which his home town was stated as
Saboba but he claims at the time of the Parliamentary
Elections in the year 2000 he was "hailing from"
Kumboni. In the words of Appellant-Respondent at page 54
of the Record (lines 8 and 9) he says:
"In my juvenile records
Saboba was recorded as my
"hometown and place of
birth.
(Then in line 24
following he continues and says)
"When I completed the
University then I decided to set
"my records correct to
reflect on where my father was
"born. Where we are
settled at Kumboni as settlers . . . . . . . . .
"(he continues at p.54
lines 51 following as follows)
"This reminds me of an
incident in 1992 when I
"wanted to file my
"nomination papers.
The Nanumbas in Wulensi
"seized my papers
challenging my eligibility that
"I did not come from
Wulensi but from Saboba".
During crossed examine
the Appellant-Respondent was given a topographical map
of Wulensi constituency prepared in 1969 by the survey
Department and was asked to point to Kumboni but he
could not. He was told he did not hail from Wulensi
constituency but he replied he came from there.
I now purpose to
examine the operative part of S.9 (1)(b) of PNDC Law 284
and to comment on same.
It provides:
"A person shall not be
qualified to be a candidate for the
"office of member of
Parliament unless
"(b) he is resident in
the constituency for which he stands…..
"OR has resided there
for a total period of not less than
"5 years out of the 10
years immediately preceding the election for which he
stand.
Or he 'hails from' that
constituency" (the emphasis is mine)
The legislature has
provided for 3 categories of persons who qualify to
stand to be elected and it is up to a candidate to bring
himself under any one of these categories. This accounts
for the use of the word “or” in the provision quoted
above.
In our case, the
question to be asked is under which of the 3 categories
did the Appellant-Respondent bring himself? The answer
seems to be that the Appellant Respondent chose the 3rd
category for he made a statutory declaration at p.88 of
the record that he "hailed from". THE WULENSI
CONSTITUENCY. (see Exhibit "J")
The next question which
flows from the above is what is meant by the expression
"hail from". It is to be observe that this is not
defined by the statute but both counsel for the
Petition-Respondent and the Appellant-Respondent seem to
agree that the term is synonymous with "home town" in
our local parlance. It is also said that in Ghana as
soon as a person is born and in consonance with
customary law of the locality whether it is matrilineal
or patrilineal, a newly-born person will automatically
"hail from" a particular place/town – which does not
change.
As the term 'hail from'
is not defined by statute what should be the judicial
approach towards its construction?
S 19(1) of the
Interpretation Act, 1960 – C.A. 4 provides: (inter
alia)
"for the purpose of
ascertaining the mischief and defect which
"an enactment was made
to cure and as an aid to the
"construction of the
enactment a court may have regard to
"any text book or
other work of reference . . . ."
Since the case herein
was adjourned for judgment I have been combing and
looking up several dictionaries to see whether I can get
any help or meaning of the term "hail from". Luckily I
have come by PUNK and WAGNALL’S Standard Dictionary
(International Edition) Vol. One (1968) which defines
“hail from” as follows:
"(i) to come from
"(ii) have as one’s
original home or
"(iii) have as one’s
original residence.
It seems to me
therefore that when the expression "hail from" is used
in S.901(b) of PNDCL. 284 The Representation of the
people law, 1992 it can only mean the original home/town
of a candidate in the consistency (if he has one). In
our case the Appellant-Respondent from the record has
laid claim to both Saboba and Kumboni as being towns
where he “hails from".
The next question is
can a parliamentary candidate "hail from" two different
palaces in two different constituencies for purposes of
our parliamentary election. This question reminds me of
Robert Louis Stevenson’s book entitled THE STRANGE CASE
OF DR. JEKYLL AND MR HYDE - a book that tells a tale of
dual personality.
The answer to my last
question appears to be in the negative for if the
expression "hail from" means "the original home or
residence of a person". Then it can only be one.
In conclusion it may be
asked which of the two towns "Saboba" and "kumboni"
should, from the record, be accepted as where the
Appellant-Respondent "hails from"?
It is my considered
view that the Appellant-Respondent must be taken to hail
from Saboba which is outside Wulensi Constituency. For
the following reasons:
a) From Primary class
one in 1970 through secondary school, Teacher Training
College to University the Appellant-Respondent referred
to SABOBA in all the documents tendered as his hometown
and place of birth. This was at a period When a
Parliamentary Election involving the Appellant was not
looming or pending.
b) During the
cross-examination of the Petitioner by two different
counsel for the Appellant-Respondent nowhere in the
proceedings was it ever suggested to the
Petitioner-Respondent that Mr. Samuel Nyimakan the
Appellant-Respondent “hails from” KUMBONI and not
SABOBA.
CROSS-ON EVIDENCE –(2ND
EDITION – 1963) at p.215 observes on this kind of
situation as follows:
"Any matter upon which
it is proposed to contradict the evidence in chief given
by the witness must normally be put to him so that he
may have an opportunity of explaining the contradiction
and failure to do this may be held to imply acceptance
of the evidence-in-chief."
See also BROWNE V. DUNN
(1863) 6.R67. and R. v. HART(1932) 23 Cr. App. R202.
In conclusion, it is my
considered view therefore that Aninakwa J in the court
below was right when he found that the
Appellant-Respondent was at the time of the 7th December
2000 Parliamentary Election not qualified to be a
candidate and that his purported election was void. I
uphold and affirm the decision of the court below and
dismiss the present appeal which has failed.
K. OMARI-SASU
JUSTICE OF APPEAL
COUNSEL
VDM |
