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RULING

C. HAYFRON-BENJAMIN, J.S.C.:

MR. JOSEPH HENRY MENSAH was on the 7th December, 1996 elected the Member of Parliament for the SUNYANI EAST Constituency in the nationwide Parliamentary elections.  On the 25th February, 1997 the Plaintiff, Mr. Michael Yeboah, caused a writ to be filed in this Court invoking our original Jurisdiction in terms of Articles 2,94(1) and 130 of the Constitution 1992 and Rule 45 of the Supreme Court Rules 1996 (C.I. 16). The plaintiff claimed that MR. J.H. Mensah (Defendant) at the time of the election was not qualified or competent to become a Member of Parliament in terms of Article 94(1)(b) of the Constitution.

The Defendant, while admitting that he hailed from the SUNYANI WEST Constituency nevertheless contended that he was eligible for election to the seat for the SUNYANI EAST Constituency and had been validly elected as such Member of Parliament for the constituency. The Defendant further contended that the Plaintiff’s action was incompetent as having  been instituted in the wrong forum as in substance the writ was an election petition.  In the Defendant’s submission the writ was

 “unmeritorious, frivolous, vexatious and abuse of the process of this Court”.

The Defendant further submitted that he would at the hearing of this writ raise a preliminary objection and gave substantial reasons for taking that preliminary objection.  The objection was based on THE REPRESENTATION OF THE PEOPLE LAW 1992 (P.N.D.C.L. 284) This Court therefore ordered the Preliminary objection to be set down formally. The gravamen of the preliminary objection was that the Plaintiff had dressed an election petition in the garb of a constitutional issue seeking in aid of his original writ the exercise of our enforcement powers. In my respectful opinion if that proposition is correct then the matter is covered by authority and the objection must succeed in limine.

In his defence, the Defendant had averred that this writ was part of an "orchestrated attempt" by some three constituents to unseat him in Parliament and that two of these "players" had properly presented an election petition in the High Court, Sunyani. On the 12th May, 1997 the High Court, Sunyani dismissed their petition:

“"Upon a preliminary point of law that raised by the Defendant to the effect that the action was Statute-barred”.

The Defendant does not appear to have made much capital of this decision. However it will be seen from the provisions of section 19 of P.N.D.C.L. 284 that by that decision of the High Court, Sunyani on the 12th May, 1997 the Defendant "whose election is questioned has been duly elected" such a decision as was given by the High Court was in my respectful opinion a judgment in rem and operated to conclude the matter for all time unless it was set aside on appeal.

The Plaintiff contends that the Defendant misconceives the import and meaning of Articles 94 and 99 of the Constitution of 1992. The Plaintiff contends that his case is in essence that the Defendant is not qualified in terms of Article 94(1)(b) of the said Constitution. He relies on Article 130(1) of the Constitution and submits that under and by reasons of that article

"the Supreme Court shall have original jurisdiction. In all matters relating to the enforcement or interpretation of the Constitution".

The Plaintiff inferentially concedes that an issue of interpretation may not arise, but there was certainly a matter for enforcement of a provision of the Constitution for which this Court is pre-eminently vested with jurisdiction. Plaintiff submits that Article 94 deals with the qualification of persons who offer themselves for election, while Article 99 deals with the election process itself. In the submission of the Plaintiff there is a difference between the two Articles of the Constitution. As Plaintiff puts it

"The difference may be likened to the difference between the trees and the forest”.

The Plaintiff finally rests his case on the case of GBEDEMAH VRS. AWOONOR-WILLIAMS 2 G&G 438.    

Interesting though the Plaintiff’s submissions are to borrow his own metaphor, he has mistaken the trees for the words. The matter before us is the Defendant’s objection that this court has no jurisdiction to entertain the Plaintiff’s writ. A Court of competent jurisdiction such as this court may not have jurisdiction to entertain a matter but it has jurisdiction to determine that it has no such jurisdiction.

As I have said, quite apart from my view that the matter of the Defendant's membership of Parliament having been concluded for all time by the judgment of the High Court, Sunyani on the 12th May, 1997, the matter raised by the preliminary objection is covered by authority and the PRACTICE DIRECTION contained in (1981) G.L.R.1. Two principles may be deduced from the authorities. First, that when a remedy is given by the Constitution and a forum is given by either the Constitution itself or statute for ventilating that grievance, then it is to that forum that Plaintiff may present his petition. Second, if the Supreme Court has concurrent jurisdiction in any matter with any other Court then it is to that other Court that the Party may initially resort. I would like to buttress my opinion with two English cases, which I feel are illustrative of the principles I have enunciated in this opinion. In WILKINSON VRS. BARKING CORPORATION (1948) 1 K. B. 721 at page 724 ASQUITH [L.J.] stated:

“It is undoubtedly good law that where a statute creates a right and, in plain language gives a specified remedy or appoints a specific Tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others”.

Then also in PASMORE VRS. OSWALD TWISTLE U.D.C. (1898) AC 387 at 384. The House of Lords per Lords Halsbury said:

“The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar and which runs through the law".

In the present application Section 16(1) of THE REPRESENTATION OF THE PEOPLE LAW (P.N.D.C.L. 284) provides:

“16(1). The validity of an election to parliament may be questioned only by a petition brought under this Part”.

16(2).   Every election petition shall be presented  before the High Court for hearing".       

(emphasis mine).

Within our municipality I would refer to the case of ABEL EDUSEI VRS. THE ATTORNEY-GENERAL & ANOR. (1996), G.S.C.J. VOLUME 1,4: (1996-97) SC GLR1 and 22nd April, 1998 (unreported) where the majority of my learned and respected brethren refused to reach the merits of the case on the ground that the case was a human rights issue which the Constitution specifically consigned to the High Court. My learned and respected brother KPEGAH, J.S.C. at page 57 to 58 of the second report said "...our enforcement jurisdiction does not extend to those areas of the Constitution — that is the enforcement of individual rights. That function is specifically assigned to the High Court. In the ABEL EDUSEI case, supra, KPEGAH, J.S.C. expressed some strictures against this Court's decision in the N.P.P. VRS. I.G.P. & ANOR, 104/93 dated the 30th November, 1993 (unreported). It will suffice to say that these strictures were obiter and need not concern us here.

Then again ADJABENG, J.S.C. also said at page 61 of the Report that “... obviously these elaborate provisions assigning to the High Court this important duty have not been made for nothing".

AMPIAH, J.S.C. was content to rely on the 1981 PRACTICE DIRECTION saying they were "reasonable and practicable" as otherwise this Court could be inundated with all manner of actions. In the ABEL EDUSEI case my disagreement with my learned and respected brethren was based on this Court's inherent residual jurisdiction to prevent a failure of justice where the Constitutional pre-requisites for excluding the exercise of our enforcement powers have not been set out.

In the face of the modern line of cases which support the principle have tried to enunciate as to the exclusion of our enforcement jurisdiction, the Plaintiff has set up the case of GBEDEMAH VRS. AWOONOR-WILLIAMS, supra. as authority for his stand that this Court has jurisdiction. I need not examine that case in detail; but that case would certainly have now been decided differently. That case was decided 1969 long before the 1981 PRACTICE DIRECTION came into force. Yet again I would like to think that in the circumstances and the atmosphere in which that case was presented, there was the need to prevent a failure of justice by the exercise of the residual powers of the Court. It does not appear that at the time their Lordships took into consideration the provision of Article 76.  I would therefore, in deference to our illustrious predecessors of this Court, caution myself and hesitate from making adverse comment on the quality of that decision — GBEDEMAH VRS. AWOONOR-WILLIAMS— as conferring on this Court any enforcement jurisdiction not warranted by the Constitution or statute. I agree with Counsel for the Defendant, NANA AKUFO-ADDO, that that case "(should be allowed to rest on the very peculiar circumstances of that case)".

The Plaintiff’s case was clearly an attempt by unconstitutional means to unseat the Defendant who by the provisions of the REPRESENTATION OF THE PEOPLE LAW (P.N.D.C.L.284) is the duly Member of Parliament for the SUNYANI EAST Constituency.

In the result I will uphold the preliminary objection. The Plaintiff’s original writ filed in this Court on 25th February, 1997 is hereby dismissed.

AMPIAH, J.S.C.: 

I have had the privilege of reading the opinions of my brothers, Hayfron-Benjamin, J.S.C. and Acquah, J.S.C. and I am in agreement with their conclusions. I am satisfied that the proper forum for this action is the High Court. Accordingly I would uphold the preliminary objection and dismiss the action.

KPEGAH, J.S.C.:

In terms of results, this opinion may pale into insignificant footnotes but it is my sacred duty to express them and do so fearlessly.

In this action, the plaintiff who is a registered voter of Sunyani East constituency in the Brong Ahafo Region, seeks a declaration from this Court that under and by virtue of Article 94(1)(b) of the, Constitution of Ghana the defendant is not qualified to be a member of parliament. As ancillary relief, the plaintiff also seeks an injunction restraining the defendant from entering and taking his seat as a Member of Parliament as long as he continues to be so disqualified.

In a statement of claim accompanying the writ the plaintiff reiterates the capacity in which he brings the action and avers that the defendant hails from Odumasi which is in the Sunyani West Constituency of the Brong Ahafo Region. He further contended that less than two years preceding the Writ, the defendant "lived in exile with the status of a refugee for several years". But the defendant got himself elected on 7th December, 1996 as a Member of Parliament for the Sunyani East Constituency despite the fact that he was neither qualified nor competent to be elected a member of Parliament of the said Constituency by virtue of Article 94(1)(b) of the Constitution. The plaintiff also averred that on 7th January, 1996 the defendant took his seat in Parliament and threatens to continue to do so even though his conduct is inconsistent with a provision of the Constitution.

The defendant in his statement of defence admitted that he hails from Odumasi in the Sunyani West Constituency and that less than two years preceding the writ he had spent several years as a refugee outside the Country. He also admitted standing at Sunyani East and being elected a Member of Parliament for the said constituency since he is "resident in that constituency".

Paragraph 4 of the statement of defence was devoted to averments on which the defendant intended to rely for an objection to our assumption of jurisdiction in this matter. Since the defendant did file a motion challenging our jurisdiction, and this ruling is in respect of the said objection, I think it will be prudent on my part to quote the said paragraph 4 in extenso:

“4. The defendant says that this action is wholly unmeritorious, frivolous, vexatious and an abuse of the process of this Court and will at the hearing of this case rely upon a preliminary objection to this suit; viz:

(a) that notwithstanding the way in which the plaint is couched, it is in substance an election petition, to have Defendant’s election declared void;

(b) that there is provision by law, to wit, Representation of the People Law, 1992 (P.N.D.C.L.284), specifically section 20(1)(d) thereof, that enables the Plaintiff to present an election petition to the High Court on the very ground urged in this Court;

(c) that P.N.D.C.L.284 specifically section 18(1) thereof, the time limited for prosecution of such election petition is twenty-one days after the date of the publication in the Gazette of the result of the election to which it relates and time shall not be extended;

(d) that the election being challenged by the Plaintiff was gazetted on 19th December, 1996, consequently Plaintiff in bringing the present action dated 25th February, 1997, was hopelessly out of time under the relevant law and seeks by this action to circumvent the bar to any election petition after the deadline;

(e) the Plaintiff is not seeking an interpretation of the Constitutional provisions he is relying on which in any event are clear and unambiguous.  No issue of interpretation arises in this suit;

(f) from the foregoing, this Court should, in accordance with precedent, decline jurisdiction in this matter, since the original jurisdiction of the Court has been improperly invoked, and strike out the writ.”

Subsequent averments in the statement of defence allege that an election petition had earlier been brought in the High Court, Sunyani by one Daniel Kingsley Bossman and one Joseph Kwame Gyamfi, relying on the same ground which had been dismissed as having been brought out of time.  These may only be intended to support the charge of frivolity and vexation levelled against the plaintiff’s action. The defendant followed up by filing a motion raising a preliminary objection to the jurisdiction of the Court.            

The crux of the objection is best stated by quoting counsel for the defendant in his written submission filed in accordance with the rules.

The basis of the defendant's objection is stated as follows:

"The gravamen of the Applicant's objection to the jurisdiction of the Court is that, notwithstanding the manner in which the Plaintiff’s writ and statement of claim are couched, in substance and reality, his action is an election petition, since the reliefs sought are to, and the effects of the reliefs, if granted, would be to impungn the validity of the election of the Applicant and disqualify and remove him as a Member of Parliament. It is only the High Court, as a Court of first instance, which has jurisdiction to hear such a matter. The original jurisdiction of this Court has therefore been improperly invoked."

Several ancillary arguments have been urged in support of the above.

(a) that no issue of interpretation is raised by the Plaintiff’s writ and statement of claim.

(b) that both the Constitution and the Representation of the People Law, 1992 (P.N.D.C.L 284) specifically confer jurisdiction on the High Court to determine election petitions so this Court has no original jurisdiction in this case;

(c)  that the case of GBEDEMAH VRS. AWOONOR- WILLIAMS, 2 G & G.438 should be limited to its own peculiar facts since in that case the applicant, Mr. Gbedemah, admitted the allegation upon which the action was based. That is to say, adverse findings were made against him by a commission of inquiry;

(d) that where a Constitution or a Statute specifically provides for a procedure to be followed in a certain event, that procedure must be scrupulously adhered to;

(e) that if we should hold the view that this court has concurrent jurisdiction in the matter, paragraph 6 of our Practice Direction (1981) G.L.R. 1 should inhibit us from assuming original jurisdiction in the matter.

Learned counsel, I have noticed, studiously did not mention our enforcement jurisdiction.  He shyed away from it and only mentioned the word “enforcement” once.  He limited himself to the acknowledgement of our interpretative jurisdiction only.

In a brief answer to the arguments of Counsel for the defendant, Mr. Kwaku Baah, learned counsel for the plaintiff submitted that the qualification for membership of  Parliament is a constitutional requirement.  That the contention or allegation of the plaintiff is that the defendant has not got those qualifications and yet got himself elected to sit in Parliament in violation of the constitution.  He further contended that while article 94 deals with the qualification for election to Parliament, article 99 deals with the electoral process itself.  And that this Court is simply being called upon to exercise its enforcement jurisdiction by enforcing article 94(1)(b) of the Constitution against the defendant.

Article 94(1) states:

“(1) Subject to the provisions of this Article, a person shall not qualify to be a member of Parliament unless —

 (a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter;

(b) he is resident in the constituency for which he stands as a candidate for election to Parliament or has resided there for a total period of not less than five years out of ten years immediately preceding the election for which he stands, or he hails from that constituency.”

NATURE OF CLAIM:

What is the nature of the plaintiff’s claim?  Is it really an election petition framed as a constitutional issue so that we can be seduced into assuming jurisdiction in the matter?  The major relief sought by the plaintiff is a declaration that “under and by virtue of Article 94 (1)(b) of the Constitution the defendant is not qualified to be a member of Parliament”.  The plaintiff also asked for collateral reliefs which will give effect to the declaration sought by him.  May I state that the reliefs the plaintiff is seeking can be described as carbon-copies of the reliefs claimed in the case of GBEDEMAH V. AWOONOR-WILLIAMS 2 G & G.438.  Perhaps the only difference is that while the GBEDEMAH CASE was based on article 71(2)(b)(ii) of the 1969 Constitution which disqualified a person against whom an adverse finding had been made by a Commission of Inquiry, the instant case is based on article 94(1)(b) of the 1992 Commission which stipulates some of the qualifications required before a person can stand in an election as a candidate for the membership of Parliament in any constituency.

Realising that the Gbedemah Case presents a formidable obstacle to his preliminary objection, Nana Akufo-Addo made a brave but vain attempt, in my view, to distinguish that case from the instant one. One of the arguments used to distinguish the Gbedemah Case from this case is that the fact of an adverse finding having been made against Mr. Gbedemah by a Commission of Inquiry was not in dispute. Therefore the Court felt that what it was called upon to do was “to enforce the relevant provision of the Constitution".  I must remark, that this is the only occasion in a submission running into several pages that counsel can be said to have reluctantly conceded that this Court has power to enforce any provision of the Constitution which has been breached or threatened to be breached.

Counsel further submitted that in the case before us the defendant denies the allegation of the plaintiff and asserts that at all material times he was duly qualified and competent to be a Member of Parliament for Sunyani East Constituency because he is a resident of that Constituency. He continued thus:

"[W]hat we have before this Court is simply a factual dispute whether or not the Defendant is a resident of the Sunyani East Constituency so as to make him eligible for election as a Member of Parliament for that constituency".

And that the proper remedy for the determination of this factual dispute is by way of an election petition which should be brought in the High Court within twenty-one days. This is how counsel concluded his argument:

"In other words this is no more or less than an election petition. To paraphrase the words of the Court of Appeal sitting as the Supreme Court in TAIT V. GHANA AIRWAYS CORP. 2 G & G. 527, whether or not the Defendant was 'resident' in Sunyani East Constituency such as to make him eligible for election as a Member of Parliament for the constituency is a question of fact to be determined on evidence by the proper Court, that is the High Court. There has, in addition been no special meaning pleaded to be attached to the word 'resident' and thus no question of interpretation in issue". (Emphasis mine)               

(i)    ISSUE FOR DETERMINATION:

It is only the plaintiff who has filed a Memorandum of Issues indicating the issue the Court is called upon to determine.  The issue the plaintiff brought out for determination is:

"Whether or not the defendant is a resident of Sunyani East Constituency and was so resident during the 1996 Parliamentary elections within the meaning of Article 94(1)(b) of the constitution of the Republic of Ghana".

In view of the line of argument adopted by counsel for the defendant, I do not think that he will disagree with the plaintiff on the Memorandum of Issues. I find the submission that because the issue raised by the plaintiff’s claim "is simply a factual dispute whether or not the Defendant is a resident of the Sunyani East Constituency" and therefore the Supreme Court has no jurisdiction, a rather strange submission to make. I say so because all the constitutional requirements a person must satisfy under Article 94(1) before he can be a candidate for any constituency during a Parliamentary election are factual in nature and which will require proof if a candidate is challenged. So that whether a person is a citizen of Ghana, and whether he has attained 21 years of age and whether he is a registered voter or not, are matters of fact requiring proof in the event of a contrary allegation. Also, whether or not a person hails from his intended constituency, or is resident or has been so resident for a period not less than five years out of ten years immediately preceding the particular election for which he is standing as a candidate, are questions or matters of fact.  So that the fact that the issue for determination is purely one of fact does not PER SE divest this Court of its original jurisdiction.  Indeed, issues of fact are likely to come up during the exercise of our enforcement jurisdiction rather than our interpretative jurisdiction, for an allegation that an "act or omission" of a "person is inconsistent with, or in contravention of a provision” of the Constitution will necessarily require proof. 

I cannot therefore, accept the argument that because the plaintiff’s claim raises some issues of fact arising from an election, his claim ceases to be a constitutional matter cognizable by this Court in the exercise of its enforcement jurisdiction, and IPSO FACTO becomes a matter for which an election petition should be brought at the High Court.  Such an argument taken to its logical conclusion will imply that Article 94, like the whole of Chapter Five of the Constitution on Fundamental Human Rights, is outside the enforcement jurisdiction of the Supreme Court at the instance of a citizen of this land.   And this proposition will be legally untenable, and possibly unpardonable, in view of the combined effect of Articles 2(1) and 130(1) of the Constitution; also, it will be subversive of the numerous decisions of this Court that our enforcement jurisdiction relates to ALL the provisions of the Constitution except those under Chapter 5 dealing with the enforcement of fundamental human rights which has been exclusively vested in the  High Court. SEE CASES LIKE EDUSEI VRS. ATTORNEY-GENERAL AND ANOTHER (1996-97) SC GLR 1; GBEDEMAH VRS. AWOONOR-WILLIAMS (1970) 2. G. & G. 438.

If our exclusive original jurisdiction were limited to the determination of issues of law only, I do not think the Supreme Court Rules, 1996 (C.I.16) will in rule 46(2)(b) make provision for the calling of witnesses, if any.

OSMAN V. TENDAM LINE OF CASES

Moreover, I am aware of some cases which came before the then Court of Appeal sitting as the Supreme Court under the Transitional Provisions of the 1969 Constitution in which evidence was led when the original jurisdiction of the Supreme Court was invoked.

These cases are OSMAN V. TENDAM (1970) C.C. 41 and OSMAN V. KALEO (1970) C.C. 100. The issues involved in the two cases were similar: Whether at the time of their election as members of the National Assembly, the defendants were persons disqualified under article 71(2)(k) of the 1969 Constitution. In the case of OSMAN V. TENDAM (SUPRA), for example, the plaintiff claimed that the defendant's membership in the National Assembly contravened the Constitution, article 71(2)(k) to be precise, and a perpetual injunction to restrain him from sitting in the National Assembly. Article 71(2)(k) disqualified any person from standing for election who was disqualified by any law in force at the time of the coming into force of the 1969 Constitution. The plaintiff based his claim on the fact that under N.L.C.D. 345 (as amended by N.L.C.D. 347), no member of the National Assembly immediately before the 24th February, 1966 was eligible to be a founding member of a political party or hold public office if he was, inter alia, a C.P.P. member of the National Assembly, or a member of the National or Regional Executive Committee of the dissolved C.P.P. The amending decree (N.L.C.D. 347) failed to mention the disqualification of members of the National Assembly but disqualified National and Regional Executive Committee members only. The defendant, Mr. Tendam, was a C.P.P. member of Parliament who later secured a seat in the new National Assembly on the ticket of the Progress Party. The plaintiff contended that under the dissolved C.P.P. constitution the defendant was a member of the Regional Executive Committee by virtue of his membership of the National Assembly. The Court held that it only raised a rebuttable presumption and that evidence had to be adduced to show that the defendant as a matter of fact was a member of the Regional Executive Committee by attending meetings for example. The Court said:

“In our opinion, the Constitution of the Convention Peoples Party merely shows that the persons holding office therein were eligible to the various offices. We do not think that they show PER SE that they were in fact such members. To establish the membership which attracts the disqualification provided by the Decree we think there must be evidence that the person sought to be disqualified was in fact such member for instance by participating in the activities of the body, attending their meetings .......................... The evidence establishes conclusively that the defendant was a member of the Regional Steering Committee which was the same body as Regional Executive body, and therefore the Defendant is caught by the Disqualification in paragraph 17 of the Decree No. 345 as Amended by Decree No. 347.”

The court proceeded to hold that the effect of Article 71(2)(k) and N.L.C.D. 345 and N.L.C.D. 347 was that the defendant had no right to be a member of the National Assembly.

THE RIGHT TO STAND FOR AN ELECTION

Our attempt at dealing with the objection of the defendant to the exercise of our enforcement jurisdiction cannot be realistic unless we appreciate a very fundamental point: a citizen's right to contest an election for the Presidency, or to seek election to Parliament is not derived from either the customary or common laws: neither is it a right conferred on the citizen by an ordinary statute but it is a right endowed him by the Constitution.  It must therefore be exercised in accordance with the condition laid down by the constitution. Any person who does not satisfy the condition imposed by the constitution and yet gets elected to parliament will clearly be in breach of that provision of the constitution and will be doing an act which, in the Words of Article 2(1), will be "inconsistent with, or in contravention of “the fundamental law for which an action could be brought "in the Supreme Court for a declaration to that effect”.

And the only way by which this can be achieved is by invoking the exclusive original jurisdiction of this court. The necessary legal implication is that no other court or tribunal can have jurisdiction over the same cause or matter since the jurisdiction to enforce the those conditions, that is the provision of Article 94., is exclusive to the Supreme Court.  A shared jurisdiction cannot in law be exclusive at the same time but rather becomes concurrent.  Such a phenomenon is inconsistent with the concept of exclusivity of jurisdiction to a particular court. Therefore, while it is true to say that a constitution or statute can confer jurisdiction concurrently on two adjudicating tribunals, or courts in respect of a cause or matter, it will be absurd to say at the same time that this jurisdiction can be exclusive to one of them only. Where, therefore, two Court are expressed to have jurisdiction over the same issue, that jurisdiction cannot be exclusive to one of them again.

Then the question may be asked: if the enforcement of the conditions in Article 94 which a person must satisfy before seeking an election to parliament, is within the exclusive original jurisdiction of the Supreme Court, can the same constitution, in Article 99(1) (a), be said to have conferred exclusive jurisdiction on the High Court over the same matter. Or has the legislature got the power to enact in P.N.D.C.L 284 that the High Court also has exclusive jurisdiction over the same issue?     

Should the answers to the above questions be in the negative, which view I hold, the validity of section 20(1). (d) of P.N.D.C.L 284 as ground for an election petition will be put in doubt. Why? Because a statute of limitation, where the issue is the breach of the constitution, cannot fetter the jurisdiction of the Supreme Court to enforce the constitution at the instance of anybody at anytime unlike the right to bring an election petition which can be said to be personal to a class of designated persons only and therefore could be subjected to a period of limitation like any private right.

At this point, I must emphasise that the mere fact that the same constitutional provisions are re-enacted in a statute — i.e. section 9 of the People Representation Law, 1992 (P.N.D.C.L 284), does not and cannot derogate from the legal status of these conditions as constitutional requirements. The only sensible legal argument which can be advanced in favour of section 9 of P.N.D.C.L 284 therefore is that it is not inconsistent with, or in contravention of, any provision of the constitution. It cannot be urged that the re-enactment of these conditions in section 9 of P.N.D.C.L 284 induces a sort of legal metamorphosis, transforming them into mere statutory requirements and thereby stripping them of their status as pedigree provisions from the constitution. Such a reasoning, in my view, will subvert the concept of the supremacy of the constitution which is central to our constitutional law.

My understanding of the plaintiff’s claim is that the defendant, not hailing from the Sunyani East constituency, did not satisfy the residential requirement imposed by Article 94(1)(b) before he got himself elected as Member of Parliament for the said Sunyani East Constituency. The plaintiff is therefore invoking our enforcement jurisdiction as distinct from our interpretative jurisdiction, to make a declaration to this effect and secure the declaration with the appropriate orders so as to give effect or enable effect to be given to the declaration so made. The fact that the action of the plaintiff may have the possible consequence of the removal of the defendant from parliament does not turn his claim into an election petition. That is the wrong test to apply in determining what the real claim of the plaintiff is.  In any case, such a consequence will only demonstrate the Supremacy of the Constitution in practical terms. If the enforcement of Article 94(1) (b) of the Constitution against the defendant leads to his removal from parliament, though unpleasant, I can live with that decision for I will be doing what my oath enjoins me to do — to defend and uphold the supremacy of the Constitution. The end result of the plaintiff’s claim should not scare and stampede us into declining what I see as a legitimate invitation to us to exercise our enforcement jurisdiction. It will only be a victory for the constitution, IPSO FACTO, the Rule of Law.  We cannot pretend that we are here dealing with an election petition rather than a claim for the enforcement of the Constitution to conveniently avoid the issue.  I am disposed to say the jurisdiction or authority of a court is not affected by the possible consequences of a relief. The test should rather be whether the court has jurisdiction to grant the relief being claimed or over the cause or matter. The consequences of the grant are immaterial to the possession or otherwise of jurisdiction.

ELECTION PETITION

The next question which I think is important in this case is: what is an election petition? The Representation of the People Law, 1992 (P.N.D.C.L 284) does not define the term "election petition". Indeed the Constitution never used the term at all; it is rather used by P.N.D.C.L 284. We can, however, derive some assistance from paragraph 44(1) of The Representation of the People Decree, 1968, (N.L.C.D 255), where the term is defined as follows:

“election petition’ means a petition under the provisions of paragraph 27 of this Decree”

And paragraph 27 of N.L.C.D. 255 states:

“27 (1) The validity of an election to the Assembly may be questioned by a petition brought for the purpose under the provisions of this Decree and not otherwise

(2) Every election petition shall be tried by the High Court”. (Emphasis supplied).

This Decree has since been repealed by Section 52 of P.N.D.C.L 284.  But the relevant provision of N.LCD 255 have been re-enacted, in PARI MATERIA, in section 16 of P.N.D.C.L 284 thus:

“16(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”. (Emphasis supplied).

It does appear, does it not, that an “election petition” in our circumstances can be defined as a petition brought under PART IV of the Representation of the People Law, 1992 (P.N.D.C.L. 284).  This part covers section 16 to section 26 of the Law.

ORIGINAL JURISDICTION OF THE SUPREME COURT

The scope of the original and exclusive jurisdiction of the Supreme Court has been settled since the Gbedemah case where the court held:

“It seems to us that for a plaintiff to be able to invoke the original and exclusive jurisdiction of the Supreme Court his writ of summons and/or statement of claim must prima facie raise an issue relating to —

(1) the enforcement of a provision of the Constitution; or

(2) the interpretation of a provision of the Constitution; or

(3) a question whether an enactment was made ultra vires Parliament or any other authority or person by law or under the constitution.”

The court took the above position despite its view that the provision of Article 2(1) of the 1969 Constitution related only to the enforcement of the Constitution in the event where any enactment conflicted with any provision of the Constitution.  It will aid the point being developed if the said Article 2(1) is quoted.

“2(1) Any person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, any provision of this constitution may bring an action in the Supreme Court for a declaration to that effect”.

The Court made it clear that sub-clause 1 of Article 2 could not inhibit the Supreme Court from suppressing any act or conduct which it felt was calculated at subverting the constitution itself. “The constitution,” said the court, “is the fundamental law of the land and any conduct or act which does not conform to it constitutes a breach of the law;   .................. Article 106(1)(a) gives the Supreme Court the necessary power to uphold the supremacy of the constitution”. This was in answer to a submission by Mr. Quarshie-Idun, Counsel for the defendant, that the operation of Article 28 having excluded the whole of Chapter Four (that is provisions relating to fundamental human rights) from the jurisdiction of the Supreme Court, its original jurisdiction to enforce the constitution should be limited to matters specifically mentioned in Article 2(1) of the constitution; that is to say if "an enactment or anything in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of, any provision” of the Constitution. So that despite the fact that Article 2(1) of the 1969 Constitution did not specifically provide for the enforcement of any provision of the Constitution against a person whose "act or conduct... is calculated at subverting the constitution itself”, the Court of Appeal in the Gbedemah case gave a very liberal interpretation in relation to its jurisdiction as envisaged under Article 2(1) and 106(1) (a) to include the enforcement of the Constitution against a person whose conduct or act undermines any provision of the Constitution except those provisions relating to the fundamental human rights of the individual.                                                                  

The interpretation given as to the extent or scope of the original and exclusive jurisdiction of the Supreme Court in the Gbedemah case becomes more relevant and apposite when one takes into account the change in the phraseology, or the language of Article 2(1) of the 1992 Constitution. It states thus:

“2(1)  A person who alleges that —

(a) an enactment or anything contained in or done under the authority of that or any other enactment; or

(b) any act or omission of any person; is inconsistent with, or is in contravention of a  provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect”.

And if Article 2(1) is read together with Article 130(1) which deals with the original jurisdiction of the Supreme Court, one will come to no doubt as to the continued  relevance of the Gbedemah case when one is considering the parameters of our original and exclusive jurisdiction. This is what Article 130(1) says:

“130(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this constitution, the Supreme Court shall have exclusive original jurisdiction in —

(a) all matters relating to the enforcement or interpretation of this Constitution; and

(b)  all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution".

The burden of the submission so far is that the Supreme Court can be said to have three types of exclusive original jurisdiction: (i) enforcement jurisdiction; (ii) interpretative jurisdiction; and (iii) jurisdiction to declare an enactment as being inconsistent with the constitution and therefore void.

The enforcement jurisdiction of the Supreme Court, as we have seen, relates to all provisions of the constitution except those relating to fundamental human rights; that is articles 12 to 32, the enforcement of which is the exclusive preserve of the High Court. The majority decision will bring a new chemistry or dimension into the issue of the jurisdiction of the Supreme Court; it relates to all provisions of the constitution except articles 12-32, which relate to fundamental human rights, and now also Article 94. Which  Article of the constitution will next follow through the edict of the Legislature and with the fiat of this Court?  Time will tell.

It is important for the point to be made that any enactment which tries to cede to any court matters within the exclusive jurisdiction of the Supreme Court will be inconsistent with the constitution and therefore null and void to the extent of the inconsistency. In like vein the Legislature has no authority to grant jurisdiction to the High Court over a cause or matter which, by necessary implication of certain provisions of the constitution, are outside the jurisdiction of the High Court.

I think this was the reasoning which guided the Court of Appeal in its recent decision in the case of JONATHAN DEY V. THE REPUBLIC, CRIMINAL APPEAL NO.16/97 dated 12th February, 1998. I am not by this to be taken to be approving the conclusion reached in that case. As to whether the Court of Appeal was right or wrong in allowing the appeal and the manner it approached the legal issues raised in that case, I offer no opinion. I can only be taken as having been fascinated by the reasoning behind the decision and not whether it was correctly applied in that case or not, since the matter is still on appeal.

JURISDICTION OF THE SUPREME COURT VIS-A-VIS PARAGRAPH 6 OF THE PRACTICE DIRECTION (1981) G.L.R. 1

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The submission can be made that, by our constitutional arrangement, the primary function of the Supreme Court is constitutional adjudication, and its special task one of promoting and safeguarding constitutional values. This submission flows from Article 2(1) and 130(1) of the constitution as interpreted in cases like GBEDEMAH V. AWOONOR-WILLIAMS, 2 G & G.438; EDUSEI V. ATTORNEY-GENERAL (1996) SCGLR 1; AND TAIT V. GHANA AIRWAYS CORP. 2 G. & G. 527. OSMAN V. TENDAM (1970) C.C. 41; OSMAN V. KALEO (1970) C.C. 100.                                                            

It is in the light of the above-submission that I would like to examine, paragraph 6 of the Practice Direction (Practice and Procedure of the Supreme Court) (1981) G.L.R. I since some reliance was placed on it as one of the factors which should inhibit our assumption of original jurisdiction in this case.

Paragraph 6 of the Practice Direction states:

“It is also to be noted that where a cause or matter can be determined by a Superior Court other than the Supreme Court, the jurisdiction of the lower Court shall first be invoked. The Supreme Court shall dismiss such cause or matter with punitive costs to be paid personally by Counsel or by the party responsible for bringing such cause or matter to the Supreme Court in the first instance”.

Nana Akufo-Addo in his written submission asserted “on the assumption that the Supreme Court has concurrent jurisdiction with the High Court in this matter … this practice direction is an effective bar to the Court assuming jurisdiction”. As has earlier been stated, it cannot be said that the Supreme Court has concurrent jurisdiction in this case since it is a cause or matter which falls within the exclusive original jurisdiction of the Supreme Court. Under our constitutional dispensation, the Supreme Court has exclusive jurisdiction in matters relating to the enforcement and interpretation of the Constitution; and the authority to declare an enactment as unconstitutional and therefore null and void. See Articles 2(1) and 130(1) of the Constitution.

Also, the Supreme Court has exclusive jurisdiction to determine whether or not the production of official documents in any proceedings in any court will be prejudicial to national security or public interest. This jurisdiction is conferred by Article 135. And Article 64 specifically vests the Supreme Court with jurisdiction to determine a challenge to the validity of the election of the President of Ghana. In none of these situations can the Practice Direction be said to be relevant and therefore applicable since these various jurisdictions are not shared by any other Court. And the appellate and review jurisdictions conferred by Articles 131 and 133(1) respectively need not even be mentioned at all in connection with the Practice Direction.  So also the reference jurisdiction under article 130(2) of the Constitution.                      

The only type of jurisdiction the Supreme Court can be said to share with another Superior Court is the supervisory jurisdiction which it enjoys under Article 132 in these words:

“132. The Supreme Court shall have supervisory jurisdiction over all Courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power”. (Emphasis mine)

The High Court also has this supervisory jurisdiction over lower Courts and it is conferred by Article 141 in these words:

“The High Court shall have supervisory jurisdiction over all lower Courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers". (Emphasis mine)

It does appear therefore, that the only situation in which the Practice Direction can be said to be relevant and applicable is where a person invokes the supervisory jurisdiction of the Supreme Court instead of that of the High Court. One therefore must be circumspect when relying on the Practice Direction as a bar to the assumption of jurisdiction by this Court for it is of limited application; and in most cases inapplicable because of the nature of the original jurisdiction and other types of jurisdiction the Supreme Court has under the Constitution. In the instant case, it is wholly irrelevant because the Supreme Court cannot be said to have concurrent jurisdiction with the High Court in enforcing article 94 of the Constitution.                               

This should put a caveat on what I said in the case of EDUSEI vs. ATTORNEY-GENERAL (1996-97) S.C.G.L.R.1 at page 59:

“Even if one should hold the highly improbable and legally untenable view that this Court has original jurisdiction in the enforcement of individual rights, which this case in all about, or that we have concurrent jurisdiction in the matter, our Practice Direction ...... reported in (1981) G.L.R.1 should Caution us against such an assumption of Jurisdiction as a Court of first instance.”

The jurisdiction to enforce the fundamental rights of the individual has been vested exclusively in the High Court. I must therefore not be taken to mean that the Supreme Court could also possibly have original jurisdiction over the same matter. I did not then subject the Practice Direction to any critical analysis as I have just done. If any wrong impression was created in the EDUSEI case it is unfortunate.                             

JURISDICTION OF THE HIGH COURT IN AN ELECTION PETITION

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The term “jurisdiction” has been defined as “the authority which a Court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limit of this authority are imposed by the Statute, Chapter, or Commission under which the Court is constituted, and may be extended or restricted by like means”.

SEE HALSBURYS LAWS OF ENGLAND VOL.9 (3RD ED) pp 350-51.

Jurisdiction should not be confused with “judicial power” as is often the case. While judicial power is often exercised by all the Courts in the exercise of their legitimate jurisdiction, none of the courts possess all the jurisdiction for the exercise of judicial power. Under our Constitution, for example, the Supreme Court has no original jurisdiction in the enforcement of fundamental human rights which has been exclusively vested in the High Court.

SEE EDUSEI V. ATTORNEY-GENERAL (1996-97) S.C.G.L.R. 1 and also the ruling of this Court in an application for review entitled EDUSEI V. ATTORNEY-GENERAL case No.21/96 dated 22nd April, 1998 (unreported).

And similarly, neither the High Court nor any other Court has jurisdiction to try suits exclusively triable by the Supreme Court by virtue of the combined effect of Article 2(1) and 130(1) of the Constitution. That is to say: (i) the enforcement of all provisions of the Constitution except those relating to the fundamental human rights; (ii) the interpretation of any provision of the Constitution; and (iii) the authority to declare any enactment void on grounds that it is inconsistent with, or in contravention of a provision of the Constitution. A Court can lack jurisdiction territorially, over the subject-matter in dispute, or issue raised for determination, or over any of the parties before it.

That jurisdiction has been granted the High Court to determine matters relating to election petitions is indisputable; so also the exclusivity of the said jurisdiction.  Both P.N.D.C.L 284 in section 16(2), already quoted, and the Constitution in Article 99(1)(a) puts this beyond doubt.

Article 99(1)(a) provides:

“The High Court shall have jurisdiction to hear and determine any question whether —

(a)  a person has been validly elected as a member of Parliament or the seat of a member has become vacant”. (Emphasis mine)               

One may ask: what is the scope of the jurisdiction intended for the High Court under Article 99(1)(a) by the Constitution?  Does it include the enforcement of the provisions of the Constitution which stipulate the conditions to be satisfied by a person before he can stand for election to Parliament, or it relates to only the enforcement of laws regulating the electoral process itself as Mr. Kwaku Baah had submitted.  The key here may be found in the words “validly elected”.  Is the jurisdiction vested in the High Court limited only to those matters which can be said to vitiate or invalidate an election result because than interfere with the peoples’ right to FREELY chose their candidate? The question as to the scope of the jurisdiction of the High Court under Article 99(1)(a) cannot properly be determined unless we examine the grounds upon which an election petition can be brought.  And if any of the grounds can be shown to be within the exclusive jurisdiction of the Supreme Court, then for the legislature to cede jurisdiction over that matter to the High Court will be unconstitutional. And this cannot be justified under Article 99(1)(a) because that interpretation will lead to an absurdity since it will bring the said Article 99(1)(a) into conflict with other provisions of the Constitution; namely Articles 2(1) and 130(1). The only interpretation of Article 99(1)(a) which can bring harmony between it and other provisions of the Constitution is an interpretation which will limit the jurisdiction of the High Court in an election petition to those matters not within the exclusive jurisdiction of the Supreme Court.

And the use of the words “validly elected” in Article 94(1)(a), which confers jurisdiction on the High Court to determine an election petition, are very significant. These words must be given their ordinary meaning which will accommodate only factors which vitiate or affect the results of the particular election; and not extend their meaning to include those primary or basic constitutional requirements in Article 94 which an intended candidate must comply with even before he can legitimately file his nomination papers. If a candidate does not satisfy these primary requirements he can be stopped from taking part in the election all together.  Because the compliance with the conditions in Article 94 is SINE QUA NON since these are basic rules of conduct. And, like all rules of conduct, they are intended to be obeyed. The Constitution is the Supreme law of the land and all persons must look at it and adjust their actions or conduct accordingly. And it has to be emphasised that one of the primary function of the Supreme Court, apart from adjudicating Constitutional matters, is promoting and safeguarding of Constitutional values. 

Therefore, it should be possible for any person who fears a threatened breach of the fundamental law, to invoke our enforcement jurisdiction in a sort of QUIA TIMET action to avert the intended or threatened infringement of the Constitution. This is because our enforcement jurisdiction is premised upon the consideration that, to quote from the Memorandum on the 1969 Constitution, “any person who fears threatened infringement or alleges an infringement of any provision of the Constitution" should be able to seek redress in this court. The implications of the majority view are fraught with serious consequences. For example, a person who can establish a prima facie case that an intended candidate is a foreigner must wait for the Constitution to be infringed because his remedy lies in an election petition which can only be brought after the election! And the High Court cannot have “jurisdiction” either for it has jurisdiction only to hear and determine “whether a person has been validly elected as a member of Parliament” or not. Such a situation should be legally unacceptable. In fact a person who either does not satisfy the conditions imposed in Article 94(1) or is disqualified under Article 94 (2) but files his nomination papers to seek election to Parliament, has embarked upon an unconstitutional or illegal venture which is void ab initio because he has no right to be a member of Parliament so as to be allowed to even contest an election. The requirements are not directory but imperative and have to be satisfied. In this, I am not alone, I find myself in the good company of the evergreen Lord Denning who in MACFOY v. U.A.C. (1962) A.C. 152 at 160 said:

“If an act is void, then it is in law a nullity.  It is not only bad, but incurably bad. There is no need for an order to set it aside.  It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there.  It will collapse. (Emphasis mine)

So that if the act or conduct of any person threatens the breach of the constitution it is the duty of this Court to immediately intervene and issue orders or directions, as provided in Article 2(2), with the sole objective of preventing such unconstitutional conduct.

We may now take the position of my brothers in the majority to its logical conclusion by considering certain pertinent examples; namely, what happens if a year after the notification of an election result in the gazette it is found out that an elected member of Parliament is either not a citizen of Ghana, or has not attained the age of twenty-one years or is not a registered voter contrary to the provisions of Article 94(1)(a) of the Constitution? Or what happens if our fictional Member of Parliament is found out to have been convicted of the offence of stealing about six months earlier and has also once been convicted of the offence of rape and is therefore disqualified from membership of Parliament under Article 94(2)(c)(1)?

The implication of the majority decision is that this Court is prevented from defending the constitution from a conduct which is clearly subversive of the fundamental law although one of our primary responsibilities is protection of constitutionalism. I would have thought this Court, consistent with our oath of office, would, at the instance of a citizen like in the instant case, immediately intervene and halt such a blatant breach of the Constitution.

Another reason why the qualification or disqualification of a person cannot be a proper ground for an election petition is that if a person is either not qualified or is disqualified and yet gets elected to Parliament, he suffers from an incurable constitutional disability which cannot be said to be cured after twenty-one days. For any time the person takes his seat in Parliament he does an act which is inconsistent with the Constitution; the breach therefore becomes a continuing breach. Unfortunately, the majority is of the view that this is of little or no consequence. This, in my humble opinion, stems from a non-appreciation of the fact that the qualification or disqualification of a person from membership of Parliament is a constitutional requirement; and also that in matters involving the breach of the Constitution this Court's jurisdiction is not only exclusive but also can be invoked at any time since the Constitution itself provides no time limit within which the breach of any provision should be enforced.

Some indicators which point to the unsuitability of designating the  primary conditions contained in Article 94 as grounds for an election petition will be discussed in some detail soon.

GROUNDS FOR ELECTION PETITION

The grounds upon which an election result can be cancelled or avoided are set out in section 20(1) of P.N.D.C.L 284 as follows:—

“20(1) The Election of a candidate shall be declared void on an election petition if the High Court is satisfied —

(a) that a general bribery, general treating, general intimidation or other misconduct or circumstances, whether similar to those specified in this Law or not, have so extensively prevailed that they may be reasonably supposed to have affected the result of the election;

(b) that there has been non-compliance with any provision of this Law or of regulations made under this Law and that it appears that the election was not conducted in accordance with the principles laid down by the Law and that such non-compliance affected the result of the election;

(c) that a corrupt or illegal practice was committed in connection with the election by the candidate or with his knowledge or consent, or by any agent of the candidate; or

(d) that the candidate was at the time of his election a person not qualified or a person disqualified for election”.

Before going further, the submission need to be made that the determination of any dispute by the Courts involves the application and enforcement of some law; it could be either customary law or common law; or the provisions of an enactment or the Constitution. And an election petition is essentially a judicial process intended to enforce an electoral law which a person is alleged to have breached. It has already been pointed out elsewhere in this opinion that the requirement as to the qualification or disqualification of a person to be a candidate for election to membership of parliament is primarily a constitutional requirement. So that an election petition based on any of the  grounds stated in section 20(1)(d) of P.N.D.C.L 284, will in essence be an allegation that the person is in breach of the provision of Article 94(1)(b) and that the said provision be invoked and enforced against him. Of course, the underlying assumption, and I have no reason to doubt its legal validity, is that Article 94(1)(b) of the Constitution does not lose its constitutional vitality simply because it has been re-enacted in Section 9(1)(b) of P.N.D.C.L 284. Otherwise, wherein lies the supremacy of the Constitution as provided in Article 1(2)? So the important question may now be asked: Is the ground stated in Section 20(1)(d) of P.N.D.C.L 284 suitable to be designated as a ground for an election petition for the Legislature to so provide in section 20(1)(d) of P.N.D.C.L 284? I do not think so, because simply put:  it will amount to vesting the High Court with jurisdiction over a cause or matter which is within the exclusive jurisdiction of the Supreme Court.

LEGISLATIVE COMPETENCE & VIOLATIONS OF CONSTITUTIONAL LIMITATIONS

Before discussing the issue, I must necessarily touch on certain basic principles which will direct my reasoning. When a law is inpunged as unconstitutional, it is very important to realise that it may be possible to save part of the law by applying the doctrine of severability. This doctrine has two aspects first, the provision which is alleged to violate the constitutional limitation may be distinct and severable from other parts of the law. In such a case the Court will uphold the constitutionality of the rest of the Act by severing such offending provisions and declaring them void; second, the impunged law may be one and unseverable and in such a case no specific provision can be declared to be unconstitutional and void. See CONSTITUTIONAL LAW OF INDIA by H. M. SEERVAI, 4th Ed. pg. 420 - 421.

It is therefore important that a distinction is drawn between lack of legislative power and a violation of a constitutional limitation. Our Constitution recognizes the position that there may be legislative power to enact the law but this power could be exercised in disregard of the constitutional prohibition, express or implied.

The use of the words "to the extent of the inconsistency" in Article 1(2) which proclaims the supremacy of the Constitution is a clear indication of the acceptance by the Constitution of this principle in relation to legislative power. That is, the absence of legislative power which will render the whole enactment void, and the exercise of legislative authority in contravention of a constitutional prohibition which will make the law void to the extent of the inconsistency only.

SECTION 20(1)(d) OF PNDCL 284 VIS-A-VIS THE CONSTITUTION

Attention will now be focused on whether the Legislature was acting within its permissible constitutional limits when it provided in section 20(1)(d) of P.N.D.C.L 284 that whether a person was, at the time of his election, a person not qualified or a person disqualified for election be a ground for an election petition.

In an effort to answer this question certain factors why it cannot be a proper or legitimate ground for an election petition will be discussed.  It would be seen that if those constitutional requirements were accepted as legitimate grounds for an election petition, they would render unconstitutional certain innocuous provisions of the Representation of the People Law, 1992 (P.N.D.C.L 284) which would otherwise have been a perfect exercise of legislative power. Some of these are: first, section 17 of P.N.D.C.L 284 relating to persons who can bring an election petition; second, section 16 which gives exclusive jurisdiction to the High Court in election petitions, and section 18(1) which limits the right to bring an election petition to a period of twenty-one days only after notification of the result in the gazette.  

(i) THE RIGHT TO BRING AN ELECTION PETITION

The right to bring an election petition is limited to certain classes of people only and not available to every citizen. These groups of people are specified in Section 17 of P.N.D.C.L 284 as follows:

"(a) a person who lawfully voted or had a right to vote at an election to which the petition relates;

(b) a person claiming to have had a right to be elected at the election;

(c) a person alleging himself to have been a candidate at the election;              

(d) a person claiming to have a right to be nominated as a candidate at the election".

It is only when a petitioner belongs to any of these categories of persons that he or she has capacity to initiate an election petition based even on the constitutional ground specified in Section 20(1)(d) of P.N.D.C.L 284; the non-compliance of which, as we have seen, the person can be said to be in breach of the Constitution and therefore doing an act which is inconsistent with the Constitution. And yet other persons will lack capacity to enforce the law; unless, of course, one is asserting that the requirements in Article 94 cease to be constitutional requirements because of their re-enactment in Section 9 of P.N.D.C.L 284. This limitation to a particular class of people only will be contrary to Article 2(1) which empowers any person to seek redress in this Court by invoking our original jurisdiction.  In the case of TUFFOUR v. ATTORNEY-GENERAL [1980] GLR 657 this Court had decided that a plaintiff need not have any special interest before invoking our jurisdiction under Article 2(1) and 130(1). In the TUFFOUR CASE the plaintiff’s capacity was challenged and this is what the Court said per Sowah, J.S.C.:

"A plaintiff under Article 1(2) of the Constitution need not have any community of interest with any person or authority.  His community of interest is with the constitution".          

The implication of this dictum is that every person has a guaranteed right to ask for the enforcement of the Constitution whenever he perceives its infringement by any person or group of persons. And when he establishes the breach we have no discretion but grant his relief. So that, any law which limits this right to particular class of persons will be unconstitutional.

THE IMPLICATIONS OF THE JURISDICTION OF THE HIGH COURT IN AN ELECTION PETITION BASED ON S. 20(1)(d)

Section 20(1)(d) provides for the cancellation of an election result on the ground that the candidate was at the time of his election a person not qualified or a person disqualified for election. “Qualified “or “disqualified” under what law, one may ask. Is it under Article 94 of the Constitution, or under section 9 of P.N.D.C.L 284 which only re-enacted verbatim the Constitutional provisions. Before answering this question it may be useful reminding ourselves of Article 1 which proclaims that “this Constitution shall be the Supreme law of Ghana”. Therefore any person who brings an election petition based on any of the grounds stated in section 20(1)(d) will essentially be alleging that the candidate

has infringed the provisions of Article 94. And by the combined effect of Article 2(1) and 130(1) of the Constitution, as interpreted in several cases by this court, it is only the Supreme Court which can enforce the Constitution against a person whose act conduct infringes its provisions.

But the cumulative effect of Section 16(1) and (2) and Section 20(1)(d) of P.N.D.C.L 284 is to give the High Court exclusive jurisdiction over a cause or matter which, as we have seen, is also within the exclusive original jurisdiction of the Supreme Court. This certainly will not only be absurd, but also a legal heresy.

It is a contradiction in terms to say that a particular court has exclusive jurisdiction over a matter and also assert that the jurisdiction is shared with another court over the same subject matter. Even more astounding and ridiculous will be the implication of such a submission: that both courts have exclusive jurisdiction over that same matter! The section of P.N.D.C.L 284 which could encourage these absurd legal submissions is section 20(1)(d) which provides that non-compliance with the constitutional requirements on eligibility can be a ground for an election petition. And if this section is struck down and the grounds for an election petition limited to those matters which go to vitiate or affect the actual result, there will be perfect harmony.

LIMITATION AS A FETTER TO JURISDICTION

A distinction has to be made between the enforcement of personal rights guaranteed under the constitution and the enforcement of the constitution itself in the event of a breach.

It has just been pointed out that the right to bring an election petition is, by virtue of section 17 of P.N.D.C.L 284, vested in a certain class of people only. Unless one belongs to this specific group, one has no capacity to enforce the law. The right to bring an election petition can therefore be described as personal to those who belong to this class. And like all personal rights they cannot be pursued without regard to some fundamental principles which underpin the administration of justice; such as the laws of procedure, evidence, limitation, laches or delay, res judicata etc. This means that the jurisdiction granted the High Court by section 16 of P.N.D.C.L 284, like all judicial powers should be exercised in accordance with these fundamental principles of administration of justice; and one such principle is that stale claims should not be given effect to or entertained. And the requirement in section 18(1) of P.N.D.C.L 284 that an election petition be brought within twenty-one days after gazette notification of the results, is perfectly adequate and legal; its justice and wisdom have the testimony of the practice of the world.

The approach of the Indian Supreme Court is very enlightening and worth mention here. In the case of TILOKCIHAND MOTICHAND VRS. H.B. MUNSI (1969) 2 S.C.R. 824; (1970) A.S.C. 898, the petitioners contended that Article 32 of the Indian Constitution conferred on them a guaranteed right to move the Supreme Court for the enforcement of their fundamental rights. It was further urged on their behalf that this right is unfettered by any provision of the Constitution itself, and therefore neither the Limitation Act nor any doctrine of laches or delay could be invoked to fetter their right. The Court was therefore urged that once the violation of the petitioners' right was established, the Supreme Court had no discretion under Article 32 but to grant the relief sought.  This contention was rejected and the Court held that though under Article 32 a writ issued as a matter of course if a breach of the fundamental right was proved, that did not mean, in the words of BACHAWAT J., that "in giving relief under Article 32 the Court must ignore and trample under foot all laws of procedure, evidence, limitation, res judicata and the like”.

The equivalent of Article 32 of the Indian Constitution is Article 33 in our Constitution. This Article deals with the protection of the fundamental rights of the individual and vests jurisdiction in the High Court as a Court of first instance. But is such an argument valid when a breach of the Constitution is alleged? The answer should be obvious. The Supreme Court has exclusive jurisdiction to enforce the Constitution against any person whose act or conduct is an infringement of any provision of the constitution, and the fact that the jurisdiction was not invoked for several years should make no difference to the jurisdiction. And any limitation on a citizen's constitutional right to enforce any provision of the Constitution cannot be permitted unless expressly stated by the Constitution itself. Therefore, in so far as Section 18(1) of P.N.D.C.L 284 limits the enforcement of the conditions in Article 94 to a period of twenty-one days it should be unconstitutional. Because the legislature has no authority to enact a law which will permit the continued violation of the Constitution after twenty-one days; otherwise, the doctrine of the Supremacy of the Constitution which underpins our Constitutional arrangement will be meaningless and render article 1(2) of the Constitution a toothless bull-dog; it can bark but cannot bite.

In my view we cannot ignore, but have to decide the very important question as to when a citizen can use his guaranteed right to move the Supreme Court for the enforcement of the Constitution when he alleges that the "act or omission of a person is inconsistent with, or is in contravention" of the Constitution. This right is not limited by any provision of the Constitution; and neither a period of limitation in any enactment nor any doctrine of laches or delay can fetter that right. We therefore, under Articles 2(1) and 130(1) have no discretion and once a person establishes the violation of the fundamental law by another we must so declare as a matter of course.

I am of the firm view that if section 20(1)(d) — i.e. the violation of Article 94 of the Constitution — is retained as a legitimate ground for an election petition, it will render certain provisions of the P.N.D.C.L 284, which would otherwise have been constitutional, as unconstitutional.

Thus, Section 20(1)(d) is like a malignant tumor in the midst of very healthy tissues; it has to be removed to save those tissues from becoming diseased. This we can achieve through the application of the principle of severability on the ground that the legislature failed to observe the constitutional prohibition imposed on its legislative powers by enacting in Section 20(1)(d) of P.N.D.C.L 284 that the breach of the constitutional requirement in Article 94 can be a ground of an election petition, thereby expanding the High Court's jurisdiction to cover a matter within the exclusive preserve of the Supreme Court.

I think that the grounds for an election petition should be confined to those factors which vitiate or affect the result rather than matters over which the High Court, by our constitutional arrangement, has no jurisdiction to deal with.

A CRITIQUE OF GBEDEMAH VS. AWOONOR-WILLIAMS 2 G. & G. 483:

Since the case of GBEDEMAH VS. AWOONOR-WILLIAMS (SUPRA) is of pivotal importance, not only in this case, but also in the development of our constitutional law as to the scope of the exclusive original jurisdiction of the Supreme Court, I think it needs a very careful study before any attempt at as solution of the legal problems raised in this case.  I am of this view because the Gbedemah case is in danger of being whittled down by the majority decision and lead to a misapplication of certain good decisions of this court.

My reasoning so far may appear to be at odds with that of the Court of Appeal in Gbedemah v. Awoonor-Williams (SUPRA); a case which I consider to be on all fours with the present case. I must say that although I agree with the decision in that case, some aspects of the reasoning of the court disturbs me for they appear to be contradictory.

In considering the scope of Article 2 of the 1969 Constitution, the Court correctly noted that the plaintiff was not claiming a declaration that any “enactment” or anything contained therein was inconsistent with the provisions of the 1969 constitution. The court said:

“Counsel for the plaintiff was unable to point out to the court what particular provision of the Representation of the People Decree, 1968 (N.L.C.D. 255), or any regulation made under it, is inconsistent with the provisions of the constitution. Far from being inconsistent we think that the provisions of the Representation of the Peoples Decree, 1968 (N.L.C.D. 255) are in conformity with, the provisions of the constitution and that the holding of the election in the Keta constituency on 29th August, 1969 was a lawful act”.

The court then considered what N.L.C.D. 255 said on the qualifications and disqualification  of a person as a candidate for the National Assembly and continued its reasoning thus:

“N.L.C.D. 255 does not authorize the election of persons who are disqualified for membership of the National Assembly.  Indeed, it is provided under Paragraph 32(1)(d) of the Decree that an election of a candidate can be nullified, if he was, at the time of the election, a person not qualified or a person disqualified for election as a member of the National Assembly”.

If the issue was that simple the reasoning would have been impeccable. The real issue, but unfortunately this was missed by the court, was whether the Legislature could have lawfully designated the qualification disqualification of a person to be a ground for an election petition and thereby clothe the High Court with jurisdiction to enforce, what was primarily a constitutional requirement, against any person who was alleged to have infringed the constitutional provision.  Because by section 4 of Part II of the Transitional Provisions of the Constitution of 1969 which came into force on 22nd August, 1969, Article 71 of the constitution which related to the eligibility of a person to be elected as a member of the National Assembly, was made to apply to the general election.

After the above quoted dictum, the court then proceeded to make certain important observations without really appreciating their significance in the determination of the issue whether the non-compliance with a constitutional requirement which had to be satisfied before a person could become a candidate in an election, was a suitable ground for an election petition.

The Court correctly observed as follows:

“It seems to us that under Article 106 of the constitution there is no restriction whatsoever upon the class of persons who can move the Supreme Court for an enforcement of any of the Provisions of the constitution; neither is there any time limit prescribed for that purpose”.

But, unfortunately the Court ended its reasoning with a statement which contradicted its previous assertions in the same ruling.

This is what the court said:

“We do not, therefore, think that the right to present an election petition under paragraph 27 of N.L.C.D. 255 and the right to apply for enforcement of the provisions of the Constitution are mutually exclusive”. [Emphasis supplied]

It is this dictum which contradicts all that the Court had earlier asserted. The dictum impliedly admits that the conditions relating to the qualification or disqualification of a person to be elected a member of the National Assembly was a constitutional requirement enforceable by the Supreme Court in the exercise of its exclusive original jurisdiction. It also encourages a submission that the High Court has concurrent jurisdiction with the Supreme Court in the enforcement of a constitutional provision; that is Article 71 of the 1969 Constitution. I find this rather illogical and contrary to the Court's own earlier delineation of the scope of the exclusive original jurisdiction of the Supreme Court as including the enforcement of ALL provisions of the Constitution EXCEPT those relating to fundamental human rights which is the exclusive preserve of the High Court.                                      

But as has been pointed out earlier in this ruling, a shared jurisdiction is no longer an exclusive jurisdiction. And the mere fact that the Court in the GBEDEMAH case considered the matter to be within the enforcement jurisdiction of the Supreme Court, which is admittedly exclusive, should have indicated to it that no other Court could lawfully be given jurisdiction over the same matter.  It is inconsistent with the principle of exclusivity of jurisdiction and will lead to an absurdity.  It is submitted that the Court in the GBEDEMAH case gave the wrong reasons for a correct decision.

I could have concluded my opinion at this stage but would now focus my attention on some of the cases cited by Counsel for the Defendant in support of his preliminary objection to our assumption of jurisdiction in this matter. This is what he said:

“Further, and even more substantial, it is the respectful submission of the Applicant that the decision in the GBEDEMAH case should be treated as limited to the peculiar facts of that case since subsequent decisions of Courts in analogous case on jurisdiction have seen this Court declining jurisdiction where the Constitution has specifically vested in a particular Court or tribunal jurisdictions to entertain a specific matter”.

Nana Akufo-Addo then proceeded to cite cases in which this Court is known to have declined jurisdiction; namely, GHANA BAR ASSOCIATION VRS. ATTORNEY-GENERAL & ANOR. WRIT NO. 8/95 dated 15/12/95 (Unreported); TAIT VRS. GHANA AIRWAYS CORPORATION, 2 G & G. 527; NANA YIADOM I VRS.  NANA AMANIAMPONG & ORS. (1981) G.L.R. 3; and EDUSEI VRS. ATTORNEY-GENERAL (1996-97) S.C.G.L.R. 3 etc.

It is a proposition familiar to all lawyers that it is not every thing said in a judgment that is binding.  So that the mere fact that jurisdiction was declined in one case does not make that case an authority for another case in which the Court’s jurisdiction is challenged.  One must discern from the decision the ground on which jurisdiction was declined.  For it is not everything said in a judgment that is binding.  The only binding part of a case is the ratio decidendi; that is the rule of law which the judge had considered as necessary for his decision. SEE BANK OF GHANA v. LABONE WEAVERS ENTERPRISES LTD. (1971) G.L.R.251 which referred to two cases on the issue; namely IN RE HALLETT (1879) 13 Ch. D 696 and OSBORNE V. ROWLETT (1880) 13 Ch. D. 774.

In the HALLETT case Jessel M.R. said:

“The only use of authorities, or decided cases, is the establishment of some principle which the Judge can follow out in deciding the case before Him.”

And in the case of OSBORNE V. ROWLETT (Supra) the same Judge said:

“Now, I have often said, and I repeat it, that the only thing in a Judge’s decision binding as an authority upon a subsequent Judge is the principle upon which the case was decided.”

GHANA BAR ASSOCIATION VRS. ATTORNEY-GENERAL & ANOTHER WRIT NO.8/95 dated 15/12/95 (UNREPORTED)

This was a case in which the Plaintiffs invoked the original jurisdiction of the Supreme Court seeking a declaration that on a true and proper interpretation of Article 2(1)(a) & (b); Article 91(1) & (2); Article 144(1) and Article 128(4) of the Constitution the President should not have nominated and appointed the 2nd Defendant, Mr. Justice I. K. Abban, to the Office of Chief Justice since he is not a person of high moral character and proven integrity.  And that his subsequent appointment upon the advice of the Council of State and with the approval of Parliament was therefore null and void.  The plaintiffs also asked for the cancellation of the 2nd Defendant’s warrant of appointment.  A preliminary objection was raised to our jurisdiction on the ground that the principle of “political question” makes the claim non-justiciable.

In a lead opinion in which my sister and brothers (Mrs. Bamford-Addo, Hayfron-Benjamin and Adjabeng, JJSC) concurred with Wiredu J.S.C. dissenting, I said:

“The appointment of the Chief Justice is vested in the President, Council of State and Parliament, ipso facto the determination of who is a person ‘of high moral character and proven integrity’.  Their decision in this regard is binding on the Courts.  It is important that we show decent respect for the wisdom, integrity and patriotism of the President and Parliament ….  In assuming jurisdiction to adjudicate in the matter, we shall certainly be entering upon policy determinations for which judicially manageable standards are not available.  How do we probe what factors influenced the President, Council of State, and Parliament in nominating, advising and approving the 2nd defendant as the Chief Justice of Ghana?” (Emphasis mine).

I somehow provided the answer in these words:

“The Constitution is silent on who ‘a man of high moral character and proven integrity’ is and what factors to be taken into account in finding such a person for appointment as Chief Justice of Ghana. The framers of the Constitution have deliberately left these matters to the good sense of the President, Council of State and Parliament which personified the sovereign people of Ghana, being their direct representatives. Can we substitute our notion of  ‘a man of high moral character and proven integrity’ for theirs without appearing to be, or actually, appointing the Chief Justice instead of the accredited organs? Shall we not be granting this Court the power to veto the appointment? I do not think the framers of our Constitution intend to anoint and enthrone the Judiciary. The political question principle is one basic virtue to emanate from the concept of the separation of powers. This Court must apply it in an endeavour to find its proper place within the Constitutional structure”.

It is clear that we declined jurisdiction on the grounds that the appointment of the Chief Justice has been textually committed by the Constitution to other organs of government, namely, the Executive and the Legislature and that there are no judicially discoverable and manageable standards for resolving the issue raised by the Plaintiff’s writ. In the instant case the Constitution vests this Court with jurisdiction to enforce all provisions of the Constitution except those relating to the fundamental rights of the individual.

Another ground on which we can be said to have rested our decision was Section 4(1) of the Transitional Provisions which, in the words of Article 299 of the Constitution, “shall have effect notwithstanding anything to the contrary in this Constitution”.

The Section 4(1) provides:

“A Justice of the Supreme Court, the Court of Appeal or the High Court holding office immediately before the coming into force of this Constitution shall continue to hold office as if appointed to that office under this Constitution”.

The implication of the above provision is that all judges of the Superior Courts are deemed to be men “of high moral character and proven integrity”, notwithstanding any provision of the Constitution to the contrary.  I then said:

“As a matter of Constitutional interpretation, therefore, nobody, not even Parliament, could have questioned the qualification, ipso facto, the integrity of Justice I. K. Abban when he was nominated for the post of Chief Justice …. My view is that …. Section 4(1) of the Transitional Provision denies us the jurisdiction to entertain this Writ.  This is in addition to lack of jurisdiction on grounds of non-justiciability coupled with the Court’s lack of jurisdiction to grant the relief the Plaintiff is seeking”.

It can be seen therefore that this case has no relation to the instant one we are considering which involves a breach of a Constitutional provision; that is Article 94(1)(b).

TAIT VRS. GHANA AIRWAYS CORPORATION 2 G & G. 527

This was a case in which the court of Appeal sitting as the Supreme Court under the Transitional provision of the 1969 Constitution held the view that having regard to the pleadings and issues filed in the case, the plaintiffs action was essentially one for wrongful dismissal.  The issues settled by Counsel for both parties were as follows:

“(a) Whether, as from 1st January, 1970, the plaintiff was employed on a month to month basis, or under the contract of service between the parties dated 1st January, 1967.

(b) Whether or not the plaintiff’s dismissal was on the instructions of the Ministry of Transport and Communication.

(c) Who is the proper ‘dismissing authority’ for the post lately occupied by the plaintiff in defendant – corporation’s service.

(d) Whether or not the plaintiff’s dismissal was with ‘just cause’ within the meaning of Article 138(2) of the Constitution.”

In holding that the plaintiff’s claim is essentially one of wrongful dismissal, the Court was of the view that the pleadings disclosed, firstly, the existence of a contract of employment, the terms of which, namely the conditions, rights and liabilities are indispute between the parties; and secondly whether the alleged termination of the contract was lawful or not.  Also, the Court was called upon to decide whether the letter of dismissal came from the appropriate authority and whether the dismissal itself was with “just cause” as provided the articles 138 and 140 of the Constitution.  The Court concluded that the plaintiff’s action did not raise any issue of interpretation or enforcement of the Constitution and so the case did not fall under the purview of article 106 of the Constitution and that what was “just cause” depended on the circumstances of each case.

NANA YIADOM  I V. NANA AMANIAMPONG & ANOTHER

The facts of this case as found in the reports are that the 1st Defendant was the Paramount Chief of Mampong in Ashanti and also a director of the Cocoa Marketing Board. While a director of C.M.B. he was alleged to have indulged in certain financial transactions which attracted adverse comments from the Archer Committee of Inquiry into the affairs of the Cocoa Marketing Board.  The 1st defendant was aggrieved by these findings and sought to have it vacated by Special Tribunal set up to review such cases. However, the special tribunal rather confirmed the findings of the Archer Committee of Inquiry and recommended that the defendant should be disqualified from holding any public office in the country. The plaintiff therefore brought an action in the Supreme Court invoking its original jurisdiction seeking a declaration, inter alia, that the 1st defendant had disqualified himself from continuing in office as a paramount chief or any type of chief. The plaintiff also sought interpretation and enforcement of Articles 161, 177, 181 and section 7(1) of the Transitional Provisions of the 1979 Constitution.

The court dismissed the plaintiff’s claim on a preliminary objection to the jurisdiction of the Court. The Court rested its decision on a number of factors, namely, (a) that the writ sought to remove the 1st defendant as a paramount chief of Mampong and that jurisdiction was vested in the Regional House of Chiefs; (b) although the plaintiff pleaded his case as if interpretation and enforcement jurisdiction of the Supreme Court was being invoked, the issue really was whether the 1st defendant was guilty of such conduct which should attract the customary sanction of destoolment; (c) that no useful purpose would be served by construing those articles relied upon by the plaintiff because article 177 only guaranteed the institution of chieftaincy while article 181 deals with the definition of a chief; that article 161 and Section 7(1) of the transitional provision (both of which gave no rise to interpretation since they were unambiguous) continued in office holders of public office after the Constitution came into effect.

It does appear therefore that the case does not support the contention of the defendant in this case; where he is alleged to be doing an act which is inconsistent with Article 94(1)(b) of the Constitution and we are being invited to use our enforcement jurisdiction in the circumstances to stop the alleged unconstitutional conduct or act.

EDUSEI v. ATTORNEY-GENERAL & ANOTHER (1996-97) SCGLR 3

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Any reliance on the case of EDUSEI VRS. ATTORNEY-GENERAL (1996-97) SCGLR 3 will only be a misapplication of the principles of that case possibly as a result of a misapprehension of the issues involved.  This was a case in which the plaintiff admittedly tried to “invoke the original jurisdiction of this Court in the interpretation and enforcement of articles 17(1)(2) and (3) and 21 (1)(g) of the Constitution".

The majority were agreed that the articles relied on by the plaintiff in support of his case raise no issue of interpretation.  Clause 1 of article 17 guarantees equality before the law; clause 2 guarantees freedom from discrimination and clause 3 explains what the word "discriminate" means in the said article. Both parties agree that as a derivative of the freedom of movement and the right to leave and enter Ghana guaranteed by article 21(1)(g) a citizen is entitled to a passport which the plaintiff is claiming. Although an issue of enforcement was raised by the plaintiff’s claim, the Court held that by the combined effect of articles 33, 130(1) and 140(2) the High Court has exclusive jurisdiction to enforce the fundamental rights of the individual. This decision never said that the High Court can enforce any other provisions of the constitution; only those relating to the fundamental rights — that is provisions under Chapter 5. To rely on this case for a submission that the High Court has exclusive jurisdiction to enforce Article 94 of the Constitution, with all respect, is an unpardonable error.                         

In view of all I have said I will declare section 20(1)(d) of P.N.D.C.L 284 as being unconstitutional as its retention will result in the vesting of an exclusive jurisdiction in the High Court over a matter expressed by the Constitution itself to be within the exclusive original jurisdiction of the Supreme Court. I will rather limit the grounds for an election petition to those factors which vitiate or invalidate an election result because they interfere with the people's freedom and democratic right to choose their representative to Parliament; and not extend it to those primary constitutional requirements which must first be satisfied, and the enforcement of which the Supreme Court has exclusive jurisdiction.

In this case the plaintiff, by his writ and statement of claim, has clearly raised a prima facie case of breach of Article 94(1)(b) of the Constitution by the defendant. And it traumatises me that as custodians of constitutionalism, by declining jurisdiction in this case we have only guaranteed that a possible breach of the Constitution will continue unchecked; one piece of plate may have been removed from the armour of the Constitution to make it vulnerable.  I am of the firm view that our original jurisdiction has been properly invoked in this case and will accordingly overrule the preliminary objection of the defendant and it is hereby overruled.

ACQUAH, JSC:

MY Lords, on 7th December, 1996 the defendant herein, Mr. J.H. Mensah, was elected in a nation-wide Parliamentary election as the member of Parliament for Sunyani East Constituency. He subsequently took his seat in Parliament and became the Minority Leader. Later, two persons from his electoral area filed an election petition at the Sunyani High Court to challenge the validity of his election. It is alleged that the ground for their petition was the same as that of the instant action. However that petition was dismissed as it was filed outside the statutory time limit prescribed in the Representation of People Law 1992 (P.N.D.C.L.284). Thereafter the plaintiff herein claiming to be a citizen of Ghana and a registered voter in the said, Sunyani East Constituency also fired the instant writ, invoking the original jurisdiction of the Supreme Court, for a declaration that:

“1. Under and by virtue of article 94(1)(b) of the Constitution the defendant is not qualified to be a member of Parliament.

2. An injunction restraining the defendant from entering and taking his seat as a member of Parliament as long as he continues to be so disqualified”.

Now article 94(1)(b) of the 1992 Constitution reads:

“94(1) Subject to the provisions of this article, a person shall not be qualified to be a member of Parliament unless ...       

(a)   ………………

(b) he is resident in the Constituency for which he stands as a candidate for election to Parliament or has resided there for a total period of not less than five years out of the ten years immediately preceding, the election for which he stands, or he hails from that constituency”.

In paragraph 2 of his statement of case, the plaintiff contends that the defendant is not qualified in terms of article 94(1)(b) of the 1992 Constitution, because:

“2. The defendant hails from Odumasi in the Sunyani West Constituency and had until less than two years ago lived in exile with the status of a refuge for several years”.

In his defence, the defendant denies that he is disqualified and pleaded inter alia, that the plaintiff’s action is in essence an election petition, the original jurisdiction of which is vested in the High Court and not the Supreme Court. And by way of a preliminary objection, he filed this motion challenging the propriety of the action, and inviting us to decline jurisdiction and to strike out the action. This ruling is in respect of this preliminary objection.                                             

The gravamen of the defendant's preliminary objection, as stated by him, is:

“That notwithstanding the manner in which the plaintiff’s writ and statement of claim are couched, in substance and reality, his action is an election petition, since the reliefs sought are to, and the effect of the reliefs, if granted would be to impugn the validity of the election of the applicant and to disqualify and remove him as a member of Parliament. It is only the High Court, as a Court of first instance which has jurisdiction to hear such a matter, The original jurisdiction of this Court has therefore been improperly invoked".

Arguing the objection in his written submission, the defendant refers to article 99(1)(a) and (2) of the 1992 Constitution which gives original jurisdiction to the High Court to determine the validity of a person's election to Parliament, and Part IV of P.N.D.C.L. 284 which sets out grounds for challenging the election of any person, and the procedure by which such challenge may be made. He points out that among the grounds for challenging an election result set out in section 20(1) of P.N.D.C.L. 284 is that of subsection 1(d) namely:

"that the candidate was at the time of his election not a person qualified or a person disqualified for election".

The defendant further states that the essence of plaintiff’s action as set out in his writ and statement of case, is that:

“under and by virtue of article 94(1)(b) of the Constitution the defendant is not qualified to be a member of Parliament”.

And this is the very ground in section 20(1)(d) of PNDCL, 284. But then, by the combined effect of article 99(1)(a) and (2) of the 1992 Constitution, and P.N.D.C.L. 284 particularly Sections 16(1) and (2), and 20 (a)(d) thereof, any challenge to the election to Parliament of a person on the ground that he is not so qualified under the Constitution, must and by law, only be by way of an election petition in the High Court and in accordance with laid down procedure. Accordingly, the defendant argues, the plaintiff cannot by-pass the express provisions of the Constitution and P.N.D.C.L. 284 by invoking the original jurisdiction of the Supreme Court, when in substance and in reality his action is no more than an election petition.

The defendant then turns to the case of Gbedemah vrs: Awoonor-Williams (1969) 2 G & G 438 heavily relied on by the plaintiff, and indeed on all fours with the plaintiff’s action, and attempts to distinguish it by contending that the defendant therein did not dispute the allegation upon which the action was founded, and therefore all that the Court had to do was to enforce the relevant provision of the then Constitution. He says that in the instant case, he seriously disputes the allegation made against him.  He further submits that Gbedemah vrs. Awoonor-Williams (Supra) should be confined to the particular facts of that case since subsequent decisions of courts in analogues cases on jurisdiction have declined jurisdiction where the Constitution has specifically vested in a particular Court or Tribunal jurisdiction to entertain a specific matter. He refers to cases like Tait vrs. Ghana Airways Corporation (1970) 2 G & G. 527; Ghana Bar Association vrs. Attorney-General and Anor. S.C. 5th December 1995 (Unreported); Nana Yiadom I vrs: Nana Amaniampong & Ors. (1981) GLR 3; and Republic vrs: High Court, Accra, ex-parte Odonkorleye (1984-86) 2 GLR 148.

The defendant then submits that:

“Where in a Constitution or statute, general provision is made for the exercise of general jurisdiction and in that same constitution or statute specific provision is made for the exercise of jurisdiction in a particular case, the legal inference is that the specific provision is meant to delimit the reach of the provision vesting general jurisdiction”.

He also refers to the practice direction of this Court issued on 15th June, 1981, reported in (1981) GLR. 1 SC and submits that if even it is held that the Supreme Court had concurrent jurisdiction with the High Court in these matters, paragraph 6 of the said practice direction requires that the action be instituted at the High Court and not the Supreme Court. However since under P.N.D.C.L 284, the time limit for initiating election petitions is 21 days from the date of the Gazette publication of the results, and since that time had long elapsed, the plaintiff cannot institute such an action. And he must therefore not be permitted to circumvent the provisions of P.N.D.C.L 284 by the instant action. He finally urged us to hold that our jurisdiction had improperly been invoked.

In opposition to these arguments, the plaintiff makes a brief response. He submits that the defendant's objection misconceives the true import and meaning of articles 94 and 99 of the 1992 Constitution. For whereas article 94 deals with the qualifications and eligibility of persons seeking election to Parliament, article 99 is concerned with the electoral process itself, that is, the manner in which persons are elected. And that since the qualifications and eligibility of persons seeking election to Parliament as spelt out in article 94, are constitutional matters the Supreme Court is competently suited to adjudicate on them. He refers to articles 2 and 130(1) of 1992 Constitution and contends that even if his action does not raise an issue of interpretation, it raises an issue of enforcement which the Supreme Court has jurisdiction to deal with. Relying heavily on Gbedemah vrs. Awoonor-Williams (supra) he invites us to follow that decisions and dismiss the preliminary objection.

To begin with, I find it difficult to appreciate the distinction the plaintiff draws between article 94 and article 99 of the 1992 Constitution. It is true that article 94 deals with the qualifications and eligibility of persons seeking to be elected to Parliament, and that the provisions of that article are mandatory and therefore ought to be complied with. At the same time, article 99, also a Constitutional provision, deals with the forum for challenging the validity of the election of persons who had entered Parliament in violation of these qualifications and eligibility. And like article 94, the provisions of article 99 are also mandatory and ought to be complied with. What legal justification therefore has the plaintiff got in failing to comply with the mandatory provisions of article 99(1)? But first let me examine the arguments of the defendant/applicant.

Now I concede that the effect of granting the plaintiff’s reliefs would, be to impugn the validity of the defendant's election to Parliament and thereby disqualify and remove him as a member of Parliament, but this in my view does not necessarily mean or imply that his action is in essence an election petition. For if a number of remedies or procedures lead to the same result, that does not mean that each and every such remedy or procedure is in essence the same as the other. For example, if a High Court gives a decision which is admittedly a nullity, a person affected thereby may adopt one of many remedies to have the void decision vacated. He may appeal against it to the Court of Appeal. He may invoke the supervisory jurisdiction of the Supreme Court to have it quashed on certiorari. He may apply to that Court for a review of that decision. He may invoke the inherent jurisdiction of that High Court to set aside its own void decision in accordance with the well known principle in Mosi vrs: Bagyina (1963) 1 GLR 337. And finally he may even issue a writ of summons at the High Court for a declaration that the decision is void.

Each of these five remedies leads to the same result but it would be wrong to say that each procedure is in essence the other. What is important is that in each case, the procedure adopted must be sanctioned by law, and the Court to which the remedy lies must have jurisdiction in the subject-matter to grant the relief sought. If the court has no such jurisdiction, then irrespective of how the relief is framed, the court has to decline jurisdiction and dismiss the action.  This is indeed the rationale underlying the decisions in GBA vrs. Attorney-General & Anor. (Supra), Nana Yiadom I vrs: Nana Amaniampong & Ors. (supra); and Republic vrs: High Court, Accra, ex-parte Odonkorleye (supra).  In each such case the action was dismissed not because of the way the relief was couched but because the court had no jurisdiction in the subject-matter of the claim.

Now in our jurisprudence, an election petition is a particular form of action to enquire into the validity of a person's election to Parliament, initiated in accordance with article 99(1)(a) of the 1992 Constitution and Part IV of P.N.D.C.L. 284. Its essential features are:—

1. Original jurisdiction is vested only in the High Court.

2. May be initiated only by one or more of the following:

(a)  A person who lawfully voted or had a right to vote at the election to which the petition relates.

(b) A person claiming to have had a right to be elected at the election.

(c) A person alleging himself to have been a candidate at the election, and

(d) A person claiming to have had a right to be nominated as a candidate at the election.

3. Must be initiated within a period of 21 days from the date of the Gazette publication of the results in respect of which the petition relates. And in the case of a petition alleging corruption, especially payment of money or other reward, the petition must be initiated within a period of 21 days from the date of the alleged payment.

In each situation, the petitioner is to deposit ¢20,000 as security for cost within the same 21 days time limit. Otherwise the petition is invalid.

And this 21 days time limit within which to initiate the petition cannot be extended.

Of course if a person adopts a procedure or remedy other than what is provided in article 99(1)(a) of the 1992 Constitution and Part IV of P.N.D.C.L.284 to challenge the validity of a person's election to Parliament, the pertinent issue for determination would be whether such an action would be competent having regard to the language of section 16(1) of P.N.D.C.L. 284. The section reads:

“16(1) The validity of an election to parliament may be questioned only by a petition brought under this Part". (emphasis mine).

In the instant case, the plaintiff contends that his action is not an election petition but one of an enforcement of the provisions of the Constitution. In effect what the plaintiff is saying is that once the defendant is not qualified in terms of article 94(1)(b) and nevertheless continues to be a member of Parliament, the defendant is thereby doing an act inconsistent with this article 94(1)(b). And he, the plaintiff, is thus entitled to invoke the original jurisdiction of the Supreme Court under articles 2(1) and 130(1) for a declaration to this effect. And in invoking this jurisdiction, the Supreme Court will then be in a position to exercise its enforcement jurisdiction.

It is indeed such line of reasoning which precisely informed the Court in Gbedemah vrs. Awoonor-Williams (supra), in assuming jurisdiction in that case.

At page 440 of the report, the Court reasoned as follows:

“The pith of the plaintiff’s claim ... is that on 5th September, 1969, the defendant took his seat as a member of the National Assembly notwithstanding the fact that he was not qualified so to do by virtue of article 71(2)(b) (ii) and (D) of the Constitution, and that the defendant intends to continue to sit in the said National Assembly.  If the matter rests here, then prima facie there has been an infringement of the Constitution, and an alleged threat to continue such infringement. This would constitute a mischief, and it would become the inescapable duty of the Supreme Court to suppress it by enforcing the Constitution”.

The obvious question mark punctuating such a reasoning is whether the 1969 Constitution provided no specific means of suppressing this particular mischief because as the court itself held in the early part of that ruling, once, article 28(1) of the 1969 Constitution provided a specific remedy at the High Court for redressing infringements of the human rights provisions, the Supreme Court's enforcements jurisdiction cannot be resorted to in the enforcement of the human rights provisions. Thus it does not follow that an infringement of a Constitutional provisions would automatically call in aid the Supreme Court's enforcement jurisdiction, especially where there is a specific Constitutional remedy for that infringement.

Now the decision in Gbedemah vrs: Awoonor-Williams (supra) laid down a number of principles some of which have repeatedly been cited, approved and relied on by the previous and present courts. Its principle defining the scope of the Supreme Court's exclusive original jurisdiction, and the one explaining when an issue of interpretation arises, are two such approved principles. But that Court's assumption of jurisdiction on grounds that it was exercising its enforcement jurisdiction, in the face of article 76(1)(a) of the 1969 Constitution, has to my mind, not come up for reconsideration. And having regard to the arguments of the defendant in the instant case, there is need to reappraise the soundness of that court's reliance on its enforcement jurisdiction.

Now the facts, which are well-known, in Gbedemah vrs: Awoonor-Williams (supra) were that Mr. Awoonor-Williams was one of the defeated candidates for the Keta Constituency in the 1969 General Elections in which Mr. Gbedemah won. Thereafter Mr. Awoonor-Williams filed a writ of summons against Mr. Gbedemah at the Supreme Court, claiming

(i) a declaration that by virtue of article 71(2)(b)(ii) and (d) of the 1969 Constitution, Mr. Gbedemah was not qualified to be a member of the National Assembly, and

(ii) An injunction restraining him from taking his seat in the Assembly.

Mr. Gbedemah filed his defence and counter-claimed, and thereafter filed a motion seeking an order striking out the plaintiff’s claim because by article 76 (1)(a) of the 1969 constitution and by N.L.C.D. 255 paragraph 32(1)(d) jurisdiction to determine the matters raised in the action was given to the High Court. He also sought an order for the Attorney-General to be joined as a plaintiff.   

Now article 76(1) of the 1969 Constitution which was virtually in the same language as article 99(1) of the 1992 Constitution, reads:

“76(1) The High Court of Justice shall have jurisdiction to hear and determining any question whether

(a) Any person has been validly elected as a member of the National Assembly or the seat of any member has become vacant; or

(b) Any person has been validly elected as speaker of the Assembly or, having been elected has vacated the office speaker”.

The Representation of the People Decree 1968 (N.L.C.D.255) like P.N.D.C.L.284 set out grounds for challenging the election of any person, and the procedure by which such challenge could be made.

In refusing to strike out Mr. Awoonor-Williams action, the Court held that a person could resort to both the enforcement jurisdiction of the Supreme Court under articles 2(1) and 106(1) of the 1969 Constitution, and an election petition at the High Court under and article 76(1)(a) of the 1969 Constitution and N.L.C.D. 255. The court held that these two remedies (i.e. enforcement jurisdiction and the election petition) were not in the alternative because, in their view, they were not mutually exclusive. At page 441, the court delivered itself as follows:—

“We do not therefore think that the right to present an election petition under paragraph 27 of N.L.C.D, 255 and the right to apply for enforcement of the provisions of the Constitution are mutually exclusive”.

Thus a person could apply for both reliefs. And this was indeed what happened in that case. For at the hearing of the motion, the plaintiff had in addition to his writ at the Supreme Court also filed an election petition at the High Court. And his election petition was exhibited by Mr. Gbedemah in his motion to strike out the summons.

Now once the plaintiff had the right as held by the Court, to apply for an enforcement of the provisions of the Constitution under articles 2(1) and 106(1) of the 1969 Constitution, and at the same time had a right under article 76(1)(a) of the 1969 Constitution to present an election petition in accordance with N.L.C.D.255, my understanding of the law, in those circumstances was that the plaintiff could elect which of the two remedies to pursue, and that he could not pursue both remedies as he did. For the principle is quite well-settled that an individual who has a civil remedy under two or more enactments, or two such remedies under the same statute, has a right to elect which remedy to pursue but cannot pursue both. Thus at page 441, paragraph 666 of Halsbury's Laws of England, 3rd edition, it is stated:—

“An individual who has a civil remedy under two or more statutes, or under a statute and at common law, must elect to pursue only one of these remedies". (emphasis mine).

See also the case of Re: Masters, Governors and Trustees of Bedford Charity (1819) 3 Swan 470 at 518.

But where a specific remedy has been provided in a statute to cater for the resolution of disputes in respect of a particular obligation or matter, then, the legal position is that it is that particular remedy and not the general remedy which must be resorted to in disputes involving the particular obligation or matter. For in such circumstances, the option to elect between the general remedy and that particular remedy does not rise at all. Accordingly in Maxwell on Interpretation of Statutes, 12th edition at page 335, the law is therein stated:

“Where the statute creating the obligation contained in the same section or passage a specific means of enforcing it on other method could normally be resorted to for that purpose”.

And In Doe d. Bishop of Rochester vrs: Bridges (1831)1 B & Ad. 847 the court said at page 859:

“Where an Act creates an obligation and enforces the performance in a specific manner we take it to be a general rule that performance cannot be enforced in any other manner”.

Again in Stevens vrs: Jeacocke (1848) 11 QB.731 at 741 the court said:

“It is a rule of law that an action will not lie for the infringement of a right created by statute, where another specific remedy for infringement is provided by the same statute”.

And in Wilkinson vrs: Barking Corporation (1948) 1 KB. 721 at 724 Asquith LJ, made the same point when he said:

“It is undoubtedly good law that where a statute creates a right and in plain language gives a specific remedy or appoints a specific Tribunal for its enforcement, a party seeking to enforce that right must resort to this remedy or this Tribunal and not to others”.

The above rule of law was also referred to with approval by Lord Kinnear in Butler (or Black) vrs: Fife Coal Co. Ltd. (1912) AC. 149 at 165; and by Lord Diplock in Lonrho Ltd. vrs. Shell Petroleum Ltd. (1981) AC. 173 at 185.

Now in Gbedemah vrs: Awoonor-Williams (supra) apart from the Supreme Court’s general jurisdiction to enforce the provisions of the 1969 Constitution under articles 2(1) and 106 thereof, that very Constitution also had article 76(1)(a) in the very part wherein article 71(2)(b)(ii) and (d) was, as the remedy for redressing disputes relating to the matters specified in that very part, which matter include the qualifications and eligibility of members of the National Assembly. And both articles 71 and 76 were under this very part, headed “Composition of Parliament” in Chapter seven.  Thus from the principle stated above, the appropriate remedy for the resolution of Mr. Awoonor-Williams complaint was what was provided in article 76(1)(a) and not through the Supreme Court's general jurisdiction of enforcement. For the same 1969 Constitution which gave the Supreme Court that general jurisdiction, also vested the High Court with original jurisdiction to deal specifically with challenges to the validity of a person's election to the National Assembly. And since both are constitutional provisions, both deserve to be accorded their due compliance.

But the legal position apart, it is evidently clear from the Memorandum on the proposals for a Constitution for Ghana 1968, that the framers of the 1969. Constitution, vested original jurisdiction in such disputes in the High Court and not in the Supreme Court.      After pondering over the appropriate body to determine disputes involving the validity of elections to National Assembly, the Commission finally at page 115, paragraph 427 proposed:

“The problem is one of the settlement of disputes, an essentially judicial function .... Consequently we proposed that the High Court of Justice shall have jurisdiction to hear and determine any question whether any person has been validity elected as a member of the National Assembly or the seat of any member has become vacant”.

This proposal of the Commission was accepted. Hence article 76(1) of the 1969, Constitution.  I am therefore fully satisfied that in so far as the Court in Gbedemah vrs: Awoonor-Williams (supra) relied on its enforcement jurisdiction when article 76(1)(a) of the 1969 Constitution and N.L.C.D. 255 provided a specific remedy for resolving that dispute, the court, with respect, erred. Its assumption of jurisdiction violated well-settled principles, and further negatived the clear intention of the framers of the 1969 Constitution — an intention manifested in article 76(1) thereof.

But in fairness to the court in Gbedemah vrs: Awoonor-Williams (supra) I must point out that there were certain factors which might have indirectly influenced it in assuming such jurisdiction. For the defendant did not only file a defence, but also put in a counter-claim seeking certain declarations from the Supreme Court.

Again even in his motion to strike out the plaintiff’s action, the defendant sought an order joining the Attorney-General of Ghana as a plaintiff in the action for the determination of the matters raised by him in his counter-claim.

The above factors perhaps justify the defendant in the instant case, in contending that the decision in Gbedemah vrs: Awoonor-Williams (supra) should be confined to its peculiar facts and must not therefore be said to have laid down a general principle that one can resort to the Supreme Court's enforcement jurisdiction to challenge the validity of a person's election to Parliament. To this, I entirely agree with the defendant.

Now as I have already stated, article 76(1) of the 1969 Constitution reappears as article 99(1) of the 1992 Constitution. And like article 76(1) of the 1969 Constitution, article 99(1) is in the same part as article 94(1)(b), dealing with the Composition of Parliament in Chapter 10 of the 1992 Constitution. This article 99(1)(a) reads:

“99(1) The High Court shall have jurisdiction to hear and determine any question whether ...

(a)  a person has been validly elected as a member of Parliament or the seat of a member has become vacant;”

It is quite clear from the language of the above article 99(1)(a) that the 1992 Constitution clearly provides a specific forum to determine disputes involving the validity of person’s election to Parliament.   And the grounds for such challenges and the procedure by which such challenges may be made, are also set out in Part IV of PNDCL. 284.

Now from the principle set out earlier on, it is evidently clear that the plaintiff herein cannot ignore the provisions of articles 99(1)(a) of the 1992 Constitution and Part IV of P.N.D.C.L 284, and resort to the enforcement jurisdiction of the Supreme Court under articles 2(1) and 130(1) of the 1992 Constitution. For once the Constitution itself specifically provides a remedy under article 99(1) for resolving challenges to the validity of a person's election to Parliament, it is that remedy which must be pursued. Because if it was the intention of the framers of the Constitution to let the general enforcement jurisdiction of the Supreme Court be resorted to on the violation of every provision of the Constitution, they would not have provided specific remedy for specific matters, like that of article 99(1). This conclusion is in accord with two previous decisions of this Court in Abel Edusel vrs. Attorney-General & Anor. (1996-97) SCGLR 1, and 22nd April 1998 (unreported). In both decisions, this court by a majority held in effect that because article 33(1) of the 1992 Constitution  provided a specific remedy for redressing violations of human rights provisions, the Supreme Court's enforcement jurisdiction could not be resorted to in the enforcement of human rights provisions. At pages 57 to 58 of the law report, Kpegah, JSC said:

“ . . . our enforcement jurisdiction does not extend to those areas of the Constitution — that is the enforcement of individual rights. That function is specifically assigned to the High Court". 

Adjabeng, JSC after quoting article 33(1)(2) and (3)also said at page 61:

“... obviously these elaborate provisions, assigning to the High Court this important duty, have not been made for nothing”.

By parity of reasoning, once article 99(1) also provides a specific remedy at the High Court for determining challenges to the validity of a person's election to Parliament, the Supreme Court's enforcement jurisdiction cannot likewise be resorted to in such challenges.

It is of paramount importance that we maintain some consistency in the interpretation of the various provisions of the Constitution, and where we find it necessary to depart from a previous decision, to do so on stated reasons. Otherwise we shall, by our interpretation, render the Constitution incoherent and thereby disturb its smooth functioning.

Finally it must be noted that unlike an election petition which can only be initiated by specific person within a specific time limit, an action for an enforcement of the provisions of the Constitution may be initiated by any person at any time. For there is no time limit within which an enforcement action may be initiated.  Neither is it restricted to specified persons. Thus if the Supreme Court's enforcement jurisdiction is held to be appropriate in challenging the validity of a person's election to Parliament, this will imply that a person from one corner of the country can resort to enforcement jurisdiction to challenge the validity of a person's election in another remote corner of the country. And he can do this even years after the said election. No one desires such an absurd situation. Challenges to the validity of a person's election must be initiated in time. Hence the wisdom involved in the provisions of article 99(1)(a) of the 1992 Constitution and Part IV of P.N.D.C.L. 284.

In the end, I will uphold the preliminary objection, decline jurisdiction and strike out the plaintiff’s action, as I hereby do.

ATUGUBA, J.S.C.:

The facts of this case have been amply related in the rulings that have preceded mine and I would therefore refer only to such of them as are necessary for my opinion.

The Plaintiff’s claim as per his writ before this Court is as follows:

“1. A declaration that

1. Under and by virtue of Article 94(1)(b), of the Constitution the Defendant is not qualified to be a member of Parliament.

2. An injunction restraining the Defendant from entering and taking his seat as a member of Parliament as long as he continues to be so disqualified”.

The Defendant, per his Counsel, Nana Akufo Addo has challenged the jurisdiction of this Court to entertain the Plaintiff’s action on the ground “that, notwithstanding the manner in which the Plaintiff’s writ and statement of claim are couched, in substance and reality, his action is an election petition, since the reliefs sought are to, and the effect of the reliefs, if granted, would be to impugn the validity of the election of the Applicant and to disqualify and remove him as a member of Parliament.  It is only the High Court, as a Court of first instance, which has jurisdiction to hear such a matter. The original jurisdiction of this Court has therefore been improperly invoked”.

To this objection the Plaintiff, through his Counsel, Mr. Kwaku Baah replied that, “the essence of the Plaintiff’s case is that the Defendant is not qualified under and by virtue of Article 94(1)(b) of the Constitution” and that “his writ certainly raises an issue of the enforcement of the provisions of the Constitution by the Supreme Court namely Article 94(1)(b)”.

The Plaintiff relies on the case of Gbedemah vrs. Awoonor-Williams (1969) 2 G&G 438, C.A. which is very similar to the present case and indeed it is noticeable that the plaintiff has closely patterned his writ and statement of case along those in that case. 

The plaintiff does not appear to dispute the Defendant's contention that if his action is in substance an election petition this Court would lack jurisdiction over it but concentrates on the point that his action relates to the qualifications of persons offering themselves for election to Parliament under Article 94 and not to the actual electoral processes, which he contends, are the concern of Article 99.

The question therefore is whether the action involves the actual electoral processes which article 99 deals with and is substantially an election matter or is one relating to only the qualifications for election to Parliament. In other words is this action for the enforcement of the Constitution by reason of article 94 or it is an election petition, in substance.

In the similar case of Gbedemah Vrs. Awoonor-Williams, supra, the Court of Appeal, sitting as the Supreme Court (to use a popular, simple terminology), stated per Azu Crabbe, J.A. (as he then was) at p.440 that:

“The pith of the plaintiff’s claim as expressed in paragraph (8) of his statement of claim is that on 5th September, 1969 the defendant took his seat as a Member of the National Assembly, notwithstanding the fact that he was not qualified so to do by virtue of article 71(2)(b)(ii) and (d) of the Constitution, and that the defendant intends to continue to sit in the said National Assembly.  If the matter rests here, then prima facie there has been an infringement. This would constitute a mischief, and it would become the inescapable duty of the Supreme Court to suppress it by enforcing the Constitution”.

Pausing here for a moment one would notice that the essence or “pith” of the plaintiff’s claim, as couched in the Gbedemah case was as therein expressed by the Court. But the matter did not end there as the Court, with the greatest respect, thought it did. The pivot of the matter was that “the defendant took his seat as a member of the National Assembly” even though “he was not qualified so to do”.  In other words what made his disqualification objectionable to the plaintiff was the taking of the seat in the National Assembly, inspite of it. How then could a person take his seat in the National Assembly? Article 71(2)(b)(ii) and (d) of the 1969 Constitution which disqualified a person who was damnified by a Commission of Inquiry did not stand alone. Even if that provision and all other Constitutional disabilities were inapplicable to the defendant, article 71(1)(b) operatively commanded that he “stands as a candidate for election to the National Assembly” if he nursed the hope of entering there as a Member. (emphasis supplied). If he did stand election, to enter the National Assembly, he must come within article 70 of the said 1969 Constitution  which provided as follows:

“70. The National Assembly shall consist of not less than one hundred and forty and not more than one hundred and fifty elected members”. (emphasis supplied).

And the Transitional Provisions of the 1969 Constitution show glaringly that article 71 itself was deeply involved in the Parliamentary elections.

They provided as follows:

“6(1). An election of members of the National Assembly shall be held within thirty days after the coming into force of this Constitution.

x         x          x            x

(3)  The elections shall be held in one hundred and forty Constituencies . . . . .

(4) Subject to the foregoing provisions articles 33, 34 and 71 of this Constitution shall apply to the election”. (emphasis supplied).

It is thus clear from all these excerpts from the 1969 Constitution that the provisions of article 71 concerning qualifications for membership of the National Assembly were inextricably bound to the actual electoral process and had significance only in terms of the actual electoral process.

It is crystal clear that under those provisions no cause of action could lie against anyone for failing to meet the qualifications for membership of Parliament unless he took a step in the electoral process itself.

Contemporaneously with the case of Gbedemah vrs. Awoonor-Williams supra, the case of LUGUTERAH VRS. INTERIM ELECTORAL COMMISSIONER (1971) 1 G.L.R. 109 was decided. This case demonstrates vividly the inseparable link between the qualifications for Parliament and the actual electoral process. In that case the plaintiff was the runner-up in elections in the Chiana-Paga Constituency of the then Upper Region of Ghana. His victorious opponent, Mr. Tedam was unseated from Parliament in an action invoking the jurisdiction of the Court of Appeal, sitting as the Supreme Court in its original jurisdiction, on the grounds that he did not satisfy some provisions of the notorious article 71 of the 1969 Constitution, [see OSMAN VRS. TEDAM (1970) 2 G&G 466 C.A.]. Pursuant to that decision the plaintiff claimed a declaration under article 76(1) of the 1969 Constitution (same as article 99(1) of the 1992 Constitution) that since his unseated opponent was not competent to take part in the said election he (the plaintiff) ought to be declared the winner of the said election; he having polled the second highest number of votes and that the defendant, the then Interim Electoral Commissioner should be restrained from holding any bye-election pending the determination of his said suit.

Kingsley-Nyinah, J. (as he then was) painstakingly explained the grave and inseparable electoral consequences that attended the disqualification of the unseated victor, Mr. Tedam, from Parliament. At page 113 the learned judge said:

“With regard to these results, let me straight-away correct a misconception on the part of the appellant's Counsel. He has here submitted that the results of the election were “declared” by the respondent as the Interim Electoral Commissioner. That is not correct. The results of the election were avouched not by the respondent, or any person or  working under him; they were explicitly proclaimed to the whole country by the electorate of the Chiana-Paga Constituency.  All the respondent did, following the election, was that he notified for general information those results which in effect were the verdict of that electoral district and constituency”.  (emphasis supplied).

Continuing the learned judge said:

“In the course of its judgment in the case of Osman vrs. Tedam, the Court of Appeal, sitting as the Supreme Court, made the following pronouncement touching the central issues whether Mr. C.K. Tedam was disqualified by paragraph 17 of the Political Parties Decree, 1969 (N.L.C.D. 345), as amended by the Political Parties (Amendment) Decree, 1969 (N.L.C.D. 347): “The effect of article 71(2)(k) and Decrees Nos. 345 and 347 is that the defendant has no right to be a Member of Parliament”.

“In other words, the nomination and subsequent victory of Mr. Tedam were both inherently tainted by reason of his disqualification under the relevant decree. All his successful votes have therefore fallen and with that fall the popular will of the electorate has also been declared nullified and of no legal constitutional effect whatsoever.  In my opinion the decision of the Court of Appeal (sitting as the Supreme Court) must necessarily affect the standing of all the other three candidates irrespective of the size of their votes at the last poll.  It is my further view that the entire election results of 29th August, 1969 for the Chiana-Paga Constituency  must stand upset”.

Further at page 114 the learned judge continued to demonstrate the dire effects of a successful challenge based on the disqualification of a member of Parliament on the actual electoral process thus:

“The right of every citizen of this country to vote, if duly qualified so to do, is enshrined

in our Constitution. Such a citizen is possessed of the single personal legislative power of

exercising his franchise to send to the National Assembly a representative of his own free choice.  Where, therefore, a Constituency puts forward one successful candidate, he is acknowledged as having the decisive backing and authority of his Constituency. The authority which the Chiana-Paga electorate purported to give to Mr. Tedam having been nullified, they cannot be denied their right of investing a proper candidate with their full sovereignty.  The present National Assembly is representative only of 40 Constituencies, each having one seat. Let me here refer to article 70 of the Constitution, which stipulates as follows, "the National Assembly shall consist of not less than one hundred and forty and not more than one hundred and fifty elected members”.  That number must be maintained so that no constituency in the country is ever at any time, and for any unduly long period, left without proper representation. I refer also to article 87(4), which abhorring a vacuum in the membership of the Assembly, provides that, "Whenever any, other vacancy occurs in the National Assembly a bye-election shall be held within thirty days of the vacancy occurring”.

Reference must also be made to paragraph 34(2) of the Representation of the People Decree, 1968 (N.L.C.D. 255), which makes provision for the holding of a fresh election. There is also article 76(1)(a) which empowers the High Court to hear and determine any question whether, "any person has been validly elected as a member of the National Assembly or the seat of any member has become vacant". It is clear from all this that whoever takes his seat in our present Parliament must first have been duly elected. An election, in the context of the Constitution, is the unpredictable process whereby a body of people in a constituency, by means of the secret ballot freely choose their own representatives to the National Assembly. The exercise of this, their elective franchise, must be full, voluntary and unhampered, to clothe the election with acceptable validity. Such an election may be a full-scale and national or general one; or it may be a local or bye-election.

Paragraph 44(1) of the Representation of the People Decree, 1968, (N.L.C.D. 255), defines a bye-election as an election to fill a vacancy occurring otherwise than on the dissolution of the Assembly.

“The only occasion where a member of Parliament can feel safe because the trying and hazardous cup of election is taken away from him is when he stands unopposed. Then, even though he does not face the mysterious ballot box, yet he must nevertheless have filed his nomination papers, and done all that our election laws and regulations demand that he does.” (emphasis supplied).

At page 116 the learned judge summed up the consequence of a disqualification of a member of Parliament thus:

“It must be remembered that by the Supreme Court, decision in the Osman case, Mr C.K. Tedam never contested any election to have lost it because his disqualification tainted and affect the whole of the election to make it invalid.” (emphasis supplied).

He reiterated that the inescapable consequence of that situation, is a bye-election.

I am satisfied that the Court in Gbedemah vrs. Awoonor-Williams did not consider the necessary and proximate consequence of a disqualification of a member of Parliament on the actual electoral process as demonstrated by the exquisite exposition of Kingsley-Nyinah, J. (as he then was). I am satisfied that had the Court done so it would have seen that the pith of the plaintiff’s case was an electoral petition not one for the enforcement of the Constitution. That being so, it is clear that the subsequent similar cases that blazed the trail of the decision in Gbedemah Vrs. Awoonor-Williams, supra, namely OSMAN VRS. TEDAM (1970) 2 G&G 466, OSMAN VRS. KALEO (1970) 2 G&G 572 and OSMAN VRS. DARKO (1970) 2 G&G 465, all decided by the Court of Appeal sitting as the Supreme Court on the disqualifications for membership of Parliament under the notorious article 71 of the 1969 Constitution, were premised, with the greatest respect, on the unexplored theme that the pith of the claims was the enforcement of the Constitution.

When pressed with the submission that the matter was essentially an election matter for the High Court the Court in Gbedemah Vrs. Awoonor-Williams reasoned thus:

“It seems to us that under article 106 of the Constitution there is no restriction whatsoever upon the class of persons who can move the Supreme Court for an enforcement of any of the provisions of the Constitution; neither is there any time limit for initiating proceedings for that purpose. We do not therefore, think that the right to present an election petition under paragraph 27 of N.L.C.D. 255 and the right to apply for enforcement of the provisions of the Constitution are mutually exclusive".

In our view, all that section 6(4) of Part II of the Transitional Provisions scheduled to the constitution has done is to supplement the grounds of disqualification in paragraph 6 of N.L.C.D. 255, and to enable a petitioner in an election petition to allege, if he wishes, any of the matters in article 74 (sic) as a ground for avoiding an election to the first Parliament under the Constitution. Section 6(4) does not in anyway derogate from the provisions of article 71. We, therefore, hold that the Supreme Court has jurisdiction to entertain the plaintiff’s action. Accordingly, we overrule the objection to jurisdiction”.

It must be said that this line of reasoning has some support from the case of RE ELECTION OF FIRST PRESIDENT: APPIAH VRS. ATTORNEY-GENERAL (1970) 2 G&G 530 C.A. where the Court of Appeal sitting as the Supreme Court per Bannerman Ag. C.J. said:

“It is well to note, at the outset, that if a person wishes to challenge the validity of the election of a President on grounds other than the specific grounds of qualification or interpretation of the Constitution in respect of which, in the case of the election of the first President, exclusive jurisdiction is vested in this Court of Appeal, then the proper Court in which to pursue the matter would be the Supreme Court under either article 2(1) or article 42 of the Constitution”.

It is pertinent to note that the 1969 Constitution, like the 1992 Constitution, made a separate provision for the questioning of the validity of the election of the President under article 42 (similar to article 64 of the 1992 Constitution).

With the greatest respect, since the enforcement jurisdiction of the Supreme Court under articles 2 and 106 of the 1969 Constitution (similar to articles 2 and 130 of the 1992 Constitution), read together, was exclusive of all other Courts, except for the jurisdiction of the High Court in the enforcement of the fundamental human rights it could not be said that that enforcement jurisdiction of the Supreme Court and the jurisdiction of the High Court in an election petition were not mutually exclusive. That plainly contradicted the express and mandatory provisions of the 1969 Constitution to the contrary.

That being so it was compelling that the Court should have ascertained whether the case was essentially one for the enforcement of the Constitution or was an election petition. Since if it was held to be one or the other the respective enforcement jurisdiction of the Supreme Court and the election jurisdiction of the High Court stood to be excluded one way or the other accordingly, not so much because one is special and the other general but because the two jurisdictions per force of Constitutional provisions are commanded to stand exclusive of each other.

The test for determining into which jurisdiction a suit falls is one of antiquity. It is, what is the real question to be decided in the action no matter the form in which it is couched.

Thus in ARTHUR VRS. SIKA (1960) G.L.R. 34 at 36 Adumua-Bossman, J. (as he then was) said:

“It has been held that, whatever the form of the suit or claim if the real issue is one properly cognisable by a Tribunal, the parties must be referred thereto”.

By dint of that principle, Adumua-Bossman, J. in BENYI VRS AMO (1959) G.L.R. 49 held that though the claim in that case appeared to be a clear claim to the estate of a deceased person it was in reality an ordinary action relating to the ownership of property. At page 94 he quoted the dictum of Lord Cohen, delivering the advice of the Privy Council in Vanderpuye Vrs. Botchway 2 WALR 16 at 21 that:

“In order to determine into which category a particular suit falls, the Court must apply the test of what is the real issue between the parties, and not look only at the wording of the plaint”.               

Nana Akufo-Addo has admirably assembled the decisions of TAIT VRS. GHANA AIRWAYS CORPORATION, (1970) 2 G&G 527, NANA YIADOM I VRS. NANA AMANIAMPONG & ORS.(1981) G.L.R.3, REPUBLIC VRS. HIGH COURT, ACCRA, EXPARTE ODONKORTEY (1984-86) 2 G.L.R.148 and GHANA BAR ASSOCIATION VRS. THE ATTORNEY-GENERAL & ANOR. (1995) 2 G.S.C.J. 39, which all proclaim this test. In GHANA BAR ASSOCIATION VRS. THE ATTORNEY-GENFRAL & ANOR, supra, Bamford-Addo, J.S.C. restated the principle succinctly thus:

“In deciding the issue of jurisdiction matters to take into consideration include the statute which invests jurisdiction as well as the true nature of the claim having regard to the pleadings, issues and reliefs sought or the actual effect of the reliefs regardless of the words used or the manner in which the claim and reliefs are couched”. (emphasis supplied).

I am satisfied therefore from all the foregoing that if the Court in Gbedemah Vrs. Awoonor-Williams had ascertained the real nature of the claim or its true effect it would have held that it was essentially an election petition for the High Court and not one for the enforcement of the Constitution and also if it had directed its mind to the exclusive nature of the Supreme Court's original jurisdiction it would have held that the two jurisdictions are mutually exclusive.

I would add that a statute could create two or more special jurisdictions and therefore the true salutary test for ascertaining the jurisdiction of a Court is what I have set out supra. Thus in MIDLAND BANK LTD. VRS. STAMPS (1978) 3 All ER 1 Donaldson, J. said at page 3:

“The bank is without doubt claiming payment of moneys secured by a mortgage of real property and the action is thus a mortgage action to which Ord 88 applies. But the action is also a ‘commercial action' within the definition contained in RSC Ord 72, r.1(2), being a cause relating to banking. Two specialist Courts thus have grounds for claiming or declining jurisdiction. As it seems to me, I have to consider whether the dispute is primarily a banking dispute or a mortgage dispute.  In the present instance it is primarily a banking dispute although questions as to the conduct of a receiver appointed by the bank may be raised by counterclaim”. (emphasis supplied).

It is self-evident that the Constitutional and other Statutory provisions that fell to be construed in the Gbedemah Vrs. Awoonor-Williams case are in pari materia with those involved in the present suit. It is obvious therefore that what I have said supra about them applies mutatis mutandis to the present case.

By way of emphasis however I would refer to article 2(1) of the Transitional Provisions of the 1992 Constitution, which is as follows:

“2(1).  Notwithstanding anything in the Constitution the persons duly elected as members of Parliament under the law in force immediately before the coming into force of this Constitution, shall be taken to have been duly elected members of Parliament for the purposes of this Constitution”. (emphasis supplied).

It is therefore clear that the causa causans of membership of Parliament is a person's electoral victory and that an action to unseat a member of Parliament is in essence an action impeaching his election to Parliament. This issubstantially supported by TUFFUOR VRS. ATTORNEY-GENERAL (1980) G.L.R. 637 where the Court of Appeal sitting as the Supreme Court held at page 661:

“Applying the definition of the word “deemed” to section 1(1) of the Transitional Provisions to the Constitution it means that though the First President was not appointed under the Constitution he shall for all purposes exercise all the functions of the President as if he had been so appointed under the Constitution. But for this provision he would have had to stand for fresh elections. It is the same meaning which attaches to the provision in section 2(1) of the transitional provisions relating to a member of Parliament elected before the coming into force of the Constitution.  It is by virtue of this provision that a member of Parliament is considered as having been elected under the Constitution when in fact he had not been elected”. (emphasis supplied).

It is plain that the transitional provisions of the 1979 Constitution which were thus construed in the Tuffuor case are almost identical with those of the 1992 Constitution, set out supra.

These latter transitional provisions were clearly designed to satisfy the Constitutional requirement in the case of members of Parliament, in article 93(1) of the 1992 Constitution, which provides that:

“93(1). There shall be a Parliament of Ghana which shall consist of not less than one hundred and forty elected members”. (emphasis supplied).

In the face of this the 1992 Constitution, like its predecessors will be greatly shocked at a contention that an action seeking to unseat a member of Parliament has no relationship with the electoral process itself, even though it has itself recognised that relationship and has expressly satisfied it by the transitional provisions ratifying both the Presidential and Parliamentary elections that preceded its coming into force, for the purposes of that Constitution.

But the defendant is his own authority for his contention that the present action is essentially an election petition and not otherwise. In NYAME VRS. MENSAH (1980) G.L.R. 338 an originating summons was brought before the High Court, Sunyani, to determine whether the defendant therein, Joseph Henry Mensah (as he then was) and still is, was disqualified under S.M.C.D. 216 from contesting the impending Parliamentary elections. His Counsel contended that the Electoral Commission had no right to reject his nomination papers even though he was disqualified.  Hayfron, J. (of blessed memory) held at page 34 that:

“It appears to me that S.M.C.D. 216 in stating that certain persons were “disqualified from being elected” means that those persons are disqualified from the election”.

The argument that the Electoral Commission could not refuse to accept the nomination papers of a disqualified person under S.M.C.D. 216 is to me unattractive.  In Luguterah Vrs. Interim Electoral Commissioner (1971) 1 G.L.R. 109, Kingsley-Nyinah, J. (as he then was) found that Mr. Tedam was disqualified under the Political Parties (Amendment) Decree, 1969 N.L.C.D. 347.  His Lordship said at page 113:

“... the nomination and subsequent victory of Tedam were both inherently tainted by reason of his disqualification under the relevant decree.  All his successful votes have therefore fallen and with that fall the popular will of the electorate has also been declared nullified and of no legal constitutional effect whatsoever .... It is my further view that the entire election results of 29th August, 1969 for the Chiana-Paga Constituency must stand upset”.

The argument here as I understand it is that this action is premature and therefore this Court should apply “a wait and see rule” which has been the philosophy of post-election petitions. The plaintiffs in this case did not apply that rule. The reason as I see is that that rule would have the effect of causing the plaintiffs to spend time and money to campaign for one election and then if Mr. Joseph Henry Mensah is elected, spend more time and money in having him unseated; after which they would have to spend more time and money in campaigning all over again. This no doubt will enure to their financial and physical detriment. As I remarked during argument, it appears to me that the effect of the expression “disqualified from being elected” is to provide a remedy in the nature of a quia timet injunction to prevent the consequences of an election which is bound to be nullified.

I conclude that the effect of S.M.C.D. 216 is that the defendant has no right to be elected as a member of Parliament and should therefore be prevented from being elected, i.e. from standing for election to Parliament. The effective way to prevent him from doing so is to have his name removed from the list of candidates for election in the Sunyani Constituency.  In the result, I find that upon the true construction of S.M.C.D 216, Joseph Henry Mensah is disqualified from filing nomination papers as a candidate for Sunyani Constituency for the forthcoming Parliamentary elections and his filing of such papers is a nullity”. (emphasis supplied).

Thus the defendant has by his own precedent demonstrated how the qualification requirements for membership to Parliament directly affect and concern the electoral process itself.

The plaintiff has also demonstrated by his own pleadings that his case is essentially concerned with the electoral process itself contrary to his contentions. He unavoidably, from the nature of the case, had to plead in paragraphs 3-5 of his statement of case as follows:

“3. On the 7th December, 1996 the defendant was elected the member of Parliament for the Sunyani East Constituency aforesaid.

4. At the time of the said election the defendant was not qualified and competent to become a member of Parliament by virtue of Article 9(1)(b) (sic) of the Constitution. (emphasis supplied).

5. The defendant on 7th January, 1997 took his seat as a member of Parliament notwithstanding the fact that he is not qualified to do so because he does not hail from the Constituency and has not fulfilled the residential requirement mandated by the Constitution".

It is clear from the above that the pith of the plaintiff’s claim is that the defendant's electoral victory is not wholesome and this is what the High Court's jurisdiction in article 99 is solely concerned with. It provides:

“99(1). The High Court shall have jurisdiction to hear and determine any question whether —

(a)  a person has been validly elected as a member of Parliament or the seat of a member has become vacant. . . .

(2). A person aggrieved by the determination of the High Court under this article may appeal to the Court of Appeal".

The Representation of the People Law, 1992 (P.N.D.C.L. 284) provides that the kindred jurisdiction of the High Court thereunder shall, in effect be comprehensively exclusive, see section 16 thereof .  I say nothing of that.

From all the foregoing I am satisfied that from a consideration of the relevant Constitutional provisions, other Statutory provisions and their history, the common law and the pleadings in this case, the plaintiff’s action invoking the original jurisdiction of this Court is misdirected as the same is primarily an election petition which is cognisable by the High Court only as an original action.  It does not involve any of the well known components of the original jurisdiction of this Court.

My predecessors, beginning with Gbedemah Vrs. Awoonor-Williams, supra, per Azu Crabbe, J.A., dealt with very difficult teething Constitutional issues with such characteristic masterly judicial craftsmanship as to strike anyone trying to scrutinise his judgment, in terrorem. But our heritage must make those minor adjustments which the fallibility of humanity must necessarily entail, but the credit is not ours; it is theirs.

I also therefore uphold the defendant's preliminary objection to the jurisdiction of this Court to entertain this suit as an original action and dismiss the same.

COUNSEL

Mr. Kwaku Baah for the Plaintiff/Respondent

Nana Akufo Addo for the Defendant/Applicant