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RULING
MRS. JOYCE BAMFORD-ADDO, J.S.C.:
The Plaintiff in this case filed
a Writ and accompanying
Statement of Case in this court
for:
i. A declaration that the
decision by 1st Defendant to put
forward 2nd and 3rd Defendants
as candidates of 1st Defendant
in the Parliamentary elections
of year 2000 for Asante Akyem
North and Bosomtwe
Constituencies is inconsistent
with and in contravention of the
Constitution, in particular
Article 94(3) thereof and is
accordingly null and void and of
no effect;
ii. An order of perpetual
injunction restraining 1st
Defendant from putting forward
2nd and 3rd Defendants as its
Parliamentary candidates in the
2000 election in so for as they
are ineligible to be members of
Parliament;
iii. An order of perpetual
injunction restraining 2nd and
3rd Defendants from standing as
parliamentary candidates in the
2000 election in so far as they
are ineligible to be members of
Parliament.
iv. Such other orders as this
court may seem meet”.
The gist of the Plaintiff’s case
is that a publication appeared
in the State owned newspaper
“The Ghanaian Times of 6th June
2000 at p. 10 thereof to the
effect that 2nd and 3rd
Defendants are Civil Servants
working at the Ministries of
Finance, and Mines and Energy
respectively and that 1st
Defendant is reported to have
decided to approve their
nomination as parliamentary
candidates in the November 2000
Election for the Asante Akyem
North and Bosomtwe
constituencies and that they
were actively campaigning as
such. It is to be noted that in
June this year the nomination
exercise of Parliamentary
candidates had not even
commenced. It is the case of the
Plaintiff, that by virtue of
Article 94(3)(b) a member of the
Civil Service is not eligible to
be a member of Parliament and
therefore the approval by the
1st Defendant for the future
nomination of the 2nd and 3rd
Defendants as Parliamentary
candidates, is a gross and
patent violation of the
Constitution in Particular
Article 94(3)(b) therefore and
is accordingly null and void and
of no effect.
But the approval to the future
nomination is really a mere
intent and I fail to see how an
intention to do something in the
future without more, can be
equated to the performance of an
“act” which could be relied on
as a basis for charging person
with breach of the constitution.
Article 2(1)(b) requires the
doing of something—an “act”
which is inconsistent with the
Constitution before action can
be taken against the Defendant.
In
“Article 2(1)(b) A person who
alleges that
(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.”
As can be perceived it is the
act of Defendant not his
intention which is the
prerequisite to the invocation
of a constitutional action under
Article 2(1)(b) of the
Constitution. Therefore the
Plaintiff would have no “cause
of action” against the Defendant
who has done nothing unlawful or
unconstitutional on 8th June
2000, and under such
circumstance the action would be
dismissed as premature since the
court would have no jurisdiction
over such a matter where there
is no cause of action. “Cause of
action” as defined according to
Halsburys Law of England 3rd
Edition Vol. 1 p.6 par. 9 is
this:
“The popular meaning of the
expression “cause of action” is
that particular act on the part
of the defendant which gives the
plaintiff his cause of complaint
Jackson v. Spittal (1870) L.R. 5
C. p 542 ... Strictly speaking
“every fact which is material to
be proved to entitle the
plaintiff to succeed, every fact
which the defendant would have a
right to traverse Cook v. Gill
(1873) L.R.8 CP 107 and see Read
v. Brown (1888) 22 QB.D. 128
C.A. Wherein Lord Esher M.R.
defined a “cause of action” as
“every fact which it would be
necessary for the Plaintiff to
prove if traversed, in order to
support his right to the
judgment of the Court”
In this present case the fact to
be proved in order to obtain
judgment, by Plaintiff from the
Court is proof of the existence
of an “act” or the doing of
something by Defendant which is
inconsistent with the
Constitution. The factual
situation at the time of the
filing of Plaintiff’s writ is
that there was no “act or
omission” as defined in section
32 of the Interpretation Act
1960 C.A. 4, attributable to
defendants, which would amount
to a contravention of the
constitution. The intention of
1st Defendant to nominate 2nd
and 3rd Defendants in the future
is not an act but only an
intention which is not
justiciable, nor does a mere
intent contravene the
Constitution. For this reason
Plaintiffs on 8th June 2000 had
no “cause of action” to enable
them to sue Defendants. See
Kennedy v. Thomas (1894) 2 QB.
759 where it was Held
“that when payment of a bill of
exchange is refused by the
acceptor at any time on the last
day of grace, the holder though
he is entitled at once to give
notice of dishonour to the
drawer and the indorsees has no
cause of action against either
the acceptor or the other
parties to the bill until the
expiration of that day.
An action brought by the holder
against the acceptor on the last
day of grace must be dismissed
as premature”.
Wells v. Giles 2 Gale 209
approved and followed.
Furthermore it is settled that,
the existence of a subsequent
fact would not alter the
character of a premature writ
filed before a cause of action
had actually arisen and accrued
to Plaintiff. In the Attorney
General v. Avon Corporation
(1863) E. R. 782 j 9 L. T. 187
Lord Justice Turner in his
dictum stated as follows:
“Now I take it to be a well
settled rule of court that where
there has been no title to sue
at the time of filing an
original bill or information, a
decree cannot be founded upon a
right of suit subsequently
acquired and brought forward by
a supplementary bill. The
substratum falling the super
structure falls also, and I
think this rule must apply not
only in cases where the title to
sue in respect of the whole
matter of the suit is acquired
subsequently to the filing of
the original bill but also in
cases where the title to sue in
respect of any part of the
matter of the suit is so
acquired, for the principle
would seem to be this, that
there must be a right of suit
when the suit is commenced—and a
supplemental bill is not
commenced but the continuance of
the suit. If therefore the case
rested upon this ground alone I
should think that the
declaration contained in this
decree and the inquiry founded
upon it could not be
maintained.”
Therefore the subsequent change
in the factual situation, namely
the subsequent nomination of the
2nd and 3rd Defendants would not
affect the incompetence of the
original writ filed before a
cause of action had arisen and
accrued to the plaintiffs. The
fact remains that the writ was
invalid as filed prematurely and
the court has no jurisdiction
over such a matter. But the fate
of this case does not rest on
this point alone. The claim of
the Plaintiff in relief (1) is
for
“ a declaration that the
decision by 1st Defendant to put
forward 2nd and 3rd Defendants
as candidates of 1st Defendant
in Parliamentary elections of
2000 for Asante Akyem North and
Bosomtwe Constituencies is
inconsistent with and in
contravention of the
constitution in particular
Article 94(3) (b) thereof and is
accordingly null and void and of
no effect.”
It is apparent that Plaintiff is
equating intention with
actionable “act” which is quite
absurd. Because a mere intention
alone without any accompanied
act or omission cannot be an act
which is capable of being
declared “null and void and of
no effect”.
In the case of the enforcement
of the operative parts on the
constitution the Defendants must
be found to have done something
which is inconsistent with a
particular enforceable provision
of the constitution. But Article
94(3) (b) is not enforceable per
se since it only sets out the
qualification or eligibility of
a Member of Parliament. But
Article 94(3) (b) when
considered together by the High
Court with the relevant
provisions of the Representation
of the Peoples Law 1992 (PNDCL
284) and the Public Elections
Regulations 1996 (C.I. 15) in an
election petition, would
depending on the result of such
trial, be enforced indirectly
through the order made by the
court, such as an order
nullifying an election on ground
of disqualification of a person
who is ineligible to be a member
of Parliament.
An election petition however can
only be dealt with by the High
Court, which has the
constitutional jurisdiction over
such a case.
According to Article 99(1)(a)
“The High Court shall have
jurisdiction to hear and
determine any question whether a
person has been validly elected
as a member of Parliament or the
seat of a member has become
vacant.” (Underscoring mine).
The provision of this Article
was interpreted by the Supreme
in the case of Yeboah v. J.H.
Mensah (1998-99) SC GLR p.492
Court which held that after an
election had been held an
election petition contesting the
validity of same lies to the
High Court which alone has
jurisdiction to entertain such
an election petition and not by
resort to the enforcement
jurisdiction of the Supreme
Court. In the above mentioned
case it was held that:
“(1) the High Court and not the
Supreme Court was the proper
forum under Article 99(1)(a) of
the 1992 Constitution, which had
provided for a specific remedy
at the High Court for
determining challenges to the
validity of a person's election
to Parliament, and not resort to
the enforcement jurisdiction of
the Supreme Court under Article
2(1) and 130(1) of the
Constitution, Edusei v.
Attorney-General (1996-97) SC
GLR.1 and on review (1998-99)
SC. GLR followed, Gbedemah v.
Awoonor-Williams (1970) 2 G & G
438 SC criticised”.
(ii) 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 persued. Because
if it was the intention of the
framers of the Constitution to
let the General enforcement
jurisdiction of this Court to be
resorted on the violation of
every provision of the
Constitution, they would not
have provided specific remedy
for specific matters like
Article 99(1). This conclusion
is in accord with two previous
decisions of this Court in the
same case reported as Edusei v.
Attorney-General (1996-97) SC
GLR 1. And on review in
(1998-99) SC GLR 753. In both
decision, 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.”
Nana Akufo-Addo opposing the
Defendant’s preliminary
objection sought to distinguish
the J.H. Mensah case supra from
this present one. According to
him J.H. Mensah's case supra was
not relevant here since, that
was an election petition
presented after an election had
already been held, whereas in
the case before us, no election
had as yet taken place. He
submitted that the Plaintiff’s
were seeking the enforcement
jurisdiction of the court in
respect of the provisions of
Article 94(3)(b). But this is
exactly what the Supreme Court
in J.H. Mensah’s case decided
against. Relying on that case,
which in my view was properly
decided, it is also my opinion
that it is only the High Court
which has jurisdiction to hear
and determine the validity of an
election on various grounds
including allegation of
qualification or in eligibility
to be a member of Parliament. As
I said earlier this is the
proper procedure to be followed
for the eventual enforcement of
Article 94(3)(b).
Semble the enforcement of
Article 33 which deals with the
Fundamental Human Rights and
Freedoms is given to the High
Court by Articles 33 and 140(2)
see the J.H. Mensah's case in
holding (2) above.
Can an election petition be
brought before or after an
election and what is an election
petition? It is any dispute as
to the validity of a particular
election which is raised on an
election petition and which is
decided by an Election Court
namely the High Court as
provided in Section 16 of PNDCL
284. This section states as
follows:
“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.”
An election petition can be
brought only once after an
election has been held and the
reliefs which could be granted
by the court are specified in
Section 19 of PNDCL 284; to be
referred to later herein.
As to the issue of the
ineligibility of a person
nominated for election as a
member of Parliament, see Rule
7(4) of C.I. 15, which provides
that:
“Nothing in this regulation
shall prevent the validity of a
nomination being questioned on
an election petition.”
This in my opinion means that a
challenged nomination of a
member of Parliament for
election on ground of
ineligibility as in this case,
can be brought up only in an
election petition after an
election, not before, in an
election petition at the High
Court but not in action brought
under our original jurisdiction
for enforcement of the
Constitution particularly
Article 94(3)(b). It is to be
noted that this Article only
sets out the qualification for
parliamentary candidates for
election which election is
handled by only the Electoral
Commission and which issue or
dispute is to be handled in an
election petition at the High
Court.
Under Section 20(1)(d) of PNDCL
284
“S.20 (1) The election of a
candidate shall be declared void
on an election petition if the
High Court is satisfied....
(d) that the candidate was at
the time of his election a
person not qualified or a person
disqualified for election.”
Depending on the decision of
that court the validity or
otherwise of the particular
election would be declared. The
reliefs which could be granted
are stated in Section 19 of
PNDCL 284 are as follows:
“S.19. After hearing an election
petition the High Court may make
any of the following orders:
(a) declare that the election to
which the petition relates is
void;
(b) declare that a candidate
other than the member whose
election is questioned was duly
elected or
(c) dismiss the petition and
declare that the member whose
election is questioned was duly
elected.”
So that if an allegation of
ineligibility under Article
94(3)(b) is made and proved the
High Court would declare that
the election of that particular
person is void. As seen the
nomination cannot be declared
void by the Supreme Court either
before an election or after same
has been held. But this is
exactly what the Plaintiff is
seeking from this court. The
procedure provided in the
Constitution and the law and
regulation dealing with
elections namely PNDCL 284 and
C. I. 15 are used for enforcing
conforming Article 94(3)(b) of
the Constitution. Resort to the
Supreme Court under its
enforcement jurisdiction is not
the proper procedure and as held
in the J.H. Mensah's case the
Supreme Court has no
jurisdiction over such election
petitions, as I have explained
in detail above.
In conclusion this court's
enforcement jurisdiction under
Article 2(1)(b) and 130(1)(a) of
the Constitution was wrongly
invoked in a case such as this.
For all the above reasons, the
preliminary objection of the
Defendants to jurisdiction
should be upheld. Accordingly I
would dismiss this case.
AMPIAH, J.S.C.:
On 15th November, 2000, this
Court by a majority of 3:2 ruled
on a preliminary objection to
jurisdiction that this Court has
no jurisdiction to determine the
issues raised in a Writ of
Summons (Suit No. Writ
No.3/2000) brought by the
Plaintiff. I now proceed to give
my reasons for the dissent.
By a Writ of Summons, the
Plaintiff, the New Patriotic
Party, one of the Political
Parties contesting the 2000
Parliamentary and Presidential
Elections in Ghana, invoked the
original jurisdiction of this
Court under Article 2(1)(b) for
the determination of the
following reliefs:
“1. a declaration that the
decision by the 1st Defendant to
put forward 2nd and 3rd
Defendants as candidates of the
1st Defendant in the
Parliamentary elections of 2000
for Asante Akyem North and
Bosomtwe Constituencies is
inconsistent with and is in
contravention of the
Constitution in particular
Article 94(3)(b) thereof, and is
accordingly null, void and of no
effect;
2. an order of perpetual
injunction restraining 1st
Defendant from putting forward
2nd and 3rd Defendants as its
parliamentary candidates in the
2000 elections in so far as they
are ineligible to be Members of
Parliament;
3. an order of perpetual
injunction restraining 2nd and
3rd Defendants from standing as
parliamentary candidates in the
2000 elections in so far as they
are ineligible to be Members of
Parliament.”
The 1st Defendant is also a
Political Party contesting the
2000 parliamentary and
presidential elections. The 2nd
and 3rd Defendants are alleged
to be candidates proposed by the
1st Defendant for the
parliamentary elections in their
respective constituencies. The
4th Defendant, the applicant
herein is the Chief Legal
Adviser to the Government.
It was the contention of the
applicant that:
“(a) The Plaintiff’s Writ and
Statement of Case disclose no
cause of action premised on
Articles 2(1)(b), 94(3)(b) and
130(1)(a).
(b) The Plaintiff’s Writ and
Statement of Case constitute an
invitation to the court to
speculate whether the 2nd and
3rd Defendants will qualify for
nomination as Parliamentary
candidates when the Electoral
Commission issues a writ of
election and gives notice of
nomination pursuant to the
Public Elections Regulation,
1996 (C.I. 15).
(c) Article 94(3)(b) of the
Constitution is clear and
unambiguous and does not call
for interpretation or
enforcement.
(d) The Plaintiff’s action is
seeking for an advisory opinion
from the Court.”
The Defendant/Respondent opposed
the application. In its
affidavit in opposition to the
application, the Respondent
contended that the action is
competent as it seeks to enforce
Article 94(3)(b) of the
Constitution. Counsel for the
Respondent argued further that:
“The clear intent of the Article
is to preserve, within the
context of a multi-party
democracy, the neutrality of the
Public Service, by prohibiting
public officers’ involvement in
partisan political activities.”
He continued,
“this position is reinforced by
Section 26 of the Political
Parties Act, 2000 (Act 574)
which governs the operations of
political parties ... This is a
grave violation of the
Constitution for the 1st
Defendant to put forward 2nd and
3rd Defendants as the
parliamentary candidates for the
2000 elections, and that, the
Supreme Court has full
jurisdiction to deal with this
matter, it being indeed the only
Court with jurisdiction to do
so.”
At the hearing of the
application, it came to light
that —
1. The 2nd Defendant had retired
from the Civil Service.
2. In fact both 2nd and 3rd
Defendants have been nominated
officially as candidates to
contest the 2000 elections at
their Constituencies, namely
Asante Akyem North and Bosomtwe
respectively.
Counsel for the Respondent
informed the Court accordingly
that he did not intend to pursue
the action against the 2nd
Defendant. The 3rd Defendant
however claims that he is not
one of the persons envisaged
under the provisions of Article
94(3)(b) of the Constitution and
that although he is a public
officer, he is eligible to be
elected as a Member of
Parliament. I will therefore
concern myself with the 3rd
Defendant only.
Article 94(3)(b) of the
Constitution provides:
"94(3) A person shall not be
eligible to be a Member of
Parliament if he—
(a) x
x
x x
(b) is a member of the Police
Service, the Prisons Service,
the Legal Service, the Civil
Service, the Audit Service, the
Statistical Service, the Fire
Service, and the Immigration
Service, or the Internal Revenue
Service; or
(c) x
x
x
x x”
Without prejudice to the merits
in the action, some of the
issues that may have to be
determined, if the Court should
hold that it has jurisdiction to
entertain the action, are—
(i) what are the categories of
persons envisaged under Article
94(3)(b) of the Constitution.
Are all public officers
affected?
(ii) from what kind of conduct
must the person categorised
under Article 94(3)(b) refrain?
(iii) what is meant by “active
participation in politics”?
(iv) at what stage of the
election process can one be said
to be actively participating in
politics?
(v) is the active participation
in politics of persons under
Article 94(3)(b) inconsistent
with or in contravention of the
Constitution?
Of course these issues and
others can only be determined by
the Court, if it is properly
seised with the action; that is
to say if it has jurisdiction.
It is wrong for a Court to
proceed to determine the merits
in a case when it has not
satisfied itself that it has
jurisdiction in the matter; such
a conduct may prejudice
subsequent proceedings in the
same matter.
The conduct of public elections
and referenda is vested in an
Electoral Commission by Article
45 of the Constitution. It is
the responsibility of the
Commission by a Constitutional
instrument to make regulations
for the effective performance of
its functions under the
Constitution or any other law,
and in particular, for the
registration of voters, the
conduct of public elections and
referenda, including provision
for voting by proxy—Vide Article
51 of the Constitution. In
pursuance of this power, the
Electoral Commission has made
the Public Elections
Regulations, 1996 (C.I. 15).
Apart from Regulation 7(3) of
C.I. 15 which gives power to the
returning officer to decide on
the validity or otherwise of a
nomination paper, there is no
specific provision in the Public
Elections Regulations, 1996
(C.I. 15) which deals with the
validation or otherwise of a
nomination before or after
elections. Even under Regulation
7(3) of C.I. 15, the returning
officer “shall endorse and sign
on the nomination paper the fact
and the reasons for his
decision, and inform the
Commission accordingly and the
Commission shall refer the
matter with its observation on
it to the Attorney- General”.
One may ask, after this what
next? Of course the validity of
a nomination can be questioned
on an election petition— vide
Regulation 7(4) of C.I. 15
Only the Representation of the
People Law, 1992 (PNDCL 284)
provides a procedure for
challenging elections.
Section 16 of Act 284 provides—
“(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.”
And Section 20(1) of Act 284
provides further—
“20(1) The election of a
candidate shall be declared void
on an election petition, if the
High Court is satisfied —
(a) x
x
x
x
(b) x
x
x
x
(c) x
x
x
x
(d) that the candidate was at
the time of his election a
person not qualified or a person
disqualified for election.” See
also Article 91 of the
Constitution.
The law, as could be seen, gives
exclusive jurisdiction to the
High Court to decide on election
petitions. These petitions can
be brought only after an
election has been held as the
law requires that the “petition
shall be presented within
twenty-one days after the date
of the publication in the
Gazette of the result of the
election to which it relates
except that a petition
questioning an election on an
allegation of corrupt practice
and specifically alleging a
payment of money or other award
to have been made by the person
whose election is questioned or
to have been made on his behalf
to his knowledge, may be
presented within twenty-one days
after the date of the alleged
payment”—vide Section 18(1) of
PNDCL 284.
What happens then to allegations
made prior to the election,
which allegations are not mere
election offences? In the case
of Yeboah vrs. J.H. Mensah (1998
- 99 SC GLR 492), this Court
held inter alia by a majority,
that since the matter related to
events of an election which had
already been conducted, the
proper forum for adjudication
under the law was the High
Court.
That case is therefore
distinguishable from the instant
case where elections are yet to
be conducted.
Has the Plaintiff a cause of
action? That issue can only be
determined where the Court has
jurisdiction to entertain the
matter. In its claim, the
Plaintiff asks for orders of
injunction. As a general rule,
it is premature for the
Plaintiff to come to the Court
for an injunction before a
complete cause of action has
accrued. However if the danger
be substantial and imminent an
injunction will be allowed. In
Ripon (Earl of) vrs. Hobart
(1834) 3 M & K.P. 176 Lord
Brongham observed,
“Proceeding upon practical views
of human affairs, the law will
guard against risks which are so
imminent that no prudent person
would incur them, although they
do not amount to absolute
certainty of damage. Nay, it
will go further, and according
to the same practical and
rational view, and balancing the
magnitude of the evil against
the chances of its occurrence,
it will even provide against a
somewhat less imminent
probability in cases where the
mischief, should it be done,
would be vast and overwhelming.”
The Plaintiff complains of
activities by the Defendants,
which conflict with the
Constitution; a complaint which
in my opinion the plaintiff can
under an action quia timet,
bring to prevent. In paragraph 4
of the Plaintiff’s Statement of
its Case it is averred,
“4. In a publication, dated 6th
June, 2000, of the national
state-owned daily newspaper, the
“Ghanaian Times”, at page 10
thereof, 1st Defendant is
reported to have approved the
nomination of 2nd and 3rd
Defendants as parliamentary
candidates of 1st Defendant in
the elections of 2000 for the
Asante Akyem North and Bosomtwe
constituencies respectively. 2nd
and 3rd Defendants are actively
campaigning as such.”
This has not been denied.
Also Article 288 defines a
“public officer” under Chapter
24 of the Constitution as a
person who holds a ‘public
office’ and, a ‘public office’
includes an office the
emoluments attached to which are
paid directly from the
Consolidated Fund or directly
out of moneys provided by
Parliament and an office in a
public corporation established
entirely out of public funds or
moneys provided by Parliament”
vide Article 295.
Article 286(5) lists certain
persons in public offices. These
include:
(a) The President
(b) The Vice President
(c) The Speaker of Parliament,
the Deputy Speaker and a Member
of Parliament
(d) Ministers of State or Deputy
Ministers
(e) The Chief Justice, Justices
of the Superior Court of
Judicature, etc.
The 3rd Defendant claims to be a
public officer only but not
within the category of persons
mentioned under Article 94(3)(b)
with regard to eligibility to be
Members of Parliament. All the
persons mentioned under Article
94(3)(b) are ‘public officers’
by definition but not all
‘public officers’ are named
under Article 94(3)(b). Applying
the ejusdem generis rule of
interpretation can it be said
that the 3rd Defendant as a
public officer is one of the
officers caught under Article
94(3)(b) and is therefore
precluded from actively
participating in politics? This
calls for interpretation of the
Article. The contention of the
Applicant that Article 94(3)(b)
is clear and does not call for
interpretation, by itself raises
a question of interpretation for
this Court to determine; it
calls for the exercise of this
Court’s interpretative
jurisdiction whether or not
Article 94(3)(b) covers such
persons as the 3rd Defendant. If
the provision is clear the Court
will say so, if not, the Court
will proceed to interpret it.
This can be done only where this
court is seised with
jurisdiction. On the issue of
interpretation also, the
question whether ‘eligible’ is
the same as ‘qualified’ was
raised.
Quite apart from the issue of
interpretation, the question
whether the conduct of the 3rd
Defendant is consistent with or
is in contravention of the
provisions of Article 94(3)(b)
has been raised.
Since the High Court has the
exclusive jurisdiction in
determining election petitions
and the instant action is not an
election petition, where should
an aggrieved person or
complainant go? Must he wait
while the 3rd Defendant
continues with the alleged
offending activities, assuming
the latter’s conduct is
unlawful? I do not consider the
action to be speculative.
Neither is it an attempt to seek
an advisory opinion of the
Court.
Article 2(1) under which the
Plaintiff brought his action
provides:
“2(1) A person who alleges that
(a)
x x
x
(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 for the purpose of such a
declaration, the Supreme Court
“shall make such orders and give
such directives as it may
consider appropriate for giving
effect or enabling effect to be
given, to the declaration so
made”—vide Article 2(29).
And, Article 130(1) of the
Constitution provides
emphatically and in no uncertain
terms that—
“130(1) Subject to the
jurisdiction of the High Court
in the enforcement of the
Fundamental Human Rights and
Freedoms are 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) x
x
x x
This provision goes on to
emphasize that
“Where an issue that relates to
a matter or question referred to
in clause (1) of this article
arises in any proceedings in a
Court other than the Supreme
Court, that Court shall stay the
proceedings and refer the
question of law involved to the
Supreme Court for determination;
and the Court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court.”
It is my considered opinion that
in the particular circumstances
of this matter, the only Court
with jurisdiction to determine
the issues raised, is the
Supreme Court. This Court is
therefore properly seised with
this action. As to the merits,
the Court would have to
determine them after hearing the
case. It was for the above
reasons that I dismissed the
preliminary objection to
jurisdiction.
KPEGAH, J.S.C.:
May I crave indulgence to
digress and preface this ruling
with a personal statement which
I am constrained to make. In an
article entitled “DISSENTS IN
COURTS OF LAST RESORT: TRAGIC
CHOICES?” published in Oxford
Journal of Legal Studies Vol. 2
Issue 2: summer 2000 pp. 221 -
246, John Alder said of
dissenting opinions:
“The knowledge that a dissent
will be published helps to
ensure that all members of the
panel are treated equally, and
that no point of view has been
suppressed. Thus dissent, far
from undermining collegiality,
in this respect reinforces it.
This can be put in the wider
context of support for
majoritarian decision making, as
opposed to unanimity. As Waldron
puts it, ‘given a need for some
sort of collective resolution of
disagreement, majoritarianism is
the mode that is the most
conductive to equality, human
dignity and fairness of
participation. Majority decision
making does not require anyone's
view to be played—down or hushed
up because of the fancied
importance of consensus.”
The learned author commends
dissent because according to him
it “strengthens public
confidence in the judiciary by
helping to sharpen the reasoning
of the majority, ensuring that
decisions are fully considered
and independent and that
individual decision makers are
accountable in the sense that
they are seen to be accepting
the burden of judgment rather
than taking the easy way out and
following others”
A dissenting opinion helps to
focus and clarify our
understanding of the issues.
Apart from the intrinsic value
of a dissent, the reasoning
underlying a decision can
sometimes best be understood in
the light of a contrary view. It
also exposes weakness in the law
so that today's dissent might
become tomorrow's majority or be
adopted by the legislature. Like
the European Court of Human
Rights and the International
Court of Justice dissent is an
integral feature of our system.
It is therefore a matter of
regret that we were not able to
hold a formal conference to
discuss fully our decision in
the YEBOAH VRS. J.H. MENSAH
(1998 - 99) SC GLR 492 which the
Defendants are now relying on to
oust our jurisdiction, while the
plaintiffs tried to distinguish
it. So that either the Plaintiff
or the Defendant is
misapprehending the ratio of the
case raising the need for
clarification. The case
therefore needed a frank and
open discussion in other to
discover the ratio and settle
the law in this area once and
for all. But since this was not
to be, and we had to approach
the case individually, I can
only assume the burden of my own
judgment much as I regret the
non-attendance of conference by
some of us.
On the 6th day of June, 2000 the
“Ghanaian Times”, a national
daily newspaper, carried a news
item in one of its pages to the
effect that the National
Democratic Congress, the ruling
party (hereinafter referred to
as the 1st Defendant), had
approved the nomination of one
Kofi Opoku-Manu a director of
the Ministry of Finance,
(hereinafter referred to as the
2nd Defendant,) as its
parliamentary candidate for the
Asante Akyem North constituency.
The same publication also
alleges that one Joseph Oteng
Adjei a Chief Director of the
Ministry of Mines and Energy,
(hereinafter referred to as the
3rd Defendant) has been
approved as the 1st Defendant's
Parliamentary candidate for the
Bosomtwe Constituency in the
Ashanti Region. Two days after
this publication, the Plaintiff,
the New Patriotic Party took out
a writ in this Court seeking the
following reliefs:
“1. A declaration that the
decision by the 1st Defendant to
put forward 2nd and 3rd
Defendants as candidates of the
1st Defendant in the
parliamentary election of 2000
for Asante Akyem North and
Bosomtwe constituencies is
inconsistent with and in
contravention of the
Constitution in particular
Article 94(3)(b) thereof, and
accordingly null, void and of no
effect.
2. An order of perpetual
injunction restraining 1st
Defendant from putting forward
2nd and 3rd Defendant as its
parliamentary candidate in the
2000 election in so far as they
are ineligible to be members of
Parliament.
3. An order of perpetual
injunction restraining 2nd and
3rd Defendants from standing as
parliamentary candidates in the
2000 elections in so far as they
are ineligible to be members of
Parliament.
4. Such other orders as this
Court may seem meet.”
The Attorney General was joined
as the 4th Defendant. The basis
of the action therefore is that
by the publication in the
“Ghanaian Times” the 1st, 2nd
and 3rd Defendants have done an
ACT in terms of Article 2(1)(b)
of the Constitution which
infringes Article 94(3)(b) of
the said Constitution. This
Article reads:
“(3) A person shall not be
eligible to be a member of
Parliament if he .........
x
x
x x
(b) is a member of the Police
Service, the Prisons Service,
the Armed Forces, the Judicial
Service, the Legal Service, the
Civil Service, the Audit Service
the Parliamentary Service, the
Fire Service, the Customs Excise
and Preventive Service,
Immigration Service, or the
Internal Revenue Service.”
The allegation is that both the
2nd and 3rd Defendants belong to
the Civil Service and their
approval and so-called
nomination is against Article
94(3)(b) of Constitution. This
serious allegation is contained
in paragraph 3-6 of the
statement of case filed by the
Plaintiffs.
It states:
“3. 2nd and 3rd Defendants are
senior civil servants working at
the Ministries of Finance and
Mines & Energy as Chief Director
and Director of Energy
respectively. 4th Defendant is
the principal legal adviser to
the Government, and a statutory
defendant in all constitutional
actions.
4. In a publication, dated 6th
June 2000, of the national
state-owned daily newspaper, the
“Ghanaian Times”, at page 10
thereof, 1st Defendant is
reported to have approved the
nomination of 2nd and 3rd
Defendants as parliamentary
candidates of 1st Defendant in
the elections of 2000 for the
Asante Akyem North and Bosomtwe
Constituencies respectively. 2nd
and 3rd Defendants are actively
campaigning as such.
5. By Article 94(3)(a) of the
Constitution, a member of the
Civil Service is not eligible to
be a Member of Parliament.
6. Plaintiff says that the
approval of 2nd and 3rd
Defendants, who are Civil
Servants, as parliamentary
candidates of 1st Defendant, is
a gross, patent violation of the
Constitution, in particular
Article 94(3)(a) thereof, and is
according null, void and of no
effect.”
The Attorney-General, the 4th
Defendant in his statement of
case does not deny the status of
the 2nd Defendant as a Civil
Servant who therefore is covered
by Article 94(3)(b); he however,
denied that the 3rd Defendant is
so covered, not being a Civil
Servant but Public Officer. In
paragraph 6 - 13 of his
statement of case the 4th
Defendant made some penitent
averments. This is what he
averred in the said paragraphs:
“6. The 4th Defendant says
........ that the nomination of
candidates for parliamentary
elections under the
Constitution, 1992 is governed
by Article 51, section 11 of the
Representation of the People
Law, 1992 (PNDCL 284), and
Regulations 4, 6, 7 and of the
Public Elections Regulations,
1996 (C.I. 15).
7. The 4th Defendant will
contend that the mere
declaration of intent by the 1st
Defendant to nominate 2nd and
3rd Defendants as Parliamentary
Candidates in accordance with
Regulation 4 of the Public
Election Regulations, 1996
(C.1.15) cannot be a violation
of Article 94(3)(b) of the
constitution or any other law.
8. The 4th Defendant says that
the Plaintiff has no cause of
action against the Defendants as
the Electoral Commission has
neither issued a writ of
election to a returning officer
nor issued a notice of election
specifying the day, place and
time of the nomination of
Candidates, and the day when
poll is to be taken for
elections in the year 2000 as
required by Regulations 2 and 3
of the Public Elections
Regulations, 1996 (C.I. 15) The
4th Defendant says that the 1st
Defendant cannot be compelled to
nominate and register the 2nd
and 3rd Defendants as its
parliamentary Candidates for the
Asante Akyem North and Bosomtwe
Constituencies respectively when
the Electoral Commission opens
nominations for parliamentary
candidates in accordance with
law.
10. Consequently the assertion
that the 1st Defendant has
approved the nomination of the
2nd and 3rd Defendants is an
invitation to the Court to
speculate on whom the 1st
Defendant will indeed nominate
when the Electoral Commission
invites nominations for
parliamentary candidates for the
year 2000 elections.
11. The 4th Defendant, contends
that the Plaintiff’s relief for
an order of perpetual injunction
restraining the 2nd and 3rd
Defendants from standing as
Parliamentary Candidates in the
2000 elections is misconceived
as the 2nd and 3rd Defendants
have not offered themselves for
nominations and have not been
nominated as Parliamentary
Candidates as required by
Regulations 4, 6 and 7 of the
Public Elections Regulations,
1996 (C.I. 15)
12. The Defendant says further
that the reliefs for perpetual
injunction against the 1st, 2nd
and 3rd Defendants are an
invitation to the Court to
speculate on the intentions of
1st, 2nd, and 3rd Defendants and
ought to be dismissed in limine.
13. The 4th Defendant maintains
that by virtue of the forgoing
averments this Court has no
jurisdiction to entertain the
Plaintiff’s writ and the
statement of case against
Defendants.”
The 4th Defendant formally filed
a motion asking the Court to
decline jurisdiction and set
aside the plaintiff’s writ and
statement of case for disclosing
no cause of action. It is this
application that is the subject
matter of the present ruling. In
the course of hearing the motion
it came out that the 2nd
Defendant, Mr. Kofi Opoku-Manu,
has resigned from the Civil
Service and filed his nomination
papers to stand for election on
the ticket of the NDC in the
forthcoming elections. The
Plaintiff there and then
withdrew the case against him
but maintained the action
against the 3rd Defendant who
has since filed his nomination
papers and yet still declines to
resign on the ground that he is
not a Civil Servant but a Public
Officer and therefore not
covered by Article 94(3)(b) of
the Constitution.
In arguing his motion, the
learned Deputy Attorney General,
Mr. Martin Amidu urged three
main points upon us. These
points can be summarized as
follows:
(i) On the authority of YEBOAH
VRS. J.H MENSAH (1998-99) SC GLR
492, our enforcement
jurisdiction has been wrongly
invoked in respect of Article
94(3)(b) and that the only way
the Plaintiff’s could seek any
relief is through an election
petition under Article 99(1)(a)
of the Constitution and Part IV
of the Representation of the
Peoples Law, 1992, (PNDCL 284).
(ii) That the writ and the
Plaintiff’s statement of case
disclose no cause of action
against the defendants since the
publication which provoked the
action could at best be
described as a declaration of
intent and nothing more.
(iii) Finally, that the action
is therefore speculative because
no steps could have been taken
in the direction anticipated as
no writ of election had been
issued under regulations 2 and 3
of the Public Elections
Regulations, 1996 (C.I. 15).
Replying, Nana Akufo-Addo,
learned counsel for the
Plaintiff argued that the
enforcement jurisdiction of this
Court has been properly invoked
since it is only the Supreme
Court which can, in exercising
its exclusive original
jurisdiction under Articles
2(1)(b) and 130(1)(a), enforce
the provisions of Article
94(3)(b) of the Constitution. It
would, therefore, be
preposterous, so he submitted,
for any one to suggest that this
court lacks jurisdiction to
enforce any provision of the
Constitution except those
relating to individual rights
which by virtue of Article 33 is
enforceable by the High Court as
a Court of first instance.
Counsel for the Plaintiff
distinguished the J.H. MENSAH
case by submitting that that
case was concerned with an
election petition since
elections had been held before
the action was initiated and the
purpose of the writ was to have
the election of Mr. J. H. Mensah
as the Member of Parliament for
Sunyani East annulled with his
consequent removal from
Parliament.
Therefore, whether our exclusive
original jurisdiction has been
properly invoked or not becomes
central to this case. We cannot
determine the other issues,
namely, whether the writ and
statements of case disclose any
cause of action to enable the
Plaintiff to sue; and whether
the action is speculative or
not, unless we first resolve the
question whether our enforcement
jurisdiction has been properly
invoked. As was pointed out by
my respected sister Mrs.
Bamford-Addo in the case of
GHANA BAR ASSOCIATIONS VRS. THE
ATTORNEY GENERAL & ANOR.
unreported, dated 5th December,
1995 (THE ABBAN CASE):
“The Attorney-General appearing
for the Defendant filed a
statement of defence and
followed it up with a motion
raising certain preliminary
objections including one
objecting to the jurisdiction of
this Court we decided to take
the jurisdictional objection
first being a fundamental issue,
as without jurisdiction the
Court would be precluded from
going into the merits of the
case or taking any further steps
in the matter.”
I am of the view that this case
is a direct invitation to us to
take a second look at our
decision in YEBOAH VRS. J.H.
MENSAH. More so when the learned
Deputy Attorney General
submitted that he was relying on
this case to oust our
jurisdiction. While learned
counsel for the Plaintiff,
though not admitting that the
decision could be wrong, however
submitted that this Court has
exclusive jurisdiction to
enforce the provisions of
Article 94 of the Constitution.
And when asked by a member of
the panel whether the
legislature could cede part of
this enforcement jurisdiction,
which is exclusive, over article
94 and vest same in any other
Court, Counsel replied in the
negative and further agreed that
the legislature would then be
exceeding its legislative
authority. This, to me, appears
to be contrary to the position
taken by the majority, and
rather in line with the minority
view in the J.H. MENSAH case.
I must recall that it was
learned counsel for the
plaintiff who represented the
defendant in the J.H. MENSAH
case and urged this Court to
decline jurisdiction and dismiss
the case against the defendant
because it was an election
petition camouflaged as an
action to enforce Article
94(1)(b) of the Constitution. To
me, therefore, the instant case
is important for the development
of our Constitutional law: if we
should decide that YEBOAH v.
MENSAH had been rightly decided
then, of course, the objection
of the learned Deputy
Attorney-General must be upheld,
unless we can successfully
distinguish it from the instant
case.
In YEBOAH VRS. J. H. MENSAH the
Plaintiff issued a writ invoking
our enforcement jurisdiction
against the defendant who had
been elected as the member of
Parliament for Sunyani East
constituency because he did not
hail from that Constituency and
did not satisfy the residential
requirement imposed by Article
94(1)(b) of the Constitution but
got himself elected as a member
of parliament for that
Constituency contrary to the
said Article 94(1)(b). This
Court in a majority decision
held that the High Court, and
not the Supreme Court, was the
proper forum under Article
99(1)(a) of the Constitution and
PART IV of PNDCL 284 for
determining the plaintiff’s
action, which was, in substance,
an election petition to
challenge the validity of the
defendant's election to
Parliament. And that since a
specific remedy at the High
Court was provided under Article
99(1)(a) for determining
challenges to the validity of a
person’s election to Parliament,
a resort to the enforcement
jurisdiction under Articles
2(1)(b) and 130(1)(a) of the
Constitution was not available
to the plaintiff.
In the present case the same
Counsel whose argument persuaded
this Court to decide the way it
did in the MENSAH case, has now
turned round to invoke our
enforcement jurisdiction, which
he admits, is exclusive to the
Supreme Court, in respect of the
same Article 94; though this
times clause (3)(b) is involved
rather that clause (1)(b) which
featured in the J.H. MENSAH
case. There cannot be a
dichotomy in our enforcement
jurisdiction in respect of any
article in the sense that if an
event occurs after which our
jurisdiction is invoked the
action falls outside our
jurisdiction, but if invoked
before that event then the
article remains within our
enforcement jurisdiction. I
cannot bring myself to
comprehend, let alone accept the
possible view that an action
based upon any provision, of
Article 94 becomes an election
petition, if initiated after an
election, and therefore
cognizable by the High Court
under Article 99(1)(a) of the
Constitution and PART IV of
PNDCL 284. But if the action is
initiated before an election,
like the present case, it is an
action cognizable by the Supreme
Court in the exercise of its
enforcement jurisdiction, which
is exclusive, under Article
2(1)(b) and 130(1)(a) of the
Constitution. Such a dichotomic
definition of our enforcement
jurisdiction will be clearly
inconsistent with the
jurispudential consideration
which underpins the concept of
an exclusive jurisdiction in law
and contrary to one of the most
important principles of the
common law which finds
expression in the Latin maxim
“NIHIL IN LEGE INTOLERABILIUS
EST, EANDEM REM DIVERSO JURE
CENSERI – Nothing in Law is more
intolerable than that like cases
should be decided upon different
constructions of the law. It is
our sacred duty to let the law
speak to all with one voice.
The submission of the learned
Deputy Attorney General that the
decision in YEBOAH VRS. MENSAH
ousts our jurisdiction under
Article 2(1)(b) and 130(1)(a) of
the Constitution should put the
decision back under our judicial
microscope for a detailed
re-examination. I delivered the
dissenting opinion in that case
and held the view that Article
94 of the Constitution, unlike
those provisions on individual
rights, was within our
enforcement jurisdiction under
Articles 2(1)(b) and 130(1)(a)
and no other Court could have
jurisdiction over same since it
would be inconsistent with the
concept of exclusivity of our
enforcement jurisdiction. And in
so far as PNDCL 284 in section
20(1)(d) seeks to indirectly
grant jurisdiction to the High
Court over Article 94, the said
provision was unconstitutional.
Nana Akufo-Addo agrees with this
view when it was put to him by a
member of the court.
In the present ruling, I do not
intend to offer any apology for
my dissenting opinion in the J.
H. MENSAH case. My views have
been adequately stated in the
dissenting opinion. But I only
want to point out one fact,
which may not be clear in the
views I expressed in that case.
It should be noted that Article
99(1)(a) which was used by the
majority to deny the plaintiff
his claim in the J. H. MENSAH
case, does nothing more than to
only confer jurisdiction on the
High Court in an election
petition. The article itself
does not even mention “election
petition” and it is audibly
silent on the grounds for such a
petition.
The Article states:
“99(1) The High Court shall have
jurisdiction to hear and
determine any question whether:
(a) person has been validly
elected as member of
Parliament………”
As pointed out Article 99 of the
Constitutions did not itself
specify the grounds for an
election petition. It has been
left to the Legislature to
determine. This is what PNDCL
284 seeks to achieve through
section 20 in PART IV of the
said law.
Also if Article 99 had been
drafted as follows:
“Notwithstanding Articles
2(1)(b) and 130(1)(a) of this
constitution 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 ...........”
then one could say that our
enforcement jurisdiction in
respect of Article 94 had been
ousted and conferred on the High
Court. So that both the grounds
for an election petition and the
exclusivity of the jurisdiction
of the High Court in such
matters would have been
properly enacted by another law
– PNDCL 284 in Section 20. If in
determining the proper forum for
the enforcement of the provision
of Article 94 of the
Constitution, Article 99(1)(a)
of the Constitution and PART IV
of PNDCL 284, has to be
considered, then one has to
remember that PNDCL 284 is an
existing law, which, in the
words of Article 11(b), must be
“construed with such
modifications, adaptations,
qualification and exceptions
necessary to bring into
conformity with provisions of
this Constitution, or otherwise
to give effect to, or enable
effect to be given to, any
changes effected by this
Constitution,”
Section 20 of PNDCL 284 must, in
my view, be read in such a way
as to give effect to Articles
2(1)(b) and 130(1)(a) since
section 20(1)(d) indirectly
cedes part of our enforcement
jurisdiction in respect of
Article 94 to the High Court,
which to me, is inconsistent
with the exclusivity of our
enforcement jurisdiction and
therefore unconstitutional. If
this view is correct, then the
grounds for an election petition
as stated in section 20(1) can
be said to be ejusdem generis;
that is, factors dealing with
the election process itself and
which can be said to vitiate or
invalidate the election result
itself since such conduct could
be said to have interfered with
the people to freely chose their
representatives. This is why I
still hold the view that it is
not proper for the legislature
to indirectly vest the High
Court with exclusive
jurisdiction over the provisions
of Article 94 by providing in
Section 20(1)(d) of PNDCL 284
that the non-qualification or
disqualification of a person
under Article 94 can be a ground
for an election petition since
these are disabilities which can
never be removed after
twenty-one days after Gazette
notification of the results.
There can not be any limitation
when the breach of the
Constitution is involved.
I have already said I do not
intend to offer any apologies
for my views in the case of
YEBOAH VRS. J. H. MENSAH (supra)
but I want to repeat what I said
when I was considering the
implications of the jurisdiction
of the High Court in an election
petition based on section
20(1)(d) of PNDCL 284.
“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 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 PNDCL 284 which
only 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 or
conduct infringes its
provisions. But the commutative
effect of Sections 16(1)(2) and
20(1)(d) PNDCL 284 is to give
the High Court exclusive
jurisdiction over a cause or
matters 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
PNDCL 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”.
I agree with the submission of
Nana Akufo-Addo, learned counsel
for the plaintiff that Article
94(3)(b), and for that matter
the other provisions of Article
94, fall within our enforcement
jurisdiction under Article
2(1)(b) and 130(1)(a) of the
Constitution and that the
plaintiffs’ writ is cognizable
only by this Court. It follows
without saying, in my humble
view, that for the legislature
to directly or indirectly cede
part of this jurisdiction and
vest same in any other Court
would mean that it has exceeded
the Constitutional limitation
imposed on its legislative
authority. And where, as in this
case, the legislation involved
happens to be an existing law,
we must necessarily construe it
in accordance with Article 11
(6) so as to bring it into
conformity with Articles 2(1)(b)
and 130(1)(a) of the
Constitution, or enable effect
to be given to these articles. I
am therefore of the view that
our enforcement jurisdiction has
been properly invoked in this
case.
The next point I would like to
discuss is whether the
plaintiff’s writ and statement
of case disclose any cause of
action. Litigation, by its very
nature, presupposes the
existence of a dispute between
two persons or parties—one of
whom, the plaintiff, must have
had accrued to him a cause of
action. It is therefore
important that a person
intending to commence an action
in any Court must advert his
mind to certain important and
relevant matters before
initiating his action, or he
will be out of Court. One of
these is that the intending
plaintiff must be certain that
he has capacity, for without
capacity his writ will be a
nullity and void ab initio.
In the case of AKRONG & ANOR
vrs. BULLEY (1965) GLR. 469, the
plaintiff was the mother of a
man negligently killed by a
tipper truck owned by the second
defendant and driven by the
first defendant. The action was
brought under the Fatal Accident
Act 1846-64. In the writ the
Plaintiff described herself as:
“successor and next-of kin.” She
was later given leave to amend
the title of her suit by
prefixing to the words
“successor and next-of-kin” the
words “personal
representatives”. The Plaintiff
did not, however, take letters
of administration till over a
year after she had issued her
writ. Negligence was clearly
established by the evidence. The
defendant argued that as at the
time the action was commenced,
the plaintiff had not taken any
letters of administration and
therefore did not disclose any
legal capacity to sue. The trial
judge overruled the objection.
On appeal, it was held that
since at the time the plaintiff
issued her writ she had not
taken out letters of
administration, she lacked
capacity to sue. Apaloo J.S.C.
(as he then was) said:
"I need hardly say that I
reached this conclusion with no
relish especially as the
plaintiff made out an
unimpeachable case of negligence
against the defendants on the
merits. But the question of
capacity, like the plea of
Limitation, is not concerned
with merits.”
The next consideration that an
intending plaintiff must advert
his mind to, is that the
defendant is the proper person
to sue and that he in fact does
exist in law. As was held in the
case of BENYARKO V. MENSAH
(1992) 2 GLR 404 @ 410 “in this
jurisdiction a person can sue or
be sued only if he is either a
natural person, or a juristic
person.” Although the
non-joinder or misjoinder of a
party cannot defeat an action,
the suing of a non-existent
defendant renders a writ null
and void.
It is equally important that
before initiating an action in
Court the plaintiff ensures that
a cause of action has accrued to
him. Because without a cause of
action in a plaintiff, his
action is likely to be perceived
as vexatious and an abuse of the
process of the Court, and the
writ would be set aside. The
learned Deputy Attorney-General
has invited this Court to set
aside the plaintiff’s writ and
statement of case for not
disclosing a cause of action at
the time the writ was filed.
What then is the meaning of the
term “cause of action”? The term
has been held from the earliest
times to mean every fact, which
is material to be proved to
entitle the plaintiff to
succeed—that is every fact,
which the defendant would have,
the right to traverse. See COOKE
VS. GILL (1873) L.R. 8 C.P. 107.
And in the case SUGDEN VRS.
SUGDEN, (1957) 1 ALL E.R. 300
Lord Denning defined the term
thus:
“Cause of action ... means, I
think, rights which can be
enforced, or liabilities which
can be redressed, by legal
proceedings in the Queen's
Courts”.
Parke, B. In the case of
HERNAMAN VRS. SMITH (1855), l0
Exch. 659 at page 666 said of
the term:
“The term ‘cause of action’
means all those things necessary
to give a right of action,
whether they are to be done by
the plaintiff or a third
person”.
The New Zealand Courts have
defined the term not in any
philosophical language but in a
simple and pragmatic way. One
such case is the case of DILLON
VRS. MACDONALD (1902) 21
N.Z.L.R. 375 where the Court
said:
“In an action for damages for
breach of contract, the cause of
action is the breach of
contact...there is...one class
of cases in which the fact of
damages is necessary and
essential ingredient in the
‘cause of action’--- namely,
actions for torts for causing
damage to person or property not
actionable without special
damage, or until damage is
sustained.”
The importance of a cause of
action accruing to a plaintiff
before he issues his writ will
be appreciated when considered
in terms of the Limitation
Decree 1972 (NRCD 54) and the
jurisdiction of certain Courts.
Thus time begins to run when the
cause of action arises (unless
postponed or revived by reason
of fraud, mistake,
acknowledgment etc.). It is,
therefore, important to
determine the date upon which
the cause of action arises or
accrues to a plaintiff. Also,
the issue of where a cause of
action arises becomes relevant
in respect of inferior Courts
whose jurisdiction is frequently
limited to cases where the cause
of action or some part of it
arises within its jurisdiction.
Accrual of cause of action is
therefore a factor, which
enables a plaintiff to
legitimately invoke a Court's
jurisdiction and ask for a
relief. And it also determines
the type of relief to be asked
for. So that where the cause of
action relates to a breach of a
tenancy agreement one cannot sue
for damages for libel.
The term “cause of action” can
therefore be defined as an
occurrence, which gives right to
an enforceable claim or relief
in law or equity. To enable a
plaintiff to be properly in
Court accrual of a cause of
action in him is a SINE QUA NON,
and as important as he having
capacity to sue. Nobody comes to
court when he has no cause of
action. It is trite learning,
scarcely needing any express
legal authority, that a writ and
a statement of claim which
disclose no cause of action must
be set aside and declared a
nullity by the court.
The problem, therefore, turns on
the answer to the question
whether the plaintiff had a
cause of action when he issued
the writ on 8th June, 2000, that
is to say two days after
Plaintiffs saw the publication
in the “Ghanaian Times”. In
other words, can it be said that
the 1st, 2nd, 3rd Defendant have
done an act in terms of Article
2(1)(b) and 130(1)(a) of the
Constitution to enable our
enforcement jurisdiction to be
invoked in the circumstances
disclosed in the writ and
statement of plaintiffs’ case.
It must be said, in passing,
that in our jurisdiction the law
does not sanction the mere
declaration of intent. At what
point in time, therefore, can a
person who is not qualified, or
is disqualified under Article 94
be said to have done an “act”
which infringes the said Article
to give a citizen the right to
invoke our enforcement
jurisdiction?
It is not disputed that when the
writ was issued the Electoral
Commission itself had not taken
any steps towards inviting the
registration of candidate. No
writ of election had been issued
under regulation 2 of C.I. 15,
followed by the issuing of a
notice of election under
regulation 3 of C.I. 15 Neither
has the 3rd Defendant taken any
steps under regulation 4 of
Public Elections Regulations,
1996 (C.I. 15) towards the
nomination of the 1st and 2nd
Defendants when the present writ
was filed by the plaintiffs. It
is only the intention to do so
that has been expressed.
Regulation 4(1) provides:
“(1) A candidate for election to
Parliament shall be nominated by
a separate nomination paper in
such form as the Commission
shall determine which shall be
delivered in quadruplicate by
the candidate himself or the
person who proposes or seconds
his nomination to the returning
of officer of the Constituency
for which the candidate seeks
election on the day and at the
place specified in the writ
between the hours of nine in the
morning and twelve noon and the
hours of two and five in the
afternoon”.
The proposed candidate must then
submit to the returning officer
a statutory declaration stating
that he is qualified to be and
is not disqualified from being
elected to Parliament and comply
with other conditions imposed in
reg. 6(1)(b) and (c), that is
pay the requires deposit. It is
only when, in the words of reg.
7(1),
“... the nomination paper and
the statutory declaration of a
candidate, are delivered and the
deposit is paid in accordance
with these Regulations, the
candidate shall be considered to
stand nominated, unless proof is
given to the satisfaction of the
returning officer of the
candidate's death, withdrawal,
or disqualification. (Emphasis
supplied)
So that the law itself specifies
when a person can be said to
have been nominated.
And where the returning officer
is satisfied that a candidate is
disqualified or not qualified
from contesting the elections,
he shall so inform the candidate
of the invalidity of his
nomination and certify same on
his nomination papers to the
Electoral Commission who will
refer the matter to the
Attorney-General.
Sub-regulation 3 of CI. 15
states:
“(3) Where the returning officer
decides that a nomination paper
is invalid, after complying with
sub-regulation (2) of this
regulation, he shall endorse and
sign on the nomination paper the
fact and the reasons for his
decision, and inform the
Commission accordingly and the
Commission shall refer the
matter with its observations on
it to the Attorney-General”.
The sub-regulation is silent on
what the Attorney-General must
do in a situation where for
example, a candidate is found to
have violated any of the
provisions of Article 94 of the
Constitution because he is
either not qualified or
disqualified to be a member of
Parliament. The Attorney-General
is the legal conscience of both
the government and the nation,
and has sworn to defend the
Constitution. The Constitution
itself provides that the
Attorney-General “shall be
responsible for the institution
and conduct of all civil cases
on behalf of the state”. I think
this constitutional
responsibility includes the duty
to initiate proceedings under
Article 2(1)(b) and 130(1)(a) of
the Constitution against or any
person whose conduct breaches
any provision and which conduct
has been officially certified to
him. This, of course, should not
derogate from the individual’s
right to also bring an action
under article 2(1)(b) and
130(1)(a) to enforce Article 94
of the Constitution, even after
an election and not through
election petition; especially
when the law regulation of the
nomination of a candidate
declares the nomination of a
person in defence of any of the
provision of Article 94 as
“invalid” and such invalidity be
certified to the Attorney
General. Whether such invalidity
is detected before or after an
election makes no difference in
the legal position; that is to
say if the infringement of any
provision of article 94 is
detected before an election the
Supreme Court has an exclusive
jurisdiction to enforce that
provision of the constitution;
if the breach is detected after
an election, then, the High
Court has jurisdiction through
an election petition This is
clearly absurd and inconsistent
with the principle of
exclusivity of jurisdiction
which learned counsel for the
Plaintiffs Nana Akufo-Addo
himself admits in his submission
before us.
It is not disputed that when the
writ was issued the Electoral
Commission itself had not taken
any steps towards inviting
registration of candidates. No
writ of election had been issued
under regulation 2 of C.I. 15,
followed by the issuing of a
notice of election under
regulation 3 of C.I. 15. In
other words, can it be said that
the 1st, 2nd and 3rd Defendants
have done an act in terms of
Article 2(1)(b) 130(1)(a) of the
Constitution to enable our
enforcement jurisdiction to be
invoked in the circumstances
disclosed in the writ and
statement of plaintiff’s case?
It must be said in passing that
in our jurisdiction the law does
not sanction the mere
declaration of intent. I am of
the view that what provoked this
action was a mere declaration of
intent by the N.D.C to put up as
parliamentary candidates for
Asante Akyem North and Bosomtwe
constituencies the 2nd and 3rd
Defendants respectively. The law
does not punish mere
declarations of intent. To be
amenable to the sanctions of the
law, a person must have at least
taken a decisive step towards
the consumption of his intention
so as to amount to at least an
attempt in law. Or he must have
crossed the rubicon, or at least
passed the stage referred to in
law as “LOCUS POENITENTIAE” Our
constitution speaks of a
sanctioning a person whose “act
or omission is inconsistent
with, or is in contravention of
provisions of the constitution.”
As I have said, the 2nd and 3rd
Defendants had not committed any
act at the time the writ was
issued by the Plaintiff. In
other words the Plaintiff had no
cause of action when they issued
the writ.
But the learned Deputy Attorney
General has admitted in this
Court that as at the time when
argument was being taken in this
motion, the 2nd and 3rd
Defendant had indeed registered
on the tickets of the 1st
Defendant as parliamentary
candidates. The 2nd Defendant
has since resigned his post in
the Civil Service while the 3rd
defendant is still at post
because he claims, as a public
officer, he was not covered by
Article 94(3)(b) of the
constitution. The Plaintiff
therefore withdrew against the
2nd Defendant. What then is the
effect on the writ of the
subsequent registration of the
3rd Defendant as a candidate for
the N.D.C while still retaining
his post in the Public Service.
This, in my view, will depend on
the answer to the question
whether, in the first place, the
writ issued on 8th June, 2000
was a nullity which could be
incurable, or it was only a
defective writ whose defect
could be cured by an amendment.
As was pointed out by HOLROYD
PEARCE L. J in the case of
PONTIN VRS. WOOD (1962) 1 ALL
E.R. 294(a) of 98:
“It is difficult to define
precisely the difference between
that which is a nullity and
cannot therefore be cured by any
amendment of subsequent
proceedings and that which is
defective and can be cured.”
Because if the writ was not a
nullity, but was merely
defective, it would not be right
to set the writ itself aside as
opposed to setting aside the
service of the writ. This is so
since setting aside the writ
itself will destroy the
Plaintiff’s ability to continue,
but merely to set aside the
service will not do so and is of
little use to the Defendant
because the Plaintiff can still
rectify a defective writ and it
will be wrong to set it aside.
See PONTIN VRS. WOOD (supra).
It is trite learning that a
plaintiff cannot come to Court
unless he has a cause of action
or a cause of action has accrued
to him, otherwise he is out of
Court because the writ would
have disclosed no course of
action and hence void. And a
defendant, who is fortunate
enough to have acquired the
benefit of the writ not
disclosing any cause of action
and therefore a nullity, is
entitled to insist upon his
rights.
I have no difficulty in coming
to the conclusion that since
there was no cause of action in
the Plaintiff when he issued the
writ, which I consider to be an
abuse of the process of this
Court, the writ is a nullity and
should be set aside. The court,
has, apart from the rules,
inherent jurisdiction to prevent
abuse of its process. The fact
that a cause of action may have
accrued later cannot, in my
view, resuscitate and
rehabilitate the writ.
Because these proceedings are
indeed a nullity, we are
powerless to help them, since no
amendment can improve that which
is in itself void and of no
effect. See McFoy v. U.A.C
[1962] A.C 152; [1965] 3 All
E.R. 1168 and MOSI v. BAGYINA
[1963] 1 G.L.R. 337 line of
cases. But in the case of
DOLPHINE (No.3) vrs. SPEEDLINE
STEVEDORING [1996 – 97] SCGLR
514 where the appeal was allowed
on grounds that the trial
Circuit Court had no
jurisdiction, the appellate
court however proceeded to
confirm the damages awarded by
the trial Circuit Court. This is
clearly contrary to established
authority and I will not follow
it since you cannot put
something on nothing and expect
it to stand. The fact that a
cause of action might have
accrued to the Plaintiff after
they issued their writ cannot
help a writ, which in law did
not exist in the first case. The
plaintiff took the gauntlet when
none had been thrown down. This
case has confirmed my belief in
the correctness of my dissenting
views expressed in the J.H.
MENSAH case (supra). I am
therefore of the view that our
enforcement jurisdiction has
been properly invoked. My
problem is with the writ
itself—no cause of action had
accrued to the plaintiff when it
issued the writ. These are some
of the reasons why I voted up
holding the preliminary
objection.
ACQUAH, J.S.C.:
My Lords, the issue for
determination in this
application is undoubtedly one
of jurisdiction. For the
Attorney-General's contention is
that this court has no
jurisdiction because the
plaintiff’s writ and statement
of case disclose no cause of
action, that it does not involve
any issue of interpretation,
that it is speculative and
finally that it seeks advisory
opinion. The New Patriotic Party
(NPP) on the other hand, rejects
each of these contentions, and
accordingly urges us to dismiss
the application. But first, the
facts: The NPP filed a writ
invoking the original
jurisdiction of this Court
against the National Democratic
Congress (NDC), Kofi Opoku-Manu
of the Ministry of Finance,
Joseph Obeng-Adjei of the
Ministry of Mines and Energy,
and the Attorney-General as 1st,
2nd, 3rd and 4th defendants
respectively, for:
1. a declaration that the
decision by the 1st defendant to
put forward 2nd and 3rd
defendants as candidates of 1st
defendant in the parliamentary
elections of 2000 for Asante
Akyem North and Bosomtwe
Constituencies is inconsistent
with and in contravention of the
Constitution, in particular
article 94(3)(b) thereof, and is
accordingly null, void and of no
effect;
2. an order of perpetual
injunction restraining 1st
defendant from putting forward
2nd and 3rd defendants as its
parliamentary candidates in the
2000 elections in so far as they
are ineligible to be members of
Parliament.
3. An order of perpetual
injunction restraining 2nd and
3rd defendants from standing as
parliamentary candidates in the
2000 elections in so far as they
are ineligible to be Members of
Parliament.
4. Such other orders as to this
court may seem meet.
In paragraph 4, 5 and 6 of the
accompanying Statement of Case,
the reasons for seeking these
reliefs are set out, as
follows:-
“4. In a publication dated 6th
June, 2000 of the National
State-owned daily newspaper, the
“Ghanaian Times” at page 10
thereof, 1st defendant is
reported to have approved the
nomination of 2nd and 3rd
defendants as parliamentary
candidates of 1st defendant in
the elections of 2000 for Asante
Akyem North and Bosomtwe
Constituencies respectively. 2nd
and 3rd defendants are actively
campaigning as such.
5. By article 94(3)(a) of the
Constitution, a member of the
Civil Service is not eligible to
be a member of parliament.
6. Plaintiff says that the
approval of the 2nd and 3rd
defendants, who are civil
servants, as parliamentary
candidates of 1st defendant is a
gross, patent violation of the
Constitution, in particular
Article 94(3)(a) thereof, and is
accordingly null, void and of no
effect.”
In response to this action, the
Attorney General filed the
instant motion seeking an order
of this court to set aside the
plaintiff’s writ and statements
of case on grounds that this
court lacks jurisdiction in the
matter. Moving the court on the
basis of this motion, the
learned deputy Attorney General,
Mr. Martin Amidu submitted that
the plaintiff’s writ and
statement of case disclose no
cause of action premised on
articles 2(1) (b), 94(3) (b) and
130(1) (a). He argued that
article 94(3) (b) deals simply
with membership of Parliament
and not election or Candidacy to
that House. And that this
article becomes meaningful when
read alongside article 99, which
deals with election petition.
Thus read, he contended, it
becomes clear that actions in
respect of article 94(3) (b)
arise after an election had been
conducted and not before. He
then referred to article 99, the
provisions of the Representation
of People’s law 1992 (PNDCL 284)
particularly section 16 thereof,
and the recent Supreme Court's
decision in Yeboah vrs J. H.
Mensah (1998-99) SCGLR. 492 and
submitted that election
petitions in respect of
Parliamentary candidates are
justiciable in the High Court
and not the Supreme Court.
Assuming therefore that the
instant suit is an election
petition, it is clear that this
Court cannot entertain the
petition. Mr. Martin Amidu next
submitted that the meaning of
article 94(3)(b) is so clear and
unambiguous that no issue of
interpretation arises to warrant
the invocation of the original
jurisdiction of this Court. He
further argued that the
plaintiff’s action is
speculative in that the action
seeks to invite the Court to
speculate whether the 2nd and
3rd defendants will qualify for
nomination as Parliamentary
candidates. Finally he submitted
that the action seeks advisory
opinion from the Court. Relying
on Bilson vrs: Attorney General,
12th December, 1994 SC
(unreported) he contended that
such an action cannot be
entertained.
In his response Nana Akufo-Addo
leading counsel for the
plaintiff, began by announcing
that the 2nd defendant had
retired from the civil service
and therefore, the plaintiff has
no cause of action against him.
He then submitted that the clear
intent of article 94(3)(b) is to
preserve within the context of a
multi-party democracy,
neutrality of the public service
by prohibiting public officers
from involvement in partisan
political activities. He argued
that the plaintiff is not
seeking an interpretation of
article 94(3)(b). Rather the
plaintiff is seeking an
enforcement of that article. And
that the Supreme Court, being
the Constitutional Court, is the
only competent Court to enforce
compliance with that article. He
contended that the plaintiff’s
action is not an election
petition, and therefore Yeboah
vrs. J.H. Mensah (supra) does
not apply.
He disagreed with the contention
that their action is
speculative. For both defendants
have now filed their nomination
papers to contest in the
forthcoming elections. He
contended that the crucial issue
is on the meaning of the word
“eligible” in article 94(3)(b).
He said the 3rd defendant is not
eligible to contest the
elections, and that was why they
are in this court to seek
compliance with article
94(3)(b).
Now what cause of action if any,
does the plaintiff’s writ and
statement of case disclose.
Election petition, an
enforcement action or what? If
it is an election petition, then
on the authority of Yeboah vrs.
J.H. Mensah (supra), the
soundness of which
authority—Nana Akufo-Addo
concedes, the proper forum is
the High Court.
Now article 99(1)(a) provides
that 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 supplied),
(2) Every election petition
shall be presented before the
High Court for hearing”
Sections 17, 18, 19, 20, 21 & 22
of PNDCL 284 set out the detail
requirements of an election
petition. On the basis of these
provisions the essentials of an
election petition were set out
in Yeboah vrs: Mensah (supra) at
page 538 to 539
thus:
“(i) Original jurisdiction is
vested only in the High Court;
(ii) 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
elections:
(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;
(iii) The petition 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”.
Election petition under our law,
therefore arises after an
election has been held and not
before.
In the instant cases the
elections have not been held,
neither have the 2nd and 3rd
defendants been elected to
Parliament. The validity of
their election cannot therefore
arise for same to be enquired
into. The plaintiff’s action
cannot therefore be and is not
an election petition.
What the NPP seeks to do in this
action is to challenge the
eligibility of the 3rd
defendant, to stand election,
following the 1st defendant's
decision to present him as one
of its parliamentary candidates,
in the face of article 94(3)(b)
of the Constitution. And in
respect of such an action, I
understand Mr. Martin Amidu’s
submission to mean that such a
cause of action cannot lie until
after the elections have been
held.
Mr. Martin Amidu's submission
implies that a citizen has no
means of seeking redress when he
has evidence to establish that a
candidate for Parliamentary
elections is not legally
qualified to stand as a
candidate for that election. The
only remedy such a citizen has,
by his arguments, is to wait
after the elections and
thereafter file an election
petition, if such a citizen
happens to be one of the persons
qualified within the provisions
of section 17 of PNDCL 284 to
present such petition. If he
does not fall within any of the
authorised persons, then the
citizen is completely debarred
from challenging the unqualified
candidate. Should this be the
legal position, and will the
framers of the constitution
approve such a consequence?
Now when an election petition
succeeds and the election of the
candidate is declared by the
court to be invalid, a
bye-election is held in that
constituency to elect a new
candidate. For, the disputed
election is held nullified and
of no legal consequences
whatsoever, Thus in Luguterah
vrs: Interim Electoral
Commission (1971) 1 GLR 109 at
113, Kingsley-Nyinah J, as he
then was, expatiating on the
effect of his finding that Mr.
Tedam was disqualified, said:
“... 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 29 August 1969 for
the Chiana-Paga Constituency
must stand upset”.
Therefore whenever an election
petition succeeds, the state is
required to incur another
financial burden, obviously from
the tax payers, to conduct a
bye-election at that
constituency, and the electorate
is also obliged to go through a
second voting process.
Is it not obvious then, that a
better and more prudent course
is to opt for a pre-election
challenge as opposed to a post
election challenge? But it is
this pre-election challenge
adopted by the NPP in this
action that the deputy
Attorney-General opposes on
ground that under our electoral
Laws there is no such course of
action.
The 1992 Constitution provides
in articles 62, 63, 64 and 94
the qualifications and
eligibility of persons seeking
to contest in presidential and
parliamentary elections. PNDCL.
284 and C.I. 15 are the
provisions and regulations on
election to these offices.
Compliance with these
constitutional and statutory
provisions are not only
mandatory but essential to the
success of our constitutional
democracy. Accordingly where
there is a threatened breach of
any of these provisions, the
individual is under a
constitutional obligation to
prevent such threatened
breaches. And if the only means
of preventing such breaches is
to seek redress in court, the
individual must have an
unhindered access to the courts.
As demonstrated earlier on, our
electoral laws provide for an
election petition under article
99 of the constitution and
section 16 of PNDCL 284 to
challenge the validity of
elected candidates and not those
seeking to stand election.
Indeed regulation 7 of C.I. 15
shows that the authority to
declare the validity or
otherwise of a candidate's
nomination paper is vested in
the returning officer of the
relevant constituency. And when
a returning officer decides that
a candidate’s nomination paper
is invalid, regulation 7(3)
provides:
“7(3) where the returning
officer decides that a
nomination paper is invalid,
after complying with
sub-regulation (2) of this
regulation, he shall endorse and
sign on the nomination paper the
fact and the reasons for his
decision, and inform the
Commission accordingly and the
Commission shall refer the
matter with its observation on
it to the Attorney General”.
Now the sub-regulation 2 which
must be complied with by the
returning officer before
declaring a nomination invalid,
reads:
“7(2) The returning officer
shall inform a candidate that
his nomination is invalid where—
(a) the particulars of the
candidate or the persons
subscribing to the nomination
paper are not as required by
law; or
(b) the nomination paper is not
subscribed to as required by
law, and allow the candidate an
opportunity to make any
amendment or alteration that the
candidate considers necessary”.
Now the only remedy provided in
C.I. 15 in respect of
challenging candidate’s
nominations is in regulation
7(4), which states:
“7(3) Nothing in this regulation
shall prevent the validity of
nomination being challenged on
an election petition”.
But what happens where a
candidate whose nomination has
been declared invalid desires to
challenge that decision of the
returning officer? Or in a
situation where a citizen
desires to challenge the
nomination of a candidate whose
papers, though have been
accepted by the returning
officer, yet the citizen is of
the opinion that the candidate
is ineligible?
If the electoral laws do not
specifically provide a remedy to
those aggrieved by the decision
of the returning officer, the
Constitution guarantees any such
aggrieved person the right to
seek redress before a court of
law.
And in seeking redress, the
aggrieved person ought in
accordance with the nature of
his compliant, adopt the nearest
possible procedure accorded by
the law. For as Francois, J.S.C.
said in Darko vrs. Amoah
(1989-90) 2 GLR 214 at 291:
“In any event it is elementary
that where the procedure for
utilizing a substantive legal
provision has not been spelt out
a litigant is entitled to adopt
the nearest reasonable mode of
utilizing the right accorded by
the law”.
Of course, where the mode of
utilizing that legal provision
has been spelt out, it is that
mode or procedure which must be
utilized: See Yeboah vrs: J.H.
Mensah (Supra).
Indeed the jurisprudence in our
electoral adjudication is not
without instances of
pre-election challenges. In
Nyame vrs: Mensah (1980) GLR.
338 an originating summons was
issued at the High Court to
determine, whether the defendant
was qualified in terms of SMCD.
206 and SMCD.216 to file
nomination papers as candidate
for parliamentary elections in
the Sunyani Constituency. In
holding that the defendant was
not qualified in terms of those
laws, the court said that the
effect of section 1 of SMCD. 216
was to provide a remedy in the
nature of a quia timet
injunction to prevent the
consequences of an election
which was bound to be nullified.
Again we have the well-known
case of Ekwam vrs. Pianim
(1996-97) SCGLR 120 wherein the
eligibility of Mr. Kwame Pianim
to stand for the 1996
presidential election, was
challenged at a time when the
Electoral Commission had not
even issued the relevant writ of
election. The assumption of
jurisdiction by this court (and
there was no challenge to it)
and subsequent determination of
the qualification of Mr. Kwame
Pianim to stand for election in
the face of article 94(2)(c)(ii)
of the Constitution, explodes
the learned deputy
Attorney-General's contention
that no cause of action can
arise in relation to article 94
until an election had been
conducted. The fact that Ekwam
vrs. Pianim (supra) was in
relation to presidential
elections is neither here nor
there. The important point is
that, challenge to the
qualification and eligibility in
both Nyame and Pianim's cases
were successfully mounted before
the elections were conducted.
In the instant case, the
plaintiff’s complaint relates to
an alleged violation of article
94(3)(b) of the Constitution.
And as demonstrated above the
procedure provided in article
99(1) of the Constitution and
section 16 of PNDCL. 284 is
inapplicable to the
determination of this complaint.
Since the only procedure
available for vindicating that
right is an enforcement action
under article 2(1) and 130(1) of
the Constitution, the plaintiff
is entitled to adopt this
procedure. Otherwise the
plaintiff would be denied access
to court.
The learned deputy
Attorney-General's next
contention was that the
plaintiff’s action is
speculative in that the action
seeks to invite the court to
speculate whether the 2nd and
3rd defendants will qualify for
nomination as parliamentary
candidates in the forthcoming
parliamentary elections.
Is the plaintiff’s action
speculative? This of course
requires an analysis of the
reliefs the plaintiff claims on
his writ of summons.
Generally an action is
speculative if it is not
grounded on real situation but
on conjectures and therefore not
ripe for adjudication.
In US Constitutional
jurisprudence, such an action is
discussed under the doctrine of
ripeness. For article III of the
US constitution requires a court
to consider whether a case has
matured or ripened into a
controversy worthy of
adjudication before it can be
determined.
In Aetna Life Insurance Co. vrs.
Harworth 300 US 227 (1937) Chief
Justice Hughes explained that a
controversy in this sense must
be one that is appropriate for
judicial determination. He said
that the controversy must be
definite and concrete, touching
the legal relations of parties
having adverse legal interests.
Now a close study of US
constitutional jurisprudence
vis-à-vis the language and
provisions of our 1992
Constitution clearly shows that
the US doctrine of ripeness,
like most of their principles of
judicial self restraint, is
inappropriate in the
interpretation of our
Constitution. In J.H. Mensah
vrs: The Attorney-General
(1996-97), SCGLR 320 this court
finally decided that the
political question doctrine as
applied in the US, was
inapplicable in our
jurisprudence.
I will refer to only two cases
illustrative of US doctrine of
ripeness. First, is
International Longshoreman's
Union vrs: Boyd 346 US 222
(1954). The facts were that the
US Congress in 1952 passed a law
mandating that all aliens
seeking admission into the
United States from Alaska be
“examined” as if they were
entering from a foreign country.
Believing that the law might
affect seasonal American
labourers working in Alaska
temporarily, a union challenged
the law. Dismissing the suit
Justice Frankfurter said at page
223:
“Appellants in effect asked (the
court) to rule that a statute
the sanctions of which had not
been set in motion against
individuals on whose behalf
relief was sought because an
occasion for doing so had not
risen, would not be applied if
in the future such a contingency
should arise. That is not a
lawsuit to enforce a right; it
is an endeavour to obtain a
court's assurance that a statute
does not govern hypothetical
situations that may or may not
make the challenged statute
applicable. Determination of the
constitutionality of the
legislation in advance of its
immediate adverse effect in the
context of a concrete case
involves too remote and abstract
an enquiring for the proper
exercise of the judicial power”.
Next is the case of United
Public Workers vrs: Mitchell,
330 US (1947), the facts of
which are a little similar to
the present suit. In Mitchell's
case, section 9(a) of the Hatch
Act of 1940 prohibited federal
employees in the executive
branch from taking “any active
part in political management or
in political campaigns”. Several
employees and their union
brought suit to restrain the
Civil Service Commission from
enforcing section 9(a) against
them and for a declaratory
judgment that the section is
unconstitutional. The
three-judge District Court
dismissed the suit on the
merits. The Supreme Court
affirmed the judgment, but no
other grounds as to most of the
plaintiffs. In affirming the
District Court’s dismissal of
the suit, Justice Reed said:
“The power of courts, and
ultimately of this Court, to
pass upon the constitutionality
of acts of Congress arises only
when the interests of litigants
require the use of this judicial
authority for their protection
against actual interference. A
hypothetical threat is not
enough. We can only speculate as
to the kinds of political
activity the appellants desire
to engage in or as to the
contents of their proposed
public statements or the
circumstances of their
publication. It would not accord
with judicial responsibility to
adjudge, in a matter involving
constitutionality between the
freedom of the individual and
the requirements of public order
except when definite rights
appear upon the one side and
definite prejudicial
interference’s upon the other”.
(emphasis mine).
Would Ghana Supreme Court come
to the same conclusion as the US
Supreme Court, if the two cases
were fought under our 1992
Constitution? Certainly not! For
article 2(1) of our Constitution
empowers any person to invoke
the original jurisdiction of the
Supreme Court in two situations.
First, under article 2(1) (a)
where the person alleges that an
enactment is inconsistent with
or is in contravention of a
provision of the Constitution,
All that article 2(1)(a)
requires is an allegation and
not a personal interest of the
plaintiff in the case. And this
was precisely the situation in
the two American cases referred
to above. Indeed in NPP vrs: The
Attorney General (CIBA case)
(1996-97) SCGLR. 729 and Joseph
Sam vrs: The Attorney-General,
10/5/2000 (unreported), the
plaintiffs had no personal
interests nor did they allege
any interference in their
proprietary rights in the
enactments they successfully
sought to impugn.
The second instance is under
article 2(1)(b), which requires
allegation by any person that an
act or omission of a person is
inconsistent with or in
contravention of the
Constitution. By article 2(1)(b)
the person alleging
inconsistency must of course
establish the act or omission
complained of. But this act or
omission needs not necessarily
affect the plaintiff personally.
A typical example is the case of
J.H. Mensah vrs:
Attorney-General (the vetting
case) SCGLR 329. Where the act
complained of was the decision
not to present the retained
ministers for vetting by
Parliament.
Thus under article 2(1)(a) and
(b) the requirement of
plaintiff’s personal interest or
actual interference in
plaintiff’s personal or
proprietary rights in the action
are not required. Consequently
the US doctrine of ripeness will
be inapplicable in the
interpretation of our articles
2(1) and 130(1).
In the instant case what
precisely is the plaintiff
demanding from this Court having
regard to its writ and statement
of case? The first relief on the
writ is very instructive. It
reads:
“a declaration that the decision
by 1st defendant to put forward
2nd and 3rd defendants as
candidates of 1st defendant in
the parliamentary elections of
2000 for Asante Akyem North and
Bosomtwe constituencies is
inconsistent with and in
contravention of the
Constitution, in particular
article 94(3)(b) therefore, and
is accordingly null, void and of
no effect”. (emphasis supplied)
Thus the target of plaintiff’s
attack is the decision of the
1st defendant. And unless this
crucial aspect of the
plaintiff’s case is appreciated,
one is bound to derail and
wander in unintelligible
irrelevancies. For the 3rd
defendant’s alleged engagement
in partisan politics is said to
be the result of this decision
to put him forward as
parliamentary candidate. The
decision therefore led to the
institution of the action.
Following from this relief, the
plaintiff seeks perpetual
injunction. From the three
reliefs endorsed on the writ of
summons, the plaintiff’s
objective is to nullify the 1st
Defendant decision and thereby
prevent the 1st defendant from
putting forward the 3rd
defendant as parliamentary
candidate because such a
decision, in its view,
contravenes article 94(3)(b).
In other words, the plaintiff
sees from the activities of the
1st and 3rd defendants, a
threatened breach of the
Constitution, and therefore
comes to court to prevent them
from breaching the law. On this,
the principle is too trite to
require an authority in support
that where one discovers from
the acts and omissions of others
that same constitute a threat to
a breach of the constitution and
the law, that person has right
of access to the courts to
forestall the said threat. If
the said acts or omissions are
against a provision of the
Constitution, then, as Azu
Crabbe JA as he then was, said
in Gbedemah vrs. Awoonor-
Williams (1969) 2 G & G 438 of
440, it becomes “the inescapable
duty of the Supreme Court to
suppress it by enforcing the
Constitution.” The same point is
made at pages 517 to 518 of
Yeboah vrs Mensah:
“…any person who fears a
threatened breach of the
fundamental law (can) 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 a threatened infringement
or alleges an infringement of
any provision of the
Constitution” should be able to
seek redress in this Court”.
Of course plaintiff claims that
the source of its knowledge of
this decision was the Ghanaian
Times publication of 6th June
2000. In my view this fact does
not erode the basis of the
action. For the law recognizes
the existence of newspapers as
sources of information, and
accordingly provides in section
156 of the Evidence Decree 1975
(NRCD. 23) that: —
“Printed material purporting to
be newspapers or periodicals are
presumed to be authentic”.
This does not mean that whatever
is stated in a newspaper is
true. What the provision does is
to give recognition to the
existence of a newspaper. It
would certainly be outrageous in
my view for anyone to make
capital out of the fact that the
source of the plaintiff’s
information is a newspaper when
even the courts rely on
publications in newspapers for a
variety of purposes including
substituted services, as
authentic means of giving notice
to those entitled to be given
such notices. It would be
unfathomable for this court to
refuse to assume jurisdiction on
grounds, inter alia, that the
plaintiff’s source is the
newspaper.
After all instances abound where
parties to suits have relied on
newspaper publications in
support or defence of their
case. No fetish should therefore
be made of the fact that the
plaintiff’s source of
information is the Ghanaian
Times.
In effect what the plaintiff is
alleging by its writ and
statement of case is that at the
time it issued its writ of
summons, the 1st defendant had
taken a decision to present the
3rd defendant as its
parliamentary candidates in the
forthcoming parliamentary
election, that the said decision
is in violation of article
94(3)(b).
How does the court in
determining such relief
speculate whether the 3rd
defendant would qualify as
parliamentary candidate? In
Ekwam vrs. Pianim (supra) the
court, like the instant one, was
called upon to determine whether
Mr. Pianim was qualified to
contest in the presidential
election. Did this court in
determining Pianim's case
speculate whether Pianim was
going to qualify as a
presidential candidate?
This argument of the learned
Deputy Attorney-General would
indeed imply that pre-election
challenges founded on the
qualification or eligibility of
a person to contest in elections
would be speculative. Certainly
not! I am therefore of the view
that from the relief’s endorsed
on it’s writ of summons and the
averments in the statement of
case it cannot be said that the
action invites the court to
speculate on the eligibility of
the 3rd defendant in the
forthcoming parliamentary
election. The plaintiff’s action
principally calls for the
determination of the
constitutionality of 1st
defendant’s decision vis-à-vis
article 94(3)(b) of the
Constitution. A justiciable
issue.
Akin to the argument that the
action is speculative to Mr.
Martin Amidu's argument that the
action seeks advisory opinion.
And for this, he relied on
Bilson vrs. Attorney-General
(supra).
Of course, the Ghana Supreme
Court, like the US Supreme Court
has no jurisdiction to offer
advisory opinion. Attempt at the
drafting stage of the 1992
Constitution to confer such
jurisdiction on the Supreme
Court, was hotly resisted, and
therefore same was abandoned.
As to when an action seeks
advisory opinion, the exposition
of Adade JSC in Bilson vrs:
Attorney-General (supra) is
instructive. In that case Bilson
sought declaratory reliefs not
founded on any act or omission
of any person, neither did he
allege that any conduct or law
was inconsistent with a
provision of the Constitution.
In dismissing the action, Adade,
JSC said:
“I read the plaintiff’s writ and
statement of case, and I ask
myself a simple question: has
any occasion arisen to
necessitate the call for
interpretation? Does the writ,
or the writ and statement of
case together, disclose any
occasion? Ours is to interpret
the constitution in the context
of disputes, broadly
interpreted? Ours is not to
render advice to prospective
litigants, that is the role of
the solicitors in private
practice”.
Do we find the same situation in
the instant case? Emphatically
no! For the NPP is alleging in
this case that the 1st defendant
had taken a decision to put
forward the 3rd defendant as its
parliamentary candidates in the
2000 parliamentary elections.
Certainly our legal system
empowers a person aggrieved by
the decision of even a court, to
take steps to set it aside. And
this is what is being sought for
by the NPP in this action. And
the basis for seeking to set it
aside is that the said decision
violates article 94(3)(b). The
plaintiff herein is therefore
not seeking any advisory opinion
as the actions is founded on an
allegation of a definite act (to
wit, the decision to put forward
the 3rd defendant) of the 1st
defendant, which act is alleged
to be unconstitutional.
On the issue that the action
raises no issue of
interpretation, Nana Akufo Addo
responded that what the
plaintiff has invoked is the
enforcement jurisdiction. And
from my analysis, it is obvious
that I agree with him.
My Lords, the decision that the
Supreme Court, and for this
matter no other court, has no
jurisdiction in this case in the
face of definite justiciable
allegations against the
defendants, is unfortunate. It
is inconsistent with the rule of
law, and subversive of our
constitutional democracy, which
guarantees unimpeded access to
the courts and consequently
renders unconstitutional any
clause in an enactment ousting
the jurisdiction of the courts.
See Joseph Sam vrs.
Attorney-General (supra) where
this court held that section 15
of PNDC 236, which sought to
oust the jurisdiction of the
courts, was unconstitutional.
See also the South African case
of Staatspresident vrs: United
Democratic Front 1988 4 SA 830
A.
On my part I have not the
slightest doubt in my mind that
this court has jurisdiction.
There should certainly be no
failure of justice. It was for
the above reasons that I voted
on 15/11/2000 to dismiss the
Attorney-General's objection as
untenable.
ATUGUBA, J.S.C.:
The facts of this matter have
been stated in the opinions,
which have preceded mine, and I
would not restate them except
where necessary. The plaintiff’s
writ discloses that “The nature
of the reliefs sought is as
follows: -
“1. A declaration that the
decision by 1st Defendant to put
forward 2nd and 3rd Defendants
as candidates of 1st Defendant
in the parliamentary elections
of 2000 for Asante Akyem North
and Bosomtwe constituencies is
inconsistent with and in
contravention of the
Constitution, in particular
Article 94(3)(b) thereof, and is
accordingly null, void and of no
effect;
2. an order of perpetual
injunction restraining 1st
Defendant from putting forward
2nd and 3rd Defendants as its
parliamentary candidates in the
2000 elections in so far as they
are ineligible to be Members of
Parliament;
3. an order of perpetual
injunction restraining 2nd and
3rd Defendants from standing as
parliamentary candidates in the
2000 elections in so far as they
are ineligible to be Members of
Parliament;
4. such other orders as to this
Court may seem meet”.
The 4th defendant (the
Attorney-General) has brought
this motion to set aside the
said writ on the following
grounds:
“(a) the Plaintiff’s writ and
Statement of case disclose no
cause of action premised on
Articles 2(1)(b), 94(3)(b) and
130(1)(a).
(b) The Plaintiff’s writ and
statement of case constitute an
invitation to the Court to
speculate whether the 2nd and
3rd Defendants will qualify for
nomination as Parliamentary
candidates when the Electoral
Commission issues a writ of
election and gives notice of
nomination pursuant to the
Public Elections Regulations,
1996 (C.I. 15).
(c) Article 94(3)(b) of the
Constitution is clear and
unambiguous and does not call
for interpretation or
enforcement.
(d) The Plaintiff’s action is
seeking for an advisory opinion
from the Court”.
When argument on the motion
opened before us, the Honourable
Deputy Attorney-General, Mr.
Martin Amidu, sought, with
astute ingenuity to draw a
distinction between
qualifications for membership of
parliament on the one hand and
qualifications for election for
membership of Parliament, on the
other hand. He contends that
article 94(3)(b) of the 1992
Constitution, read with other
provisions of the Constitution
such as articles 62 and 63,
shows that it does not deal with
the question of an election of a
person to the office of member
of Parliament but rather with
the qualification and
eligibility of a person to be a
member of Parliament. He submits
that article 94(3)(b), read
together with article 99 of the
Constitution and the decision of
this court in YEBOAH V. MENSAH
(1998-99) SC GLR 492, shows that
it does not come into play until
after an election has been held.
He contends that where the
Constitution intends to deal
with the issue of election to an
office, it does so clearly and
unambiguously. In this vein,
contrasts have been drawn, as
aforementioned, with articles 62
and 63 of the Constitution,
which clearly deal with the
election of the President. The
contracts extended to the 1969
and 1979 Constitutions of Ghana.
While I find the references of
the Honourable Deputy
Attorney-General, ingenious and
very useful, I am unable to
agree with him that their effect
is to unrelate the provisions of
article 94(3)(b) of the
Constitution to the question of
election of a person as member
of Parliament, except in the
event of an actual election
having taken place. There is no
doubt that the meaning of the
words of a provision of a
statute can be clarified or
ascertained by reference to some
other provisions of the same
statute, as the Honourable
Deputy Attorney-General seeks to
do in this case, see ASARE v.
THE REPUBLIC (1968) GLR 37 at 46
(Full Bench) and SECRETARY OF
STATE FOR DEFENCE v. WARN (1970)
A. C. 394, H. L. at 410. And so
it is often said that a statute
must be read as a whole.
Article 94(3)(b) of the
Constitution provides as
follows:
“(3) A person shall not be
eligible to be a member of
Parliament if he—
x
x x
(b) is a member of the Police
Service, the Prisons Service,
the Armed Forces, the Judicial
Service, the Legal Service, the
Civil Service, the Audit
Service, the Parliamentary
Service, the Statistical
Service, the Fire Service, the
Customs, Excise and Preventive
Service, the Immigration
Service, or the Internal Revenue
Service”. (e.s.)
Article 62 of the Constitution,
provides, as far as relevant as
follows:
“62 A person shall not be
qualified for election as the
President of Ghana unless—
x
x x
(c) he is a person who is
otherwise qualified to be
elected a Member of Parliament
except that the
disqualifications set out in
paragraphs (c), (d), and (e) of
clause 2 of article 94 of this
Constitution shall not be
removed, in respect of any such
person, by a presidential pardon
or by the lapse of time as
provided for in clause (5) of
that article”.
One must therefore turn to
article 94(2), which provides:
“(2) A person shall not be
qualified to be a member of
parliament if he—
x
x x
(c) has been convicted—
for high crime under this
Constitution or high treason or
treason or for an offence
involving the security of the
State, fraud, dishonesty or
moral turpitude; or
(i) for any other offence
punishable by death or by a
sentence of not less than ten
years; or
(ii) for an offence relating to,
or connected with election under
a law in force in Ghana at any
time; or
(d) has been found by the report
of a commission or a committee
of inquiry to be incompetent to
hold public office or is a
person in respect of whom a
commission or committee of
inquiry has found that while
being a public officer he
acquired assets unlawfully or
defrauded the State or misused
or abused his office, or
wilfully acted in a manner
prejudicial to the interest of
the State, and the findings have
not been set aside on appeal or
judicial review; or
(e) is under sentence of death
or other sentence of
imprisonment imposed on him by
any court”.
It is true that article 62,
unlike article 94, opens up with
language which ex facie
expressly connects its ensuing
provisions with an election,
thus:
“A person shall not be qualified
for election….”(es).
But clause (c) of article 62
makes it quite clear that it
co-opts the qualifications for
election as Member of
Parliament, or, in more
legalistic fashion, adopts or
incorporates into itself by
reference all the qualifications
for the election of a person as
a member of Parliament and makes
them qualifications for election
as President, also. It must be
noted that article 62(c) does
not refer to any specific
provisions of the Constitution
or any other law as governing
the qualifications for election
of a person to Parliament,
otherwise than in an
exclusionary manner, namely, (as
hereinbefore set out),
“except that the
disqualifications set out in
paragraphs (c), (d) and (e) of
clause 2 of article 94 of this
Constitution shall not be
removed, in respect of any such
person, by a presidential pardon
or by the lapse of time as
provided for in clause (5) of
that article”. (e.s)
Clearly if the disqualifications
set out in the named paragraphs
of article 94(2) do not relate
to an election of a member of
Parliament their mention in
article 62(c) which deals with
the need for a Presidential
candidate to be also “otherwise
qualified to be elected a Member
of Parliament,” (e.s.) would
have been most unnecessary and
inexplicable. Now, the effect of
the said exclusionary provision
in article 62(c) is that the
Constitution has therein, by
itself, revealed a construction
of the provisions of article
94(2)(c), (d) and (e); namely,
that they relate to
qualifications for election to
membership of Parliament and
that a pardon or the lapse of
time in respect of them under
article 94(5) which would
operate to qualify a person to
whom they are applicable, for
election as member of Parliament
and consequently also for
election as President under
article 62(c) should not have
that effect in the case of a
presidential election. This is
the effect of article 62(c), in
spite of the fact that the
excepted provisions, namely
94(2)(c) to (e), form part of a
litany of provisions under
article 94(2), which are all,
governed by its opening words:
“A person shall not be qualified
to be a member of Parliament...”
(e.s)
To reiterate, though the opening
words of article 62 clearly
relate its provisions to the
issue of election of a
President, they do not show
that, contrariwise, the
provisions of article 94(2)
which relate opaquely to
qualifications for membership of
Parliament without the express
reference to the issue of
election therein, do not relate
to that issue at all. In other
words the relevance of the
provisions of article 94(2)(c)
to (e) and (5) of the
Constitution to the admittedly,
electoral provisions of article
62(c) depends first and foremost
on their being electoral
themselves. They are so regarded
or contemplated by article
62(c). In EKWAM V. PIANIM
(NO.2)(1996-97) SC GLR 120 this
court had to construe the
provisions of articles 62(c) and
94(2)(c) and it is plain from a
reading of that case that the
court unanimously held the view
that the provisions of article
94(2) (c) relate to
qualifications for election to
Parliament and, on that basis,
gave rise to the question
whether they disqualified the
defendant from presidential
election under article 62(c)
aforesaid. That being so the
provisions of article 94(3)(b),
which are the immediate issues
in this case, are similarly
provisions relating to election
to parliament. The opening words
of article 94(3) are very like
those of article 94(2)
aforesaid, and run thus:
“(3) A person shall not be
eligible to be a member of
Parliament:
“If such similar words in
article 94(2) govern provisions
which under article 62(c) pass
for electoral provisions, why
should not those governed by
practically the same words in
article 94(3) similarly pass for
electoral provisions? Clearly
the variation in language in
articles 62 and 94 is for
purposes of elegance only and
not for a change in meaning or
intent. Thus in BILSON v. APALOO
(1981) GLR 24 at 85 S.C., it is
stated” ... in Hadley v. Perks
(1866) L.R. 1 Q.B. 444 at page
457 the principle as we were to
inherit it, was succinctly
stated by that great master of
the common law, Blackburn J.:
“It has been a general rule for
drawing deeds and other legal
documents from the earliest
times, which one is taught when
one first becomes a pupil to a
conveyancer, never to change the
form of words unless you are
going to change the meaning, and
it would be as well if those who
are engaged in the preparation
of acts of parliament would bear
in mind that that is the real
principle of construction. But
in drawing acts of parliament,
the legislature, as it would
seem, to improve the graces of
the style, and to avoid using
the same words over and over
again, constantly change them’.
As has been consistently
maintained by all the
authorities without exception
this principle of construction
is inapplicable if it appears
that the law-giver or the
draftsman may be trying to avoid
inelegance occasioned by
repetition rather than change of
meaning”.
Further, the combined effect of
articles 47(1) and 93(1) is that
the whole idea of membership of
Parliament under the
Constitution is based on and
inextricably bound to the
electoral process. Article 47(1)
provides:
“47(1) Ghana shall be divided
into as many constituencies for
the purpose of election of
members of Parliament as the
Electoral Commission may
prescribe, and each constituency
shall be represented by one
member of Parliament”. (e.s.)
Pausing here for a moment, it is
clear beyond argument that one
cannot be a member of Parliament
unless one is elected as a
member of Parliament for a
certain constituency. This is
strengthened by article 93(1),
which provides:
“There shall be a Parliament of
Ghana which shall consist of not
less than one hundred and forty
elected members.” (e.s)
Indeed the qualifications for
membership of Parliament
immediately follow upon this
provision and are only
consequential to that provision,
see article 94(1) to (5). Indeed
article 94(1)(b) is couched in
terms which leave no doubt that
the Constitution regards the
issue of election of a person
for membership of Parliament
conveyed by articles 47(1) and
93(1), as a datum. It provides:
“94(1) Subject to the provisions
of this article, a person shall
not be qualified to be a member
of Parliament unless—
x
x x
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”.
Again the grounds of tenure of
office by the Speaker of
Parliament and his Deputies as,
inter alia, contained in
articles 95(2)(c) and 96(3) of
the Constitution help to show
that the qualifications for
membership of Parliament are
intended by the Constitution to
relate to election for
Parliament.
Article 95(2)(c) provides:
(2) The Speaker shall vacate his
office—
x
x x
(b) if any circumstances arise
that, if he were not Speaker,
would disqualify him for
election as a Member of
Parliament”. (e.s.)
Article 96(3) applies inter
alia, this provision to a Deputy
Speaker of Parliament also.
Article 95(2) clearly shows that
there are circumstances in which
a person may be disqualified
from being elected as a member
of Parliament. If such
circumstances can be found,
though not exclusively in the
constitution, then clearly they
are electoral matters. If such
circumstances cannot be found
then it means that this
provision is meaningless. It is
of course trite law that every
part of a statute is meant to
have effect and as much as
possible the court must ensure
that that is so. Before the 1992
Constitution came into force the
Representation of the People
Law, 1992 (PNDCL 284) mainly
regulated elections to
Parliament. A reading of section
9 of that Law reveals that its
provisions have been adopted by
article 94 of the Constitution
virtually word for word. Section
9 of PNDCL 284 opens as follows:
“9(1) A person shall not be
qualified to be a candidate for
the office of Member of
Parliament unless…”(e.s) There
can be no doubt that this
provision relates to
qualifications for candidature
and therefore election to
Parliament. This opening
provision is followed by section
9(2), which runs: “(2) A person
shall not be qualified to be a
Member of Parliament…” This
language is a clear truncation
of the longer version of the
proceeding section 9(1). There
is no earthly reason why the
qualifications in section 9(1)
of PNDCL 284 were meant to
govern qualifications for
election to Parliament whereas
those under section 9(2) of that
Law were not so meant.
That being so, the slight
variation in language between
the two sets of provisions in
section 9(1) and (2) of PNDCL
284 is explicable, as aforesaid,
only on grounds of elegance.
These provisions, being in pari
materia with article 94 of the
Constitution, help to show
therefore that their
counterparts in the said article
94 also refer to election of
members of parliament. That
being so the provisions of
article 95(2)(c),
aforementioned, is referable
also to article 94(1) to (5),
which also therefore concern
elections to Parliament. This
also applies to articles 44(1)
concerning appointment of
members of the electoral
commission, 78(1) concerning
appointment of ministers of
state, 232(3), concerning
members of the National
Commission for Civic Education.
I have no doubt at all that when
articles 47(1), 62(c), 93(1), 94
and 99(1) are read together, the
expressions, “shall not be
qualified to be a member of
Parliament” or “shall not be
eligible to be a member of
Parliament”, in article 94(1)(2)
and (3) respectively, can only
mean, shall not be qualified to
be elected a Member of
Parliament. The effect of these
expressions is therefore the
same as the provisions of
section 1 of the Elections and
Public Offices Disqualification
(Disqualified Persons) Decree,
1978 (S.M.C.D 216) which had
used the expression
“disqualified from being
elected”, see NYAME v. MENSAH
(1980) GLR 338. What I said in
YEBOAH v. MENSAH (1998-99) SCGLR
492 at 458 is also therefore
germane to this case. I said:
“It is clear…that, the
provisions 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”. (e.s).
This statement obviously relates
to all steps leading to the
election of a person as member
of Parliament and not just the
actual election only. At page
555 I further said: “It is…
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”.
(e.s) This clearly refers to a
victory resulting from the
pursuit of or engagement in the
electoral process, i.e. a
process of diverse steps
culminating in being elected as
a member of Parliament. If the
qualifications for membership of
Parliament were not relevant to
the election of a Member of
Parliament, how could they
become relevant to the issue of
election after an election has
been had, under article 99(1)(a)
of the Constitution, as was
contended by the Honourable
Deputy Attorney-General? Surely
if the qualifications for
membership to Parliament have no
bearing on the question of
election of a member of
Parliament then they ought not
to be relevant to the question
whether “(a) a person has been
validly elected as a member of
Parliament” under article 99.
But if, as conceded by the
Honourable Deputy
Attorney-General and as
established by this court in
YEBOAH v. MENSAH, supra, the
qualifications for membership of
Parliament, which in that case,
centered around article
94(1)(b), supra, are relevant to
the validity of a person's
actual election as member of
Parliament under article
99(1)(a) aforesaid, then it
means that the real issue
arising thereunder is whether
the member of Parliament in
question had been qualified,
prior to or at the time of his
election to be elected as such
and not otherwise. In other
words if the qualifications for
membership of Parliament were
not connected with the issue of
election to Parliament, then
those qualifications (and
disqualification’s) could not at
all have effect on the validity
of the election of a person as a
member of Parliament. I would
therefore hold that article
94(3)(b) on which the plaintiff
has founded his action concerns
the electoral process and not
merely qualifications for
membership of Parliament
divorced from the electoral
process, as contended by the
Honourable Deputy
Attorney-General.
Article 99 of the Constitution
cannot preclude an action in
this court to enforce the
provisions of article 94(3)(b)
before an election is held.
Article 99 in full runs:
“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; or
(b) a person has been validly
elected as a Speaker of
Parliament or having been so
elected, has vacated the office
of Speaker.
(2) A person aggrieved by the
determination of the High Court
under this article may appeal to
the Court of Appeal”.
These provisions were construed
by this court in YEBOAH v.
MENSAH, supra, and it was held
that where the substance of a
person's action is a challenge
to the validity of an election
which has taken place then the
High Court under the said
provisions, is the court which
has jurisdiction to determine
the same and that as the
plaintiff’s action in that case
was such an action this court
has no jurisdiction over the
same.
In the instant case no election
has as yet taken place, indeed
it is contended that at the time
of the institution of this
action no electoral writ had
been issued by the Electoral
Commission. I do not therefore
see how this action is within
the purview of article 99. It is
true that in construing the
provisions of a written
Constitution a broad, liberal
and purposive approach as
opposed to a literalistic one
should be adopted, see TUFFOUR
v. ATTORNEY-GENERAL (1989) GLR
637 C.A, MINISTER OF HOME
AFFAIRS v. FISHER (1979) 3 All
ER 321 P.C. and LIYANAGE v.
REGINAM (1966) 1 All ER 650 P.C.
But, as was pointed out by
Apaloo C.J. in KYAKYE v.
ATTORNEY-GENERAL (1981) GLR 944
at 958 S.C: “We must have regard
to the terms of our particular
Constitution whose specific
reference points are largely
unique to our national history….
I think originality is required
of us in the exercise of our
original jurisdiction if we are
to attend to the letter and
sprit of the Constitution as the
basic Law of our land. That
originality must, of course, be
judicial and must not do damage
to the plain and obvious meaning
of the words used nor is it the
province of this court to be
astute to find some reason or
other for depriving the
constitutional provision of an
effect clearly intended”. As
article 99 is plainly and
obviously addressed by the 1992
Constitution to a situation of
an election, had and gone, I
cannot stretch it to cover the
converse situation here, when an
election has not even commenced,
though other aspects of the
electoral process are in full
swing. I must emphasise that
article 99 merely restricts
itself to the right to question
the validity of an election
after it has in fact taken
place. But that does not mean,
as already earlier pointed out
that questions as to whether the
person elected was prior to or
at the time of his purported
election, qualified to be so
elected, are irrelevant to an
action thereunder. But an action
under article 99 aforesaid can
only lie after and not before a
parliamentary election.
The plaintiff’s case here is for
the enforcement of article
94(3)(b) which he says the
defendants have infringed and is
squarely within the purview of
this court's jurisdiction under
articles 2(1) and 130 of the
Constitution. Article 99, be it
noted, is not an enforcement
provision; were it so the
Constitution would have made an
exception to cover it as it has
done with respect to the
enforcement jurisdiction of the
High Court with regard to the
fundamental human rights.
It has been contended that the
plaintiff’s case does not
disclose any cause of action, in
that it is speculative as to
whether the National Democratic
Congress Party, the 1st
defendant herein will in fact
adopt him as their Parliamentary
candidate when the writ for
parliamentary elections is
issued. I would enjoin myself
from readily acceding to this
contention. As stated in KWAKYE
v. ATTORNEY-GENERAL, (1981) GLR
9 at 13 S.C. “If we construe
article 2(1)(b) alright”, a
person “is entitled to invoke
the jurisdiction of this court
as soon as the act complained of
was committed or even
threatened”. See also SAM v.
ATTORNEY-GENERAL writ 5/98,
dated 10th May 2000. This means
that the jurisdiction of this
court covers actions in which
the act complained of has
actually been committed as well
as quia timet actions. See as to
the latter NYAME v. MENSAH
(1980) GLR 338 supra. In my
opinion the very nature of a
quia timet action involves some
amount of speculation, the
acceptable limits to which must
be ascertained with care. And it
has been said in BILSON v.
ATTORNEY GENERAL, 12 December
1994, S.C. unreported, that this
court's jurisdiction relates to
disputes “liberally construed”.
It has further been said that
for an act to be actionable in
this court the conduct need not
contravene a provision of the
Constitution but it suffices if
it is merely inconsistent with
the Constitution, see NEW
PATRIOTIC PARTY v.
ATTORNEY-GENERAL (31st December
case), Supreme Court, writ
No.18/93, dated 8 March 1994,
unreported. Again in EKWAM v.
PIANIM, supra, at the time the
action was brought, the facts
that grounded it, were the
defendant's open declaration of
intent and his offering of
himself, to contest for election
as a presidential candidate of
the New Patriotic Party for the
1996 presidential elections. The
issue of an election writ being
issued or not did not seem to
have been material to sustain
that action. Even though that
case was an action for
declaration and the present one
is for enforcement of the
Constitution I do not think this
difference is material; for even
a declaratory action cannot be
hypothetical see RE CROYDON
DEVELOPMENT PLANS (1967) 2 All
ER 589, ARGOSAM FINANCE CO. LTD.
v. OXBY (1964) 3 All ER 561
C.A., BILSON. v.
ATTORNEY-GENERAL, supra, and
TUFFOUR v. ATTORNEY-GENERAL
(1980) GLR 637 C.A. The latter
dispensed only with the need for
a citizen of Ghana privately to
have locus standi to invoke this
court's jurisdiction, but not
the need for a controversy in
its other dimensions. It is
however not necessary for me to
decide whether the plaintiff’s
action is hypothetical, in view
of the conclusion I have reached
in this case.
Assuming the plaintiff has a
cause of action in this case,
the question still remains
whether he has properly invoked
the jurisdiction of this court.
Article 94(3)(b) on which the
plaintiff founds his action
runs:
(3) A person shall not be
eligible to be a member of
Parliament if he—
x
x x
(c) is a member of the Police
Service, the Prisons Service,
the Armed Forces, the Judicial
Service, the Legal Service, the
Civil Service, the Audit
Service, the Parliamentary
Service, the Statistical
Service, the Fire Service, the
Immigration Service, or the
Internal Revenue Service”.
As I noted earlier, the
qualifications for membership of
Parliament in article 94(1) to
(5) have been adopted, virtually
wholesale, ipsissima verba, from
section 9 of the Representation
of the People Law, 1992 (PNDCL
284).
Section 9(3) thereof runs:
“(3) A person shall not be
eligible to be a member of
Parliament if he—
x
x x
(c) is a member of the Police
Service, the Prisons Service,
the Armed Forces, the Judicial
Service, the Legal Service, the
Civil Service, the Audit
Service, the Parliamentary
Service, the Statistical
Service, the National Fire
Service, the Customs, Excise and
Preventive Service, the
Immigration Service or the
Internal Revenue Service”.
It is thus plain that the
plaintiff in this case seeks to
litigate before this court the
identical question, which arises
under article 94(3)(b) of the
Constitution, which also arises
under PNDCL 284. The only
difference is that in the one
case it arises under the
Constitution whereas in the
other case it arises under
ordinary legislation. But
statutory badges apart, is the
issues different? I think not.
In either situation precisely
the same criteria are involved.
The Practice Direction as
published in 1981 GLR page 1 at
page 2 states in paragraph “6.
“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 may dismiss
any 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”. (e.s).
Views may vary and may continue
to vary as to whether a cause or
matter, which arises under a
Constitution, can be said to be
the same as one, although
identical, which arises under
ordinary legislation. Be that as
it may, a cause of action is
roughly speaking that
combination of facts, which if
asserted by the plaintiff and
denied by the defendant, would
have to be proved by the
plaintiff if he is to succeed.
See O’Connor v. ISAACS (1956) 2
All ER 417 C.A., ROBINSON v.
UNICOS PROPERTY CORPORATION
(1962) 2 All ER 24 C.A. and
HARLLEY v. EJURA FARMS (GHANA)
LTD. (1977) 2 GLR 179 C.A. (Full
Bench). Nor would the more
restrictive view of what
constitutes a cause or matter in
TUFFOUR v. ATTORNEY-GENERAL
(1980) GLR 637 C.A., improve the
situation. Applying this test, I
do not see how the essential
facts, which the plaintiff must
prove to obtain judgment in his
favour, would differ if he
proceeds under article 94(3)(b)
rather than under the identical
provision in section 9(3)(b) of
PNDCL 284. It is however clear
that if he does prove the same
set of facts in either of the
two situations or actions, he
would get the desired remedy;
except that if he proceeds under
article 94(3)(b) he would have
the advantage of making his
opponent drink constitutional
vinegar, especially in view of
the constitutional powers and
sanctions attendant upon an
action under article 2(1) of the
Constitution. It cannot be said
that such differences alter the
terms of the Practice Direction
in any way.
I would however remark that
paragraph 6 of the Practice
Direction is couched in
permissive, not mandatory
language. It is therefore,
discretionary. I would even go
as far as to say that being a
rule of practice, it is not
dohors the purview of rule 79 of
the Rules of the Supreme Court,
1996, C.I. 16; which provides as
follows: “Where a party to any
proceedings before the court
fails to comply with any
provision of these rules or with
the terms of any order or
direction given or with any rule
of practice or procedure
directed or determined by the
court, the failure to comply
shall be a bar to further
prosecution of proceedings
unless the court considers that
the non-compliance should be
waived”.
But, as I said in REPUBLIC V.
HIGH COURT KUMASI Ex parte
ATUMFUWA CM. 56/97 dated 15 July
1998, to be reported in 2000
SCGLR 72, the mere fact that a
breach of the Rules of court can
be waived under this provision
is no guarantee that waiver will
be automatic. Several matters
will have to be considered.
In OPPONG V. ATTORNEY-GENERAL,
23 February 2000 to be reported
in [2000] SCGLR 275, this court
upheld a preliminary objection
to the plaintiff’s action, inter
alia, on the ground that he had
failed to file a statement of
his case to support his writ
invoking the original
jurisdiction of this court. This
court did so under rule 46(3) of
C.I. 16 which runs:
“(3) Where the statement of the
Plaintiff’s case is not filed
within fourteen days of the
filing of the writ, the
respondent may apply to the
court to have the action struck
out”.
This rule is of course
discretionary, but waiver was
refused. In determining whether
to hold the breach of the
Practice Direction adversely to
the Plaintiff in this case I
bear in mind the unanimous
judgment of the Court of Appeal,
(then the highest court in
Ghana) in ENNIN v. THE REPUBLIC
(1976) 1 GLR 326 C.A., (on which
I relied in BRITISH AIRWAYS v.
ATTORNEY-GENERAL, (1996) SCGLR
547).
At page 334 Apaloo, C.J.
delivering the judgment of the
court, said, in reaction to a
contention seeking to vitiate a
conviction of the appellant on
constitutional grounds: “It is
not in fact necessary to decide
this case on any constitutional
grounds because the steps that
have been taken to provide for
the appellant’s representation
and procure medical evidence
helpful to him, seem to us more
than ample. Nothing has been
done which offends our sense of
propriety and fairness.
Accordingly we ought to resist
the temptation of pronouncing on
arid constitutional questions.
Perhaps in this, we might take a
cue from the United States
Supreme Court which has a
philosophy that while it has a
duty to decide constitutional
questions, it must escape that
duty if possible. As Frankfurter
put it in his Law and Politics
25 (1939) (as quoted in
Constitutional Law, Cases and
other Problems (2nd edition),
Volume 1 at page 108, edited by
Freund, Sutherland, Howe and
Brown):
“But the court has improved upon
the common law tradition and
evolved rules of judicial
administration especially
designed to postpone
constitutional adjudication’s
and therefore constitutional
conflicts until they are
judicially unavoidable. The
court will avoid decision on
grounds of constitutionality if
a case may go off on some other
ground as, for instance,
statutory construction”. The
policy justification for this
philosophy is to avoid “the
mischief of premature judicial
intervention”.
The United States Constitution
has survived two centuries, and
the Supreme Court has found this
a workable rule designed to
avoid constitutional conflicts.
Both constitutions that we
enacted for ourselves, i.e. the
1960 and 1969 Constitutions have
been either abrogated or
suspended and we think, we more
than the United States Supreme
Court, should tread
warily…”(e.s.) I cannot but feel
that paragraph 6 of the Practice
Direction supra, has been
informed by these
pronouncements, especially when
at all material times, Apaloo
C.J. was such in Ghana.
Similarly it has been held that
an action which seeks to
circumvent the requisite
procedure is an abuse of the
process which can be struck out,
even in constitutional matters.
Thus in ATTORNEY-GENERAL OF
TRINIDAD v. MCLEOD (1984) 1 All
ER 694 P.C. at 700 it was held,
following HARRIKISSON v.
ATTORNEY-GENERAL OF TRINIDAD AND
TOBAGO (1980) A.C. 265 at 268
that the invocation of the
procedure for ventilating the
fundamental human rights may
well be frivolous and vexatious,
and an abuse of the court's
process when resorted to as a
device for circumventing the
procedure for questioning
administrative action. See also
O'REILLY v. MACKMAN (1982) 3 All
ER 1124 H.L. followed in COCKS
V. THANET DISTRICT COUNCIL
(1982) 3 All ER 1125 H.L. in
which it was held that the
resort to a writ for ventilating
a right under public law was an
abuse of the court's process for
circumventing the procedure
under order 53 rule 1 of the
English Supreme Court Rules,
which required an application in
such cases for leave for
judicial review.
The vibrancy of the Practice
Direction has been asserted in
EDUSEI V. ATTORNEY-GENERAL
(1996-97) SCGLR 1, THE REPUBLIC
V. NUMAPAU, Ex-parte AMEYAW II
(No.2) (1998-99) S.C.G.L.R. 639
S.C. as well as on its Review.
In the latter case it was held,
inter alia, that where an
alleged contempt is punishable
either by the High Court or this
court, the Practice Direction
requires prior resort to the
High Court. The plaintiff’s
action could have been brought
under section 9(3)(b) of
P.N.D.C.L. 284 aforesaid. That
law is part of the existing law,
which the constitution allows to
continue in operation on pain of
only inconsistency with it.
There is no inconsistency
between it and the Constitution.
Indeed the Constitution itself
admires its provisions,
particularly with regard to
qualifications for election to
Parliament, so much that it has,
as noted earlier, adopted them
virtually wholesale et ipsissima
verba in article 94, It follows
that the enforcement of those
provisions by a court with the
requisite jurisdiction does not
infringe the Constitution.
Needless to say, the appropriate
court with jurisdiction over
matters arising from the
parliamentary electoral process,
where no election has as yet
taken place under PNDCL 284, is
the High Court. See NYAME v.
MENSAH, supra, where Mr. J.H.
Mensah was restrained by the
Sunyani High Court from
contesting the then
parliamentary elections under
the Elections and Public Offices
Disqualification (Disqualified
Persons) Decree, 1978
(S.M.C.D.216).
Under the 1992 Constitution the
High Court has, subject to the
provisions of the Constitution,
virtually plenary jurisdiction
in all cases. Article 140(1)
runs: “The High Court shall,
subject to the provisions of
this Constitution, have
jurisdiction in all matters and
in particular in civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
by this Constitution or any
other law”. (e.s) On the face of
this provision it cannot be said
that the High Court has no
jurisdiction to enforce the
kindred provisions of section
9(3)(b) aforesaid against the
defendants in this case,
assuming a cause of action has
arisen thereunder. In doing so
the High Court, though dealing
with the same matter covered by
article 94(3)(b) of the
Constitution, would still not be
violating the exclusive
jurisdiction of this court in,
inter alia, matters of
enforcement of the Constitution
because it would be enforcing
ordinary legislation which is
not within the purview of the
constitution except where
allegation of ultra vires
ordinary legislation are
involved under article
130(1)(b); which runs: “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—
x x x
(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 his Constitution”. (e.s)
No issue as to this jurisdiction
is involved in the present
action. After all the Courts
Acts, over the years have also
without confrontation, conferred
on courts the same jurisdiction
as exists under the
constitution. Consequently the
plaintiff’s action herein is
also properly cognisable by the
High Court.
I would also point out that the
Constitution expects that all
Laws in Ghana, including itself,
would be defended and not just
itself alone. See Article 41 (b)
of the Directive Principles of
State Policy. It provides:
“41. The exercise and enjoyment
of rights and freedom is
inseparable from the performance
of duties and obligations, and
accordingly, it shall be the
duty of every citizen-
x
x x
(b) to uphold and defend this
Constitution and the law”. (e.s.)
This provision relates to
citizens, but this court has
often extended to artificial
persons such as the plaintiff,
rights, which are, prima facie
for natural persons. In any case
the Directive Principles are
general guides. See article
34(1) of the Constitution.
In one respect however, the
plaintiff’s action seems to be
value added, in that he does not
rely only on article 94(3)(b)
but also on the Constitution
generally. That smacks of
evasive pleading. Nonetheless in
his argument before us, Nana
Akufo Addo contended, if I
understood him aright, that the
spirit of the Constitution
reveals its disapproval of
participation in politics by
persons in the public service
and this should bear on the
question whether the 3rd
Defendant is qualified to be a
parliamentary candidate or not.
Whatever provisions of the
Constitution are relevant to
such a consideration must be
provisions that can legitimately
bear on the question of
eligibility for parliamentary
candidature. That being so since
I have already shown that the
provisions of the Constitution
on that issue are congruent with
the provisions of P.N.D.C.L.
284, it follows that the
plaintiff can make a similar
contention under PNDCL 284 with
the same profit, if any, as he
could have derived from the
reliance on the provisions of
the Constitution. The sprit of
ordinary legislation is also
relevant to its construction.
That is conveyed, inter alia, by
the rule of construction that
verba ita sunti intelligenda ut
res magis valeat quam pereat, or
the rule about purposive
construction, as it is sometime
called, see BENNEH v. THE
REPUBLIC (1974) 2 GLR 47 C.A.
(Full Bench) AMUZU V. OKLIKAH
(1998-99) GLR 141 S.C., ESHUM v.
POKU (1989-90) 2 GLR 572, SASU
V. AMUA-SEKYI (1987-88) 1 GLR
506 C.A.
For all the foregoing reasons,
the plaintiff ought not, in
breach of the Practice
Direction, aforesaid, to mount
his action in this court on
constitutional grounds when the
matter can be litigated on the
provisions of deputy
legislation, namely, PNDCL 284,
in the High Court in the first
instance.
I would therefore uphold the
preliminary objection. That
objection was not founded and
argued on the Practice
Direction, but the point being
jurisdictional. I deem it pars
judicis to take it.
As I am not deciding this action
on the merits I do not think it
is materials whether I strike it
out or dismiss it. I would
therefore, for the sake of
uniformity on the majority side
of this court, also dismiss the
plaintiff’s action.
By way of an addendum I would
say that prima facie my ruling
in this case would seem to
conflict with my stand in YEBOAH
v. MENSAH, supra. Certain dicta
therein do give that impression.
However, in the case, there was
the need to ascertain the
jurisdictional interrelationship
between article 2(1) and 130 on
the one hand and the High
Court's jurisdiction under
article 99 on the other hand,
which are all contained in the
same Constitution and would seem
to conflict with each other over
disputes arising under article
94 of the Constitution, unless
the dividing lines are clearly
drawn.
But in the present case the
matter falls within the
enforcement jurisdiction of this
court under the Constitution and
also under ordinary legislation.
There is nothing in PNDCL 284
which purports to enable the
High Court to share in
jurisdiction, over
constitutional issues, with any
other court vested with such
jurisdiction under the
Constitution.
PNDCL 284 does not confer or
purport to confer constitutional
jurisdiction. The exclusive
jurisdiction of this court
relates to constitutional
provisions. If however PNDCL 284
purports to disallow a
qualification for membership of
Parliament, which is allowed by
the Constitution or vice versa,
then a conflict could arise with
the Constitution. Nothing of the
sort arises between PNDCL 284
and the Constitution. Indeed, as
I, in effect, earlier said, the
qualifications for membership of
Parliament under PNDCL 284 and
the Constitution are identical
twins and therefore exude the
best harmony. Nowhere does PNDCL
284 claim to be a Constitution
also.
COUNSEL
Mr. Martin Amidu with Mr. Addo,
Solicitor General, and Mr. Anin
C.S.A.
Mr. Kwame Boafo Akuffo for
Respondent with Nana Akufo-Addo.
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