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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.