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Constitutional law - Invoking
the original jurisdiction of the
court. - Interpretation -
Owing an allegiance to a country
- Whether or not there is a
breach of a provisions the of
the 1992 Constitution - Whether
or not the subject-matter of the
dispute is properly within the
jurisdiction of this Court -
Articles 97(1) and 94(2)(a) –
1992 Constitution –
HEADNOTES
The
plaintiff’s complaint appears to
be that the defendant holds a
British passport and accordingly
by virtue of article 94(2) of
the 1992 Constitution though
having been elected as such his
continuing membership of
Parliament is in violation of
the provisions of the
Constitution, the plaintiff’s
exhibited a passport that is
said to bear the name “ADAMU
DARAMANI SAKANDE”, which is one
of the names that he alleges the
defendant is known by
HELD
it is
unreasonable to say that
whenever a particular statute
violates the constitution, it is
our duty to adhere to the
constitution by disregarding the
statute and yet whenever acts of
constitutional office holders
which are, to be good, subject
to certain limitations and
restraints expressed sometimes
as qualifications are breached
because these acts do not
involve issues of
interpretation, we should
decline to invalidate them. This
would result in absurd
consequences and have the effect
not of upholding the
constitution but undermining
it. Accordingly, I have great
difficulty in acceding to the
invitation urged on us to deny
jurisdiction in the matter
herein. In my opinion, the
action herein is properly before
us. I think I have said that
which is sufficient for the
purposes of this ruling and
desire to end by saying that for
these reasons I dismiss the
preliminary objection to our
jurisdiction.
DESSENTING
It is for the
above reasons that I am of the
considered opinion that the
preliminary objection raised by
learned Counsel for the 1st
defendant should be upheld. That
is, this court has no
jurisdiction to entertain the
suit in the way in which it has
been presented to the court
taking into account the
antecedents of the case. Being a
parliamentary election matter,
the case should have terminated
at the Court of Appeal, however
if the plaintiff strongly
believes it is not an election
related matter, then he should
have appealed the Court of
Appeal decision. The preliminary
objection is thus successful.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules C. I. 16
Representation of the People
(Amendment) Act,
2006:
ACT
699)
Criminal Offences, Act 1960, Act
29.
Representation of the People Law
PNDC Law 284.
CASES
REFERRED TO IN JUDGMENT
Bimpong Buta
v General Legal Council
[2003-2004] SCGLR 1200
Wilkinson v
Barking Corporation
[1948]1KB 721
Yeboah vrs J.
H. Mensah [1998-99] SC GLR 492
Re
Parliamentary Election for
Wulensi Constituency, Zakaria
vrs Nyimakan [2003-2004] SCGLR I
Republic vrs
High Court, (Fast Track
Division) Ex-parte Electoral
Commission, Mettle Nunoo &
others (Interested Parties)
[2005- 2006] SCGLR
514.
Republic vrs
High Court, Sunyani, Ex-parte
Collins Dauda, Boakye Boateng –
Interested Parties [2009] SCGLR
447
Republic vrs
High Court, Koforidua Ex-parte
Asare, Baba Jamal and others –
Interested Parties, [2009] SCGLR
460
Edusei vrs
Attorney-General [1996-97] SCGLR
1
Gbedemah vrs
Awoonor-Williams [1970] 2 G & G
438 S C.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
DESSENTING
DOTSE JSC:
COUNSEL
YONNY KULENDI WITH EGBERT
FAIBILLE JNR FOR THE 1ST
DEFENDANT/ APPELLANT
DR. RAYMOND ATUGUBA FOR THE
PLAINTIFF/RESPONDENT SYLVESTER
WILLIAMS (PSA) FOR THE 2ND
DEFENDANT.
R
U L I N G
_____________________________________________________________________________________
GBADEGBE JSC:
On 30 March
2010 the plaintiff caused the
writ herein to issue claiming
the following reliefs:
“1. A
declaration that on a true and
proper interpretation of
articles 97(1) and 94(2)(a)
ADAMU DARAMANI, also known as
ADAMU DARAMANI-SAKANDE; ADAMU
DARAMANI SAKANDE; ADAMU SAKANDE,
who holds a British Passport and
therefore “owes allegiance to a
country other than Ghana” is
acting in contravention and in
continuous violation of the 1992
Constitution for as long as he
continues to sit in the
Parliament of Ghana.
2. Any
consequential orders the Supreme
Court may deem meet.”
In the
statement of case filed by the
plaintiff, he raised by himself
without waiting for the
defendant to be served with the
processes initiating the action
herein what he described as an
anticipatory legal objection to
the jurisdiction of this court
to inquire into the claims
contained in the writ. Although
the procedure adopted by the
plaintiff was quite unusual; for
it is the defendant who
ordinarily raises an objection
to the jurisdiction of the
court, we allowed the parties to
address us on the said question
of jurisdiction. Indeed, as was
anticipated by the plaintiff,
the defendant did subsequently
file an objection to the
jurisdiction of the court. The
parties having submitted to us
their respective positions on
the question whether or not the
Supreme Court has jurisdiction
to determine the action herein,
the matter was adjourned for us
to pronounce on the said
question.
We are
called upon in this ruling to
determine the jurisdictional
question. It is settled that
when the question of
jurisdiction is raised before
any court, the court must
proceed to determine it before
proceeding to inquire into the
claim and or any other matter
before it including pleas that
may result in the disposal of
the action without it being
heard on the merits. One such
plea is res judicata. So
fundamental is the plea of the
absence of jurisdiction that
once it is raised the court is
disabled from exercising its
jurisdiction in the matter
except to pronounce on whether
it has jurisdiction in the
matter. This has often been
described as “the jurisdiction
to determine the question of
jurisdiction” or simply the
jurisdictional question. In the
case of Bimpong Buta v
General Legal Council
[2003-2004] SCGLR 1200, at page
1215 Sophia Akuffo JSC
made the following statement on
the question of jurisdiction:
“Since by his
suit the plaintiff has sought to
invoke the original jurisdiction
of the court, we must, of
necessity, ascertain whether or
not our jurisdiction under
articles 2(1) and 130(1)(a) has
been properly invoked, even
though the fourth defendant (at
the time in the person of Hon
Papa Owusu Ankumah per his
counsel, Hon Mr. Ambrose Dery,
the Deputy Attorney General)
withdrew at the hearing of the
action on 20 January 2004 (
with the approval of the court),
a notice of preliminary
objection to our jurisdiction,
which he had earlier on filed.
In other words, does the
plaintiff’s writ properly raise
any real issues of
interpretation or enforcement of
the Constitution that can only
be resolved by this court
exercising its original
jurisdiction? Jurisdiction is
always a fundamental issue in
every matter that comes before
any court and, even if it is
not questioned by any of the
parties, it is crucial for a
court to advert its mind to it
to assure a valid outcome. This
is more so in respect of the
Supreme Court’s original
jurisdiction, which has been
described as special.”
See:
Wilkinson v Barking
Corporation [1948]1KB 721
at 725.
In my
opinion, having had the said
question of jurisdiction proceed
to argument, the only issue that
we now have to determine is
whether the plaintiff’s writ and
the accompanying processes
disclose any issue that turns on
the provisions of articles 2(1)
and 130(1) of the 1992
Constitution such as
to invoke
the original jurisdiction of
this court. I commence the
consideration of this question
with a reference to the said
articles of the Constitution.
“2. (1) A
person who alleges that-
(a)
an enactment or anything
contained in or done under the
authority of that or any other
enactment; or
(b)
an 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.
130
(1)(a)Subject to the
jurisdiction of the High Court
in enforcement of the
fundamental Human Rights and
Freedoms as provided in article
133 of this Constitution, the
Supreme Court shall have
exclusive jurisdiction in-all
matters relating to the
enforcement or interpretation of
this Constitution...”
In the case
before us the plaintiff’s
complaint appears to be that the
defendant holds a British
passport and accordingly by
virtue of article 94(2) of the
1992 Constitution though having
been elected as such his
continuing membership of
Parliament is in violation of
the provisions of the
Constitution.
The plaintiff also relies on
article 97(e) of the
Constitution. The two
constitutional provisions on
which the plaintiff bases his
claim are as follows:
“94(2) A
person shall not be qualified to
be a Member of Parliament if he-
(a)
owes allegiance to a country
other than Ghana……”
97(1) A
Member of Parliament shall
vacate his seat in Parliament-
(e) if any
circumstances arise such that,
if he were not a member of
Parliament, would cause him to
be disqualified or ineligible
for election, under article 94
of this Constitution….”
In the facts
on which the plaintiff relies to
sustain his claim he exhibited a
passport that is said to bear
the name “ADAMU DARAMANI
SAKANDE”, which is one of the
names that he alleges the
defendant is known by.
As at the date that the parties
concluded their oral arguments
in support of their respective
positions on the fundamental
question of the jurisdiction of
the court, the defendant had not
filed any process that would
have the effect of contradicting
the crucial facts contained in
the plaintiff’s statement of the
facts. In my thinking, the
consequence is that the
defendant may be likened to a
defendant in an action before
the High Court who raises an
objection to the pleadings and
applies that the action against
him be dismissed as disclosing
no reasonable cause of action.
In his statement of case at page
3 under the heading “THE FACTS”,
the defendant made the following
submission:
“As required
by the rules of this Court, we
have duly noted that the
Plaintiff has recounted the
facts that provided the cause of
action for this suit.
Plaintiff’s narration of the
facts is exhaustive. For this
reason, although 1st
Defendant is also required under
Rule 48(2)(a) of the facts is
exhaustive. For this reason,
although 1st
Defendant is also required under
Rule 48(2)(a) of CI 16 to state
the facts, we would crave the
indulgence of this Court to
permit us to avoid duplicating
Plaintiff’s efforts by virtually
repeating all that Plaintiff has
stated in his narration of the
facts of this case……..”
The position
appears to constitute an
admission of the facts as
narrated by the plaintiff and
leaves the court with no other
version of the matter in so far
as the allegations of facts
averred by the plaintiff are
concerned. Therefore, in my
opinion the issue to be decided
on the said undisputed facts is
whether they raise a fair case
for the invocation of the
original jurisdiction of the
court in ensuring that no person
conducts himself in such a
manner as to be in clear breach
of the provisions of the
Constitution namely articles
94(2) and 97(1) (e)? At this
point we need not inquire into
whether or not the case of the
plaintiff is weak or one that is
likely to succeed. It is
sufficient if it raises a case
though weak that might proceed
to trial. In answering this
question, we have to assume that
the facts averred to by the
plaintiff are true.
Jurisdictional questions have
never been used to determine
whether claim before a court is
doomed to a failure; that is the
province of a court properly
clothed with jurisdiction in the
matter, a stage that we are yet
to reach in these proceedings
.Accordingly, I desire not to
enter into any consideration of
the claim herein on the merits.
Since the
defendant has not denied the
allegations of fact on which the
plaintiff relies in support of
his case, in my view they tend
to create the impression at
least as at now that there is in
the Parliament of Ghana a person
who goes by one of the names
that the defendant is known by
and it being so his continued
membership of the legislature is
a continuing breach of articles
94 and 97 of the Constitution. I
must say that this is an
impression which a trial may
erode but as at now it is
reasonable on the processes
before us to take this view of
the matter. This, in my view
calls for the court in the
absence of any lawful objection
to the exercise of its
jurisdiction to inquire into the
allegations. In his objection to
the jurisdiction of the Supreme
Court, the defendant enumerated
his reasons as follows:
(A)
The Court of Appeal being the
final Court in so far as matters
of this kind before this Court
are concerned, this Court has no
jurisdiction to entertain the
suit before this Court which in
essence seeks to question the
judgment of the Court of Appeal
but not by way of an appeal or
otherwise but in the exercise of
the original jurisdiction of
this Court.
(B)
Second, the
original jurisdiction of this
Court is not to be resorted to
just because a party feels
helpless.
(C)
Third, this
matter does not lie within the
exclusive original jurisdiction
of this
Court.
I have
carefully examined the
undisputed facts averred to by
the plaintiff and have come to
the conclusion without any
disrespect to learned counsel
for the defendant who has made
considerable submissions on
these grounds that what was
before the High Court and
appealed to the Court of Appeal
is different in scope than what
is now before us. The plaintiff
in any event is contending that
the defendant continues to
breach
the provisions of the
Constitution even after the
decision of the Court of Appeal.
In my view, the facts urged by
the plaintiff are of a
continuing nature like a
nuisance therefore every moment
that the defendant continues to
take his seat in Parliament, or
exercises the functions of that
office, he is in breach of the
constitutional provisions and as
such there is a new cause of
action consequent upon any such
breach. This being the case, I
do not see any force in the
contentions on this ground.
Regarding the
second jurisdictional ground
that speaks to the allegation by
the plaintiff of his apparent
“helplessness”, I think it is
just a mere description by him
of what he perceives to be a
continuing constitutional
infraction that to date neither
the High Court nor the Court of
Appeal appear to be able within
their jurisdictional limits to
determine such that the
defendant continues to be seated
in Parliament notwithstanding
what he thinks is a disability
in his eligibility.
I now turn to
the last ground, which raises
the issue
whether the subject-matter of
the dispute is properly within
the jurisdiction of this Court.
In support of this objection
learned counsel for the
defendant has argued that by
virtue of the language of
article 130(1) the question in
respect of which the enforcement
jurisdiction of the court is
sought must; to be good, also
involve interpretation of the
Constitution. I think that the
said contention is not borne out
by a careful reading of both
articles 2(1) and 130 (1) of the
1992 Constitution. The provision
in article 130(1) is concerned
with the enforcement
jurisdiction of the Supreme
Court in relation to the High
court’s enforcement jurisdiction
in cases of alleged violation of
fundamental human rights. A
careful reading of article
130(1) reveals that the word
“and” is used in respect of the
two special or exclusive
jurisdictions of the Supreme
Court that are not available to
the High Court and is not
intended to mean that for this
Court to have jurisdiction in
cases of enforcement, the
question for decision must also
involve the question whether an
enactment was made in excess of
the powers conferred on
Parliament or any other person
by law or under this
Constitution. A contrary
interpretation of article 130(1)
would render article 2(1) of the
Constitution superfluous.
In my opinion
the jurisdiction conferred on
the court in making declarations
under article 130.1 coupled with
the ancillary power conferred on
it under article 2(2) to “make
such orders and give such
directions as it may consider
appropriate for giving effect,
or enabling effect to be given,
to the declaration so made” is
an effective tool in ensuring
and or compelling observance of
the constitution. These
provisions require us to measure
acts of the legislative and
executive branches against the
constitution and where there is
a violation to declare such acts
unconstitutional provided the
act in question does not come
within the designation of a
“political question”. It is
worthy of note that article 2(1)
confers the right to seek a
declaration that an act or
omission of any person is
inconsistent with or in
contravention of a provision of
the constitution while article
130(1) provides the means by
which a person may exercise the
right conferred on him to seek
relief in cases which provisions
of the constitution have been
breached. The special
jurisdiction that this Court
exercises in such cases is
described by the constitution as
original in contradistinction to
the appellate or supervisory
jurisdiction. I think articles
2(1) and 130(1) confer on us the
jurisdiction of judicial review
although there are no specific
words in the constitution to
that effect. In my opinion, a
preference of the meaning placed
on the relevant constitutional
provisions by the defendant
would result in our shutting the
door to the opportunity provided
by the constitution to persons
to give reality to its
provisions by compelling
observance with its carefully
drafted provisions and rather
unfortunately open the door to
unchecked violations of its
provisions.
It is
observed that the respect that
the citizenry have for the
constitution is derived from the
belief that the Supreme Court
has the jurisdiction to enforce
the sanctions provided by the
constitution against those who
violate its provisions. In my
view, it is important that we do
nothing to undermine the
confidence that the ordinary
person thus has in our ability
to compel observance of the
Constitution by invalidating in
appropriate cases not only
enactments that are in breach of
it but also acts of among others
constitutional office holders
that do not derive their
legitimacy from the Constitution
in terms of article 2(1).
If I may
give a hypothetical example:
Assuming the Electoral
Commissioner fails to take steps
under article 45 of the
constitution “ to compile the
register of voters and revise it
for such periods as may be
determined by law” and an
action is brought before this
Court under article 2(1) of the
Constitution can such an action
be resisted on the ground that
the article is expressed in
unequivocal language that does
not require any interpretation
and therefore our jurisdiction
under article 130(1) is wrongly
invoked? Whiles the instance
given here may seem unlikely to
occur, the effect of the
arguments being urged on us to
decline jurisdiction in this
case is substantially to the
same effect- by blinding us to
the onerous obligation on us in
the nature of judicial review to
shape and keep within bounds
actions of among others
constitutional office holders.
When this obligation is properly
discharged by us the
Constitution then becomes a
living document and not merely a
collection of fine phrases,
which may be seen only as
aspirations. The jurisdiction
conferred on us by articles 2(1)
and 130(1) is to make
pronouncements that would
contribute to making our country
not only a democracy but one
governed by law, a country in
which the rights of citizens are
respected. I ask myself whether
the invitation urged on us by
the defendant seeks to achieve
the valuable goal that the
makers of the constitution
placed on us to enforce the
provisions of the Constitution,
and I have unhesitatingly come
to the view that it does not. In
my thinking,
it is
unreasonable to say that
whenever a particular statute
violates the constitution, it is
our duty to adhere to the
constitution by disregarding the
statute and yet whenever acts of
constitutional office holders
which are, to be good, subject
to certain limitations and
restraints expressed sometimes
as qualifications are breached
because these acts do not
involve issues of
interpretation, we should
decline to invalidate them. This
would result in absurd
consequences and have the effect
not of upholding the
constitution but undermining
it. Accordingly, I have great
difficulty in acceding to the
invitation urged on us to deny
jurisdiction in the matter
herein. In my opinion, the
action herein is properly before
us.
My Lords, I
think I have said that which is
sufficient for the purposes of
this ruling and desire to end by
saying that for these reasons I
dismiss the preliminary
objection to our jurisdiction.
[SGD]
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD]
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
[SGD]
J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD]
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
[SGD]
B. T. ARYEETEY
JUSTICE OF THE SUPREME COURT
[SGD]
V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
JONES DOTSE
JSC:
The plaintiff
seeks from this court the
following reliefs:-
1.A
declaration that on a true and
proper interpretation of
articles 97 (1) (e) and 94 (2)
(a) Adamu Daramani, also known
as Adamu Daramani-Sakande,
Adamou Daramani Sakande, Adamou
Sakande, who holds a British
passport and therefore “ owes
allegiance to a country other
than Ghana,” is acting in
contravention and in continuous
violation of the 1992
Constitution for as long as he
continues to sit in the
Parliament of Ghana.
(2) Any
consequential orders the
Supreme Court may deem meet.
The capacity
in which the plaintiff has
initiated this action is that he
is a citizen of Ghana, and a
native of Bawku in the Upper
East Region of the Republic of
Ghana, and that he carries on
business as a cattle dealer in
the Bawku market.
The 1st
defendant was elected in the
December 7th, 2008
Parliamentary elections and has
duly taken his seat as the
Member of Parliament
representing the Bawku Central
Constituency after having been
sworn into office as such.
FACTS
In view of
the antecedents of this case, it
is necessary and indeed
desirable to recount the genesis
of the facts of the case from
its foundations up to and
including the “Box in stage”
until it has reached this court.
That is the only way in which
the ruling about to be given on
preliminary objection at the
instance of the 1st
defendant/applicant, hereinafter
referred to as the 1st
defendant will be understood.
In support of
the instant writ, the
plaintiff/respondent hereafter
referred to as the plaintiff
attached exhibits A, B and C to
support his contention that the
1st defendant is
indeed a holder of a British
Passport.
According to
the plaintiff, on the 5th
of February, 2009 the Consular
section of the British High
Commission confirmed in a letter
to the Deputy National Security
Co-ordinator that Passport
Number 094442659 is a British
Citizen Passport. This is what
is contained in exhibit A.
Further to
exhibit A, the Deputy National
Security Co-ordinator in a
letter dated 9th
February, 2009 to the Consular
Section of the British High
Commission provided the
Applicant’s name “Adamou
Daramani Sakande” as the person
holding the British Passport
Number 094442659 and this letter
is Exhibit B.
In a further
letter dated, 11th
February, 2009, the Consular
Section of the British High
Commission confirmed that the
name provided by the Deputy
National Security Co-ordinator
“Adamou Daramani Sakande” the 1st
defendant is the holder of the
British Passport number
094442659 and this is the
exhibit C attached to these
proceedings.
Based upon
information provided per exhibit
A, the letter dated 5th
February, 2009 from the office
of the Consular Section of the
British High Commission, the
plaintiff herein immediately
caused a writ of summons
intituled, Sumaila Bielbiel
vrs Adamu Sakande, Suit No.
AHR35/09 to be issued
against the 1st
Defendant herein in the Fast
Track Division of the High
Court, claiming the following
reliefs:-
i. A
declaration that the defendant
is a holder of a British
Passport and
therefore owes allegiance to a
country other than Ghana and is
therefore disqualified from
holding the office of Member of
Parliament of the Republic
of Ghana.
ii.
An injunction against the
defendant restraining him from
holding himself out as
a Member of Parliament and
compelling him to vacate his
seat in Parliament.
iii.
Costs
iv.
Any other reliefs as to this
Honourable Court may deem meet.
The 1st
defendant herein, raised
objection challenging the High
Court’s jurisdiction to
entertain the said suit at the
instance of the plaintiff
herein.
The grounds
of the 1st
Defendant’s objection to the
jurisdiction of the High Court
to entertain the suit are the
following:-
1.
That the suit before the High
Court was a disguised election
petition brought in the manner
in which the writ was couched.
It was contended by the 1st
defendant herein, that the
plaintiff herein initiated the
action the way he did, in order
to avoid the procedural
obstacles he would need to clear
if he had brought it as an
election petition.
2.
The second ground of objection
was that, if as the plaintiff
contended it was not an
election petition that he had
brought, then the plaintiff had
no capacity to proceed against
the defendant in the High Court.
The reason for the above
contention was that in a High
Court action, a plaintiff was
required to show interest in a
given state of facts in order to
personally clothe the plaintiff
with a cause of action against
the defendant. In the absence of
any such interest, the plaintiff
had no capacity to proceed
against the 1st
defendant in the High
Court.
3.
The third ground of objection
was that the only court with
jurisdiction to entertain suits
in which parties are not
required to show direct interest
in the case is the Supreme Court
wherein the original
jurisdiction of this court must
be invoked.
Despite the
fact that these objections were
quite weighty and raise serious
legal issues, the plaintiff
herein resisted the objections
and curiously, the learned High
Court judge dismissed the
objections whereupon the 1st
defendant appealed against all
the decisions of the High Court
to the Court of Appeal.
In the
interim, pending the
determination of the appeals,
the 1st defendant out
of abundance of caution filed a
stay of proceedings in the High
Court, which was dismissed.
Upon the
failure of the High Court to
stay proceedings, the 1st
defendant successfully obtained
an order of stay of proceedings
in the matter at the Court of
Appeal.
It has to be
noted that, in view of the
nature of the objections that
the 1st defendant had
taken to the propriety of the
writ against him in the High
Court, it was indeed imprudent
to have filed a defence to the
suit whilst the appeals were
pending.
It was
therefore under these prevailing
circumstances that the plaintiff
applied for and was granted a
default judgment against the 1st
defendant, declaring that “the
defendant is a holder of a
British Passport and therefore
owes allegiance to a country
other than Ghana and is
therefore disqualified from
holding the office of Member of
Parliament of the Republic of
Ghana.”
It is
interesting to note the desire
of the plaintiff herein to
proceed with the case despite
the pendency of the appeal.
It is a basic principle of
procedure that where an
objection has been taken to the
propriety of an action in a
trial court, and an appeal is
pending against a decision in
the matter, then it means that
the objections taken against the
originating process of the
action are still alive.
Experience and reality dictate
that no steps should be taken
until the appeal is determined.
I have also
observed that in this court,
learned Counsel for the
plaintiff in his reactions to
the notice of preliminary legal
objection filed by learned
counsel for the 1st
Defendant without being served
with any further process, save
the Notice of objection, filed a
response in anticipation of the
arguments to be canvassed
therein by the 1st
defendant. In this respect,
learned Counsel for the
plaintiff, stated in his
paragraph 29 of the statement of
case as follows:
“My Lords, we
anticipate a preliminary
objection by the defendant on
the authority of
Yeboah
vrs J. H. Mensah [1998-99] SC
GLR 492,
or any of the cousins and
children of that case, to
the effect that the jurisdiction
of this Honourable Court to
enforce the provisions of
article 97 and 94 of the
Constitution is ousted by
article 99. In order to
expedite this action, and in the
spirit of judicial case
management, we would
respectfully seek to address
that matter right now and invite
the defendant to respond
appropriately to the points of
law herein canvassed, rather
than resort to a preliminary
objection”.
Yet indeed
when learned Counsel for the
Plaintiff appeared before this
court to argue in response to
the preliminary legal objection,
he stated that he was not given
sufficient days notice after
service on him of the statement
of case of the 1st
Defendant herein in respect of
the preliminary legal objection.
Having resorted to the
unorthodox procedure, it is
unheard of for Counsel to
complain about being short
served. In any case, it should
be noted that Rules of procedure
for this court and for all the
other courts have not been
provided for nothing. They are
meant to be complied with. In
addition, there are valued
reasonable policy considerations
behind the said Rules such that
any attempt to circumvent them
will lead to incongruous results
as indeed the various Court of
Appeal decisions, have shown in
the instant case.
As a result,
the Court of Appeal on the 18th
of March decided the
Interlocutory appeal filed by 1st
Defendant, thereby setting aside
the writ of the plaintiff
herein, in the High Court, on
the basis that the claims made
therein constituted an election
dispute and that the action
should have been commenced by a
petition and not by a writ of
summons. The court also held
that the said petition should
have been presented to the trial
court (21) twenty one days after
the date of the publication in
the Gazette of the results of
the election to which it
related.
Subsequent to
the judgment of the Court of
Appeal dated 18/3/2010 referred
to supra, the Court of Appeal
again on the 25th day
of March set aside the default
judgment which was wrongly
granted by the High Court on 15th
July, 2009. Following the above
decisions of the Court of
Appeal, the plaintiff now
invokes the original
jurisdiction of this court
seeking the reliefs already
referred to supra.
The plaintiff
states in paragraph 14 of his
statement of case on page 7 as
follows:-
“In the light
of this Honourable court’s
decision in
Re
Parliamentary Election for
Wulensi Constituency, Zakaria
vrs Nyimakan [2003-2004] SCGLR I,
we are boxed in and extremely
constrained. We cannot
appeal to this court on
the matter because,
that case decided that there is
no right of further appeal from
the court of Appeal to this
Honourable Court in matters
under article 99 of the
Constitution. That article deals
with the determination of any
question whether a person has
been validly elected as a Member
of Parliament and the
vacancy of a seat in
Parliament.”
Continuing
further, the plaintiff states in
paragraph 15 as follows:-
“Yet we
cannot allow the contravention
of the 1992 Constitution to
continue. In the firm believe
that it would be
unconstitutional to foreclose
any action against the defendant
and to encourage him to continue
to contravene the Constitution
by virtue of his allegiance to a
country other than Ghana and
his continues stay in the
Parliament of Ghana: we are
finally resorting to this
Honourable Court (the one and
only court with exclusive
jurisdiction to enforce all the
provisions of the Constitution),
to invoke that exclusive
jurisdiction to enforce the
provisions of the Constitution
by seeking a declaration that on
a true and proper interpretation
of articles 97 (1) (e) and 94
(2) (a) Adamu Daramani, also
known as Adamu Daramani -
Sakande; Adamou Daramani
Sakande; Adamou Sakande who
holds a British Passport and
therefore “owes allegiance to a
country other than Ghana’ is
acting in contravention and in
continues violation of the 1992
Constitution for as long as he
continues to sit in the
Parliament of Ghana”
All these
statements have been
categorically made as if the
issue of the applicant holding a
British Passport and therefore
owing allegiance to a country
other than Ghana has already
been determined in the
affirmative. There is as yet no
such determination. The
plaintiff in paragraph 6 of the
statement of case states and I
quote:
“If the
defendant is presumed to have
been properly elected and sworn
into office as the Member of
Parliament for Bawku Central,
basing ourselves on Exhibits A,
B and C, and in the absence of
contrary evidence, the
defendant subsequently acquired
a British Passport after 7th
January, 2009, when he was sworn
into office, and before 11th
February, 2009 when he was
confirmed to hold a British
Passport. Again, in the
absence of contrary evidence,
the defendant still remains a
holder of a British Passport.”
All these are
general and sweeping statements
based on assumptions which
because of the applications made
for the default judgment by the
plaintiff, as at now there is no
version of the 1st
defendant’s story for this court
to consider as the contrary
evidence that the plaintiff
himself has postulated in his
statement of case.
In my
opinion, whenever a party
invokes the original
jurisdiction of this court and
bases his declarations on
factual statements as if those
statements of fact have been
determined by a court of
competent jurisdiction whereas
there has infact been no such
determination, then there is a
lacuna which should be filled by
the adduction of evidence to
establish the veracity of such
statements.
Even though
this court has jurisdiction to
call for evidence in appropriate
circumstances when the original
jurisdiction of the court has
been invoked, it remains to be
seen whether in view of the
preliminary legal objection that
has been raised this case
qualifies for such a treatment.
Before
proceeding any further, it is
necessary to state how the
plaintiff considers himself as
having been “Boxed in” and
cannot operate.
If indeed,
the plaintiff and his legal team
believe that they have a
grounding in their case, in that
it is not an election petition
which has been so couched and
therefore the litany of cases
that have been listed supra,
will not apply, then he ought to
have tested the Court of Appeal
judgment, in view of his
original conviction that the
suit is not election related.
See cases of:
1.Republic
vrs High Court, (Fast Track
Division) Ex-parte Electoral
Commission, Mettle Nunoo &
others (Interested Parties)
[2005- 2006] SCGLR 514.
2.Republic
vrs High Court, Sunyani,
Ex-parte Collins Dauda, Boakye
Boateng – Interested Parties
[2009] SCGLR 447 and
3.Republic
vrs High Court, Koforidua
Ex-parte Asare, Baba Jamal and
others – Interested Parties,
[2009] SCGLR 460
If the
plaintiff genuinely believed in
his resistance to the 1st
Defendant’s objection, then
nothing prevented him from
appealing against the Court of
Appeal decisions. This would
then mean that the Supreme Court
decision in In Re
Parliamentary Election for
Wulensi Constituency, Zakaria
vrs Nyimakan [2003-2004] SCGLR 1,
will not apply to the
circumstances of that case.
From the
responses of the plaintiff to
the objections raised by the 1st
defendant to the High court writ
of summons, it is very
surprising that the plaintiff
has conceded to the conclusion
that what he initiated in the
High Court was an election
petition couched differently.
On the basis
of the above analysis, I am of
the firm view that it is the
plaintiff himself who has
elected to be Boxed in and not
the 1st defendant nor
indeed the decided cases that he
has referred to.
The reason
for this conclusion (to repeat
for the sake of emphasis) is
that, the plaintiff could have
appealed against the Court of
Appeal decision instead of
resting his case there, inside
his self created box.
NATURE OF
NOTICE OF PRELIMINARY LEGAL
OBJECTION
Learned
Counsel for the applicants in a
notice filed on 30/3/2010,
indicated that he will raise a
preliminary legal objection in
the following terms:-
“The Supreme Court lacks
jurisdiction to entertain the
suit presently before it
in the exercise of its exclusive
original jurisdiction.”
Learned
Counsel for the 1st
defendant, Youny Kulendi, in his
introductory remarks to his
submissions, raised pertinent
procedural issues which he
considered germane to the Notice
of Preliminary objection. Even
though the procedure he adopted
has not been questioned, I will
deal with it at the tail end of
my opinion.
In his brief
but incisive submissions,
learned Counsel for the 1st
defendant, Mr. Yonny Kulendi in
his arguments in support of the
contention that this court lacks
the jurisdiction to entertain
the suit presently before it in
the exercise of its exclusive
original jurisdiction
sub-divided this omnibus ground
into the following:-
1.
The Court of Appeal being the
final court in so far as matters
of the kind before this court
are concerned, this court has no
jurisdiction to entertain the
suit. This is because, if the
plaintiff genuinely felt that
his case does not belong to
those class of cases which
demand that they end at the
Court of Appeal, then the proper
remedy is for him to appeal
against the Court of Appeal
decision and not resort to the
instant writ before this court.
ii.
That the original jurisdiction
of this court is not to be
resorted to because a party
feels helpless, or “boxed in”.
It must be noted that there are
clearly well defined grounds
upon which the jurisdiction of
this court is invoked. These are
clearly stated in the
Constitution 1992 and the
Supreme
Court Rules C. I. 16. The
situation in which the plaintiff
found himself “boxed in” is
certainly not one of the grounds
to invoke the jurisdiction of
this court.
iii.
That, the present suit does not
lie within the exclusive
original jurisdiction of
this court.
On the part
of the plaintiff, as was stated
earlier, Learned Counsel for the
plaintiff, Dr. Raymond Atuguba,
in paragraph 29 of his
submissions stated that he
anticipated a preliminary
objection to be filed by the
defendant.
Under the
circumstances, the response to
the objection did not follow the
pattern of argument raised by 1st
defendant. Learned Counsel for
the plaintiff appears to have
marshaled all his arsenal
against the 1st
defendant on the basis of the
decision of the Supreme Court in
the case of Yeboah vrs J. H.
Mensah [1998-99] SCGLR 492
and its cousins and children.
The
submission of learned Counsel
for the 1st defendant
is that following the Court of
Appeal judgment of 18/3/2010 in
suit No. HI/84/2010 intitutled
Sumailia Bielbiel vrs Adamu
Daramani the options open to
the plaintiff are either to
nonetheless appeal against the
said judgment or invoke
supervisory jurisdiction of the
Supreme Court to quash the
decision of the Court of Appeal.
This submission has been
premised on the fact that the
reliefs in the High Court case
which went to the Court of
Appeal on appeal and the reliefs
in the instant case are similar.
As a matter
of fact, there is no doubt that
relief one in the High Court
suit and the instant case are
similar. The only difference is
that, the plaintiff has cleverly
deleted the magic words “and is
therefore disqualified from
holding the office of member of
Parliament of the Republic of
Ghana”.
Out of
abundance of caution, let me
recast the relief one of the
plaintiff in this court and the
High Court for the necessary
linkages and similarities to be
drawn. In this court, the
plaintiff seeks
“A
declaration that on a true and
proper interpretation of
articles 97 (1) (e) and 94 (2)
(a) Adamu Daramani, aka Adamou
Daramani Sakande, Adamu
Daramani-Sakande and Adamou
Sakande etc who holds a British
Passport and therefore
owes allegiance to a country
other than Ghana, is acting in
contravention and in continuous
violation of the 1992
Constitution for as long as he
continues to sit in the
Parliament of Ghana” .
In the High
Court, plaintiff claimed thus:-
“A declaration that defendant is
a holder of a British Passport
and therefore owes
allegiance to a country other
than Ghana and is therefore
disqualified from
holding the office of Member of
Parliament of the Republic of
Ghana.”
As I stated
earlier, the only difference is
the deletion of the words “and
is therefore disqualify from
holding the office of Member of
Parliament.”
In real
terms, the deletion of the said
magic words does not make any
real change to the contents,
nature, and effect of the writ
in the High Court from that of
the relief in the instant suit.
The issue
then arises whether the
plaintiff is estopped per rem
judicatam by reiterating the
very issues that were decided by
the Court of Appeal. My candid
opinion on the matter is that,
the plaintiff could have
appealed the decision of the
Court of Appeal because he
had contended all along that the
suit he had filed in the High
Court was not an election suit.
He should therefore have
contested that suit at Supreme
Court, and perhaps the decision
of this Court In Re
Parliamentary Elections for
Wulensi Constituency, Zakaria
vrs Nyimakan already referred to
supra will not apply.
Similarly,
the cases of ex-parte Asare and
ex-parte Collins Dauda both
Supreme Court cases already
referred to will then not apply.
In my mind therefore, it is the
early capitulation of the
plaintiff to the decisions of
the Court of Appeal that has led
to his “Box in” or helpless
situation as it now seems.
It is in the
light of all these daunting
difficulties that plaintiff
appears to be making a
passionate plea to this court
not to allow the 1st
defendant who holds a British
passport from continuing to be a
Member of Parliament. To allow
him to continue to be a Member
of Parliament will contravene
article 94 (20 (a) of the
Constitution 1992.
However, it
has to be noted that since there
has as yet been no definitive
pronouncement on the status of
the 1st defendant as
to whether he owes allegiance to
a country other than Ghana and
is in fact the holder of the
British Passport that allegation
remains an allegation which has
to be proven in court.
In a ruling
delivered by the High Court,
Accra dated 8/7/2010 in case No.
ACC 45/2009 intitutled The
Republic v Adamu Daramani,
presided over by Quist J on a
submission of no case in respect
of nine (9) counts of offences
under the Criminal Offences Act,
1960 Act 29 and other electoral
offences that the applicant
herein is standing trial for and
is currently pending.
The learned
trial judge, in his ruling
referred to supra held as
follows:
“Having
regard to the fact that I have
ruled that the accused person is
a Ghanaian I am unable to
support the charges contained in
counts 6-9 against the accused
person.
The prosecution failed to
establish the ingredients of the
offences as enumerated in counts
6-9 against the accused person.
Under Section 8 (1) of
the
Representation of the People
(Amendment) Act, 2006:
“A person who
is a citizen of Ghana resident
outside the Republic is entitled
to be registered as a voter if
the person satisfied the
requirements for registration
prescribed by law other than
those relating to residence in a
polling station.”
The accused
person is acquitted on counts 1,
2 and 6-9 of the charges leveled
against him.” emphasis supplied
It is
provided in Section 174 (1) of
the Criminal and other Offences
(Procedure) Act 1960, Act 30
that:
“174 (1) At
the close of the evidence in
support of the charge, if it
appears to the court that a case
is made out against the accused
sufficiently to require him to
make a defence , the court shall
call upon him to enter his
defence.”
From the
evidence led by the prosecution
at the close of its case, I am
satisfied that the prosecution
has led sufficient evidence on
counts 3, 4 and 5 against the
accused person. He is therefore
called upon to open his defence
on counts 3, 4 and 5 of the
charges levelled against him.”
The offences
in respect of which the
Applicant has been requested to
open his defence are as follows:
Count 3:
False declaration for office or
voting contrary to section 248
of the
Criminal Offences, Act 1960, Act
29.
Count 4:
Perjury, contrary to section 210
of the Criminal Offences, Act,
1960 Act 29 and
Count 5:
Deceiving a public officer
contrary to section 251 of the
Criminal Offences Act, 1960 Act
29
The issue is
therefore clear that there is
yet to be a determination as to
whether the 1st
defendant is really a holder of
a valid British Passport and
therefore his continued presence
in Parliament as Member of
Parliament is in contravention
of the constitutional
provisions.
As far as the
parallel trial of the 1st
defendant for the same issue of
holding a British Passport and
therefore owing allegiance to a
foreign country other than Ghana
and in contravention of article
94 (2) (a) of the Constitution
is proceeding apace in a court
of competent jurisdiction, the
commencement of this civil suit
on the same facts on a matter
that there has been no
definitive judicial
pronouncement upon, this court
should be very slow and hesitant
in acceding to the requests of
the plaintiff.
It is my
candid opinion that the present
suit is a surplusage and should
be aborted on grounds as shall
be presently shown.
FACTS IN
YEBOAH VRS MENSAH CASE
Mr.
J.H.Mensah, the defendant was
elected as the Member of
Parliament for Sunyani East
Constituency in the December
1996 Parliamentary elections.
A suit filed
against him in the High Court
Sunyani challenging the validity
of his election was dismissed
for having been filed outside
the statutory period of 21 days
as prescribed by law.
On 25th
February, 1997 the plaintiff, a
registered voter in the
constituency filed another suit,
this time in the Supreme Court,
invoking the court’s enforcement
jurisdiction under articles 2
and 130 of the 1992 Constitution
for a declaration inter alia,
that under article 94 (1) (b) of
the Constitution 1992 the
defendant was not qualified to
be a Member of Parliament. The
defendant denied the claim. He
also raised a preliminary
objection challenging the
propriety of the action on the
ground that the plaintiff’s
action was, in substance and in
reality, an election petition
determinable only by the High
Court under article 99 (1) (b)
of the Constitution and sections
16 (1) and (2) and 20 (1) (d) of
PNDC Law
284. He therefore invited
the court to decline
jurisdiction and strike out the
action as incompetent.
It will be
seen here that, there are
several similarities between the
facts in the Yeboah vrs
Mensah case and the instant
one.
1.
Firstly, they both relate to
challenging the election of a
Member of Parliament.
2.
Secondly, objections had been
raised by the defendants to the
writ.
3.
The only point of difference was
that, whilst in the instant case
the suit against the
defendant has been premised upon
a non proven allegation of him
owing allegiance to a country
other than Ghana, that of the
former case was founded
upon the defendant not
satisfying the residence
criteria or requirement of a
Member of Parliament.
The Supreme
Court, by a majority decision of
4 – 1, per Charles Hayfron
Benjamin, Ampiah, Acquah and
Atuguba JJSC with Kpegah JSC
dissenting as follows:
“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 defendants election to
Parliament. The plaintiff could
therefore not ignore the
provisions of 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 resort to the enforcement
jurisdiction of the Supreme
Court under articles
2 (1) and 130 (1) of the
Constitution.”
By this
decision, the majority of the
court followed an earlier
decision of the Supreme Court in
the case of
Edusei
vrs Attorney-General [1996-97]
SCGLR 1 and upon review
see [1998-99] SCGLR 753, whilst
the court criticized and
departed from the decision in
Gbedemah vrs Awoonor-Williams
[1970] 2 G & G 438 S C.
Charles
Hayfron Benjamin JSC put the
matter beyond per adventure in
these glowing statements at page
498 thus:
“As I have said, quite apart
from my view that the matter of
the defendant’s
membership of Parliament having
been concluded for all time by
the judgment of the
High Court, Sunyani, on 12th
May 1997, the matter raised by
the preliminary
objection is covered by
authority and the
Practice
Direction contained in [1981]
GLR 1 S.C. Two principles
may be deduced from the
authorities. First, that when a
remedy is given by the
Constitution and a forum is
given by either the Constitution
itself or statute for
ventilating that grievance, then
it is to that forum
that the plaintiff may present
his petition. Secondly, if the
Supreme Court concurrent
jurisdiction in any matter with
any other court, then it is to
that other court that the party
may initially resort.”
Continuing
further, Charles Hayfron
Benjamin authoritatively stated
on page 499 as follows:
“Within our municipality, I
would refer to the Supreme Court
case of Edusei vrs
Attorney-General decided on
13/2/1996 and reported in
[1996-97] SCGLR 1 and affirmed
on a review by its judgment
delivered on 22 April 1998 and
also reported in [1998-99] SCGLR
753 where the majority of my
learned and respected brethren
refused to reach the merits of
the case on the ground that the
case was a human rights issue
which the Constitution had
specifically consigned to the
High Court”. Emphasis supplied
There are
many useful lessons to be drawn
from this decision and why it
should be preferred to the dicta
of Kpegah JSC in the same case.
It is for the
above reasons that I am of the
considered opinion that the
preliminary objection raised by
learned Counsel for the 1st
defendant should be upheld. That
is, this court has no
jurisdiction to entertain the
suit in the way in which it has
been presented to the court
taking into account the
antecedents of the case.
Being a
parliamentary election matter,
the case should have terminated
at the Court of Appeal, however
if the plaintiff strongly
believes it is not an election
related matter, then he should
have appealed the Court of
Appeal decision.
The
preliminary objection is thus
successful.
[SGD]
J. V. M
DOTSE
JUSTICE OF THE SUPREME COURT
[SGD]
ANIN - YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD]
P. BAFFOE - BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
YONNY KULENDI WITH EGBERT
FAIBILLE JNR FOR THE 1ST
DEFENDANT/ APPELLANT
DR. RAYMOND ATUGUBA FOR THE
PLAINTIFF/RESPONDENT SYLVESTER
WILLIAMS (PSA) FOR THE 2ND
DEFENDANT. |
