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R U L I N G
ATUGUBA,JSC:
The Applicant was the New
Patriotic Party Parliamentary
candidate for the Akwatia
constituency in the Eastern
Region in the December 2008
Parliamentary Elections.
The 1st set of
interested parties were also the
National Democratic Congress and
Independent Parliamentary
candidates in the said election.
Before the results could be
declared, the latter, alleging
various malpractices, such as
destruction of some ballot
boxes, the exclusion of their
polling agents from certain
polling stations, excessive
voting in some others, etc
issued a writ at the Koforidua
High Court on 22/12/2008 against
the 2nd interested
party praying for a rerun of the
said election.
The applicant upon being joined
as a second defendant to the
said suit on 23rd
January 2009 moved the court
presided over by Suurbaareh J to
strike out the writ on the
grounds of jurisdiction but the
motion was dismissed. Hence the
present application to this
court “for an order of
certiorari to quash the ruling
of the High Court, Koforidua
presided over by His Lordship
Justice G.S.Suurbaareh J dated
20/2/2009 …The grounds for the
application are as follows:
i.
Wrongful assumption of
jurisdiction/Lack of
jurisdiction
ii.
Error of law on the face of the
record”
The essence of the application
is that the said action at the
High Court, Koforidua, was an
election petition which was
premature since the election
results had not been declared
and gazetted as required by
article 99 and other electoral
legislation.
What is an election petition?
The question what is an election
petition has been answered by
this court in the Republic
vs. High Court Judge, Sunyani,
Ex parte Alhaji Collins Dauda
CM J5/12/2009 dated
8/4/2009, unreported. In that
case this court per Dr Date-Bah
JSC stated thus:
‘The Law
It is clear from the language of
section 18 of the Representation
of the People Law 1992 that
an election petition may not
be presented before the results
of the election concerned have
been declared by the Electoral
Commission and, in some cases
gazetted. Where the
petition is based on an
allegation of corrupt practice
and specifically alleges a
payment of money or other award
on behalf of the “person
whose election is questioned”,
the petitioner need not wait
till the publication in the
Gazette of the election
result. Rather, he or she may
bring the election petition
within twenty-one days after the
date of the alleged payment. It
is this provision which has
probably misled the interested
party in this case into
presenting his election before
the High Court. We say misled
because the time limit of
twenty-one days, if not read in
its context, could be
interpreted literally to mean
that the petitioner can bring
his petition within 21 days of
the alleged corrupt practice,
whether or not the election
result has been declared. This
is in fact the interpretation
that the interested party has
urged on this court quoted from
his Statement of Case. The
obstacle to this interpretation
is the expression “the
person whose election is
questioned” in section
18(1). This expression has
to be construed, in its context,
as logically implying that an
election must have taken place
and its results declared by the
Electoral Commission. Otherwise,
there would be no person whose
election is being questioned.
Accordingly, we have to treat
with caution the obiter dictum
of our respected departed
brother, Acquah JSC, as he then
was, in Republic v High
Court, Bolgatanga and Anor; ex
parte Hawa Yakubu
[2001-2002] 1 GLR 311 at p.316
where he said:
“The language of section 18(1)
of PNDCL 284 is very clear. If
the basis of the petition is
that of corrupt practice in
which money or other award is
alleged to have been paid, then
the petition should be presented
within twenty-one days after the
date of the alleged payment. In
all other situations, the
election petition is to be filed
within twenty-one days after the
date of the Gazette publication
of the results of the disputed
election.”
To the extent that our learned
brother did not advert his mind
to the construction of the
expression “the person whose
election is questioned”, this
obiter dictum is with the
greatest respect, per incuriam
and should not be followed by
this court. A necessary
implication from that
expression, as already noted, is
that a person must have been
declared elected.
One can hardly question
the election of a person before
that person has been declared
elected.’
Much reliance has been placed on
the definition of election in
section 50 of PNDCL 284. It is
entitled “Interpretation” and
provides thus: “In this act,
unless the context otherwise
requires…’Election’
means an election held to
determine the members of
Parliament’ The first
observation is that this
definition is subject to its
context. Clearly the object of
the election as therein stated
is that it is “held to
determine the members of
Parliament.” Therefore an
election which does not
effectuate that object or
purpose by determining who the
members of parliament are is not
the kind of election envisaged
by this definition. And that
determination can only be made
by disclosing who have been
elected as members of
Parliament. Section 1(1) of the
Act provides as follows:
(1)
Ghana shall be divided into as
many constituencies for the
purpose of election of
members of Parliament as
the Interim National Electoral
Commission, in this Law referred
to as "the Commission", shall by
legislative instrument
prescribe.
It is clear that this section
relates to the general election
throughout the country since it
is only that election that
produces “members of
Parliament” and not a
member of Parliament. It is
quite clear however that the
preceding sections 16-23 that
govern election petitions are
all concerned with a particular
election in a particular
constituency and in respect of
an elected person. This is
particularly clear from section
22 which provides as follows:
‘(1) At the conclusion of the
hearing of an election petition
the High Court shall certify its
decision to the Commission
which shall request the
return by the returning officer
in respect of the election to
which the petition relates to be
confirmed or altered accordingly.
(2)
Where the decision certified by
the High Court under subsection
(1) is to the effect that the
election to which the petition
relates is void, a writ shall be
issued for a fresh election in
the constituency concerned.’
The returning officer’s return
referred to in s.22(1) is a
return which shows, inter alia,
the person who has been elected
to Parliament.
Thus whether the word ‘election’
relates to a general or specific
election, it clearly relates
to some person or persons who
has or have been elected. In any
case as Amissah J.A. pointed out
in Ashong v Ashong (1967)
GLR 135 C.A. at 142 (Ollennu and
Lassey, JJA concurring),
‘I cannot see how the
interpretation given to
expressions, when and where they
appear, can by itself exclude
any rights conferred on
individuals by the Matrimonial
Causes Act of 1950 or by any
other Act
passed after 1937. (See in this
context the case of Jobbins v.
Middlesex County Council [1949]
1 K.B. 142 at pp. 160 and 163,
C.A. where both Scott and
Wrottesley L.JJ. pointed out
that a definition section
ought to be construed as not
cutting down the enacting
provisions of an Act unless
there is absolutely clear
language having the opposite
effect.)’(Emphasis
supplied)
I therefore do not see anything
in section 50 of the Law that
can detract from the
interpretation of an election as
given by this court in the
Collins Dauda case,
supra.
It is also trite law that
statutory provisions in
pari materia must be
taken and construed together.
Therefore if the definition of
‘election’ in section 50 of the
Law is ambiguous one simply
reads it with article 93(1) of
the Constitution which provides
that the persons who should be
members of parliament are “elected
members.” Clearly then
the definition relates to a
person or persons who have or
has been elected member(s) of
Parliament.
It is clear from this that the
present action is certainly not
an election petition.
Jurisdiction of the Courts over
the electoral process before
declaration of results.
The applicants’ contention that
the courts have no jurisdiction
over the parliamentary electoral
process until the results
thereof are declared and
gazetted was rejected by this
court in New Patriotic Party
vs. National Democratic Congress
and Others [2000] SCGLR 461.
The legal position on the matter
is summarised in the Head note
to that decision as follows:
‘(3) Per Bamford-Addo JSC.
A challenged nomination of
a Member of Parliament for
election on the ground of
ineligibility, as in the instant
case, could be brought up only
in an election petition after an
election, not before, at the
High Court.
Consequently, an action such as
in the instant case, for
enforcement of article 94(3)
(b), could not be brought in the
Supreme Court in exercise of its
original jurisdiction.
Contra per Ampiah JSC.
Since the High Court has
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 third
defendant continues with the
alleged offending activities,
assuming the latter’s conduct is
unlawful?...It is my
considered opinion, that
in the particular circumstances
of this matter, the only court
to determine the issues raised
is the Supreme Court.
Contra (per Kpegah JSC).
I agree with the submission of
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 articles 2(1)
(b) and 130(1) (a) of the
Constitution and that the
plaintiff’s writ is cognizable
only by this court. It
follows in my humble view, that
for the legislature to directly
or indirectly cede part of this
jurisdiction and vest same in
any other court, [i.e. the High
Court] would mean that it has
exceeded the constitutional
limitation imposed on its
legislative authority.
Contra (per Acquah JSC).
In the instant case, the
plaintiff’s complaint relates to
an alleged violation of article
94(3) (b) of the 1992
Constitution. And … the
procedure provided in article
99(1) (a) of the Constitution
and section 16 of the
Representation of the People
Law, 1992 (PNDCL 284), is
inapplicable to the
determination of this complaint.
Since the only procedure
available for vindicating that
right is an enforcement action
under articles 2(1) (b) and
130(1) (a) of the Constitution,
the plaintiff is entitled to
adopt this procedure. Otherwise,
the plaintiff would be denied
access to court.
Contra (per Atuguba JSC).
The plaintiff’s case here is for
the enforcement of article
94(3) which he says the
defendant has infringed; and is
squarely within the purview of
this court’s jurisdiction under
articles 2(1) (b) and 130 of the
Constitution.’
(Emphasis supplied).
This decision was followed in
the Republic vs. High Court
Judge Sunyani, ex parte Alhaji
Collins Dauda supra. Indeed
this has all along been the
legal position
Accordingly in Nyame v Mensah
(1980) GLR 338 the defendant
was restrained from contesting
the Sunyani constituency
Parliamentary election, Hayfron
J ordering as follows:
‘In view of the findings I have
made and to prevent the mischief
which the S.M.C.D. 216 and
S.M.C.D. 224 seek to prohibit,
I order that the Electoral
Commissioner shall delete from
the list of candidates
for election in the Sunyani
Constituency in respect of
the forthcoming elections the
name of Mr. Joseph Henry Mensah.’(Emphasis
supplied).
Similarly in Ekwam v. Pianim
(No.2) (1996-97) SCGLR120
this Court held that the
defendant was disqualified from
contesting the Presidential
elections, ahead of those
eletions.
Again in Apaloo v Electoral
Commission of Ghana
(2001-2002) SCGLR 1 this court
held that the Electoral
Commission could not implement
its electoral directives
concerning voter identification
on the eve of the 2000
presidential and parliamentary
elections since those directives
were not covered by
constitutional instrument under
article 51 of the
constitution.
The Constitutional Order of
Ghana.
I desire to emphasise that the
constitution of Ghana is supreme
over all people and institutions
in Ghana, including the courts
themselves. This is clearly
emphasised in several articles
of the constitution,
particularly articles 1, 11(6),
125 (1) (5), 127 (1). They are
as follows:
Article 1
‘(1) The Sovereignty of
Ghana resides in the people of
Ghana in whose name and
for whose welfare the
powers of government are to be
exercised in the manner and
within the limits laid down in
this Constitution.
(2) The Constitution shall
be the supreme law of Ghana
and any other law found to be
inconsistent with any provision
of this Constitution shall,
to the extent of the
inconsistency, be void.’
Article 11
(6)The existing law shall
be construed with any
modifications, adaptations,
qualifications and exceptions
necessary to bring it
into conformity with the
provisions of this Constitution,
or otherwise to give effect to,
or enable effect to be
given to, any changes effected
by this Constitution.
Article 125
‘(1)Justice emanates from the
people and shall be administered
in the name of the Republic by
the Judiciary which shall
be independent and
subject only to
this Constitution.
X X X X
X X X
(5) The Judiciary shall have
jurisdiction in all matters
civil and criminal,
including matters relating to
this Constitution, and
such other jurisdiction as
Parliament may, by law, confer
on it.’
Article 127
‘(1) In the exercise of
the judicial power of Ghana, the
Judiciary, in both its
judicial and administrative
functions, including financial
administration, is subject
only to this Constitution
and shall not be subject to the
control or direction of any
person or authority.’
These latter provisions sum it
all in relation to the
judiciary.
Some limitations on the
jurisdiction and powers of the
courts and other institutions
and persons are stated very
explicitly by the constitution
but others are implicit and
deducible from its framework.
The need to carefully observe
these limits so as to enable the
constitutional order as crafted
by the constitution to operate
smoothly, has been detected and
stressed from time to time by
this court. Thus in the
celebrated case of Tuffuor v
Attorney-General (1980) GLR
634 C.A. (sitting as the Supreme
Court) at 647-648, Sowah JSC as
he then was, delivering the
judgment of the court stated
eternally thus:
‘A written Constitution
such as ours is not an ordinary
Act of Parliament. It embodies
the will of a people. It also
mirrors their history.
Account, therefore, needs to be
taken of it as a landmark
in a people's search for
progress. It contains within it
their aspirations and their
hopes for a better and fuller
life.
The Constitution has its letter
of the law. Equally, the
Constitution has its spirit. It
is the fountain-head for the
authority which each of the
three arms of government
possesses and exercises. It is a
source of strength. It is a
source of power. The executive,
the legislature and the
judiciary are created by the
Constitution. Their authority is
derived from the Constitution.
Their sustenance is derived from
the Constitution. Its
methods of alteration are
specified. In our
peculiar circumstances, these
methods require the involvement
of the whole body politic of
Ghana. Its language, therefore,
must be considered as if it were
a living organism capable of
growth and development. Indeed,
it is a living organism
capable of growth and
development, as the body politic
of Ghana itself is capable of
growth and development. A broad
and liberal spirit is required
for its interpretation.
It does not admit of a narrow
interpretation. A doctrinaire
approach to interpretation
would not do. We must take
account of its principles and
bring that consideration to
bear, in bringing it into
conformity with the needs of the
time.
And so we must take cognisance
of the age-old fundamental
principle of constitutional
construction which gives
effect to the intent of the
framers of this organic law.’(Emphasis
supplied)
This polar star of our
constitutional interpretation
was elaborated upon by this
court in National Media
Commission v. Attorney-General
(2000) SCGLR 1 when at p.11
it stated per Acquah JSC (as he
then was) thus:
‘But to begin with, it is
important to remind ourselves
that we are dealing with our
national Constitution, not an
ordinary Act of Parliament. It
is a document that expresses our
sovereign will and embodies our
soul. It creates authorities and
vests certain powers in them. It
gives certain rights to persons
as well as bodies of persons,
and imposes obligations as much
as it confers privileges and
powers. All these
duties, obligations, powers,
privileges and rights must be
exercised and enforced not only
in accordance with the letter,
but also with the spirit, of
the Constitution.
Accordingly, in interpreting the
Constitution, care must be taken
to ensure that all the
provisions work together as
parts of a functioning whole.
The parts must fit together
logically to forma rational,
internally consistent framework.
And because the framework has a
purpose, the parts are also to
work dynamically, each
contributing towards
accomplishing the intended goal.
Each provision must therefore be
capable of operating without
coming into conflict with any
other’.(Emphasis
supplied)
Accordingly, when the position
of the Chief Justice of Ghana,
the head of the Judiciary, was
rocked by a purported
parliamentary vetting, this
court in Tuffuor v
Attorney-General, supra,
went as far as stating at
649-650 thus:
‘The Constitution confers on
every citizen of Ghana by
article 1 (3): "the right
to resist any person or persons
seeking to abolish the
constitutional order as
established by this Constitution
should no other remedy be
possible." This means that every
citizen of Ghana has the right,
constitutional or otherwise, to
see to it that the
constitutional order as
established by the Constitution
is not abolished or sought to be
abolished. One method, by which
it could be determined whether a
person is seeking to abolish the
constitutional order, is to seek
for an interpretation of the
Constitution as to the meaning
or the effect of a particular
provision or provisions of the
Constitution. In such a
case, in essence, there would
neither be a defendant nor a
plaintiff—properly so called, as
the terms are commonly employed
in ordinary proceedings in these
courts.’
Also, although Article 130(1) of
the Constitution would seem to
give this court exclusive
jurisdiction in all matters
concerning the enforcement and
interpretation of the
constitution subject only to the
High Court’s enforcement
jurisdiction over the
fundamental human rights, this
Court deductively, held in
Yeboah v J.H.Mensah
[1998-1999] SCGLR 492 that this
court has no jurisdiction over
questions as to the validity of
a Parliamentary election and
that it is the High Court that
is clothed with that
jurisdiction. It is also trite
learning that this court has
further deduced from the
framework of the constitution
that, save the appellate
jurisdiction of the Supreme
Court, the ordinary courts do
not have original and appellate
jurisdiction in Chieftaincy
matters. See Adumua II and
Others v Adu Twum II (2000)
SCGLR 165, etc.
Likewise this court in
J.H.Mensah v Attorney-General
(1996-97) SCGLR 320 deduced
from the governmental framework
of the constitution that
ministerial tenure of office
must cease with the expiry of
the term of office of the
president who appointed them,
unless reappointed according to
the constitutional procedures.
Recently this court, in
Republic v High Court, Accra,Ex
parte Attorney-General (Titriku
&Other interested Parties)(2007-2008)
2 SCGLR 665, preserving the
constitutional framework of
government, held that despite
the wide nature of the High
Court’s jurisdiction, it should
be limited by the constitutional
executive and legislative
terrain. This court accordingly
struck out the action which
sought to impugn the manner in
which two district assemblies
had been created such that a
tribe had been split up between
the said two districts which
contained some other tribes.
Limits to the Courts’
Jurisdiction in Electoral
Matters
In the same vein the courts have
no right to exercise their
jurisdiction in electoral
matters in such a manner and
circumstances as will run
counter to the due existence,
role and operation of other
institutions.
In the same vein, therefore,
since the constitution has
ordained that this country
should be governed mainly by the
Executive, Legislature and the
Judiciary, the courts ought not
to exercise their jurisdiction
in such a way that when the
terms of office of the Executive
and Legislature expire, their
succession is suffocated unduly
by litigation. To allow that to
happen is to breach, rock,
impair or at least suspend the
constitutional order, which no
person or institution has power
to do.
Indeed in Tehn-Addy v
Electoral Commission
(1996-97) SCGLR 589 this court
held strongly that not even the
pendency of court proceedings
could justify the Electoral
Commission’s refusal to register
the plaintiff as a voter in
presidential and parliamentary
elections. The facts of this
case as set out in the head note
are, as far as relevant to this
judgment, as follows:
‘The plaintiff, a 57 year
old Ghanaian citizen, was
unavoidably outside the country
between May and November 1995.
He was thus unable to register
as a voter in October 1995
when the Electoral Commission
embarked on a compilation of a
register of voters for the 1996
Presidential and Parliamentary
Elections. After his return to
Ghana, the plaintiff applied on
15 April 1996 to the
commission for re-registration
as a voter but he received no
response from the commission.
However, the plaintiff
subsequently presented himself
for registration (during a
registration exercise which was
to be conducted by the
commission between 1-9 June
1996) but the commission failed
or refused to register him.
The plaintiff therefore brought
the instant action in the
Supreme Court –invoking its
original jurisdiction- for,
inter alia, a declaration
that the conduct of the
commission in failing or
refusing to register him as a
voter was inconsistent with and
in contravention of articles 42,
45 and 46 of the 1992
Constitution’(emphasis
supplied).
The defence of the Electoral
Commission is set out at pp.
592-593 of the report as
follows:
‘“5 The first defendant
says that just as it was ready
to carry out the supplementary
registration it was served with
a writ of the High Court No MISC
915/96 in the suit entitled:
1.
The New Patriotic Party
2.
The Peoples Convention Party
V
The Electoral Commission
6. The writ asked
for:
(i) A declaration that the
purported compilation by the
defendant of a supplementary
register of voters from 1-9 June
1996 is illegal, being in
violation of the applicable law,
the Public Elections
(Registration of Voters)
Regulations, 1995 (CI 12),
specifically section 26 thereof,
and is therefore null and void
and unenforceable.
(ii) An injunction
restraining the defendant,
whether by itself, agents,
servants or officers from
compiling a supplementary
register of voters from 1-9 June
1996 or at any other time
thereafter which is inconsistent
with the provisions of CI 12.
7.
The first defendant says that
having been served with the
writ it was under obligation to
suspend the supplementary
registration until the matter
was disposed of by the court one
way or the other.
8.
The first defendant says that
its decision to exercise its
function in carrying out a
supplementary registration is
protected by the independence
guaranteed it by the
Constitution, 1992 and that it
has the authority of the
Constitution to specify a period
of registration of voters
outside a general revision of
the register.
9.
The first defendant further says
that its suspension of the
supplementary registration
exercise is solely due to the
action pending before the High
Court and not that it has not
got the authority so to do.
10.
The first defendant says it is
entitled by law to designate a
period within which such
registration of voters is
carried out. The plaintiff will
be eligible for registration
when the commission designates a
period for the registering of
eligible voters.”’(Emphasis
supplied)
This Court in response stoutly
stated at 594-596 per Acquah JSC
thus:
‘Whatever be the philosophical
thought on the right to vote,
article 42 of the 1992
Constitution of Ghana makes the
right to vote a constitutional
right conferred on every sane
Ghanaian citizen of eighteen
years and above. The article
reads:
“42 Every citizen of Ghana of
eighteen years of age or above
and of sound mind has the right
to vote and is entitled to be
registered as a voter for the
purposes of public elections and
referenda”
As a constitutional right
therefore, no qualified citizen
can be denied of it, since the
Constitution is the supreme law
of the land.
Article 45 entrusts the
initiation, conduct and the
whole electoral process on the
Electoral Commission and article
46 guarantees the independence
of the commission in the
performance of its task. A
heavy responsibility is
therefore entrusted to the
Electoral Commission under
article 45 of the Constitution n
ensuring the exercise of this
constitutional right to vote.
For in the exercise of this
right, the citizen is able not
only to influence the outcome
of elections and therefore the
choice of a government but also
he is in a position to help
influence the course of social,
economic and political affairs
thereafter. He indeed becomes
involved in the decision-making
process at all levels of
governance.
In the preamble to the 1992
Constitution, the people of
Ghana, in the exercise of their
“natural and inalienable right
to establish a framework of
government” namely, a viable
democratic government, solemnly
declared and affirmed their
commitment, inter alia, to: “The
principle that all powers of
Government spring from the
Sovereign Will of the People;
the Principle of Universal
Suffrage…”
Accordingly article 1(1) of the
Constitution strikes the keynote
when it provides:
“The Sovereignty of Ghana
resides in the people of Ghana
in whose name and for whose
welfare the powers of government
are to be exercised in the
manner and within the limits
laid down in this constitution.”
And in order to give meaning and
content to the exercise of this
sovereign power by the people of
Ghana, article 42 guarantees the
right to vote to every sane
citizen of eighteen years and
above. The exercise of
this right of voting, is
therefore indispensable in the
enhancement of the democratic
process, and cannot be denied in
the absence of a constitutional
provision to that effect.
In the instant case, the first
defendant, whilst
admitting that the plaintiff is
qualified and entitled to be
registered, nevertheless
contends that because of the
High Court action by the two
said political parties, it
suspended the registration
exercise. Looking at the
timetable for the 1996
Presidential and Parliamentary
elections, and further on the
balance of hardship, the
plaintiff and other qualified
unregistered citizens as opposed
to the political parties in the
High Court suit, stand to be
deprived of their voting rights
on the election day. We
therefore realised that it would
be unfair to deny the plaintiff
and the unregistered citizens
such a constitutional right…’
It was for those reasons that
this court, as stated at
590-591, on 26 July 1996 ‘ordered
the Electoral Commission, the
first defendant, to register the
plaintiff and all those who in
the exercise of the commission’s
discretion are qualified to be
registered in terms of the
provisions of Public Elections
(Registration of Voters)
Regulations, 1995 (CI12).’
(Emphasis supplied).
Even when a matter is within the
jurisdiction of the Supreme
Court itself it takes care not
to exercise it in such a way
that the constitutional order
may be breached, hindered or
otherwise prejudiced. Thus in
New Patriotic Party v
Attorney-General (1993-94)
2GLR 35 SC, the action sought to
invalidate the observance of 31st
December (the day of the
overthrow of the Limann
government) as a public holiday
financed with public funds. It
was commenced on 21st
December and prayed for an
interim injunction. The
constitutional dilemma which
this action posed and how it was
overcome by this court was
explained by Adade JSC at 57
thus:
‘The application was put before
a five-member panel of this
court on Thursday, 23 December
1993. It became obvious to the
panel that a ruling either
way was bound to undermine the
fate of the substantive suit.
Besides, granting or refusing
the application to await the
hearing of the main case after
31 December 1993, sometime in
the new year, would be
tantamount to shutting the
stable door after the horse had
fled. The court decided
therefore that in the
circumstances, the justice of
the case required that the
substantive suit be heard as a
matter of urgency prior to 31
December 1993. The
application for injunction was
adjourned to be taken together
with the substantive suit.
The action was eventually
heard on 29 December 1993, and a
decision pronounced in favour of
the plaintiff. But we reserved
our reasons.’
Again in Apaloo v Electoral
Commission (2001-2002) 2GLR
372 SC the plaintiff issued his
writ on 29th November
2000 claiming inter alia
‘(2) An order of perpetual
injunction restraining the
defendant by itself, its
servants and agents from
enforcing the defendant’s ‘No
photo ID Card No Vote
Directives’ or the directives
contained in the Gazette
Notice dated 27 November
2000 in respect of voters
without a voter ID Card
contained in the Electoral
Commission’s Guide to
Election Officials 2000.
(3) An order restraining
the defendant by itself, its
servants and agents from
conducting the forthcoming
presidential and parliamentary
elections or any other election
until the determination of the
suit herein.’ (Emphasis
supplied).
As the elections were slated for
7th December 2000
this court overcame the
situation in the words of
Bamford-Addo JSC at 377 thus:
(1)
‘On 4 December 2000 this case
was heard at the Supreme Court
which delivered a unanimous
judgment on the same day but
reserved the reasons, to be
given on 17 January 2001’.
(Emphasis supplied).
In the present case however the
writ was issued on 22/12/2008
aforesaid and even if it were
issued on 7/12/2008, i.e. on the
election day itself the High
Court (Civil Procedure) Rules
2004, C.I. 47, regulating the
institution and course of
actions are such that even if
the court resorts to abridgment
of time under Order 80 rule 4 (a
power that must be exercised
judicially) the case could never
be concluded before 7th
January 2009 when a new
parliament ought to be in place.
Indeed this action if it is
still to proceed might go on
till the end of this year for
even pleadings have not yet been
completed! As the applicant
points out in his statement of
case dated 12/5/2009:
‘If the electoral process is
allowed to be clogged by writs
and applications for injunctions
then our courts will be
inundated with such writs and
injunctions that the State
cannot have the full compliment
of parliament. Indeed, all kinds
of frivolous writs and motions
would be used as a tool to
prevent the declaration of
election results with serious
consequences to our democracy’
Such a situation would seriously
violate the constitutional order
established by articles 93(1),
112(4), 113 and 45(c), read
subject to article 50(1)-(4).
They are as follows:
Article 93
‘(1)There shall be a
Parliament of Ghana
which shall consist of not less
than one hundred and forty
elected members.’
Article 112
‘(4)Subject to clause (2) of
article 113 of this
Constitution, a general
election of members of
Parliament shall be held within
thirty days before the
expiration of the period
specified in clause (1) of that
article; and a session
of Parliament shall be
appointed to commence within
fourteen days after the
expiration of that period.’
Article 113
‘(1) Subject to clause (2) of
this article, parliament
shall continue for four years
from the date of its first
sitting and shall then
stand dissolved.
(2) At any time when Ghana
is actually engaged in war,
Parliament may, from time to
time by resolution
supported by the votes of not
less than two-thirds of all the
members of Parliament,
extend the period of four years
specified in clause (1) of this
article for not more than twelve
months at a time, except that
the life of Parliament shall
not be extended under this
clause for more than four years.
(3) Where, after a dissolution
of Parliament but before the
holding of a general election,
the President is satisfied that
owing to the existence of a
state of war or of a state of
public emergency in Ghana or any
part of Ghana, it is necessary
to recall Parliament, the
President shall cause to be
summoned the Parliament that has
been dissolved to meet.
(4) Unless the life of
Parliament is extended under the
provisions of clause (2) of this
article, the general election of
members of Parliament shall
proceed and the Parliament that
has been recalled shall, if not
sooner dissolved, again stand
dissolved on the date appointed
for the general election.’
Article 45(c)
‘The Electoral
Commission shall have the
following functions –
to conduct and supervise all
public elections and referenda;
Article 50(1)-(4)
‘(1) Subject to the provisions
of this Constitution, where at
the close of nominations and on
the day before a public election
-
(a) two or more candidates have
been nominated, the election
shall be held and the candidate
who receives the largest number
of votes cast shall be declared
elected; or
(b) only one candidate is
nominated, there shall be no
election and that candidate
shall be declared elected.
(2) Where for the purposes of a
public election two or more
candidates are nominated but at
the close of the nominations and
on the day before the
election, only one
candidate stands nominated,
a further period of ten days
shall be allowed for nomination
of other candidates, and
it shall not be lawful for
any person nominated within that
period of ten days to withdraw
his nomination.
(3) Where at the close of
nominations under clause (2) of
this article only one candidate
stands nominated, there shall be
no election and that candidate
shall be declared elected.
(4) Where at the close of
nominations, but before
the election, one of the
candidates dies, a further
period of ten days shall be
allowed for nominations; and
where the death occurs at any
time within twenty-five days
before the election, the
election in that constituency or
unit shall be postponed for
twenty one days.’
These articles require that
there should be a Parliament for
Ghana with a 4 year term
extendable in a state of war and
even there the extension cannot
be for more than 4 years and
that it is the Electoral
Commissioner who has the power
to conduct the elections. The
only exceptions to the
constitutional timetable for the
parliamentary elections are as
stated in article 50(1) to (4)
and article 113(2)-(4).
Therefore, it is not open to a
court or any body to alter the
same.
This is the principle which the
Tehn-Addy case,
supra teaches.
Besides, under article 1(1) the
sovereignty of Ghana resides in
the people of Ghana and the
right to elect those who should
govern them, under our
constitution, is a very
fundamental right of
sovereignty. If even a state of
war cannot prevent parliamentary
elections from taking place
beyond a minimum of 4 years, how
can a court in time of peace
stall that process? Clearly so
to do would be an excess of its
jurisdiction over election
matters. The jurisdiction of the
High Court under article 140(1)
itself fears these and other
provisions of the constitution
since it is expressly subject to
them. It is as follows:
‘(1) 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
on it by this Constitution or
any other law.’
Abuse of the Process
Notions of excess of
jurisdiction apart, it is quite
clear that for a court to allow
litigants to stall the
constitutionally ordained
electoral process would be an
abuse of the court’s process.
Even in matters of ordinary
litigation a court in law cannot
allow its process to be abused
and is under a duty to stay,
dismiss or otherwise terminate
such proceedings. This is trite
law and should apply to
constitutional actions though
with extreme caution. Thus in
Bilson v Apaloo (1981) GLR
24 at 48 Anin JSC delivering the
majority judgment of the court
stated: “But neither the
common law nor the constitution,
1979, permits a person to abuse
the legal process or else
bring the administration of
justice into contempt”.
Quite clearly then the existence
of jurisdiction is not always
the conclusive consideration by
a court. A court is entitled to
consider whether despite the
existence of the jurisdiction it
would be just to exercise it or
decline to exercise it. Thus in
Dahabieh v. S.A. Tarqui &
Brothers (2001-2002) 1 GLR
171 SC, this court held that
even though it is possible to
mount an action on a judgment
for a debt if there is another
procedure for achieving the same
purpose it would be an abuse of
the process of the court to
mount an action for a debt under
a judgment of a court. Clearly
then since the High Courts Civil
Procedure Rules are such that
the Court cannot dispose of the
case within the constitutional
electoral time frame but the
same action can be brought after
the declaration and gazetting of
the results as the case may be,
by which time the institution of
parliament as constitutionally
established would have been in
place, but without prejudice to
such an action, it would be an
abuse of the process of the
court to entertain such an
action.
Conclusion
Though Mr Tony Lithur, counsel
for the plaintiff, intelligently
commenced his action by writ
since the results of the
election had not yet even been
declared, thereby steering clear
of the dreaded Bermuda triangle
of a premature petition as in
the Collins Dauda case,
and the subject-matter of the
action, founded on ordinary
legislation and administrative
impropriety is prima facie
within the High Court’s general
jurisdiction under article
140(1) of the Constitution, see
Amidu v. Electoral Commission
& Assembly Press (2001-2002)
SCGLR 595 and Amidu v
President Kuffuor
(2001-2002) SCGLR 86, the court
below proceeded per incuriam of
the constitutional provisions
herein before set out. For all
the foregoing reasons the
application succeeds.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
ANSAH JSC:
This case raises one main
critical issue for
consideration. It is this:
Does the High Court have
jurisdiction to entertain a writ
of summons brought before it to
address an electoral
irregularity in a Parliamentary
election in which the Electoral
Commission has not declared a
winner?
The Facts
This is a matter concerning the
conduct of the 2008
parliamentary elections in the
Akwatia Constituency. On 22nd
December 2008, the 1st
interested parties herein, Mr.
Baba Jamal Mohammed Ahmed, Mr.
Samuel Abrokwa and Mr. Basil
Ahiable issued a writ of
summons against the Electoral
Commission, the 2nd
interested party, claiming
declaratory and other reliefs.
On the same day, the 1st
interested parties also filed a
motion on notice for an interim
injunction to restrain the
Electoral Commission from
organizing the special and the
general voting exercises in the
constituency scheduled for 23rd
and 28th December
respectively, as part of the
nationwide elections in 2008 the
went to the run-off stage.
Following the above legal
actions, voting was not
conducted for six polling
stations in the Akwatia
Constituency and as at now the
Electoral Commission has not
declared a winner in the Akwatia
Parliamentary electoral
exercise.
The applicant herein, who had
applied and had been joined as
the second defendant in the
action, filed an application
challenging the competency of
the writ to initiate what, in
his considered opinion, was an
election petition. The High
Court, Koforidua, presided over
by His Lordship Justice G. S.
Suurbaareh delivered a ruling on
the application stating that a
writ was competent to commence
the action and therefore the
High Court was clothed with
jurisdiction to hear and
determine the case. It is this
ruling of the High Court that
the applicant is praying this
Honourable Court to quash.
To help resolve the issue at
stake, it is important to
determine the proper
construction to be placed on the
word ‘election’ (in order to
know whether what took place in
the Akwatia Constituency can be
said to be an election); the
legal effect of an incomplete
election; what constitutes an
action to challenge the validity
of a Parliamentary election;
what remedies and processes are
available for addressing
electoral irregularities, and
other considerations.
Meaning of “election”
According to section 16 (1) of
PNDCL 284, the only method
available for questioning
parliamentary elections is by
petition. The section provides
as follows:
“(1) The validity of an election
to Parliament may be questioned
only by a petition brought under
this Part.
The question is: what
constitutes an ‘election’ to
Parliament? To begin with, it
must be explained that the
expression ‘election to
Parliament’ can only mean
‘election of a person to
Parliament’ for the purpose of
such election is to ensure that
the constituency in question is
duly represented in Parliament
by the person so elected as a
Member of Parliament for that
constituency.
Section 50 of Representation of
the People Act, 1992 (PNDCL 284)
[As substituted by the
Representation of the People
(Amendment) Law, 1992 (PNDCL
296) s.(c)],
which happens to be its
Interpretation Section, defines
“election” to mean any public
elections. This definition
though useful, is not helpful to
resolve the issue at stake more
so that the public nature of the
Parliamentary election in
question is not in dispute in
this case. In situations such as
this, the law requires of us to
resort to external aids to
interpretation such as the
dictionary.
The Black’s Law Dictionary (8th
Edition)
defines ‘election’ as the
process of selecting a person to
occupy an office (usually a
public office), membership,
award or other title or status.
It also defines the expression
‘electoral process’ as a method
by which a person is elected to
public office.
It goes on to define the
expression ‘primary election’ as
a preliminary election in which
a political party’s registered
voters nominate the candidate
who will run in the general
election. Such elections are
often called primaries.
Further, it defines the
expression ‘by-election’ as an
election specifically to fill a
vacant post. Also, section 50 of
PNDCL 284 (as amended) defines
the expression ‘by-election’ to
mean an election held to fill a
vacancy occurring otherwise than
on the dissolution of
Parliament.
One strand that is common to all
the above definitions is that an
election or an electoral process
should lead to the production of
an eventual winner, by whatever
qualification called, be it a
‘Parliamentary election’,
‘by-election’, etc.
The law now is settled that an
election within the meaning of
PNDCL 284 is that in which the
Electoral Commission has, at
least, declared a result. This
has been the position of the
Supreme Court in the case of the
Republic v. The High Court,
Sunyani; Ex parte Alhaji Collins
Dauda [Suit No. J5/12/2009,
Unreported] wherein Dr. Date-Bah
JSC, delivering the unanimous
decision of the Supreme Court,
held at page 9 of the Judgment
as follows:
“Accordingly, our conclusion
from reading the provisions of
PNDCL 284 together is that, even
in the case of an allegation of
a corrupt practice, an election
petition may be brought only
after the Electoral Commission
has declared a result in
relation to the election.”
The Court also stated that
anything short of declaration of
a result by the Electoral
Commission in the election will
not qualify it as an election
within the meaning of PNDCL 284.
The Court stated at page 8 of
the Judgment as follows:
“…It can be cogently argued that
an election whose results have
not yet been declared is an
inchoate or incomplete election,
rather than an election…”
What this means is that an
electoral exercise in which the
Electoral Commission has not
declared a result in relation to
it is an incomplete (inchoate)
election; and an incomplete
election is not an election.
The import of
Ex parte Alhaji Collins Dauda
(supra)
therefore is that ‘election’
means ‘complete election’ and a
‘complete election’ is one whose
results have been declared by
the Electoral Commission.
The problem that may be
envisaged under
Ex parte Alhaji Collins Dauda
(supra) is a situation where the
Electoral Commission has
declared a result in an
electoral exercise but the
result happens to be a tie or
some other equality situation.
No eventual winner has been
produced even though a result
has been declared.
This definitional problem
envisaged under Ex parte
Alhaji Collins Dauda (supra)
may be overcome by reading
Regulation 40 of C.I. 15 (which
deals with Equality of Votes)
and section 50 of PNDCL 284
(which is the Interpretation
Section of the Act). The
combined effect of these two
provisions is that, the main
purpose of an election is to
produce an eventual winner.
Thus, in the light of the above
provisions and the import of
Ex parte Alhaji Collins Dauda
(supra), for an election to be
complete, there must be a
declaration by the Electoral
Commission and that declaration
must name an eventual winner.
According to the Public
Elections Regulations, 1996
(C.I. 15) however, the processes
that have to be carried out in a
public election go beyond the
point of declaration of results.
C.I. 15 prescribes the following
two-staged processes to be
carried out in a Parliamentary
election:
a)
The polling processes
b)
Processes after polling
The polling processes are
captured under Part II of C.I.
15 and covers Regulations 24-
35. These processes deal with
matters such as balloting and
voting procedure.
Processes after polling are
captured under Part III of C.I.
15 and covers Regulations 36-42.
These processes deal with
matters such as counting of
votes up the declaration and
publication of election results.
Regulation 41(1) of C.I. 15
deals with the declaration of
contested election results and
provides as follows:
“(1) Subject to Regulation 40 of
these Regulations, immediately
after the results of the poll
for all the stations in his
constituency have been given to
him, the returning officer
shall, in the presence of the
candidates or their
representatives or not more than
two counting agents appointed by
each candidate—
(a) assemble the results from
the polling stations without
recounting the ballots in the
ballot boxes, except where there
is a challenge by a candidate or
counting agent in respect of a
specific ballot box;
(b) give public notice of the
total number of votes cast for
each candidate;
(c) publicly declare to be
elected in a parliamentary
election the candidate to whom
the most votes have been given;
(d) endorse on the writ the name
of the person elected; and
(e) forward to the Commission
the endorsed writ and a note of
the total number of votes cast
for each candidate.”
Regulation 41(2) of C.I. 15
deals with the publication of
contested election results and
provides as follows:
“(2) On receipt of a writ
endorsed in accordance with this
regulation, the Commissioner
shall—
(a) in a parliamentary election
publish in the Gazette a notice
stating the name of the person
elected and the total number of
votes cast for each candidate;
and
(b) inform the Clerk of
Parliament soon after that of
the name of the candidate
elected.”
The decision in Ex parte
Alhaji Collins Dauda (supra)
is to the effect that, in a
Parliamentary election, where
the electoral processes have
been substantively carried out
up to the point where a
candidate has been declared
elected [i.e. up to the process
in Regulation 41(1)(c) of C.I.
15], the election is complete
(and an election petition can be
brought to challenge the
validity of the election).
It is implied from Ex parte
Alhaji Collins Dauda (supra)
that the subsequent processes,
namely the endorsement of the
writ and its transmission to the
Electoral Commission as well as
the publication in the Gazette
and notification to the Clerk of
Parliament [i.e. the processes
in Regulation 41(1)(d)(e) and
Regulation 41(2)(a)(b) of C.I.
15], are not necessary for the
election to be complete.
It can also be inferred from
Ex parte Alhaji Collins Dauda
(supra) that in a Parliamentary
election, the electoral
processes up to the point that a
candidate is declared elected by
the Electoral Commission go to
the substance of the election
whereas the subsequent processes
after such declaration are for
purposes of record and public
notification and do not affect
the substance of the election.
This inference is given credence
by C.I. 15 itself. For instance,
C.I. 15 prescribes that
publication through some other
mass communication media may be
substituted for Gazette
publication.
Regulation 46 of C.I. 15
provides as follows:
“Where any matter is provided in
this instrument to be published
in the Gazette, it may, in lieu
of or in addition to the
publication in the Gazette, be
published through radio,
television, the national
newspapers or any other medium
of mass communication.”
Thus, from the above legal and
dictionary provisions and the
import of
Ex parte Alhaji Collins Dauda
(supra), ‘election’ means
a complete public election in
which the Electoral Commission
has, at least, publicly declared
a result which names a candidate
as elected.
On the facts of this case, no
one has been declared as elected
by the Electoral Commission in
the Akwatia Parliamentary
election. Thus, the Akwatia
Parliamentary electoral exercise
that has taken place so far, it
not being a complete election,
cannot be said to be an
election. It is not an election
yet. At best, it can be
described as an incomplete
(inchoate) election.
The legal effect of an
incomplete election
The High Court in the instant
case stated at page 6 of its
Ruling given on 20/02/2009 as
follows:
“…since the processes enumerated
in Regulation 41 of the Public
Elections Regulations, 1996
(C.I. 15) have not all taken
place, it cannot be said that an
election has in fact taken place
in the Akwatia Constituency.”
First, it must be noted that for
a Parliamentary electoral
exercise to qualify as an
election, it is not necessary
that all the processes
enumerated in Regulation 41 of
C.I. 15 must have taken place.
It is enough if the processes
enumerated have taken place up
to the point where the Electoral
Commission has declared someone
as elected (see Ex parte
Alhaji Collins Dauda supra).
Secondly, Ex parte Alhaji
Collins Dauda (supra) does
not say that an incomplete
election is a nullity. Some
electoral exercise did, in fact,
take place in the Akwatia
Constituency, only that it did
not go into completion.
Also, it is to be noted that the
Akwatia Parliamentary electoral
exercise
could not go into completion
because the Electoral Commission
was served with court processes
as a result of which it halted
the electoral exercise pending
the final determination of the
case. The said electoral
exercise can be described as a
‘stalled election’. It is not a
‘null election’ neither can it
be said to be an ‘abortive
election’. The said electoral
exercise has life in it and it
is indeed capable of going into
completion.
Action to challenge the validity
of a Parliamentary election
In assuming jurisdiction, the
High Court in the instant case
stated at page 6 of its Ruling
as follows:
“…it is only when the action
relates to the determination of
the validity of the election of
a person as a Member of
Parliament after an election has
taken place and the results
declared and someone further
declared winner or duly elected
Member of Parliament for the
particular constituency that one
must proceed by a petition.”
The question that arises is:
what is an ‘action
to challenge the validity of a
Parliamentary election’?
Section 16 of PNDCL 284 gives
the High Court jurisdiction to
hear election petitions to
question the validity of
Parliamentary elections.
Clause 1(a) of Article 99 of the
1992 Constitution provides that
this jurisdiction is for the
High Court to hear and determine
any question whether a person
has been validly elected as a
Member of Parliament.
After such determination,
section 19 of PNDCL 284 provides
the releifs that the High Court
may give in the appropriate
cases.
The Black’s Law Dictionary
(supra) defines a valid action
as that which is legally
sufficient, binding or
meritorious.
By the combined effect of Clause
1(a) of Article 99 of the 1992
Constitution and sections 16 &
19 of PNDCL 284, an
action to challenge the validity
of a Parliamentary election is
that which, if its merits are
proven, is capable of resulting
in any of the reliefs under
section
19 of PNDCL 284 being granted.
Counsel for the Plaintiffs/1st
interested parties has argued
that the reliefs endorsed on the
Plaintiffs’ writ of summons
before the High Court, even
though they pertained to the
Parliamentary election in the
Akwatia Constituency, were
different from the reliefs that
a petitioner in an election
petition would normally seek
under
section
19 of PNDCL 284. This, to him,
buttresses the validity of the
writ to commence the action.
The High Court also held that
the Plaintiffs’ complaints were
not to challenge the validity of
the election of anybody as a
Member of Parliament for the
Akwatia Constituency and as such
a writ of summons was
appropriate in such a case.
These arguments are not
supported by the facts on
record; neither are they
supported in law. The first
claim of the Plaintiffs’
statement of claim endorsed on
the writ dated 27/01/2009 was in
the following terms:
“(a) A declaration that the
general conduct of the
Parliamentary election in the
Akwatia Constituency was
characterised by such extensive
and pervasive electoral
irregularity that they may
reasonably be supposed to affect
any declared outcome thereof.”
Clearly, these serious
allegations, if proven on the
merits, have the effect of
rendering the entire
Parliamentary election in the
Akwatia Constituency void in
accordance with
section
19(a) of PNDCL 284. Such
allegations go to the validity
of the election and as such any
action taken in respect of such
allegations qualifies as
an
action to challenge the validity
of a Parliamentary election.
Also, the second
claim of the Plaintiffs’
statement of claim was in the
following terms:
“(b) An order directed at the
defendant compelling it to
conduct fresh Parliamentary
elections for the whole of the
Akwatia constituency.”
Again, within the meaning of
section
19(a) of PNDCL 284, fresh
elections may be ordered only
after previous elections have
been declared invalid or void,
being a consequential order
following such declaration.
Thus, this claim of the
Plaintiffs also goes to qualify
their action as one
to challenge the validity of a
Parliamentary election.
Remedies and Processes for
addressing electoral
irregularities
These will be dealt with under
the following sub-headings:
1)
After a candidate has
been declared a winner in a
Parliamentary election.
2)
Before a candidate has
been declared a winner in a
Parliamentary election.
3)
Where the action is
brought to address an electoral
irregularity other than to
challenge the validity of the
Parliamentary election.
After a candidate has been
declared a winner in a
Parliamentary election
After a candidate has been
declared a winner in a
Parliamentary election, an
action may be brought to
challenge the validity of the
election (see
Ex parte Alhaji Collins Dauda
supra). That action must be
by way of a petition instituted
at the High Court.
Section 16 of PNDCL 284 provides
as follows:
“(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.”
Remedies available to a
petitioner include a declaration
that the entire Parliamentary
election is void (in which case
the court may further order a
fresh election to be conducted)
and a declaration that some
candidate other than the one
declared elected by the
Electoral Commission was duly
elected. Section 19 of PNDCL 284
deals with the reliefs that may
be granted in an election
petition and provides as
follows:
“After the hearing of 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.”
Before a candidate has been
declared a winner in a
Parliamentary election
Counsel for the Plaintiffs/1st
interested parties strongly
contends in his statement of
case as follows:
“…since there had been no
declared winner to enable them
file an election petition, they
had no other option than to file
a writ of summons at the High
Court that has jurisdiction in
all cases…”
Also, in assuming jurisdiction,
the High Court in the instant
case stated at page 8 of its
Ruling as follows:
“Since the plaintiffs’
complaints are not seeking to
challenge the validity of the
election of anybody as a Member
of Parliament for the Akwatia
Constituency, as no one has been
declared as such, but relate to
certain breaches of the law by
the Commission through its
officers and the general conduct
of the elections, the procedure
by petition provided in Article
99(1)(a) and section 16 of PNDCL
284 are inapplicable and the
only way opened to them to
ventilate their grievances is to
issue a writ of summons as in
this case. To declare such a
writ a nullity, merely because
it relates to an election of a
Member of Parliament, when it is
clear that the processes for an
election as contained in
Regulation 41 of C.I. 15 have
not been complied, will be
denying the Plaintiffs access to
the courts and an endorsement
that the offending activities
should be overlooked.”
First of all, a wrong impression
is being created by counsel that
the High Court has jurisdiction
in all cases and this must be
corrected.
It is not the law that the High
Court has jurisdiction in all
cases.
The relevant provisions are as
below.
Subsection (1)(a) of section 15
of the Courts Act, 1993 (Act
459) (as amended):
(1) The High Court shall,
subject to the provisions of the
Constitution, have-
(a)
original jurisdiction in
all matters and in particular,
in civil and criminal matters
[Emphasis is mine].”
Clause 1 of Article 140 of the
1992 Constitution:
“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 original,
appellate and other jurisdiction
as may be conferred on it by
this Constitution or any other
law
[Emphasis is mine].”
Counsel appears to confuse the
“general jurisdiction” of the
High Court under Article 140 of
the 1992 Constitution and
section 15(1)(a) of Act 459
which is informed by the
expression ‘jurisdiction in
all matters’. Careful
reading of the said article
reveals that the High Court’s
general jurisdiction is made
subject to the provisions of the
Constitution itself.
The Constitution limits the High
Court’s general jurisdiction in
many respects. For instance, the
High Court does not have
jurisdiction to determine an
allegation that an enactment or
any act or omission of any
person is inconsistent with the
Constitution [Article 2(1) of
the 1992 Constitution]. Also,
the High Court does not have
jurisdiction to entertain
petitions for challenging the
election of the President
[Article 64(1) of the 1992
Constitution]. Again, the High
Court’s jurisdiction is
completely ousted in all matters
relating to the enforcement or
interpretation of the
Constitution and in all matters
as to whether Parliament has
acted in excess of its powers
[Article 130(1) of the 1992
Constitution]. In all causes or
matters relating to the
production of official documents
in court, the High Court’s
jurisdiction is again ousted
under Article 135(1) of the 1992
Constitution. Also, even though
it has supervisory jurisdiction
in chieftaincy matters, the High
Court has no original
jurisdiction in all causes or
matters affecting chieftaincy
[Articles 270-274 of the 1992
Constitution; section 57 of Act
459].
It is clear from the above few
instances that the Constitution
indeed places limitations on the
High Court’s general
jurisdiction. It is for the
purposes, inter alia, of these
limitations that Article 140(1)
contains the important
qualification ‘subject to the
provisions of this Constitution’,
thereby subjecting the
jurisdiction of the High Court
“in all matters” to the
provisions of the Constitution
itself. Yes, the High Court has
jurisdiction “in all matters”,
but this jurisdiction is subject
to constitutional provisions
such as the instances specified
above, in which the High Court’s
jurisdiction is completely
ousted. It is the wrong view of
the law that the High Court has
jurisdiction in all cases.
Secondly, on the facts as per
their statement of claim
endorsed on their writ, it
cannot be said that the
Plaintiffs were not seeking to
challenge the validity of the
Parliamentary election in the
Akwatia Constituency. Indeed,
their claims before the High
Court, if proven, have the
effect of invalidating the
entire Parliamentary election in
the Akwatia Constituency and, as
such, they should have waited
for the right initiating
processes and remedies to ripen
in accordance with law.
It is important to note here
that, the issuance of a writ in
a Parliamentary election is not
the issue: it is what the writ
is capable of doing. If for
instance, the Plaintiffs’ writ
was for a defamatory action
seeking declaratory and other
appropriate reliefs against the
Electoral Commission in the
course of the conduct of its
electoral functions, that would
have been in order in accordance
with Order 2 rule 2 of the High
Court (Civil) Procedure Rules,
2004 (C.I. 47), notwithstanding
the Electoral Commission had not
declared someone as elected or
otherwise completed its
constitutional electoral
functions. In the instant case
however, the Plaintiffs’ writ
attacked the very validity of
the Akwatia Parliamentary
election seeking declaratory and
injunctive reliefs. Because
Order 2 rule 2 is made ‘subject
to any existing enactment to the
contrary’, the Plaintiffs were
required by law to have waited
for the Electoral Commission to,
at least, declare someone as
elected in accordance with
Article 46 of the 1992
Constitution and section 16 of
PNDCL 284.
Section 16 of PNDCL 284 gives
the High Court jurisdiction to
entertain an election petition
to challenge the validity of a
Parliamentary election. This
provision must be read together
with clause 1(a) of Article 99
of the 1992 Constitution which
provides as follows:
“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.”
The Constitution makes a valid
assumption that at the time the
High Court assumes jurisdiction,
a person has already been
elected in the relevant
Parliamentary election. Thus, by
reading the two provisions
together, the High Court, in the
exercise of its jurisdiction in
this matter, is to determine
whether the person elected was
validly elected or not.
Therefore, where no person has
been elected in a Parliamentary
election, assumption of
jurisdiction by the High Court
in a matter relating to the
validity of the election can
only be wrongful within the
meaning of
clause 1(a) of Article 99 of the
1992 Constitution.
The question for the High Court
to determine here is ‘has
someone been validly elected?’
Thus, where no such ‘someone’
has been elected in the first
place, no issue arises as to
whether he was validly elected
or not and the High Court’s
jurisdiction in the matter is
not ripen yet.
More so, it is a cardinal
principle of law that for a
person to institute an action he
or she must have a cause of
action which must be ripe at the
time of the institution of the
action. To buttress this all
important requirement the Court,
in Ex parte Alhaji Collins
Dauda (supra) held at pages
10 and 11 of the Judgment as
follows:
“…a party, before suing, must
satisfy himself or herself that
he or she has a cause of action
at the time of the institution
of the suit.”
In the case of Spokesman
(Publications) Ltd. V.
Attorney-General [1974] 1
GLR 88-93 Court of Appeal (Full
Bench), the court explained the
expression ‘a cause of action’
at page 89 of the report as
follows:
“A party had a cause of action
when he was able to allege all
the facts or combination of
facts necessary to establish his
right to sue.” (see also dictum
of Diplock L.J. in Letang v.
Cooper [1965] 1 Q.B. 232 at
pp. 242-243, C.A.).
By the combined effect of
section
16 of PNDCL 284 and Ex parte
Alhaji Collins Dauda
(supra), no cause of action
whatsoever arises to challenge
the validity of a Parliamentary
election before a candidate has
been declared elected by the
Electoral Commission.
A cause of action is fundamental
to the institution of an action
and therefore where there is no
cause of action to institute an
action, no process can cure such
lack of cause of action and
clothe a party with a cause of
action. What this means is that
any action brought to challenge
the validity of a Parliamentary
election before a candidate has
been declared elected by the
Electoral Commission is
premature; be it by a petition,
a writ of summons or some other
process.
Accordingly, no remedies are due
an aggrieved party yet, insofar
as his action is to challenge
the validity of a Parliamentary
election before a candidate has
been declared elected by the
Electoral Commission. The
situation would have been
different if the 1st
interested parties are still
left with no remedies after
their cause of action has
ripened. They indeed have
remedies under section 19 of
PNDCL 284; but they have to wait
for their cause of action to
ripen first. To put it in
simpler terms, they have no
other option in law than to wait
for their cause of action to
ripen. Where there is no cause
of action, the issue of remedies
does not arise.
The above analysis reflects the
intention of the Legislature. A
purposive interpretation placed
on sections 16 and 18 of PNDCL
284 shows that the law maker did
not intend premature and
frivolous actions to be
entertained to challenge the
validity of a Parliamentary
election. The intention of the
Legislature in this regard may
be seen from the provisions
below.
For this reason, the law maker
has provided for a requirement
of security for costs in
challenging the validity of a
Parliamentary election so as to
discourage frivolous and
unwarranted electoral actions.
Subsection 2 of section 18 of
PNDCL 284 (as revised) provides
as follows:
“(2) The presentation of an
election petition under
subsection (1) shall not be
valid unless within the time
specified in subsection (1), the
petitioner gives as security for
costs an amount of money
determined by the High Court.”
For instance, on section 18 (2)
of PNDCL 284, the Manual and
Statutes on Election
Adjudicating in Ghana
(Judicial Service) provides at
page 33 as follows:
“There is a further provision in
sub-section 2 of section 18 of
PNDCL 284 which stipulates that
even though an election petition
must have been filed within the
twenty-one days after the
results have been published in
the Gazette, it is not valid if
the petitioner does not pay as
security for costs an amount
determined by the High Court.”
Indeed, in the case of
Republic v. Electoral
Commission, Ex parte Amoo
[1997-98] 1 GLR 938, an election
petition filed at the High Court
was struck out due to the
failure of the petitioner to pay
the costs for security within
the statutory period.
In concluding this point
therefore,
the law is that
before a candidate has been
declared a winner in a
Parliamentary election, no
action can be brought to
challenge the validity of the
election and the High Court
similarly lacks jurisdiction to
hear same; even though some
other actions may be brought to
address electoral irregularities
other than to challenge the
validity of the election.
Where the action is brought to
address an electoral
irregularity other than to
challenge the validity of the
Parliamentary election
This refers to an action that is
not capable, by any stretch of
imagination, of resulting in any
of the reliefs under section
19 of PNDCL 284 being granted.
Where the action is brought to
address an electoral
irregularity other than to
challenge the validity of the
Parliamentary election, the
normal court processes and
remedies apply, notwithstanding
the Electoral Commission has
declared someone elected or not.
The following instances will
help clarify the point being
made here.
First, where someone is
unlawfully disenfranchised as a
result of the fault or
inefficiencies of the Electoral
Commission or some other body, a
cause of action is immediately
ripe for the aggrieved person to
seek declaratory and/or other
reliefs in a court of law. This
is because, unlawful
disenfranchisement is a
violation of one’s
constitutional right contrary to
Article 42 of the 1992
Constitution, the election
notwithstanding.
Also, where a defamatory
material is published against
someone in the course of a
Parliamentary electoral exercise
by the Electoral Commission or
some other body, a cause of
action is ripe for the aggrieved
person to bring an action in
defamation to claim damages
and/or other appropriate
reliefs, notwithstanding the
electoral exercise has not been
completed or there has not been
a declaration by the Electoral
Commission. This is because an
action in defamation is a common
law action and as such should
run its normal course, the
election notwithstanding.
Moreover, in relation to an
election, where there is an
alleged corruption on the part
of any person such as an
Electoral officer, a candidate,
a party agent or some other
person, a cause of action
immediately arises at the
instance of the State in
criminal prosecution. This is
because, corruption is a crime
under the Criminal Offences Act,
1960 (Act 29) and prosecution
under it should take its normal
course, the election
notwithstanding.
Constitutional and public policy
considerations
Article 46 of the 1992
Constitution provides as
follows:
“Except as provided in this
Constitution or in any other law
not inconsistent with this
Constitution, in the performance
of its functions, the Electoral
Commission shall not be subject
to the direction or control of
any person or authority.”
The import of this
constitutional provision read in
the light of
Ex parte Alhaji Collins Dauda
(supra) and the electoral laws
is that, in the case of a
Parliamentary election, no legal
action seeking declaratory,
injunctive and/or other reliefs
can be validly maintained
against the Electoral Commission
in a matter relating to the
validity of the election before
the Electoral Commission has
declared a candidate as elected
or has otherwise declared a
result in relation to the
election.
In the instant case where no one
has been declared elected
therefore, the Plaintiffs’
injunctive claims (c)-(f)
endorsed on their writ were
incompetent before the High
Court inasmuch as they, seeking
to attack the validity of the
Parliamentary election, also
sought to restrain the Electoral
Commission in the performance of
its constitutional electoral
functions at a time when the
Electoral Commission had not
declared any person elected in
the election. Therefore the
Electoral Commission, in the
performance of its
constitutional electoral
functions, must be allowed to
conduct the voting in the
affected polling stations and
carry on the electoral
processes, at least, up to the
point when it has declared a
candidate as elected, before any
action can be brought against it
challenging the validity of the
election and/or seeking
injunctive reliefs.
It must however be noted that,
the above constitutional
provision does not operate to
grant absolute immunity to the
Electoral Commission against
legal actions in all matters and
for the entire period that it is
performing its constitutional
electoral functions. For
instance, a person may well be
able to bring an election
petition to challenge the
validity of a Parliamentary
election after the Electoral
Commission has declared a
candidate as elected,
notwithstanding the Electoral
Commission has not completed all
the electoral processes up to
Gazette publication and
notification to the Clerk of
Parliament under Regulation 41
of C.I. 15. Also, an action in
defamation or an action seeking
redress for violation of one’s
right to vote may well be
validly maintained against the
Electoral Commission
irrespective of whether it has
declared a result in an election
or not and whether it has
completed its constitutional
electoral functions or not.
Similarly, criminal prosecution
can be validly maintained
against any officer(s) of the
Electoral Commission, the
election notwithstanding. Other
than to challenge the validity
of an election, an action under
any law in force in Ghana which
is consistent with the
Constitution can be validly
brought against the Electoral
Commission, the performance of
its constitutional electoral
functions notwithstanding.
The provisions for security for
costs and time restrictions in
section 18 of PNDCL 284 are to
ensure that frivolous actions
are not brought to thwart our
democratization process as a
nation. If actions such as the
Plaintiffs’ are allowed, the
effect would be that in
situations where the Electoral
Commission has not declared any
person as elected in a
Parliamentary election, one can
bring an action to challenge the
validity of such election by a
writ of summons. A writ of
summons would thus become an
alternative to an election
petition and the slogan would
be: if the results of the
Parliamentary election have been
declared, go by a petition, but
if the results are yet to be
declared, then go by a writ of
summons. Such a situation would
pave way for unmeritorious and
even vexatious electoral actions
to inundate the courts, judging
from how the nation becomes
emotionally charged during
periods of public elections. The
danger in such a situation is
that the electoral process may
be so clogged at the courts that
Parliament might not be able to
be constituted. This will
clearly be contrary to public
policy. The law maker could not
have intended such absurd
results.
Conclusion
By the Plaintiffs’ claims
endorsed on their writ of
summons, their action goes to
challenge the validity of the
Akwatia Parliamentary election.
Thus, the Plaintiffs should have
waited for the Electoral
Commission to, at least, declare
a winner in the election for
their cause of action to ripen
rather than seeking to
circumvent the legal process.
Their premature action had the
effect of stalling the Akwatia
Parliamentary election. The
Plaintiffs are not left without
any reliefs. After their cause
of action has ripened, the
Plaintiffs can challenge the
validity of the election by an
election petition presented
before the High Court.
Their action being premature,
the High Court lacked
jurisdiction to entertain same,
whether it came by a writ or a
petition. It is settled law that
wrongful assumption of
jurisdiction is a ground for
certiorari
(see
cases like
Ex parte Alhaji Collins Dauda
(supra);
Republic v. High Court, Accra,
Ex parte Industrialisation Fund
for Developing Countries and
Another
[2003-2004] SCGLR 348;
Republic v. High Court, Accra,
Ex parte CHRAJ [2003-2004] 1
SCGLR 312; Republic v. High
Court, Accra, Ex parte Soku
[1996-1997] SCGLR 535; Okofo
Estates v. Modern Signs Limited
[1996-1997] SCGLR 224).
Finally, it must be stated that
where the Legislature has, in
its manifold wisdom, ordained
that the way to question the
validity of a Parliamentary
election is via a petition at
the High Court, it behooves all
persons to honor the law in its
observance than breaches by
resorting to legalisms no matter
how ingenious it may be or sound
(see Yeboah v. Mensah
[1998-99] SCGLR 492 at 542).
I for the reasons stated in this
opinion agree with my learned
brethren that the application
succeeds and also with the
orders about to be made
presently.
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
OWUSU JSC:
From the judgment of my
respected brother which I had
opportunity to read before hand,
I am of the opinion that he had
said enough to justify the
conclusion arrived at by him and
I am in complete agreement with
him. For the reasons assigned
by him which I associate myself
with, I also will allow the
application and same is hereby
allowed.
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:
The thrust of this case which
calls for determination in this
Court can be stated briefly as
follows:
1. Does the High Court
lack jurisdiction to hear and
determine a writ of summons
commenced by the 1st
Interested Parties herein,
therein Plaintiffs against the 2nd
Interested Party therein
Defendant, seeking reliefs in
the nature of an election
complaint?
2. Was the High Court,
Koforidua, presided over by
Suurbaareh J, in error of law
when he delivered a Ruling on 23rd
February, 2009 upon a motion by
the Applicant herein, therein, 2nd
Defendant to declare the writ of
summons used in initiating the
electoral dispute as
incompetent?
FACTS
The facts of this case admit of
no controversy whatsoever. The
Akwatia Constituency, like the
whole of the country took part
in the Parliamentary and
Presidential elections that were
held on 7th December,
2008.
On the 15th December,
2008 or thereabout, the Chairman
of the Electoral Commission, the
2nd Interested Party
made a general announcement to
the effect that, due to the
tampering with some
ballot boxes in the Akwatia
Constituency, he would re-run
the Parliamentary elections for
only six polling stations in the
Akwatia Constituency.
The 1st Interested
Parties herein, who were all
Parliamentary candidates of the
NDC and Independents feeling
that the electoral
irregularities and misconduct
which necessitated the need to
re-run the elections in only six
of the polling stations was not
limited to only those stations
but was widespread throughout
the entire constituency filed a
writ of summons at the High
Court, Koforidua on 22nd
December, 2008 against the 2nd
Interested Party’s herein.
Based on the said writ of
summons, the 1st
Interested Parties succeeded in
obtaining an injunction which
restrained the 2nd
Interested Party from conducting
the re-run of the elections in
the Akwatia Constituency.
The Applicant herein who was the
New Patriotic Party
Parliamentary Candidate for the
Akwatia Constituency applied to
the Court and was joined to the
suit as a 2nd
Defendant.
The 1st Interested
Parties accordingly amended
their writ of summons and
statement of claim. The amended
writ filed in the High Court
states as follows:
a. “A declaration
that the general conduct of the
Parliamentary elections in the
Akwatia Constituency was
characterized by such extensive
and pervasive electoral
irregularity and misconduct that
they may reasonably be supposed
to affect any declared outcome
thereof.
b. An order directed
at the Defendant compelling it
to conduct fresh Parliamentary
elections for the whole of the
Akwatia Constituency.
c. An order restraining
the Defendant whether by itself,
its agents, officers or other
from conducting Parliamentary
elections on December 28, 2008
for only the six poling stations
or any selected polling stations
either than the entire 89
polling stations in the Akwatia
Constituency.
d. A further order
restraining the Defendant
whether by itself, its agents,
Officers or other from
conducting any special voting
for security, media and other
personnel in the Parliamentary
elections on 23rd
December 2008 in any polling
station or selected polling
stations in the Akwatia
Constituency.
e. An order
restraining the Defendant
whether by itself, its agents,
officers or other from
declaring, gazetting or causing
to be gazetted any result of the
Parliamentary elections of
December 7, 2008 at the Akwatia
Constituency
f. An order
restraining the Defendant
whether by itself, its agents,
officers or other from, in any
manner whatsoever, declaring any
of the candidates that contested
the parliamentary seat of the
Akwatia Constituency as the
elected member of parliament for
the Akwatia Constituency pending
the hearing and final
determination of this suit”.
The Applicant herein, after he
was served with the amended writ
of summons, entered appearance
and thereafter filed an
application to strike out the
writ on the grounds that the
writ of summons used in
initiating the action was
incompetent since the action was
an election related matter and
ought to have been commenced by
the process of a petition.
On the 23rd day of
February the High Court,
Koforidua delivered a Ruling
wherein the application to
strike out the writ of summons
was dismissed.
The Applicant thereafter filed
the instant application at the
Supreme Court, seeking an order
of Certiorari to quash the
decision of the High Court on
the following grounds:
1. Wrongful assumption
of jurisdiction/lack of
jurisdiction
2. Error of law on the
face of the record
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS
There is now no doubt that the
Supreme Court has supervisory
jurisdiction over all Courts and
other adjudicating authorities.
See article 132 of
Constitution 1992.
This Article also vests the
Supreme Court with the power to
enforce its supervisory
jurisdiction over all such
Courts and adjudicating
authorities.
Furthermore, article 161 of the
Constitution 1992 defines
“supervisory jurisdiction”
as including writs or orders in
the nature of habeas corpus,
certiorari, mandamus,
prohibition and quo warranto”.
There are a litany of cases to
give meaning to the exercise of
this supervisory jurisdiction of
the Supreme Court.
Cases which readily come to mind
are the following:
1. In Re Appenteng
(Dec’d)Republic vrs High Court,
Accra, Ex-parte Appenteng [2005
-2006] SCGLR 18
2. Republic vrs High
Court, (Fast Track Division)
Accra, Ex-parte Electoral
Commission (Mettle–Nunoo &
others-Interested Parties) [2005
-2006] SCGLR 514 and finally
3. Accra Recreational
Complex Limited vrs Lands
Commission [2007] SCGLR 108
4. Republic vrs High
Court, Accra, Ex-parte
Commission on Human Rights and
Administrative Justice – Addo
Interested Party [2003 – 2004]1
SCGLR 312
These cases prove that the
application by the Applicant to
this Court is well grounded upon
the Constitutional provisions
and decided case law.
Article 99 (1) (a) of the
Constitution 1992 provides as
follows:-
“The High Court shall have
jurisdiction to hear and
determine any question whether
a. a person has
been validly elected as a member
of Parliament or the seat of a
member has become vacant”
It is further provided by
article 99 (2) of the
Constitution 1992 as follows:
“A person aggrieved by the
determination of the High Court
under this article may appeal to
the Court of Appeal”
By the provisions of article
99(1) (a) it is certain and
clear that it is the High Court
that has jurisdiction in
determining the propriety of
whether any person has been
validly elected as a member of
Parliament or the seat of a
member of Parliament has become
vacant. It is also clear that
the elections in the Akwatia
Constituency are elections aimed
at electing a member of
Parliament for the area as
envisaged under article 99 (1)
(a) of the Constitution 1992.
PROCEDURE
It is provided under section 16
(1) of the Representation of the
people Law, 1992 (PNDCL 284) as
amended as follows:-
“16 (1) The validity of an
election to Parliament may be
questioned only by petition
brought under this part.”
A perusal of sections 17 , 18
and 19 of the Representation of
the People Law 1992, (PNDCL 284)
shows clearly that detailed
provisions have been made for
the capacities of the parties
who may initiate action, the
time within which they may do
so, and the reliefs that a Court
dealing with an election
petition can grant a successful
party.
In the instant case, the 1st
interested Parties
commenced their action in the
High Court by a writ of summons.
The Applicant contends that the
said procedure renders the
action incompetent whilst the 1st
Interested Parties contend
otherwise.
I have read the written
statement of case of all the
parties as well as the viva voce
submissions of their respective
Counsel.
From the submissions of Learned
Counsel for the 1st
Interested Parties, one issue
which calls for serious
determination before progress
can be made in this case is
this:
Whether article 140 (1) of the
Constitution 1992 renders
section 16 (1) & (2) of the
Representation of the People Law
1992, PNDCL 284
unconstitutional.
Out of abundance of caution, let
me quote article 140 (1) of the
Constitution 1992 which
stipulates as follows:
“140 (1) The High Court shall,
subject to the provisions of
this constitution, have
jurisdiction in all matters and
in particular, civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
on it by this Constitution or
any other law”
There is absolutely no doubt
that the High Court has
unlimited jurisdiction in all
matters, both civil and criminal
subject only to the Constitution
1992 and other laws.
If I understand the arguments of
learned Counsel for the
Applicant and those of the
learned Counsel for the 1st
and 2nd Interested
Parties which I think I very
well do, then it is to the
following effect.
APPLICANT
That even though the High Court
has jurisdiction in the matter,
the procedure adopted by the 1st
Interested Party in coming by
way of a writ of summons and not
a petition is contrary to
section 16 (1) & (2) of
PNDCL284.
To that extent, the assumption
of jurisdiction by the Court to
deal with the matter despite the
wrong procedure adopted by
relying on procedure outlined in
the High Court (Civil Procedure)
Rules (2004) C. I. 47 is wrong
and for that matter Certiorari
will lie to quash the said
decision.
1ST INTERESTED
PARTIES
Basing himself on article 140(1)
of the constitution referred to
supra, and Public Elections
Regulations (1996) C. I. 15,
Regulations 41, (1) (a) – (e)
learned Counsel for 1st
Interested parties submitted as
follows:
1. That since the High
Court has unlimited jurisdiction
in all matters they are in the
right forum and the application
for certiorari is therefore
untenable in view of the Supreme
Court decision in Republic
vrs High Court(F.TD) Accra,
Ex-parte CHRAJ Kwame Addo,
Interested Party [2003-2004] 1
SCGLAR 312 already referred to
supra.
2. That the Akwatia
Constituency Parliamentary
elections have not been
completed for the procedure in
section 16 (1) & (2) of PNDCL
284 to be called in question.
2nd INTERESTED PARTY
Learned Counsel for the 2nd
Interested Party submitted as
follows:-
1. That it is wrong for
the 1st Interested
Parties to circumvent the
procedure for commencement of
electoral related disputes, by
filing a writ of summons instead
of petition.
2. That the procedure
for holding election as outlined
in PNDCL 284 having been
completed, the only procedure
that has to be followed is for
the 1st Interested
Parties to wait for the re-run
of the election to be held,
thereafter have the results,
declared before any challenge
can be initiated therein.
I am therefore of the considered
opinion that the following
conditions should apply in this
case:
1. Article 140 (1) of
the Constitution 1992 confers
general jurisdiction on the High
Court in all matters and this
cannot be disputed.
2. The Constitution it
must be noted is the basic law
from which all other Laws derive
their legitimacy. Thus, any law
found to be inconsistent with
the Constitution 1992, must to
the extent of the inconsistency
be declared null and void. See
article 1 (2) of Constitution
1992.
3. Since the
Constitution does not provide
and stipulate rules of
procedure, one must look
elsewhere. In the instant case,
it is in PNDCL 284 and C.1. 47
already referred to supra.
4. PNDCL 284 is a
substantive Law which has
prescribed rules of procedure
for a jurisdiction that has been
specially created by article 99
(1) (a) of the constitution 1992
in contra distinction to general
rules of procedure for the High
Court in the High Court, (Civil
Procedure Rules) 2004, C. I. 47.
5. As the name implies,
the rules of procedure outlined
in C. I. 47 are subsidiary
legislation and to that extent
cannot take precedence over and
above rules of procedure
outlined in substantive i. e.
statutory Law to wit PNDCL 284
already referred to supra.
From the above, it is trite law
and practice that under the
rules of interpretation, the
following scenario applies:
1. Constitutional
provisions take precedence over
any other laws and or subsidiary
legislations. See article 1 (2)
and 2 (1) (a) & (b) of the
Constitution 1992.
2. Next in line are Acts
of Parliament. To the extent
that the said Acts of Parliament
are not inconsistent with any
provision of the Constitution,
they are deemed to be valid and
a Court must apply its
provisions.
3. Then we have the
subsidiary legislations which
come in the form of
Constitutional Instruments or
Legislative Instruments as they
were previously called.
In the instant case, since there
is no conflict between the
Constitutional Provisions in
article 140 (1) of the
Constitution 1992 and the
relevant sections of PNDCL 284,
especially sections 16 (1) and
(2) thereof, it follows that,
the procedure outlined in
sections 16 (1) & (2) of PNDCL
284 as the method by which
electoral disputes touching and
concerning the election of a
Member of Parliament are to be
proceeded with pursuant to
article 99 (1) (a) of the
Constitution 1992 are valid.
There is a clear intention on
the part of the framers of the
Consitution and PNDCL 284 to
raise the procedure for
commencement of electoral
disputes to a higher pedestal,
or level. This level is that of
Petition, which is a separate
and distinct procedure from the
generally accepted mode of
initiating action in the High
Court, which is stated in C.I 47
to be by writs of summons.
PUBLIC POLICY
In this regard, the Supreme
Court, must consider these
provisions as a manifestation of
public policy.
One might then legitimately ask
why the procedure for initiation
of electoral disputes is
separate and distinct from those
generally stated in the
initiation of all other actions
in the High Court?
The answer might be that, since
there must be an element of
early resolutions of election
disputes and finality in the
determination of early election
results, to enable whoever has
emerged victorious to be known
as well as the defeated
candidates, a process which is
fast, swift but fair and just
must be adopted for the above
objectives to be achieved.
See the decision of Wood (Mrs)
J.A in the case of Wulensi
Constituency Parliamentary
Elections, Zakaria vrs Nyimakan,
already referred to supra in
extenso.
Considering the public policy
elements inherent in this case,
I am of the firm view that there
are indeed very sound,
reasonable, solid, progressive
and convincing public policy
elements and or measures behind
the changes in procedure
outlined for pursuit of
electoral disputes as against
pursuit of other disputes for
whose procedure one has to look
at C. I. 47 and other laws
provided for the purpose.
Thus, even though there seems to
be some uncertainty about the
constitutional provisions in
article 140 (1) of the
Constitution on the status of
the High Courts, and the
procedure outlined in sections
16 (1) & (2) of the
Representation of the Peoples
Act, (1992) PNDCL 284, from the
analysis and explanations stated
supra, the uncertainty therein,
if any, is only an imagination
which has no real legal basis in
law and from rules of
interpretation.
This is because, since PNDCL
284 is an earlier enactment to
the provisions in C.I. 47, if
the legislature had wanted to
amend the procedure in section
16 (1) & (2) of PNDCL 284, it
would have done so expressly by
substantive law and not left it
as it is. That means the
procedure in PNDCL 284 is still
superior to that outlined in C.
I. 47.
I therefore hold that even
though the High Court Koforidua
has jurisdiction in the matter
brought before it by the 1st
Interested parties, the
procedure adopted before the
Court is not the procedure
authorized under the law. It
should therefore be clearly
understood and noted that there
is nothing unconstitutional
about the provisions of article
140 (1) of the Constitution 1992
and sections 16 (1) & (2) of
PNDCL 284 already referred to
supra
WHAT THEN IS AN ELECTION DISPUTE
In this respect, it is necessary
to decide what constitutes an
election petition, and whether
the reliefs endorsed by the 1st
Interested Parties, referred to
supra qualify to be considered
as an election petition.
In my very humble and well
considered opinion, the reliefs
being claimed by the 1st
Interested parties are election
related but clothed in the
nature of a writ of summons.
For instance, it is quite clear
that reliefs (a) and (b) are
certainly election related
reliefs and by their combined
effect, are seeking an order
directed at the 2nd
Interested Party to conduct
fresh Parliamentary election in
the entire Akwatia Constituency
and not the six that they intend
to re-run.
Furthermore, reliefs (e) and (f)
which are in the nature of
restraining orders directed at
the 2nd Interested
Party from gazetting or
declaring any of the candidates
that contested the Akwatia
Constituency Parliamentary
elections as the Member of
Parliament is nothing but an
election petition camouflaged as
a writ.
What should be noted is that it
is not what a party states his
complaint or plaint to be that
determines the nature of the
cause of action. On the
contrary, it is what the Court
with the trained legal mind
considers it to be after
applying to it all the tests
that are necessary to determine
it to be so.
For example, it is generally
understood that the High Court,
even though has jurisdiction in
all matters, civil and criminal,
has no jurisdiction in
chieftaincy matters. And the
High Courts and the Supreme
Court have always been called
upon to make determinations as
to whether this is a cause or
matter affecting Chieftaincy
which has the effect of ousting
the jurisdiction of the Court.
This matter has been expressly
stated in the following
Constitutional and statutory
provisions
Articles 270 -277 of the
Constitution 1992 preserves the
institution of chieftaincy.
The provisions also reserve for
the Traditional, Regional and
National Houses of Chiefs all
original and appellate
jurisdictions in chieftaincy
disputes save the Supreme Court
that has appellate jurisdiction.
See article 131 (4) of the
Constitution 1992.
See also Courts Act, 1993 (Act
459) section 57 thereof where it
is stipulated:
“Subject to the provisions of
the Constitution, the Court of
Appeal, the High Court, Regional
Tribunal, a Circuit and District
Court shall not have
jurisdiction to entertain either
at first instance or an appeal
any cause or matter affecting
chieftaincy.”
The same point has been made
with emphasis in the Chieftaincy
Act, 2008 (Act 759).
This therefore means that,
whenever a general jurisdiction
has been given an adjudicating
body like the High Court, one
must ensure that there is no
other statutory, legislative or
constitutional instrument
limiting the scope of that
jurisdiction in substance or
procedure. There also sometimes
might be special provisions
about procedural rules to be
applied as has happened in the
instant case., where special
procedural rules have been made
for commencement of electoral
disputes, to wit petitions.
From the above examples, this
Court has power to determine
whether the writ filed in the
High Court is an election
dispute or not. It is my
considered view that the writ
the 1st Interested
parties filed at the High Court
is an election dispute and ought
to have been commenced by a
petition. I am further
strengthened in this view by the
majority decision of Bamford
Addo (JSC) in the case of
New Patriotic Party vrs National
Democratic Congress [2000] SCGLR
461 at 472 and which
was quoted with approval when
the Supreme Court spoke with one
voice through Dr. Date-Bah (JSC)
in the unreported Supreme Court
Case, Civil Motion J5/12/09
dated 8th April, 2009
entitled Republic vrs.
High Court Judge, Sunyani,
Ex-parte Alhaji Collins Dauda
Coram: W. A. Atuguba, S. Akuffo,
K. Date-Bah, R. C. Owusu and P.
Baffoe Bonnie (JJSC)
Per Bamford-Addo JSC as she then
was in the NPP vrs NDC case
referred to supra.
“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 a Court having
jurisdiction to determine the
same, namely the High Court as
provided in section 16 (1) and
(2) of the Representation of the
People Law, 1992 (PNDCL 284)”
After quoting the relevant
provisions already referred to
supra, Bamford Addo JSC who was
in the majority with F. Y.
Kpegah and W. A. Atuguba
(JJSC)continued thus:
“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”
Juxtaposing the above definition
of what an election petition is,
with the nature of the reliefs
couched in the writ in the
instant case, I am left in no
doubt, that the 1st
Interested Parties filed their
writ in order to
circumvent the clear
words of the statute which
stipulate that an election
petition can only be filed after
the results of the election have
been declared and gazetted.
It will appear that, because the
1st Interested
Parties did not want to have the
2nd Interested Party
re-run the election in only the
six polling stations, they
rushed to the High Court, filed
a writ of summons which in
essence and substance is an
election petition and succeeded
in obtaining an injunction
against the Electoral
Commission. In
circumstances like this, a Court
of law, must look more at the
substance and not the form of
the action.
I am therefore of the firm
opinion that once the law has
provided that the only valid
method in PNDCL 284 by which
election disputes are to be
commenced is by petition as
distinct from writs of summons,
then it follows that, if that
prescribed method or procedure
is not strictly followed, what
has been wrongly commenced
cannot be accomplished.
This can be summarised as
follows:
Where a statute has made
provisions for certain steps to
be taken in order to comply with
the requirements of the law,
then no other steps other than
those prescribed must be taken
or followed. In this case, once
the 1st Interested
Parties have failed to strictly
adhere to the provisions of
PNDCL284 as will be shortly
established, it follows that
their action falls flat in the
face of the law.
This must not be countenanced by
a Court, of law especially the
Supreme Court for that matter.
This is because it is from the
Supreme Court that all the other
Courts take direction and
guidance, because of the
principle of stare decisis.
This application of the
principle of stare decisis or
judicial precedent does not
involve an exercise of judicial
discretion at all. It is what
must be done, that is done, it
is in essence, mandatory. The
doctrine is based first of all
on the relevant likeness of, or
between the cases, the previous
one and the one before the
Court. If there is no likeness
between the two, there is no
need to consider whether the
previous one should be followed
or departed from.
As will be seen shortly, this
Court in previous decisions
appears to have firmly held the
view that election complaints in
the nature formulated by the 1st
Interested Parties amounts to an
election petition.
In such a situation, the 1st
Interested parties should
have co-operated with the 2nd
Interested Party to re-run the
election in the six polling
stations, declare the results
before rushing to court to file
their case.
That not having been done, there
is no good reason for me to
depart from the previous
decisions of this Court on the
subject matter
See cases like:
1. New Patriotic Party
vrs National Demcroatic Congress
already referred to
2. Yeboah vrs Mensah
[1998-99] SCGLR 492
3. Republic vrs High
Court Judge Sunyani, Ex-parte
Alhaji Collins Dauda,
unreported, already referred to
supra
4. In Re Parliamentary
Election for Wulensi
constituency, Zakaria vrs
Nyimakan [2003-2004] SCGLRI
5. The unreported
judgment of the Court of Appeal
in the same Zakaria vrs.
Nyimakan case dated 11th
April 2002 and
6. Nyame vrs Mensah
[1980]GLR 338
Commenting on article 99 (1) (a)
of the Constitution 1992, the
Supreme Court in the
Yeboah vrs J. H. Mensah
case already referred to supra
held at page 493 that:
“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 articles 2 (1) and
130 (1) of the Constitution.
Edusei vrs Attorney General
[1996 -97] SCGLR 1 and review
[1998-99] SCGLR 753 followed.
Gbedemah vrs Awoonor Williams
[1970] 2 G & G 438 S.C
criticised.
It must therefore be noted that,
once the Constitution 1992 and
the Statutory Law section 16 (1)
and (2) of PNDCL 284 have both
provided a remedy and a forum
for the adjudication of certain
types of disputes, to wit the
validity of the election of a
Member of Parliament it follows
that it is that forum and
procedure that must be strictly
applied.
The Supreme Court in the Wulensi
Constituency case,
Zakaria vrs Nyimakan
already referred to supra, by a
four to one majority held in
part as follows:
When a remedy had been given by
the Constitution and a forum had
also been given by either the
Constitution itself or statute
for ventilating a grievance, it
was to that forum that a
Plaintiff might present his
petition.” Emphasis
Undoubtedly, the 1st
Interested Parties had presented
their case in the right forum
the High Court. But was it the
proper and right procedure that
was used?
The Court of Appeal in the same
Wulensi case already referred to
supra stated its opinions on the
procedure to be used in election
petitions (which I agree with)
in these terms, per Wood (Mrs)
J. A as she then was:
“S.26(1) of PNDCL 284 stipulates
the rule of procedure for
presentation and hearing of a
petition under this part, shall
be the same, as the rules of
procedure applicable to a civil
cause or matter before the High
Court”.
Procedural rules for
presentation, would in my view
include the form of the petition
itself. Therefore the question
raised by this legal ground is
should an election
petition brought under our
electoral laws be commenced by a
writ of summons with the title
setting out the names of the
parties as advocated by
appellant Counsel or should it
take some other form? These are
various methods of initiating
proceedings in our Courts.
A petition, separate and
distinct from the well known
method of beginning proceedings
by a writ of summons, is one of
them. It being the method
sanctioned by law for
questioning the validity of
Parliamentary elections, the law
would look to that method and
that method alone”.
I cannot but agree with the
decision of the Court of Appeal
on this point and I accordingly
adopt these words as if they
were my own.
This is because I had already
held that the nature of the
reliefs claimed by the 1st
Interested Parties in their writ
of summons is nothing but an
election dispute couched in the
form of a writ instead of a
petition.
The fact of Parliamentary
election disputes being the
preserve of the High Court and
the method also being prescribed
as a petition has been given
Judicial blessing in the opinion
of Bamford Addo (JSC) as she
then was in the NPP vrs NDC case
already refereed to supra at
page 472 as follows:-
“It is to be noted that this
article only sets out the
qualifications for parliamentary
candidates for election (that is
article 94 (3) (b) of the
Constitution 1992) 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”.
In my considered view therefore,
the 1st Interested
Parties only wanted to
circumvent the procedure set out
in section 16 (1) and (2) of
PNDCL 284 because of the
impediments in their way. These
impediments are that, if they
should file an election
petition, then they have to
allow the 2nd
Interested Party the Electoral
Commission to complete its work,
declare the results before they
can contest the said elections
I believe that the time is ripe
for Courts of Law to frown upon
and condemn any attempt
whatsoever aimed and directed at
circumventing laid down
procedures as established by
law. These specie of conduct has
the effect of destroying the
fabric of the Constitutional and
legal structures of society.
My very respected brother
Atuguba JSC and President of
this Court had occasion to
comment in the NPP vrs. NDC case
already referred to supra on
page 525 and 526 in the
following glowing terms – on the
issue of circumventing laid down
procedural rules as follow:-
“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 and Tobago vrs
Mcleod [1984] 1 ALL E.R 649 at
700 PC it was held,
following Harrikisson vrs
Attorney General of Trinidad and
Tobago[1980] AC 265 at 268
that the invocation of the
procedure for ventilating the
fundamental human rights may
well be frivolous and vexations,
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 vrs Mackman[1982]
3 ALL E.R. 1124 H.L,
followed in Cocks vrs
Thanet District Council[1982] 3
ALL E.R 1135, 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 Courts process by
circumventing the procedure
under Order 53, r.1 of the
English Supreme Court Rules,
which required an application in
such cases for leave for
Judicial review.”
It will be seen for all the
foregone reasons, that the 1st
Interested Parties should not
have commenced their action in
the High Court by a writ of
summons, but by a petition only
after the elections had been
declared.
In the instant case, both
Counsel have made copious
references to the unreported
decision of this Court in the
Ex-parte Alhaji Collins Dauda
case already referred to supra.
In this regard, it is necessary
to quote in extenso portions of
the unanimous judgment of the
Court which spoke with one voice
through Date-Bah JSC
“Our interpretation of section
18 of PNDCL 284 as impliedly
requiring the declaration of the
election result even in the case
of an allegation of corrupt
practice, is buttressed by the
provisions in sections 19 and 20
of the law. The language of
section 19 impliedly asserts
that an election petition can be
brought only after a candidate
has been declared elected. It is
in the following terms:_
19. After the hearing of 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 as
duly elected”
“The reason why we consider that
this provision assumes that an
election petition may be brought
only after a declaration of the
results is that an election can
hardly be declared void, under
paragraph (a) above, if it has
not been completed and declared
by the Electoral Commission. It
can be cogently argued that an
election whose results have not
yet been declared is an inchoate
or incomplete election, rather
than an election. Section 19 (b)
contains the expression “member
whose election is questioned”.
This expression in our view,
implies that the member’s result
have been declared. Section 19
(c) also contains the expression
“member whose election is
questioned” which to us, again
implies that the members results
have been declared. Similarly,
section 20 of the Law assumes
that a candidate has been
declared elected and gives the
High Court power to declare the
election void on the grounds set
out in its subsections.
Accordingly, our conclusion from
reading these provisions of
PNDCL 284 together is that, even
in the case of an allegation of
a corrupt practice, an election
petition may only be brought
after the Electoral Commission
has declared a result in
relation to the election. This
means that the Interested
Party’s petition before the
Sunyani High Court was premature
and the High Court lacked
jurisdiction to enter into its
merits” emphasis supplied
There are many similarities in
the above case and the instant
one.
1. In both cases, the
results had not been declared,
meaning the elections had not
been completed.
2. In both cases,
allegations of misconduct and
tampering with ballot boxes had
been made.
3. In both cases, the
elections in question touch and
concern Parliamentary elections
of persons seeking to be elected
into Parliament.
4. In both cases, an
injunction was secured to
prevent the Electoral
commission from completing its
work.
5. In both cases the
respective actions had been
prematurely commenced.
6. The only point of
difference is that, whilst a
writ had been filed to mitigate
the action in the instant case,
a petition was filed in the
Ex-parte Alhaji Collins Dauda
case.
As has already been stated by
me, looking at the substance and
not the form it is clear that
the reliefs in the instant case
are election related and are
meant to circumvent the legal
requirement of filing petitions
in such cases.
In the instant case, this type
of conduct is unacceptable and
this Court will frown upon it
and condemn it in no uncertain
terms as an abuse of the
process.
If one considers section 19 of
PNDCL 284 and the reliefs that
the 1st Interested
Parties are seeking in the High
Court, it is clear that the same
result would have been met if
they had waited to file an
election petition.
This is because, the Court could
have declared that the election
to which the petition related is
void and therefore called for
fresh elections as the 1st
Interested Parties contended.
On the contrary, the High Court
could have declared a person
other than the candidate
declared to have won the
election as duly elected. See
Enos vrs Electoral Commission
[1999-2000] 1 GLR 564 at
565.
In the instant case, the 1st
Interested Parties are in the
right forum, the procedure
adopted is clearly wrong,
unwarranted and an abuse of the
process.
It is the non-compliance with
the procedural requirements that
the 1st Interested
Parties have faulted in, thereby
making their commencement of the
entire action premature and
unwarranted in law.
I cannot but agree with Mr.
James Quashie Idun, learned
Counsel for the 2nd
Interested Party that all the
indications of an election have
been met in the Akwatia
Constituency Parliamentary
elections. What remains to be
done is for the said elections
to be completed in only six
polling stations and declare
same.
It is therefore untenable that
the learned High Court Judge did
not see anything wrong with the
improper procedure that was
adopted before him in what
seemed clearly to be an election
dispute and therefore a petition
and not a writ of summons should
have been used. I hold therefore
that the High Court lacked
jurisdiction to hear and
determine the premature suit
commenced by a writ of summons
by the 1st Interested
Parties in suit No. E 2/19/09
dated 22/12/2008 against the 2nd
Interested Party and the
Applicant who applied and was
later joined to the suit.
Wrongful assumption of
jurisdiction is a ground for
Certiorari. See Republic
vrs High Court, Sunyani,
Ex-parte Collins Dauda
case referred to supra.
Secondly, it is quite clear that
the instant writ had been filed
prematurely. There is no way the
learned High Court Judge can
proceed to deal with the reliefs
in the case before him in view
of the wrong procedure that was
used. To that extent, his
decision that it is proper to
initiate such actions by writ of
summons is wrong in law and
amounts to error of law.
Republic vrs High Court, Accra
Ex-parte CHRAJ, Addo, Interested
Party applied, already referred
to supra.
It must be noted that, once the
judgment and the writ have been
attached to these proceedings it
is sufficient for the purposes
of this Court to issue the writ
of Certiorari
In that vein, also, Certiorari
will lie.
CONCLUSION
Accordingly, Certiorari lies to
quash the Ruling of the High
Court, Koforidua dated
23/02/2009 in suit No.E2 19/09
entitled Baba Jamal
Mohamed Ahmed and two others
vrs the Electoral Commission
and Another and it is hereby
ordered that the said Ruling and
proceedings be and are hereby
brought up to be quashed and
same are hereby quashed.
J.V.M.
DOTSE
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:
I have had the benefit of
reading before hand the lucid
opinion read by my learned
brother Jones Dotse and I am in
full agreement with the reasons
therein contained. The issuance
of a Writ of Summons to commence
an election related matter
instead of a PETITION flies in
the face of the provisions of
section 16 of PNDC LAW 284.
As was stated by this court in
the case of BOYEFIO V. NTHC
PROPERTIES LTD 1997-98 1 GLR 768
“The law was clear that where an
enactment had prescribed a
special procedure by which
something was to be done, it was
that procedure alone that was to
be followed”
Justice Benin put it more
succinctly in the case of
THE REPUBLIC VS. NANA KRU
PERKOH II EXPARTE NANA JOHN
ERZOAH CIVIL APPEAL NO. 46/2000
C.A(Unreported).
“…Where an enactment sets out a
procedure for invoking the
jurisdiction of a court a party
must comply with it or be thrown
out of court. The rule that
non-compliance can be cured is
referable to steps in the
action. The rule does not
confer authority to authorize
disregard of rules of court.
What the rules tolerate by way
of infractions are the steps
that are taken in the action,
that is, after the
appropriate originating process
had been filed out at the right
place and is before the right
forum”(emphasis added)
Having originated their action
by the inappropriate process of
a Writ of Summons, in
contradistinction to the
appropriate process of petition
as specifically prescribed by
section 16 of the Representation
of Peoples Law 1992 PNDCL 284,
the High Court was not vested
with jurisdiction to go into the
matter.
The ruling of the High Court
reserving jurisdiction to itself
to go into the matter is
therefore wrongful and amenable
to certiorari.
It is my view, and I so hold,
that the application for
certiorari succeeds and same is
granted as prayed.
P. BAFFOE-BONNIE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:-
K. AMOAKO ADJEI FOR THE
APPLICANT.
TONY LITHUR FOR 1ST
INTERESTED PARTIES.
JAMES QUARSHIE IDUN FOR THE 2ND
INTERESTED PARTY.
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