|
Supreme - Invoking the
supervisory jurisdiction -
Certiorari - Whether the High
Court (Commercial Division),
wrongful assumed jurisdiction -
Disqualification of candidates
HEADNOTES
For the 2016 presidential and
parliamentary elections, the
Applicant opened nominations on
13th September 2016
and invited candidates to go for
nomination forms. At an IPAC
meeting held on the 8th
day of September 2016, the
Applicant announced to the
various Political Parties that
the nomination days shall be the
29th and 30th
of September 2016, when all
nomination papers would be
received by returning officers
for both the presidential and
parliamentary candidates
throughout Ghana. The dates were
confirmed in a Press Release
issued by the Chairperson of the
Applicant. Meanwhile, the Public
Elections Regulations, 2016 C.I
94, regulation 9(1)-(3) imposed
a duty on the Applicant, to
ensure that Returning Officers
having received the forms and
found any anomalies to give the
candidates opportunity to either
amend or alter the anomaly
within the stipulated nomination
period as stated in regulation
9(2) of C I 94. In the case of
the Interested Party, his
nomination form was sent by the
Chairman of the PPP to the
Chairperson of the Applicant and
was told that he would hear from
the Applicant Commission. On the
10th day of October
2016, when the Applicant
announced that certain
presidential candidates
including the Interested Party
herein had been disqualified for
several reasons. It is the case
of the Interested Party that the
Applicant breached their own
regulations 9(2)-(4) when they
failed to give him and other
disqualified candidates the
opportunity to amend or alter
whatever was found not to be
proper with their forms, a
conduct the Interested Party
considered to be a breach of the
rules of natural justice. And
therefore for the two grounds of
error of law apparent on the
face of the record as well as
for the breach of the rules of
natural justice, the Interested
Party applied to the High Court
for judicial review by way of
Certiorari and Prohibition. the
High Court granted the said
application in part, namely,
breach of the rules of natural
justice audi alteram partem
and quashed the decision and
made a further order directed
against the Applicant and its
Chairperson to afford
opportunity to the Interested
Party to make the necessary
alteration or amendments to its
nomination paper for it to
receive same and then proceed to
determine whether the Interested
Party had met all the criteria
laid down by the laws of the
Republic in line with his duty
laid down by C.I. 94. Being
dissatisfied with the ruling of
the High Court, the Applicant
has applied to the court for an
order of certiorari to quash the
said ruling.
HELD
The Applicant extends the
nomination period from today
Monday 7th November
2016 to the close of
working day of Tuesday 8th
November 2016.
The Applicant should invite the
Interested Party and all the
presidential candidates who were
able to submit their nomination
papers by the close of the
nomination day on 30th
September 2016 and were
disqualified without a hearing
and give them hearing within the
extended period. In appropriate
cases, to afford candidates, the
opportunity to comply with
regulation 9 (2) of the Public
Elections Regulations, 2016
(C.I.94). to the above
directives, we find it necessary
and expedient to make a further
order to stay all court
proceedings pending in the
various High Courts against the
Applicant by some of the
disqualified presidential
candidates on the same issue of
having been denied a hearing to
enable the EC to carry out its
mandate in line with these
orders. we accordingly stay all
such proceedings in the High
Courts
STATUTES REFERRED TO IN JUDGMENT
Constitution 1992
Representation of the Peoples
Act (PNDCL284)
Public Elections Regulations,
2016 (C.I 94),
CASES REFERRED TO IN JUDGMENT
Ababio II v. Akro & Co [1963]
1GLR 195;
Barko v Mustapha [1964]
GLR 78,
Republic. v High Court,
Kumasi: Ex-parte Bank of Ghana &
Ors (Gyamfi & Others –
Interested Parties) [2013-14]
1SCGLR 477;
Republic. v. Court of
Appeal Ex parte Tsatsu Tsikata
[2005-2006] SCGLR 612,
Rep. v. High Court
Ex-parte Industrialization Fund
for Developing Countries & Anor
[2003 -2004] SCGLR 348,
Republic v. Michael
Konduah Ex-parte George Supi
Asmah (Unreported Judgment) of
the Supreme Court in Civil
Appeal No.J4/28/2012 dated 15th
August 2013,
Republic. v High Court
(Commercial Division), Accra
Ex-parte – The Trust Bank Ltd
(Ampoma Photolab Ltd & 3 Ors –
Interested Parties) [2009] SCGLR
164
Republic v Court of
Appeal, ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612 t
British Airways v
Attorney-General [1996-97] SCGLR
547,
Republic v. High Court
Accra(Fast Track Division),
Ex-parte Electoral Commission
(Mettle Nunoo & Others -
Interested Parties) [2005-2006]
SCGLR 514;
Republic v. High Court
Kumasi (Fast Track Division), Ex
parte Bank of Ghana & Ors ( Sefa
&Asiedu Interested Parties)
(No1);
Republic v. High Court
Kumasi (Fast Track Division), Ex
parte Bank of Ghana & Ors
(Gyamfi &Others Interested
Parties) (No1) (Consolidated)
[2013-2014] 1SCGLR 477 at 509
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
SOPHIA ADINYIRA (MRS.)
COUNSEL
THADDEUS SORY WITH HIM SEAN
OPOKU, SANJA ANITA MORRISON, AND
REINDOLF TWUMASI ANKRAH FOR THE
APPLICANT
AYIKOO OTOO WITH HIM GARY NIMAKO
MARFO, FELIX OGRAH, DENNIS OFOSU
APPIAH, NAA DJAMA AYIKOO OTOO
AND BARBARA BROWN FOR THE
INTERESTED PARTY
---------------------------------------------------------------------------------------------------------------------
RULING
---------------------------------------------------------------------------------------------------------------------
SOPHIA
ADINYIRA (MRS.) JSC (PRESIDING):
The application before this
Court invokes the supervisory
jurisdiction of the Court
against the High Court
(Commercial Division), Accra
praying this Court for an order
of certiorari to bring up into
this Court for purposes of being
quashed the ruling of His
Lordship Justice Eric Kyei
Baffour dated the 28th day of
October, 2016 upon the facts
deposed to in the accompanying
affidavit.
The grounds for the application
are as follows:
i.
Error of law on the face
of the record.
ii.
Wrongful assumption of
jurisdiction by the High Court
(Commercial Division), Accra.
iii.
Excess of jurisdiction.
The brief facts of the case are
as follows:
The Applicant is the Electoral
Commission constitutionally
mandated to organize
presidential and parliamentary
elections including receiving
nominations of candidates. Apart
from the Constitution 1992,
there are other pieces of
legislation such as the
Representation of the Peoples
Act (PNDCL284) and the Public
Elections Regulations, 2016 (C.I
94), which set up the legal
regulatory framework for the
conduct of general elections in
Ghana.
The Interested Party is the
Presidential Candidate for the
Progressive Peoples Party (PPP)
for the 2016 elections.
For the 2016 presidential and
parliamentary elections, the
Applicant opened nominations on
13th September 2016
and invited candidates to go for
nomination forms. At an IPAC
meeting held on the 8th
day of September 2016, the
Applicant announced to the
various Political Parties that
the nomination days shall
be the 29th and 30th
of September 2016, when all
nomination papers would be
received by returning officers
for both the presidential and
parliamentary candidates
throughout Ghana. The dates were
confirmed in a Press Release
issued by the Chairperson of the
Applicant. Meanwhile, the Public
Elections Regulations, 2016 C.I
94, regulation 9(1)-(3) imposed
a duty on the Applicant, to
ensure that Returning Officers
having received the forms and
found any anomalies to give the
candidates opportunity to either
amend or alter the anomaly
within the stipulated nomination
period as stated in regulation
9(2) of C I 94.
In the case of the Interested
Party, his nomination form was
sent by the Chairman of the PPP
to the Chairperson of the
Applicant and was told that he
would hear from the Applicant
Commission.
On the 10th day of
October 2016, when the Applicant
n announced that certain
presidential candidates
including the Interested Party
herein had been disqualified for
several reasons.
It is the case of the Interested
Party that the Applicant
breached their own regulations
9(2)-(4) when they failed to
give him and other disqualified
candidates the opportunity to
amend or alter whatever was
found not to be proper with
their forms, a conduct the
Interested Party considered to
be a breach of the rules of
natural justice. And therefore
for the two grounds of error of
law apparent on the face of the
record as well as for the breach
of the rules of natural justice,
the Interested Party applied to
the High Court for judicial
review by way of Certiorari and
Prohibition.
On the 28th day of
October 2016, the High Court
presided over by his Lordship
Mr. Justice Eric Kyei Baffour
granted the said application in
part, namely, breach of the
rules of natural justice audi
alteram partem and quashed
the decision and made a further
order directed against the
Applicant and its Chairperson
to afford opportunity to the
Interested Party to make the
necessary alteration or
amendments to its nomination
paper for it to receive same and
then proceed to determine
whether the Interested Party had
met all the criteria laid down
by the laws of the Republic in
line with his duty laid down by
C.I. 94.
Being dissatisfied with the
ruling of the High Court, the
Applicant has applied to the
court for an order of certiorari
to quash the said ruling.
Submissions by parties
Error on the Face of the record
Counsel for Applicant submits
that the Trial Judge’s holding
that the Applicant failed to
afford opportunity to the
Interested Party within the
nomination period because it did
not have such a period cannot be
correct in the light of
Interested Party’s averment in
paragraph 8 of his affidavit in
support (filed before the High
Court on 14 October 2016) and
exhibited and attached to her
affidavit in support and marked
‘’CO1’’ by the Applicant as that
“the E C opened nominations
between the period of 8th
and 30th September
2016.” Counsel submits further
that in view of the said
averment, the nomination period
was not in issue because it had
fixed a nomination period so the
Judge relied on facts which have
not been recorded as evidence
and this led him to come to the
conclusion that the Applicant
breached the rules of natural
justice because it equally
failed to set the nomination
period. Counsel concludes that:
“Our submission is that having
regard to the overwhelming
evidence and which the parties
are ad idem on regarding the
fact that Applicant had fixed
the nomination period and which
was well known by the interested
party, the High Court committed
an error of law clearly on the
face of the record when it held
that Applicant did not fix a
nomination period”
Counsel then proceeded to cite
authorities such as Ababio II
v. Akro & Co [1963] 1GLR 195;
Barko v Mustapha [1964] GLR 78,
Rep. v High Court, Kumasi:
Ex-parte Bank of Ghana (Sefa &
Asiedu – Interested Parties)
(No. 1.) , Rep. v High Court,
Kumasi: Ex-parte Bank of Ghana &
Ors (Gyamfi & Others –
Interested Parties) [2013-14]
1SCGLR 477; Rep. v. Court of
Appeal Ex parte Tsatsu Tsikata
[2005-2006] SCGLR 612, Rep. v.
High Court Ex-parte
Industrialization Fund for
Developing Countries & Anor
[2003 -2004] SCGLR 348, Rep v.
Michael Konduah Ex-parte George
Supi Asmah (Unreported Judgment)
of the Supreme Court in Civil
Appeal No.J4/28/2012 dated 15th
August 2013, Rep. v High Court
(Commercial Division), Accra
Ex-parte – The Trust Bank Ltd
(Ampoma Photolab Ltd & 3 Ors –
Interested Parties) [2009] SCGLR
164 in support of his
position.
Counsel for the Interested
Parties responds that in view of
the duty cast on the EC to
afford candidates the
opportunity to effect amendments
or alterations within the
stipulated nomination period
that duty cannot be performed if
the EC fails to set a clear
nomination period, within which
period there can be nomination
day or days.
Consideration of the issue
whether there was error on the
face of the record
This court recalls our firm
holding in the plethora of cases
referred to by counsel for the
Applicant that in order for the
Supreme Court to exercise its
supervisory jurisdiction against
the decision of the High Court,
the High court must have made an
error patent on the face of the
record which either goes to
jurisdiction or are so plain as
to make the impugned decision a
nullity. In the case of
Republic v Court of Appeal,
ex-parte Tsatsu Tsikata
[2005-2006] SCGLR 612 this
Court held thus:
“The clear thinking of this
court is that, our supervisory
jurisdiction under article 132
of the 1992 constitution, should
be exercised only in those
manifestly plain and obvious
cases, where there are patent
errors of law on the face of the
record, which errors either go
to jurisdiction or are so plain
as to make the impugned decision
a complete nullity.”
In the ex-parte Tsatsu
Tsikata case Wood JSC (as
she then was) explained further
that:
"...It stands to reason then
that the error(s) of law as
alleged must be fundamental,
substantial, material, grave or
so serious as to go to the root
of the matter. A minor,
trifling, inconsequential or
unimportant error which does not
go to the core or root of the
decision complained of; or,
stated differently, on which
the decision does not turn would
not attract the courts
supervisory jurisdiction”
We agree with Counsel for the
Applicant that by the averments
made by the Interested Party in
his affidavit in opposition,
(which he now claims before us
that it was made out of a
mistake); the nomination period
was fixed from 8th
September to 30 September 2016.
Even if the judge erred by his
findings that the Applicant did
not set a nomination period, in
view of the averments, we do not
think the error goes to the core
or root of the decision
complained of; as the decision
did not turn on the nomination
period; it rather turned on the
failure by the Applicant to
afford the Interested Party the
right to be heard before being
disqualified.
Counsel for the Applicant
submitted that the nomination
period played a crucial role in
so far as the ruling of the
court was concerned, as any
anomaly that the [Applicant]
detected on the Interested
Party’s nomination paper was to
be corrected within the
nomination period. We do not see
any error of law in that finding
as it is reasonable to expect or
contemplate that the nomination
period would extend beyond the
nomination day(s) in order for
the Applicant to assess the
nomination forms and to offer
opportunity to the candidate to
make any amendment or alteration
necessary to his nomination
forms within the nomination
period, as prescribed in rule 9
(2) of C.I. 94
Indeed we find no error on the
face of the record in so far as
the decision quashing the
disqualification of the
interested party was made as a
result of the finding by the
learned judge of a breach of
the rules of natural justice.
The application based on this
ground fails.
Wrongful assumption of
jurisdiction by the High Court
The second ground for the
application as couched by the
Applicant is that the High Court
(Commercial Division) Accra
wrongfully assumed jurisdiction.
We will not spend much time on
this ground as the Interested
Party invoked the supervisory
jurisdiction of the court by way
of judicial review of a
procedural impropriety and was
not challenging the grounds of
his disqualification which by
virtue of rule 9.5 of C.I. 94
ought to be by an election
petition and to be commenced
after the election.
This ground for the application
is dismissed.
Excess of Jurisdiction
The last ground for this
application is Excess of
Jurisdiction.
The High
Court after quashing the
decision of the Applicant
disqualifying the interested
party as a candidate made the
following consequential orders:
“[And] order that the
[Applicant] afford opportunity
to the [Interested Party] to
make the necessary alteration or
amendment to its nomination
paper for it to receive same and
then proceed to determine
whether the [Interested Party]
had met all the criteria laid
down by the laws of the
Republic, in line with its
duties laid down by C.I. 94. EC
has no basis to complain that
nomination period has closed
when they did not set one. They
only set nomination date under
regulation 7 but not nomination
period under regulation 9(2) as
I have already found. The time
frame to afford the [Interested
Party] is entirely within the
discretion of the [Applicant]
being mindful of the limited
available time for the election
of December 7, 2016.”
Submission by Parties
The Applicant complains that the
consequential orders made by the
High Court effectively extended
the nomination period for the
Interested Party which has very
serious consequences for the
electoral calendar.
For purposes of clarity; we
will set out the relevant
portions of paragraphs 21, 22,
and 23 of the Applicant’s
affidavit in support of her
application.
21. That accordingly I have
been advised by Applicant’s
lawyers and verily believe same
to be true that the High Court
wrongly assumed jurisdiction
over Applicant’s case and indeed
exceeded its jurisdiction when
it ordered that Applicant allow
the interested party to make
amendments to his nomination
paper regardless of the nature
of the non-compliance, the High
Court unlike this Court having
no powers under article 2 of the
1992 constitution.
22. That Applicant’s lawyers
have advised me and I verily
believe same to be true that the
High Court exceeded its
jurisdiction when it ordered
Applicant to permit the
interested party to make the
alterations and amendments
necessary to correct the
duplicate subscription to his
nomination paper when the
nomination period had expired.
23. That Applicant’s lawyers
further advise me and I verily
believe same to be true that the
High Court also exceeded its
jurisdiction when it ordered
Applicant to permit the
interested party make the
alterations and amendments
necessary to correct the double
subscription to his nomination
paper the reason being that the
said ordered interfered with
Applicant’s constitutional
mandate in electoral matters.
Counsel stated further in his
statement of case at 4.2 that:
“The High Court’s decision
effectively extending the period
of nomination has very serious
consequences for the electoral
calendar. It has been held that
public policy and national
interest is a good reason to
refuse an application for
judicial review.”
Consideration of the issue of
whether there was excess of
jurisdiction
In as much as we agree with
Counsel’s submission that the
High Court’s decision
effectively extending the period
of nomination has very serious
consequences for the electoral
calendar, we do not think it is
sufficient reason to hold that
the High Court has exceeded its
jurisdiction.
However, since the complaint of
the Interested Party was that
the Applicant failed to give him
a hearing before being
disqualified the most
appropriate consequential order
in the circumstances is to order
the Applicant to give the
Interested Party a hearing. In
that respect we can say the High
Court exceeded its jurisdiction
by ordering the Applicant to
permit the Interested Party make
the alterations and amendments
necessary to correct the double
subscription to his nomination
paper.
We will therefore proceed to
quash the consequential order
and order the Applicant to give
the Interested Party a hearing
that he deserves.
Other Reliefs
Counsel for the Applicant in his
concluding statement of case
stated:
“We accordingly pray the Court
to grant whatever relief is
appropriate in the present
circumstances especially where
there can be no doubt that the
High Court committed an error
apparent on the face of the
record.”
Counsel for the Interested Party
opposed this by stating:
“… Counsel for the Applicant
appeared to be appealing to this
Court to make any orders and
give such directions as would
ensure fairness or ensure that
justice, equity and fairness
prevail. I invite the Court to
decline the invitation, since
the conduct of the Applicant is
rather not calculated to ensure
fairness and equity and it is
likely to rather endanger the
electoral calendar. This Court
must dismiss the application and
order the Applicant go ahead and
comply with the orders of the
High Court simpliciter.”
This view held by Counsel for
the Interested Party is with due
respect misplaced. It is trite
law that the supervisory
jurisdiction of the Supreme
Court under Article 132 is not
limited to the issuance of
conventional prerogative writs
but also to issue orders and
such directions as will ensure
prevalence of justice, equity
and fairness. See British
Airways v Attorney-General
[1996-97] SCGLR 547, Republic v.
High Court Accra(Fast Track
Division), Ex-parte Electoral
Commission (Mettle Nunoo &
Others - Interested Parties)
[2005-2006] SCGLR 514; Republic
v. High Court Kumasi (Fast Track
Division), Ex parte Bank of
Ghana & Ors ( Sefa &Asiedu
Interested Parties) (No1);
Republic v. High Court Kumasi
(Fast Track Division), Ex parte
Bank of Ghana & Ors (Gyamfi
&Others Interested Parties)
(No1) (Consolidated) [2013-2014]
1SCGLR 477 at 509 to 510.
The Supreme Court, mindful of
the importance that nominations
should be concluded according to
time schedule fixed by
regulation 4(2)(b) of C.I. 94
and the limited time available
for the Applicant to complete
processes, prior to the printing
of presidential ballot papers
and collation sheets etc before
December 7, 2016; and while
taking judicial notice of the
plethora of cases pending in
various High Courts with similar
claims, and primarily to ensure
prevalence of justice, equity
and fairness in the election
process; we find it prudent to
exercise our supervisory
jurisdiction under Article 132
of the Constitution 1992 to give
directives to the Applicant on
how to proceed to obey the order
of the Court.
This Court hereby orders the
Electoral Commission
1.
The Applicant extends the
nomination period from today
Monday 7th November
2016 to the close of
working day of Tuesday 8th
November 2016.
2.
The Applicant should
invite the Interested Party and
all the presidential candidates
who were able to submit their
nomination papers by the close
of the nomination day on 30th
September 2016 and were
disqualified without a hearing
and give them hearing within the
extended period.
3.
In appropriate cases, to
afford candidates, the
opportunity to comply with
regulation 9 (2) of the Public
Elections Regulations, 2016
(C.I.94).
4.
CONSEQUENT to the above
directives, we find it necessary
and expedient to make a further
order to stay all court
proceedings pending in the
various High Courts against the
Applicant by some of the
disqualified presidential
candidates on the same issue of
having been denied a hearing to
enable the EC to carry out its
mandate in line with these
orders.
WHEREFORE we accordingly stay
all such proceedings in the High
Courts.
(SGD) S.O.A ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P.
BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) A. A BENIN
JUSTICE OF THE SUPREME COURT
(SGD) Y. APPAU
JUSTICE OF THE SUPREME COURT
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
THADDEUS SORY WITH HIM SEAN
OPOKU, SANJA ANITA MORRISON, AND
REINDOLF TWUMASI ANKRAH FOR THE
APPLICANT
AYIKOO OTOO WITH HIM GARY NIMAKO
MARFO, FELIX OGRAH, DENNIS OFOSU
APPIAH, NAA DJAMA AYIKOO OTOO
AND BARBARA BROWN FOR THE
INTERESTED PARTY |
