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Supreme Court - Fundamental
human rights
-
Inherent Jurisdiction of the
High Court - Order of mandamus –
Certiorari and prohibition -
Spent order or otiose - Whether
or not a declaration that the
decision and implementation,
preventing and excluding
applicants and other registered
voters in a traditional areas
from voting for a parliamentary
candidate in a Constituency, was
a denial of voters their right
to democratic participation to
be represented in Parliament -
Whether or not the trial High
Court has no jurisdiction under
article 33 (1) of the
Constitution, 1992, to entertain
a matter in the nature of a
parliamentary election petition
and to grant any relief(s),
interim, interlocutory or final,
available in a parliamentary
election commenced under article
99 and section 16 of the
Representation of the People’s
Law, 1992 [PNDCL 284] - Whether
or not the orders emanating
therefrom, were void as same
were in violation of article 99
of the Constitution - 33 (1) of
the Constitution, 1992; Order 67
of the High Court Civil
Procedure Rules, 2004 [C.I. 47]
HEADNOTES
The instant application invoking
our supervisory jurisdiction in
the nature of
certiorari and prohibition,
which was filed on 29th
December, 2020 by the
Attorney-General (i.e. the 4th
respondent in the action before
the High Court, Ho and who,
hereinafter, shall be referred
to as ‘Applicant’), is a progeny
of the interim orders made by
the trial High Court on 23rd
December, 2020. The Applicant is
praying for two supervisory
reliefs. The first is an order
of certiorari directed at the Ho
High Court, to bring into this
Court for the purpose of being
quashed, the interim restraining
orders made by the court dated
23rd December, 2020
and quoted supra. The second is
an order prohibiting the High
Court, Ho, from further hearing
or conducting proceedings in the
said originating motion on
notice -
HELD
However, it is for the trial
High court to determine whether
or not the right to vote, which
is not a provision under Chapter
5 of the Constitution on
fundamental human rights but
under Chapter 7 on the Directive
Principles of State Policy, is a
human right issue or not.
Again, apart from the failure
of the applicant to demonstrate
in any way that there is the
likelihood of bias on the part
of the trial judge in
determining the alleged human
right issues, the fact that the
trial judge erred in granting
the interim orders was not
conclusive that he would be
biased or there is the
likelihood of bias on his part
in the determination of those
reliefs. We therefore decline
the invitation by the applicant
to injunct the trial judge from
hearing and determining the
remaining reliefs. For the
reasons stated above, we grant
the first leg of the applicants
prayer but refuse the second,
which seeks to prohibit the High
court, Ho from hearing and
determining the apparent human
right reliefs under relief 1 (a)
to (e). We accordingly order
that the entire proceedings of
the High Court, Ho dated 23rd
December, 2020, which led to the
making of the void interim
orders of mandamus and
injunction, be brought to this
Court for the purpose of same
being quashed and they are
hereby quashed.
STATUTES REFERRED TO IN JUDGMENT
Constitution, 1992,
People’s Law, 1992 [PNDCL 284]
High Court Civil Procedure
Rules, 2004 [C.I. 47]
Representation of the People
(Parliamentary Constituencies)
Instrument, 2020’
C.I. 128
CASES REFERRED TO IN JUDGMENT
Yeboah v J. H. Mensah [1998-99]
SCGLR 492
Edusei v Attorney-General
[1996-97] SCGLR 1
In re Parliamentary Election for
Wulensi Constituency; Zakaria v
Nyimakan [2003-2004] 1 SCGLR 1
Wilkinson v Barking Corporation
[1948] 1 KB 721
Pasmore v Oswald Twistle UDC
[1898] AC 387
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
APPAU, JSC:-
COUNSEL
GODFRED YEBOAH-DAME (DEPUTY
ATTORNEY-GENERAL) WITH HIM MRS.
VERONICA ADIGBO (PRINCIPAL STATE
ATTORNEY) AND (MS. YVONNE
BANNERMAN) FOR THE APPLICANT.
TSATSU TSIKATA WITH HIM EMILE
ATSU AGBAKPE FOR THE INTERESTED
PARTIES/RESPONDENTS.
APPAU, JSC:-
On the 23rd day of
December, 2020, one Professor
Margaret Kweku who was the
parliamentary candidate of the
National Democratic Congress
(NDC) Party in the Hohoe
Constituency of the Volta Region
and four (4) others, namely;
Simon Alan Opoku-Mintah, John
Kwame Obimpeh, Godfried Koku
Kofie and Felix Quarshie who
claimed to be registered voters
in the Santrokofi, Akpafu, Likpe
and Lolobi traditional areas in
the Oti Region (hereinafter
referred to as SALL Areas),
initiated an action in the High
Court, Ho by Originating Motion
on Notice, praying for certain
reliefs against the Electoral
Commission as 1st
respondent and three others. The
three others are; Wisdom Kofi
Akpakli (the Returning Officer
for Hohoe Constituency, as 2nd
respondent), John Peter Amewu
(the NPP M.P. Elect for Hohoe
Constituency, as 3rd
respondent) and the
Attorney-General, as the 4th
respondent. Per their motion
paper, the action of the
applicants in the trial High
Court, was premised on article
33 (1) of
the Constitution, 1992; Order 67
of the High Court Civil
Procedure Rules, 2004 [C.I. 47]
and the Inherent
Jurisdiction of the High Court.
Article 33 (1) and Order 67,
rule 1 of C.I. 47 provide:
“Article 33 (1): Where a
person alleges that a provision
of this constitution on the
fundamental human rights and
freedoms has been, or is being
or is likely to be contravened
in relation to him, then,
without prejudice to any other
action that is lawfully
available, that person may apply
to the High Court for redress.
Order 67 rule 1 of C.I. 47: A
person who seeks redress in
respect of the enforcement of
any fundamental human right in
relation to the person under
article 33 (1) of the
Constitution shall submit an
application to the High Court.”
In their application, the
applicants were seeking six (6)
declarations, an order of
mandamus and three (3)
restraining orders. These are:
1.
a.
A declaration that the decision
of the 1st
respondent, implemented by the 2nd
respondent, preventing and
excluding the 2nd to
5th applicants and
other registered voters in the
Santrokofi, Akpafu, Likpe and
Lolobi traditional areas from
voting for a parliamentary
candidate in the Hohoe
Constituency, denied the said
voters their fundamental right
to vote, to democratic
participation and specifically,
to be represented in Parliament;
b.
A declaration that the eleventh
hour decision of the 1st
respondent, implemented by the 2nd
respondent, preventing the
holding of Parliamentary
elections in the Santrokofi,
Akpafu, Likpe and Lolobi
traditional areas from voting
for a parliamentary candidate in
the Hohoe Constituency was
arbitrary and capricious and
without recourse to due process
of law as required of the 1st
and 2nd respondents
by article 296 of the
Constitution, 1992;
c.
A declaration that the decision
of the 1st
respondent, implemented by the 2nd
respondent, preventing and
excluding the 2nd to
5th applicants and
other registered voters from the
four traditional areas concerned
from voting for a parliamentary
candidate, was in
violation
of the right to equality before
the law of the registered voters
in those areas;
d.
A declaration that the refusal
of the 1st respondent
to address concerns raised by
the NDC, the party on whose
platform the 1st
applicant stood, about the
conduct of the parliamentary
elections in the Hohoe
Constituency, ending up with the
eleventh hour decision to
exclude certain voters from
participation, was wholly
unreasonable;
e.
A declaration that the
disregard by the 1st
and 2nd respondents
of the fundamental nature of
the right of citizens in a
democracy to vote and 1st
respondent’s disdain for
authoritative pronouncements of
the Supreme Court , led to
wanton abuse of power by them in
the conduct of the parliamentary
elections in the Hohoe
Constituency on 7th
December, 2020.
f.
A declaration that as a result
of the numerous deficiencies in
the conduct of the elections by
the 1st and 2nd
respondents as set out above,
the 3rd respondent
was not duly elected as the
person to represent the people
of Hohoe Constituency (including
the applicants and all
registered voters in the
subject-areas) in Parliament
from 7th January 2021
to 6th January 2025.
2. An order of mandamus to
compel the 1st and 2nd
respondents, to organize and
conduct the parliamentary
election in respect of the Hohoe
Constituency including the
Santrokofi and the other three
traditional areas to enable all
registered voters there to have
the opportunity to vote for the
determination of the member of
parliament.
3. An order to restrain:
a.
the 1st and 2nd
respondents from seeking to
gazette the 3rd
respondent as the duly elected
M.P. for the Hohoe Constituency
from January 7th 2021
to January 6, 2025;
b.
the 1st and 2nd
respondents from in any way,
presenting the 3rd
respondent as duly elected to
represent the people of Hohoe
Constituency in Parliament; and
c.
the 3rd respondent
from presenting himself to be
sworn in as the Member of
Parliament for the Hohoe
Constituency or otherwise
holding himself out as such.
On the same day that the
applicants filed the originating
motion on notice, they also
filed an ex-parte motion,
praying for interim orders of
injunction pending the
determination of the substantive
originating motion on notice.
This ex-parte motion for
injunction was fixed for hearing
on the same date it was filed
and it was indeed heard that day
and granted by the trial High
court. The orders sought by the
applicants in the ex-parte
application were to restrain:
(a)
the 1st respondent
from seeking to gazette the 3rd
respondent as duly elected M.P.
for the Hohoe Constituency;
(b)
the 1st and 2nd
respondents from presenting the
3rd respondent as
duly elected to represent the
people of Hohoe Constituency in
Parliament from January 7th
2021 to January 6th,
2025; and
(c)
the 3rd respondent
from presenting himself to be
sworn in as the Member of
Parliament for the Hohoe
Constituency or otherwise
holding himself out as such.
The Order made by the trial
court in the interim
application, was as follows:
“It is ordered that the
respondents be and are hereby
restrained in the interim, and
in particular:
(1)
the 1st respondent
from seeking to gazette the 3rd
respondent as duly elected to be
Member of Parliament for Hohoe
Constituency from January 7th
2021 to January 6th,
2025;
(2)
the 1st and 2nd
respondents from, in any way,
presenting the 3rd
respondent as duly elected to
represent the people of Hohoe
Constituency in Parliament… and
(3)
the 3rd respondent
from presenting himself to be
sworn in as the Member of
Parliament for the Hohoe
Constituency or otherwise
holding himself out as such.
The Orders shall last for 10
days effective today.”
My Lords and Lady, the instant
application invoking our
supervisory jurisdiction in the
nature of certiorari and
prohibition, which was filed on
29th December, 2020
by the Attorney-General (i.e.
the 4th respondent in
the action before the High
Court, Ho and who, hereinafter,
shall be referred to as
‘Applicant’), is a progeny of
the interim orders made by the
trial High Court on 23rd
December, 2020. The Applicant is
praying for two supervisory
reliefs. The first is an order
of certiorari directed at the Ho
High Court, to bring into this
Court for the purpose of being
quashed, the interim restraining
orders made by the court dated
23rd December, 2020
and quoted supra. The second is
an order prohibiting the High
Court, Ho, coram: Buadi, J.
from further hearing or
conducting proceedings in the
said originating motion on
notice.
The Applicant stated three
grounds for the application. The
first was that the trial High
Court has no jurisdiction under
article 33 (1) of the
Constitution, 1992, to entertain
a matter in the nature of a
parliamentary election petition
and to grant any relief(s),
interim, interlocutory or final,
available in a parliamentary
election commenced under article
99 and section 16 of the
Representation of the People’s
Law, 1992 [PNDCL 284]. The
second was that the proceedings
of the said date and the orders
emanating therefrom, were void
as same were in violation of
article 99 of the Constitution,
1992. The third was that the
orders of the trial High court
dated 23rd December,
2020 constituted a patent error
on the face of the record to the
extent that they purported to
confer on the applicants therein
who are the interested parties
herein, non-existent voting
rights in respect of the Hohoe
Constituency in the Volta
Region.
The sum total of applicant’s
arguments in his statement of
case, in brief, was that this
application is meant to prevent
a palpable abuse of the human
rights jurisdiction of the Ho
High Court for the ventilation
of a non-existent parliamentary
election grievance, when there
exists a specific remedy
prescribed by the Constitution
and an act of Parliament for
that purpose. The Applicant
contended that the reliefs
sought by the interested parties
herein in the Ho High Court;
particularly reliefs 1 (f), 2
and 3 (a), (b) and
(c), constituted a challenge
against the conduct of
Parliamentary elections in the
Hohoe Constituency and the
consequent election of the 3rd
respondent in the action, Mr.
John Peter Amewu as the Member
of Parliament for Hohoe
Constituency from 7th
January, 2021 to 6th
January, 2025. As a matter that
constitutes a challenge to the
due election of a contestant in
the parliamentary elections held
on 7th December,
2020, the Ho High Court has no
jurisdiction under article 33 of
the Constitution and Order 67 of
C.I. 47 to grant remedies
available only in a
parliamentary election petition
constitutionally required to be
instituted under article 99 of
the Constitution, 1992 and
section 16 of PNDCL 284. The
interim orders made by the High
court on 23rd
December purporting to restrain
the 1st respondent
from gazetting the 3rd
respondent as the Member of
Parliament elect for the Hohoe
Constituency and also from
presenting him to Parliament to
be sworn in as the Member of
Parliament for the said
constituency, were therefore
void as they can only be made in
an election petition instituted
under article 99 of the
Constitution, 1992 and section
16 of the Representation of the
People’s Law PNDCL 284.
Quite apart from that, the order
of the trial High court
purporting to restrain the
Electoral Commission from
gazetting the 3rd
respondent, was made at a time
the Commission had already
gazetted the 3rd
respondent, making it a
spent
order or otiose. Applicant
attached Exhibit ‘AG 1’ titled;
“Ghana Gazette No. 195 dated
Tuesday 22nd December
2020”, to her application, which
showed that the results of the
December 7 Parliamentary
Elections, including that of the
3rd respondent, was
gazetted on 22nd
December 2020; i.e. a day before
the institution of the action in
the Ho High Court by the
interested parties.
Applicant contended further that
per the decision of this Court
in Suit No. J6/01/2020, titled
VALENTINE EDEM DZATSE v HENRY
AMETEFE & 5 Others, dated
24th June 2020,
the inclusion of the SALL Areas
in the Hohoe Constituency of the
Volta Region, is inconsistent
with article 47 (2) of the
Constitution, 1992 to the extent
that these traditional areas
form part of the Oti Region
created by C.I. 112.
Consequently, C.I. 128 was
passed, placing the traditional
areas of SALL under the Buem
Constituency in the Oti Region.
This being the case, the
assumption of jurisdiction by
Buadi, J. of the Ho High Court
constituted a patent error on
the face of the record.
The Applicant accordingly prayed
the Court to quash the interim
orders made by the High Court on
23rd December, 2020,
as same constituted a flagrant
abuse of the process of the
court and to halt further
proceedings by the court of the
originating notice of motion
before it. Aside of the
constitutional provisions and
statutes referred to supra, the
applicant recalled the Court’s
attention to its own decisions
in
YEBOAH v J. H. MENSAH [1998-99]
SCGLR 492; EDUSEI v
ATTORNEY-GENERAL [1996-97] SCGLR
1; IN RE PARLIAMENTARY ELECTION
FOR WULENSI CONSTITUENCY;
ZAKARIA v NYIMAKAN [2003-2004] 1
SCGLR 1; etc. to
buttress her submissions.
The 1st Interested
party, who happened to be the 1st
applicant in the Originating
Motion on Notice at the Ho High
Court, filed an affidavit in
opposition, for herself and
on-behalf of the other
interested parties, to the
applicant’s application. They
also filed a supplementary
statement of case to expatiate
their opposition to the
application. The affidavit made
very interesting reading. In
fact, the crux of the affidavit
and the statement of case filed
by the interested parties were
in respect of an alleged
violation of the human rights of
the interested parties and other
voters in the four traditional
areas of SALL, due to alleged
acts of the Electoral Commission
and its agents. Paragraph 18 of
the affidavit in opposition was
as follows:
“18. That the fundamental human
rights that are implicated in
the Human Rights action includes
(but are not limited to) the
right of the Interested Parties,
the chiefs and people of SALL
Area to:
a.
vote and fully participate in
political activities,
b.
administrative justice and
c.
equality and
non-discrimination.”
The Interested parties then
denied that their action in the
Ho High Court was an election
dispute and contended under
paragraph 31 thus:
“31. That I am advised and I
verily believe same to be true
that it is two events, namely:
a.
the failure of the Electoral
Commission to comply with this
Honourable Court’s order in the
Dzatse case to amend C.I. 95 to
bring it in conformity with C.I.
112; and
b.
the unceremonious public notice
in Exhibit MK3, which
effectively revoked the rights
of the chiefs and people of the
SALL Area,
that constituted the egregious
violation of the fundamental
human rights of the Interested
Parties and that of the chiefs
and people of the SALL Area.”
After a careful consideration of
the interested parties’
affidavit in opposition and the
lengthy submissions made by
their counsel, we noticed that
the interested parties did not
say anything in justification of
the interim orders made by the
High Court, which are in the
nature of orders made in an
election petition. Counsel for
the interested parties made
extensive submissions on C.I.128
and concluded that the
constitutional instrument in
question was unconstitutional
and therefore lacked any legal
justification.
C.I. 128
is the ‘REPRESENTATION
OF THE PEOPLE (PARLIAMENTARY
CONSTITUENCIES) INSTRUMENT,
2020’, which purportedly
revoked C.I. 95 of 2016 and
placed the people in the SALL
Area previously under the Hohoe
constituency per C.I. 95 under
the Buem Constituency upon the
creation of the Oti Region.
Our jurisdiction in the instant
application before us does not
extend to the determination of
the constitutionality or
otherwise of C.I. 128. The
interested parties have not
invoked the jurisdiction of this
Court to challenge the
constitutionality or otherwise
of C.I. 128. Whether the SALL
Area people have to vote either
in Hohoe Constituency or Buem
Constituency is not the issue
before us in this application.
That is a matter between the
interested parties and the
Electoral Commission as they
themselves have deposed to
severally in their affidavit in
opposition to the application.
In the affidavit in support of
the motion on notice for leave
to file supplementary statement
of case, the 1st
interested party, representing
the other interested parties
deposed at paragraph 23 as
follows:
“23. I am further advised and
verily believe that the
announcement of the Electoral
Commission on 6th
December 2020 that the voters in
the SALL area could not vote in
Parliamentary elections on 7th
December 2020 and the resultant
denial of the right to
representation in the 8th
Parliament of Ghana are at
the heart of the action for
the enforcement of fundamental
human rights that we have
initiated in the High Court,
Ho.”
{Emphasis ours}.
Invariably, what is at the heart
of the interested parties’
action in the Ho High Court, as
they themselves claim, for which
they are seeking to enforce
their fundamental human rights,
is the alleged denial of their
right to vote in the December 7
Parliamentary elections and
consequently their right to
representation in the 8th
Parliament of Ghana. If the
Interested parties claim is
against the Electoral Commission
for violating their rights to
vote with the creation of the
Oti Region, what has that got to
do with the gazetting of the 3rd
respondent whom the Electoral
Commission has declared as the
winner of the contest in the
Hohoe Constituency Parliamentary
elections? The fact is that, Mr.
John Peter Amewu has nothing to
do with the denial by the
Electoral Commission of the
right of the people in the SALL
Area to vote. He is not an agent
of the Electoral Commission and
never performed any functions
for and on behalf of the
Electoral Commission. He was a
candidate who put himself up to
be elected and never took any
decision as to who to vote and
where to vote. If the contention
of the interested parties was
that Mr. John Peter Amewu was
not duly elected due to certain
infractions of the Electoral
Commission and therefore does
not deserve to be gazetted or
presented to Parliament to be
sworn into office as a Member of
Parliament, then they have to
comply with the law and resort
to the specific remedy and
procedure provided by law to
ventilate such grievance.
The law as constitutionally and
statutorily provided and
judicially considered by this
apex Court in a plethora of
decisions, does not permit the
interested parties to include
reliefs 1 (f), 2 and 3
in the reliefs sought in their
apparent human rights action
when these reliefs were
purporting to challenge the due
election of John Peter Amewu as
the Member of Parliament elect
for the Hohoe Constituency. In
the Yeboah v J. H. Mensah
case supra, a case whose
ratio is similar to the instant
matter before us, though
factually different, the veteran
politician Mr. J. H. Mensah of
blessed memory, was elected as
the Member of Parliament for the
Sunyani East Constituency in the
then Brong-Ahafo Region in the
1996 Parliamentary elections on
the ticket of the New Patriotic
Party (NPP). On 25th
February 1997, one Michael
Yeboah caused a writ to be filed
in this apex Court, invoking the
original jurisdiction of the
Court in terms of articles 2,
94(1) and 130 of the
Constitution, 1992 and rule 45
of the Supreme Court rules, 1996
[C.I. 16]. The plaintiff claimed
that Mr. J. H. Mensah was not
qualified or competent to become
a Member of Parliament in terms
of article 94(1)(b) of the
Constitution, 1992. The
defendant, who denied
plaintiff’s contention, raised a
preliminary objection to the
action on the ground that
plaintiff’s action was
incompetent, having been
instituted in a wrong forum. The
Supreme Court upheld the
objection on the ground that the
Court was not the proper forum
for the action. This Court
relied on the provisions of
section 16 of PNDCL 284 and
article 99 of the Constitution,
whose combined effect is that
the validity of an election to
Parliament may be questioned
only by a petition presented to
the High Court. The Court
re-echoed the decisions in
WILKINSON v BARKING CORPORATION
[1948] 1 KB 721 @ 724 per
Asquith, L.J. & PASMORE v
OSWALD TWISTLE UDC [1898] AC 387
@ 394, per Lord Halsbury
that; “where a statute creates a
right and in plain language
gives a specific remedy or
appoints a specific tribunal for
its enforcement, a party seeking
to enforce the right must resort
to that specific remedy or
tribunal and not others.” In the
Pasmore case supra, Lord
Halsbury stated it bluntly that;
“the principle that where
a specific remedy is given by a
statute, it thereby deprives the
person who insists upon a remedy
of any other form of remedy than
that given by the statute, is
one which is very familiar and
which runs through the law.”
It is quite clear that our
Constitution, 1992 per article
33(1), clothes only the High
Court with authority to hear and
determine matters pertaining to
the violation or infringement of
the fundamental human rights of
persons. In the same vein, the
same Constitution per article
99, clothes only the High Court
with jurisdiction to hear and
determine any question as to
whether or not a person has been
validly elected as a Member of
Parliament. With regard to the
provisions under article 99,
there existed a law before the
promulgation of the
Constitution, 1992, i.e. PNDCL
284, which law was saved by
article 11(1)(d) of the
Constitution. This law provides
under section 16(1) that the
validity of an election to
Parliament may be questioned
only by a petition brought under
sections 17 to 26 of that law.
In the wake of these two
provisions; i.e. article 99 of
the Constitution, 1992 and
section 16 of PNDCL 284 of 1992,
a person cannot sidestep this
procedure and commence an action
in the High Court invoking any
of the High Court’s other
jurisdictions to ventilate a
grievance that border on the
validity of an election to
Parliament. Substantively
therefore, the jurisdiction of
the High Court conferred by
article 99 of the Constitution,
1992 and section 16 of PNDCL 284
of 1992, for the determination
of a Parliamentary dispute, is
fundamentally different from a
human right action pursued under
article 33(1) of the
Constitution, 1992.
Article 99 of the Constitution,
1992 provides: “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…”
And Section 16 of PNDCL 284
also provides that; “(1)
The validity of an election to
Parliament may be questioned
only by a petition brought
under sections 17 to 26”.
Article 33(1) of the
Constitution also provides: “Where
a person alleges that a
provision of this Constitution
on the fundamental human rights
and freedoms has been, or is
being or is likely to be
contravened in relation to him,
then, without prejudice to any
other action that is lawfully
available, that person may apply
to the High Court for redress.”
Meanwhile, counsel for the
interested parties has invited
us to hold that PNDCL 284 is
subservient to the Constitution,
1992 so the provision under
section 16 of that law that says
that the validity of an election
to Parliament may be questioned
only by an election petition,
does not take away their right
to seek redress under article 33
(1) of the Constitution,
particularly, where there exists
the phrase; “without
prejudice to any other action
that is lawfully available”.
With all due respect to learned
counsel for the interested
parties, that argument, in our
view, is untenable. The fact
that PNDCL 284 has prescribed a
specific remedy for the
ventilation of grievances in
election matters does not mean
the law is in contravention of
the Constitution. It is a
specific legislation made for a
specific purpose in compliance
with article 99 of the
Constitution, 1992. As was
stated by Hayfron-Benjamin, JSC
in the Yeboah v J. H. Mensah
case supra, “when a
remedy is given by the
constitution and a forum is
given by either the Constitution
itself or statute for
ventilating that grievance, then
it is to that forum that the
plaintiff may present his
petition.”
Article 99 of the Constitution,
1992 vests the High Court with
jurisdiction to hear and
determine any question as to
whether or not a person has been
validly elected as a Member of
Parliament and the procedure
prescribed by statute, in this
case PNDCL 284, is only by an
election petition. So whilst the
High Court has power to hear and
determine actions brought under
article 33 of the Constitution
pertaining to an alleged
violation or infringement of the
fundamental human rights of
persons, it has no jurisdiction
to make orders that in their
nature, appear to challenge the
validity of any parliamentary
election conducted by the
Electoral Commission when
exercising its jurisdiction
under that article. The only
time that the High Court has
power to make orders affecting
the validity of any
parliamentary election is when
an election dispute is initiated
under article 99 of the
Constitution. It is therefore
not surprising that the
interested parties’ affidavit in
opposition did not provide any
answer to applicant’s
submissions against the
propriety of the interim orders
made by the trial High court on
23rd December, 2020.
It is also worthy of note to
emphasize that the orders made
by the trial High court on 23rd
December, 2020, which the
applicant is praying this Court
to quash, were made ex-parte and
therefore limited by time. Order
25 rr. 1 (1) and (9) of the High
Court Civil Procedure Rules,
2004 [C.I. 47] provide:
“1(1) The Court may grant an
injunction by an interlocutory
order in all cases in which it
appears to the Court to be just
or convenient to do so, and the
order may be made either
unconditionally or upon such
terms and conditions as the
Court considers just.
(9) Where an order is made
pursuant to an application made
ex-parte under subrule (3) it
shall not remain in force for
more than ten days.”
Though the trial judge has
jurisdiction to issue ex-parte
interim orders as shown above,
such orders, by operation of
law, are limited by time. It is
for the above provision in C.I.
47 that the trial High court,
Ho, stated emphatically that its
interim orders were to last for
only ten (10) days, which is the
life time statutorily provided
for such ex-parte orders. So by
operation of law, the interim
orders of the trial High court,
though wrongly made or void
ab initio, lapsed ten (10)
days after the date they were
made. This means that, the wrong
orders of the trial High court
made on 23rd
December, 2020, died a natural
death by the close of 2nd
January 2021 and has long been
buried. {Ref. Order 80 r. 1(5)
of the High Court Civil
Procedure Rules, 2004 [C.I. 47]}
So in effect, as of today 5th
January 2021, there are no
subsisting orders of the trial
High Court to be brought to this
Court to be quashed. However,
since the trial High court has
no jurisdiction to determine
reliefs 1(f), 2 and
3(a), (b) and (c) as
endorsed in the originating
motion on notice under the
authority invoked before the
court; i.e. article 33(1) of the
Constitution, 1992, we shall
strike out the said reliefs for
wrongful assumption of
jurisdiction and we hereby do.
This Court would however decline
to grant the second order of
prohibition sought by the
applicant against the trial
judge, since the other reliefs
which are founded on the alleged
violation or infringement of the
fundamental human rights of the
interested parties to vote and
choose their representation in
the 8th Parliament of
Ghana, i.e. reliefs 1 (a);
(b); (c); (d) and (e), fall
within the mandate of the trial
High court as invoked.
However,
it is for the trial High court
to determine whether or not the
right to vote, which is not a
provision under Chapter 5 of the
Constitution on fundamental
human rights but under Chapter 7
on the Directive Principles of
State Policy, is a human right
issue or not.
Again, apart from the failure of
the applicant to demonstrate in
any way that there is the
likelihood of bias on the part
of the trial judge in
determining the alleged human
right issues, the fact that the
trial judge erred in granting
the interim orders was not
conclusive that he would be
biased or there is the
likelihood of bias on his part
in the determination of those
reliefs. We therefore decline
the invitation by the applicant
to injunct the trial judge from
hearing and determining the
remaining reliefs.
For the reasons stated above, we
grant the first leg of the
applicants prayer but refuse the
second, which seeks to prohibit
the High court, Ho from hearing
and determining the apparent
human right reliefs under relief
1 (a) to (e). We accordingly
order that the entire
proceedings of the High Court,
Ho dated 23rd
December, 2020, which led to the
making of the void interim
orders of mandamus and
injunction, be brought to this
Court for the purpose of same
being quashed and they are
hereby quashed.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
G. TORKORNOO (MRS.)
(JUSTICE OF THE SUPREME COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
I.O. TANKO
AMADU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
GODFRED YEBOAH-DAME (DEPUTY
ATTORNEY-GENERAL) WITH HIM MRS.
VERONICA ADIGBO (PRINCIPAL STATE
ATTORNEY) AND (MS. YVONNE
BANNERMAN) FOR THE APPLICANT.
TSATSU TSIKATA WITH HIM EMILE
ATSU AGBAKPE FOR THE INTERESTED
PARTIES/RESPONDENTS.
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