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JUDGMENT
TWUMASI, JA:
This is an appeal from the
judgment of the High Court,
Accra delivered on 15th
December, 1997 in favour of the
respondent herein on an
application by the latter for
certain reliefs in the nature of
prerogative orders, to be
precise for the orders of
certiorari and mandamus directed
against the Electoral
Commission. The circumstances
that led to the institution of
the proceedings before the High
Court, as I was able to cull
from the introductory parts of
the written statements of
Counsel on both sides could be
briefly related. In the run-up
of the Presidential and
Parliamentary elections held on
7th December 1996, the second
since the restoration of
constitutional and multi-party
administration in this country
in the post 31st December 1981
revolutionary era, the parties
in this case, each representing
his political party contested
the elections to wrest the
parliamentary seat of the
Ayawaso-West-Wuogon constituency
of the Greater Accra Region of
Ghana. Unlike other
constituencies in the country
where some losers even
congratulated their opponent
winners in the aftermath of the
declaration of the final results
of the electioneering and voting
exercise, the Ayawaso
West-Wuogon constituency became
the sore point for fierce legal
tussles in the courts one of
them culminating in this appeal.
The respondent who lost the
election instituted an action in
the High Court, Accra
challenging the results on the
grounds, claimed by him, that
there had been an error or
omission in the counting of the
votes cast and this had
consequently prejudiced his
chance of winning the seat.
Apparently upon legal advise, he
discontinued the action which he
initially commenced by the
procedure of issuing an ordinary
writ of summons with a view to
filing an election petition in
the High Court, Accra which he
in fact did. Unfortunately for
the respondent, The
Representation Of The People
Law, 1992 (PNDCL 284) turned out
to be the bane of his political
ambitions; for Gbadegbe J (as he
then was) peremptorily dismissed
the petition on the grounds that
the proceeding was
statute-barred. The reason
advanced by the learned trial
judge was that the respondent
did not fulfil the mandatory
statutory requirement of
presenting the petition within a
period of 21 days prescribed by
the relevant enactment, namely,
the Representation of the People
Decree (supra). An appeal
against that ruling to the Court
of Appeal was dismissed and he
filed yet another appeal with
the Supreme Court, which is
still pending. As if unsure of
the prospects of the appeal
succeeding, or for some other
reason peculiarly within his
knowledge, the respondent, while
the appeal to the Supreme Court
was pending determination, again
mounted a fresh action taking
its inspirational sustenance
from certain provisions of the
Constitution, 1992 subsumed
under what he called fundamental
human rights. His complaint was
that his constitutional rights
as a parliamentary candidate had
been violated in the
electioneering and voting
exercise because the Electoral
Commission had omitted to count
certain votes cast for him.
There was a poignant allegation
that some votes cast for the
respondent had been wrongly
credited to candidates of other
political parties. The remedies
sought by the respondent in his
renewed bid to vindicate his
stand were the stereotype
prerogative orders, the most
potent constitutional and
judicial weapon only reserved
for the High Court and the
Supreme Court under the
Constitution, 1992, the former
over all inferior courts,
tribunals and other corporate
bodies or individuals, and the
latter over institutions of that
character or individuals
including even the High Court,
to quash their decisions or acts
or to compel them to do their
perceived lawful duties and
acts. This procedure operates
through the medium of
certiorari, mandamus and quo
warranto. The respondent applied
to the High Court to cause all
the election results to be
brought to court to be quashed
and to order the Electoral
Commissioner to assemble all the
votes cast, recount them and
declare the winner.
The learned trial judge granted
all the reliefs sought by the
respondent and made the
necessary orders as prayed.
Against this judgment or ruling
an appeal has been lodged by the
candidate who was declared
winner (in this appeal referred
to simply as the appellant) on
three main grounds: —
(1) The learned trial judge
erred in granting orders of
certiorari and mandamus when an
appeal had been filed against
the dismissal of the petition
filed on behalf of the applicant
(here substitute respondent).
(2) The learned trial judge
erred in holding that certiorari
and mandamus could be granted in
respect of breaches under the
Public Elections Regulations
1996 (CI 15).
(3) The learned trial judge
erred when she held that the
applicable law was not PNDCL
284, but CI. 15.
I shall first deal with ground
one. My understanding of this
ground of appeal or, if I may
say so, the kernel or the thrust
of the submission against the
background of this case is
simply this: That it was not
open to the learned trial High
Court Judge to assume fresh
jurisdiction under the cloak of
an application for the
prerogative orders of certiorari
and mandamus in respect of a
disputed election result for
which an election petition had
previously been filed before the
High Court differently
constituted and the court had
dismissed it and an appeal
against the dismissal was still
pending before the Supreme
Court.
In his written submission of
case, Counsel for the appellant
herein narrated an important
event which occurred at the
commencement of the proceedings
in this case. According to him,
a preliminary objection was
raised as to the juridical
competence of the present
action; that since there was an
appeal pending in respect of the
petition which in his view was
the same matter as the
application for certiorari and
mandamus, the court should not
allow the applicant to move the
application and should dismiss
same. For the avoidance of doubt
I will reproduce what Counsel
relates: —
“The High Court Judge adjourned
the matter for ruling on the
preliminary objection to the
30/10/97 (see page 196 of the
record). On the said date Her
Lordship invited Counsel in the
suit to her chambers and
informed Counsel that she had
decided to incorporate the
ruling of the preliminary
objection in the main ruling of
the case. She adjourned the suit
for the hearing of the
substantive application. My
Lords, we filed an appeal
against Her Lordship's refusal
to deliver her ruling and filed
a motion for a stay of
proceedings pending the hearing
of the motion (see page 197-202
of the record). The learned
trial judge refused to hear the
application and delivered her
ruling granting all the reliefs
sought by the applicant (see
page 25 - 287 of the record of
appeal)”.
Counsel for the respondent
admitted these facts at page 7
of his written statement of case
and in fairness to all parties I
shall reproduce his version as
follows: —
“On the 29th October 1997 the
trial judge called the parties
and their counsel into chambers
and informed them that she had
decided in the interests of
justice, to hear the substantive
application and deliver her
ruling on the preliminary
objection together with her
ruling on the substantive
application. All Counsel in the
chambers agreed to this course
of action. However, the
appellant's counsel filed an
appeal against it on the same
day at 12.44 pm and filed an
application for a stay of
proceedings the same day at
1.00pm. The application was
brought to the notice of the
learned trial judge on 30th
October 1997 when she decided to
go on nevertheless with the
hearing on the substantive
application which was duly
argued by both sides on that
date 31st October and 3rd
November when the judge
adjourned the matter for
ruling.”
Before I make my comments about
the propriety or otherwise of
the procedure which the learned
trial judge adopted, I wish to
express my unqualified
admiration for the candour and
honesty which both Counsel have
shown to the court in respect of
the facts they each presented in
their written statements. Having
said that, I wish to observe
that if what has been related by
Counsel as certified on the
record is anything to go by,
then I would unhesitatingly say
that the learned trial judge was
guilty of demonstrable
impatience which could have the
potential of prejudicing the
administration of justice, which
is avowedly an inherently slow
process but the surest guarantee
to liberty. The learned judge
breached a fundamental rule of
procedure relating to
preliminary objections in law.
The real essence of the
preliminary objection was to
challenge the juridical
competence of the High Court to
entertain the application for
certiorari and mandamus and it
was wrong for the trial judge
not to have made a ruling on the
important question of
jurisdiction. If there was such
an agreement by Counsel or even
the parties to the procedure
which from all indications the
learned trial judge had in her
sleeves then, I would mince no
words in saying that it was most
unfortunate because it tended to
threaten and prejudice the
fundamental rationes of the
jurisdiction of a court to hear
or determine any cause or
matter. In the case of Quist v.
Kwantreng and others Ollennu J
(as he then was) expressed
disgust with this procedure and
I would just quote holdings (6)
and (7) of that case to
demonstrate: —
“(6) parties cannot by consent
or by acquiescence confer
jurisdiction on a court where it
has none otherwise.
(7) an objection to jurisdiction
can be taken at any time; it may
even be raised for the first
time on a second appeal”.
The trial judge is seemed to
know the law and therefore even
if Counsel or the parties did
anything contrary to law it was
her prime responsibility as the
protector of the law to have
upheld same and to do the right
thing. She should have given her
ruling on the preliminary
objection. Her failure to do so
seriously prejudiced the
proceedings and violated the
very foundation of justice as
practised in our courts. In the
recent case of Michael Yeboah v.
J.H. Mensah Writ No. 2/97 dated
6th June, 1998 Supreme Court,
unreported, it came to light
that The Honourable J.H. Mensah
M.P. for Sunyani East had
appeared before the High Court,
Sunyani on the 12th May 1997 in
connection with an election
petition filed by some
applicants to unseat him as the
elected member of Parliament for
Sunyani East constituency on
certain grounds stated in the
petition and that the High
Court, Sunyani had dismissed the
said petition on the ground that
it had not been filed within
the statutory period of 21 days.
Expressing his legal opinion on
the legal effect of the
dismissal of the said election
petition, His Lordship
Hayfron-Benjamin JSC (presiding)
said and I quote:
“ it will be seen from the
provisions of section 19 of
PNDCL 284 that by that decision
of the High Court, Sunyani, on
the 12th May 1997 the defendant
whose election has been
questioned has been duly
elected, such a decision as was
given by the High Court was in
my respectful opinion a judgment
in rem and operated to conclude
the matter for all time unless
it was set aside on appeal”.
In the case of Kariyavoulas and
Another v. Osei (1982-83) GLR 1
658 at p 665, I expressed an
opinion on the meaning of
judgment in rem as follows: —
“There are two types of
judgements to be considered when
determining issues of res
judicata; judgments in rem and
judgments in personem. A
judgment in rem settles all
issues as to the status of the
persons or things and the
disposition of them or the
proceeds of their sale and it
operates as estoppel per rem
judicatem against all persons
within the jurisdiction of the
court pronouncing it, whereas a
judgment in personam is one
inter parties and raises an
estoppel against the parties to
the suit: see Halsbury’s Laws of
England, 3rd Edition, Vol. 15 at
pages 191 - 195; Amoah v. Poku
(1965) GLR 155 SC”.
Again in the case of Bassil v.
Honger (1954) 14 WACA p 569 at
p. 572 Coussey JA (as he then
was) said: —
“The plea of res judicata
prohibits the court from
enquiring into a matter already
adjudicated upon. It ousts the
jurisdiction of the court”.
The fact that Gbadegbe J (as he
then was did not take evidence
in the petition does not detract
from the status of the
proceeding before him as a
judgment in rem. I will
elaborate this point soon when I
come to deal with the law
relating to statutes of
limitation. Suffice it to say at
this stage that I respectfully
agree with the opinion of
Hayfron-Benjamin JSC (as he then
was) quoted above and, of
course, as explained in the
Kariyavous case (supra) and hold
that Gbadegbe J’s dismissal of
the respondent's election
petition constituted a judgment
in rem. It is noteworthy that by
paragraphs 8 and 9 of her
affidavit in opposition to the
motion for certiorari and
mandamus, the appellant herein
stated as follows: —
“(8) I have been advised and
verily believe same to be true
that this action being an action
to question an electoral result
can only be commenced in court
by way of an election petition
and not by prerogative writs.
(9) That the applicant knowing
the position as stated in
paragraph 8 herein filed a
petition in this Honourable
Court which was subsequently
dismissed by the court. The
applicant cannot and should not
be allowed to circumvent and
render the decision of this
court nugatory by seeking the
remedies of certiorari and
mandamus while pursuing an
appeal in the same matter.”
The depositions by the appellant
clearly constitute a plea of
estoppel and the limitation of
actions which by the rules must
be pleaded. These facts could
not and in fact were not
disputed and yet the learned
trial judge thought that she had
jurisdiction to entertain the
application for the prerogative
orders of certiorari and
mandamus.
It has been argued that Gbadegbe
J did not go into the merits of
the election petition and so the
mere dismissal of the action on
the ground that it was
statute-barred was no ground for
not entertaining the present
application for the prerogative
orders. My view on this
submission has already been
stated above and, as I promised,
I now proceed to strengthen that
view by a brief exposition of
the law relating to statutes of
limitation. In the case of Dede
v. Tetteh and Others (1976) 1
GLR p 49 at p 53
Griffiths-Randolf J (as he then
was) said: —
“It is pertinent to say that
statutes of limitation are
intended to keep a tardy
plaintiff out of court, and thus
free the defendant from being
harassed with stale claims, the
maxim being “vigilantibus et non
dormientibus, jura subveninut
(i.e. the laws give help to
those who are watchful and not
to those who go to sleep) and
that on the principle of
‘interest republicae ut sit
finis litium (i.e. it concerns
the state that lawsuits be not
protracted) fixed periods of
time within which actions must
be brought or proceedings taken
are prescribed in various
statutes of limitation”.
And in tune with this rule of
law, I may refer also to the
memorandum to the Limitation
Decree, 1972 (NRCD 54) where it
is stated: —
“The limitation of actions is a
rule of public policy which
provides for the automatic
termination of litigation after
a fixed period of time. After
this statutory period, a
person’s right of action is
barred and sometimes his title
is extinguished.”
In his written statement of case
Counsel for the respondent is
recorded to have given the
following graphic but pungent
account (see pages 3 to 4
thereof): —
“(11) On 19th January 1997 the
respondent filed an election
petition in the High Court
Accra, challenging the results
in the Ayawaso West-Wuogon
constituency but this petition
was on the 3rd day of May 1997
struck out by Gbadegbe J (as he
then was) on the ground that the
statutory requirement of the
provision of financial security
had not been complied with
within the statutory period with
the result that the complaint of
the respondent in the said
petition that votes actually
cast for him at the Mpehuasem
and Mensa-Wood polling stations
had been wrongly credited to
other candidates while votes
cast for other candidates had
been erroneously credited to him
thereby robbing him of victory
at the said election was not
enquired into at all.
(12) it would be observed that
the election petition which was
struck out by Gbadegbe J (as he
then was) aforesaid was not
based on the failure by the
Electoral Commission to add the
result from the polling station
(060701A to the tally as
disclosed in the last paragraph
of their brief to the
Attorney-General. Indeed when
the said election petition was
filed the said brief of 31st
January 1997 had not been
written or signed by the
Electoral Commission and the
respondent did not know that not
only were votes cast wrongly
credited to those for whom they
were not cast in some polling
stations but that in one polling
station votes cast were not
added at all to the tally thus
completely violating the
imperative duties imposed on the
Electoral Commission by statute.
In respect of that particular
polling station, the complaint
would be one not of performing
the statutory functions wrongly
but of failing completely to
discharge the statutory
functions. In the jurisdictional
language, it was not a case of
committing errors in the
exercise of the jurisdiction but
a case of failure to exercise
the jurisdiction at all”.
It is my considered opinion that
these facts as have been related
by Counsel for the respondent do
not detract from the legal
effect of dismissal of the
respondent’s petition and the
law relating to estoppel per rem
judication and limitation of
actons as I have endeavoured to
analyse above. It is admitted by
or on behalf of the respondent
that he had a cause of action
accruing to him from the day the
election results were announced.
The fact that he did not know at
the time he filed the petition
that there was in existence
further evidence in support of
his claim did not make the
situation any different. If the
respondent had instituted his
petition within the statutory
period there can be no doubt
that Gbadegbe J (as he then was)
would have taken all the facts
that the respondent claimed came
to his knowledge subsequently.
Our rules of evidence permit
parties to call and recall
witnesses to adduce fresh
evidence even on appeal,
provided the prescribed legal
requirements are fulfilled and
the ends of justice could be
assured thereby. But I am not
prepared to accept the
submission or suggestion that
where a party commences legal
proceedings in court and the
action is dismissed or struck
out as statute-barred he can
resuscitate the action on the
ground of discovery of evidence
which in his view tends to
strengthen the case he commenced
out of time. And it is extremely
important in the interest of
fairness to parties to a case
that a court of law be extra
cautious in exposing all forms
of attempts by parties whose
actions have been declared
statue-barred or caught by some
rule of estoppel resuscitating
their actions under a new guise
to defeat justice. It is as well
to state that where by any rule
of law or procedure the right to
pursue an action in court is
frustrated i.e. by estoppel per
rem judicatem or by the law of
limitation of actions or even on
the ground of lack of capacity,
it is no answer to say that the
party who is so frustrated could
if allowed to pursue the case on
the merits have emerged
victorious. Apaloo CJ (as he
then was) in the case of
Sarkodee v. Boateng (1982-82)
GLR 715 at 724 put the matter in
a lucid language thus: —
“ It is claimed in one of the
more serious grounds of appeal
that substantial questions were
involved in the suit and it was
unjust for the appellant to be
driven from “the judgment seat”
on the preliminary objection
raised by the respondent. But it
is no answer for a party against
whom a serious question of locus
standi is raised, to plead that
he should be given a hearing on
the merits because he has a
cast-iron case against his
opponent”.
Ground two raises the vexed
question of whether the
prerogative writs of certiorari
and mandamus lie against the
Electoral Commission in the
performance of its duties. The
answer must be in the
affirmative. There are two
relevant provisions of the
Constitution 1992 on this issue.
It is provided under articles 23
and 33 of the Constitution, 1972
that:
“23 Administrative bodies and
administrative officials shall
act fairly and reasonably and
comply with the requirements
imposed on them by law and
persons aggrieved by the
exercise of such acts and
decisions shall have the right
to seek redress before a court
or other tribunal.
33(1) Where a person alleges
that a provision of this
constitution on the fundamental
human right and freedom 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.
(2) The High Court may, under
clause (1) of this article,
issue such directions or orders
or writs including writs or
orders in the nature of habeas
corpus, certiorari, mandamus,
prohibition and quo warranto, as
it may consider appropriate for
the purposes of enforcing or
securing the enforcement of any
of the provisions on the
fundamental human rights and
freedoms to the protection of
which the person concerned is
entitled.
(4) The Rules of Court Committee
may make rules of court with
respect to the practice and
procedure of the Superior Courts
for the purposes of this
article".
The prerogative writs have been
the most effective power in the
hands of English monarchs in
controlling the judicial and
quasi judicial decisions of
inferior courts, tribunals and
other adjudicatory bodies
whenever they are found to have
committed breaches of natural
justice or assumed wrong
jurisdiction or made errors of
law on the face of their
records: see R. v.
Northumberland Compensation
Appeal Tribunal, Ex parte Shaw
(1951) 1 KB 711; R. v. Surrey
Justices (1870) L.R. 5 QB 466;
King v. London County Council
Ex-parte Entertainments
Protection Association (1931) 2
KB 215. Local authorities abound
in this area of the law: see
Republic v. High Court Sekondi
Ex-parte Abuna (1992) 1 GLR 524
CA and others. But I conceive it
to be imperative to concentrate
on mandamus, one of the
prerogative writs used to compel
the institutions mentioned above
or individuals to perform their
statutory duties. That order may
be issued against any inferior
court or tribunal or other
adjudicatory body or a body not
necessarily a court to carry out
some public duty. In his famous
book “Constitutional Law Of
Great Britain And The
Commonwealth” 2nd edition page
446 the learned author Hood
Philips says: —
“The order of mandamus may be
issued to any person or body not
necessarily an inferior court,
commanding him or them to carry
out some public duty. It does
not lie to compel the exercise
of a discretionary power. It is
a residuary remedy of use where
no other remedy is available, or
if some other remedy is provided
by statute (Parsmore v.
Oswaldt-wistle Urban District
Counsel (1898) AC 387”.
In the case of Republic v.
Akyeamfour 11(1982-83) GLR p 11
the Court of Appeal held that
certiorari or mandamus could not
lie against the National House
of Chiefs to insert the name of
a chief in the register of
chiefs because that act was a
purely administrative act.
It appears, however, that that
decision has been shorn of its
vigour in the light of the
provisions of the Constitution
1992, article 23. It would also
appear that the decision in The
Republic v. Inspector-General Of
Police Ex-parte Hanson and
others (1992) 2 GLR 174 where
mandamus to compel the IGP to
issue a permit was refused is no
longer good law. But this
notwithstanding, the exception
stated by Hood Philips in his
book is still applicable to our
law that mandamus is not
permissible if a statute
provides another remedy. In his
written statement of case
Counsel for the respondent is on
record as saying at p 16 thereof
as follows: —
“ In “Administrative Law” by HWR
Wade and CF Forsyth published in
1996 the distinguished and
learned authors have this to
say: “Certiorari and prohibition
are employed primarily for the
control of inferior courts,
tribunals and administrative
authorities. Crown courts,
County Courts, justices of the
peace, coroners and all
statutory tribunals are liable
to have their decisions quashed
or their proceedings prohibited
except where Parliament provides
otherwise and sometimes even
when it does. So are all other
public authorities whether their
functions are judicial or
administrative…”
It would be seen clearly from
this statement, that these
learned authors share the view
of Hood Philips because they
recognise the exception clause
to the effect that the court may
and must not employ prerogative
writs where the legislature has
prescribed a specific remedy for
any person aggrieved by the
decision or act of the
institutions mentioned. Even
though these distinguished
authors dare to extend the
prerogative writs to situations
where Parliament enacts
otherwise, I would not accept
that aspect of their view. I
prefer the view? Of Hood Philips
because that accords with the
view which has had the nod of
our Supreme Court. This takes me
back again to the case of
Michael Yeboah v. J.H. Mensah
(supra), this time round, to the
opinion of Acquah JSC where this
young but exceptionally
resourceful judge says as
follows: —
“ Now once the plaintiff had the
right as held by the court to
apply for an enforcement of the
provisions of the Constitution
under articles 2(1) and 106(1)
of the 1969 Constitution, and at
the same time had a right under
article 76(1) (a) of the 1969
Constitution to present an
election petition in accordance
with NLCD 255, my understanding
of the law, in those
circumstances was that the
plaintiff could elect which of
the two remedies to pursue and
that he could not pursue both
remedies as he did. For the
principle is quite well-settled
that an individual who has a
civil remedy under two or more
enactment's, or two such
remedies under the same statute,
has a right to elect which
remedy to pursue but cannot
pursue both. Thus at page 441
paragraph 666 of Halsbury's Laws
of England 3rd edition it is
stated: “An individual who has a
civil remedy under two or more
statutes, or under a statute and
at common law must elect to
pursue only one of these
remedies (emphasis mine)”.
The undisputed facts of this
case show clearly that the nerve
centre of the respondent's
grievance was that some
injustice had been meted out to
him at the 1996 parliamentary
election. He knew or ought to
have known that elaborate
provisions existed in the PNDCL
284 for remedying such injustice
or any unfair treatment against
him in the counting of votes or
any other form of unlawful act
committed against him to his
prejudice. He was equally deemed
to know of the remedies provided
under the Constitution yet he
elected to go by an election
petition under the PNDCL 284.
All the prerogative remedies
which the respondent requested
from the High Court after the
election petition debacle were
directed against acts and
omissions of or by the Electoral
Commission in the conduct of the
elections. The powers, which
these prerogative writs invest
in the High Court, were all
exercisable by it under the
election petition procedure (see
section 19, 20 and 21 of the
PNDCL 284). Consequently, it is
my considered view that having
elected to pursue his remedy
under one enactment, the
respondent cannot turn round to
have a second bite at the cherry
merely because he lost the case
or because after, at or during
the pendency of the election
petition, fresh evidence that
existed but might have been
unknown to him had emerged to
make his case stronger than it
was before.
This is precisely because of the
fact our legislature has in its
wisdom provided the good people
of this country a special law in
respect of disputed election
results (vide PNDCL 284). While
this legislation is in force, no
one can by pass it to litigate
election results by prerogative
writs. I shall endeavour to
reproduce in detail the relevant
provisions of the PNDCL 284 to
demonstrate its rationale. I now
proceed to deal with ground
three of the grounds of appeal,
whether the law applicable to
this case is the PNDCL 284 or CI
15. Without any hesitation, I
would say that CI 15 (The Public
Elections Regulations 1996) as
its name and provisions clearly
demonstrate, is concerned with
the rules and regulations for
the actual conduct of elections
in the polling stations and
elections results. But the
Representation of The People
Law, 1992 (PNDCL 284) deals with
a whole range of different but
substantive subjects including,
arrangement of constituencies
for parliamentary elections,
qualifications for voters and
candidates seeking election,
election petitions and other
legal proceedings, election
offences, and other
miscellaneous provisions. There
is no provision in CI 15 for
election petition and other
legal proceedings except under
section 39, so when one talks of
lawsuits CI 15 does not come
into the picture at all. Even so
under the CI 15 the procedure
for challenging any
electioneering, or voting wrongs
or omissions by officers of the
Electoral Commission is the
election petition for section 39
of that constitutional
instrument states that:
“ 39 The decision of the
returning officer on any
question arising in respect of a
ballot paper is subject to
adjudication or review on an
election petition to the High
Court.”
If this is the procedure against
a ballot paper then, why should
any person convince this court
that he can come to the High
Court on other disputes
affecting the elections for
which ballot papers were
intended? For the purposes of
this case, I wish to reproduce
sections 16 and 17 and 18 of the
PNDCL 284. It is provided under
part IV of PNDCL 284 as follows:
—
“Part IV—Election Petitions and
Other Legal Proceedings.
16 (1) The validity of an
election to Parliament may be
questioned only by a petition
brought under this part.
(2) Every election petition
shall be presented before the
High Court for hearing.
17. An election petition may be
presented by one or more of the
following persons—
(a) a person who lawfully voted
or had a right to vote at the
election to which the petition
relates:
(b) a person claiming to have
had a right to be elected at the
election;
(c) a person alleging himself to
have been a candidate at the
election;
(d) a person claiming to have
had a right to be nominated as a
candidate at the election.
18. (1) An election petition
shall be presented within
twenty-one days after the date
of the publication in the
Gazette of the result of the
election to which it relates,
except that a petition
questioning an election on an
allegation of corrupt practice
and specifically alleging a
payment of money or other award
to have been made on his behalf
to his knowledge, may be
presented within twenty-one days
after the date of the alleged
payment.
(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 ¢20,000.00 as
security for costs.
(3) The time limit provided by
this section for the
presentation of an election
petition shall not be extended.
This legislation was specially
made to provide the people of
this country with the methods
for questioning elections.
Section 17(b) is emphatic that
any person in the position of
the respondent who claimed that
he had the right to be declared
winner at the election can only
resort to an election petition.
The decree does not prescribe
any procedure in the nature of
the prerogative writ known to
civil procedure. This is
confirmed by the Supreme Court
in the case of Michael Yeboah v.
J.H. Mensah (supra). The Supreme
Court through Hayfron-Benjamin
JSC (as he then was) cited
leading English authorities
including Wilkinson v. Barking
Corporation (1948) KB 721 per
Asquith LJ; Pasmore v. Oswald
Twisth UND 1898 AC 387 at 384
per Lord Halsbury to illustrate
the point in support of an
election petition. The other
judges including Acquah JSC also
cited cases needless to
catalogue. I think I have said
all that in my considered
opinion is relevant to this
appeal and I have to pronounce
the final result of the appeal
but before that I wish to refer
to rule 31(e) of the Court of
Appeal Rules, 1997 [CI 19] to
direct a focus of attention to
the power of this court when it
considers an appeal. That rule
provides that:
“31 (e) The Court of Appeal ...
shall generally have full
jurisdiction over the whole
proceedings as if the
proceedings had been instituted
and prosecuted in the Court as a
court of first instance.”
In the exercise of these powers
available to this court, I have
placed myself into the shoes of
the learned trial High Court
judge right from the time the
case came before her and the
preliminary objection was
raised. It would be seen,
therefore, that matters which
counsel perhaps never thought
about in their submissions have
been treated and in my view this
appeal could even have ended in
favour of the appellant with
ground one alone, but I went the
full distance to deal with the
three grounds to let justice be
seen not only to be done but
manifestly be seen to have been
done. In my considered opinion,
this appeal has substantial
merit and it is accordingly
allowed on all the three grounds
of appeal. The judgment and
orders of the court below are
hereby set aside.
P. K. TWUMASI
JUSTICE OF APPEAL
ANSAH, JA:
I agree
J. ANSAH
JUSTICE OF APPEAL
ADINYIRA, JA:
I also agree
S. O. ADINYIRA
JUSTICE OF APPEAL
COUNSEL
P. A. ADJETEY WITH KWAMENA
BARTELS AND FRANCIS ABAIDOO FOR
APPELLANT/RESPONDENT.
SAMUEL CODJOE FOR
RESPONDENT/APPELLANT |
